Ricegrowers Co-operative Mills Ltd v Bannerman, Ronald Moore

[1981] FCA 124

Re: RICEGROWERS CO-OPERATIVE MILLS LIMITED
And: RONALD MOORE BANNERMAN and TRADE PRACTICES COMMISSION (1981) 53 FLR 408
No. G53 of 1981
Trade Practices Act, 1974 s.155 - Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES REGISTRY
GENERAL DIVISION
McGregor J.(1)

CATCHWORDS

Trade Practices Act, 1974 s.155 - Administrative Decisions (Judicial Review) Act, 1977 s.13, Schedule 2 - "decision"- "person aggrieved" - Discovery, Inspection, Interrogatories - decision to issue s.155 Notice excepted from Administrative Decisions (Judicial Review) Act, 1977 by Schedule 2 thereof.

Administrative Law - Trade practices - Statutory notice requiring recipient to provide information - Decision to issue - Person aggrieved - Whether decision excepted from Administrative Decisions (Judicial Review) Act 1977 (Cth) - Trade Practices Act 1974 (Cth), s. 155 - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 3, 5, 13, Sched. 2(f).

HEADNOTE

On 30th March, 1981, the respondent Trade Practices Commission served on the applicant a notice signed by the first respondent and purportedly issued pursuant to s. 155 of the Trade Practices Act 1974 (the Act). The notice sought information from the applicant about matters that might constitute a contravention of s. 46 of the Act by the applicant. By application issued on 9th June, 1981, the applicant sought declarations that it was entitled pursuant to the Administrative Decisions (Judicial Review) Act 1977 to request the applicants, inter alia, for reasons for its decision to issue the notice.

Upon a notice of motion issued by the applicants seeking procedural orders,

Held: (1) Paragraphs of the defence, which the applicant alleged did not deal with allegations in the statement of claim by denial or admission, did fairly and not evasively deal with the questions raised and did adequately indicate the real point to be discussed and decided.

Thorp v. Holdsworth (1876), 3 Ch D 637, applied.

(2) The applicant's interrogatory as to the date on which members of the respondent Commission decided that there was reason to believe that the applicant was capable of furnishing information relating to matters that might constitute a contravention of the Act by the applicant need not be answered as it would not assist in resolving the issues raised by the pleadings because: (a) the interrogatory assumed the existence of a decision and this was a matter in dispute; (b) the interrogatory inquired of members of the respondent Commission which members had not been sued individually.

(3) Discovery was not necessary in the proceedings. It would not assist in the only matter that fell for determination in the proceedings - whether there was a decision.

(4) The respondent had admitted that there had been a decision, for the purposes of the Administrative Decisions (Judicial Review) Act 1977, to issue the s. 155 notice.

(5) The decision to issue the s. 155 notice was not one to which the Administrative Decisions (Judicial Review) Act 1977 applied as it came within par. (f) of Sched. 2 thereof being: (a) a decision which might result in the bringing of proceedings in a civil court for the recovery of penalties; (b) a decision in connexion with the investigation of persons for contravention of enactments; (c) decisions under enactments requiring the production of documents, the giving of information and the summoning of persons as witnesses.

(6) Application dismissed.

HEARING

Sydney, 1981, July 23. #DATE 23:7:1981

APPLICATION.

K.L. Carruthers Q.C. and C.A. Sweeney, for the applicant.

A.M. Gleeson Q.C. and K. Mason, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Maguire & Martin.

Solicitor for the respondents: B.J. O'Donovan, Commonwealth Crown Solicitor.

T.J. GINNANE

ORDER

1. The Notice of Motion is dismissed.

2. The suit is dismissed. Orders accordingly.

JUDGE1

Ricegrowers' Co-operative Mills Limited (Ricegrowers) is the applicant in a suit commenced by Statement of Claim dated 9 June 1981 against RONALD MOORE BANNERMAN (First Respondent) and TRADE PRACTICES COMMISSION (Second Respondent).

The applicant, of Leeton, New South Wales, is a Rural Society incorporated pursuant to the Co-operation Act, 1923 (N.S.W.), concerned in the marketing of rice. The first respondent is Chairman of the second respondent.

Reference to matters preceding or leading up to this litigation is to be found in a letter dated 30 March 1981 signed by the first respondent on a letterhead of the second respondent addressed to the Secretary of the applicant. These include -

i. Green's General Foods Pty. Ltd. (the Company) which had been buying rice from the applicant and repacking it for retail had made a complaint concerning the applicant to the respondents.

ii. The applicant and respondents or members of their staff had in 1980 some correspondence in which information was provided.

iii. The opportunity for discussion was offered by the applicant to the staff of the second respondent.

iv. By letter dated 10 March 1981 the applicant advised that it had received Counsel's opinion that it had not been in breach of any of the provisions of the Trade Practices Act 1974 in its dealing with the Company; that it was no longer disposed to correspond or to discuss the matter arising out of the Company's complaints with the second respondent, its officers or the first respondent.

Hereafter the Trade Practices Act, 1974 is referred to as "the Act".

Attached to the letter of 30 March 1981 was a Notice purportedly pursuant to the Act s.155 signed by the first respondent addressed to the applicant.

The opening portion of the said Notice reads as follows -

"I, RONALD MOORE BANNERMAN Chairman of the Trade Practices Commission, having reason to believe that Ricegrowers' Co-operative Mills Limited ('Ricegrowers') is capable of furnishing information and producing documents relating to matters that may constitute a contravention by Ricegrowers of section 46 of the Act, hereby require Ricegrowers to furnish to the Commission in writing signed by a competent officer of Ricegrowers the information specified in Schedule 1 to this Notice and to produce to the Commission the documents specified in Schedule 11 to this Notice by delivering the information and documents to the Commission's office at 10th Floor, 130 Phillip Street, Sydney on Thursday 30 April 1981 between the hours of 2.00pm and 4.00pm."

The Notice specified matters that may constitute a contravention of Section 46 of the Act. It referred to the deterring or preventing of competitive conduct. Finally, it set out the alleged conduct of the applicant to which it related. With the Notice was forwarded a schedule setting out the information to be furnished and a further schedule listing the documents to be produced.

In reply, the Solicitors for the applicant, on or about 28 April 1981, delivered to the first respondent at his office a letter which, omitting formal parts and a final sub-paragraph which may now be omitted, read as follows -

"We understand that you and the Commission have recently made the following decisions in respect of the Co-operative:-

(a) To issue a notice under s.155 of the Trade Practices Act 1974 to the Co-operative relating to matters which or each of which may constitute a contravention by the applicant of s.46 of the Act.

(b) To issue a notice under s.155 of the Act in the particular form of the notice dated 30th March, 1981 delivered to the applicant.

(c) That there was reason to believe that the Co-operative was capable of furnishing information and producing documents relating to matters that may constitute a contravention by it of s.46 of the Act.

(d) . . . . . ."

The letter concluded as follows -

"On behalf of the Co-operative, we request that you furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decisions."

In a letter dated 29 April 1981 delivered to applicant's Solicitor the first respondent did not respond to the request stating that he was of the opinion that the applicant was not entitled to make the request pursuant to the Administrative Decisions (Judicial Review) Act 1977.

In its Statement of Claim the applicant seeks a declaration that it was entitled to make of the respondents a request for the reasons for the "decisions" referred to therein. Those "decisions", i.e. as pleaded, included e.g. a decision or decisions -

(i) to investigate and to continue to investigate whether there had been a contravention by the applicant of the Act 1974 s.46 (Para. 3)

(ii) to investigate the complaint of the Company i.e. of alleged anti-competitive conduct by the applicant (Para. 5)

(iii) that they had reason to believe the applicant was capable of furnishing information and producing documents relating to matters that might constitute a contravention of s.46 (Para. 6)

(iv) that certain facts or alleged facts constituted reason to believe sufficient for the purposes of s.155 of the Act that applicant was capable of furnishing information and producing documents relating to matters that might constitute a contravention by applicant of section 46 of the Act. (Para 7)

(v) to issue and serve upon the applicant a notice purportedly pursuant to the Act; a Notice in the form in evidence. (Paras. 8 and 9)

(vi) To continue to investigate the complaint of the Company referred to above (Para. 10)

(vii) to continue to investigate whether there had been a contravention by application of the Act s.46 (Para 11)

In their Statement of Defence, the first and second respondents asserted that before 11 April 1980 officers of the second respondent commenced to investigate the complaint of the Company and whether there had been a contravention by the applicant of the Act s.46; that the second respondent before 11 April 1980 had received a complaint from the same company concerning alleged anti-competitive conduct of the applicant; and that on 30 March 1981 (being the date of the Notice) the first respondent had reason to believe that the applicant was capable of furnishing information and producing documents relating to matters that might constitute a contravention of the Act.

Further, it was admitted that on 30 March 1981 the first respondent decided to issue a Notice being the Notice referred to earlier; that officers of the second respondent continued to investigate the matters mentioned above. The defence made other denials to which it is not necessary presently to refer. In answer to the whole of the Statement of Claim the respodents in their Defence said -

"(a) Any decision or decisions of the respondents, or either of them is not a decision, or are not decisions, to which the Administrative Decisions (Judicial Review) Act 1977 applies;

(b) Alternatively, any decision or decisions of the respondents or either of them to which the Administrative Decisions (Judicial Review) Act 1977 applies is a decision, or are decisions, included in the class of decisions referred to in Schedule 2 of the Act;

(c) Alternatively, in relation to any decision or decisions of the respondents or either of them to which the Administrative Decisions (Judicial Review) Act 1977 applies and which decision or decisions is not or are not, included in the class of decisions referred to in Schedule 2 of that Act, the respondents or either of them have already furnished to the Applicant valid and sufficient reasons for any such decision or decisions;

(d) . . . . ."

At the hearing Senior Counsel for the respondents stated that insofar as the application was under section 13 of the Administrative Decisions (Judicial Review) Act, 1977 (Judicial Review Act), it is presumably founded on the pre-supposition that the applicant is a person who is entitled to make an application to the Court under section 5 of that Act in relation to the relevant decision. He said this followed from the words of section. He said there was no specific allegation in the Statement of Claim that the applicant is such a person; and that it was not conceded that the applicant is a "person aggrieved" (within the meaning of section 5) by any relevant decision; or conduct aptly described as a "decision".

With this suit there has been listed for hearing a Notice of Motion taken out by the applicant seeking certain orders in relation to the Statement of Defence filed on behalf of the respondents, the filing and serving of answers to interrogatories delivered by the application on 29 June 1981; and certain particulars of the defence requested by the applicant on 25 June 1981.

Section 46 of the Act reads as follows -

"(1) A corporation that is in a position substantially to control a market for goods or services shall not take advantage of the power in relation to that market that it has by virtue of being in that position for the purpose of -

(a) eliminating or substantially damaging a person, being a competitor in that market or in any other market of the corporation or of a body corporate related to the corporation.

(b) preventing the entry of a person into that market or into any other market; or

(c) deterring or preventing a person from engaging in competitive conduct in that market or in any other market.

(2) . . . . .

(3) A reference in this section to a corporation or other body corporate being in a position substantially to control a market for goods or services includes a reference to a corporation or other body corporate, as the case may be, having, by reason of its share of the market, or its share of the market combined with the availability to it of technical knowledge, raw materials or capital, the power to determine the prices, or control the production or distribution, of a substantial part of the goods or services in that market.

(4) A reference in this section to substantially controlling a market for goods or services shall be construed as a reference to substantially controlling such a market either as a supplier or as an acquirer of goods or services in that market.

(5) . . . . .

(6) . . . . ."

Section 76 of the Act reads as follows -

"(1) If the Court is satisfied that a person -

(a) has contravened a provision of Part 1V;

(b) has attempted to contravene such a provision;

(c) has aided, abetted, counselled or procured a person to contravene such a provision;

(d) has induced, or attempted to induce, a person whether by threats or promises or otherwise, to contravene such a provision;

(e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

(f) has conspired with others to contravene such a provision,

the Court may order the person to pay to the Commonwealth such pecuniary penalty (not exceeding $50,000 in the case of a person not being a body corporate, or $250,000 in the case of a body corporate, in respect of each act or omission by the person to which this section applies) as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this Part to have engaged in any similar conduct.

(2) . . . . . .

(3) . . . . . ."

Section 155 of the Act reads as follows -

"(1) Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or is relevant to the making of a decision by the Commission under sub-section 93(3), a member of the Commission may, by notice in writing served on that person, require that person -

(a) to furnish to the Commission, by writing signed by that person, or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;

(b) to produce to the Commission or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or

(c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

(2) . . . . .
(3) . . . . .
(4) . . . . .
(5) . . . . .
(6) . . . . .
(7) . . . . .

Section 3 of the Judicial Review Act includes as part of ss (1) definitions (unless a contrary intention appears) viz -

"decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1;

"duty" includes a duty imposed on a person in his capacity as a servant of the Crown;

"enactment" means -

(a) an Act other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory (Self-Government) Act 1978;

(b) . . . .

(c) . . . .

(d) . . . .

and, for the purposes of paragraphs (a), . . . . includes a part of an enactment;

Later subsections are -

"(2) In this Act, a reference to the making of a decision includes a reference to -

(a) (b) (c) (d) . . . . . .

(e) Making a declaration, demand or requirement;

(f) (g) . . . . .

and a reference to a failure to make a decision shall be construed accordingly."

"(4) in this Act -

(a) a reference to a person aggrieved by a decision includes a reference -

(i) to a person whose interests are adversely affected by the decision; or

(ii) in the case of a decision by way of the making of a report or recommendation to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and

(b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.

Other sections of the Judicial Review Act are -

"5. (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds -

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g) that the decision was induced or affected by fraud;

(h) that there was no evidence or other material to justify the making of the decision;

(j) that the decision was otherwise contrary to law."

"13. (1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

(2) . . . . .
(3) . . . . .
(4) . . . . .

(4A) The Court may, on the application of -

(a) a person to whom a request is made under sub-section (1); or

(b) a person who has received a notice under sub-section (3),

make an order declaring that the person who made the request concerned was, or was not, entitled to make the request.

(5) . . . . .
(6) . . . . .
(7) . . . . .
(8) . . . . .
(9) . . . . .
(10) . . . . .

(11) In this section, "decision to which this section applies" means a decision that is a decision to which this Act applies, but does not include -

(a) a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies;

(b) a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision; or

(c) a decision included in any of the classes of decision set out in Schedule 2."

SCHEDULE 2 is headed -

"CLASSES OF DECISIONS THAT ARE NOT DECISIONS TO WHICH SECTION 13 APPLIES"

"(a) . . . . .

(b) . . . . .

(c) . . . . .

(d) . . . . .

(e) . . . . .

(f) decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to, or may result in, the bringing of such proceedings for the recovery of pecuniary penalties arising from contraventions of enactments, and, in particular -

(i) decisions in connection with the investigation of persons for such contraventions;

(ii) . . . . .

(iii) . . . . .

(iv) decisions under enactments requiring the production of documents, the giving of information or the summoning of persons as witnesses

Issues said to arise at the hearing were listed by respondents' Counsel. Applicant's Counsel did not argue that they were inappropriate nor seek to enlarge upon them. They were as follows -

"1. Should the final sentences in paragraphs 4 and 5 of the Defence be struck out?

2. Should the applicant have leave to administer to the second respondent the interrogatories filed on 29 June?

3. (a) Should the hearing of the action be delayed to permit the applicant to have discovery?

(b) Is discovery by the respondents necessary (cf. O 15 R 3)?

4. Are all or any of the "decisions" referred to in paragraphs 6, 7, 8 and 9 of the Statement of Claim decisions to which the Administrative Decisions (Judicial Review) Act 1977 applies?

5. Is the applicant a person aggrieved by such decision?

6. Is such decision one that falls within paragraph (f) of Schedule 2 of the Act?

7. Has the applicant already been given adequate reasons for such decision?"

Senior Counsel for the parties addressed their closing submissions to these issues.

Submissions were made as to each of these Issues and are noted in the transcript. For convenience I refer to those submissions in the order of parties rather than in the order they were made.

First Issue -

SHOULD THE FINAL SENTENCES IN PARAGRAPHS 4 and 5 OF THE DEFENCE BE STRUCK OUT?

Senior Counsel for the applicant submitted that the s.155 Notice was in a form indicating it was issued by both respondents. He referred to Brambles v. Trade Practices Commission (1980) A.T.P.R. 42-461; Pioneer Concrete (Vic.) Pty. Limited v. Trade Practices Commission (1980) 32 A.L.R. 650. He submitted that if paragraphs 6 and 7 and 8 and 9 of the Statement of Claim were in an objectionable form application to strike them out should have been made. There having not been made any such application, he contended each respondent should have dealt with the allegations "properly" i.e. specifically by denial or admission and not evasively. He referred to Federal Court Rules 1979 Order 11.; Bullen and Leake and Jacob's "Precedents of Pleadings" at p.79; Thorp v. Holdsworth 1876 3 Ch.D 637; Tildesley v. Harper 1877-78 V11 Ch.D 403. Senior Counsel for respondents submits that reference in the Statement of Claim to "decision" or "decisions" is an artificial reconstruction of and inapt to describe the mental process of the respondents; that confronted with this the effect of the Statement of Defence is to state what happened and save for that, not to admit the truth of the allegations. Brambles (supra) was cited. A summary of the Statement of Defence appears above and need not be repeated.

In my view a defence in the form summarised earlier, in the light of the nature of the allegations in the Statement of Claim and the questions raised in it, fairly and not evasively deals with those questions. The Statement of Defence, particularly having regard to the arguments presented, does adequately, I consider, indicate "the real point to be discussed and decided". See Thorp at p.639 supra. I would not strike out the words complained of as appearing in the Statement of Defence in its paragraphs 4 and 5.

Second Issue -

SHOULD THE APPLICANT HAVE LEAVE TO ADMINISTER TO THE SECOND RESPONDENT THE INTERROGATORIES FILED ON 29 JUNE?

Senior Counsel for applicant sought to have answered only the second of these, namely -

"2. On or prior to 30 March 1981 did a member or members of the second respondent (stating which) decide that there was reason to believe that the applicant was capable of furnishing information and producing documents relating to matters that might constitute a contravention by the applicant of the Trade Practices Act 1974 s.46? If so, upon what date or dates?"

Respondents' Counsel submitted the interrogatory was not addressed to any allegation in the Statement of Claim; that it was "fishing". He referred to W.A. Pines Pty. Ltd. v. Bannerman (1980) 5 Trade Practices Cases 598 at 601; Melbourne House of Ford Pty. Ltd. & Ors. v. Trade Practices Commission (1980) 31 A.L.R. 579.

I note that the interrogatory assumes that what senior Counsel for the respondents describes as their "mental process" is properly to be referred to or described as a "decision". Yet that is a matter which is already the subject of serious disputation or rejection in the Statement of Defence and argument. And the question is in respect of the activity of "a member or members of the second respondent" whereas members are not sued individually - nor does the Statement of Claim contain any assertion against any but the Chairman individually. The second respondent is a body corporate. See s.6A(2)(a). of Order 16 R.6(3)(a).

Even accepting the assumption above, the answer would not assist to resolve the issues raised in the pleadings. I would not order that it should be answered.

Third Issue -

(a) SHOULD THE HEARING OF THE ACTION BE DELAYED TO PERMIT THE APPLICANT TO HAVE DISCOVERY?

(b) IS DISCOVERY BY THE RESPONDENTS NECESSARY (cf. O 15 R 3)?

For the applicant it was argued that Discovery was necessary to enable identification of any relevant decisions; particularly if applicant's arguments under Issue 1 not be accepted; that it could reasonably be expected that there would be documentation in respondents' possession defining decisions, and their authors. Counsel for the respondents submitted that discovery ought not be permitted as it would not serve any genuine relevant purpose. Further, he argued that on issues formulated the only issues that fell for determination in this suit were, was there a "decision", who made it and is it a decision to which the Act applies (with which formulation Senior Counsel for the applicant agreed) and whether it was taken out of Section 13 by Schedule 2. This discovery, he suggested, could not assist applicant and this matter should not be delayed to allow discovery.

So far as an entitlement to discovery can be supported by a consideration of interrogatories submitted, no support is to be derived here from the interrogatory pressed.

I am not persuaded that discovery (and I assume inspection following) is either necessary or would assist to obtain "a proper examination and determination" of the issues in this suit. See Mulley v. Manifold (1959) 103 C.L.R. 341 at p.345 per Menzies J. See also ibid 344. What is sought here is a statement of the findings on material questions of fact with reference to evidence or other material on which findings were based, and reasons for any decision (i.e. or process described or assumed to be correctly so described); though the actual prayer for relief may be more circumscribed.

No "factual foundation" for the existence of a "decision" other than as appears from the Statement of Defence has been shown to exist. cf. W.A. Pines Pty. Ltd. v. Bannerman (1980) A.T.P.R. 42-095.

I do not consider, anyway, that having regard to my decision as to the effect of Schedule 2 of the Judicial Review Act, the further hearing could usefully be delayed to allow such a procedure.

Fourth Issue -

ARE ALL OR ANY OF THE "DECISIONS" REFERRED TO IN PARAGRAPHS 6, 7, 8 AND 9 OF THE STATEMENT OF CLAIM DECISIONS TO WHICH THE ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 APPLIES?

Counsel for the applicant accepted first respondent's admission that there had been a "decision" to issue a s.155 Notice. This and other "decisions" referred to in the Statement of Claim paragraphs 3, 5, 6, 7, 10, and 11 Counsel said were within the meaning of the s.3(1) definition of the Judicial Review Act, of administrative character and otherwise comprehended by that definition, not being within the Schedule 1 exclusion. Reference was made to making a decision in s.3(2) and, in particular, to s.3(2)(e). He referred to Riordan v. Connor & Ors No. G.1 of 1981 unreported, 5 March 1981); Chaney v. Director General (1980) 31 A.L.R. 571; Vangedal Nielsen v. Smith, Federal Court of Australia (unreported) 19 December 1980.

Senior Counsel for the respondents submitted it could be said paragraphs 6 and 7 of the Statement of Claim might be grouped together, as could paragraphs 8 and 9; that there was a material difference between the allegations in paragraphs 6 and 7 on the one hand and paragraphs 8 and 9 on the other. He argued that insofar as the issuing of a s.155 Notice involves a decision at all, it involves only one decision, viz. to issue the Notice, or in the words of the Judicial Review Act, to make a requirement. In another part of his argument he submitted that the Statement of Claim was a strained attempt to bring someone's mental processes within the purview of the Judicial Review Act. Generally he contended that none of any 'decisions' were aptly described as decisions of an administrative character in the sense referred to in s.3(1) of the Judicial Review Act. It would follow that such decisions could not be "decisions to which this section i.e. s.13(1) applies"; s.13(11) stating that -

""decision to which this section applies" in this section (i.e. s.13) means a decision that is a decision to which this Act applies . . . . ."

Fifth Issue -

IS THE APPLICANT A PERSON AGGRIEVED BY SUCH DECISION?

Senior Counsel for the applicant contended it was clearly a person aggrieved e.g. having regard to the requirement of the Notice in that as a large trading Company it would have to go through "voluminous" records; that the applicant would be compulsorily divested of its own records despite any copyright entitlement it had in its own records revealing possibly confidential information. He referred to the 'great principle' involved that important records of the applicant company are or can be compulsorily removed from its own exclusive or confidential custody; there was a real detriment to an organisation served with such a Notice. He referred to de Smith's "Judicial Review of Administrative Action" 4th Edition p.409 and following and to authorities -

Attorney-General of the Gambia v. N'Jie (1961) A.C. 634;

Shire of Lillydale v. Albion Reid Pty. Ltd. (1966) V.R. 481 at 484;

Benjamin v. Downes and Another (1976) 2 N.S.W.R. 199;

National Trust of Australia (Vic.) v. Australian Temperance and General Mutual Life Assurance Society Limited and Anor. (1976) V.R. 592.

I observe that it was clearly recognized by the legislature that compliance with a s.155 Notice would or might cause an expenditure of time and trouble, to be accepted however if the purpose of the Act are to be achieved (cf. Riley McKay Pty. Ltd. v. Bannerman (1977) 31 F.L.R. 129 at p.136.

Senior Counsel for respondents argued that applicant was not a "person aggrieved" within the meaning of the Judicial Review Act; or a person to whom that expression applies that applicant could not be said to be a person e.g. whose interests were adversely affected. S.4(3)(a)(1). He contended that anyway a person could not be said to be "aggrieved" by the making of a decision to investigate his conduct; that "aggrieved" meant someone whose legal rights were adversely affected; that one could never be "aggrieved" by the making of a decision to investigate his conduct. He cited The Queen v. Collins ex parte A.C.T.U. - Solo Enterprises Pty. Ltd. 50 A.L.J.R. 471; The Queen v. Dickens (1979) W.A.R. 116; Boyd v. The Ombudsman per Rogers J. (N.S.W. Supreme Court) 28 April 1981.

He submitted that none of the "decisions" - if all aptly so described - were - referring to the Judicial Review Act s.3 - "decisions to which this Act applies"; that they were not decisions -

". . . . of an administrative character"

in the sense used in the section and Act.

6th Issue -

IS SUCH DECISION ONE THAT FALLS WITHIN PARAGRAPH (f) OF SCHEDULE 2 OF THE ACT?

For the applicant Senior Counsel described the Judicial Review Act as "remedial" legislation, that the exception should be construed strictly. He referred to Pearce's "Statutory Interpretations" p.105. He contended that to obtain the benefit of (f)(i) and (f)(iv) the Court must be satisfied that a 'decision' was one that relates to or may result in the bringing of proceedings for the recovery of pecuniary penalties arising from contraventions; that a decision to issue a s.155 Notice was not a decision in connection with the investigation of persons for such a contravention. He referred to the letter written by first respondent. He said there must be evidence of a casual connection between the decision that is made and the ultimate bringing of proceedings or the possible result of the proceedings. He argued that a Court could never say in the absence of direct evidence that a decision to issue a Notice may result in the bringing of proceedings. The mere issue of a s.155 Notice could not bring about that result.

For the respondents Counsel argued that any of the "decisions" referred to in the Statement of Claim and, in particular, a decision to issue a s.155 Notice -

". . . . may result in the bringing of . . . . (proceedings in a civil court for the recovery of pecuniary penalties)."

Counsel referred to the Act and the Notice which itself seeks information in terms

relating to matters that may constitute a contravention of section 46 of the Act

and the more specific reference in it to "matters", "conduct", and the applicant's "conduct". He adverted to the letter of the 30 March 1981 which referred to the nature of the complaint received which -

". . . . . raises the question of possible breach. . . . ."

of the Act.

The "proceedings" he identifies as including those available to the second respondent pursuant to s.77 so far as it refers or includes Part 1V and thus s.46. The "Proceeding" is the word e.g. used in Part V1 s.77 of the Act, which the second respondent may institute in the Court (meaning the Federal Court of Australia) for the recovery of the pecuniary penalty for a contravention of Part 1V (including s.46).

He referred to SCHEDULE 2(f)(iv). He submitted that any "decision" to issue a s.155 Notice and, in particular, the one issued to the applicant, was made under an enactment viz. the Act, being such an enactment as is referred to in the Judicial Review Act s.3(1)(a); that what is expressed in the Notice can be correctly described as -

". . . requiring the production of documents, the giving of information . . . . ."

being the documents specified in Schedule 11 of the Notice and the information specified in Schedule 1 of the Notice.

It is convenient to refer first to the Statement of Claim, paragraphs 8 and 9.

For what follows, it is assumed that before the s.155 Notice in evidence was delivered there was taken what could be described as a "decision" to issue and serve it; and that such a "decision" was e.g. one to which s.13 of the Judicial Review Act applies unless it is within Schedule 2.

I consider the decision to issue the s.155 Notice in evidence can correctly be described, because of what may appear in documents which may be produced in response to it, as one that may result in the bringing of proceedings (referred to in the opening words of Schedule 2(f)) in a civil Court for the recovery of penalties. See the Act ss.46,76.

Moreover, I consider that the decision (making the same assumptions) to issue the s.155 Notice in evidence is within the description -

(f) . . . . . . .
(i) decisions in connection with the investigation of persons for such contraventions;

i.e. of enactments e.g. s.46 of the Act.

Section 155 of the Act and authorities accept such an eventuality as a result of there being produced documents sought in the s.155 notice. See e.g. Melbourne Home of Ford Pty. Ltd. & Ors. v. Trade Practices Commission & Anor. (1979) A.T.P.R. 18080 et seq. per Smithers J. though dealing more specifically with privilege: p.18097 et seq. per Franki and Northropp JJ.

I consider that the decision (with the same assumptions) to issue the s.155 Notice in evidence falls within the description expressed as -

(iv) decisions under enactments requiring the production of documents, the giving of information and the summoning of persons as witnesses.

See s.155(1)(b), s.155(1)(a), s.155(1)(c) respectively.

Were it correct as a matter of English to describe the thought process referred to in paragraphs 3, 5, 6, 7, 10 and 11 as a "decision" or "decisions", then in my view they are similarly comprehended within Schedule 2 in its opening words and f(i) and f(iv).

It has been submitted correctly, I consider, that a finding on this issue could determine this application. Having regard to my decision as to Issue 6 it is not necessary to make any positive ruling in respect of other issues; indeed it was suggested that since some at least of these were specifically raised in other litigation it would be inappropriate to do so here.

Accordingly, having found that any "decision" or "decisions" as pleaded are by reason of Schedule 2 not decisions to which s.13 of the Judicial Review Act applies, the application fails.

7th Issue -

HAS THE APPLICANT ALREADY BEEN GIVEN ADEQUATE REASONS FOR SUCH DECISION?

Senior Counsel for the applicant argued that the Notice and the letter dated 30 March 1981 earlier referred to could not be said to give adequate reasons for what he described as a decision or decisions. For the respondent it was urged that reasons had already been given by the respondents in the letter of 10 March 1981 (to which no doubt one might add the Notice itself) and that such reasons were adequate (cf. Capello v. The Minister for Immigration and Ethnic Affairs (unreported decision of Franki J. 3 December 1980). One might also refer to the letter of 29 April 1981.

It is unnecessary that I should attempt to resolve this matter, having regard to the decision I reach later as to issue number 6.

For reasons given earlier, I refuse to make the orders sought in the Notice of Motion.

I decline to make the declarations or orders sought in the suit.

The orders I make are -

1. The Notice of Motion is dismissed

2. The suit is dismissed.