Rugs-A-Million (WA) Pty Ltd v Walker
[2007] WASCA 23
•31 JANUARY 2007
RUGS-A-MILLION (WA) PTY LTD -v- WALKER [2007] WASCA 23
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 23 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:13/2006 | 8 NOVEMBER 2006 | |
| Coram: | WHEELER JA PULLIN JA BUSS JA | 30/01/07 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | RUGS-A-MILLION (WA) PTY LTD PATRICK WALKER |
Catchwords: | Statutes Statutory functions and duties Construction Whether section conferring powers authorised abrogation of common law rights or privileges Whether powers could be exercised in the circumstances Words and phrases "Duties" |
Legislation: | Consumer Affairs Act 1971 (WA), s 10, s 12, s 15A, s 17, s 19, s 23N Fair Trading Act 1987 (WA), s 10, s 72, s 74, s 75, s 76, s 77 Interpretation Act 1984 (WA), s 5 |
Case References: | AA Pty Ltd v Walker [2005] WASC 259 Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 Berowra Holdings Pty Ltd v Gordon (2006) 80 ALJR 1214 Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 Coco v The Queen (1994) 179 CLR 427 Commissioners for Railways (NSW) v Agalianos (1955) 92 CLR 390 CPT Custodians Pty Ltd v Commissioner of State Revenue (2005) 79 ALJR 1724 Herscu v The Queen (1991) 173 CLR 276 Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Weiss v The Queen (2005) 80 ALJR 444 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RUGS-A-MILLION (WA) PTY LTD -v- WALKER [2007] WASCA 23 CORAM : WHEELER JA
- PULLIN JA
BUSS JA
- Appellant
AND
PATRICK WALKER
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER NEWNES
Citation : RUGS-A-MILLION (WA) PTY LTD -v- WALKER [2005] WASC 288
File No : CIV 1281 of 2005
(Page 2)
Catchwords:
Statutes - Statutory functions and duties - Construction - Whether section conferring powers authorised abrogation of common law rights or privileges - Whether powers could be exercised in the circumstances
Words and phrases - "Duties"
Legislation:
Consumer Affairs Act 1971 (WA), s 10, s 12, s 15A, s 17, s 19, s 23N
Fair Trading Act 1987 (WA), s 10, s 72, s 74, s 75, s 76, s 77
Interpretation Act 1984 (WA), s 5
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D H Solomon
Respondent : Mr R J Price
Solicitors:
Appellant : Solomon Brothers
Respondent : Consumer & Employment Protection Legal Services Unit
Case(s) referred to in judgment(s):
AA Pty Ltd v Walker [2005] WASC 259
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
Berowra Holdings Pty Ltd v Gordon (2006) 80 ALJR 1214
Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1
Coco v The Queen (1994) 179 CLR 427
(Page 3)
Commissioners for Railways (NSW) v Agalianos (1955) 92 CLR 390
CPT Custodians Pty Ltd v Commissioner of State Revenue (2005) 79 ALJR 1724
Herscu v The Queen (1991) 173 CLR 276
Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Weiss v The Queen (2005) 80 ALJR 444
(Page 4)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.
2 PULLIN JA: This is an appeal against the judgment of Master Newnes who dismissed the appellant's action against the respondent. The respondent is the Commissioner for Fair Trading ("Commissioner").
3 On 24 June 2004, officers of the Department of Fair Trading conducted a search of retail premises and made copies of documents belonging to the appellant and of information stored on the appellant's computer system. The officers seized rugs and documents belonging to the appellant and employees were questioned. A further search of one of the retail outlets was conducted on 28 June 2004. Between 18 October 2004 and 31 January 2005 ("material time"), a delegate of the Commissioner served notices on managers of retail outlets, requiring them to give information and answer questions and to produce documents. The Court was provided with one of the notices by way of example. It was signed by a delegate of the Commissioner. The notice read:
"I have reasonable grounds for believing that you may be able to materially assist the Commissioner and the Department in investigating the matters referred to in Annexure A to this Notice pursuant to s 19(1) of the Act.
Pursuant to the powers vested in me under section 19 of the Act, I require you to give information and produce documents concerning the matters as specified in Annexure A to this Notice in accordance with the following procedures:-
a) Give information in writing with respect to the matters as specified in Annexure 'A' to this Notice pursuant to the requirement of s 19(1)(a) of the Act within the time specified in paragraph (d) below.
b) Produce documents pursuant to the requirement of s 19(1)(c) of the Act within the time specified in paragraph (d) below.
c) The requirement to provide information in writing and produce documents may be satisfied by sending the information or documents (as the case may be) to the Department by post or via facsimile on facsimile number 9282 0558.
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- d) The specified time referred to at Items (a) and (b) is by no later than 5.00 pm on 17 November 2004."
4 Annexure A referred to the fact that the Department suspected that, since about 28 June 1993, the companies listed, including their servants, agents and officers, had engaged in conduct which "may constitute" contraventions of s 10, s 12 and s 19 of the Fair Trading Act 1987 (WA). The appellant was one of the companies listed in the annexure. Included within the annexure was a sentence reading:
"The information and documents sought relate to the matters mentioned above. The information and documents are required to determine whether the companies (including their servants, agents and officers) have contravened the provisions of the FTA as mentioned above."
5 The recipients of the notices have been examined.
6 The appellant claims that the conduct of the Commissioner, by his delegates, in entering and searching premises, copying and seizing documents and stock and in conducting examination of employees, was not authorised by the Consumer Affairs Act 1971 (WA) ("the Act") and was unlawful. The appellant claims that the documents and records seized and copied, and the information obtained, are confidential to the appellant. The appellant wrote to the Commissioner demanding return of the documents seized, along with copies made, together with all stock seized and demanded an undertaking from the Commissioner that no information or material would be used or published by him. The Commissioner refused to give the undertaking and contends that his delegates' conduct has at all times been lawful.
7 On 11 March 2005 the appellant commenced these proceedings. The appellant pleaded that the conduct of the Commissioner was engaged in without authority. The appellant alleged that the Commissioner purported to engage in conduct in exercise of powers of investigation and inquiry conferred on the Department by s 17(c) and (d) of the Act and in exercise of an implied power to take legal action under s 72, s 74, s 75 and s 77 of the Fair Trading Act 1987 (WA), but that none of these provisions imposed on the Commissioner a duty within the meaning of s 19 of the Act and that the Commissioner had no other lawful authority to engage in that conduct.
8 In his defence the Commissioner admitted that the conduct was engaged in pursuant to s 19 of the Act but says it was, inter alia, for the
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- purposes of carrying out an investigation and inquiry as to whether there were possible contraventions of the Fair Trading Act, and whether the Commissioner was warranted in commencing legal proceedings.
9 Subsequently the Commissioner commenced proceedings against the appellant, alleging that the appellant, and certain of its employees and associated companies, had engaged in conduct that was misleading or deceptive contrary to s 10 of the Fair Trading Act and s 52 of the Trade Practices Act in connection with the sale of rugs, mats and runners.
10 In the proceedings commenced by the appellant an application was made by the appellant for an interlocutory injunction to restrain the Commissioner from using the information, documents and materials obtained by the Commissioner. The parties agreed that the evidence that would be led at trial would be identical to that adduced on the hearing of the application. As a result the parties agreed that the hearing should proceed as a trial of the action on affidavit evidence on all issues except damages.
11 The Master dismissed the appellant's action and ordered that the appellant pay the Commissioner's costs of the action to be taxed. The appeal is against that judgment.
Sections 17 and 19 of the Act
12 Section 17 of the Act in 2004 and 2005 read in part:
"The functions of the Department are -
…
(c) to receive complaints from consumers concerning matters touching their interests as consumers, to consider and, if the Commissioner considers it warranted, to investigate those complaints and to take such action in respect of those complaints as seems proper to the Commissioner;
(d) to receive complaints of fraudulent or deceptive practices in relation to matters that affect or are likely to affect the interests of consumers and to make such investigations and inquiries and to take such other action in respect of those complaints as seems proper to the Commissioner;
…"
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13 In 2004, s 19 of the Act read:
"(1) For the purposes of carrying out any investigation or inquiry in the course of carrying out his duties under this Act or the Fair Trading Act 1987, the Commissioner may -
(a) require any person -
(i) to give him such information as he requires;
(ii) to answer any questions put to him,
in relation to any matter the subject of such investigation or inquiry;
…
(c) require the production of any documents relating to any such investigation or inquiry;
(d) enter at all reasonable times and search any premises and inspect any documents that he finds thereon and take samples of any stocks of goods and inspect any service carried on therein;
(e) make a copy or abstract of any document produced to, or inspected by, him in pursuance of this section, or of any entry made therein and in the absence of proof to the contrary any such copy certified as correct by the Commissioner shall be received in all courts as evidence of, and of equal validity as, the original."
Appellant's submissions
15 The appellant submitted, as it submitted before the Master, that s 19 must be read in the light of the presumption that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities, including the prima facie immunity from seizure of papers and possessions, in the absence of clear words or a necessary
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- implication to that effect or where there is an alternative construction available. The appellant cited The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 and George v Rockett (1990) 170 CLR 104 and Berowra Holdings Pty Ltd v Gordon (2006) 80 ALJR 1214 at [23] and other authorities to similar effect.
16 The appellant submitted, as it submitted before the Master, that accordingly, as s 19 confers on the Commissioner powers that will infringe parties' common law rights, the reference to "duties" should be read as a reference only to a provision in the Act or the Fair Trading Act or, after 1 January 2005, any other Act, which expressly imposes a "duty" on the Commissioner. The appellant submitted that a function or a power which the Commissioner may have by statute does not constitute a "duty" for the purposes of s 19(1) of the Act. The appellant submitted that because s 5 of the Interpretation Act 1984 (WA)defines "functions" as including "powers, duties, responsibilities, authorities, and jurisdictions" (emphasis added), it is impossible to read "duty" as embracing "function".
17 The appellant submitted, as it submitted before the Master, that the provisions of the Fair Trading Act which confer powers on the Commissioner are therefore not relevant to s 19, as they do not impose any duty within the meaning of s 19(1) of the Act. Thus, s 72 of the Fair Trading Act does not impose any duty on the Commissioner to prosecute offences under that Act, but simply confers on the Commissioner a power to do so. The same applies to s 74, s 75, s 76 and s 77 of the Fair Trading Act.
18 The appellant submitted, as it submitted before the Master, that s 17 of the Act defines the functions of the Department and, while agreeing that s 17 also refers to or identifies functions of the Commissioner, it does not impose any duties on the Commissioner. The appellant argued that the Commissioner has only a supervisory role in deciding what action the Department will take once a complaint is received. If the Commissioner has any duties under s 17, as opposed to other functions, they are simply duties to direct what is to be done in respect of a complaint.
19 The appellant submitted, as it submitted before the Master, that s 17 is to be contrasted with, for instance, s 23N of the Act, which provides that the "Commissioner shall, if he is requested to do so by the Committee, give to the Committee … any information in his possession … and any other assistance which the Committee may require and which it is within his power to give, in relation to the question". Duties are also
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- expressly imposed on the Commissioner by s 15A. The appellant submitted that this kind of language was necessary before a duty was imposed and in respect of which the s 19 powers could be exercised.
The Master's reasons
The Master said:
"46 The plaintiff's case proceeded on the fundamental proposition that the Commissioner's powers under s 19 of the Act were only available for the purposes of carrying out his duties under the Act and the Fair Trading Act, and that as they were powers which infringed common law rights, "duties" should be taken to refer only to the specific duties imposed on the Commissioner by statute, not to any function which was not a duty in that sense. In my view, s 19 is not to be so narrowly construed.
47 It is clear that where a statute provides for a regime which authorises 'an invasion of interests which the common law has always valued highly': George v Rockett (supra) at 110 - 111, any ambiguity or doubt as to the meaning of the statute will be resolved in favour of the rights and freedoms of the subject. But as the Full Court of the Federal Court pointed out in Hart v Commissioner of the Australian Federal Police (2002) 124 FCR 384, in relation to the search and seizure provisions of the Crimes Act 1914 (Cth), 'there is no requirement that the Court approach [the task of construction] armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers. Privacy is but one of the interests to be taken into account in construing legislation authorising the exercise of such power'."
20 The Master accepted that caution should be exercised in applying what has been said about the meaning of an expression in one statute to the meaning of that expression in another statute concerned with different subject-matter. Nevertheless, the Master concluded that the comments of Dixon CJ in Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1and Brennan J in Herscu v The Queen (1991) 173 CLR 276 were apposite in the present case. They stand for the proposition that, commonly, a reference to the "duties" of a public office will encompass
(Page 10)
- the performance of the "functions" of the office. Brennan J in Herscu at 287 said:
"In ordinary speech, 'the discharge of the duties' of the holder of a public office connotes far more than performance of duties which the holder of the office is legally bound to perform: rather the term connotes the performance of the functions of that office."
"The word 'duty' there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word 'function'."
22 Lockhart J discussed this statement in Consolidated Press Holdings Ltd v Federal Commissioner of Taxation (1995) 57 FCR 348:
"This passage has since been adopted on a number of occasions in judgments of courts including Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth) (1962) 113 CLR 475; Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 at 261-2; see also at first instance Nestle Australia Ltd v Commissioner of Taxation (1986) 11 FCR 453 at 456-7; Saunders v Commissioner of Taxation (Cth) (1988) 88 ATC 4,349 at 4,358-9; Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 at 136-7; Herscu v The Queen (1991) 173 CLR 276 at 282-3, where a similar phrase in s 87 of the Criminal Code (Qld) was considered; also R v Clarkson (No 2) [1982] VR 522 involving an equivalent provision in the Payroll Tax Act 1971 (Vic)."
23 The Master noted that when the Act first came into force in 1971, there were no duties contained in the Act of the nature which the appellant contends was necessary to enliven the Commissioner's powers under s 19, and that s 15A was added by an amendment in 1981 and other sections, which are said to expressly impose duties on the Commissioner, were added still later. (In fact, s 23N which imposed a duty was added in 1978.) The Master said that, on the appellant's argument therefore, at least until 1981 when s 15A was added, the powers under s 19 were otiose.
(Page 11)
24 The Master also noted the appellant's argument that, as from 1984, being the year of the enactment of the Interpretation Act which included the definition of "functions", it was clear that s 19 referred only to duties specifically conferred by statute and not to functions.
25 The Master said at [51] with respect to that argument:
"… I do not find that a compelling argument. It would be fundamentally to alter the scope of the powers of the Commissioner under s 19 of the Act by the side wind of a general statute of interpretation. Nor do I consider that such a result is required by s 5 of the Interpretation Act. I do not accept that the definition of "functions" in s 5 has the result that in the Act what appears to be in terms a function cannot be a duty. In my view, there is not in the Act a strict and precise distinction between the two."
26 The Master also said:
"56 I consider that 'carrying out his duties' in s 19 connotes the performance by the Commissioner of the functions of his office, not simply the performance of duties specifically imposed on him by statute. While there is a presumption that where different words are used in a statute they are intended to mean different things, it is a presumption that is readily rebutted and is of very slight force if the words in themselves are sufficiently clear: Commissioner of Taxes (Vic) v Lennon(1921) 29 CLR 579 at 590. I do not consider that in the Act 'duties' is intended to be distinct from 'functions' in the manner contended for. In the present case, the definition of 'functions' in s 5 of the Interpretation Act itself includes 'duties' and, moreover, as decisions to which I have referred reflect, the concept of 'duty' in relation to a public office will generally connote the performance of the functions of the office. In my view, that is plainly the case in s 19 of the Act.
57 In any event, I do not consider that the reference to 'carrying out his duties' in s 19 is to be read as a reference to duties specifically imposed on the Commissioner under an Act, but rather to any duties of the Commissioner which arise by reason of that Act. Given the nature of the
- Commissioner's functions under, in particular, the Act and the Fair Trading Act, I do not consider there is any reason why the reference to 'carrying out his duties under [the Act]' should be read as limited to 'carrying out duties specified in the Act', rather than to duties arising by virtue of the Act."
27 The Master also referred to G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 where McHugh JA said at 524:
"A public office holder assumes the burdens and obligations of the office as well as its benefits. By accepting appointment to the office, he undertakes to perform all the duties associated with that office and, as long as he remains in office, he must perform all its duties: Peery v Coffman 137 SE 2d 5 at 8 (1964; State ex rel Priessler v Dostert 260 SE 2d 279 at 286 (1979). The duties of a public office include those lying directly within the scope of the office, 'those essential to the accomplishment of the main purpose for which the office was created and those which, although only incidental and collateral, serve to promote the accomplishment of the principal purposes': Nesbitt Fruit Products Inc v Wallace 17 F Supp 141 at 143 (1936)."
28 Finally, the Master reasoned:
"61 It is clear that under s 17 of the Act the Commissioner must form a view as to what action is proper in relation to a complaint. That, in my view, is aptly regarded as a duty, as a discretion or power conferred on a public official by statute normally carries with it a duty to consider whether the discretion or power should be exercised: see, for instance, Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1053. In fact, I do not think anything turns on whether it is regarded as a function or a duty or otherwise. In my view, in deciding what action is to be taken in relation to a complaint, the Commissioner may conduct an inquiry or investigation and, for the purposes of that inquiry or investigation, may exercise the powers conferred by s 19 of the Act. I do not accept the plaintiff's argument that any inquiry or investigation in respect of a complaint is a separate matter solely for the Department and that in
- deciding what action is to be taken the Commissioner must simply rely on such material as may be put before him by the Department from its investigation or inquiry. In my view, there is no warrant for reading the Commissioner's role in such a limited way.
- 62 Similarly, before exercising any function to institute proceedings under the Fair Trading Act, it is clearly incumbent upon the Commissioner to be satisfied that there are adequate grounds for such proceedings. The obligation to do so is at least incidental to the Commissioner's functions under the Fair Trading Act, if it is not essential to them. And, in my view, the Commissioner is similarly entitled to carry out an investigation or inquiry for that purpose and to use the powers under s 19 of the Act in the course of the investigation or inquiry."
29 The result was that the Master concluded that the Commissioner was entitled to rely on s 17 of the Act and on s 72 and s 74 to s 77 of the Fair Trading Act in exercising his powers under s 19 of the Act. As a result, the Master dismissed the appellant's claim for a declaration that the conduct of the Commissioner was unlawful and dismissed the action.
Grounds of appeal
30 The grounds of appeal read:
"1. The court erred in holding that the words 'in the course of carrying out his duties under this Act or any other Act' in s 19 of the Act did not strictly refer to duties clearly and specifically imposed on the Commissioner … by statutory provision but instead referred to the Commissioner performing any of the functions of his office …
2. The court erred in holding that s 17 of the Act and s 72 and s 74 to 77 of the Fair Trading Act conferred duties on the Commissioner so as to empower the Commissioner to utilise the coercive powers conferred on him by s 19 of the Act in connection with deciding whether the Department, as that term is defined in s 4 of the Act, should carry out an investigation or take any other action under s 17 of the Act and in connection with deciding
- whether there are adequate grounds for instituting proceedings under the Fair Trading Act …"
31 The particulars to each of the two grounds rehearsed the arguments put to and rejected by the Master.
The issues in the appeal
32 The issues involve the proper construction of s 19 and more particularly the correct construction of the phrase "for the purposes of carrying out any investigation or inquiry in the course of carrying out his duties under this Act or the Fair Trading Act 1987" (later amended to include a reference to any other Act) and the correct construction of s 17.
33 I agree with Master Newnes' reasons. In my opinion they do not reveal any error. The arguments presented to the Master were presented again to this Court. There were some nuances of argument which were either not revealed, or not given much emphasis before the Master, so rather than merely rely upon the Master's reasons I will add some words of my own about why I consider the appeal should be dismissed.
Approach to statutory construction
34 The proper principles of construction are not in dispute. The court must begin by looking at the language of the statute rather than secondary sources or materials: Weiss v The Queen (2005) 80 ALJR 444 [31]. The primary object of all statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The duty of the court is to give the words of a statute the meaning that the legislature is taken to have intended them to have. The grammatical meaning of a statute may on occasions be ambiguous, but ordinarily the legal meaning will correspond with the grammatical meaning of the provision. In determining the grammatical meaning, due consideration must be given to the context, the general purpose and the policy of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69] and [78]; Commissioners for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, cited in Blue Sky at [69].
35 A strict approach to construction and compliance with statutory provisions authorising the issue of search warrants has been required: George v Rockett (1990) 170 CLR 104 at 110 - 111. The same approach is taken in relation to the sort of powers of search and seizure and
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- compulsion which are contained in s 19 of the Act: see Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 at [66].
36 A statute is not to be construed as abrogating common law rights save by clear words or by circumstances of necessary implication. This means however, that if s 19 clearly or by necessary implication abrogates the privilege against self-incrimination and the "immunity from seizure of papers and possessions" (to use the language of the joint judgment in George v Rockett (supra) at 110) then effect must be given to the words. Lord Diplock in Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1008 said:
"the construing court ought, no doubt, to remind itself, if reminder should be necessary, that entering a man's house or office, searching it and seizing his goods against his will are tortious acts against which he is entitled to the protection of the court unless the acts can be justified either at common law or under some statutory authority. So if the statutory words relied upon as authorising the acts are ambiguous or obscure, a construction should be placed upon them that is least restrictive of individual rights which would otherwise enjoy the protection of the common law. But judges in performing their constitutional function of expounding what words used by parliament in legislation mean, must not be over-zealous to search for ambiguities or obscurities in words which on the face of them are plain, simply because the members of the court are out of sympathy with the policy to which the Act appears to give effect."
37 The most satisfactory means of manifesting a legislative intent to abrogate common law rights and privileges is by the use of "express and specific words": Coco v The Queen (1994) 179 CLR 427 per Deane and Dawson JJ (at 446). Their Honours went on to say however:
"There can, however, be circumstances where such a legislative intent is made unambiguously clear notwithstanding the absence of express words. One example of such circumstances is where the relevant legislative provisions would otherwise be rendered either inoperative or nonsensical."
38 These words are of particular relevance because the appellant's primary argument, if accepted, would mean that for 10 years s 19 would
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- have been inoperative, as the Master explained and as I will explain again below.
The history of the Act and the construction of s 19
39 I now turn to examine the purpose of the Act and the context in which s 17 and s 19 appear. The purpose of the Act is to be gleaned from reading the Act as a whole. The Act first came into existence in 1971. It was clear from the Act then, and the Act after several amendments to it now, that it is concerned with promoting the interests of consumers and creating an authority or authorities responsible for promoting these interests. To achieve these purposes, Parliament has conferred powers on the Commissioner inter alia in s 19 to investigate, inquire and obtain information about the matters defined and properly of concern to the Commissioner. Whenever those powers are properly exercisable, it is clear beyond question that they will abrogate common law rights or privileges.
40 When the Act was passed in 1971, there was a body created called the Consumer Protection Bureau. The Bureau consisted of the Commissioner and officers appointed by him. Section 17 set out the functions of the Bureau. Subparagraphs (c) and (d) were in the same form as s 17(c) and (d) which are set out above, save that where in s 17 there is now a reference to the "Department", there was then a reference to the "Bureau". Section 19 was also in the Act in 1971 in a form not materially different, save that the reference was to the Commissioner's duties "under this Act" and as I have mentioned above, this was amended to refer to "this Act or the Fair Trading Act 1987" and subsequently to "this Act or any other Act".
41 What is relevantly significant about the Act as it stood in 1971 is that it did not expressly state that the Commissioner had any duties. It was not until later that duties were imposed. In 1981 s 15A was inserted.
42 Section 15A(1) reads:
"(1) The duties of the Commissioner include the following, namely -
(a) making such recommendations to the Minister as the Commissioner considers necessary or desirable in the interests of consumers and in particular investigating and making recommendations to the Minister in relation to
- any matters that concern the need for or desirability of legislative or administrative action in the interests of consumers;
- (b) advising the Minister on such matters affecting the interests of consumers as he may refer to the Commissioner;
(c) making recommendations to the Minister for the establishment and maintenance of means by which matters that affect the interests of consumers and of persons engaged in the production, manufacture, preparation or supply of goods or in commerce or in the provision of services may receive adequate consideration and whereby information concerning such matters and considerations may be disseminated at large."
43 It is clear that Parliament did not intend to say by s 15A that all the duties of the Commissioner are those set out in s 15A. This is clear because the duties are said to "include" those set out in the section.
44 The appellant however, submitted that it is to these expressly stated duties that the s 19 powers applied. If this submission is correct, then between 1971 and 1981 (when s 15A was inserted) and between 1971 and 1978 (when s 23N was inserted) the powers in s 19 could not be exercised at all because, on the appellant's submission, the powers in s 19 could only be exercised in relation to duties expressly stated to be duties. Counsel for the appellant, perhaps recognising that it was unlikely that Parliament conferred powers which could not be exercised, was driven to concede that in that 10 year period, what was said by Dixon CJ in Stapleton's case and by Brennan J in Herscu (supra) (and I should add by Mason CJ, Dawson, Toohey and Gaudron JJ at 282 - 283 in Herscu)would have applied, and therefore the reference to "duties" in s 19 referred to the performance of the functions conferred on the Commissioner in s 17 to decide what action was proper for him to take under the Act or under s 72 or s 74 to s 77 of the Fair Trading Act.
45 The appellant argues, however, that in 1984 the Interpretation Act was enacted, and because it included a definition of the word "function", which applied to the Act whenever the word "function" appeared in the Act, then from that time forward it was impossible to read "duty" as embracing a "function". The appellant's submissions are set out in [28] to
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- [31] of the Master's reasons. Like the Master, I do not accept those submissions. The fact that the word "function" was defined in the Interpretation Act to include "duty" says nothing about the ordinary meaning of the word "duty" and nothing about whether the Commissioner had a duty to perform his functions of office set out in s 17(c) and (d). When it is understood that in ordinary parlance the word "duty" does mean action required by one's position or occupation or office, then it appears to me that the Commissioner did have a public duty to perform the functions conferred on him by the Act.
46 To complete the history of the legislation I should mention that in 1985 the Bureau was abolished and, in place of the "Bureau", the Act henceforth in s 17 referred to the "Department". The Department was defined to mean the "Department of the public service of the State principally assisting the Minister in the administration of this Act."
47 An aspect of the appellant's argument which received emphasis on the appeal was that while s 17(c) and (d) refer to the functions of the Department to "investigate" complaints or to "investigate" and make "inquiries" about complaints from consumers, the section makes no reference to the Commissioner having any function to investigate or inquire about anything, save for the purposes of making a decision about action to be taken based on the Department's investigations or inquiries. The appellant submitted that the Commissioner merely had a "review role" under s 17. Like the Master, I do not accept that submission. The Department's investigations and inquiries could only be investigations and inquiries that could be made by an ordinary person. The departmental officers might, for example, investigate or inquire by asking a trader to provide information in relation to a consumer's complaint about fraudulent or deceptive practices by the trader. If the trader did not co-operate, then the departmental officers would have no coercive powers. In my opinion, the functions of the Commissioner set out in s 17(c) and (d) involve taking such action in respect of the complaints as appears proper to the Commissioner. In my opinion, this includes the function of inquiry and investigation in order to decide what action he should take. In the example above, the Commissioner may want to obtain the information the Department asked for but did not obtain. When s 17 refers to the Commissioner taking action as seems "proper to the Commissioner", the Commissioner's function is to decide what action is proper to take and, in making that decision, he may inquire and investigate to the extent he considers necessary. That being so, the Commissioner having the duty by his office to perform the functions conferred on him by s 17 is authorised by s 19 to exercise his powers in the course of carrying out that duty. The
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- s 19 powers expressly abrogate fundamental common law rights and privileges and thus effect must be given to Parliament's intention as expressed in the section.
48 I should also mention briefly three other submissions made by the appellant. The first was that a "duty" must always be accompanied by a correlative "right" and that because no person could be said to have any right under s 17 then there was no duty. I do not accept that submission. Hohfeldian analysis is often appropriate to the analysis of private rights, duties and liabilities (see CPT Custodians Pty Ltd v Commissioner of State Revenue (2005) 79 ALJR 1724) but in my opinion such analysis does not so readily apply in the case of public duties (for the meaning of "public duties" see Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at [79]) unless the correlative right is seen to exist in the Crown or the State.
49 Next the appellant referred to the decision of Master Sanderson in AA Pty Ltd v Walker [2005] WASC 259, and submitted that was contrary to Master Newnes' decision and should be followed. Master Sanderson in the AA case did not express any opinion about the proper construction of the phrase in s 19 which is under consideration in this case.
50 Thirdly, the appellant contended that the Master erred at [52] by seeking to ascertain the intention of Parliament not by reading the words but by imputing some intention to Parliament. I do not agree the Master did so. When the Master referred at [52] to the fact that it was unlikely "that Parliament would have conferred on the Commissioner coercive powers of the nature contained in s 19 with the intention that they would be used solely for the sort of purposes referred to by the plaintiff as constituting duties under the Act; that is, the advisory duties under s 15A or the requirements to give information and assistance to the Consumer Products Safety Committee under s 23N", he was merely examining the section in its context and examining the effect of the submission put forward by the appellant about the construction of the section.
51 Having concluded that the Master did not err, it is therefore strictly unnecessary for any reference to be made to the relief that might have been granted if the appellant's arguments had been accepted. Both parties however, invited the Court to deal with this issue even if on a provisional basis in case the matter went further. In my opinion it is not appropriate for this Court to do so because no consideration was given by the Master in his reasons to the form of relief which might have been granted and the parties are not agreed on the form of orders which should be made. Thus,
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- if the appellant's appeal had succeeded, I would have ordered that the matter be remitted to the Master for debate about relief to be granted, whether an injunction was appropriate and, if so, the form of the injunction.
52 The appeal should be dismissed.
53 BUSS JA: I agree with Pullin JA.