RUGS-A-MILLION (WA) Pty Ltd v Walker

[2005] WASC 288

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RUGS-A-MILLION (WA) PTY LTD -v- WALKER [2005] WASC 288

CORAM:   MASTER NEWNES

HEARD:   4 NOVEMBER 2005

DELIVERED          :   21 DECEMBER 2005

FILE NO/S:   CIV 1281 of 2005

BETWEEN:   RUGS-A-MILLION (WA) PTY LTD

Plaintiff

AND

PATRICK WALKER
Defendant

Catchwords:

Statutes - Consumer Affairs Act 1971 (WA) - Claim by plaintiff for declaration that conduct of Commissioner of Fair Trading not authorised by Act - Extent of powers of Commissioner under s 19 of Act - Whether powers under s 19 apply to investigation of complaints under s 17 - Whether apply in connection with powers of Commissioner to institute legal proceedings under Fair Trading Act 1987 (WA) - Nature of duties of Commissioner

Legislation:

Consumer Affairs Act 1971 (WA), s 5, s 15, s 17, s 19, s 23

Fair Trading Act 1987 (WA), s 10, s 72, s 74, s 75, s 76, s 77
Interpretation Act 1984 (WA), s 5

Trade Practices Act 1974 (Cth), s 3, s 52

Result:

Action dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr D H Solomon

Defendant:     Mr N W McKerracher QC & Mr S Dworcan

Solicitors:

Plaintiff:     Solomon Brothers

Defendant:     Department of Consumer & Employment Protection

Case(s) referred to in judgment(s):

Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1

Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579

Consolidated Press Holdings Ltd v Federal Commissioner of Taxation (1995) 57 FCR 348

G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503

George v Rockett (1990) 170 CLR 104

Hart v Commissioner of the Australian Federal Police (2002) 124 FCR 384

Herscu v The Queen (1991) 173 CLR 276

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

Story v National Companies and Securities Commission (1988) 13 NSWLR 661

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1

Case(s) also cited:

Allied Mills Industries Pty Ltd v Trade Practices Commission (No 1) (1981) 34 ALR 105

American Cyanamid Co v Ethicon Ltd [1975] AC 396

Attorney­General v Cooper [1974] 2 NZLR 713

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Australian Securities and Investments Commission (ASIC) v Rich [2004] NSWSC 970

Bercove v Hermes (No 3) (1983) 51 ALR 109

Bunning v Cross (1978) 141 CLR 54

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148

Coco v AN Clark (Engineers) Ltd [1969] RPC 41

Consolidated Paper Industries Pty Ltd v Matthews [2004] WASC 161

Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434

CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53

Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570

Doradel Holdings Pty Ltd v Tiger Kart Club Inc [2003] WASC 221

Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349

Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149

Liwszyc v Smolarek [2005] WASC 199

Martin v Kenneth Moore SM, unreported; SCt of WA (Murray J), Library No 940359; 20 July 1994

Miller v Miller (1978) 141 CLR 269

Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414

O'Sullivan v Barton [1947] SASR 4

Ousley v R (1997) 192 CLR 69

Parker v Churchill (1985) 9 FCR 316

Pearce v Button (1985) 8 FCR 388

Pelka v Sundquist [2005] WASC 52

Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204

Platz v Osborne (1943) 68 CLR 133

Port Kennedy Resorts Pty Ltd v Huat [2000] WASCA 328

Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393

R v Bolton; Ex parte Beane (1987) 162 CLR 514

R v Turner (No 14) [2001] TASSC 124

Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25

Second Life Decor Pty Ltd v Comptroller­General of Customs (1994) 53 FCR 78

Seymour v Attorney­General (Cth) (1984) 4 FCR 498

Southern Equities Corp Ltd (In Liq) v Bond (2001) 78 SASR 554

State Transport Authority v Apex Quarries Ltd [1988] VR 187

Telstra Corporation Ltd v First Netcom Pty Ltd (1997) 148 ALR 202

1. MASTER NEWNES:  This matter came on before me on 4 November 2005 on an application by the plaintiff for an interlocutory injunction pending trial.  By that time, however, it had emerged that the evidence that would be led at trial would be identical to that adduced on the hearing of this application.  The parties therefore agreed that the hearing should proceed as a trial of the action, on affidavit evidence, on all issues except damages.  That was the course that was taken.  Following the hearing further written submissions were provided by the parties.

Background

1. The essential facts relevant to the issues which fall for determination were not seriously in dispute.

2. At the material time the plaintiff carried on business in Western Australia selling rugs to the public through five retail outlets.

3. At about 9 am on 24 June 2004, officers of the Department of Fair Trading (the "Department") entered and searched all of those retail premises.  In the course of doing so, they made copies of documents belonging to the plaintiff and of information stored on the plaintiff's computer systems.  They also seized certain rugs belonging to the plaintiff and took photographs of other stock.  Employees of the plaintiff were also questioned by officers of the Department.

4. On 28 June 2004, officers of the Department returned to one of the plaintiff's retail outlets at the "Harbour Town" shopping centre and inspected further documents of the plaintiff.

5. On various dates between 18 October 2004 and 31 January 2005, Mr Sean Dworcan, acting as a delegate of the defendant, served notices on the managers of the various retail outlets requiring them to give information and answer questions, and, in some cases, to produce documents. Mr Dworcan relied on the delegation to him by the defendant in his capacity as Commissioner for Fair Trading (the "Commissioner") of powers under s 19 of the Consumer Affairs Act 1971 (WA) (the "Act").

6. A total of 11 notices were issued, a number of which required the recipient to attend at the offices of the Department to be orally examined as to certain specified matters regarding the conduct of the plaintiff, its servants and agents.  The plaintiff says that there have since been examinations of four of the recipients.  Mr Dworcan, on behalf of the Commissioner, says that in all but one case the interviews of the plaintiff's employees have not proceeded and in the one case the interview was adjourned, on 8 October 2005, without the examination being completed.

7. The plaintiff says that the conduct of the Commissioner, by his delegates, in entering and searching the plaintiff's premises, and copying and seizing documents and stock, and in conducting examinations of employees of the plaintiff, was not authorised by the Act and was unlawful. The plaintiff says that the documents and records seized and copied, and the information obtained, are confidential to the plaintiff.

8. On 11 February 2005 the plaintiff, by its solicitors, wrote to the Commissioner demanding the return all of the documents seized (and any copies made of them) together with all stock seized or otherwise obtained from the plaintiff.  The plaintiff also required the Commissioner to give an undertaking that no information or material which had been obtained from the plaintiff's premises or by examination of its employees would be used or published by him.

9. The Commissioner refused to give such an undertaking, contending that his delegates' conduct has at all times been lawful.

10. On 11 March 2005 the plaintiff commenced these proceedings. In the statement of claim the plaintiff pleads that the conduct of the Commissioner was engaged in without lawful authority as the Commissioner had purported to engage in that conduct in exercise of the 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 ss 72, 74, 75 and 77 of the Fair Trading Act 1987 (WA), but none of those provisions imposed on the Commissioner a duty within the meaning of s 19 of the Act and the Commissioner had no other lawful authority to engage in that conduct.

11. In the action the plaintiff seeks a declaration that the conduct of the defendant, in his capacity as Commissioner for Fair Trading, by his officers and delegates, in purported exercise of powers conferred by s 19(1) of the Act, was unlawful. The plaintiff seeks orders for delivery up or specific restitution of the property seized from the plaintiff and all copies of it. The plaintiff also seeks an injunction restraining the defendant from using information which was obtained from the plaintiff's premises by officers or delegates of the defendant.

12. In his defence the Commissioner, among other things, admits that the conduct was engaged in pursuant to s 19 of the Act and says it was for the purposes of carrying out an investigation and inquiry as to whether there were possible contraventions of the Fair Trading Act and whether it was warranted for the Commissioner to commence legal proceedings; whether it was warranted for the Department to investigate complaints by consumers and what proper action might be taken in respect of such complaints; and what proper investigations, inquiries and other action might be taken by the Department in respect of complaints of deceptive practices affecting or likely to affect consumers.

13. It is pleaded that the investigation or inquiry was carried out in the course of the Commissioner, by delegates and officers, carrying out the duties of the Commissioner under the Fair Trading Act and/or the Act. The Commissioner relied upon duties arising under s 72 and ss 74 to 77 of the Fair Trading Act and s 17(c) and (d) of the Act. The Commissioner denies that any of the conduct was unlawful.

14. After the action was commenced there were negotiations between the parties to see if any settlement could be reached, but to no avail.

15. The plaintiff's solicitors were informed on 10 August 2005 that the Commissioner intended to commence proceedings against the plaintiff, and certain of its employees and associated companies, alleging breaches of the Fair Trading Act and the Trade Practices Act 1974 (Cth).

16. The plaintiff, by its solicitors, immediately sought an undertaking from the Commissioner that in respect of the proposed proceedings he would not use any of the materials which the plaintiff contended had been unlawfully obtained from it.  The Commissioner refused to give that undertaking.

17. On 15 August 2005 proceedings were instituted by the Commissioner against the plaintiff and certain of its employees and associated companies. In the action the Commissioner alleges, among other things, that each of those parties 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.  The Commissioner sought declarations to that effect and orders restraining the defendants to the action from engaging in the alleged conduct.  The writ of summons and statement of claim were served on the plaintiff's solicitors on 18 August 2005.

18. The Commissioner does not accept that the material referred to is necessarily of a confidential nature and says that some of it is plainly not, such as stock and labels on public display.  In addition, in an affidavit filed in these proceedings Mr Dworcan says that if the Commissioner were not permitted to have recourse to the information obtained from the plaintiff it is likely the conduct which is alleged to be in contravention of the Fair Trading Act would or may go unchecked as it would not be possible to prove the allegations made in the proceedings against the plaintiff or the proof of them may be jeopardised.  Mr Dworcan also says it would now be impossible for officers of the Department to exclude from their minds the information they have obtained and to segregate it from information they have obtained from other sources, so that if the Commissioner were restrained from using the challenged information, any further investigations or proceedings in respect of the plaintiff's activities may be paralysed.

The statutory framework

1. It is convenient, before turning to the submissions of the parties, to refer to the statutory framework which is relevant to the action. The Commissioner for Fair Trading is appointed under s 15 of the Act. At the relevant time, s 15(1) provided, so far as relevant, that:

   "There shall be appointed … a Commissioner for Fair Trading and such other officers as are necessary to assist the Commissioner in carrying out his functions under this Act".

2. That section was subsequently amended, as from 1 January 2005, to read " … in carrying out his functions under this or any other Act".

3. Section 15A sets out a non‑exclusive list of duties of the Commissioner. At the relevant time, it provided that:

   "(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."

4. The functions of the Department are set out in s 17, which, so far as relevant, provided at the relevant time as follows:

   "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;

   …"

5. The powers of the Commissioner to investigate, inquire and obtain information are set out in s 19 of the Act. That section, at the material time, provided, so far as relevant, as follows:

   "(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."

6. That provision was amended with effect from 1 January 2005 to delete "Fair Trading Act 1987" and to insert in its place "any other Act".

7. It was not in question that under s 23 the Commissioner may delegate the performance of any of the "functions" conferred on the Commissioner by the Act or any other Act, and that a function performed by a delegate is taken to be performed by the Commissioner.

8. It is also necessary to turn to certain provisions of the Fair Trading Act. Section 72 of the Fair Trading Act provides that prosecutions for offences under the Act may be instituted by the Commissioner or by a person authorised in writing by the Commissioner. Section 74 similarly provides that, among others, the Commissioner may obtain an injunction where the Court is satisfied that a person is engaging or proposing to engage in conduct that is or would constitute a contravention of the Act, and s 75 permits, among others, the Commissioner to obtain an injunction in relation to conduct that constitutes or would constitute a breach of any legislation administered by the Commissioner or orders made under that legislation or any code of practice.

Plaintiff's submissions

1. It was submitted by counsel for the plaintiff 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 implication to that effect.  Counsel referred to The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 and George v Rockett (1990) 170 CLR 104. Counsel argued 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 which specifically imposes a "duty" on the Commissioner. 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. For the purposes of s 19(1) of the Act, "duties" does not extend to functions.

2. It was submitted that that follows from s 5 of the Interpretation Act 1984 (WA) which defines "functions" as including "powers, duties, responsibilities, authorities, and jurisdictions" [emphasis added]. That definition applies unless express provision is made to the contrary or the intent or object of an Act or something in the subject or content of the Act is inconsistent with that application: s 3(1)(b). There was nothing inconsistent in the Act.

3. Counsel argued that in light of that definition it is impossible to read "duty" as embracing "function". To do so would mean the definition of function in s 5 would effectively define "function" as including, among other things, "function", rather than the broad list of matters included in the definition. That would be nonsensical. Alternatively, to read "duty" as embracing "function" would effectively reverse the definition of "function" contained in s 5, so that "duty" would include "function" or it would imply an additional definition of "duty" as including "function".

4. It was further argued on behalf of the plaintiff that the reference to the Commissioner's "functions" in s 15(1) and s 23(1) of the Act must be intended to mean something different to "duty". There is a presumption that Parliament, by using different words in the statute, intended those words to have different meanings. It is clear from the use of the word "functions" in those sections of the Act that Parliament intended "duties" to have a narrower scope than "functions".

5. Counsel for the plaintiff argued 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 for offences under that Act, but simply confers on the Commissioner a power to do so. The same applies to ss 74, 75, 76 and 77 of the Fair Trading Act.  Those provisions simply give the Commissioner standing in the proceedings to which they refer; they do not impose any duty on him.

1. It was submitted on behalf of the plaintiff that s 17 of the Act defines the functions (which includes the duties) of the Department and, while it refers to functions of the Commissioner, it does not impose any duties on the Commissioner. Counsel 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.

2. It was argued on behalf of the plaintiff that under s 17(c) and s 17(d) of the Act the function of investigating consumer complaints is a function of the Department, not the Commissioner. Those provisions do not impose a duty on the Commissioner to investigate the complaints. To construe them as imposing a duty would mean that the Commissioner would have to conduct an investigation into a complaint to determine whether the Department should investigate the complaint.

3. Accordingly, once the Commissioner has directed what investigations and inquiries are to be made, or what action is to be taken, his role under s 17 is exhausted.

4. It was submitted 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". That clearly imposed a duty on the Commissioner in relation to which the powers conferred on him by s 19 of the Act can be exercised. Duties are also imposed on the Commissioner by s 15A.

Defendant's submissions

1. It was submitted on behalf of the Commissioner that the duties of the Commissioner include the performance of his functions under the Act and the Fair Trading Act. The Commissioner has functions under, among others, s 72 and ss 74 to 77 of the Fair Trading Act to institute legal action in certain circumstances.  That function necessarily includes the consideration of whether such legal action is justified.

2. The Commissioner also has the function, under s 17(c) of the Act, of determining whether the Department should investigate complaints from consumers and what action the Department should take in respect of those complaints. A similar function arose under s 17(d) in respect of fraudulent or deceptive practices.

3. It was submitted that a public office holder has a duty to perform the functions of his office.  The duties of a public office holder include those functions 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 or collateral, serve to promote the accomplishment of the principal purposes.

4. It followed that the Commissioner's functions under the Fair Trading Act to initiate legal action where appropriate involved, by necessity, a duty to consider whether the circumstances justified such action.

5. It also followed that the Commissioner's functions under the Act included a duty under s 17 to determine whether the Department should investigate complaints and what action was proper in the light of the investigations which were carried out. The exercise of the powers under s 19 was for the purpose of carrying out those duties.

6. Senior Counsel for the defendant also argued that, in any event, in the context of the Act, "duties" included functions. He referred to Herscu v The Queen (1991) 173 CLR 276 at 287 where Brennan J 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."

7. In that case, the High Court unanimously held that the phrase "duties of his office" was not confined to specific statutory duties, but should be read in the sense of "functions of his office".

8. Counsel also referred to Consolidated Press Holdings Ltd v Federal Commissioner of Taxation (1995) 57 FCR 348 at 352 where Lockhart J observed that:

   "The concept of 'duty' has been considered in a number of reported cases.  It has been said to be wide in both its meaning and content.  In Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 at 6 Dixon CJ said:

   '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". '

   This passage has since been adopted on a number of occasions in judgments of courts including Mobil Oil Australia Pty Ltd v FCT (1962) 113 CLR 475; FCT v Nestle Australia Ltd (1985) 12 FCR 257 at 261‑2; 69 ALR 445; see also at first instance 11 FCR 453 at 456‑7; 67 ALR 128; Saunders v FCT 88 ATC 4349 at 4358‑9 Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 at 136‑7; 71 ALR 73; Herscu v R (1991) 173 CLR 276 at 282‑3; 103 ALR 1, where a similar phrase in s 87 of the Queensland Criminal Code was considered; also R v Clarkson (No 2) [1982] VR 522 involving an equivalent provision in the Victoria Pay‑roll Tax Act 1971."

9. See also Story v National Companies and Securities Commission (1988) 13 NSWLR 661 at 671 ‑ 672.

The scope of s 19 of the Act

1. 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.

2. 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".

3. In approaching the construction of the Act I accept that great caution must 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 that is in different terms and concerned with a different subject‑matter. But the comments of Dixon J in Canadian Pacific Tobacco Co Ltd v Stapleton (supra) and Brennan J in Herscu v The Queen (supra) are in my view apposite to the present case and reflect the fact that commonly a reference to the duties of a public office will encompass the performance of the functions of the office.

4. The Commissioner is given wide ranging powers under s 19 to require a person to give information or answer questions in relation to any matter the subject of an inquiry or investigation; to require the production of documents, to enter premises and inspect and take samples of goods thereon; and to make copies or abstracts of documents which, if certified as correct by the Commissioner, are to be received in any court of law as evidence of, and of equal validity as, the original. Those are coercive investigative powers of a sort that might be expected to be used in investigating complaints of conduct alleged to be in contravention of the law.

5. When the Act first came into force in 1971, there were no duties contained in the Act of the nature which the plaintiff contends is necessary to enliven the Commissioner's powers under s 19. Section 15A was added by an amendment in 1981 and the other sections to which the plaintiff's counsel has referred as imposing duties within the meaning of s 19 have been added by still later amendments. On the plaintiff's argument, therefore, at least until 1981 when s 15A was added, the powers under s 19 were otiose. Counsel for the plaintiff sought to meet that by arguing that, whatever might have been the position prior to 1984, the enactment in that year of the Interpretation Act with the definition of "functions", at a time when there had been added to the Act specific duties of the Commissioner, meant that it was now clear that s 19 referred only to duties specifically conferred by statute, not to functions.

6. I must say, with respect, that 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.

7. It is also, in my view, 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 requirement to give information and assistance to the Consumer Products Safety Committee under s 23N.

8. Further, in relation to the Fair Trading Act, counsel for the plaintiff did not refer to any duties of the Commissioner of the nature which it is contended are necessary to enliven the powers under s 19. And it is not easy from the terms of the Fair Trading Act to see what such duties might be. The instances where a specific duty of that nature is imposed on the Commissioner do not concern matters where powers of the kind provided in s 19 of the Act would be likely to be required; for instance, s 42, dealing with the preparation of a code of conduct, and s 55, dealing with pre‑requisites to the making of a product recall order.

9. If the plaintiff's interpretation of the Act were accepted the result would be that the extensive powers of the Commissioner under s 19 would have little, if any, utility and, conversely, no such powers would be available in connection with the investigation of complaints by consumers, including complaints of fraudulent or deceptive practices, under s 17 of the Act, or in connection with any proceedings that might be contemplated by the Commissioner under the powers given to him under the Fair Trading Act.

10. I do not consider that on the proper construction of the Act, s 19 has that rather odd result.

11. 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.

12. 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.

13. In G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503, 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 260SE 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)."

14. That passage was cited with approval by the High Court in Herscu v The Queen (supra) and in Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1 at 14.

15. When regard is had to the nature of the role of the Commissioner under s 17 of the Act it is, I think, clear that the powers under s 19 are intended to be used, among other things, in connection with investigations and inquiries under s 17.

16. 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.

17. 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.

Conclusion

1. I consider the Commissioner was entitled to rely on s 17 of the Act and on s 72 and ss 74 to 77 of the Fair Trading Act in exercising his powers under s 19 of the Act. The plaintiff's claim for a declaration that the conduct of the Commissioner was unlawful must therefore fail. In this action no issue was taken with the capacity of the Commissioner to delegate his powers under s 19 or with the actual delegation that occurred. In the light of my conclusion it is unnecessary to consider the other issues raised in the action. Accordingly, I would dismiss the claim.