Seven Network Limited v Australian Competition and Consumer Commission
[2004] FCA 1667
•17 DECEMBER 2004
FEDERAL COURT OF AUSTRALIA
Seven Network Limited v Australian Competition & Consumer Commission
[2004] FCA 1667
PRACTICE AND PROCEDURE – complaint of regulatory authority of misleading and deceptive conduct by television broadcaster in relation to televised program – institution by regulatory authority of inquiry into television broadcast – application of television broadcaster to restrain continuation of inquiry dismissed – appeal against dismissal at first instance also dismissed by Full Court – application for special leave to appeal from Full Court’s decision in favour of regulated authority to High Court pending – application of television broadcaster for injunction to continue inquiry by regulatory authority pending outcome of television broadcaster’s application to High Court for special leave to appeal – application for injunction dismissed
Trade Practices Act 1974 (Cth) ss 51A, 52, 65(1), 155(1) and 163A
Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561 referred to
SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 referred to
WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 referred to
George v Rockett (1970) 170 CLR 104 referred to
Hussien v Chong Fook Kam [1970] AC 942 referred to
Cassidy v Saatchi Australia Pty Ltd [2004] ATPR 41-980 referred to
Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549 referred to
Gianni Versace SpA v Monte (2002) 119 FCR 349 referred to
Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 referred to
Commissioners of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22 referred to
Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211 referred to
McGuinness v Attorney-General of Victoria (1940) 63 CLR 73 referred to
SDN Children’s Services Inc v Hughes (unreported 14 May 2002) applied
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 referred to
Marconi’s Wireless Telegraph Co Ltd v The Commonwealth (No 3) (1913) 16 CLR 384 referred to
Paringa Mining and Exploration Co Plc (1988) 165 CLR 452 referred to
CSR Ltd v Cigna Insurance Australia Ltd (1997) 195 CLR 1 referred to
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 discussed
Australian Builders Construction Employees And Builders’ Labourers Federation v Commonwealth of Australia and Others (1981) 37 ALR 470 discussed
Bereove v Hermes and Others (1983-84) 51 ALR 105 discussed
Wakim ex parte McNally (1999) 198 CLR 511 discussed
John Fairfax & Sons Ltd v Cojuangeo (1988) 165 CLR 346 discussedSEVEN NETWORK LIMITED, HOWARD GIPPS AND SIMONE CUNNINGHAM v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
NSD 1232 OF 2004CONTI J
17 December 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1232 OF 2004
BETWEEN:
SEVEN NETWORK LIMITED
FIRST APPLICANTHOWARD GIPPS
SECOND APPLICANTSIMONE CUNNINGHAM
THIRD APPLICANTAND:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
17 DECEMBER 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application for injunctive and other relief be dismissed.
2. The applicants pay the respondent’s costs of the proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1232 OF 2004
BETWEEN:
SEVEN NETWORK LIMITED
FIRST APPLICANTHOWARD GIPPS
SECOND APPLICANTSIMONE CUNNINGHAM
THIRD APPLICANTAND:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
RESPONDENT
JUDGE:
CONTI J
DATE:
17 DECEMBER 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Background
On 24 March 2004, Australian Competition and Consumer Commission (‘ACCC’) served notice on Seven Network Limited (‘Channel 7’) and the other two applicants, being officers of Channel 7, to provide information, pursuant to s 155(1) of the Trade Practices Act 1974 (Cth) (‘TP Act’), in relation to three matters. I shall hereafter refer to that notice, or those notices together, as the ‘ACCC Notices’, and will include reference to the second and third applicants within the description Channel 7, except where inconsistent with the context.
So far as is material to the issues arising, s 155 of the TP Act reads as follows:
‘ if the Commission, the Chairperson or the Deputy Chairperson 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… a member of the Commission may, by notice in writing served on that person, require that person to furnish to the Commission, by writing signed by that person or:
(a) 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;
…’
The first of those three matters was described in the ACCC Notice as follows:
‘On 31 October 2003, Seven Network (or a wholly owned subsidiary of Seven Network) caused the broadcast of an item on Channel 7’s Today Tonight television program featuring a mentoring program marketed under the name “Wildly Wealthy Women” during which television program representations were made by Seven Network (or a wholly owned subsidiary of Seven Network) and/or Dymphna Boholt and Sandy Forster (the principals of the mentoring program) to the following effect:
(a)that participants in the mentoring program would become wealthy through investing in property;
(b)that participants in the mentoring program would become wealthy by investing in property even if they have no money at present;
(c)that participants in the mentoring program would become millionaires by investing in property;
when in fact Seven Network (or the relevant wholly owned subsidiary of Seven Network) and/or Dymphna Boholt and Sandy Forster had no reasonable grounds for making such representations. A copy of the transcript of the item is attached hereto, at “Attachment A”.’
The television programme ‘Wildly Wealthy Women’ alleged to have been so broadcast by Channel 7 was referred to in the judgments of the Full Federal Court shortly to be summarised as the ‘WWW Program’.
The second matter identified in the ACCC Notice was in virtually identical terms as the first, except that the broadcast was said to have taken place subsequently on 30 January 2004.
The third matter related to identical material said to have been made by Channel 7 on the Today Tonight website, in circumstances where it was claimed by the ACCC that Channel 7 had no reasonable grounds for making the representations.
The ACCC Notice required Channel 7 to furnish to the ACCC the following information in relation to the television program broadcast on 31 October 2003:
‘1.State the name and address of the person who was the Executive Producer of the Today Tonight television program broadcast on 31 October 2003.
2.State the name and address of the person who was the Executive Producer of the Today Tonight television program broadcast on 30 January 2004.
3.State the name and address of each person responsible for the content of the item broadcast on Channel 7’s Today Tonight television program on 31 October 2003 which featured a mentoring program marketed under the name “Wildly Wealthy Women”.
4.State the name and address of each person responsible for the content of the item broadcast on Channel 7’s Today Tonight television program on 30 January 2004 which featured a mentoring program marketed under the name “Wildly Wealthy Women”.
5.State the name and address of the compere of the item broadcast on Channel 7’s Today Tonight television program on 31 October 2003 which featured a mentoring program marketed under the name “Wildly Wealthy Women”.
6.State the name and address of the compere of the item broadcast on Channel 7’s Today Tonight television program on 30 January 2004 which featured a mentoring program marketed under the name “Wildly Wealthy Women”.
7. State the name and address of each person responsible for:
(a) the text; and
(b) the publication;
of the content on the website in respect of the “Wildly Wealthy Women” mentoring program at any time in the period 1 October 2003 to the date of this Notice’.
On 8 April 2004 Channel 7 instituted proceedings in this Court against the ACCC, whereby declarations were sought pursuant to s 163A of the TP Act to the effect that the ACCC Notice was unauthorised, invalid and of no effect, and that Channel 7 was not required to furnish to the ACCC the information specified in the Schedule to the ACCC Notice. An order in the nature of certiorari in relation to the issue of the ACCC Notice was also sought.
Section 163A of the TP Act authorises proceedings for declaratory relief in relation to matters arising under the TP Act, subject to exceptions not here relevant, and also in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under…’ the TP Act.
Section 65A of the TP Act limits the operation of certain provisions thereof, including in particular ss 51A and 52 of the TP Act, in their application to the media and other entities carrying on the business of providing information. Subsections 51A and 52 are of course very well known, and it suffices to reproduce the text of s 65A(1), so far as is here material, as follows:
‘(1) Nothing in section 52 … applies to a prescribed publication of matter by a prescribed information provider, other than:
(a)a publication of matter in connection with:
(i)the supply or possible supply of goods or services;
…
(iii)the promotion by any means of the supply or use of goods or services; or
…
where:
…
(vi)the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with:
(A)a person who supplies goods or services of that kind …; or
…
(b)a publication of an advertisement.’
There was no dispute that Channel 7 (and its wholly owned subsidiaries) was a prescribed information provider, and that each of the publications identified in the ACCC Notice was a prescribed publication within the meaning of s 65A(1).
The reasons for judgment of the primary judge in the principal (prior) proceedings
The primary Judge (Branson J) first addressed Channel 7’s submission that the matters identified in the ACCC Notice were incapable of constituting contraventions of s 52 of the TP Act, by reason of the exemption provided by s 65A thereof for prescribed information providers. The primary judge observed that the first two matters identified in the ACCC Notice involved assertions that:
(i) Channel 7 or one of its subsidiaries may have contravened s 52 of the TP Act;
(ii) the promoters of the WWW Program may have contravened s 52 of the TP Act; or
(iii)Channel 7 or one of its subsidiaries and the promoters together may have contravened s 52 of the TP Act.
The primary judge then pointed out that s 65A could have no operation in respect of the promoters’ conduct which came within s 52, because of the extended operation given to that section by s 6(3) of the TP Act; the primary judge accordingly rejected the contention that the promoters’ conduct was incapable of constituting a contravention of s 52.
The primary judge recorded the ACCC’s concession that s 65A applied to Channel 7, but that did not mean that Channel 7 was incapable of contravening s 52 by reason of the items broadcast on the Today Tonight program. The protection accorded by s 65A to a prescribed publication by a prescribed information provider did not extend, for example, to the publication of an advertisement (s 65A(1)(b)) or to the publication of matter in connection with the possible supply of services, where the publication was made pursuant to a contract, arrangement or understanding with a person who supplies services of the relevant kind (s 65A(1)(a)). It was at least ‘theoretically possible’, the primary judge pointed out, that investigations would reveal that publication of the items complained of came within pars (a) or (b) of s 65A(1), and it therefore followed that the first two matters were not incapable of constituting contraventions of s 52 by Channel 7. Moreover the primary judge considered that the same reasoning applied to the third matter identified in the ACCC Notice.
The primary judge next addressed Channel 7’s second submission to the effect that it had not made any representations of the kind identified in the ACCC Notice. The primary Judge considered in that regard that the appropriate test was whether she could be satisfied that it had not been established that Channel 7 (or one of its subsidiaries) had made the representations. The primary judge observed that the only evidence before her comprised the transcripts of the two Today Tonight programs and a copy of the material that had appeared on the Today Tonight website, yet additional evidence might be tendered at any ultimate hearing, for example, of videos of the programs and evidence of other material placed on the Today Tonight website. The primary judge further observed that the promoters had used the Channel 7 television broadcast to promote the WWW Program ‘enthusiastically’, and that the statements made by the compere in both Today Tonight programs were not incapable of supporting a finding that Channel 7 (or one of its subsidiaries) had itself made the representations identified in the ACCC Notice. Moreover the primary judge considered that whilst some remarks made in the television programs were capable of conveying scepticism, whether they did so or not could not be determined from the transcript of the programs alone.
The primary judge recorded Channel 7’s third argument to the effect that s 155 of the TP Act could not legitimately be used to identify possible witnesses in respect of elements of asserted contraventions of the TP Act, being an argument purportedly founded on the decision of Bowen CJ in Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561. The primary judge distinguished Riley McKay on the basis that each one of the individuals, whose names and addresses were sought in the ACCC Notice, was not merely a possible witness upon the issue as to whether the person or persons who made the representations had reasonable grounds to make the same. Each of those possible witnesses was rather a person who might reasonably be expected to have information bearing upon the issue whether s 65A of the TP Act had the effect of rendering s 52 inapplicable to the programme televised by Channel 7. Upon that footing, the primary judge therefore rejected Channel 7’s third contention made in those prior proceedings.
The threshold and major reasoning and the findings of the Full Court on Channel 7’s appeal in the principal (prior) proceedings
Channel 7 appealed to a Full Court comprising Tamberlin, Sackville and Emmett JJ. Sackville and Emmett JJ joined together in lengthy reasons for judgment which largely adopted the reasons for judgment of the primary judge, and also contained further reasons in support of the findings of the primary judge. Tamberlin J agreed with the reasons of Sackville and Emmett JJ, and provided as well observations and reasoning of his own. When I hereafter refer to the reasons of the Full Court, I necessarily therefore encompass the views equally of all three members of the Full Court, except where indicated otherwise. In the light of the nature and extent of Channel 7’s analysis and criticism, in the context of the present application, of the reasoning of the lengthy judgments at first instance, it is I think appropriate to explain the same in some detail for ease of reference.
The Full Court first examined a number of authorities relating to the construction and operation of s 155(1) of the TP Act, from which the Full Court derived the following propositions of principle:
(i)given the context that the refusal or failure to comply with a s 155 notice is punishable by imprisonment or fine, a notice given pursuant to s155 must convey to the recipient with reasonable clarity the information required to be furnished, and disclose that the ACCC is entitled to require the recipient to furnish the information specified by the notice;
(ii)the requirement to furnish the specified information would not be satisfied unless it appears from the notice that the information sought is information ‘relating’ to one or more ‘matters’ of the kind described in s 155(1); whether that requirement is satisfied is not to be determined by an approach pursued in an ‘over-technical or hypercritical way’; in particular, the ‘relatedness’ issue to be resolved requires a proper inquiry into the suspected offences;
(iii)section 155(1) does not require the ACCC to have reason to believe that a specified matter constitutes or may constitute a contravention of the TP Act, but rather requires that ACCC has reason to believe that a person is capable of furnishing information relating to the matter specified in the notice; it followed that the ACCC must believe that the person to whom the notice is directed is capable of furnishing information relating to the facts known or suspected, and moreover that there must be facts in existence which are sufficient to induce that belief in a reasonable person;
(iv)it followed that the ACCC must believe that the person to whom the notice is directed is capable of furnishing information in relation to the facts known or suspected; in addition there must be facts in existence which are sufficient to induce that belief in a reasonable person;
(v)the word matter appearing in s 155(1) is to be construed in its ordinary sense of an affair or thing, and is referrable to a body of facts which constitutes or may constitute a contravention of the TP Act; whether or not the relevant body of facts constitutes a contravention is a matter of law and does not turn on the perception or knowledge of the ACCC (or its officers);
(vi)where s 155(1) speaks of a matter that constitutes, or may constitute, a contravention of this Act, it refers to a body of facts not fully known and which may, when fully known, reveal itself as constituting a contravention; thus those particular words may constitute enable a court to judge from the material in the notice whether, if other facts which may or may not have occurred come to light, the whole body of the facts involved would constitute a contravention; moreover it is not necessary for the Court to determine whether a contravention has occurred, but equally the Court should not ‘idly speculate’ or ‘draw on improbable circumstances’ to uphold a s 155 notice; an alternative formulation was that the Court would take account of facts which may reasonably be suspected to have occurred;
(vii)where the matters referred to in a s 155 notice, after allowing for undiscovered facts, are incapable of amounting to a contravention, the issue of the notice is not a valid exercise of the power conferred by s 155(1);
(viii)in view of the principle that the Court should not adopt an over-technical or hypercritical approach to the construction of a notice, there is no requirement that a notice in effect plead all the facts necessary to constitute a contravention or possible contravention of the TP Act; and
(xi)information that tends to negative a suspected contravention or liability to conviction, or which tends to exculpate a person suspected to be a party to a contravention, is within the ambit of s 155(1); it follows therefore that an inquiry under s 155 may relate to a defence or possible defence available to the suspected person.
The Full Court next expressed the view that the correct starting point for resolution of the proceedings on the appeal from the primary judge was to determine whether the matters identified in the ACCC Notice, independently of the operation of s 65A(1) of the TP Act, were incapable, after allowing for undiscovered facts, of constituting conduct by Channel 7 that contravened s 52 of the TP Act. If the answer should be in the affirmative, that is, if those matters were not capable of constituting contravening conduct, there was no occasion to consider whether Channel 7’s conduct had been taken out of the reach of s 52 by the operation of s 65A(1) of the TP Act. If however the matters were capable of constituting contravening conduct, it became necessary to consider whether s 65A(1) protected Channel 7 by rendering s 52 inapplicable to its conduct complained of. Given the concession that Channel 7 was (and doubtless remains) a prescribed information provider, that question involved a determination as to whether the matters identified in the Notice, allowing for undiscovered facts, were capable of attracting one or more of the exceptions to s 65A(1) which might operate to compel exposure of Channel 7 to liability under s 52 of the TP Act; if so, Channel 7’s conduct was capable in law of constituting conduct contravening s 52 of the TP Act.
The Full Court referred to the circumstance that two Full Courts, namely in SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 and WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175, had already formulated what might conceivably seem to have been somewhat different tests for determining whether the matters identified in a s 155 notice might constitute a contravention of the Act, and observed that the differences in the tests postulated were more apparent than real. Thus in the joint judgment of Fisher and French JJ in SA Brewing, there was ruled out engagement in idle speculation, or drawing on improbable circumstances, in the process of deciding that question. Brennan J in WA Pines on the other hand had observed that the question was to be resolved by reference to facts that might ‘reasonably be suspected’ to have existed. It was pointed out that in George v Rockett (1970) 170 CLR 104 at 115, the High Court in a unanimous judgment adopted Lord Devlin’s observation in Hussien v Chong Fook Kam [1970] AC 942 at 948 that suspicion ‘… in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”’. Moreover the High Court also said in George at 115 that ‘[t]he facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground belief, yet some factual basis for the suspicion must be shown’. Accordingly the Full Court in the present litigious context considered that the test adopted by Brennan J in WA Pines would rule out idle speculation or drawing on improbable circumstances, though equally, the comments by Fisher and French JJ in SA Brewing implicitly required some factual basis for the suspicion, yet falling short of material sufficient to ground a positive belief that a contravention had occurred.
Upon that footing of discussion of authority, the Full Court acknowledged that care must be taken not to substitute a judicial formulation for the language used by Parliament, and that ultimately the question was whether the matter identified in the ACCC Notice ‘may constitute’ a contravention of the TP Act. With that test in mind, the Full Court concluded that there was no significant difference between the formulations in SA Brewing and WA Pines. Moreover as the Full Court further proceeded to point out, there can be more than one publisher of misleading information (Cassidy v Saatchi Australia Pty Ltd [2004] ATPR 41-980 at [31] (per Moore and Mansfield JJ)). Thus it had been held earlier that both an advertiser and a publisher of a newspaper in which an advertisement appears may contravene s 52, the Full Court referring in that regard to authority, the most recent being Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549 at 586 (Toohey J). The Full Court also pointed out that it was that operation of s 52 of the TP Act that was sought to be addressed by the enactment of s 65A thereof. I was also referred in that context to Gianni Versace SpA v Monte (2002) 119 FCR 349 at 383 (Tamberlin J). The application of the TP Act to television advertisements was said to have been earlier illustrated by Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 (the circumstances whereof pre-dated the operation of s 65A(1)), where a Full Federal Court held that a television station would make a false or misleading representation within s 53(a) of the TP Act if it published a misleading advertisement.
It remained necessary only to address specifically the exception stated in s 65A(1)(b), namely that both the Today Tonight programs and the material on the website constituted a publication of an advertisement. The Full Court pointed out that the ACCC Notice did not expressly claim that the Today Tonight programs and the website constituted the publication of an advertisement, and correctly so. Nor in its view was there any direct evidence that the promoters provided consideration to Channel 7 or any one of its subsidiaries to promote the WWW Program. Nonetheless, the Full Court considered that the three matters identified in the ACCC Notice, which included the transcripts of the Today Tonight programs and relevant extracts from material on the website, suggested that the hypothesis that the promoters paid money or provided other consideration to Channel 7, in return for promotion of the WWW Program, was by no means implausible.
In that regard, the Full Court considered that the language used by the compere and the reporter in both of the Today Tonight programs was capable of being understood as an endorsement of the WWW Program, and also an encouragement to pay the fee required ‘to learn how to be a property millionaire’. The Full Court pointed out however that Channel 7’s apparent willingness to endorse or recommend the WWW Program may or may not ultimately prove to have been the product of some commercial arrangement between it and the promoters, of the WWW Program. Nevertheless at the investigative stage, in the Full Court’s view, the hypothesis could not be described, to adopt the language of Fisher and French JJ in SA Brewing, as idle speculation or as drawing on improbable circumstances. The material available to the ACCC, in the Full Court’s view, was not only consistent with the hypothesis, but suggestive of it. To put the matter another way, the material in the Full Court’s view provided an adequate factual basis for a reasonable suspicion that the subject television programs and the material on the website constituted the publication of an advertisement for the WWW Program. This being so, the Full Court continued, it could reasonably be suspected that one of the exceptions to s 65A(1) of the TP Act applied adversely to the Today Tonight programs and the material on the website. Accordingly, the primary Judge was in the Full Court’s view correct to conclude that, notwithstanding the operation of s 65A(1) of the TP Act, the matters identified in the ACCC Notice ‘may constitute’ a contravention of s 52 of the TP Act.
It is appropriate to add to what I have already outlined of the following concurring observations of Tamberlin J in relation to the foregoing reasoning mainly of the joint judgment:
‘I agree that the representations are capable of coming within the exception of s 65A(1) of the TP Act because they could be construed as the publication of an advertisement. This is ultimately a matter for consideration by the court on all the material when and if the matter is commenced and heard. Material is sought for the purposes of investigation and not for determination. The latter is for the courts.
In addition, I consider that there is sufficient reasonable basis for the investigation into whether the Today Tonight items and/or the website constitute the publication of matter by Channel 7 in, or in connection with, the possible supply or provision of services. This is because the WWW Program items are structured as on ongoing process, indicating that future items to be broadcast on Today Tonight will follow up the progress of the investment program and the performance of the principles and the participants. The suggestion of follow-up could be seen as an incentive for persons to tune in and avail themselves of the broadcast services of Channel 7 to satisfy the curiosity or the appetite wetted by the presentations on Today Tonight. Accordingly, the ACCC would be entitled to investigate the relationship between the principals and Channel 7, with a view to determining whether the material is publication of matter in connection with the possible supply of services, and whether the publication was pursuant to a contract arrangement or understanding between the principals and Channel 7.’
The Full Court’s consideration of the implications as to the absence of any reference to s 65A(1) in the s 155 ACCC Notice
The Full Court unreservedly dismissed Channel 7’s submission made under this heading. In its most general form, so the Full Court pointed out, Channel 7’s submission that the Notice was invalid because it made no reference to s 65A(1) of the TP Act came perilously close to requiring the ACCC to plead a case of contravention of s 52 in the ACCC Notice itself. The Full Court pointed out that SA Brewing made it clear that a notice under s 155(1) was not required to plead all the facts necessary to establish a contravention of the TP Act. Indeed, the Full Court thought that it was ‘far from clear that if proceedings were instituted by the ACCC against Seven Network, the ACCC would be bound to plead in its statement of claim the material facts attracting one of the exceptions to s 65A(1)’, and further that it would seem to be a matter for Channel 7, if it was to seek in any such proceedings to rely on its status as a prescribed information provider, to plead facts in its defence in order to attract the protection afforded by s 65A(1). The ACCC would then presumably plead in its reply facts said to attract one or more of the exceptions to s 65A(1), although in practice, the ACCC might perhaps choose to anticipate Channel 7’s defence in that regard by pleading such facts in the statement of claim.
Be all that as it may, it was the Full Court’s view that s 155(1) of the TP Act did not require any notice issued pursuant thereto to incorporate reference to every factual issue that might be in dispute in any legal proceedings that ultimately might be brought in respect of the matters identified in any such notice. In its further view, any such notice must fulfil the requirements of s 155 of the TP Act, but those requirements do not include the need for adherence to the principles of pleading applicable to proceedings under the TP Act. Accordingly, the Full Court determined that Channel 7’s submission that the absence of any express reference to s 65A(1) invalidates the notice must be rejected.
The Full Court’s consideration of the factor as to whether the notice disclosed the basis for requiring the information
The Full Court next addressed Channel 7’s alternative submission that the ACCC Notice, by reason of the absence of any express reference to s 65A(1) of the TP Act, did not disclose the basis on which the ACCC is entitled to require Channel 7 to furnish the information specified in the Schedule thereto. There was apparently no dispute in the Full Court that the information sought in the ACCC Notice was stated with sufficient clarity, being information consisting simply of the names and addresses of the executive producer and compere of each of the Today Tonight programs, and of the same details as to the persons responsible for the content of the programs and of the website. Nor was there any dispute before the Full Court to the effect that the Chairperson could reasonably believe that Channel 7 was capable of providing the information sought in the ACCC Notice.
The issue raised before the Full Court in this context was whether the ACCC Notice disclosed the basis upon which the Chairperson could reasonably believe that the information sought constituted information ‘relating’ to the matters identified in the ACCC Notice. The Full Court observed that it has been long established that ‘[t]here is no expression more general or far-reaching’ than ‘relating to’ (Commissioners of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22, at 26, per Lord Macnaghten), although the effect of the phrase must be determined by the statutory context and purpose: Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211, at 224-225 [56], per Fitzgerald JA. In the present case, the Full Court observed that s 155(1) of the TP Act confers a power for the purpose of enabling the ACCC to perform its functions, and that equally it was necessary to bear in mind that the question of whether the ACCC Notice discloses the necessary relationship between the information and the matters was not to be approached in an over-technical or hypercritical way, referring thereby to Pyneboard at 376.
In the view of the Full Court, the names and addresses of the persons responsible for the content of the Today Tonight programs, including the website, would assist the ACCC in its investigation as to whether Channel 7 contravened s 52 of the TP Act. The ‘matters’ identified in the ACCC Notice included, in each case, the claim that Channel 7 as well as the promoters had no reasonable grounds for making the representations the subject of the programs. The Full Court explained that there was a factual basis for the statements contained in the ACCC Notice to the effect that Channel 7 made the representations, and also for the claim that the matters identified therein ‘may constitute’ contraventions by Channel 7 of s 52 of the TP Act. At the very least, in the Full Court’s view, the persons responsible for the content of the programs, once they were identified, could reasonably be expected to assist the ACCC in determining whether or not Channel 7 had reasonable grounds for making the representations. That line of inquiry was said by the Full Court to be squarely within the ACCC’s investigative functions.
The Full Court further considered that the executive producer and compere of the Today Tonight programs might reasonably be expected also to assist the determination of the ACCC as to whether there were reasonable grounds for making the representations. Both the executive producer and the compere, inferentially in the Full Court’s view, were involved in discussions concerning the form and content of the programs, and thus would be likely to have information as to what was (or was not) disclosed to Channel 7 concerning the WWW Program, being information which could reasonably be expected to be material to the ACCC’s investigation. In addition, the persons referred to in the Schedule to the ACCC Notice could reasonably be expected, in the Full Court’s view, to have information concerning the existence or otherwise of a commercial arrangement between Channel 7 and the promoters to publicise the WWW Program. Thus if the ACCC was able to pursue that line of investigation with relevant persons, it would be in a better position to ascertain whether the Today Tonight programs could be regarded, for example, as the publication of an advertisement within the meaning of s 65A(1)(b) of the TP Act, and thus be outside the protection of s 65A thereof.
The Full Court further considered that in determining whether a statutory notice sufficiently discloses the relationship between the information sought and the ‘matters’ identified in the notice, it is permissible to take account of the identity of the recipient and the knowledge available to that person. What may be required of a notice directed to an individual member of the public might be different from what must be included in a notice directed to a large commercial organisation whose officers can be expected to be familiar with the regulatory framework affecting their organisation. It could hardly come as a surprise to Channel 7, as the recipient of the ACCC Notice, so the Full Court next pointed out, that an element in any investigation by the ACCC of misleading or deceptive conduct encountered by Channel 7, in the course of its conduct of television programs, would be likely to involve an issue as to the possible applicability of s 65A(1) of the TP Act. In view of the content of the relevant Today Tonight programs, the transcripts of which were annexed to the ACCC Notice, it would come as no surprise to Channel 7, in the Full Court’s further view, that one line of inquiry the ACCC would be likely to pursue would involve a determination whether there had been a commercial arrangement between Channel 7 and the promoters, such as to attract the operation of s 65A(1)(b) or, possibly also, of s 65A(1)(a)(vi), of the TP Act. Each of the persons whose details were being sought from Channel 7 could be expected, additionally in the Full Court’s view, to provide the ACCC with information bearing on that question.
The Full Court concluded that the ACCC Notice sufficiently disclosed the relationship between the information sought and the identified ‘matters’, and that therefore that ground of challenge to the validity of the ACCC Notice should therefore be rejected.
The Full Court’s consideration of the use of s 155 to identify possible witnesses – the concluding issue on the appeal
Channel 7’s concluding submission to the Full Court was that it was not an appropriate use of s 155(1) of the TP Act to identify possible witnesses. It was contended that the ACCC Notice, in effect, sought to pursue that course, since the same merely required Channel 7 to provide the names and the addresses of certain persons involved in the production of the Today Tonight programs, and also the preparation of the material on the Channel 7 website.
Because that concluding submission was based on the reasons for judgment of Bowen CJ in Riley McKay, it was important, in the Full Court’s view, to consider the circumstances of that case. The former Trade Practices Commission had issued a notice, purportedly pursuant to s 155 of the TP Act, requiring a company to answer 61 numbered questions, many of which also comprised sub-questions. The company had a mail order business and had published advertisements for several of its products. The company challenged question 40(c) in that notice which asked, in relation to a particular advertised product:
‘whether the company has received any communication from a person to whom the company supplied it in which the person expressed an attitude as to its standard, quality, performance, uses, benefits or suitability for any purpose’.
The Chief Judge observed (at 568) that if the question had been confined to communications received by the company before publication of the first of two advertisements under challenge, or in the time, or between the date of the first and second advertisements, the information sought might have been relevant to a possible defence under s 85(1) of the TP Act (which allows a defence of reasonable mistake in certain circumstances). But in his Honour’s view, insofar as the question went further, it did not have ‘sufficient relevance’ to the matters identified in the notice. It was possible that details of communications received by the company, after it had published all the advertisements, might have led the Commission to speak to particular individuals ‘who might [have been] possible witnesses as to the quality of the goods’. Bowen CJ did not think that seeking information of that kind was an appropriate use of s 155(1) of the TP Act.
In the view of the Full Court, the circumstances of the present case were different from Riley McKay, because the information sought in the present case concerned the names and addresses of particular persons who played specified roles in preparing and publishing the contents of the subject Today Tonight programs and the Channel 7 website. For reasons which I have recorded as already given by the Full Court, the Chairperson of the ACCC could reasonably have believed that obtaining the information sought by the ACCC Notice was an important first step in investigating whether the matters identified in the ACCC Notice might have contravened the TP Act. Moreover in Riley McKay, Bowen CJ had further considered that the only relevance of the information sought was that it might lead to possible witnesses who could give evidence as to the quality of the goods, whereas in the present circumstances, it was reasonable to expect that, once the ACCC had information as to the names and addresses of the persons who prepared and published the relevant material, it could obtain from them information bearing directly on the question as to whether the matters identified in the ACCC Notice constituted a contravention of the TP Act.
The Full Court next observed that the language of s 155(1) of the TP Act is wide enough to authorise the ACCC to seek the names and addresses of persons who have played a particular part in preparing or publishing material that is purportedly alleged, on reasonable grounds, to be misleading and deceptive, and is therefore in contravention of s 52 of the TP Act. If the ACCC had reason to believe that identifying such persons would enable it to investigate whether the particular matters in the ACCC Notice constituted contraventions of the TP Act, their names and addresses were in the Full Court’s view capable of being regarded as ‘information … relating to a matter that … may constitute … a contravention of [the TP Act]’.
The circumstances postulated by the ACCC were considered by the Full Court to have some analogies of relevance to those addressed by the High Court in McGuinness v Attorney-General of Victoria (1940) 63 CLR 73. In that case, a Royal Commissioner had been appointed to inquire into allegations of bribery of members of the Victorian Parliament. The editor of the Truth newspaper had published articles suggesting that certain persons were collecting funds for the purpose of bribing members of the Parliament. The Royal Commissioner had insisted that the editor answer questions which would have required him to divulge his sources for the information appearing in the articles. That line of questioning was upheld as ‘material to the subject matter of inquiry’. Latham CJ (at 86) pointed out that the Commissioner was conducting an inquisition, as distinct from determining an issue between parties, and continued:
‘[i]n the course of such an inquiry it would or at least might be a valuable step forward if the identity of the persons giving information to the editor of the newspaper could be discovered so that they could be summoned for the purpose of giving evidence on oath as to their knowledge, or as to the source of their information if they had no direct personal knowledge of the matters in question’.
Similarly, Dixon J observed (at 105) that the ‘tracing of informants and the discovery of sources of knowledge fell … within the scope of the inquiry’.
In the view of the Full Court therefore, the information sought by the ACCC could be seen to relate to the matters identified in the ACCC Notice, and it was not necessary to decide whether a notice that merely sought the names and addresses of possible witnesses would fall outside the scope of s 155(1) of the TP Act. Even if that was the case, the information sought in the present case went beyond merely seeking to identify the names and addresses of potential witnesses.
In the result therefore, the Full Court dismissed Channel 7’s appeal.
The present application for permanent declaratory and prerogative relief
Channel 7 and its two officers Mr Gipps and Ms Cunningham (all being of course the present applicants) presently seek declaratory and prerogative relief of a permanent nature, in summary as follows:
(i)declarations as to the invalidity of the subject notices of 30 July 2004 (ie the ACCC Notices) issued by ACCC relating to each of those three applicants;
(ii)declarations as to the absence of any lawful requirement of the applicants to furnish information, and to produce documents, to the ACCC, and to appear before the ACCC to give oral evidence;
(iii)an order by way of certiorari against the ACCC in relation to the issue of those Notices by the ACCC;
(iv)a further order by way of prohibition of the ACCC from enforcing those Notices issued by the ACCC; and
(v)a further order restraining the ACCC from enforcing or otherwise requiring compliance with those Notices.
In the meantime, Channel 7 further seeks interlocutory relief as follows:
(i)by way of mandamus directing the ACCC to extend the time for compliance until 21 days after the determination of the special leave to appeal application to the High Court, and if special leave be granted, until the determination by the High Court of the appeal, or alternatively until the determination of the claim for final relief in the present proceedings, whichever occurs later; and
(ii)by way of prohibition and injunctions against enforcement of, or otherwise requiring compliance with the subject notices, and alternatively orders for extension of time for compliance therewith.
Channel 7 and its said two officers presently further seek, by amended notice of motion filed on 15 November 2004, the following further orders:
(i) An order in the nature of mandamus directing the ACCC to extend the time for:
(a)Channel 7 to furnish to the ACCC the information specified in Schedule 1 to the First Notice (as defined in the Application dated 12 August 2004);
(b)Channel 7 to produce to the ACCC the documents specified in Schedule 2 of the First Notice;
(c)the Second Applicant (Mr Gipps) to appear before the ACCC to give oral evidence pursuant to the Second Notice (as defined in the amended application dated 12 August 2004); and
(d)the Third Applicant (Ms Cunningham) to appear before the ACCC to give oral evidence pursuant to the Third Notice (as defined in the Application dated 12 August 2004),
until 21 days after either the determination of the application for special leave to appeal to the High Court of Australia in proceedings No S435 of 2004 and, if leave be granted, until the determination of the appeal, or alternatively the determination of the claim for final relief in these proceedings, whichever occurs later; and
(ii)An order until 21 days after the determination of the application for special leave to appeal to the High Court of Australia in proceedings S435 of 2004 or, if leave be granted, the determination of the appeal, or alternatively until the determination of these proceedings or further order:
(a)in the nature of a writ of prohibition prohibiting the ACCC from enforcing or otherwise requiring compliance with the notices;
(b)restraining the ACCC by itself its servants or agents from enforcing or otherwise requiring compliance with the Notices; and
(c)requiring the ACCC to extend the time for compliance with the Notices to such time as to this Honourable Court seems fit.
I have set out the full text of Channel 7’s somewhat unusual application. The number of applications for special leave to appeal from the decisions of full courts of the Federal Court and of courts of appeal of the Supreme Courts of the States has been expanding of course in recent times, and therefore necessarily tending to protract the final outcome of litigation. Channel 7 has raised a number of contentions in support of its present application, some of a complex nature, which are perhaps better understood in the context of the detailed reasoning of the Full Court. Hence the extent of my attempted summary above of that reasoning in some considerable detail.
The contentions of the applicants in support of the relief presently sought and my responses thereto
Channel 7 framed its contentions, in support of the declaratory and prerogative relief presently sought by it, in broad summary as follows:
(i)the issue of the ACCC Notices, and the ACCC’s refusal to permit an extension of time to answer the same, at least pending resolution of Channel 7’s application for special leave to appeal from the decision of the Full Court, represented ‘an interference with this Court’s processes and an interference in the administration of justice’; and
(ii)the issue of the ACCC Notices in all the circumstances, and the refusal to grant that extension of time, constituted an unconscionable exercise of the legal right to issue the ACCC Notices;
The relief sought by Channel 7 was framed on the conventional basis for interlocutory injunctive relief to the effect that the case in favour of the grant of special leave to appeal ‘raises serious issues to be tried’.
Consequently Channel 7 submitted that the substantive proceedings originally instituted by the ACCC, and yet to be heard and resolved at first instance in this Court, should await the determination of its application to the High Court for special leave to appeal the Full Court’s decision. That was said to be because, first, the outcome of the arguments to be determined in that pending application for special leave would equally affect the substantive proceedings pending in this Court at first instance pursuant to the original application of the ACCC. Secondly, the determination of those substantive proceedings for declaratory and prerogative relief being sought at first instance by the ACCC, if the same are now to proceed notwithstanding the pending special leave application, were said to conceivably render nugatory Channel 7’s pending application to the High Court for special leave to appeal, and therefore Channel 7’s prospects of an ultimately successful appeal. Moreover Channel 7 foreshadowed that in the event of the pending special leave application to the High Court being granted, the appellate proceedings which would follow would provide a compelling basis for further stay of the ACCC’s processes now sought to be pursued against Channel 7 in the pending trial at first instance. Channel 7 advanced a number of arguments and propositions in support of those submissions, which I will now summarise and address.
Channel 7 first pointed to the Federal Court’s inherent power as a superior court of record to ensure that the High Court’s authority is maintained, and so that the High Court ‘… may have the opportunity of considering that application before it becomes inutile by reason that the time for compliance with the ACCC Notices will have expired’.
I have difficulty in distilling support for submissions so widely framed on behalf of Channel 7 in the circumstances of the present litigation. The merits or otherwise of its complaints have been addressed comprehensively by four members of this Court, initially at first instance and thereafter on appeal, and rejected unanimously by comprehensive reasoning. An application for leave to appeal is of course significantly different in character and function to an appeal. So much appears for instance from the following observations of McHugh J in SDN Children’s Services Inc v Hughes (unreported 14 May 2002):
‘First, an application for special leave is an application for permission to commence proceedings in the Court. For that reason, there are no parties in the proper sense of the word to an application for special leave to appeal. Nor is there any matter in the Court until lease is granted.
Second, there is no right to special leave. Moreover, the judgment that is the subject of the application is not a provisional judgment, having no effect or efficacy until its validity is confirmed by this Court. The judgment of the court below represents the rights and liabilities of the parties and, when entered, it can be immediately enforced unless this Court sets it aside or there is an order of this Court or the lower court staying the judgment.
Thirdly, no special leave application can or ought to be brought unless it involves some matter of public importance or a miscarriage of justice. There is no miscarriage of justice in the relevant sense merely because it appears that the decision below was wrongly decided. If error alone constituted a miscarriage of justice, every arguably wrong decision would be a candidate for special leave to appeal.’
On present indications, Channel 7’s application for leave to appeal against the Full Court’s decision is not likely to be heard at least until about September 2005, unless an order for expedition is made in the meantime. The issues involved in the present litigation relate to important aspects of the public interest, the ACCC advancing allegations for instance as to a televised program said to involve members of the public being misled, or being likely to be misled, as to engagement in dubious or exaggerated investment enterprises. It may conceivably transpire that Channel 7’s ultimate intention is found in fact to discourage, by satire or otherwise, investment by its viewers in the kind of projects the subject of the WWW Program, but any such objective is not yet apparent from the material tendered thus far into evidence. It is difficult to distil in the meantime in favour of Channel 7 any sufficiently viable basis to deny to the ACCC an early return to the processes of enquiry and investigation which it set in train back on 24 March 2004. The ACCC acknowledged to the Court that it initially indicated to Channel 7 a willingness to agree to a process of moratorium, subsequent to the Full Court’s decision in the proceedings and pending the outcome of the special leave application, but the ACCC has asserted a change of mind on its part, apparently at a time following its perusal of the material submitted by Channel 7 in support of the present application.
It was next submitted by Channel 7 that injunctive relief may be available in its favour under s 75(v) of the Constitution ‘on wider grounds than those that result from relief by way of prohibition and mandamus’, and reliance was placed in that regard upon the decision of Brennan J, sitting as a single justice of the High Court in Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681. In that case, a building contractor had completed, or was in the course of completing, the construction of a large complex under a building contract with building owner. At first instance, a building contractor obtained a stay of proceedings until the hearing of its appeals to the Northern Territory Court of Appeal, but those appeals were subsequently dismissed. However a stay was granted by that Court of Appeal, pending the outcome of a further stay application intended to be made by that building contractor to a single justice of the High Court, pending the determination of applications for a special leave to appeal to the High Court from the disputed judgments of the Court of Appeal.
In that context, Brennan J as the single presiding judge of the High Court referred (at 682-683) to judicial precedent set in two earlier High Court cases, each having a criminal context, in which stays had been granted, and further to the observation generally of Mason J in re Marks and Federated Ironworkers’ Association (1981) 34 ALR 208 at 211, as follows:
‘It has been accepted that the court has inherent jurisdiction to grant a stay of proceedings to preserve the subject-matter of litigation, though it is a jurisdiction which is seldom used and rarely exercised… There is no reason for thinking that in an appropriate case the court cannot exercise the jurisdiction so as to preserve the subject-matter of the litigation when the litigation is an application for a writ of prohibition.’
Brennan J thereafter observed in Jennings Constructions at 683:
‘The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject-matter of the litigation. If an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises… An application for special leave to appeal is not, in my opinion, an appeal within the definition of that term in s 2 of the Judiciary Act. The present application for a further stay of [the first instance] orders is made to preserve the statutory liens upon which the applicant relies as security for the money it alleges it is owed under its contract… The amount claimed is $27 million. The respondent contests this liability but the contest has not been resolved either by litigation or arbitration. The contest cannot, of course, be determined in these proceedings…’
In the present context, it would not be substantially correct for Channel 7 to postulate that ‘the contest has not been resolved…’, to borrow his Honour’s dictum, all four judges of this Court engaged thus far in this litigation have rejected the viability of Channel 7’s case, and no right of appeal per se presently remains open to be exercised. Thereafter at 684, his Honour further observed:
‘A stay to preserve the subject-matter of litigation pending an application for leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave.’
His Honour referred in that context to the decision of the High Court in Marconi’s Wireless Telegraph Co Ltd v The Commonwealth (No 3) (1913) 16 CLR 384, where an order staying the operation of one of its own orders was granted by the High Court, pending the hearing of an application to the Privy Council for special leave to appeal. The High Court there emphasised the requirement for that application, if it was to be successful, of ‘… very strong and special grounds…’. Hence in granting the stay in Jennings, Brennan J observed at 685, that ‘I do not, however, think that the prospect of a grant of special leave is insubstantial’. I do not think that the same could so encouragingly be said of Channel 7’s prospects of obtaining such relief.
My attention was next drawn by Channel 7 to Paringa Mining and Exploration Co Plc (1988) 165 CLR 452, where the circumstances involved the complexity first, of a refusal by a judge of the Supreme Court of South Australia at first instance to grant an injunction restraining the implementation of a takeover offer pending trial, secondly the grant by another judge of that Court of an interim injunction pending an appeal to the Full Court, and thirdly, the later dissolution of that injunction by the first mentioned judge. In the joint judgment of Mason CJ, Brennan and Gaudron JJ at 459, the following appears:
‘Moreover, as Legoe J did not advance any explanation for his conclusion that Paringa had failed to show that there was a serious issue to be tried, it was a case in which Paringa was fully entitled to exercise its right of appeal to the Full Court.
The Full Court… was unable, because of pressure of business, to hear the appeal. In that situation, it was encumbent on the Court – that is, the Supreme Court – properly to consider Paringa’s application to grant an injunction pending the determination of the appeal.’
The High Court in Paringa proceeded to point out, incidentally, that it was not satisfactory to leave to the judge, whose order is under review, the exercise of the appellate jurisdiction to grant or refuse an injunction pending the appeal, ‘… especially when a refusal is said practically to preclude the granting of the substantive relief claimed in the action’. In any event in the present case, by way of contrast to Paringa, Channel 7’s case in the present proceedings, directed as it is to negating ACCC’s claims to sanctions for misleading and deceptive conduct arising out of the content of a television programme, have been finally resolved in the procedural sense, both at first instance, and subsequently unanimously on appeal by a Full Federal Court.
Channel 7 referred next to the Court’s inherent or implied power to prevent its own processes being used to bring about injustice, and to the counterpart of that power ‘… to protect the integrity of those processes once set in motion’ (CSR Ltd v Cigna Insurance Australia Ltd (1997) 195 CLR 1 at 345). It was submitted by Channel 7 in that regard that it would lose the benefit of invocation of the Court’s jurisdiction quia timet if no introductory order was to be made, and further that the Court is empowered, and in the present circumstances obliged, to restrain by injunction what would amount to an interference with the course of administration of justice. I would not think that assertion as to interference with the course of justice to be have readily accommodated. Indeed from another perspective, the ACCC might seek to invoke a similar principle in relation to Channel’s 7’s present restraint application. I was referred in that context to well known authorities relating to the issue of injunctions in the public law domain, such as the well known decision of the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 (see in particular 239-245 (Gummow and Hayne JJ)), and earlier the Full Federal Court decision in Australian Builders Construction Employees And Builders’ Labourers Federation v Commonwealth of Australia and Others (1981) 37 ALR 470 (Bowen CJ, Evatt and Deane JJ). What was sought to be restrained respectively in those cases was the broadcasting of video tapes of abattoir operations obtained in the course of trespass, and the continuation of Royal Commission hearings. Issues were said by Channel 7 to be inherently involved, in both of those authorities, as to interference with the course of administration of justice. I was further referred by Channel 7 to dicta in re Wakim ex parte McNally (1999) 198 CLR 511 at 592-593, as to exercise of the Court’s power to quash by certiorari orders for examination on oath of officers of companies, where such examinations would take place by what was established to be an unlawful order of the Federal Court, that is, an order without jurisdiction.
Those last authorities are not to my mind sufficiently in point to the present circumstances of a pending application for special leave to appeal from a Full Court decision, where what is in issue is the entitlement of the ACCC to continue without further delay with the conduct of an enquiry, and for that purpose to examine witnesses, each in relation to suspected contraventions of the TP Act, and to do so in the circumstances where the intended exercise of authority has already been vouchsafed unanimously by four judges of the Federal Court. Authorities cited by Channel 7, to the effect that where a party is ‘exercising a valid right of appeal, this Court ought to see that the appeal, if successful, would not be nugatory’, such as Bereove v Hermes and Others (1983-84) 51 ALR 105 (at 107 per Toohey J) do not provide in my opinion the assistance to an applicant for special leave to appeal which Channel 7 needs in circumstances such as the present.
Nevertheless Channel 7 again drew the Court’s attention, with considerable emphasis, to the ACCC’s initial indication to Channel 7 that it would not press for compliance with the ACCC Notices until the outcome of an application for special leave to appeal to the High Court would be known, and to the ACCC’s change of course in that regard. Channel 7 asserted that the ACCC’s conduct in resiling from that previously indicated stance, constituted conduct ‘contrary to the standard for fair play which ought to govern its conduct’. That particular stance taken by Channel 7 does not seem to me to comprise an issue in relation to which the Court is required to express any view. There is no evidence, one way or the other, as to the reason for the ACCC’s change in position. In any event the objective facts are that the likely hearing of the special leave application, and it cannot be irrelevant to point out that the likely hearing of the special leave application will not take place at least until September 2005, unless of course expedited. I would not characterise that apparent change of mind as constituting per se irreversible prejudice of the character addressed for instance by French J in Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 (French J).
I would therefore conclude that I am unable to accept Channel 7’s proposition that the balance of convenience favours the grant of the relief Channel 7 presently seeks. In the case of a public authority charged with the public duty of enforcing compliance with legislation designed to protect consumers, the comparisons proffered by Channel 7 as to litigation conducted between corporations or individuals as adversaries, albeit based upon alleged contraventions of legislation giving rise additionally to private causes of action, are not here sufficiently apposite.
Channel 7 advanced the concluding submission that the ACCC Notices ‘are calculated to reveal [Channel 7’s] sources of information’, and therefore raise a real issue as to the extent of the power conferred by s 155 of the TP Act, and as to matters going to the validity of its exercise, in the light of the Court’s discretion not to require journalists and media organisations to disclose their sources unless it is necessary in the interests of justice to do so. Channel 7 cited in that regard the unanimous decision of the High Court in John Fairfax & Sons Ltd v Cojuangeo (1988) 165 CLR 346 at 354, where the following appears:
‘… It is a fundamental principle of our law, repeatedly affirmed by Australian and English courts, that the media and journalists have no public interest immunity from being required to disclose their sources of information when such disclosure is necessary in the interests of justice… The point is that there is a paramount interest in the administration of justice which requires that cases be tried by courts on the relevant and admissible evidence. This paramount public interest yields only to a superior public interest, such as the public interest in the national security. The role of the media in collecting and disseminating information to the public does not give rise to a public interest which can be allowed to prevail over the public interest of a litigant in securing a trial of his action on the basis of the relevant and admissible evidence. No doubt the free flow of information is a vital ingredient in the investigative journalism which is such an important feature of our society. Information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information. It stands to reason that the free flow of information would be reinforced, to some extent at least, if the courts were to confer absolute protection on that confidentiality. But this would set such a high value on a free press and on freedom of information as to leave the individual without an effective remedy in respect of defamatory imputations published in the media.
That is why the courts have refused to accord absolute protection on the confidentiality of the journalist’s sources of information, whilst at the same time imposing some restraints on the entitlement of a litigant to compel disclosure of the identity of the source. In effect, the courts have acted according to the principle that disclosure of the source will not be required unless it is necessary in the interests of justice…’
There is no record that I can identify of that last issue being raised in the proceedings now the subject of the pending special leave application. Nor has it been articulated by Channel 7 in what way and to what extent the principle, such as was enunciated in Cojuangeo, would bear relevantly (much less decisively) upon the present circumstances attending Channel 7’s pending special leave application. Channel 7 further submitted generally that ‘[a]ny information provided in answer to the Notices could not be recovered’. I do not think that such submission can be entertained, as presently framed in such unspecific terms. Channel 7 submitted in any event, also unspecifically, that ‘the effect of the Notices is to override fundamental common law rights, including that in respect of the privilege against self-incrimination’. I would repeat the response I have just made to the immediately preceding submission.
Conclusion
It follows from my responses to each of Channel 7’s submissions that the application of Channel 7 to enjoin ACCC’s continuation of the processes of the s 155(1) enquiry, pending the outcome of Channel 7’s application for special leave to appeal to the High Court, must be dismissed. Having failed to gain the support of any of the four justices of this Court who have presided over Channel 7’s applications relevantly for injunctive relief, I am not persuaded that the ACCC enquiry should be rendered susceptible to protracted delay by reason of the pending hearing of Channel 7’s submission of its case to the High Court for special leave to appeal.
Channel 7 must pay ACCC’s costs of the present application.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 17 December 2004
Counsel for the Applicant: SD Rares SC with JR Clarke Solicitor for the Applicant: Freehills Counsel for the Respondent: NJ Williams SC Solicitor for the Respondent: Slater & Gordon Date of Hearing: 15 November 2004 Date of Judgment: 17 December 2004
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