Shell Company of Australia Limited v Chenoa Pty Ltd

[1988] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M47 of 1988

Between-

THE SHELL COMPANY OF AUSTRALIA

LIMITED

Applicant

and

CHENOA PTY LTD

Respondent

Application for special

leave to appeal

MASON CJ

BRENNAN J

Chenoa

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 OCTOBER 1988, AT 11.00 AM

Copyright in the High Court of Australia

MlT6/l/HS 1 14/10/88

MR B.J. SHAW, QC:  If the Court pleases, I appear with my

learned friend, MR J.E. MIDDLETON, for the applicant.

(instructed by Arthur Robinson & Hedderwicks)

MR R.W.R. PARKER, QC:  If the Court pleases, I appear with

my learned frined, MR P.H. BLACKBURN-HART, for

_-:- the respondent to the application.

(instructed by Stojanovic & David)

MASON CJ:	Yes, Mr Shaw.
MR SHAW:	I think the Court has been handed already copies of the legislation, and so on.
MASON CJ:	Yes, there is a large amount of legislation that

we have been handed. This case seems to be in a

somewhat similar situation. The question is, do you

have a sufficiently arguable point here.

MR SHAW:  Yes.

It is submitted that is - yes, Your Honour I accept that. If the Court pleases, this matter arose

in a loose way - it conducted a service station

in this way, the respondent had an agreement with the speak

on premises in Footscray Road and the Shell Company

gave notice to Chenoa trying to tip them out of

possession, and the respondent said, "You can't do

that because you are prevented from doing it under

the provisions of the PETROLEUM RETAIL MARKETING

FRANCHISE ACT. because we are the franchisee and

we are protected by reason of the provisions of that

Act", and we said, "Yes, we can, because the provisions of that Act don't apply to your premises by reason of the provisions of section 6(1D) of the Act', and that

matter went to trial.

MASON CJ:  Mr Shaw, I think we follow, generally speaking, the

labyrinthine path that the legislature follows in this

case, so could you direct your attention to the

specific ground on which you lost in the Full Court,

a point that seems to have been somewhat submerged

at first instance.

MR SHAW:  Yes, Your Honour, but I did desire to make the

point that it was a submerged rock on which we sank.

MASON CJ:	I think we appreciate that.
MR SHAW:	And not one that seemed to be the killer point

which the Full Court thought that it was. So this

killer point suddenly reared up out of the water and,

to change the metaphor, bit us. In our submission;

although this point did emerge in the Full Court after

some, what I might call - I hope not disrespectfully -

fossicking around, it is in fact not a killer point

nor even a good point, and may we explain why not by

going first of all to the notice and the letter which

were re 1 ied on. They are at pages 24 and 28 of the

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Chenoa

appeal book. At page 24 there is a letter which went

in with the notice under section 11 of the SITES ACT

saying,in the third line:

we submit herewith statements containing

details of retail sites operated by member

companies of the Shell Group in Australia

on the day immediately preceding

19th September.

Then going over to page 28 there is the relevant part

of the form which went in. The relevant premises are

the fourth last and in the first column appears "Name
of Corp. - Shell", "Particulars of site - Footscray

Transport Terminal, Footscray", and so on, and so on.

MASON CJ:  "Name of Corp." there must mean one of the members

of the Shell Group of companies?

MR SHAW:  Yes, Your Honour, that is what the letter says, yes.

That form was lodged for purposes which originally

had nothing to do at all with section 6(1D), because section 6(1D) was introduced into the Act after the

form was lodged. It was lodged for the purposes of

section 11 of the PETROLEUM RETAIL MARKETING SITES

ACT. Now, that section is really to help monitor the

provisions of section 10 of that Act which provide

that the prescribed corporation is not to operate

a retail site and then,in subsection (21 there are

provisions which say you can operate a retail site,

so long as you are not operating more than the numbers

which are fixed in decreasing numbers over a couple

of years. Then section 11 says, "A prescribed oil

corporation specified in the schedule shall, within
30 days after commencement of the Act, lodge with

an authorized officer where that corporation or member

or members of a group of prescribed corporations of

which that corporation is a member operate at a retail

site, or retail sites, on the day immediately

preceding the commencing day, a statement in

accordance with the appropriate form specifying,

in respect of the operation on that day of each

retail site by that corporation, or by a member of

that group of corporations, in this paragraph

referred to as the relevant corporation, the following

matters'; and then they are set out and the first of

them is:

(a)the name of the relevant corporation

corporation .....

(b)particulars of the situation of the site -

and so on. Now, what was said by the Full Court

about the notice which was lodged under section 11 appears at the bottom of page 54 and the following pages of the application book. If I might read the paragraph which commences at the bottom of page 54,

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because its terms are, it is submitted, of very

substantial assistance in demonstrating that what the

Full Court has done is impose on the plain words of

section 6(1D) a non-existent requirement additional

to the requirements which in fact are there and what

they say about the return when they are looking at

section 11 demonstrates, in our submission, that the

return does satisfy section 6(1D) provided one

does not add the additional requirement that I have

referred to and will be more specific about in a

moment. It is said at page 54, line 29:

The return submitted by Mr Duke had a

column headed "Name of Corp". This was

evidently inserted in an attempt to comply

with s.ll(l)(a)(i) of the SITES ACT, whereby

it was required that the return specify
"the name of the relevant corporation".

However, in the case of the subject site -

as in the case of many, but not all, of the

other sites in the list - the word inserted

under this column was simply "Shell".

Nowhere in the return itself was there any

identification of the particular Shell

corporation to which reference was being

made, nor did the letter resolve that

matter.

Now, that sentence shows, if it be accurate, that the return referred to a particular Shell corporation but

did not identify it. So the return refers

to a particular Shell corporation but does not

identify it. Then the paragraph goes on:

All that the letter conveyed, as indicated above, was that the return was intended

to cover all retail outlets "operated by

member companies of the Shell group in

Australia". Consistently with this

statement, the Footscray Terminal could

have been operated by any member of the

Shell group; and there was nothing stated

elsewhere in the communication to assist

a reader in determining which was the

relevant corporation. No particular

corporation was identified at all. In

our opinion it cannot be said that a

return in this form complied with the

command of s.ll(l)(a)(i) to specify

"the name of the relevant corporation".

Then they go on considering that matter and then they

turn to consider the provisions of section 6(1D).

Now, if I might come to that section, that

provides - - -

BRENNAN J:  Do you quarrel with that construction of

section ll(l)(a)(i)?

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MR SHAW:	Your Honour, for the moment I do not.	We would say

this, Your Honour, that to say "Shell" may not be to

give a complete identification of a particular Shell

company but if anybody were to ask me my name and

I said that I was one of the Shaws, in our

submission, I would not be being inaccurate and I

would not be not saying my name, although I would not

be saying my full name.

BRENNAN J:  And the relevant question is whether that is the

name of the relevant corporation?

MR SHAW:	For section 11 it is, yes.
MASON CJ:	And you are required to specify the name of the

relevant corporation, the word "relevant" being used
in a context in which the reference is to a
particular corporation and, in effect, other

corporations in the group?

MR SHAW:  Yes, Your Honour. What you are asked to do:

a statement specifying the following matters,

including the name, and what it does is say that this

is a member of the Shell group, and that return,

I may say, was accepted by the department as sufficient
And who or which of the Shell companies was the

Shell company which was involved was not a matter

about which the respondent here was ever in any

doubt, because it had an agreement with the

applicant. So, so far as it was concerned and,

indeed, so far as the department was concerned, they

knew who it was although it may be that strictly

the terms of the notice were insufficient.

Section 6(1D) provides that:

Where -

(a) premises were, in a statement lodged under section 11 of the PETROLEUM RETAIL

MARKETING SITES ACT 1980 at any time before

retail site operated by a particular

1 September 1984, specified as being a

corporation; and

(b) the premises have been operated as a

retail site by the corporation or a related

corporation on a day or days occurring

during each of the following months,

namely, September, October, November,
and December in the year 1984, then in

relation to any franchise agreement
(whether entered into before, on or after
1 January 1985) in relation to which the
premises are marketing premises, this Act

does not apply at any time before the end

of the first month during which neither the

corporation nor a related corporation
operates the premises as a retail site.

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The first thing we would say about that is that

subsection (b) has got nothing to do with the
register, it has to do with fact, and the length
of operation also depends on the fact. So that simply
going to the register could never ever tell you

whether or not section 6(1D) applied. Secondly, we

would say this, what is required in subsection (a)

is that "premises"be specified as being 'a retail site

operated by a particular corporation". What has

to be specified is 'premises". and they have to be

specified as being'a retail site operated by a

particular corporation".

There is, in our submission, no doubt at all

that these premises were specified. The Court has

seen that and it is submitted that the whole purpose of

lodging a section 11 notice is to say that a retail

site which is specified is being operated by a

particular corporation and, in our submission, the

notice itself indicates that what is being said is,

"Here are premises which we specify", and they are

specified, and, "We are saying that they are a retail

site, and we are saying that that retail site is a

retail site operated by a particular corporation",

and that, indeed, is precisely what the Full Court
says this notice did because at the top of page 55

in the application book, line 5 and the following

lines, it is said:

Nowhere in the return itself was there

any identification of the particular

Shell corporation to which reference

was being made, nor did the letter

resolve that matter.

So in terms this judgment says that this notice did

specify a site and it did specify it as being a retail

site operated by a particular corporation, although

it did not precisely identify it. Now, the section

does not say there must be precise identification

and, indeed, why should it, because what one is concerned

about is the operation of a retail site by prescribed

corporations or by members of a group of prescribed

corporations. The terms of the section are, it

is submitted, both on an analysis of the notice and

on the terms of this judgment itself sufficient to

s a t i s f y th E; terms . o f s e ct i on 6 ( 1 D) . At page 5 7

the court, 1n the middle of the pag~, says, "Well, there is

an argument that so far as section 6(1D) is

concerned it does not matter whether or not the notice itself did comply or did not comply with section 11, so long as it was lodged under it." That

is the second complete paragraph, and at the bottom

of the page it says:

Without finding it necessary finally to

determine the point, we see considerable

force in this submission. However, the

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problem - for the respondent - goes beyond

the question whether its return, as lodged,

adequately specified "the name of the

relevant corporation". It is a condition

precedent to the application of s.6(1D) to

a particular franchise agreement that such

agreement concerns premises which were, in

a statement lodged under s.11 before

1 September 1984, "specified as being a

retail site operated by a particular

corporation". It is difficult to think of

words more apt to convey the insistence of

the legislature that the relevant statement

shall have precisely identified a single

corporation. The Shorter Oxford English

Dictionary 8ives, as one meaning of the word "particular , the words "relating to a single

definite thing or person ... as distinguished

from others". We think that it is in this

sense that the word is used in the present

context, to refer to a single corporation

as distinguished from others.

What the court is there doing, in our submission, is

to read section 6(1D) as if it said, "Specified as

being a retail site operated by a named corporation".

Now, that is not what it says and, in our submission,

what has been engrafted on to the provisions of

section 6(1D) is a requirement which is simply not 1n

the section and which the terms of this judgment
demonstrate to be an unnecessary and, we would
submit, improper gloss on the words which actually

appear because the judgment itself shows that the

words which actually appear:and taking them as they

do appear -are satisfied in this case.

BRENNAN J:  What do you say the word "particular" adds

to the meaning of section 6(1D)(a)?

MR SHAW:  Your Honour, in our submission, what is being

looked at is the general effect of section 11.

Your Honour will see that the section says:	Where -
(a) premises were, in a statement lodged
under section 11 ..... specified as being a
retail site operated by a particular
corporation -

but when one looks at section 11 what one finds is

that what that section says is that a prescribed

corporation is to lodge a statement in accordance with

the appropriate form specifying:

(a) the name of the relevant

corporation .....

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(b) particulars of the situation of the

site;

(c) whether the relevant corporation owned

or was a lessee or licensee in respect of -

that site -

(d) whether motor fuel -

for road vehicles was sold at that site -

(i) by or on behalf of the relevant

corporation; or

(ii) by a person under an agreement -

referred to paragraph 7(l)(b)(ii), and -

(e) whether ..... the site was a diesel fuel

site -

and so on. So that the notice itself which is

required by section 11 does not say and is not

required to say, "This particular site is orierated

as a retail site by such and such a company'.

That is simply what flows from the fact that it is

and that a notice is lodged.

BRENNAN J:  Could I ask you again, what does the word

"particular" add to section 6(1D)(a) which would

not be there if the word were omitted?

MR SHAW:  Your Honour, in our submission. what section 6(1D)

in the use of those words is doing is simply

describing in a general way what the effect of

lodging a notice under section 11 is, and it is

true that one might perhaps have left out the word

without producing any difference in meaning but,

in our submission, it is not appropriate to reg~rd the

word as if it were the word "named" and aJ.l that is sought to be

done by the use of those words is to describe

the effect of a not ice lodged under sect ion 11.

BRENNAN J:  What then is "the corporation" which is

referred to in paragraph (b) and in the concludin*

words of section 6(1D)? What is "the corporation'?

MR SHAW:	That corporation, Your Honour.
BRENNAN J:	Which ~orporation?
MR SHAW:	The particular corporation.
BRENNAN J:	Which is that?
MR SHAW:	It is the corporation in respect of which premises

are specified as being a retail site operated by it

and, in our submission, it is not necessary to regard

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the return as providing an answer to every

question which may be asked under section 6(1D)

which is what the court below said was necessary,

and, in our submission, the provisions of section 6(1DXb)

demonstrate that that is so. If I might take the Court

to that folder behind tab 6, that is the

explanatory memorandum of the amending Act 1n

1984 and, at page 3, it says:

Application of Act - Clause 4 amends

section 6 of the principal Act by -

then it says various things -

omitting subsections (1) and (2) and

substituting new subsections which -

and going over to page 4, in the middle of the page:

prevent this Act from applying

concurrently with the PETROLEUM RETAIL

MARKETING SITES ACT to the same marketing

premises as follows, with regard to

marketing premises operated by prescribed

corporations prior to 1 September 1984.

~he FRANCHISE ACT will not apply where the

premises have been specified as being retail

sites operated by those corporations in

returns lodged pursuant to PETROLEUM RETAIL

MARKETING SITES ACT prior to 1 September 1984
and those sites continue from that date to

be operated by those same prescribed

corporations or related bodies corporate

proposed in section (lD).

And that, in our submission, treats the matter in

precisely the same way that we urge on the Court and,in the second reading speec~_which is behind tab 7, at page 104.-which is the· last ~age~ right

at the bottom of the first column:

Clause 5 also embodies the Government's

policy that the SITES ACT and the FRANCHISE
ACT should not be capable of applying

concurrently to any one site. Submissions

have rightly presented the view that the

application of the FRANCHISE ACT to a site

to which the SITES ACT -

it should be -

applied would be illogical as it would

virtually render ineffective an oil

company's right to direct operate that

site. This clause, together with the

transitional clause in the franchise

bill should prevent this occurring.

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What one has, it is submitted, is this: one has a

situation in which this clause, 6(1D), was inserted

in the Act to have the effect which is spoken of

in the second reading speech. The effect of

taking a site out of the operation of the FRANCHISE

ACT is principally an effect in relation to the

franchisee, because it is the franchisee who

obtains the benefit of protection under that Act and it is submitted that here and,indee~ in the case of all franchisees they can be under no

misapprehension as to who it is they have

their agreement with.

The facts show that in this case the

department which was engaged in the policing of the

SITES ACT was under no misapprehension as to which

the relevant Shell company was. The notice therefore,

in so far as section 6(1D) relies onit, is not a notice in which, so far as the relevant people are

concerned, the precise name of the relevant

corporation is relevant or important because those

matters are know. Section 6(1D) did not use the

h . h d . . 11 11 11

wor w 1c was use 1n section d , name ,

name of the relevant corporation, it did not say,
"By the 'name of' the corporation", it did not say,

"By the relevant corporation", although those words

appear in section 11. Instead other words have been

used and,in our submission,there can be no policy

purpose in those circumstances in giving the words

in section 6(1D) any further reach than they have

on their face and, in our submission, on their face

they have a limited effect which is in fact

satisfied by the notice here in question, and the

Full Court says as much.

Now, in those circumstances, it is submitted

that the killer point is not just arguably

wrong, which is all we need to show, but, in

our submission~it is wrong because it imposes on

the words which are there used a requirement of

precise identification which, in our submission,

is not only not there in the words of section 6(1D)

but because the words of section 11 have not
been precisely picked up, can truthfully be said

to have been rejected in section 6(1D). It is

submitted that for that reason the point which was

lighted on in the Full Court and not considered by

His Honour is in fact in error. As to whether the

matter is important or not, if I could simply

refer to pages 18 to 20 of the application book.

It is submitted that for those reasons this is

an application which ought to be granted, if

the Court pleases.

MASON CJ:  Thank you, Mr Shaw. The Court need not trouble

you, Mr Parker. The Court is of opinion that

the decision of the Full Court of the Federal Court

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is not attended with sufficient doubt to justify

the grant- of special leave to appeal. The

application is therefore refused.

MR PARKER:	May I ask for costs, Your Honour?
MASON--C-J:	You do not oppose costs, do you, Mr Shaw?

The application is refused with costs.

AT 11.30 AM THE MATTER WAS ADJOURNED SINE DIE

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