Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc

[1989] HCATrans 69

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl49 of 1988

B e t w e e n -

TOBACCO INSTITUTE OF AUSTRALIA

LIMITED

Applicant

and

AUSTRALIAN FEDERATION OF CONSUMER

ORGANISATIONS INC

Respondent

Application for special leave to

appeal

DEANE J

TOOHEY J

GAUDRON J

Tobacco

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 MARCH 1989, AT 11.44 AM

Copyright in the High Court of Australia

SlT 7 /1/PLC 1 17/3/89

MR B.S.J. O'KEEFE, QC:·. If it please the Court, I appear with

MR P. ESLER, for the applicant. (instru~ted by

Clayton Utz)

MR D.M.J. BENNETT, ~C:  May it please the Court, I appear with

my learne friend, MR N. FRANCEY, for the respondent.

(instructed by Slater and Gordon)

MR O'KEEFE:  Could I hand to the Court, please, copies of some

written submissions that we have prepared in respect

of the matter? And could I hand folders with the

cases or material that we may refer to?

Your Honours, the case, in respect of which

special leave to appeal is sought involves three points: one of them relates to the construction

of section 80 of the TRADE PRACTICES ACT;	the
second relates to the position of the Trade

Practices Commission under that Act. Those two

points were points in respect of which the Full Court

of the Federal Court granted leave to appeal but

dismissed the appeal in respect of those matters

and described those matters as:.

significant issues of principle as to the construction and operation of the

Act.

That is to be found at page 24, lines 21 to 22 of

the application book. We would respectfully adopt

that description of those points.

The third point that is involved relates to

section 52 of the TRADE PRACTICES ACT. That was a

matter that the Full Court of the Federal Court did

Mr Justice Burchett did consider and in arriving	not consider but His Honour the trial judge
at the conclusion at which he did arrive, relied upon
REG V THOMSON, an English decision, relating to
cognate legislation in the United Kingdom but legislation which, as the argument unfolds, we say
is different as to its primary section that was
relied upon because it talked about making a statement and each statement therefore which was not in
accordance with the Act became a breach; and
secondly, because the English court, in dealing with
the provisions of that Act said that there were
particular provisions in the Act which indicated
that more than one proceeding or prosecution in respect
of a particular misstatement was open to a prosecutor.

Secondly, we say, in respect of that, that the

Full Court of the Federal Court, and Your Honour

Justice Deane when sitting in that court, dealt with

another case that happens also to bear the name of

THOMPSON but it has got a "P" in it instead of a

THOMSON, and in that case the court, and Your Honour

expressly distinguished the English THOMSON case

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and said that. there was no warrant in our TPADE PRACTICES

ACT for importing the line of reasoning in the the TRADE PRACTICES ACT of Australia. That is the

third point which we say is the equally - - -

GAUDRON J:  How does that point arise though? Are not the

p~oceedings merely for an injunction to restrain an	apprehended future breach coming by reason
of past conduct?

MR O'KEEFE:  What Your Honour says is right, however, how it

arose in the proceedings was that the respondent

in the proceedings that were before

Mr Justice Burchett which were proceedings either to

strike out or to stay put the argument that you could

split the conduct which was the matter dealt with by

the Trade Practices Commission into a series of

components. You could say that this sentence or

these three words or that phrase was a breach rather
than the publication of the advertisement being the

breach. And so the fragmentation of the material

was important to the argument that was being put by

the respondent. That is how it arises, Your Honours.

Our case, of course, is to the contrary. We say

that the conduct which is proscribed by section 52

was to be regarded as a totality, that is, making

the assumption for the moment that there was a

breach of section 52, that it is the conduct in

putting into circulation,of publishing, that is the

conduct proscribed, whether there be one or two or

three erroneous statements involved.

Can I return, however, to the two points which

were described and which we adopt as significant

issues of principle. One way of putting it, the

point is a very short point: does "or" mean "or"

in section 80 of the TRADE PRACTICES ACT? That is,

when one looks at section 80, and the provision

that says:

where, on the application of the Minister,

the Commission or any other person, the

Court is satisfied that a person has engaged, or is proposing to engage, in conduct that

constitutes or would constitute -

and in this case we are concerned with -

(a) a contravention .....

the Court may grant an injunction in such	terms as the Court determines to be
appropriate.

Our case on that simply says "or" normally means "or11 •

What is contemplated by section 80 is one injunctive

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proceeding in respect of "the breach" which is

asserted and that one gains, in respect 9f that

construction, assistance from a number of sections

included amongst which are sections 77, for instance:

The Minister or the Commission may

institute a proceeding ...... of a pecuniary

penalty -

it is clear that the contemplation is one breach,

one penalty, one proceeding.

DEANE J: Of course, you could succeed a long way on that

submission in terms of reading the section as

meaning one determination by the court of the

issues.

MR O'KEEFE:  Yes, Your Honour.

DEANE J: But that would bring you straight to - - -

MR O'KEEFE:	The second point.
DEANE J:	- - - your main problem here, would it not?

MR O'KEEFE: Whether or not an extracurial determination of

the matter by the Trade Practices Commission, that

is a settlement, works a satisfaction of the right

to prevent the wrong or the repetition of the wrong
that section 80 gives, that is right, Your Honour,

I accept that.

DEANE J: And there, I suppose, you have also got to say a

determination of the issue by settlement with any

complainant.

MR O'KEEFE:  Your Honour, we faced that below and we face

that here. That arises out of the form of the Act.

If the submission is accepted, for the moment, that "or" means "or" and that consequence flows from it,

then so be it.

DEANE J:	I meant a genuine determination, not a - - -
MR O'KEEFE:	I do, and Your Honour Justice Deane will have seen from the judgment that we put shams and the like to one side because they are not, in reality, an
enforcement of the right or a satisfaction of the
right, but we do accept that.  We none the less say
that if one looks, for instance, at section 77,
clear, it is, we would submit, that only one
proceeding is contemplated. If one goes, for
instance, to section 81 which is concerned with
"Divestiture":  ·

The Court may, on the application of the

Minister, the Commission or any other person, if it finds -

certain.things -

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give directions for the purpose of

securing the disposal by the -

corporation -

of all or any of the shares or assets

acquired in contravention of that section.

There, we say, a divestiture can operate in respect

of property but once. The contemplation is but one

proceeding in respect of the asset. The collocation

of words which is the phrase that is used in the

Full Court of the Federal Court is the same in

section 81 as in section 80. If one then goes to

section 79 it is clear that since the section

is concerned with an offence it is contemplated

that there will be but the one proceeding for that

offence. So, you have secrions 77, 79 and 81 all
contemplating, as we ~ld put it, but one proceeding

for the single breach, for the one breach. It would

be a strange conclusion if section 80, tucked

in between all those sections; (a) did something

different, and (b) did it with precisely the same

collocation of words as occurs in section 81 and

(c), we would say, did it so as to give to the word

"or" a meaning contrary to that which one would

normally expect,namely an alternative. And I

accept what Your Honour Justice Deane says, and it

is referred to in the judgment, that that may mean

that the person who institutes the proceedings has

some control over what may happen.

But, with respect, could I just raise two

matters in respect of that: one is the question as to whether or not in such a proceeding there may be some overriding or supervening situation of

intervention that the Court cc,uld grant rights in respect

of and, secondly, since what one is looking at is

a public interest matter, if such a proceeding were

instituted and the Court were not satisfied with the

outcome, there is, we would respectfully submit,

no reason why the Court would necessarily make an

order.

Now, I face, and I recognize that the matter

that Your Honour the presiding Judge raises is there.

We say that that arises as a consequence of the form

of the words and when you look at the congregation or
aggregation of sections into which section 80 is

to be fitted, that there is strong reason for saying,

and we say good reason for saying, that "or" means

"or".

TOOHEY J:  Mr O'Keefe,what does "application" mean in

section 80? In other words, on your argument, once

a proceeding is launched by either the Minister, the
Commission or any other person, is there a bar on

the bringing of proceedings by any of those other

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persons referred to or is it referring to an application

which has proceeded to a hearing or what?

MR O'KEEFE:  Your Honour, the last words in section 80(1)

suggest that there is a proceeding in the court.	They
do not take us though to whether or not there is a
full hearing or a partial hearing or whatever.	But

can I just try and answer Your Honour Justice Toohey's

question this way:	assume that "application" only
means	something that goes to a full hearing

with a final determination. That is, as I understand,

what Your Honour is asking.

TOOHEY J: Yes.

MR O'KEEFE:  If it means that and we would submit that it does

not mean that, it means the institution of a proceeding

in the court, we say - if it means the full and final

hearing of a matter then if the minister, for instance,

instituted proceedings in respect of a particular

matter and it were concluded by being dismissed for

whatever reason, it does not matter at the moment,

it would not preclude the commission from doing

precisely the same thing and seeking to do it even,
presumably, upon the same evidence. Now, that runs

contrary to the general principle that one would

apply in respect of litigation, that you should not

have the one person twice vexed for precisely the same

wrong. Now, that sort of thinking would, we would

submit, suggest that the word "application" means

the institution of a proceeding in the court. Once

that is done that gives the court the necessary entree,

jurisdictional question, it is a power question -

the source of jurisdiction to make it - it is not a

but the power over the rrarties to make the injunction.	So, we say "application' means instituting a proceeding
in the court.	·

TOOHEY J:  So that once a proceeding is instituted, whether

it be by the minister, the commission or any other

person, then no further proceedings can be

instituted for that contravention?

MR O'KEEFE: For an injunction, yes, Your Honour.

TOOHEY J: For an injunction.

MR O'KEEFE:  Under section 82, of course, you have got - and

if I can just digress for a moment, that is the other

side or the other approach that one can make. Instead

of giving a series of possible applicants, as section 80

and section 81 do, when one comes to section 82,

it is any person:

a person who suffers loss or damage -

that may do it. The difference in approach, we submit,

tends to support the submission that we were earlier

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making which itself is supported by the surrounds to -
and the other sections surrounding section 80.

The submission that we put in respect of section 80

never precludes anybody who has suffered carnage and

has an individual private right from pursuing that

right. So, we do say, yes, to Your Honour's question.

TOOHEY J:	Thank you.
MR O'KEEFE:	The contrast then between the language of section 80

and section 82 is important, we submit, and gives

support to, and we would say strong support, to

be given to "or" in section 80, and I have already put	the argument in favour of the disjunctive meaning to
77 and I will not go over that again. That is what
is being put in the paragraphs of the written
submissions down to paragraph 2.2

There is then a separate approach that is made

in respect of section 80 and the disjunctive meaning

to be ascribed to the word "or" in that section. If

one goes to section 83, there is a section that

is of a kind reversing the rule in HOLLINGTON V HEWTHORN

That section gives prima facie evidentiary weight to
findings in certain types of proceedings when they
are sought to be used in proceedings against a person
under section 82 or under section 87(l)(a). It is

our submission that it comes in aid of our base

submission that "or" should be read in the disjunctive

sense; that section 83 does not include an application

under section 80 within its purview.

The reasons for that we have set out in the

paragraphs connnencing at 2.3 and going down to
2.3.8 and the submission that we put in respect of that

is that it is contemplated by section 83 that whereas

under section 82 you may have a multiplicity of proceedings - you may have a hundred plaintiffs

each seeking to enforce some right for damages

sustained by them - and that there is a public

interest in ansuring that the same issue be not

constantly relitigated if it has already been adequately
tested in another proceeding	and a solemn finding made.

Now, that, we would submit, is the underlying

rationale of section 83. By not making findings

in a, for instance, section 82 matter, applicable to

section 80, there is, we submit, to be found a
legislative assumption of difference between the

possibilities under section 82 and section 80. Each

of the sections, 77, 80, 80A and 81 are, as we have put

and put again - and section 79 is in the same
situation - proceedings in which you can have but one
result, one finding because only one proceeding. You

do not have the prospect of a muliplicity of proceedings

with different findings of fact in respect of the same
subject-matter. So, what we say is that section 83

comes yet again in aid of the submission in respect of

section 80, namely, only one proceeding for injunction

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in respect of the one breach in the very form in

which section 83 is couched. It assumes·that each

of those sections, as we say is the case in all,

including, as we put it, section 80, will have one

finding of fact in respect of one contest which can

then be transposed into section 82.

If one could have multiple proceedings under section 80 in respect of the one breach then you

would have the prospect of having contrary findings

in respect of the same fact which would nullify the

effects of section 83.

DEANE J:	Mr O'Keefe, I think we are seized adequately of your
first point.
MR O'KEEFE:	Thank you, Your Honour.

DEANE J: Can you proceed to the - - -

MR O'KEEFE:  Yes. Your Honours will find that commencing at

the paragraph numbered 3 - unfortunately, the pages are not numbered, but it is a paragraph

numbered 3 and following.

Your Honours will see in the judgment of the

Full Court of the Federal Court, at page 30 of the

application bock, lines 7 to 14 there is a reference

to a number of sections: 28, 77, 80(6), et cetera,

up to 171, and to which can be added sections 90 and

93(3), all of which, in our submission, show that

the Trade Practices Commission has a special standing,

an enforcement role, a public rights vindication role

under the TRADE PRACTICES ACT. That being so, it is

our submission that a combination of that role and

the general public policy principle which is adverse

to repeated proceedings or, we would say, the

need for proceedings where extracurial

adjustment can be arrived at, give rise to a situation	in which, we say, as appears in paragraph 3.2,
one can apply the BARTON V REG principle and the
CONNELLY V THE DIRECTOR OF PUBLIC PROSECUTION's
principle to favour giving to the extracurial
satisfaction of the right which can be satisfied
under section 80, the same force.

Now, as is clear from both the argument before

Mr Justice Burchett in his judgment and the judgment

of the Full Court of the Federal Court, we are not in

a position to advance an authority for that proposition.

We must argue from principle in respect of it and we do so.

TOOHEY J:  Mr O'Keefe, in the circumstances of the present

case, is a decision called for as to the proper

construction of section 80 except as a step along the way7

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MR O'KEEFE:  No.

TOOHEY J: Perhaps, the question may have been obscure but

there was, in fact, no proceeding for an injunction

MR O'KEEFE:  No, there was not.

TOOHEY J: Brought by the minister or by the commission.

MR O'KEEFE:  And Your Honour's question, with respect, was not

obscure. It is perfectly correct and the answer that

I give Your Honour is, I think, correct. The argument

runs: given the construction of section 80 that we

adopt, you have one vindication by injunction, one

protection of the public right as opposed to the

prospect of a multiplicity of actions under section 82

by those persons or each of those persons who suffer

damage. In so far as the public right is concerned,

you have one protection of it. That protection may

be through section 80. That depends upon the matter

that we first put to the Court, that is, the disjunctive

use of the word "or". Given that step, we then take

the second step. Your Honour is completely right in
that; it is a step along the way in the argument.

We need that, in fact, to get to the second step of

the argument because if that argument benot correct,
then you never get to an argument of satisfaction

because all you do at most is satisfy the right of

the commission to bring an action but you do not

extinguish the right of any other person to bring the

action.

GAUDRON J:  Mr O'Keefe, there is some difficulty, is there not,

in the use of a notion of vindication or of satisfaction

if the action is to restrain future breach?

MR O'KEEFE:  Your Honour, in a sense we accept that. It really,

however, depends upon whether or not - that is yet

another point actually and that is not answered by

these proceedings.and that is the point as to whether

or not, if X has done something - we will assume

for the moment, in breach of the Act X years ago -

can somebody come up to him and say, "I ask for

your undertaking that you will not do that again?"

And if he says to them, "Go away, you officious

intermeddler", they can take proceedings under

section 80. That is a different point but it is

cognate to the matter that Your Honour Justice Gaudron

raises. Does that answer Your Honour's question?

GAUDRON J: Well, it may be that other considerations apply

in that situation.

MR O'KEEFE:  I am not saying that they may not, there may be a

question then as to whether or not, in the exercise

of discretion, the Court does anything,_ that we

accept and, indeed, in the present litigation as does

em~rge from the judgments, not only have we pleaded

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this matter in bar but we have pleaded this matter

as a matter going to the exercise of discretion.

But that is not involved in the present proceedings

nor could it have been involved before the primary

judge or the appellate court of the Federal Court.

Could I go back to page 30, please, of the

application book and indicate in respect of the

sections that are referred to why it is that we

submit that the commission has this special position?

Two ways of dealing with it: either to seek to establish the proposition or to make the assumption

and argue it on the assumption. Could I do it the

former way unless the Court wishes it to be done

to the contrary. Sections 27 and 28 involve the

appointment of the commission, the allocation of

exclusive function; section 77 is concerned with

minister of instituting proceedings for the recovery the special position in conjunction with the

of penalties; section 80 I have already referred to

and, in particular, if one goes to subsection (6), the

special provision that is made in respect of the minister

or the commission making an application, and I should

really have referred Your Honour	Justice Toohey
to this section too.	The use of that word

"application" in that section strongly, we would

submit, supports the conclusion that you do not have
to go to a final hearing and determination by the
court because that to which the section is
applying is a stage right at the outset of the
proceedings. But none the less, the point that I am

seekinR to make at the present time is not the point

about' application", it is a point about the special

position of the commission.

Part VII which is concerned with approvals is

a Part in which the commission itself is not merely

important but pre-eminent. Section 167(l)(b) and

section 171 put the commission in a very special

situation. So, whether one draws the conclusion or

makes the assumption of the special position of the

commission, it is essential to our argument that

one combines that special position with the application
of the maxim that is referred to in paragraph 3.1

of the written submissions.

Then, as we have said, in BARTON's case, 147 CLR

75 at page 96, the principle ultimately is that:

"every court has undoubtedly a right

in its discretion to decline to hear proceedings

on the ground that they are oppressive and an

abuse of the process of the court" -

that is towards the bottom of the page. And this

Court applied the speeches in CONNELLY V __ DIRECTOR OE

PUBLIC PROSECUTIONS, ( 1964) AC 1254 and· the particular

passage to which I wish to refer is to be found at

page 1347 in the speech of Lord Devlin. It is one

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of the speeches expressly referred to, towards the

bottom of the page, that there is a controlling

power in civil cases as well as in criminal cases

and they are of like kind. Your Honours will see:

I proposed to put under three heads

the reasoning which, in my opinion, supports
this conclusion. First, a general power,

taking various specific forms, to prevent

unfairness to the accused has always been a

part of the English criminal law .....

Secondly, if the power of the prosecutor to spread his case overany number of indictments

was unrestrained there could be grave injustice	to defendants. Thirdly, a controlling power
of this character is well established in the
civil law.

Now, that was accepted by this Court as a correct

statement of the law and our submission is that on the

analogy of the interest reipublicae ut sit finis

litium maxim there should be a recognition, having

regard to the special position of the Trade Practices

Commission, of its power, effectively to vindicate

the public right by extracurial settlement and that

really is the substance of the submissions to

paragraprs3.l to 3.5 conclusive. I do not wish to

put anything further in respect of that.

The final matter, and that is the matter in respect of which no leave to appeal was given by

the Full Court of the Federal Court is to be seen in
paragraph 4 of the written submissions. Could I take
the Court first to the judgment of Mr Justice Burchett

which dealt with this aspect of the case at page 15

T7	of the application book. His Honour there refers to
REG V THOMSON HOLIDAYS arid sets out the provisions
of the relevant United Kingdom Act on which the
decision depends:

"It shall be an offence for any person in

the course of any trade or business ... (b)

recklessly to make a statement which is

false -

and then the denotation of the subject-matter follows.

If.I could say one think about that first, that

is, it is the making of a statement rather than

engaging in conduct that is being referred to and

they, we respectfully submit, are different in

character. They may overlap. But the making
of a statement involves characterizing something as

a statement and each time it is made there is an

offence committed. You may make the same statement

repeatedly and in this case what was held was "Yo.u

made a statement many times by putting _it in an

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advertisement and publishing it to various people in

newspaper form."

At page 598 of the report there is an additional

reason for distinguishing the English position from

the position in Australia. Between letters Band C

it reads:

Mr Collins, on behalf of the prosecution,

did not accept that the defendants were being

prosecuted twice for the same conduct.	He
pointed out that by August 23, 1971, the

defendants knew that Mr and Mrs Brown were

alleging that the brochures contained false

statements ..... It was at least about a

fortnight later that the complainant in the

STOCKPORT case read those false statements and

booked a holiday at the same hotel.

That sets the scene.

The TRADE DESCRIPTIONS ACT 1968 itself envisages that more than one prosecution may be brought

against accused persons in respect of the same

course of conduct. That is to be inferred from

section 30(2), (3) and (4) -

and then the reason for saying that is set out in the

judgment.

Those grounds of distinction were taken up in Australia in the decision of the Full Federal Court

in THOMPSON V RILEY McKAY, 42 FLR 279. In that case -

Your Honour the presiding Judge when you were sitting	and I will go straight to the judgment of
in that court at page 290, the paragraph at the bottom
of the page:

In each of the present matters, the alleged

act of representing was complete either at

offered for sale to the public or at the time	the time when the relevant magazine was first
when the relevant magazine, having been so
offered for sale, was first purchased by a member of the public. It is unnecessary, for the purposes of the present matter, to
form or express any view as to which of those
alternatives is to be preferred since it would
appear to be common ground that the relevant
quantities to the public. The alleged journal was, in each case, sold in substantial
representation being complete, at the latest,
at the time of such sale, it is unnecessary
for the purposes to establishing an offence against s. 53(a) or (c) to establish that the allegedly false material was in fact
read by anyone at all. Nor does establishing
that more than one person read one of the

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advertisements in the particular issue of the

of more than one contravention of the relevant	relevant journal provide the basis for a finding
paragraph of s.53.

So the act that was the important act was the act of the publication or the act of sale, not the question of

of Mr Justice Franki, at about point 6 to 7 on the	reading. And the Court, at page 284, in the judgment
page, refers to THOMSON's case and distinguishes
the THOMSON situation or the act on which THOMSON
depended from the Australian position.

Mr Justice Fisher at page 297 at about point 4

says:

There is, therefore, in my opinion, neither

the necessity nor the justification for

of REG V THOMSON HOLIDAYS LTD for the purpose	subjecting the Australian Act to the authority
of ensuring it effectively achieves its stated objectives.

It is our submission that is so far as His Honour

following, upon the decision of the English Court of the trial judge relied, as he did at pages 15 and

Appeal in REG V THOMSON HOLIDAYS, he fell into error

and that is the thrust of the submissions in the

paragraphs numbered 4.1 to 4.4 inclusive.

The other cases, DOHERTY and LARMER, they are

not in as clear terms but arrive at the same general
conclusion as to the characterization of conduct

under sections 52 or 53. So, it is our submission

that His Honour the trial judge fell into error

there and it was a matter of significance in the

proceedings and one in respect of which leave

should have been given and special leave, in our

submission, should be given for the reason

that His Honour - and as I answered to Your Honour

Justice Gaudron - seeks to split the advertisement

in respect of which complaint is made into - - -

GAUDRON J:,: I still do not see how it is relevant to the

question whether or not a stay should have been granted

which really can be the only issue now left.

MR O'KEEFE:  That is the issue, that is why we went to the

court.

GAUDRON J: Yes.

MR O'KEEFE: It became relevant in this way: it was being

argued by the respondent, amongst other things, that

whereas the Trade Practices CotllIIlission had dealt with

the advertisement, it had not dealt seriatum with

each of the particular matters completely or fully or

as the complainant would have liked it to have been

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dealt with and His Honour said, "Yes, I think that's

right" but in order to make that relevant to his

determination, it was necessary to fragment the

conduct, as we would put, and I think that is the

way it went, Your Honour.

So, it is our submission, (1) that the construction

of section 80, being important and, in our submission,

being erroneous in the decision of the Full Court of

the Federal Court, should be the subject of special	leave. The second question, the role and function
and the capacity of the commission to deal extracurially
with a matter that can be the subject of, as we put it, but one proceeding under section 80, is likewise
in that situation and a matter in respect of which
a determination by this Court for the administration
of the Act is an important matter, and I have put my
submissions in relation to section 52. They are the
matters that we would wish to put to the Court.

DEANE J: Thank you, Mr O'Keefe. Yes, Mr Bennett?

MR BENNETT:  May it please the Court. First, Your Honours,

the question of the meaning of the word "or" in

section 80 has nothing to do with this case. Might

I take Your Honours to section 80? The section

applies, first of all:

where, on the application of the Minister,

the Commission or any other person, the

Court is satisfied -

All the word "or" does is indicate that in any one proceeding only one of them needs to be a plaintiff,

nothing more than that. It is not performing the

further task my friend requires it to perform of

saying that once one of them has done it the

others are forever barred. That is making a simple

disjunctive do far more work than the nature of disjunction requires.

Secondly, and more importantly, in relation to

that argument, my friend's argument totally ignores
the words "or is proposing to engage". These are

not proceedings for damages or for a penal sanction

because of the publishing of a false advertisement.

They are proceedings to restrain an organization from

publishing in the future misleading or deceptive advertisements and part of the evidence for that is that they once did so before. It is only part

of the evidence. The other evidence is their refusal

to give an undertaking and, indeed, what we say is the misleading and deceptive conduct of so much of the first advertisement as is incorporated by

reference in the correcting advertisement. Now,

those rights cannot be discharged by anything that

occurs in relation to the first one.

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My friend talked about section 80 being in a

group of 79, 80 and 81, but, of course, those

sections are concerned with totally different

types of sanction and totally different types of

. proceeding, and there is no reason for construing

them as being identically applicable. The nature

of the court's right to pronounce an in~unction is

very different to the nature of a courts right

and duty when it is imposing a sanction ordering

divestiture. Obviously divestiture only takes place once;

obviously punishment only takes place once, but if

one is concerned with someone's future conduct

it may be very necessary to investigate on more

than one occasion whether past conduct demonstrates

a propensity to engage in that future conduct,

·particularly in this case where there is the
second advertisement, the refusal to give the
undertaking and matters of that sort all after the
settlement with the Trade Practices Commission.

Your Honours, my friend's argument on section 83 seems to lead him in the other direction because

when he got to section 83, he said, "Ah, there,
there was a difference. That says certain things

happen under section 82 but don't happen under

section 80." What that is rather recognizing is

the very point my friend earlier puts the contrary of,

that section 80 rights are different to the other

types of right being granted in this area of the

TRADE PRACTICES ACT. And we would submit it is

quite wrong to say that even if the commission were

to commence proceedings and proceed to injunction,

that that would in some way bar anyone else from

doing it. Here, of course, as we will see in a

moment, we did not get to anything like that stage.

Your Honours, the other aspect is this:

my friend seeks to suggest that the existing of pre-curial

conduct and negotiations can in some way affect rights

between third parties. He concedes there is no

authority for that. He gets it, he says, from the

matter to note in relation to that was that that	general doctrine of abuse of process. The first
was not disputed by us below and, indeed, was accepted
by the courts below. No doubt there are cases where
if there is a prior proceeding between A and B,
proceedings between A and C may be an abuse of
process. Let me give an obvious example: suppose
there is a passing off and the person whose goods
have been passed off complains to the Trade Practices
Commission which brings section 52 proceedings, and
suppose the re.al plaintiff, if I may tendentiously
so describe it, sits behind the Trade Practices Commission with its own lawyers, provides all the

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evidence, perhaps even grants an indemnity, but
permits the Trade Practices Commission t9 run the
case under its right to do so, and after a long

hearing with extensive evidence, witnesses substantially

from the company complaining, it fails. Clearly,

if it were then to commence identical proceedings
under section 52, they would be struck out

as an abuse of process but that is a determination

of a factual matter based on special circumstances.

At pages 37 to 38 in the Full Court that is referred

to where Your Honours see at line 5:

Counsel for the Institute invited us to
consider the position of a respondent

subjected to a succession of applications

of applicants, each asserting standing	for injunctive relief, brought by a series
under s. 80. The answer to such fears
lies in the power of the Court to stay
proceedings which are oppressive, vexatious
or an abuse of process.

DEANE J:	Mr Bennett, I do not think we need trouble you further.
Mr O'Keefe, is there anything you want to put?
:t1R O'KEEFE:	No, Your Honour.

DEANE J: The Court is of the view that in the circumstances

of the present case the actual decision of the Full Court

of the Federal Court is not attended by sufficient

doubt to warrant the grant of special leave to appeal.

Special leave is therefore refused.

:t1R BENNETT:  If Your Honour pleases, I ask for costs.

DEANE J: Special leave to appeal is refused with costs.

AT 12.37 PM THE MATTER WAS ADJOURNED SINE DIE

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