Tradestock Pty Ltd v TNT (Management) Pty Ltd

[1980] FCA 130

Re: T.N.T. MANAGEMENT PTY. LTD.; ASSOCIATED STEAMSHIPS PTY. LTD.; ANSETT
TRANSPORT INDUSTRIES (OPERATIONS) PTY. LTD.; MAYNE NICKLESS LTD.
And: RONALD MOORE BANNERMAN AND TRADE PRACTICES COMMISSION
Re: BRAMBLES HOLDINGS LTD.
And: TRADE PRACTICES COMMISSION
Re: TRADE PRACTICES COMMISSION
And: T.N.T. MANAGEMENT PTY. LTD. AND ORS. Nos. G27,28,31,33,VG12 of 1980 & No.
G44 of 1978
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.

CATCHWORDS

Trade Practices - Proceedings for contravention of s.45 - Subsequent issue of s.155 Notices to respondents in those proceedings - Whether notices valid.

Trade Practices Act 1974 s.155

HEARING

SYDNEY

#DATE 6:11:1980

ORDER

1. DECLARES that each of the notices, dated 20 March 1980, addressed to T.N.T. MANAGEMENT PTY. LIMITED; 21 March 1980 addressed to BRAMBLES HOLDINGS LIMITED; 21 March 1980 addressed to MAYNE NICKLESS LIMITED; 20 March 1980 addressed to YOUNGS TRANSPORT PTY. LIMITED; 21 March 1980 addressed to ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED and 20 March 1980 addressed to ASSOCIATED STEAMSHIPS PTY. LTD. purporting to have been given pursuant to s.155 of the Trade Practices Act, 1974, was and is null and void and of no legal effect.

2. ORDERS that the Trade Practices Commission pay the costs, including any reserved costs, of each applicant in the proceedings to set aside the notice addressed to it.

JUDGE1

I will give my reasons for judgment and I will give them orally; they are not very long. In 1978 the Trade Practices Commission ("the Commission") commenced proceedings (No.G.44 of 1978) against nine defendants under s.77 of the Trade Practices Act 1974 ("the Act") for the recovery of pecuniary penalties provided in s.76 of the Act and also for injunctions pursuant to s.80 of the Act. There were nine defendants, namely:

T.N.T. MANAGEMENT PTY. LIMITED, the first defendant.

BRAMBLES HOLDINGS LIMITED, the second defendant.

MAYNE NICKLESS LIMITED, the third defendant.

YOUNGS TRANSPORT PTY. LIMITED, the fourth defendant.

ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED, the fifth defendant.

EXPRESS FREIGHT PTY. LIMITED, the sixth defendant.

ASSOCIATED STEAMSHIPS PTY. LIMITED, the seventh defendant.

IPEC HOLDINGS LIMITED, the eighth defendant.

INTERSTATE PARCEL EXPRESS CO. PTY. LIMITED, the ninth defendant.

At about the time that the matter appeared to be ready for listing for the purpose of fixing a date for the hearing, the Chairman of the Commission, Mr Ronald Moore Bannerman, signed notices purporting to be pursuant to s.155 of the Act, and these notices were served by the Commission upon each defendant in the proceedings.

The notices were not all in precisely the same form but each referred to s.155 of the Act and to the penalties which were provided in s.155(5) of the Act.

It was common ground that the Commission could not get discovery by any defendant or require it to answer interrogatories since the proceedings sought penalties. Each notice set out a number of pages of questions which, in general, appeared likely to be directly relevant to matters the Commission would seek to prove in the proceedings. There followed a requirement for the production of various documents to the Commission.

Each defendant took steps seeking to rely on s.163A of the Act to obtain a declaration from the Court that the giving of the notices was not authorised by s.155 and for other relief.

The proceedings No.G.27 of 1980, No.G.31 of 1980, No.V.G. 12 of 1980, No.G.33 of 1980 and No.G.28 of 1980 were commenced by the first, second, third, fifth and seventh defendants respectively. The fourth, sixth, eighth and ninth defendant each took out a summons in matter G.44 of 1978.

The applications by the first and seventh defendants were heard first and the other matters were subsequently heard together by consent.

The second defendant, Brambles Holdings Ltd., also commenced proceedings against both the Commission and Mr. Bannerman for contempt and I have delivered judgment in that matter.

The arguments which were presented to me in the matters in which I am now giving judgment do not require any detailed consideration because in the contempt proceedings I have found that s.155 did not provide any power to issue the notices to the second defendant.

What I say from now on does not apply to the notices issued to the sixth, eighth and ninth defendants because by consent they have asked that, so far as they are concerned, the matter be stood over generally with liberty to restore on 7 days notice. I find that with regard to each of the notices the subject of these proceedings, there was no power to issue any such notice under s.155 of the Act. It was not until the contempt proceedings that the significance of the High Court cases, to which I have referred in my judgment in that case, and in particular to that of The Melbourne Steamship Co. Ltd. v. Moorehead (1912), 15 C.L.R. 333, was clearly drawn to my attention.

In the proceedings to set aside the notices argument largely turned upon whether s.155 should be interpreted in a way consistent with the common law privilege expressed in the maxim nemo tenetur se ipsum accusare.

Senior counsel for the Commission argued that s.155 provided a very broad power which was not to be cut down in any way and indeed expressly argued that the power was not spent once proceedings had been commenced and indeed did not reject a proposition that s.155 was in the Act for the primary purpose of assisting the Commission once it had proceedings on foot.

Senior counsel for Mayne Nickless Ltd. addressed detailed argument based upon the substitution of a new Commission under the 1977 amendments to the Act which were made by No.81 of 1977 in place of the Commission previously existing. Various submissions were made on behalf of all the defendants and a number attacked the individual questions contained in the notices.

Ultimately each legal representative, in substance, adopted all the arguments presented by any other legal representatives, which were not in conflict with his arguments.

Each defendant put in issue the validity of the notice served upon it on the ground that the notice was served after the proceedings for penalties had been commenced.

Although I reserved judgment in these matters previously I considered that I should relist them before delivering my judgment. I have been told that the only orders sought this morning are orders relating to the validity or invalidity of notices issued and in relation to costs. Is there anybody wanting to put any submission to me as to costs? At the moment I would be inclined to treat it as being in the same category as any other type of litigation, that is to say that the losing party has to pay the costs.

(After submissions on costs the following orders were made.)

The orders I make then are: I declare that each of the notices dated 20 March 1980 and addressed to T.N.T. Management Pty. Limited, the notice dated 21 March 1980 and addressed to Brambles Holdings Limited, the notice dated 21 March 1980 and addressed to Mayne Nickless Limited, the notice dated 20 March 1980 and addressed to Young's Transport Pty. Limited, the notice dated 21 March 1980 and addressed to Ansett Transport Industries (Operations) Pty. Limited, the notice dated 20 March 1980 and addressed to Associated Steamships Pty. Limited purporting to have been given pursuant to s. 155 of the Trade Practices Act 1974 was and is null and void and of no legal effect.

I order that the Trade Practices Commission pay the costs, including any reserved costs, of each applicant in the proceedings to set aside the notice addressed to it. I think that then is all one need do with these matters. Does anyone ask for a hearing date at this stage?