Visy Paper Pty Limited & Ors v Australian Competition and Consumer Commission

[2002] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S190 of 2001

B e t w e e n -

VISY PAPER PTY LIMITED

First Applicant

WILLIAM GUTHRIDGE

Second Applicant

STEVEN RICHARDS

Third Applicant

and

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 MAY 2002, AT 11.25 AM

Copyright in the High Court of Australia

MR N.J. YOUNG, QC:   May it please the Court, I appear with my learned friend, MR M.H. O’BRYAN, for the applicant.  (instructed by Minter Ellison)

MR B.R. McCLINTOCK, SC:   May it please the Court, I appear with my learned friend, MR V.F. KERR, for the respondent.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   Yes, Mr McClintock.

MR McCLINTOCK:   Your Honour, special leave should not be granted in this case because the majority of the Full Court was clearly right.  I accept, your Honour, that I have a difficult row to hoe in persuading your Honours of the meaning of the somewhat opaque sections in ‑ ‑ ‑

GLEESON CJ:   The question has been around for a long time, as I recollect it, Mr McClintock, though, as you point out, there do not seem to be many cases on it.

MR McCLINTOCK:   Your Honour, there is really only the dictum of Mr Justice Hely in the Super League Case and the two decisions in this case here.

GLEESON CJ:   We have a division two‑all in the Federal Court.

MR McCLINTOCK:   We do have a division two‑all, your Honour.  Your Honours, it came down to the meaning of two words in section 45(6).  I will be brief.  If your Honours go to page 65 of the application book, your Honours will there see that the Full Court sets out there the relevant provision which says:

The making of a contract, arrangement or understanding does not constitute a contravention of this section by reason that the contract, arrangement or understanding contains a provision the giving effect to which would –

and so on.  Then it makes the references to section 47.

Your Honours, the division between the parties below was as to the meaning of the word “provisions” and the meaning of the words “by reason that”.  We would say, your Honours, that “provision” does not mean, as the applicants suggest it mean, a clause in the contract.  It is difficult to see how it could mean simply that.  It means a legal obligation.  Likewise, your Honours, the words “by reason that” we would also suggest have the meaning the Full Court gave them, that is “if and in so far as”.

Your Honours, other than saying that, all I am doing really is repeating what the Full Court said and, as I said to your Honours, I accept that it is difficult to persuade your Honours out of a view that the matter is arguable in the time available, given the nature of the provisions.  So, I will not trespass on your Honours’ time any further.

GLEESON CJ:   Thank you.  In this matter there will be a grant of special leave to appeal.

We will adjourn for a short time to reconstitute.

AT 11.28 AM THE MATTER WAS CONCLUDED