Re Pyneboard Pty Limited; Panelboard Pty Limited; Burnie Timber Pty Limited and Softwood Holdings Limited v Trade Practices Commission and Ronald Moore Bannerman [1982] FCA 17; (1982) 57 FLR 368 NSW (24 February 1982)

FEDERAL COURT OF AUSTRALIA

Re: PYNEBOARD PTY. LIMITED; PANELBOARD PTY. LIMITED; BURNIE TIMBER PTY.
LIMITED and SOFTWOOD HOLDINGS LIMITED
And: TRADE PRACTICES COMMISSION and RONALD MOORE BANNERMAN [1983] HCA 9; (1982) 57 FLR 368
NSW No. G95 of 1981
VG Nos. 142-144 of 1981
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES AND VICTORIA DISTRICT REGISTRIES
GENERAL DIVISION
Northrop(1), Deane(1) and Fisher(1) JJ.

CATCHWORDS

Trade Practices - Notices pursuant to s.155 of the Act - validity of notices - whether exposure of person to liability for pecuniary penalty will excuse from furnishing information and producing documents as required by notice - necessary degree of certainty - necessary element of relatedness - where notice is partially invalid - harsh, oppressive and unreasonable.

Trade Practices Act, 1974, ss.45, 76, 155

Australian Industries Preservation Act, 1906, s.15B

Income Tax Assessment Act, 1936, s.264(1)(b)

Trade Practices - Power of Commission to obtain information, documents and evidence - Notice under s. 155 - Privilege against exposure to penalty - Whether notice invalid for uncertainty, irrelevance - Whether notice harsh, oppressive and unreasonable - Trade Practices Act 1974 (Cth), s. 155. Each of the appellants had received a notice issued under s. 155 of the Trade Practices Act 1974 from the second respondent, who was the Chairman of the Trade Practices Commission, requiring the furnishing of information and production of documents in relation to suspected breaches by them of Pts IV and VI of the Act.

The appellants commenced proceedings under s. 163A of the Act seeking declarations that the notices did not oblige them to answer questions or deliver documents which might tend to expose them to a penalty, and that the notices were otherwise invalid.

Held: (1) The privilege against exposure to a penalty is abrogated by the provisions of s. 155.

Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (No. 1) [1979] FCA 15; (1979), 36 FLR 450, followed.

R. v. Associated Northern Collieries [1910] HCA 61; (1910), 11 CLR 738, referred to.

(2) Uncertainty or ambiguity will not invalidate a s. 155 notice unless a point is reached where it cannot reasonably be given any meaning.

Fawcett Properties Ltd. v. Buckingham County Council, (1961) AC 636, referred to.

(3) For a notice pursuant to s. 155 to be valid it must: (a) be an exercise in good faith of the power; (b) convey with reasonable clarity to the recipient the information he is required to furnish or the documents he is required to produce; (c) disclose that the member of the Commission giving it is entitled to require that the recipient furnish the information or produce the documents which the notice describes, Federal Commissioner of Taxation v. Australia and New Zealand Banking Group Ltd. (1979), 53 ALJR 336, applied.

(4) Where a question in a s. 155 notice is so framed as to include matters concerning which the questioner is not entitled to ask, the person to whom the question is put may refuse to answer it in that form provided that a blue line deletion of what is invalid is not practicable.

Melbourne Steamship Co. Ltd. v. Moorehead [1912] HCA 69; (1912), 15 CLR 333, applied.

(5) It is not an independent ground of objection to such a notice that it is harsh, unreasonable or oppressive. The notice will not be invalid unless the harshness, unreasonableness or oppressiveness is such as to produce the conclusion that the notice was not issued in good faith.

HEARING

Melbourne, 1981, November 17-18; 1982, February 24. 24:2:1982

A. H. Goldberg Q.C. and D. Shavin, for the first appellant.

F. H. Callaway, for the second appellant.

D. G. Williamson Q.C. and P. C. Heerey, for the third appellant.

A. J. Myers, for the fourth appellant.

M. E. J. Black Q.C. and A. C. Archibald, for the respondents.

Cur. adv. vult.

Solicitors for the first appellant: Freehill Hollingdale & Page.

Solicitors for the second appellant: Weigall & Crowther.

Solicitors for the third appellant: Paveys.

Solicitors for the fourth appellant: Arthur Robinson & Co.

Solicitor for the respondents: B. J. O'Donovan, Commonwealth Crown

Solicitor.
GERALDINE VANDELEUR

ORDER

1. THAT there be substituted for the order of Fox J. the following Declaration and Orders:

(i) Declaration that requirement 10(b) in Schedule I of the notice dated 29th September, 1978 to Panelboard Pty. Ltd. over the hand of the respondent Ronald Moore Bannerman is ultra vires and invalid;
(ii) Order that, subject to (i) supra, the application be dismissed;

(iii) Order that the applicant Panelboard Pty. Ltd. pay nine-tenths of the respondents' costs of the application.

2. THAT the appellant Panelboard Pty. Ltd. pay nine-tenths of the respondents' costs of the appeal.

Orders accordingly.

DECISION

These four appeals, which have been heard together, are from decisions of Fox J. Each appeal concerns the validity of a notice given to the relevant appellant by the respondent Chairman of the respondent Trade Practices Commission in reliance upon the provisions of s.155 of the Trade Practices Act, 1974 ("the Act") and involves two overall issues. The first issue is whether Fox J. was correct in holding that the relevant appellant was not excused from furnishing the information and producing the documents as required by the notice by reason of the consideration that the furnishing of such information and the production of such documents would or might tend to expose it to liability for a pecuniary penalty pursuant to Parts IV and VI of the Act. The second overall issue is whether Fox J. was in error in holding that particular requirements to provide information or to produce documents, which are contained in each notice, are valid. For practical purposes, the notices involved in the four appeals correspond. Schedule I of each notice contains a number of requirements to provide information. Schedule II of each notice contains a number of requirements to produce documents.

In deciding the first issue against the appellants, Fox J. held that he was bound to follow the decision of a Full Court of this Court in Melbourne Home of Ford Pty. Limited v. Trade Practices Commission (No. 1) ((1979) [1979] FCA 15; 36 F.L.R. 450). In that case, the Full Court held that the fact that the furnishing of information or the production of documents might tend to expose a person to a penalty under s.45 or s.76 of the Act did not invalidate a request in a notice under s.155 that such information be furnished or that such documents be produced or provide a valid excuse for a refusal to answer such questions or produce such documents on the part of the person to whom the notice was directed. It is conceded by the appellants that the Melbourne Home of Ford Case (No. 1) (supra) is directly in point on the first issue and, if followed by this Court, would be decisive of the first issue against them. The submission advanced on behalf of the appellants is that this Court should decline to follow the previous decision. In particular, it is said that the following three arguments which militate against that decision were neither advanced nor, in so far as the judgments indicate, considered in that case.

First, it is argued that King v. Associated Northern Collieries ((1910) [1910] HCA 61; 11 C.L.R. 738) is a decision which lends strong support for the view that, in legislation such as the Act, nothing short of clear and express legislative provision can negate the privilege against rendering one's self liable to a penalty. Secon, it is submitted that reference to s.15B(4) of the Australian Industries Preservation Act, 1906 and, in particular, to the insertion in that sub-section, by amendment made in 1910, of the words "or make him liable to a penalty", supports the conclusion that the provisions of s.155 of the Act were not intended to authorize a requirement that information be furnished or a document be produced where such furnishing or production might tend to render the person upon whom a s.155 notice has been served liable to a penalty. Third, it is argued that the fact that the provisions of clauses (a) and (b) of s.155(7) are limited, in their application, to "criminal proceedings" supports the conclusion that s.155 is not intended to derogate from the privilege against rendering one's self liable to a penalty as distinct from rendering one's self liable to criminal proceedings. None of these three arguments was, we were informed, raised in the previous proceedings (but cf. Melbourne Home of Ford Case (No. 1), supra at pp.468-9).

It should be noted that the above "new" arguments would not, even if they had been accepted, have necessarily involved a reversal of the conclusion reached in the majority judgment (Franki and Northrop JJ.) in the Melbourne Home of Ford Case (No. 1) (supra). The reason for this is that Franki and Northrop JJ. were of the view that the privilege against rendering one's self liable for a penalty may be confined to evidence or procedural steps in curial proceedings. In that regard however, the appellants indicated that they desired to argue generally that the privilege was not so confined.

Notwithstanding the above submissions on behalf of the appellants, we are of the clear view that this Court should not decline to follow the decision in the Melbourne Home of Ford Case (No. 1) (supra). That decision was given in a considered judgment in March, 1979. It is not suggested that there has been any subsequent decision which has either questioned its correctness or which is, in any way, inconsistent with the reasoning underlying it. Where a general question going to the validity of statutory notices is involved, it is plainly of importance that there be uniformity in the decisions of the Full Court of this Court. In our view, the appellants have failed to demonstrate either that the decision in the Melbourne Home of Ford Case (No. 1) (supra) was given per incuriam or that it is plainly and demonstrably mistaken. Nor does it appear that there is any other valid ground for this Court to refuse to follow that decision. In these circumstances, we should follow the previous decision without reconsidering or considering its correctness. Accordingly, the appellants fail on the first issue.

As has been said, the second overall issue concerns the validity of particular requirements to furnish information and to produce documents which the s.155 notices contain. With the exception of one requirement to produce documents, the challenged requirements are said to be invalid by reason of the applicability of one or more of two distinct grounds of invalidity and one general principle. The suggested grounds of invalidity are, first, absence of an allegedly necessary degree of certainty in the terms of the notices and, second, absence of an allegedly necessary element of relatedness between the information or documents sought and "matters" that are identified by the notices as "consituting or possibly constituting, contraventions of section 45 of the Act". The suggested general principle is that if a requirement in a s.155 notice is partly invalid by reason of uncertainty in terms or lack of a requisite element of relatedness, the recipient of the notice cannot properly be expected to reconstruct the requirement by severing what is valid from what is invalid. The remaining requirement to produce documents which is in question is submitted to be invalid for the reason that it is harsh, oppressive and unreasonable.

At first instance, Fox J. was of the view that a requirement in a notice issued under s.155 will not be invalid by reason of uncertainty in its terms unless the point is reached where it cannot reasonably be given any meaning. In support of that view, his Honour referred to, inter alia, two decisions of the High Court (King Gee Clothing Co. Pty. Ltd. v. The Commonwealth [1945] HCA 23; (1945) 71 C.L.R. 184 and Cann's Pty. Ltd. v. The Commonwealth [1946] HCA 5; (1946) 71 C.L.R. 210) which were concerned with the validity of Price Regulation Orders made, in war time, under the National Security (Prices) Regulations. In the King Gee Clothing Co. Case (supra, at pp. 195-6), Dixon J. after referring to the history of local by-laws, wrote:

" But I cannot see how this history warrants the courts in adopting as a general rule of law the proposition that subordinate or delegated legislation is invalid if uncertain. It appears to me impossible to qualify the power conferred on the Executive Government . . . by adding the unexpressed condition that regulations made thereunder must be certain. I should have thought that, in this matter, they stood on the same ground as an Act of Parliament and were governed by the same rules of construction. I am unaware of any principle of law or of interpretation which places upon a power of subordinate legislation conferred upon the Governor-General by the Parliament a limitation or condition making either reasonableness or certainty indispensable to its valid exercise . . .

The Prices Order, however, is made by the Commissioner under a regulation and not an Act of Parliament. Let it be assumed that it may be regarded as an administrative order, not as a piece of legislation. But, even so, I should think that uncertainty, as a test of validity, arose from the nature of the power. On this footing, in the end, the question comes back to ultra vires".

Questions of ultra vires aside, we would respectfully agree with Fox J. that uncertainty or ambiguity will not invalidate subordinate legislation or a written directive issued under statutory power unless a point is reached where it cannot reasonably be given any meaning. Strictly speaking, when this point is reached, what is involved is not a matter of mere ambiguity or uncertainty. As Lord Keith of Avonholm commented in Fawcett Properties Ltd. v. Buckingham County Council (1961) A.C. 636 at p. 670):

"If it is impossible, on construction of the condition, to reach a conclusion as to what was in the draftsman's mind, the condition is meaningless and must be read as pro non scripto. It is not a question of ambiguity. If a clause may convey several different meanings it is for the court to say, looking at the general background, surrounding circumstances, subject-matter of discourse and other aids derived from the context of the clause, supplemented not infrequently by certain legal presumptions, what meaning is to be attributed to the clause".

In our view however, the primary question is not whether there is some external rule which will strike down as invalid any requirement which is uncertain or ambiguous in its terms. The primary question is a question of ultra vires, namely, whether, as a matter of construction of the Statute creating and defining the administrative power to require that information be furnished and documents be produced, the power is to be understood as limited to the imposition of a requirement couched in reasonably clear terms (cf. Television Corporation Ltd. v. The Commonwealth [1963] HCA 30; (1963) 109 C.L.R. 59 at p. 70).

Section 155(1) of the Act provides:

"Where the Commission, the Chairman or the Deputy Chairman 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, or is relevant to the making of a decision by the Commission under sub-section 93(3), a member of the Commission may, by notice in writing served on that person, require that person --

(a) to furnish to the Commission, by writing signed by that person or, 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:

(b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or

(c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents".

Section 155(5) provides, inter alia, that a person shall not refuse or fail to comply with a notice under the section to the extent that the person is capable of complying with it under pain of a penalty of imprisonment for three months or a fine of $1000.

The power to require the furnishing of information and the production of documents which is conferred by s.155(1) is subject to at least two general limitations, one express and one implied. The express limitation is that it is a condition of the existence, in the particular case, of the power which the section confers that "the Commission, the Chairman or Deputy Chairman has reason to believe" that the particular person is capable of furnishing information or producing documents relating to a matter of a kind described in the sub-section. The implied limitation is the ordinary one that it is a condition of a valid exercise of the power that it be used in good faith for the purpose for which it was conferred and with regard to the effect that the exercise of the power will have upon the person affected thereby (see Federal Commissioner of Taxation v. Australia and New Zealand Banking Group Ltd. (1979) 23 A.L.R. 480 at p. 505).

In a context where refusal or failure to comply with a s.155 notice is punishable by imprisonment or fine, there are, in our view, two further implicit conditions of validity of a notice purportedly given pursuant to s.155(1) of the Act. Those two further conditions of validity relate to the form or content of the notice. The first is that the notice must convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce. The second is that the notice must disclose that the Commissioner is entitled to require that the recipient furnish the information or produce the documents which the notice describes. In these regards, it appears to us that the following comments of Gibbs A.C.J., in relation to a notice to produce documents under s.264(1)(b) of the Income Tax Assessment Act, 1936 (Federal Commissioner of Taxation v. Australia and New Zealand Banking Group Limited, supra, at p. 490), can properly be applied to a notice to furnish information or to produce documents under s.155(1) of the Act:

"To be valid a notice to produce documents under s.264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, "your books of account") may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified. The power is confined to giving a requirement of a particular kind -- a requirement to produce documents relating to the income or assessment of some person -- and a notice requiring the production of documents not so related is beyond the scope of the power".

(Note, to the same effect, the statement of Mason J. (ibid, at p. 500) that the notice must, if it is to be valid, "clearly" confine the documents to be produced to the class of which the Commissioner is authorized to require production).

The requirement that a notice under s.155(1) convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce is not to be applied in a precious or hypercritical fashion (see, Melbourne Home of Ford Pty. Limited v. Trade Practices Commission (No. 3) ((1980) 31 A.L.R. 519 at p.531). Artificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning. Provided a notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information or documents are required, the requirements of s.155(1) as to clarity will be satisfied. In this regard, the mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear.

The requirement that a notice under s.155(1) show the person to whom it is addressed that the Commissioner is entitled to require that he furnish the information or produce the documents which the notice specifies will not be satisfied unless it appears from the notice that the information or documents sought are information or documents "relating" to one or more "matters" of a kind described in the sub-section. In the present case, the relevant matters are identified by the notices as being:

"matters that constitute, or may constitute, contraventions of s.45 of the Act, namely, that the company has -

made an arrangement or arrived at an understanding with certain manufacturers in Australia, provisions of which had the purpose, or had or were likely to have the effect, of fixing, controlling or maintaining, or provided for the fixing, controlling or maintaining of the wholesale prices for, and any discounts or allowances in relation to, particle-board supplies by the manufacturers, in competition with each other; and

given effect to provisions of an arrangement or understanding between certain manufacturers in Australia being provisions which have the purpose or have or are likely to have the effect, of fixing, controlling or maintaining the wholesale prices for, and any discounts or allowances in relation to, particleboard supplied by the manufacturers, in competition with each other".

If, on examination, of the terms of the notices, it does not appear that the information or documents sought by a particular requirement are information or documents relating to one or other of the above "matters", the requirement will, at least to the extent to which it would require the furnishing of such information or the production of such documents, be beyond the power conferred by s.155(1) of the Act. In this regard however, it should be stressed that the question whether a notice discloses the necessary relatedness between documents or information sought and the identified "matters" is, like the question whether the terms of the notice are sufficiently clear, not to be approached in an over-technical or hypercritical way. As was pointed out in Melbourne Home of Ford Pty. Limited v. Trade Practices Commission (No. 3) (supra, at pp.529-530), the power conferred by s.155(1) is an investigative power which authorises questions both wide in scope and unspecific in subject matter. The fact that the recipient of the notice is or will, in the event, be unable to supply relevant information or disclose relevant documents will not, in itself, preclude the validity of a requirement in a s.155 notice. The relevant question is whether the information or documents sought are capable, in a broad investigative context, of being properly regarded as related to any one of the "matters" which the notice identifies.

As has been mentioned, the suggested grounds of invalidity advanced by the appellants, in their attack on certain of the requirements which the notices contain, are uncertainty or ambiguity and the absence of the necessary element of relatedness between the information or documents sought and the "matters" that constitute or may constitute, contraventions of the Act. It can be seen, from what has been said above, that we agree with the appellants that lack of clarity in the terms of a particular requirement or the absence of the requisite relatedness between the identified "matters" and the information or documents sought can result in the particular requirement being, at least to the extent of such lack or absence, ultra vires s.155(1).

We turn to consider the related principle for which the appellants contend, namely, that if a requirement to furnish information or to produce documents is partly invalid by reason of uncertainty of the requirement or lack of relatedness of the information or documents, the recipient of a notice cannot properly be expected to reconstruct the requirement by severing what is valid from what is invalid. In this regard, it is relevant to note that the appellants did not contend that the invalidity, in whole or in part, of one question or requirement to produce documents in a notice would lead to invalidity of other independent questions.

In Melbourne Steamship Co v. Moorehead ((1912) [1912] HCA 69; 15 C.L.R. 333 at p.344), Griffiths C.J., when referring to a notice under s.15B of the Australian Industries Preservation Act, 1906-1909, commented:

". . . I am disposed to think that when a question demanding a categorical answer is put under sec.15B, being so framed as to include matters concerning which the questioner is not entitled, as well as matters concerning which he is entitled, to ask, the person to whom the question is put may refuse to answer it in that form, and that it is for the questioner, and not for the person questioned, to modify it so as to confine it within permitted limits".

Subject to one possible qualification, we consider the tentative views expressed by Griffiths C.J. in the above passage to be correct and to be applicable to a question asked or a requirement to produce documents contained in a notice given pursuant to s.155(1) of the Act. The possible qualification is that we consider that the principle for which the appellants contend and which finds support in the comments of Griffiths C.J. should be confined to a case where a blue pencil deletion of what is invalid is not practicable or where, if such deletion be practicable, it would result in what is substantially a different question.

There remains to be considered the availability to the appellants of the grounds upon which they object to a particular requirement to produce documents, namely, that it is harsh, oppressive and unreasonable.

The mere fact that compliance with a requirement to furnish information or to produce documents would be burdensome will not invalidate that requirement in a s.155 notice (see, Melbourne Home of Ford v. Trade Practices Commission (No. 3) supra, Riley McKay Pty. Limited v. Bannerman [1977] FCA 7; (1977) 31 F.L.R. 129 at p. 136). Nor will objective harshness, unreasonableness or oppressiveness of a requirement in such a notice constitute an independent ground of invalidity. If invalidity by reference to these qualities is to be established, it must be by reference to the implied general limitation upon the power conferred by s.155(1) of the Act to which reference has already been made, namely, that it is a condition of a valid exercise of the power that it be used in good faith for the purpose for which it was conferred and with regard to the effect that the exercise of the power will have upon those affected thereby. It is only if the harshness, oppressiveness or unreasonableness of a requirement in a s.155 notice is, in all the circumstances, such as to warrant the conclusion that the requirement could not have been imposed in good faith or could only have been imposed to achieve a collateral purpose or without regard to the burden which it would impose upon the recipient, that harshness, oppressiveness or unreasonableness will result in invalidity.

In the light of what has been written above, we turn to a consideration of the particular requirements to furnish information and to produce documents whose validity has been attacked on the hearing of the appeals. The challenged requirements to furnish information and all but one of the challenged requirements to produce documents are those referred to in sub-paragraphs (a), (b), (c), (g), (h), (i), (j) and (k) of paragraph 6 of the notice of appeal filed on behalf of the appellant Panelboard Pty. Limited. The other challenged requirement to produce documents is that referred to in sub-paragraph (b) of paragraph 7 of that notice of appeal. We shall consider the appellants' objections to them by reference to those sub-paragraphs. At first instance, Fox J. held that all those requirements - and certain other requirements whose validity is no longer impugned - were valid.

Paragraph 6(a)

The appellants submit that requirements 2(c) and (d) in Schedule I and requirement 5(b) in Schedule II are invalid "because they may or do extend to rebates and credits and non-wholesale discounts and allowances". The suggested ground of invalidity is lack of the requisite "relatedness" to the matters specified in the s.155 notices.

Requirement 2(c) and (d) in Schedule I require the recipient of the relevant notice to state whether any representative of it has, since 1 December, 1977, attended any meeting with any representative of any other manufacturer in Australia of particleboard at which there were discussed: "the discounts, allowances, rebates or credits" given or allowed by the recipient or any other manufacturer in relation to the supply of particleboard (requirement 2(c)) and any changes or proposed changes in such "discounts, allowances, rebates or credits" (requirement 2(d)). Requirement 5(b) in Schedule II requires the production of a specimen of each price list or other document issued or used by the recipient since 1 January, 1976, showing "discounts, allowances, rebates or credits given or allowed in relation to the supply or possible supply by the company of particleboard".

The argument as to the alleged lack of the necessary relatedness between the information and documents sought and the matters specified in the s.155 notices is founded, in part, on the fact that the agreements or undertakings referred to in the various notices relate to prices, discounts or allowances whereas the information and documents sought extend, in addition, to "rebates or credits" and, in part, on the fact that the specified agreements or undertakings relate to "wholesale" prices, discounts or allowances whereas the information and documents sought extend to discounts, allowances, rebates or credits generally. In our view, there is no substance in either limb of the argument.

Information or documents concerning the fixing, controlling or maintenance of rebates or credits are plainly capable of being properly regarded as being related, in an investigative context, to a suggested arrangement or understanding concerning the fixing, controlling or maintenance of prices, discounts or allowances. Information or documents as to the fixing, controlling or maintenance of discounts, allowances, rebates or credits generally or of non-wholesale discounts, allowances, rebates or credits are, in an investigative context, plainly capable of being properly regarded as being related to an arrangement or understanding concerning the fixing, controlling or maintenance of wholesale prices, discounts or allowances. In our view, the necessary element of relatedness exists between the matters specified in the notices and the information and documents sought in requirements 2(c) and (d) in Schedule I and requirement 5(b) in Schedule II.

Paragraph 6(b)

Objection is taken to requirements (2), (8), (9) and (10)(d) in Schedule I and requirements (5) and (7) in Schedule II of the notices. The basis of the objection is that the information or documents sought in these requirements "may not be or are not restricted to prices for, and discounts, allowances, rebates and credits in relation to, particleboard supplied or to be supplied" by the recipient of the notice or other manufacturers of particleboard "in competition with each other within the meaning of s.45A of the Act". Again, the ground of attack relied upon is an alleged lack of the necessary element of relatedness.

Fox J., at first instance, dealt with the argument presently under consideration in the following passage of his judgment:

"As I understand, the Chairman's point of view is that, while it is most unlikely that there were meetings, such as those pointed to in question 2 of Schedule I, which were not between manufacturers actually or potentially in competition, and while his concern is with manufacturers who were, he is entitled to investigate for himself what the position was. For that reason he intended to ask questions and require production of documents by reference to manufacturers (as defined) whether or not, in the view of the recipient of the notice, they were in competition. This attitude is an understandable and, I believe, a permissible one. I am of the view that where "manufacturer" is used, without expressing a qualification about being "in competition" no such qualification should be implied. As I have indicated, the Commission, and Chairman, can validly ask the wider question".

We agree with the above comments of Fox J and with his Honour's conclusion that the appellants' attack on these requirements should be rejected.

Paragraph 6(c)

Requirement 3(d) in Schedule I of each notice requires the recipient to state in respect of any meeting of a particular nature between any representative of the recipient and any representative of any other manufacturer in Australia of particleboard what "the purpose of the meeting" was. Requirements 5(f)(i)(A) and 5(f)(ii)(A) require the recipient of the notice to state, in respect of any invitation received by a representative of it to a meeting of that nature, whether any communication passed between a representative of the recipient and a representative of any other manufacturer or the Australia Particleboard Manufacturers' Association relating to "the purpose of the meeting". It is submitted, on behalf of the appellants, that these requirements are invalid by reason of uncertainty. The cause of the suggested uncertainty is, in each case, said to be the use of the words "the purpose of the meeting".

There is force in the argument that a reference to "the purpose" of a meeting is susceptible of ambiguity. As was pointed out on behalf of the appellants, the words "the purpose" can, depending upon context, denote a sole purpose, a dominant purpose, a substantial purpose, a significant purpose or any purpose whether significant or operative or not. With due respect to those who might see the matter differently however, we are unpersuaded that, as a matter of ordinary language in the particular context of requirements 3 and 5 in Schedule I, the references to "the purpose of the meeting" are objectionably ambiguous.

The notices expressly, though possibly unnecessarily, provide that the singular includes the plural. The words "the purpose of the meeting" should not be construed as limited to a sole purpose. They should, in our view, be construed as referring to any purpose which was a significant or operative factor in the calling or occurrence of the meeting. In this regard, we agree with the conclusion of Fox J., at first instance, that the response to the requirements under consideration "should deal with all substantial or significant purposes, - so far as the company is capable of doing so. Reasonably immediate rather than remote purposes are what is in contemplation". In so far as compliance with requirement 3(d) will involve the expression of an opinion as to what the purpose or purposes of a meeting were, the relevant opinion will be the opinion of the officer or officers of the recipient company who were involved in, or concerned with, the meeting on the company's behalf.

Paragraph 6(g)

Some of the requirements to furnish information and to produce documents (requirements 3(h)(ii) and 7(f)(ii) in Schedule I and 1(b) and 3(b) in Schedule II) are said to be objectionably ambiguous by reason of the use of the words "directly or indirectly". The words are used in the relevant requirements as part of the descriptive designation of documents: documents which refer, directly or indirectly, to a particular matter or to particular matters.

In the course of argument on behalf of the appellants, three different illustrations were given of types of situations in which it might be said that a document indirectly referred to what was said or done or proposed to be said or done at a particular meeting. These three illustrations were then said to indicate alternative meanings of the word "indirectly". The result was said to be hopeless ambiguity. Without being unappreciative of the ingenuity of the argument, we find it quite unconvincing. The postulated situations appear to us to be illustrative of the possible scope of the words used rather than illustrative of alternative meanings from which a single choice of meaning must be made.

The use of the words "directly or indirectly" in the context of the relevant requirements may well result in a higher burden being cast upon the recipient of the notice since the words preclude a possible argument that regard need only be paid to documents containing a direct or express reference to the specified matter or matters. The words do not however, in our view, have the result that any of the relevant requirements fails to convey, with reasonable clarity, to the recipient of the notice the information it is required to furnish or the documents it is required to produce.

It should be mentioned that it was also submitted that, if a wider meaning were given to the words "directly or indirectly", the relevant requirements would be invalid by reason of lack of the necessary element of relatedness. This submission was not developed in argument and it suffices to say that we are not persuaded that any of the requirements in question is invalid on that ground.
Paragraph 6(h)

Requirement 4 in the First Schedule requires the recipient of the notice to state "whether, since 1 December, 1977, any officer, employee or other representative of the company has received any invitation to a meeting of the nature referred to in (2) above". Requirement (2) (above) requires the recipient of the notice to state whether, since 1 December, 1977, any representative of it has attended any meeting as any representative of any other manufacturer of particleboard in Australia at which any of a number of specified matters were discussed.

It is argued on behalf of the appellants that requirement 4 is objectionably ambiguous by reason of the reference to "any invitation to a meeting of the nature referred to in (2) above". We are unpersuaded that any real ambiguity exists. Requirement 4, in our view, refers to a meeting between the persons indicated at which any of the matters specified in requirement (2) was discussed.

Paragraph 6(i)

Objection is taken to requirement 7(e) in Schedule I. That requirement requires the recipient of the notice to state, in respect of certain persons who took part in or were parties to a communication relating to particular matters, "the substance of what was written or said by that person". The effect of the requirement is, so it was argued, to require details to be given of everything that may have been said in a lengthy conversation regardless of whether the particular comments related to any of those matters. We do not accept this argument for the reason that we consider that, in context, requirement 7(e) should be read as being restricted to what was said or written by the person in question in relation to those matters.
Paragraph 6(j)

Requirement 10(a) in Schedule I requires the recipient of the notice to state, in respect of certain increases in price, "the reason for the increase". It was argued that this requirement was invalid on the ground that it was objectionably ambiguous. The basis of the argument was the use of the word "reason" which, it was said, could have a variety of meanings. The objection was stated to be similar to the objection to the use of the word "purpose" to which reference has already been made.

In our view, the word "reason" in requirement 10(a) refers to any reason which was a significant and operative factor in the corporate decision to make the relevant increase in prices. It is true that the identification of significant and operative reasons may be difficult. It may well be that the recipient of the notice is unable to identify what those reasons were: if that be the case, it will not be capable of providing the information sought. It does not however seem to us that the use of the word "reason" results in a failure by the requirement to convey to the recipient of the notice, with reasonable clarity, what information it is required to produce.
Paragraph 6(k)

Requirement 10(b) in Schedule I requires the recipient of a notice to state, in respect of each increase since 1 December, 1977, in the wholesale price of particleboard sold by it, "particulars sufficient to identify any document which supports any reason stated in response to (a)", that is to say, what has been identified as the reason or the reasons for the relevant increase. The appellants submit that this requirement is objectionably ambiguous. We agree that that is so.

A reading and rereading of requirement 10(b) leaves us quite uncertain as to whether the notice requires identification of any document which "supports" any reason in the sence of tending to establish that the reason was correct or whether what is required is identification of any document which "supports" a reason in the sense of confirming or corroborating its existence. Senior counsel for the Trade Practices Commission and its Chairman initially submitted that the requirement should be interpreted as referring to any document which supported the existence, as distinct from the correctness, of a reason. Subsequently, he abandoned this position and submitted that the requirement referred to any document that went to show that a reason was correct. Thus, if a reason was that the recipient of the notice had been trading at a loss, the recipient would, it was conceded, be required to identify not only any profit and loss account and balance sheet which recorded that fact but every primary record in its possession which underlay and supported the position shown by those secondary records.

The conclusion which we have reached is that requirement 10(b) does fail to convey to the recipient of the notice, with reasonable clarity, what documents it is required by the notice to identify. It follows that, in our view, the imposition of requirement 10(b) was ultra vires and that the requirement is invalid.

Paragraph 7(b)

It is submitted on behalf of the appellants that requirement 7 in Schedule II is invalid, in part, on the grounds that it is harsh, oppressive and unreasonable. As has been said, the objection to a requirement on those grounds will only be sustained if it appears that the requirement is so harsh, oppressive or unreasonable as to lead to the conclusion that the requirement could not have been imposed in good faith or could only have been imposed to achieve a collateral purpose or without regard to the burden which it would impose upon the recipient of the notice.

Requirement 7 in Schedule II requires the recipient of the notice to produce "copies of all invoices, statements and delivery dockets issued by or on behalf of the company in the period 1st December, 1977 to 30th March, 1978 in connection with the supply of particleboard". The objection to the requirement was expressly confined, in so far as this Court is concerned, to so much of it as requires the production of delivery dockets. There is no evidence before the Court as to the extent of the burden upon any of the appellants which compliance with the requirement as to production of delivery dockets would involve or which would warrant the conclusion that the burden imposed upon any of the appellants by the requirement is such as to warrant the conclusion that the requirement as to production of delivery dockets either had not been imposed in good faith or had been imposed for a collateral purpose or without regard to relevant considerations. The challenge to the validity of the requirement has not been made good.

CONCLUSION

In the result, the appellant's attack on the s.155 notices fails except as regards the validity of requirement 10(b) in Schedule I.

At first instance, Fox J. made an order dismissing each application. We would, in each case, modify that order by declaring that requirement 10(b) in Schedule I was ultra vires and invalid and ordering that, subject to that declaration, the application be dismissed. As regards costs, we consider that the appropriate course, in each case, is to order that the appellant pays nine-tenths of the respondents' costs of the application and of the appeal.