Re Grace Bros Pty Limited v Magistrates of the Local Courts of New South Wales and Warren Francis Sawyer [1988] FCA 389 (8 November 1988)

FEDERAL COURT OF AUSTRALIA

Re: GRACE BROS PTY LIMITED
And: MAGISTRATES OF THE LOCAL COURTS OF NEW SOUTH WALES and WARREN FRANCIS
SAWYER
No. G1119 of 1988
Constitutional Law (Cth) - Trade Practices - Cross Vesting Legislation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.(1)

CATCHWORDS

Constitutional Law (Cth) - Inconsistency between Commonwealth law and law of State - Trade Practices - representation that foreign-made goods were Australian-made - Summons served on applicant under s. 32 (1) of the Consumer Protection Act 1969 (NSW) - application for orders in the nature of prohibition and certiorari against respondents - whether ss. 32, 33A 33B, 56 and 57 of the Consumer Protection Act 1969 (NSW) were inconsistent with sub-ss. 53 (eb), 79 (1) (a) and (g) and ss. 85 and 163 of the Trade Practices Act 1974 (Cth) within the meaning of s. 109 of the Constitution - meaning of "concurrent" in s. 75 (1) of the Trade Practices Act.

Trade Practices - Jurisdiction of the Federal Court of Australia - meaning of "matter arising under this Act" in s. 163A of the Trade Practices Act 1974 - whether those against whom the relief described in sub-s. 163A (1) (b) may be directed includes persons holding offices created by State law.

Cross Vesting Legislation - Legislation does not invest Federal Court with totality of federal jurisdiction invested in State courts by s. 39 of the Judiciary Act 1903 - whether competent for State law to invest jurisdiction in the High Court, Federal Court or any other federal court.

Interpretation Act 1897 (NSW)

Acts Interpretation Act 1901

Justices Act (1902) (NSW)

Judiciary Act 1903

Crimes Act 1914

Consumer Protection Act 1969 (NSW)

Trade Practices Act 1974

Federal Court of Australia Act 1976

Fair Trading Act 1987 (NSW)

Interpretation Act 1987 (NSW)

Jurisdiction of Courts (Cross-Vesting) Act 1987

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Hooper v Hooper [1955] HCA 15; (1955) 91 CLR 529

Vitzdamm-Jones v Vitzdamm-Jones [1981] HCA 8; (1981) 148 CLR 383

Re Tooth & Co Ltd [1978] FCA 9; (1978) 31 FLR 314

Crouch v Commissioner for Railways (Queensland) [1985] HCA 69; (1985) 159 CLR 22

Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367

Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457

L.N.C. Industries Ltd v B.M.W. (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575

Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472

Belton v General Motors-Holden's Ltd (1984) 58 ALJR 352

Re Tooth & Co Ltd (No. 2) [1978] FCA 36; (1978) 34 FLR 112

Bradken Consolidated Ltd v The Broken Hill Proprietary Co. Ltd [1979] HCA 15; (1979) 145 CLR 107

The University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447

Victoria v The Australian Building Construction Employees' And

Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25

Coomber v The Justices of the County of Berks. (1883) 9 App Cas 61

Breavington v Godleman [1988] HCA 40; (1988) 62 ALJR 447

Capital T.V. and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591

Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529

In the Matter of Tink (Supreme Court of Queensland, Ryan J, 17 October 1988, unrep.)

The Commonwealth v The State of Queensland [1975] HCA 43; (1975) 134 CLR 298

Philip Morris Inc. v Adam P. Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457

Smith v Smith [1986] HCA 36; (1986) 161 CLR 217

Friendship Corporation Pty Ltd v Adamad Pty Ltd (1984) 6 FCR 351

Industrial Equity Ltd v North Broken Hill Holdings Ltd (1986) 9 FCR 385

Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77 ALR 141

Lowe v The Minister for Immigration, Local Government & Ethnic Affairs (Federal Court of Australia, Wilcox J, 14 October 1988, unrep.)

Netcomm (Aust.) Pty Ltd v Dataplex Pty Ltd (1988) ATPR 40-883

The Queen v The Credit Tribunal (SA); Ex parte General Motors

Acceptance Corporation, Australia [1977] HCA 34; (1977) 137 CLR 545

Tobacco Institute of Australia Ltd v Australian Federation of

Consumer Organisations Inc. (Full Court of the Federal Court, 21 October 1988, unrep.)

The Queen v Duncan; Ex parte Australian Iron & Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535

Miller v Miller [1978] HCA 44; (1978) 141 CLR 269

The Union Steamship Co. of New Zealand Ltd v The Commonwealth [1925] HCA 23; (1925) 36 CLR 130

R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338

The Queen v Winneke; Ex parte Gallagher (1982) 152 CLR 211

Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237

R v Hull (No. 2) (1902) St R Qd 53

Connolly v Meagher [1906] HCA 20; (1906) 3 CLR 682

Riley v The Commonwealth [1985] HCA 82; (1985) 159 CLR 1

Union Steamship Company of Australia Pty Ltd v King (High Court of Australia, 26 October 1988, unrep.)

Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574

Darwin Bakery Pty Ltd v Sully [1981] FCA 115; (1981) 51 FLR 90

Adams v Eta Foods Ltd (1987) 78 ALR 611

HEARING

SYDNEY
8:11:1988

Counsel and Solicitors for Applicant: Sir Maurice Byers QC, A. Robertson and T. Golding instructed by Freehill Hollingdale & Page

Counsel and Solicitors for the second Respondent: K. Mason QC and J. Basten instructed by the New South Wales Crown Solicitor

ORDER

That the application be dismissed with costs.

Note: Settlement and entry of orders is dealt with by Order

36 of the Federal Court Rules.

DECISION

The Facts
The applicant is a company incorporated in New South Wales and carries on business by the operation of retail department stores. Plainly, it is a "corporation" within the definition in sub-s. 4 (1) of the Trade Practices Act 1974 ("the Trade Practices Act").

2. On 18 March 1987, the applicant caused to appear in an issue of the "North Shore Times", a newspaper which circulates in the northern suburbs of Sydney, an advertisement headed "Baby wonderland". The advertisement was published to promote the sale of various goods at the applicant's store at Chatswood, one of those northern suburbs. The words "Australian made 'Dixie' stroller by Steelcraft]" introduced one of the items promoted by the advertisement.

3. There has been no prosecution under s. 79 of the Trade Practices Act. However, on 29 February 1988, there was served on the applicant a Summons headed:

DIVISIONS 1 AND 2 "JUSTICES ACT, 1902",
CONSUMER PROTECTION Act No. 28 of 1969,
section 32 (1)
and s. 75B of the Justices Act, 1902.

and returnable before the Local Court, 302 Castlereagh Street, Sydney.

4. The second respondent was stated in the Summons to be "a public officer Department of Consumer Affairs" and to have been the informant that, on 18 March 1987, at Chatswood:

GRACE BROS. PTY LTD (hereinafter called the
Defendant) a duly incorporated company
having its registered office at 185-223
George Street, West Broadway, DID CAUSE TO
BE PUBLISHED a statement which was intended
to promote the supply of goods, to wit a
STEELCRAFT P430 DIXIE STROLLER, to his (sic)
knowledge, false in a material particular.
FURTHER PARTICULARS: Statement of page 33 of
the NORTH SHORE TIMES in the edition of
Wednesday, 18th March, 1987 was as follows:
"Australian made 'Dixie' Stroller by
Steelcraft", when in fact the said stroller
was made in Taiwan.

The Summons has not been heard before a magistrate of the Local Court of New South Wales, further steps there awaiting the outcome of these proceedings.

5. In the present proceedings in this Court, the applicant seeks orders in the nature of prohibition and certiorari against the respondents. The applicant relies upon sub-s. 163A (1) of the Trade Practices Act. This provides as follows:

163A (1) Subject to this section, a person may
institute a proceeding in the Court
seeking, in relation to a matter
arising under this Act, the making of -
(a) a declaration in relation to the
operation or effect of any
provision of this Act other than
Division 2, 2A or 3 of Part V or
in relation to the validity of any
act or thing done, proposed to be
done or purporting to have been
done under this Act; or
(b) an order by way of, or in the
nature of, prohibition, certiorari
or mandamus,
or both such a declaration and such an
order, and the Court has jurisdiction
to hear and determine the proceeding.

The ground for this relief advanced in the Application is that at the date of the offence against s. 32 of the Consumer Protection Act 1969 (NSW) ("the State Act"), the State Act was inconsistent with the Trade Practices Act, within the meaning of s. 109 of the Constitution, so that the State Act was, to the extent of the inconsistency, invalid.

6. On the return of the Application before the Court on 12 August 1988, the Court gave directions for the issue and service of notices as required by s. 78B of the Judiciary Act 1903 ("the Judiciary Act"). When the Application came on for final hearing on 24 October 1988, evidence was tendered that the necessary notices had been given and that none of the addressees of the notices wished to intervene in the proceedings or to apply for removal of the cause to the High Court.

7. On the final hearing of the Application, Sir Maurice Byers QC, Mr A. Robertson and Mr Golding appeared for the applicant. It became apparent that, despite the expansive assertion in the Application, the applicant's claim was in truth, and as one would have expected, more modest. The applicant drew attention principally to sub-ss. 53 (eb), 79 (1) (a) and (g), and ss. 85 and 163 of the Trade Practices Act, and to ss. 32, 33A, 33B, 56 and 57 of the State Act.

8. The applicant submitted that there was an inconsistency in the constitutional sense between the provisions of the State Act, as it was sought to apply them to the applicant, and the provisions of the Trade Practices Act. There was, the applicant contended a controversy between the parties and the applicant relied upon the provisions of the Trade Practices Act as an essential step in demonstrating that the relevant provisions of the State Act had no application to it, contrary to the assertion in the Summons issued on the information of the second respondent. Accordingly, the applicant submitted there was a matter arising under the Trade Practices Act, within the meaning of sub-s. 163A (1) thereof, that in relation to that matter the applicant sought relief as specified in the Application and that this Court accordingly had jurisdiction to hear and determine the proceedings.

9. I should add that the State Act was wholly repealed by s. 90 of the Fair Trading Act 1987 (NSW) ("the Fair Trading Act"). The Fair Trading Act came into force on 1 September 1987, that is to say after the publication of the advertisement in question, on 18 March 1987. However, it was accepted by counsel at the hearing before me that, if the State Act had been valid on 18 March 1987, the applicant's liability in respect of contravention of s. 32 of the State Act was preserved. This preservation was achieved initially by the operation of s. 8 of the Interpretation Act 1897 (NSW). On the repeal of that Act by the Interpretation Act 1987 (NSW), which also came into force on 1 September 1987, this preservative effect was continued by s. 30 of the current legislation.

10. The result is that notwithstanding the activity of the New South Wales Parliament since 18 March 1987, and the repeal of the legislation referred to, the applicant remains placed in the jeopardy indicated by the Summons in question and there is a live controversy between the applicant and the second respondent as to the alleged invalidity of the State Act by reason of inconsistency with the provisions of the Trade Practices Act to which I have referred.

11. The first respondent, the Magistrates of the Local Courts of New South Wales, appeared and submitted to any order the Court might make. For the second respondent, the Solicitor-General for the State of New South Wales appeared, with Mr Basten of counsel. The learned Solicitor-General submitted first that the Court lacked jurisdiction under sub-s. 163A (1) of the Trade Practices Act and secondly that, in any event, the applicant should fail because there was no inconsistency between the relevant provisions of the State Act and the Trade Practices Act.
Jurisdiction

12. Section 163A confers jurisdiction "in relation to a matter arising under this Act", but does not require the existence of a "matter" separate and distinct from the proceeding in which the Court grants or refuses relief of the character specified in the section. Section 163A deals at once with what have been described as substantive and adjective elements by providing, in the one form of words, for the right and the remedy: Hooper v Hooper [1955] HCA 15; (1955) 91 CLR 529 at 535-536; Vitzdamm-Jones v Vitzdamm-Jones [1981] HCA 8; (1981) 148 CLR 383 at 411, 425, 429; Re Tooth & Co Ltd [1978] FCA 9; (1978) 31 FLR 314 at 320.

13. The expression in s. 163A "in relation to a matter arising under the Act" follows and imports the meaning of the phrase "matter ... Arising under any laws made by the Parliament" in sub-s. 76 (ii) of the Constitution: Re Tooth & Co Ltd [1978] FCA 9; (1978) 31 FLR 314 at 330. The word "matter" focuses attention upon the substance of the dispute and thus has a wide connotation: Crouch v Commissioner for Railways (Queensland) [1985] HCA 69; (1985) 159 CLR 22 at 37. A matter will arise under a federal law where that law is relied upon for an assertion that a party to a controversy is immune from the liability or obligation alleged against him: Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 408; Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457 at 476; L.N.C. Industries Ltd v B.M.W. (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at 581. In such circumstances, the "matter" embraces the controversy between the parties, the entire proceeding, excepting only claims that are distinct and unrelated: Moorgate Tobacco Co Ltd v Philip Morris Ltd (supra) at 481-482.

14. In the present case, the immunity from the State law which the applicant asserts is the product not simply of the federal law in question but of the operation of s. 109 of the Constitution. The matter thus also may answer the description "arising under this Constitution or involving its interpretation" within the meaning of sub-s. 76 (i) of the Constitution: Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472; Belton v General Motors-Holden's Ltd (1984) 58 ALJR 352. Nevertheless, the jurisdiction of this Court, attracted under s. 163A by the existence of a matter arising under a federal law, is not lost or diminished and extends to the whole of the controversy in the sense indicated above, including the constitutional question: Re Tooth & Co Ltd (No. 2) [1978] FCA 36; (1978) 34 FLR 112 at 119, 130, 139-140.

15. There remains the question of the relief sought against the respondents under s. 163A. The learned Solicitor- General did not contend that it would be beyond the legislative competence of the Parliament to legislate so as to render the respondents (particularly the first respondent) amenable to orders of the nature described in s. 163A. But he submitted that on its proper interpretation, s. 163A did not have that effect.

16. The learned Solicitor-General referred to Bradken Consolidated Ltd v The Broken Hill Proprietary Co. Ltd [1979] HCA 15; (1979) 145 CLR 107. The case concerned proceedings against, inter alia, The Commissioner for Railways for the State of Queensland for an injunction under s. 80 of the Trade Practices Act restraining him from giving effect to certain alleged contracts, arrangements and understandings contrary to s. 45 of that Act. It was held that these provisions did not apply to the Commissioner because he was an instrumentality or agent of the Crown in right of the State of Queensland and these provisions did not by express words or necessary implication bind the Crown in right of the States.

17. But the first inquiry must be to ascertain what would be involved in holding the Crown to be "bound" and by what it would be "bound". The present case presents rather different issues to those in the Bradken Consolidated Case. It is not a question of whether the Crown in right of a State is subjected to the obligations imposed by Parts IV or V of the Trade Practices Act and to the liabilities to others which arise from contravention of those provisions. The question is whether the State law under which proceedings have been instituted against the applicant is invalid to the extent of inconsistency with provisions of the federal law and, if this be so, what relief is available to the applicant. If the State law were invalid in this sense, the reason why the first respondent would be acting without jurisdiction would lie in the inter-action of the Trade Practices Act and s. 109 of the Constitution, not simply in any question of State law. The first respondent would be bound by s. 109 of its own force: The University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 at 478-479.

18. Given that there otherwise is a matter in respect of which this Court has jurisdiction under s. 163A of the Trade Practices Act, does the section provide for remedial powers to ensure compliance with federal law and the Constitution? In answering that question, one bears particularly in mind that s. 109 of the Constitution serves a function of protecting individuals from the injustice of subjection to the requirements of valid and inconsistent laws of Commonwealth and State Parliaments on the same subject (The University of Wollongong v Metwally (supra) at 477). Where a matter arises under the Trade Practices Act and involves giving effect to s. 109, s. 163A is to be read as facilitating that result.

19. In my view, in such a case, and as a matter of necessary implication, those against whom the relief described in sub-s. 163A (1) (b) may be directed, includes persons holding offices created by State law, such as the respondent. (Similar reasoning, with respect to the construction of the generally expressed provisions of ss. 23 and 31 of the Federal Court of Australia Act 1976 ("the Federal Court Act") is apparent in Victoria v The Australian Building Construction Employees' And Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 at 61, 79-80, 93-94, 105, 138-139). It is unnecessary to decide whether on its proper construction s. 163A authorises the making in any other circumstances of orders against State officers, of or in the nature of prohibition, certiorari or mandamus.

20. The second respondent was the person upon whose information the Summons issued. Proceedings for an offence against s. 32 of the State Act shall be commenced by information and may be taken only by a person with the written authority of the responsible Minister. Section 56 of the State Act so provides and in this way modifies the otherwise general operation of s. 52 of the Justices Act (1902) (NSW). Where an information has been laid by a "public officer" within the meaning of s. 75B of the latter statute, the Court may proceed in the absence of the defendant.

21. The above reasoning as to the position of the first respondent applies equally, if not a fortiori, to the position of the second respondent as the addressee of an order of the nature specified in sub-s. 163A (1) (b) of the Trade Practices Act. I should add that, the remedies being discretionary, it may in a particular case be appropriate and sufficient to grant relief against the informant rather than those before whom the prosecution is to be conducted.

22. Finally, I have not overlooked what was said in Coomber v The Justices of the County of Berks. (1883) 9 App Cas 61 at 73. In that case, Lord Watson described the Horse Guards, among others, as one of the "great departments" of the British State. His Lordship then said that whilst the occupiers of buildings used as courts of assize or as county police stations were perhaps not strictly servants of the Crown, they were to be considered in consimili casu. The result was that buildings did not attract taxation under a certain statute. This case was relied on by the learned Solicitor-General as of assistance in construing s. 163A of the Trade Practices Act, in conjunction with the Bradken Consolidated Case.

23. I do not find the case of assistance, given the absence of a federal system in Britain, the lack of constitutional restraints upon legislative power, and the absence of the doctrine of judicial review of validity of legislation: see the discussion by Deane J. in Breavington v Godleman [1988] HCA 40; (1988) 62 ALJR 447 at 472-474. (It may also be noted that in colonial New South Wales, at the time when Lord Watson spoke in Britain, the position of officers of government, public servants and departments of state by no means followed the British position, the prerogative there having given way to legislation here; see Professor Finn's work, "Law and Government in Colonial Australia", pp 57-67).

24. The conclusions I have reached make it unnecessary to decide the applicability to these proceedings of the cross-vesting legislation, Jurisdiction of Courts (Cross- vesting) Act 1987, Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), but there was, in address, some discussion of the subject. Plainly, a question of the operation of s. 109 of the Constitution upon the State Act involves the exercise of federal jurisdiction. "Federal" postulates that which follows from the division of authority between the Commonwealth and the States; the Territories stand apart because within them the Commonwealth is the sole and sovereign authority: Capital T.V. and Appliances Pty. Ltd. v Falconer [1971] HCA 10; (1971) 125 CLR 591 at 599, 610. Laws made by the Parliament under s. 122 of the Constitution may vest jurisdiction in the High Court and other federal courts, but whilst this jurisdiction is invested by the Parliament, it is not federal jurisdiction: Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 545; Falconer's Case (supra) at 600, 601-602, 609, 612, 614-615, 620, 627-628. Nothing said in these authorities suggests that jurisdiction of whatever description may be vested in a federal court otherwise than by a law of the Parliament in exercise of its constitutional powers; cf In the Matter of Tink (Supreme Court of Queensland, Ryan J, 17 October 1988, unrep.) which appears to have proceeded on some other reading of the authorities.

25. The Solicitor-General accepted that on its face the cross-vesting legislation did not vest in this Court the totality of the federal jurisdiction which is specified, in relation to the High Court, by ss. 75 and 76 of the Constitution, and which is invested in State courts (subject to s. 38 of the Judiciary Act) by s. 39 of the Judiciary Act. This Court does not have any express grant of jurisdiction in matters arising under the Constitution or involving its interpretation, as does the High Court pursuant to sub-s. 76 (i) of the Constitution and sub-s. 30 (a) of the Judiciary Act. Constitutional questions may arise and be determined in this Court, but this is because its jurisdiction has otherwise been engaged in respect of a matter, one element of which is the constitutional question (as the present case illustrates), or because the constitutional question provides an associated matter within the meaning of s. 32 of the Federal Court Act.

26. Because the matter presently before the Court has the indubitable federal character I have indicated, no question arose as to the competency of a State legislature, with the consent of the Commonwealth Parliament (but without a reference by the State of power under sub-s. 51 (xxxvii) of the Constitution), to vest jurisdiction in the High Court, this Court or any other federal court; nor did a question arise of the competency of the Commonwealth Parliament to vest jurisdiction in a federal court otherwise than with respect to "matters" described in ss. 75, 76 and 77 of the Constitution, or by law made under s. 122 of the Constitution (see Report of the Australian Judicial System Advisory Committee of the Constitutional Commission 1987, 2'3.30, 2'3.113; Final Report of the Constitutional Commission, Vol. 1, 2'6.29-6.38; Falconer's Case (supra); The Commonwealth v The State of Queensland [1975] HCA 43; (1975) 134 CLR 298 at 313, 325; Philip Morris Inc. v Adam P. Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 at 478, 495, 516, 521, 353-535, 547-548). Nor did any question arise as to whether, in a given case, the accrued jurisdiction of this Court to entertain matters arising under a particular federal law includes claims to relief with respect to a right created by State statute which also provides for enforcement of that right in a State court: Smith v Smith [1986] HCA 36; (1986) 161 CLR 217 at 237-238, 240-241, 250-251; Friendship Corporation Pty Ltd v Adamad Pty Ltd (1984) 6 FCR 351 at 354; Industrial Equity Ltd v North Broken Hill Holdings Ltd (1986) 9 FCR 385 at 386; Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77 ALR 141; cf Lowe v The Minister for Immigration, Local Government & Ethnic Affairs (Federal Court of Australia, Wilcox J., 14 October 1988, unrep.)
The Statutory Provisions

27. I should now set out the text of the principal statutory provisions to which reference was made in argument. I turn first to the provisions of the Trade Practices Act. Sub-section 53 (eb) provides:

53 A corporation shall not, in trade or
commerce, in connexion with the supply or
possible supply of goods or services or in
connexion with the promotion by any means of
the supply or use of goods or services -
. . .

28. (eb) make a false or misleading represent-

ation concerning the place of origin of
goods.
The meaning of the term "place of origin" was considered in Netcomm (Aust.)

Pty Ltd v Dataplex Pty Ltd (1988) ATPR 40-883.

29. Sub-section 6 (2) (h) of the Trade Practices Act gives to sub-s. 53 (eb) an application to a person not being a corporation, this being for purposes otherwise falling within the head of federal legislative power, such as the trade and commerce power: The Queen v The Credit Tribunal (SA); Ex parte General Motors Acceptance Corporation, Australia [1977] HCA 34; (1977) 137 CLR 545 at 559 per Mason J. However, as I have indicated, the only operation of sub-s. 53 (eb) which is directly involved in the present case is its primary operation as directed to corporations, including trading corporations such as the applicant.

30. Sub-section 53 (eb) is a statement of imperfect obligation in the sense that whilst it specifies the party owing the obligation, it does not indicate to whom the obligation is owed or what remedies attend contravention of the norm of conduct it establishes. The identification of the other integers of liability will vary with the other provisions of the Trade Practices Act, to any one or more of which sub-s. 53 (eb) may be attached in particular proceedings; see Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc. (Full Court of the Federal Court, 21 October 1988, unrep. pp 10-13).

31. One of those provisions is s. 79. This provides, inter alia, that a person who contravenes certain provisions of Part V of the Trade Practices Act, including s. 53, is guilty of an offence punishable on conviction, in the case of a person being a body corporate, by a fine not exceeding $100,000. Sub-section 79 (6) provides that a prosecution for an offence against sub-section (1) may be commenced within 3 years after the commission of the offence.

32. Section 85, so far as material, provides as follows:

85 (1) Subject to sub-section (2), in a
prosecution under this Part in relation
to a contravention of a provision of
Part V, it is a defence if the
defendant establishes -
(a) that the contravention in respect
of which the proceeding was
instituted was due to reasonable
mistake;
(b) that the contravention in respect
of which the proceeding was
instituted was due to reasonable
reliance on information supplied
by another person; or
(c) that -
(i) the contravention in respect
of which the proceeding was
instituted was due to the
act or default of another
person, to an accident or to
some other cause beyond the
defendant's control; and
(ii) the defendant took reasonable
precautions and exercised due
diligence to avoid the
contravention.
. . .
(2) If a defence provided by sub-section
(1) involves an allegation that a
contravention was due to reliance on
information supplied by another person
or to the act or default of another
person, the defendant is not, without
leave of the Court, entitled to rely on
that defence unless he has, not later
than 7 days before the day on which the
hearing of the proceeding commences,
served on the person by whom the
proceeding was instituted a notice in
writing giving such information that
would identify or assist in the
identification of the other person as
was then in his possession.
Section 163 confers jurisdiction on this Court to hear and determine

prosecutions, and makes it clear that such prosecutions may be brought only in this Court.

33. I turn now to the provisions of the State Act. Sub-section 32 (1) states:

32 (1) Any person who publishes or causes to
be published any statement which -
(a) is intended or apparently intended
to promote the supply or use of
goods or services or the disposal
of interests in land; and
(b) is to his knowledge false or
misleading in any material
particular,
is guilty of an offence against this
Act.

Section 32 is in Part III of the State Act. Section 56 of the State Act, so far as material, provides as follows:

56 (1) Proceedings for an offence against this
Act (Part V excepted) may -
(a) be taken and prosecuted only by a
person acting with the authority
in writing of the Minister; and
(b) be disposed of summarily before -
(i) a Local Court constituted by
a Magistrate sitting alone;
(ii) an industrial magistrate; or
(iii)the Supreme Court in its
summary jurisdiction.
. . .
(2) If proceedings for an offence against
this Act (Part V excepted) are taken in
a Local Court or before an industrial
magistrate, the court or magistrate
shall not, on convicting any person for
the offence, impose a penalty exceeding
$2,000, notwithstanding that the
maximum penalty which could, apart from
this subsection, be imposed under this
Act exceeds that amount.
(3) If proceedings for an offence against
this Act (Part V excepted) are taken in
the Supreme Court in its summary
jurisdiction, the Supreme Court may
impose a penalty not exceeding the
maximum penalty prescribed by this Act
in respect of the offence.
(4) Proceedings for an offence against this
Act (Part V excepted) shall be
commenced by information but may not be
commenced after the expiration of 12
months after the time when the offence
is alleged to have been committed.

The limitation period of 12 months may be compared with that of 3 years in sub-s. 79 (6) of the Trade Practices Act.

34. Section 57 of the State Act deals with penalty. It provides:

57 (1) A person who is guilty of an offence
against this Act for which no penalty
is otherwise provided is liable to a
penalty not exceeding $10,000.
(2) Where a person convicted of an offence
against this Act is a body corporate,
every person who at the time of the
commission of the offence was a
director or officer of the body
corporate shall be deemed to have
committed the like offence and be
liable to the pecuniary penalty or
imprisonment provided by this Act for
that offence, unless he proves that the
offence was committed without his
knowledge or that he used all due
diligence to prevent the commission of
the offence.

35. Sub-section 32 (3) is in the following terms:

32 (3) In any proceedings under this section
against any person for publishing any
such statement or causing it to be
published, if it is proved that the
statement was false or misleading in
any material particular, the person who
published the statement or caused it to
be published shall be deemed to have
published it or to have caused it to be
published with knowledge of its falsity
or misleading character, as the case
may be, unless he proves that having
taken all reasonable precautions
against committing an offence under
this section he had reasonable grounds
to believe and did believe that the
statement was true and had no reason to
suspect that the statement was false or
misleading.

36. Sub-section 33A (2) and s. 33B contain provisions which present some similarity to those of ss. 82, 83 and 87 of the Trade Practices Act. The provisions in the State Act are as follows:

33A (2) Where a person is found guilty of an
offence under section 32 and the court
which made the finding also finds that
a party to the proceedings for the
offence has sustained loss or damage
which is attributable, or partly
attributable, to the reliance by that
other person on the statement to which
the offence relates, that court may, in
addition to any penalty imposed in
respect of the offence, make an order
directing the person found guilty of
the offence, within a period specified
in the order -
(a) to refund any money paid, or to
return any property transferred,
to him by that party to the
proceedings; or
(b) to pay to that other person money
equivalent in amount to the loss
or damage that that party has
sustained.
33B (1) The obligation imposed by section 32
(1) or (2) on any person not to publish
or cause to be published a statement in
contravention of either of those
subsections is a duty which is owed by
him to every other person, and a breach
of that duty is actionable (subject to
the defences and other incidents
applying to actions for breach of
statutory duty) at the suit of any
person who has sustained loss or damage
in consequence of that breach, whether
or not he is a person who purchased or
used any goods or services, or acquired
any interests in land, in reliance upon
the statement.
(2) Where, in any proceedings brought
against a person for an offence under
section 32 (1) or (2), a finding of
fact is made by the court in which
those proceedings are brought, a
document under the seal of that court
from which the finding of fact appears
is admissible in evidence in
proceedings brought under subsection
(1) against that person and is prima
facie evidence of that fact.

37. I should add a reference to s. 44 of the Fair Trading Act because in submissions attention was directed to it, in contrast to the provisions of the previous legislation, as presenting a "mirror image" of s. 53 of the Trade Practices Act. Section 44 (i) provides:

44 A person shall not, in trade or commerce, in
connection with the supply or possible
supply of goods or services or in connection
with the promotion by any means of the
supply or use of goods or services -
. . .
(i) make a false or misleading represent-
ation concerning the place of origin of
goods.

Further, s. 62 of the Fair Trading Act provides that a person who contravenes a provision such as s. 44, is guilty of an offence and is liable, in the case of a body corporate, to a penalty not exceeding $100,000; sub-s. 62 (3) states:

62 (3) If an act or omission is both an
offence against this Act and an offence
under a law of the Commonwealth or a
law in force elsewhere in Australia, a
person convicted of an offence under
that law is not liable to be convicted
of the offence against this Act.

The terms of this provision are evocative of sub-s. 75 (2) of the Trade Practices Act. Section 75 is of central importance to the argument concerning inconsistency.
Inconsistency

38. Section 75 is included in Part V of the Trade Practices Act. It provides:

75 (1) Except as provided by sub-section (2),
this Part is not intended to exclude or
limit the concurrent operation of any
law of a State or Territory.
(2) Where an act or omission of a person is
both an offence against section 79 and
an offence under the law of a State or
Territory and that person is convicted
of either of those offences, he is not
liable to be convicted of the other of
those offences.
(3) Except as expressly provided by this
Part, nothing in this Part shall be
taken to limit, restrict or otherwise
affect any right or remedy a person
would have had if this Part had not
been enacted.

39. Section 79 and the other provisions dealing with offences are contained in Part VI. Sub-section 53 (eb) is contained in Part V, the same Part as s. 75, so that sub-s. 53 (eb) is picked up by the words "this Part is not intended ..." in sub-s. 75 (1).

40. Section 75 of the Trade Practices Act is concerned not only with the inter-relation between the federal Act and State laws, but also with the interrelation between the federal Act and the laws of a Territory. The present proceedings are concerned only with the first aspect and with inconsistency between federal and State laws. Accordingly, in what follows, I deal only with this operation of s. 75.

41. The Commonwealth Parliament has indicated in s. 75 an intention not to interfere with the concurrent operation of federal and State laws, except as provided by sub-s. (2). That is the force of the statement in sub-s. 75 (1) that Part V is not intended to exclude or limit the concurrent operation of any law of a State, except as provided in sub-s. 75 (2).

42. Sub-section 75 (3) confirms this interpretation by indicating an intention not to limit, restrict or otherwise affect any right or remedy which an applicant might have, inter alia, under State law in respect of conduct proscribed under Part V. Thus it is, for example, that claims in tort frequently are brought in the accrued jurisdiction of this Court as elements in matters arising from contravention of Division 1 of Part V.

43. Plainly, the use in sub-s. 75 (1) of the term "concurrent" to describe the operation of State and federal laws, reflects the division of federal legislative powers between those exclusive of (eg ss. 52 and 90 of the Constitution) and those concurrent with, the legislative powers of the States. The question is what is meant by "concurrent operation" in sub-s. 75 (1), for it is this which the Parliament intends not to limit or exclude.

44. When used to describe the operation of federal and State laws, the adjective "concurrent" may, in accordance with Australian constitutional doctrine, have various meanings. First, it may identify laws which operate each in aid of the other, and neither independently of the other; an example is the legislation considered in The Queen v Duncan; Ex parte Australian Iron & Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535. Here, s. 109 of the Constitution has no role to play. Secondly, "concurrent" may describe laws which, in a geometrical metaphor, meet at the same point; there may then be what Barwick CJ called a textual collision (Miller v Miller [1978] HCA 44; (1978) 141 CLR 269 at 275) because to obey one law is to disobey the other. The present is not such a case. This direct hostility, to adapt the phrase of Higgins J in The Union Steamship Co. of New Zealand Ltd v The Commonwealth [1925] HCA 23; (1925) 36 CLR 130 at 158, puts the citizen in an intolerable situation if the concurrent operation of both laws is to be preserved. That hostility presents the paradigm case for the application of s. 109 of the Constitution so as to deny validity to the State law to the extent of the inconsistency, thus putting a stop to the concurrent operation of State law with the federal law.

45. Thirdly, the term "concurrent" may identify laws which exist at the same time, each independently of the other, and which, in a metaphorical sense, run side by side without textual collision. Whether s. 109 operates to deny validity to the State law in such cases will depend largely upon the intention of the Commonwealth Parliament as perceived from the true construction of its law. On the other hand, where there is textual collision as described above, producing "direct inconsistency", this result cannot be avoided by a provision in the federal law evincing an intention that the federal law is not to cover the field: R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338 at 346-347 per Mason J. Accordingly, sub-s. 75 (1) of the Trade Practices Act cannot have been designed to deal with direct inconsistency; rather, it is concerned to negative "any suggestion of inconsistency otherwise arising" and to make it plain that the Trade Practices Act "is not an exhaustive enactment on the topics with which it deals". These are the terms used by Mason J in The Queen v The Credit Tribunal (SA); Ex parte General Motors Acceptance Corporation, Australia [1977] HCA 34; (1977) 137 CLR 545 at 564, in a judgment with which Barwick CJ, Gibbs, Stephen and Jacobs JJ agreed. In the same case (at 565-566), Murphy J said that s. 75 of the Trade Practices Act expresses the intent that State laws on the subjects dealt with in Part V are not to be precluded except where they "directly collide" with the provisions of the Act.

46. The Commonwealth and State legislatures both may prescribe what a rule of conduct shall be and impose sanctions, so that it is possible for the citizen to comply with both laws. There is no "textual collision", but there nevertheless may be inconsistency. The applicant urged that this was such a case. Dixon J described the situation as follows in Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 at 483:

When the Parliament of the Commonwealth and
the Parliament of a State each legislate
upon the same subject and prescribe what the
rule of conduct shall be, they make laws
which are inconsistent, notwithstanding that
the rule of conduct is identical which each
prescribes, and sec. 109 applies. That this
is so is settled, at least where the
sanctions they impose are diverse (Hume v
Palmer [1926] HCA 50; (1926) 38 CLR 441). But the reason
is that, by prescribing the rule to be
observed, the Federal statute shows an
intention to cover the subject matter and
provide what the law upon it shall be. If
it appeared that the Federal law was
intended to be supplementary to or
cumulative upon State law, then no
inconsistency would be exhibited in imposing
the same duties or in inflicting different
penalties. The inconsistency does not lie
in the mere coexistence of two laws which
are susceptible of simultaneous obedience.
It depends upon the intention of the
paramount Legislature to express by its
enactment, completely, exhaustively, or
exclusively, what shall be the law governing
the particular conduct or matter to which
its intention is directed. When a Federal
statute discloses such an intention, it is
inconsistent with it for the law of a State
to govern the same conduct or matter.

More recently, in The Queen v Winneke; Ex parte Gallagher (1982) 152 CLR 211 at 218, Gibbs C.J. said:

However, the fact that a Commonwealth Act
and a State Act impose different penalties
for the same conduct does not necessarily
mean that the laws are inconsistent. If the
two laws are made for the same purpose -
e.g. if they prescribe substantially
identical rules on a particular subject but
with different penalties for contravention -
it will be easy to conclude that the
Commonwealth law covers the whole subject-
matter, and that there is an inconsistency:
see Hume v Palmer [1926] HCA 50; (1926) 38 CLR 441 and Reg.
v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131
CLR 338). However, the two laws may deal
with different subject matters, so that each
may validly apply in relation to the same
set of facts.

I draw attention to the expression "substantially identical rules on a particular subject". It also is to be borne in mind that Gibbs CJ was not in this passage directing his remarks to the case where the Commonwealth Parliament had expressly evinced an intention concerning the continuance of concurrent operation of both laws. As I have said, sub-s. 75 (1) is concerned to negative what otherwise would be inconsistency from the coverage of the field by the federal law. Hence, in my view, the applicant may succeed only if it brings itself within the exception to sub-s. 75 (1), namely sub-s. 75 (2).

47. (It should be observed that the present is not a case where the Commonwealth law grants a permission or right and the State law prohibits that which is permitted or prohibits the exercise of the right. Professor Sawer has described this as a third type of inconsistency ("Repugnancy and Inconsistency of Legislation", (1980) 11 Cambrian L Rev 101 at 102). Mason J observed in Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 at 259-260, that cases of this kind have sometimes been treated as a separate head of inconsistency, although even then they have generally been related to the "cover the field" test apparently on the ground that direct inconsistency is confined to a situation in which simultaneous obedience to both laws is impossible.)

48. Sub-section 75 (2) of the Trade Practices Act is directed to a situation where an act or omission of a person is an offence both against s. 79 (a provision in Part VI) and an offence against the law of a State. The expression in sub-s. 79 (2) "an act or omission of a person" identifies acts or omissions which are the elements or integers of the offence, not the evidence adduced to prove them: R v Hull (No. 2) (1902) St R Qd 53 at 57-58 per Griffith CJ; Connolly v Meagher [1906] HCA 20; (1906) 3 CLR 682; Riley v The Commonwealth [1985] HCA 82; (1985) 159 CLR 1 at 18-20 per Deane J.

49. Where a person has been convicted under either federal or State law, one looks at the elements of that offence and asks whether those elements also constitute an offence under the other law. If so, there is no liability to conviction for contravention of that other law. The circumstance that there is a difference in penalty on conviction is not sufficient for the operation of sub-s. 75 (2).

50. If the federal offence was that for which the conviction was recorded, then sub-s. 75 (2) operates as an indication by the Parliament of the Commonwealth of its intention that the federal law shall be the law governing the conduct in question; accordingly, the State law yields under s. 109 of the Constitution. On the other hand, if the temporal sequence is reversed and the law under which the person has been convicted is that of the State, then sub-s. 75 (2) operates to withdraw the Commonwealth law from the field, not by operation of any constitutional prohibition or inhibition, but by a particular operation of the Commonwealth law itself. The result is what the High Court recently has described as "mutual co-existence" between the two laws: Union Steampship Company of Australia Pty Ltd v King (26 October 1988, unrep., pp 15-16 of print).

51. This may be compared with the operation of sub-s. 30 (2) of the Acts Interpretation Act 1901, which provides, inter alia, that where an act or omission constitutes an offence under a federal Act and a State Act and the offender has been punished for that offence under the State Act, he shall not be liable to be punished for the offence under the federal Act; see also Crimes Act 1914 s. 11. These two provisions proceed in accordance with the principle that there is no prima facie presumption that a Commonwealth statute, by making it an offence to do a particular act, evinces an intention to deal with that act to the exclusion of any other law: The Queen v Winneke; Ex parte Gallagher (1982) 152 CLR 211 at 219, 224, 233.

52. Accordingly, sub-s. 75 (2) of the Trade Practices Act is enlivened by the entry of the first conviction. Section 79 of the Trade Practices Act and the State law in question confer, in a sense, powers to prosecute for offences and sub-s. 75 (2) is concerned with what happens in the exercise of those powers (cf The Queen v Winneke; Ex parte Gallagher (supra) at 221, 233; Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574 at 588). Sub-section 75 (2) speaks when pursuant to one of the two laws proscribing the conduct in question there has been pursuit of a person to conviction; that person is then not liable to conviction for the offence under the other law.

53. That has not happened here. There has been no conviction of the applicant under the State Act. Nor has there been a prosecution under s. 79 of the Trade Practices Act for contravention of sub-s. 53 (eb) or otherwise. Accordingly, in proceeding with the prosecution under the State Act, the respondents are not engaging in any conduct which attracts against them an order by way of, or in the nature of, prohibition or certiorari pursuant to s. 163A of the Trade Practices Act. For that reason, the present Application to this Court should fail.

54. Even if the temporal sequence were changed and there had been a prosecution of the applicant under s. 79 of the Trade Practices Act, leading to conviction for contravention of sub-s. 53 (eb), that would not necessarily mean that a subsequent prosecution of the applicant under the State law would attract a remedy under s. 163A of the Trade Practices Act on the footing that there had arisen an inconsistency which required the State law to yield. For this to happen, it would be necessary for the applicant to show that the act or omission which was an offence under the Trade Practices Act was also an offence under the State Act.

55. There is a question of the application of sub-s. 75 (2) to cases where the elements of the two offences do not correspond, even though there may be some elements in common. To continue with the above example, if the offence for which the applicant had been convicted under the federal law had consisted of four essential elements A + B + C + D, and the offence under the State law consisted of the same four essential elements, then there would be no difficulty in the application of sub-s. 75 (2). The "mirror image" provisions of the Fair Trading Act, to which I have referred, may supply examples. If, on the other hand, the State law had not four but five essential elements, A + B + C + D + E, then it is difficult to see how within the meaning of sub-s. 75 (2) an act or omission of a person was both an offence against s. 79, and an offence under the State law. Yet again, if the offence under the State law comprised three essential elements, A + B + C (that is to say a lesser number than that under the federal law), then it might be accurate to say that an act or omission comprising elements A + B + C + D was an offence under both laws, even though the presence of element D was superfluous as regards the State law (cf Riley v The Commonwealth [1985] HCA 82; (1985) 159 CLR 1 at 18-19 per Deane J).

56. In the present case, it may be true to say that the federal law and the State law prescribe "substantially identical rules on a particular subject but with different penalties for contravention" within the sense of the remarks of Gibbs CJ in The Queen v Winneke; Ex parte Gallagher (supra). That would be indicative of inconsistency if one were considering the question in the absence of the expression of intention by the Parliament of the Commonwealth found in sub-s. 75 (1) of the Trade Practices Act. However, the intention is that there be concurrent operation of the two laws, in the sense I have earlier discussed, and that this is not to be excluded or limited, except as provided by sub-s. 75 (2). What sub-s. 75 (2) requires for the displacement of the State law in favour of the federal law is a conviction under the federal law where an act or omission is both an offence against s. 79 of the Trade Practices Act and the State law. Sub-section 75 (2) thus does not select as its criterion for operation the existence of substantially identical rules on a particular subject with different penalties for contravention; it requires a closer analysis of the integers of the offences, of the kind I have indicated.

57. Counsel referred to important differences in the integers involved with a prosecution under s. 79 for contravention of the applicant of sub-s. 53 (eb) of the Trade Practices Act, on the one hand, and on the other a prosecution for a contravention of sub-s. 32 (1) of the State Act. There are different limitation periods applicable, 3 years for the federal offence, 12 months for the State offence. Mens rea is not an element in the federal offence and the liability imposed by s. 53 is strict in the absence of one of the defences provided in s. 85: Darwin Bakery Pty Ltd v Sully [1981] FCA 115; (1981) 51 FLR 90 at 96. Knowledge is required and will be presumed for the commission of the State offence, unless the accused proves the matters spelled out in sub-s. 31 (3) of the State Act.

58. There are, as I have said, the defences provided in s. 85 of the Trade Practices Act (as to which see Adams v Eta Foods Ltd (1987) 78 ALR 611) but, by way of emphasis of the conclusion I have already indicated as to the proper outcome of the present proceedings, one does not know of the extent to which reliance might properly be placed by the applicant upon s. 85 if a prosecution under s. 79 were instituted. However, a comparison of sub-s. 85 (1) of the Trade Practices Act and sub-s. 32 (3) of the State Act does indicate that in a given case it may be that whilst a defendant cannot prove the taking of all reasonable precautions and the other matters spelled out in sub-s. 32 (3) (and he is deemed to have published the material with knowledge of its falsity or of its misleading character, thereby becoming liable to conviction under the State Act) nevertheless in a prosecution under s. 79 the accused, on the same facts, might be able to establish one or other of the defences provided for in paras. (a), (b) and (c) of sub-s. 85 (1). Therefore, if one assumes a prior conviction under the State Act, it by no means necessarily follows that the acts or omissions constituting the offence under the State Act also constitute the offence against the Trade Practices Act, and thereby attract sub-s. 75 (2).

59. The Application should be dismissed with costs.