Singapore Airlines Ltd v Australian Competition and Consumer Commission [2009] FCAFC 136 (2 October 2009)

Singapore Airlines Ltd v Australian Competition and Consumer Commission [2009] FCAFC 136

TRADE PRACTICES – challenge to validity of Notices issued pursuant to s 155 of the Trade Practices Act 1974 (Cth) – analysis of the phrase "including on routes to and/or from Australia" – whether the phrase extends the Notices to the making and giving effect to arrangements fixing the price of international air cargo services supplied on any route throughout the world – whether the matters the subject of the Notices include services not supplied in competition in a market in Australia – Notices not to be construed in a "precious" or "over-technical" manner – "matters" identified in Notices capable of amounting to a contravention of s 45 and constitute valid exercise of power – not "idle speculation" that the relevant competition occurred in a market in Australia – appeal dismissed.

Trade Practices Act 1974 (Cth), ss 4E, 45, 45A, 155

Auskay International Manufacturing & Trade Pty Ltd (ACN 078 654 243) v Qantas Airways Ltd (ACN 009 661 901) [2008] FCA 1458; (2008) 251 ALR 166 referred to
Australian Competition and Consumer Commission v Qantas Airways Ltd (ACN 009 661 901) [2008] FCA 1976; (2008) 253 ALR 89 referred to
Australian Competition and Consumer Commission v Singapore Airlines Cargo Pte Ltd (ACN 095 934 857) [2009] FCA 510; (2009) 256 ALR 458 referred to
Bannerman v Mildura Fruit Juices Pty Ltd [1984] FCA 156; (1984) 2 FCR 581 referred to
Korean Airlines Co Ltd v Australian Competition and Consumer Commission (No 3) [2008] FCA 701; (2008) 247 ALR 781
Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman [1979] FCA 15; (1979) 36 FLR 450 referred to
Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman (No 3) [1980] FCA 94; (1980) 47 FLR 163 referred to
Pioneer Concrete (Vic) Proprietary Limited v Trade Practices Commission [1982] HCA 65; (1982) 152 CLR 460 referred to
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1982) 57 FLR 368 referred to
Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169 referred to
Queensland Wire Industries Proprietary Limited v The Broken Hill Proprietary Company Limited [1989] HCA 6; (1989) 167 CLR 177 referred to
Riverstone Computer Services Pty Ltd (ACN 002 311 462) v IBM Global Financing Australia Limited (ACN 002 955 571) [2002] FCA 1608 referred to
S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 referred to
Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267; (2004) 140 FCR 170 followed
Sherritt Gordon Mines Ltd v Commissioner of Taxation of the Commonwealth of Australia [1977] VR 342 referred to
Trade Practices Commission v Pioneer Concrete (Vic) Pty Ltd (1981) 36 ALR 151 referred to
Victoria v The Commonwealth (1996) 187 CLR 416 referred to
W. A. Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 referred to
YZ Finance Co Pty Limited v Cummings [1964] HCA 12; (1964) 109 CLR 395 referred to

J. D. Heydon, Trade Practices Law

SINGAPORE AIRLINES LTD and SINGAPORE AIRLINES CARGO PTE LTD v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
VID 266 of 2009

BLACK CJ, MANSFIELD AND JACOBSON JJ
2 OCTOBER 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 266 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SINGAPORE AIRLINES LTD
First Appellant

SINGAPORE AIRLINES CARGO PTE LTD
Second Appellant

AND:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Respondent

JUDGES:	BLACK CJ, MANSFIELD AND JACOBSON JJ
DATE OF ORDER:	2 OCTOBER 2009
WHERE MADE:	MELBOURNE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using the Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 266 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SINGAPORE AIRLINES LTD
First Appellant

SINGAPORE AIRLINES CARGO PTE LTD
Second Appellant

AND:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Respondent

JUDGES:	BLACK CJ, MANSFIELD AND JACOBSON JJ
DATE:	2 OCTOBER 2009
PLACE:	MELBOURNE

1 During 2007 and 2008, the Chairman of the Australian Competition and Consumer Commission ("the ACCC") issued five Notices under s 155 of the Trade Practices Act 1974 (Cth) ("the Act") to Singapore Airlines Ltd and its wholly owned subsidiary, Singapore Airlines Cargo Pte Ltd (collectively "Singapore Airlines"), seeking information and documents relating to matters said to constitute unlawful price fixing arrangements under s 45 of the Act.

2 The Notices alleged a number of different matters that constitute, or may constitute, contraventions of s 45. The matters include arrangements or understandings containing provisions for the imposition by Singapore Airlines, and certain other international air cargo carriers, of a fuel surcharge in respect of international air cargo services supplied by the airlines "including on routes to and/or from Australia".

3 Singapore Airlines sought to set aside the Notices on the ground that the matters referred to in the Notices are defined so widely as to be incapable of amounting to a contravention of the Act. This contention turns on the proper construction of the phrase "including on routes to and/or from Australia" which appears twice in the Notices.

4 The effect of Singapore Airlines’ contention is that by the inclusion of that phrase, the Notices extend to the making and giving effect to arrangements containing provisions fixing the prices of international air cargo services supplied on any route throughout the world without any connection to Australia. Thus, Singapore Airlines contends that the matters which are the subject of the Notices include services that are not supplied in competition in a market in Australia within s 45(3) and s 4E of the Act.

5 The primary judge, Middleton J, found against Singapore Airlines on the proper construction of the Notices. He held that the Notices were concerned with arrangements between competitors carrying on business in Australia for the supply of air cargo services only in respect of routes to and/or from Australia. His Honour held that, construed in this way, the Notices only envisage the possibility of a contravention in a market in Australia.

6 Singapore Airlines appeals against the primary judge’s orders dismissing its application to set aside the Notices. Three issues are raised on the appeal. The first issue is as to the proper construction of the Notices.

7 The second issue is raised by a notice of contention filed by the ACCC. It contends that the market for air cargo services is global so that, even if the Notices include air cargo services on routes between two points outside Australia, it is not idle to suggest that those services may be provided in a market in Australia.

8 The third issue relates only to the fourth and fifth Notices. Those Notices seek information and documents concerning airline industry meetings within a specified period but without, on the face of the Notices, specifying the subject matter of the meetings.

9 The relevant provisions have been dealt with in many authorities and it is not necessary to set them out here.

10 Section 155(1) of the Act authorises the Chairperson of the ACCC to issue a notice to a person to furnish information or produce documents where he or she has reason to believe that the person is capable of furnishing information, producing documents, or giving evidence "relating to a matter that constitutes, or may constitute, a contravention of [the] Act".

11 Section 45(2) prohibits a corporation from making an arrangement or understanding that has the purpose or effect of substantially lessening competition, and from giving effect to such an arrangement or understanding. The competition with which s 45 is concerned is competition in a market in Australia: s 45(3) and s 4E.

12 Section 45A, as it stood at the time of the Notices, operated upon s 45 to deem price-fixing arrangements to have the purpose, effect or likely effect of substantially lessening competition. Section 45A could not take effect unless the parties to the arrangement were in competition with each other in a market in Australia.

13 Section 45A was repealed with effect from 24 July 2009. Price-fixing arrangements are now governed by the terms of the associated legislative amendments but the Notices were issued before the operative date.

14 The first three Notices were in similar terms. The first two were issued to Singapore Airlines Ltd and the third to Singapore Airlines Pte Ltd. They sought information and documents relating to matters specified in wide terms as constituting contraventions of s 45. It is sufficient for present purposes to refer to the salient portions of the first Notice which we will do below.

15 The fourth and fifth Notices sought, inter alia, documents referring to meetings of international air cargo carriers and minutes of those meetings. We will refer below to the relevant parts of the Notices.

16 Each of the Notices commenced with a recital that Mr Graeme Samuel, the Chairman of the ACCC, had "reason to believe" that Singapore Airlines is capable of furnishing information and producing documents relating to matters that constitute or may constitute contraventions of s 45 of the Act.

17 The Notices then set out the matters that constitute, or may constitute, the contravention. The effect of what was stated was that certain international air cargo carriers made, and gave effect to, arrangements to introduce a fuel surcharge (and a security or war risk surcharge, as well as to increase certain "general freight rates") which had the purpose or effect of fixing prices for the supply of international air cargo services.

18 For present purposes, it is sufficient to set out the "matters" in respect of the alleged arrangements for the introduction of the fuel surcharge, contained in the first Notice as follows:

19 The Notice went on to state that Mr Samuel required Singapore Airlines to furnish the information specified in Schedule 1 of the Notice and to produce the documents specified in Schedule 2 by the time and date specified in the Notice.

20 The Notice contained definitions of various terms, including a definition of "fuel surcharge". It is not necessary to repeat this definition but it is necessary to refer to two other defined terms.

21 "International air cargo services" was defined to mean transportation of air cargo between and at international airports, including between and at Australia and foreign airports, by international air cargo carriers, and included transportation through "code sharing" or "interlining arrangements". This expression was not defined in the second to fifth Notices.

22 "International air cargo carrier" was defined to mean an air carrier that transports air cargo between international airports, including between Australia and foreign airports.

23 In order to deal with the issue raised in respect of the fourth and fifth Notices, we need only set out the documents required to be produced by [2] and [3] of Schedule 2 of those Notices. These were as follows:

24 The information which was required to be furnished was described by reference to the meetings of those Committees during the specified period and related to any decision or action by Singapore Airlines to impose or vary the fuel surcharge in response to communications made at or before those meetings.

25 The primary judge observed at [46] that it would not be appropriate to delete the word "including" in the phrase "including on routes to and/or from Australia", but he acknowledged that his construction of the Notices had the effect of construing them as if that word were deleted.

26 His Honour said that the phrase "including on routes to and/or from Australia", where first appearing in the Notices, identifies those international air cargo carriers that are alleged to be parties to the arrangement. He went on to say:

28 In the proceedings at first instance, Singapore Airlines accepted that services on routes from Australia on outbound flights are supplied in a market in Australia. The primary judge’s reasons therefore addressed the question of whether services on inbound flights and international flights between two or more points wholly outside Australia are part of a market in Australia.

29 The gravamen of Singapore Airlines’ submission on this issue was that when airlines carry cargo to Australia from another country, the contracting for the services and the setting of rates takes place entirely outside Australia.

30 The primary judge at [66] rejected the proposition that the place of contracting is determinative of the geographic location of the market.

31 In doing so, his Honour referred to a number of decision of single judges of the Court in which the notion of a "market in Australia" had been considered: Riverstone Computer Services Pty Ltd (ACN 002 311 462) v IBM Global Financing Australia Limited (ACN 002 955 571) [2002] FCA 1608 (Hill J); Auskay International Manufacturing & Trade Pty Ltd (ACN 078 654 243) v Qantas Airways Ltd (ACN 009 661 901) [2008] FCA 1458; (2008) 251 ALR 166 (Tracey J); Australian Competition and Consumer Commission v Qantas Airways Ltd (ACN 009 661 901) [2008] FCA 1976; (2008) 253 ALR 89 (Lindgren J).

32 He concluded, upon the basis of those authorities, that the Notices did not deal with a market that is wholly outside Australia, but rather with a possible contravention of s 45 in relation to inbound and outbound services in a market in Australia.

33 As the primary judge observed, there is an extensive body of authority on the proper construction of sub-s 155(1) of the Act and the scope and requirements of notices issued under that sub-section. The authorities were considered by Sackville and Emmett JJ in Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267; (2004) 140 FCR 170 at 182-183.

34 In that case, their Honours set out a series of propositions drawn largely from decisions of Full Courts of the Federal Court. Four of the propositions are applicable to the issues raised on this appeal.

35 First, in order to satisfy the requirements of s 155(1), it must appear from the terms of the notice that it seeks information "relating to a matter" of a kind described in that sub-section, relevantly, one that constitutes or may constitute a contravention of s 45. In determining that question, the Court is not to adopt a "precious", "over-technical" or "hypercritical" approach to the construction of the notice: Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1982) 57 FLR 368 at 375–376; Bannerman v Mildura Fruit Juices Pty Ltd [1984] FCA 156; (1984) 2 FCR 581 at 584; S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 369–370; Seven Network [2004] FCAFC 267; 140 FCR 170 at [49(ii)].

36 Second, the word "matter" is to be construed in its ordinary sense; it refers to a body of facts which constitute, or may constitute, a contravention of the Act: Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman [1979] FCA 15; (1979) 36 FLR 450 at 474; W. A. Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 at 179; S A Brewing Holdings 23 FCR 357 at 360; Seven Network [2004] FCAFC 267; 140 FCR 170 at [49(iv)].

37 Third, a matter "may constitute" a contravention if it refers to a body of facts not fully known, and which may, when they are fully known, reveal themselves as constituting a contravention: W. A. Pines [1980] FCA 79; 41 FLR 175 at 179; S A Brewing Holdings 23 FCR 357 at 370; Seven Network [2004] FCAFC 267; 140 FCR 170 at [49(v)].

38 Fourth, where the "matter" referred to in the notice is incapable, after allowing for undiscovered facts, of amounting to a contravention of the Act, the issue of the notice is not a valid exercise of power: W. A. Pines [1980] FCA 79; 41 FLR 175 at 179; S A Brewing Holdings 23 FCR 357 at 371; Seven Network [2004] FCAFC 267; 140 FCR 170 at [49(vi)].

39 It was common ground between the parties that the phrase "including on routes to and/or from Australia", where first appearing in the Notices, introduces a limiting factor. As the primary judge said at [48], it identifies the international air cargo carriers who are alleged to be parties to the arrangement.

40 The issue which divides the parties, and on which the appeal largely turns, is the proper construction of the phrase where second appearing in the Notices.

41 Dr Griffiths SC and Mr O’Bryan, who appeared for Singapore Airlines, made submissions on the meaning of the phrase and these appear at first sight to have some force.

42 They pointed to an apparent contradiction in the approach to construction adopted by the primary judge. As they emphasised, his Honour was of the view that a "blue pencil" could not be applied so as to delete the word "including". Yet the effect of his interpretation of the phrase was to construe it as if that word were removed.

43 The fact that the ACCC has suggested at various points more than one approach to the interpretation of its document highlights the difficulty encountered in construing clauses such as these, which regrettably remain common in legal drafting.

44 The ACCC’s written submissions proceeded on the basis that the primary judge was correct to find that the word "including", where it appeared second, was otiose. However, in his oral address, Mr Sheahan SC adopted a different construction, which leaves some work to do for the word "including" in the proper construction of the Notice.

45 Mr Sheahan’s oral submission addressed the phrase in its full context and took into account the way in which it was used at each point in [1] of the Notice. The effect of what he said is set out below.

46 Where the phrase first appears in the Notice, it qualifies the competitors. They must be competitors for the supply of international air cargo services, including on routes to and/or from Australia. The significance of the word "including", and the words which immediately follow it, is that if carriers do not compete on routes to and/or from Australia, they are not within the class identified in the Notice.

47 In that context, the phrase is one of limitation. It is not one of expansion, even though that is commonly the effect of the word "including", depending of course upon a consideration of the full context: Sherritt Gordon Mines Ltd v Commissioner of Taxation of the Commonwealth of Australia [1977] VR 342 at 353; YZ Finance Co Pty Limited v Cummings [1964] HCA 12; (1964) 109 CLR 395 at 398, 401-402, 405.

48 In Mr Sheahan’s submission, where the phrase "including on routes to and/or from Australia" appears the second time, it qualifies the provisions of the arrangements which are said to have the purpose or effect of controlling or fixing prices.

49 Each such provision is said to have the proscribed purpose or effect of fixing prices. The purpose or effect applies to the price of international air cargo services supplied by the parties to the arrangement. Those services extend to routes entirely outside Australia.

50 But it is only the provisions of any arrangements that have the purpose or effect of fixing prices on routes which include routes to and/or from Australia that fall within the Notice. This means that if the provisions do not have the purpose or effect of fixing prices on routes to and/or from Australia, they do not fall within the Notices.

51 Construed in this way, the "matters" relating to which the information is sought by the Notices are arrangements or understandings:

• between any two or more of Singapore Airlines, the stipulated carriers, and other international air cargo carriers with whom Singapore Airlines competes for the supply of international air cargo services on routes which (necessarily) include routes to and/or from Australia; and

• which contain provisions that have the purpose or effect of fixing prices in respect of international air cargo services supplied on routes, which include (but are not limited to) routes to and/or from Australia, by any of the carriers falling within the class identified in the first part of the Notice and described as the Fuel Surcharge Parties. This will extend to provisions affecting routes entirely outside Australia, provided that they have the proscribed purpose or effect on routes to and/or from Australia.

52 In our view, this is the proper construction of the Notices. It gives a sensible, rather than a precious or hypercritical approach to the construction of the Notices.

53 It is true that this was not the construction for which the ACCC previously contended and it is not that which was adopted by the primary judge. It is also true, as Gibbs CJ said in Pioneer Concrete (Vic) Proprietary Limited v Trade Practices Commission [1982] HCA 65; (1982) 152 CLR 460 at 468, that the power under s 155 is a drastic one which must be exercised with care.

54 But the issue of construction which now arises is not concerned with the information sought by the Notices. There was no suggestion that the schedules to the Notices failed to convey with reasonable clarity to the recipient the information to be furnished: Seven Network at [49(i)]. Rather, the dispute between the parties was as to whether the Notices disclose a "matter" entitling the ACCC to require the recipient to furnish the information stipulated in the schedules.

55 In our view, subject to the question of whether the "matters" referred to in the Notices identify a market in Australia, construed in the manner stated above, the matters are capable of amounting to a contravention of s 45 so as to amount to a valid exercise of power.

56 We do not need to consider the question of whether s 46 of the Acts Interpretation Act 1901 (Cth) operates so as to effect a partial validation of the Notices: Victoria v The Commonwealth (1996) 187 CLR 416 at 502. This is because we are of the view that the market for the services comprised in the matters is capable of amounting to a market in Australia.

57 The relevant services are "international air cargo services". They are defined to mean transportation of air cargo between international airports, including between Australia and foreign airports, and they include transportation by international air cargo carriers through "code-sharing" or "interlining arrangements". These are explained in Australian Competition and Consumer Commission v Singapore Airlines Cargo Pte Ltd (ACN 095 934 857) [2009] FCA 510; (2009) 256 ALR 458 at [16].

58 Before turning to the question of the market, we should add that the definition of "international air cargo services" reinforces the view we have reached as to the proper construction of the "matters". The definition indicates that the services (at least in the first Notice) are not confined to routes to or from Australia but include those legs of the journey which comprise individual sectors of the journey from Australia to the ultimate destination, or from the point of origin to Australia.

59 The primary judge explained this concept at [6]-[9] by way of a hypothetical example. Computers transported from Australia to Bangalore, he said, might conceivably be required to be first transported in a separate leg from Bangalore to Singapore. While the cargo rates for this leg of the journey might be fixed solely between parties in Singapore and Bangalore, the primary judge said, those rates would no doubt have an effect on the total cost of the transaction (and would thus have an overall impact in a market in Australia).

60 The issue of whether the Notices sufficiently identify a market in Australia turns substantially upon a number of principles as to the scope of the power under s 155. These principles are additional to those we identified at [35]-[38], and we set them out out below.

61 The power conferred under s 155 is to be used only for the purpose of the ACCC’s performance of the administrative function of determining whether it should institute proceedings: Trade Practices Commission v Pioneer Concrete (Vic) Pty Ltd (1981) 36 ALR 151 at 166-7; Korean Airlines Co Ltd v Australian Competition and Consumer Commission (No 3) [2008] FCA 701; (2008) 247 ALR 781 at [10]- [11] and [91].

62 The power may be exercised to ascertain facts which may merely indicate a further line of enquiry, or which may tend to prove circumstances from which an inference can be drawn as to the existence of other facts that may have a more immediate relationship to the matter under investigation: Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman (No 3) [1980] FCA 94; (1980) 47 FLR 163 at 174.

63 As stated at [37] above, a matter which "may constitute" a contravention refers to a body of facts not yet fully known. The words "may constitute" enable a court to determine from the material in the notice whether, if other facts come to light, the whole body of facts would constitute a contravention: S A Brewing Holdings 23 FCR 357 at 370; Seven Network [2004] FCAFC 267; 140 FCR 170 at [49(v)].

64 The effect of the observations of Sackville and Emmett JJ in Seven Network [2004] FCAFC 267; 140 FCR 170 at [52]- [53] is that the Notices will be invalid only if it is "idle speculation", or to draw on "improbable circumstances", to suggest that the transport of cargo between two points outside Australia or on services into Australia may not be part of a market in Australia.

65 This was the approach that was adopted by the primary judge at [62]. We agree that this is the correct approach, in accordance with the test stated in Seven Network [2004] FCAFC 267; 140 FCR 170 at [49(v)] and [52]-[53].

66 The question of what constitutes the geographic boundaries of the market is a question of fact. Singapore Airlines accepts that the boundaries of the markets in which international air cargo services are supplied is an unknown fact at the present time.

67 The essence of Singapore Airlines’ submission is that even if, as is contended by the ACCC, the market is global, not all trade or commerce that occurs within the global market can be regarded as occurring in a market in Australia.

68 Limited support for this proposition is to be found in the remarks of J. D. Heydon, Trade Practices Law at [3.510]. The learned author there observes that if a market extends beyond the limits of Australia, the Court would apply the Act by reference to that part of the market which falls within Australia.

69 There was no dispute between the parties as to the legal principles which govern the determination of a market. These principles have been stated in the authorities on many occasions and it is sufficient to say that a market is the area of close competition between firms or the field of rivalry between them: Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169 at 190; Queensland Wire Industries Proprietary Limited v The Broken Hill Proprietary Company Limited [1989] HCA 6; (1989) 167 CLR 177 at 187.

71 Those authorities accept that the definition of "market in Australia" in s 4E of the Act excludes a market that is wholly outside Australia. They recognise that a global market may be a market in Australia, or part of such a market. They do not address the proposition based upon the extra-judicial observations of Heydon J, namely that the Court would apply the Act only to so much of the global market as falls within Australia.

72 It may be accepted, as was submitted by Singapore Airlines, that it is highly improbable to suggest that airlines compete in a market in Australia for the supply of international air cargo services on every route throughout the world.

73 But it does not follow that the Notices extend to a market wholly outside Australia. Nor is it necessary to consider in the present case whether the Court would apply the Act by reference only to that part of the market which is within Australia.

74 The short answer to the submissions made by Singapore Airlines is that, upon the construction of the Notices we have adopted, it is not idle speculation or an improbable circumstance that facts will come to light which show that the relevant competition occurred in a market in Australia, or at least as part of such a market. As explained at [58]-[59] of these reasons, and at [6]-[9] of the primary judge’s decision, prices fixed for legs of a journey which take place wholly outside of Australia may ultimately affect competition in a market in Australia.

75 The primary judge also made important factual findings at [61] which are not challenged on the appeal, and which led him to conclude that the evidence adduced by Singapore Airlines did not eliminate any reasonable hypothesis that was inconsistent with its proposition that the market is wholly outside Australia. Those factual findings included that no adequate evidence was led as to the product and functional aspects of the market and that it is difficult to determine the geographic limits without some understanding of those aspects.

76 These findings support the conclusion that the issue of the Notices was within power. As we have observed above, the authorities establish that the power is to be exercised for the purpose of determining whether to institute proceedings and it may be exercised to ascertain facts which merely indicate a further line of enquiry.

77 Having regard to the concession, properly made by Singapore Airlines, that the boundaries of the market are presently unknown, and to the factual findings made by the primary judge, we think it is plain that the market identified by the Notices is not one which is wholly outside Australia, even though it includes routes between destinations that are outside Australia’s territorial boundaries.

78 It appears that at the trial of this proceeding, Singapore Airlines’ submissions included, as a ground of invalidity of the Fourth and Fifth Notices, the contention that those Notices sought information and documents with respect to various meetings without disclosing any necessary linkage to air cargo services to or from Australia.

79 The primary judge did not deal with this as a separate ground of review. He addressed this contention at [106]-[107] when dealing with the ground of harshness or unreasonableness, a ground not the subject of the appeal.

80 The effect of what his Honour said at [107] was that it was permissible for the ACCC to seek all documents:

• recording correspondence or conversations between one airline and another about cargo; and/or

• concerning overseas meetings of airline representatives, not necessarily restricted to meetings about air cargo services to and from Australia.

81 His Honour said that it would be apparent to a participant in the airline industry who read the Notices that the ACCC would be interested in the documents because price-fixing arrangements may have been discussed at the meetings.

82 On the appeal, Singapore Airlines pointed to the information and documents set out at [23] and [24] above. Singapore Airlines submitted that no basis was established at the trial, and nor is there any basis to contend, that every meeting of the committees referred to in those paragraphs of the schedules related to contraventions of s 45 of the Act.

83 The test as stated by the primary judge was that the documents "could be relevant to" the alleged contraventions. However, as Lockhart J said in W. A. Pines [1980] FCA 79; 41 FLR 175 at 188, the ACCC is given power by s 155 to obtain information and documents:

84 This statement does not suggest any gloss on the words of s 155. The question is whether the Notices disclose the basis upon which the Chairperson has reason to believe that the items stated in the Notices constitute information or documents "relating" to the matters identified in the Notices: Seven Network [2004] FCAFC 267; 140 FCR 170 at [71].

85 This expression is a far-reaching one, and although it is a phrase to be determined by its statutory context, whether a notice discloses the necessary relatedness is not to be approached in an over-technical way: Seven Network [2004] FCAFC 267; 140 FCR 170 at [71].

86 Here, the information sought includes surcharges imposed anywhere in the world and the documents sought by the ACCC are in the same wide terms.

87 However, there are three features of the Notices which need to be borne in mind. First, it is evident that the Chairperson has reason to believe that there is an international cartel which imposed the surcharges and which monitored and increased them.

88 Second, the names of the Committees identified in the Notices indicate, admittedly in a broad sense, the likely subject matter of the meetings.

89 Third, the Committees include the Airfreight Industry Committee and minutes are also sought of meetings of competitors.

90 Once it is accepted, as the authorities establish, that the scope of the power extends to ascertaining facts which may lead to a train of enquiry, these features of the Notices are sufficient to establish that the Chairperson had reason to believe that the information and documents relate to the matters identified in the Notices.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, Justices Mansfield and Jacobson.

Counsel for the Appellants:	Dr J. Griffiths SC with Mr M. O’Bryan

Solicitor for the Appellants:	Minter Ellison Lawyers

Counsel for the Respondent:	Mr J. Sheahan SC with Mr M. Hoyne

Solicitor for the Respondent:	Australian Government Solicitors

Date of Hearing:	17 August 2009

Date of Judgment:	2 October 2009

Federal Court of Australia - Full Court

Singapore Airlines Ltd v Australian Competition and Consumer Commission [2009] FCAFC 136 (2 October 2009)