MN re s . leg. Dercra-i's ram? roy Tl, Cet etethtnt er at 2 ont 1 Corl: BOVE, O.0., DREVIAT aad DSS ad, Crd fare, 1OT7 JIRIMENT ROS COT G v coLbor Mo oy ata rdetercun or sleia endorsed, provoedven gtatast onc bur ired ua' rubne deteugeut. evens pecunzrary cont ities, TE LOENS ate ' ~ > su, 4 qe - Cored sage. abtagnwnl tt casts. om, ils neve of ciaam tac Comission ablevci toa, Pa - eye vere Faas oa at. a time to . ae] amos r Qe eat TOF AL 2ITS OF OF re to .fes wa Dane tha Oe, we Ue OTS sg 1 CLALIT - he . - . ny. a Dye ee cit eo eg ebe garoes be cars leate d ~ - - wd en hear D Gy a 4eu'a* LIne Hy Verconh ue tin ss Wa cf Oa bat UPiwHe Fe tete soe PT Rewicn, The (Mag Woacs ) Cheveetie > ce UO ER a tae Ot TQ eae oP tat pots Un tbe hao Qhpoear tas tar re bt Oy aes affairc of the Assoczaticn as being the prices at which liquor vas recenmmonded py the Association to ho sold to tke public from licensed hotel premises in New Soui4 Vales. There was also sneluded in Ehe statement of clair a series of allurations, sotting forth further, ov an the eiternalive, various perts of the avraigement. the arrangonent pnd all its parts were alleged to te in restraine of trede and coumerve ani to heve been given effect co by each of the corporetion defendants. Similar ellegstions were made in resi ct of on understanding and parts of the understand:nse, which were stared likewise ty be sm restraint of trade ard cemmerce and to have been given effect to, It was further aileged that The corvoretiun s and each of then had coacpircd with others co coutravese 5.45 of the Trade Practuces Act 1974. Two of the defendarts \.ere individuels, dehn Berrett NeIneracy, stated to be President of the Ascociation, and Ronald licDonald, stated to be its Chief Executive Officer. It was allersed that since 1st February 1975 they had aided and abetted the corporation defendants end beon rnowin sly concecrned The defendancs filed aucmorig of derence Which, atthough they differed in some denres, brosodly speaking, pub in assue the fact: elleged in the statement of claim. Jn addiaczon, some of Lhe defendants raised poluts of ivroci demarriad upon the grouud that 5.65 or, ao 2t was put in sera sistemen defenee, 8.4502 )(L) vas beyend the powers a3 ine Cenmonvealuh In the case of the 20th and 47un defcndsnts, points of law were raised that s.495 was beyond tue lesziwiccave powers of tho Aucitalian Purlicment in so fur as 2t purperced to max. provisson with respect to contracts. aurrangenowts or understandings and also was iitvalid in sa "es LY purported to control or reguiate deal2ngs betwern corporations end andiv:dualec who were not engazed in interstate or overseas trade and commerce, Application wae mude to me to alvect tat the demurrers and points of law atteckinzs validity of a.f%b should be Gistosed of before the hearing. I gave this diarcction avd thoy al were set Cowan to be heard on 14th April i977 thefore a Puls henen Notice of the proceedinss was faven Durcudnit to 5.763 of the Judiciary Act 1907, to the Letorney-Ccneral of the Cumrorveaith and the Attorncy-Genucral of lhe Otete oF New Seuth Wales. : Upon the hearing, varicus d+fendants vere represented by various Counsel or Solicitors. They may be groupod according to tnesr separate reprcsentation as ToLlovs:- (a) The 1st, 4th, 5th, 6th, 7th, @th, Wath, "4th, 78th, 21st, 2end, 23ed, 24th, 26th, 25th, 28th, 4oth, 41nt, 42nd, 44th, Send, Sith, Sot, 57th, 58th, AGth, 62th, 7Cth, 7ist, 73re, 79th. Gath, S2rd. 83rd, @4th, 90t%, Sint, Gend, 96th, 98th, 402 92.2 VO9tTh Jeferisnts. (b}) The bara defendant. The 1$th, 17th, 18th urd 19th dofenideantc. ) ) The 20th and 47th defendanis. ) The 3rd defenuent. Cf) Toe Sth, @7th, 29th, 35th, Agra, dtcu. SOUL, 72nd, 81st. 93rd, 95th, 100th and 105th defcanlets. (g) The 72th, 33rd, 39th, 55th, 60th, Gist, 62nd end 94th defendants (h) The 101st defcudant. (2) The 2nd and 25th defendants. The Commission was represented bv Counsel. The ALtorney-Geucral of the Cow oneslth and the Attorrcy Gener] of New Soutn Veles intervening pureuait to the vudicirry Actotere also each represented by Counsel. Counsel repre n anforucd 'he Court that he did not 'teh Lo ercus + point teken in their statements of defence that 3.45 was invalid in so far as 1t purported to control or regulate deelinzs bev een corporations and individuals who were net engesed un interstete or overrens trade and commerce. When Counsel representing the defendanvs in group (a) comsenced his submission:, 14 weac noted thet the demurrec:. vhich he ve: seeking to support, werd Luwitod to en atteck on a 3 s.45(2)0b). Alithoush the injuncilons -ought in the statoment of clain were limited to restraining the corporation defendants from giv2au9 eff cl te the arrenger mt or enderuise dan: oud conspieing with thors to give effect re thoaerd, an bho eace of the andividual defondunts, resbtraiiue Chem from eaLaing end abetting ot being knowingly comcsrncd wit] the conmeoratior a@cfendants or any cf Lhem in giving eifeot to the arrergcicat nd understanding, the clain for pen witiis was vol so Linted. Vouneel Cor the d-Peudunts up utour (4) «te, wichoub ong orien by the pliuntiff, given leave to amend the demurrzrs to include a chellenre ta the validity of 6.45(2)(s) es well as 5.45(2){b). Covusel for the deferdsuts an pron fa) edvauces tlhe argument in support of their dermurrers. Counsel for the defendants 1n groups (b) to (2) inclusive anfer, ed the Court thet they vished to support their ccmurrers cr po.uts of Law the procads advanced by Counsel for the defendants in group (4) tat did not wish [to submit any additional arguments, It was submitted for the defendants thar s AF gad 9.87 of the Prado Practices Act uvG lo te resd tog] Teo} that ©.8/7(1) and (2) were beyond the novirs o7 the Aus tration —_ _ we nm iv i a fa ~ fo ~~ fo} ie $ bel fo <t Parliament; and, that if one exciscd s.&7 thereof, s./5(2) had an operation, or produecd a resvlt, vtiseh Parliament could not have intended and should be held to fall eleso. It was not argued that s.49(2) was not 4 valid exercirr of the corporations power. Indced, 2% wes conceded 2% would plainly be an exercise of thal power, if otharvise valid. It wse aryued for the defendants that ¢.87(1) end (2) v-re invalid because they sougnt to confer upor the Court rowers which Wile non-judicial, These powers, it was said, wore not ancillary or Jucidentas toe Uhe yudicral power bui vir. forergn te iv. Sectzon 45(2) and s.87(1) end (2) were ankerdepenteat. If s.87(1) and (?) were snvalid, 16 necesscraly iolloved 2.45(2) wos umvalid, because othorwiece s.45(2) woule hove en vuconctrotiud oper tio mad Parlicmens could neu he celen to lave untended that it should have sucn sn operetion. Counsel! for the Commission subitted first. tha even if s.87(1) ond (2) were invelic in whole er in part, s.45(2) was not thereby rendered unvelid; secondiy, that s.87(1} and (2) were valid and inacpendent cf 3.45; and thirdiy. that af ss.45 end 87(1) end (2) were inter-connected in the eonse hat s.87(1) and (2) spelled cit an essential aad intended concequence of the operation of 5.45, the scoticns so considered were valid. This brie? statement ef che rival coetechkcions yl suffice at this s appeared for the Comnission advanced no separate argument on behalf of the Attorney-General of the Comrotvealth. Counsel for the Attorney-Ceneral of the Statc of Pew Sowth Wales supporter the validity of ¢.45. He stated thet Le did not wish uc add to the submissions of the Solicitor-Cenorel beyond making submissions bazed on Cho.tley v. 2 (IO72) 1a7 CLLR. 25 directed to supporling the validity of s.57(7) and (2). One further watter which sheuld be wonticned 33 mat the dofendanta'? stetemonee of defence uscdig verious Lorik of expresrio: -.. otk, am etfeen, Lpst ta orset o.4902) an blyor GC A ros ae ee meas te ne ene aah aa By the pover's of the Conmouveslth Parliancnt. As I have indicated. the argu:cut advarced on bchalf of tho defendsts was thet Lo enact s.87(1) end (2) wes beyond the povers cf the Cor menvealvh Parliament and Uiet s.45(2) was so inter-co nected that 1b must fall with them. This 1s not quite the same Lbanc. Torsver, th question raised by the dofenecnts! arent ves treated by all bartres as the quesrion to be deterinincd by the Court. I em rot disposed to reyect the defendants! argumeat ugon any tecbnicel pleading ground. J would be disposed to aliow further amadmern, if this vore required. I turn now to the provisions 2n dispute. These are as folious:i- 145(Z) A covporation ch (a) neke a cont én under commerce (reonsenent, or cnter into 2G1ng, an restruint of trade or ~ io} —_ (b) gave efvect to a stendips ta tic of trace or eer avle NrOMe Nt te onbercd anette this sub-crtusi0n.! arransement or under- itis in prostrate pha ihe coruycet cp '87(1) Where in a proccedina inntututed uncer or for an offence against this Tert tne Court fands thet thane has been a contreve.tson of @ eroviscion of Furt IV or V, the Court may, 14 ¢ddition to imvosint av under section 77 or 79, cSantias an LgULGLLOnN lw4er section 0 or motown et cover urd-p coeteon €F an on ectio.. for Lhe recovery of zane .mount of any loss or L "Ss daneaye, make cach avher ovdrps ag 1t trains fit +s redress inguc; te pererug ecuces by ary conduct to fore which che procr: ' Us or any i2 ke conduce engaged an by the Gei os Nm ww The ozders thet may be nace uader sub-seeticn (1) incluce, but ere ist Linated fro - (a) an order deciarang the whore or any part of a@ conubrict or of a colleteral arrangement retatim. co c centise! te be vord ard, if the Ceurt ts ahs £ Ey ove bes void ab imjbtro opoat aii tenes .1 erd arter such de an te L made Oo 9 fore thea dato on sthach the cruer as 18 spesil1ed in tae cruer; (b) on order veryirg @ contrect or sitet an array OMe Le Lea Ton. TFS Fs c in the os ter wo deelteoriis tl x re have hed z An £9 Verlteo an ond Ster such a@ibe belere wh dew. ry oreeeney Noa LS au Clove - ar ¢ By i the order is mde 2h 42 co Lpeclitady: v ne the revund cr money or une (c) en order dircetin cpcrtvy end return of pr Mone te & CL ccmags z - (d) an order dircet.ne the Pay Oo ol wn person who h- P the cme unl The first ave: are co Interdependont that, af 1.67(1 whote ot in part, the operation of £.45(2) 15 so elseren thet Jt srouid not be presumed Parliament intended 1¢ to apriy in thet altered fashion and it should be held te pe itevalid. There ic, of couric, no epeross cchiecte un, feclion 45(7) is not expressed to bs tsuraest co section &7IL On the other hard, there is a rclatsonship be'ween the, erisiiig from the fact that in proceedines under es. 77, 79, 80 or 82 in respect of a contract which coutruvones 9.497(2), the povers conferred by s.87(1) and (2) micht be exercised by the Court if the circumscances wore evpropriate and the Covri thourht fie. To appreciate the nature and extent of this relations is nesessury to consider the ccutext yun which the sections appear and the terms of tne secticns then.-lves. Sesticn 45 as one of eeven ecctacms cometuut ag Part TY whier dcals with "Resur etive rite sticer', Secor 46(2) prunzbars the masung of or antcy ah easlaa conte 4, arrange mri and indereteandsngs tn rectrsoiry of trade urd the moveae of foot bo coch contrects, srranormssta ard umdeiayema, Of. Part IV also contains prehibitions asainst monepoli zation Cs. 46), counsel engesiag an oxelusive Geslanws (2.47), <seinst eagaginug im resale erice matutonence (s. re) Aiserimsuscion (s.f9) and acainel cert: Pari V Divisecn 1, Witen etncos an 3n.00 ts 65 inclusive, deals wath "Unfair Practices", For czsiple, 5.52 prohibits cerperitions from emaagung jy comduch thet 1s utslesas vz rehibits cerperctac.s Lroia chang tiles H ' T ta w Xa a represcnt strors, $.61 prohibits a cerporetion from euq roug st ~ oO 1) Pa : ke) [®)ck tete3 oOm ' m1 ") rs ct { =) S in pyri _d colling, s.64 proa.bi @ right. to payment for unsolicited gcocs. When one turns to the amecdists comters wa which 8.87 avooars, it is seen that 1t is convazncd in Part Vi which deals wilh "Enforecucnt and Rer.caiec", Part VI ecntsains pe.?5 ard 77 peoviding for recevery vi penalizes iy cay? ~~ r by gee, . adv ther 1. r wR Ath ~ action in respect of any contreaveration of Furi TV, which co course, contains 5.45; s.78, which precludes ths bringing of i e) criminal proceedin.s for contraventisa f Part IV; 8.74, which provides ior the punishment in respect of offences against Part s.&0, wiuich enatics the Court, on the epelicte vie. of the Atcorrnay- Generel, vhe Cl.341gslon or any other person, to crent a1 angiumets on to restrein a porgsw. from engaging in conduct constitucins a contruvention of Part IV or Fart V3; 3.87. éulberisirs divestiture wacre there 1s contrauvertson of 3.89; 2.52, providing, tor actions for Gun. ges un relation toe conueaw urlon of Derk TV c ov Part 7; 3.05, providing fur cerboan a tesco, Im presecr ,oms under P.cl V3 and s.cC, con®erriang gueredicrier on the Cow b to heer tnd dekormim2 actions, prorecy tions and othe vrocecdin. under Te,u VI, AL Lire end of thon cates which log olroaly Leer queted, This context shove Wiel tue trovisions of As to the nN if) FyyD isv fe) b fod ot vd a 'wDor is))tUS ph o + ° an waidevsteuding and tae a@rvire effect lo any of them; s.87(1) deals woth consuct to whici proceedings anvolvir,, various sections inecludirg s.45(2) aclase or tO ive cendict cnuced ln by tis actendeut. The "comduccs" resverrcad wc ir s.87(1) appears to exter to CD OL Cre contract cr arvranzenent or the enteriuag ante the andere wanes (ef. 5.4{4) definition of "conduci") are to tro giving effet aA tc any of them. 'The orders which mey be made under 5.87(2) have to be orders which would be within the overutl confines of s.G7(i). So far as paucas. (a) and (b) ere ca.cerucd, they are , to orders affective coutrects end do net «xucrnd ve arrangeucntn cr witersiaurdiangs, excesst in the tam ted claves of cette cevercd Ly the oxpression "scllatcral arrangiocnt roliting te a contres!", In this "espeet. thei2 1s a dank of colnciudence an tne oper. tion > ro - ' r * it Althowsth some of the seettons srr Paro Vio "hare. ane Renedics" ave fii.ted to apriy ln cesp oll stot ver tacater eecfiun Cele. a.64), or only ore of the Parts Fy aud ¥ fasp. ¢..75, 7%. 78 aud 7), ¢.6 to proceedings for an offence agains) any of the sections in Parts TY cud Veo Ib was argued for the defeidurt> thot ¢.°07(1) and (2) sheuld Le sead us tuough ther vere subscctsons tddcd to s.45, Shas would not pe aprropriaatc ar correct, Sectrien B74) e028 (2) heve a relowieniip te weiss ef then. seetiene, which y.ould appeer to be acs close or oJ distent as its rolatoughip to s.46(2). Taleed, 11 t1at relstsonch.p ds u Goww Of such zaterder. nonce thay the re ilidity of 5.387(1) ead 07} should bring down o.45(2), presurably 1v shoule@ 2iso bring down otter provsgicns ereatins ofrence. to vhich at terres this reletronship. Tl was suegested tuat the ordinary rule, wo2rch appises where a statutc provides ther a cortain ctype of contract 3. contrary to lav, namely, that the contract 1s void, does nov apply in the cas. of s.45(2). Tt ves arcued ick the vuvec confe;red on tne Court Ly s.&7(2)(a) to dcolare a contyeet to ~v " oles] & uo ct ra) io) a La fe] Le}ctfs) " "1 date, shoved the intention of the lecaslcvur in breach of s.45(2) would only be void when the Court so declared and from the tine detcreined by the Court. IF do nol thin argument is correct. As I} ° <a oO "3 m= »e ed > '2 oOo we wD [on ws tes] . bas) ~l o~ "4 by ~~ fo in Qu on ae) Ne su ct fan Le.a4 in proceedings in respect of a gicat variety cf offences under Parts IV and ¥ Tn some cuses, Tne exerc.ct al one or other uf the powers coufevred will be appropuvl ate. in cther case WLlL be anappeopriate. Fy 2.87(1) ead (2) the Court "as. by 4 compendicus fori of express.on, Loins aurbericed to mile cueh furti.y ouders of is 2 lo wer wesc ised o Magr ) be Gp prope .ue. nn " The povcr to decivre a contract void fron a specified date could well bc approprivie nol only where a coulcract vot mn Lrouach of BAS et ais ancegtier pecuie vo Later by ~eulon of chiracd CUreyi. acs tut also Where a controce Wee ch sowe pointe of time Lo bo in breach ef zeme ather provisiow. Por exerple, cE mish Vo app operate an deabinc citl oa cese to tabach 5,80 a mylied or a case where s.92(2) aut then 3.9203) crvplicd. Likewise, the pouvar to vary a contrach misht be oipropriate Un Cal, SO VPLe'. peccauons obhe nr bie ail 9) opolteod. The form of s.&7(2)(2), Ly no neers requires tue cotclusrer thet the iccislacvure rust have invested vbe Court should pot treats hry . . cede - S.45(2} os suvealterting ecatracts ty dts ova force. _ fe Ic wes arued biat 2.8701) ond (2) vere modify.ng or adgjurtine provisions, ces:gned to relieve the harshne.s of opiration of gs 46(2). This docs not strike me as in Parts IV and V, ancluding s.45(2). y prowide roueaicos additional to those provided by other eniorccnent provaslciis contained in Part Vi. These addiiionel remedies may he ordorec by the Court aguznst tue dofendan. an recpece of nis conduct to which tho pracerding rclates cr any like eumluct. If excretced. they could throw an added burden upon the cefordect, raves thea afford him aiy relief. But Councc* four tie deotendene suerserted wats WCewSA elief markt & 2 VOL a oat ares, BG that necessary 16¢lief macht te piven to 2 travrd part; Be ~ w om n> Nara my C3, Pa] ce fe) 'od fe) et » + oO wa G fa i 1p) cought to ilivstratc he ..87{1) 2 to motrfy the harshroes of 7.4902), py cunmosine a comlruct 19 oa . 7 ' ri ~ae os . > Paar resiputnl ot brea, shee be gere qd a6 co mea te ooce - Epes y Wuworsg 1b shown to be tn breach of e.f6(2), but ubhich the th- nevwby cubarct to tre reetraiat, om baltne: of beret, te licod to have contanaed., He sugrested the Court migekLb peuld the orders nado undes s.67(2) must be czvers whic wets Byee mek ais lo icy, thes pack s.07(2) Ch) enpavors the Court vithout mere tu mee au order to redress sangury cauecd by une inv tdaducton ef a comtescec by s.45(2). or to redress injury cevused by the Court's Geclarution that a comiesct 26 void. Loss of Cemace to the mreiuase cL the ovhei party to tne offendiu, contract ter Lhe invalidation of tha. contract doos uot apvesr Lo we to be necessarily Loss or damage caused by conduct of the defendant. £ If entry into tne centract containing the rertruiiuc is regerded as the relevant conduct of the doeferdaut, 26 would sppear egually ie be conduct of the olber purty vo the contract. Furthcrmore, the conduct of the defendant in giving effech to the contract is the very thing wh2ch, 2n cd: example given, the (hard purty wich ¢ to havo contiived., be wordd net, ar the cremple supe sed, be seein redrese uf any tugury caused by the cobract. aed (7) ore de,icned to opriy to mooe Char apin.am wb Monocee of a vide varicly of sections. Cb 1s possibile to cave; wwe cao.e relating te seetiens ether tiv. c.49, were the pover mirat ps upprozyruacc. For exenple, wiore orececdiags for penalby anc lajuectilon were tihsn in ressect of miglording advertisiug 3 or - and Out ap morc ec' tye adlPeucec avy lebte wun? ¢ g.°S .cu rabicl, Jt ceutd well betpen chad cviderce of otner lore eernuct would Le wiven, perhep. consistince cf a .orses ci nitvilesdins or ace_dent. Wiutcle I ao nol wish to be liken as saying thet A close covld never arise, were an order mede under s.d7(7 dgaust tae conscovenccs of the Ye rete the te Ay te athe ny -_ . I do cay chet the adlorenanats have nol, even 34 y ct o ea fo} hy v7] . > vr on NN ad oO eo. a hypotheticst basis, put forward cny savisfactory illustration oF Sven 4 Cage They have entersiv fol og to voersusede ne that this mod. fying om srelaovine furctaon ip relation Lo s.450% 1s the purpose of ¢.87(1) ond (2). I showld eid that even had they succeeded in doing so, a serious question would remzin wheter the Court chould hold that the anvaiidity of a section which dia neb elter or affect the lesil cperation of 4.45(2), but merely in carbuin vontinzencies ment leed to en order ' medifying or relivvang some of the cous¢quences, flowing fron ite operetion, should lead to the cunchkusicn the cections were so irterdenpendent, that Fuarlicrent could not have intevded 5.45?) to operate abl ald, unlecs the other provi. tors also operated, by Th Une sesuteo, Ioan sf oMteto. chat even the Fe. 513, dnved dliy of tie ubole of se. 87f1) eit Ce) pad met pea we the tavedidiuy of ».49(2), If any support ve need J tor bis vaew, 16 as su-ptied by s. iA of che Acts Tnterar_lreteon Ack i991. The cffect of ¢.78A of the Acts Intvevpreratzon fot te 2 PV Bap 2 he Lopagle ture subeuded ts wiil on any peor raador mutter 24 ou res ved al 4 cuakete to operat: an its catirery ant usa no incenbion tnt some fhins . - J- 1, hese srouled be dav. Tho vrecurptie.. is reversed so |! 71 L - - we . . ~_- sey le e desartet oe fownud pervisJly invelie, nacv bo treatod as a sem ke a edt e Knpe Ve ae - em pa disrrstut- ole or divisible, unless 1b apresrs elfirnatively aS Mlnt Nave pen validly ceacted shewlu Licime oper ets ve vite it * . a a eal rs at an a - 7 - - WHat is Ted. Tho eapression of antervien an s.dtA musk be bEreawid ~ - 4s reside = ee eae ee as vat ewe oles at by the Court as part of the Act umder conctideration and tae Act may nov pe construed without re,ord to that eyprension of -3,) A ne - Leypre - pone OSs 4 tylonlien end tic Girooticsn. of cone cis, The exprlcsion of tan oe A r an > =a =a ane) a = Yr dobentaca au s.754 mov itse2 be vevovgad b WOLSS it the Act of by amplicution, vhich nay erige from tho tex., the context, oz the contcnt or supyect mutter of the parcicular Acc. Such an implication moy arise wiecre the valid provisions unqualrized and un ffPionted by tre 2 valid provislous would operate ina different manner upon the persons who they would goverr or the evenis or conduct they would reguiate. since they gre tren seen to be unseparabie (R. v. Poole; Us orcrto Venry (iin. 2) Cie%c) — Ae me rn ae le 64 C.U.P. 634 at po.o51-2 (1945) 7O CLLR. sey bed ote o ~ Limirrd yy. tia Ce ~ 16 - Rank of iter fowih Voles ve Pl Commer - th (1545) 76 Ci. 4 whieh present th mrzslves under plevisto.s such atos.75A. [In one ty eat is found that particnican oluuses, provisos or fa 5 4 quaiitications ere boyond the povor of tne lovtelutuse. Ia re the s con' type, @ provisien wuach, in reletio:. to a Linited subject viatter cr torritory, or even cleas of persons, migh The present case 265 cue of the Pivst type. Ta such a case it is neccarery, troarirs s.4! part of the Trade Practices Act, to detcriine whethey coxuresasly or by implication the presumption of validity to which 1t requires the Court to pive effect, is excluded. In the present case, the apnlicetion of s.15A 1s nor cvprmsoly exncluged. fs pt it excludcd by implicatzon? T thik nov. The operation of the challerecd provision s.45(2 nN — rewains the sano whether «.87(1) ana (2) be velil or invalid. It appears te ne that robhing r an the terms of the cections or tne context in whicn they appetr would vebuc the presumption required by s.1fA. But it was, in effect. argucd Uo ceaseygreuces tl ULe ure vy cag lk behom tore!llep would be 4uiferent afl s.87(1) eed fey ver Pell tw obo ayatig suet thet this Fr= wy tc c "41 % wv i £ ct ~ By Oo Ce a ro oTra i = th = a Fal a Le fen NOL Have apt) sued ciab pesurt ang to ual: Of partisl valgaqiyy roised by cs. la vas rermet bed TR ie trie 4d 4 . ~ Jaks c Ver "sy wos edes - crf ew ' Uhe putoieca lity of c.. order Lanne acs vate 3.87(1) era 2) would he reuovyed, Rup thas vould not he @ canuc am ube op)erai ior or ef Boot s.40(2), Tuvala bs a chenge in Pye . . 1 oa, - . aan . home tae at . t the feewthsc colo omens Suen nop tL ao ips) ©. 46(2) cuplicd to a contrest, artarrenent of wileer ending: Ch) proceolia es fare amptitutred under 88.77. 79. 60. SO: (¢) che Court 1r0ourd Vrore FOS a Col Cuvenbion of ef OCD); cad, Grd the Toeer ote: forned tue vlew Fhet ab was an the partiorlar capoutstccer apyloty1eto, an additioi toe urresivg 2 peuclty, ceauhalie en Agua "20H OF hanlug an ore2r for d+. cus, to cake cn ertor under oc. 7(1) ov (2). It would seem that 2, tie firet syne of cece te vuiech «.1bA applies, if e particulor 'cleucc. proviso or qmuelificorion® as held uivalic, thers wii «2: Neture of tints, be soaie chorse a Vit consc ye trees uv ton: TL uences, which may otherwice have tlowed oom te combiaca Opsretion of al] the provisions without ere dslebeon, Thais. ac it appeers to ne, is one of the vory siluetions cto vhic S.15A 1s directed. I do not say that a chanre au the eenec: coule never lead the Court to held tray the pr curplion caiced by 8.154 vas rebutted (sce Park ofidsy tevthr its ve Bae Con sores? my view, hevye to be euch a change tn the codresecuces us vould dea: the Covre to conclude thab nol ithetunganz 2. Cora my Pave antoneed the other peccas ict LO ope ri we taort 3 a + wa ar wn sy . Chl Mvedtae Feu tehguse, provise Gioad cet. ou rity ton 3a LN OTHE PROLRAT COLT OF ANS SHALTA GWPRAL J LViSiON \ - / ) NEW SOU WALLS TESTRICE RLGTERY ) BB No. 306 of 1975 ) ) TRADES PRACTICI & COMMISSION Platntsi PLR PIS PY. LIMITED D Neferdants BRENNAN J_: The Conmissioner of Trade Practices tssued a Writ of Sunmons out of the Australian Tnduotrtal Court, New South Wales Registry, on Stn December 1945, egarnst one hundred and nine P:fendants A Statement of Claim wes annexed to the Wric. The Plaintiff alleres that one Fundied and seven Nefcndants sie trading corporations within the meaninzs of the Act and that the otber twe Deteadarts arc nutural persons who are vifreers of an uninvorporeled assoclation Known as the Australian Hotels Associaiion (New South Wales Branch). Each corporation is alieyend to bea retailer of Jiquor from one or more Lic-nusea huorel premiees in New South Wates and, s3nee Ist February, 1975, te Sarve been and to have renained a party to arrangonunts vr understandings with respeet to the prices at wrieh s1auoer might be sold to tho public froa the lieensed hete) vicmises Which are cperated by or cn behalf of those prigssns wha are parties 19 the arrangements or underetandsnugs. The Stale at of Claim allcges the corms of tho abrangemonts or undorstandin ss The Plarnta fi further «Peres that, ctuse dst February, i875, cach of the corporatien Defendants has given effect to tho pleaded srvrrangenmenis or understandings, which are said to be in restraint of trade or carmerce, The Statement of Claim thus alleycs that cach of the corporation Defendants has contravcned 5.45(2) of the Trade Practices Act 1974. Tach of the Defendants who 1s an officer of the Australian Hotels Association is alleged to have arded, abetted, and been knowinyly coneerned in the contraventicns of s.45 of the Act by the corpuration Refendants. The Plaintiff alleges that each of the corporatiens vousnired with others to contravene the provistens of ».45, and, further, that the conduct allcced against each respective Defendant will continue unless an order restraining 1t or him from cngaging in that conduct is issued. Some Defendauts demur to the whole of the Statement of Claim upon the ground that s.45(2) of the Act is beyond the legislative p»uwer of the Parliament. Other Defendants raise that ground as a point of iaw 1m their defences. 5§.45(2) 1s the foundation of the Plaintiff's case It reads as follows: "(2) <A corporation shall not - (2) make a contract or arrangement or center into an understanding, In restraint of trade or commerce, or t (b) give effect 15 a contract, at rangenent or understanding to the exteni that it 1s in restraint ot trade or cormeree, Whethcr the contract or arrangement was made or the undeistanding was entered ynte befure or of{ter the commicneement of this subsection," The argunont gn supnourt of the Cerurrer fooks beyord the test of $.45 toe the piosrsiens of 5.87, The fos AS operation of 8.45 1s said to be euntrellcd Ly 3.87 ot by the 3. powers which the Court miyht exereise under that seetion. Wathout that vontrol, 1L 1S subintted that the wide and general terms of s.45(2), opcrating without discrimination, would produce unfortunate results which the legislature could not have intended. It 1s said that contracts which fall under s.15(2) would be unenforccable and, unless the Court were empowered to limit the ordinary vonsegucnees of the contravention, contractual relatienships would be destroyed or distorted, and, so 1t was said, an tucentive would be given to commerc1al immorality. 'JIhne powers conferred by s.&7(2) to declare a contravening conteact 'oid and to , vary that contract either ab initio or from a date aiter it was made are pointed to as the means provided by tne legislature to ensure that contractual rights and obligations are adjusted only to the extent required to give efect to the policy ol the Act. 8S.#5(2) and s.87 are thus submitted to be interdependent provisions so that the invalidity of s.87 will affect the validil, of s.45. It 1s submitted that s.87 1s unvalid, the invalidity arising from an attempt to invest the Court with powers which are said not to be judicial. S.87 1s thus said to fall and, in falling, to bring down s.i5. Whether the provi.,1ons are iantcrdependent depends upon the intention of the Parliament, reverted in the language of the provisions construed in the context of the Act in which they appear. The question ef interdepenaence is to he resolved in the light of the standing exniesszon of legislative intention in os J5A of the Acts Inter pretation Act, 1901. A relevant wm dateonsutp between o.45 and s 87 Will appear if, In Order to construc the two sect rons 4. togethor, 1t 18 necessary to attribute to $.45 an operation Which 3s different from the operation which would be attributed to it apart fiom s.87, or if, after attributing to s.45 1ts primary meaning and operatiron, its eFfeet upon rights, obligations or liabsalities is yualified by the subsequcut operation of 3.87. 8.45 as found in Part IV - Restrictive Trade Practices, The provisions of that Part ane ot Division 3 (Unfair Practices) of Part V prohibit trading corpor.tious and others from engaging in several hinds of trading couduct. (Corporatiors are defined in s.4(1) and it js 'wmatecriel, for present purposes, to consider the application of the Act to persons other than trading corporations.) These provisions purport to regulate and control the triding conduct of corporutions a subsect matter vhieh the Nefendents were content to accept as falling within the pevser conafcrrca upon the Parliament by s.51(xx) of the Constitution (cf. Sirickland v. Rocla Conerete Pines Lid. (1971) 124 CLLR. 468 at pp. 490, 499, 508, 511, 525). Contraveniion of one of ihe provisions of Part 1V does not expose a corporation to criminal procecdinps (s.7&) although payment of a penalty may be ordered (s.76). Contravention of a provistoa of the Cunsvrer Protection provisions (Part V) other than s.52 18 an offence and mar be visited with a substantial fine (8.79). The trading conduct of corporations is thus to be constrained iato corpsiance with the provisiens of Parts [IV and V by the threat of pecyniary penalties. These ar@ the privary sauctions, aud it is unnecessary 19 d,ctl upon ihe diffe rcuees bets oun them. Part VI - "Fnforecnment ard Fiance dees" - provides Tor curial orders in addition 19 the erdorins of pavment of a ponaliv 5. or the inposing of a fine. A resirarniug injunction may be granted (s. 80), divestiture of shares or asscts acquired in contravention of the merger provisions may be ordered (s.81) and loss or damage caused by au act done in contravention of a provision of Part 1V er V may he recovered (s.82), Ane.llary orders are provided for by s.87. The orders to which ss.80, 81, 82 und 87 relate may have a two-fold operation: they tend to seeure cunplrance with the relevant provisions of Parts IV and V, and they may also affect the rights of persons in their legal relationships once with another, Insofar as orders of these kinds tend to secure compliance with s.45(2) or with the other provisions of Parts IV or V, they provide a sanction udditiousl ioe those provided by s.76 or s.79. The denial] (shether for constitutivnal or other reasons) of 4 sanction wbicn is merely cumulative upon other sanctions to secure compliance with s.45(2), or witn the other nrovisions of Parts IV o2 V, would not affect the operatioa of those provisions. The incentives to conform to the provisions of Parts TV and V would be diminished, but the operation of the provisions "ould not be changed. It is the second aspect of the operation of the remedy sections - the effcct upon lgal relationships - which may reveal a significant relationship between those sections and the provisions of Parts IV and V. Chief among the Jogal relationships which aro affected by Parts IV and V are those which arise ovt of vel = contract. Contracts are the very stuff of trade a commerce, and a statule which secks ta regulate the iradiprg practices of ceorporatirous Inevitably tauel conde £ ws + of a corporation 1a cnlering into, cufereing or pertormiius 2/6. contracts, The relcvait provisiens of Part IV speeily the several kinds of conduct in which, to use the Janguage of the statute, "a corporation shatl not" engage. Apart from s.45(2), which refers in terms to the making and giving effect to contracts olf a defined hind, other provisions clearly find an applicsiion in the making or perforrance of contracts. [Phe making oft contracis or Lheir performince may be acts which consi1tute the anti-competitive conduct proscribed as monopolization by s.4G. Entering into or performing contracts which contalu exclusive dealing, verale price maintenunece or price diserimination clauses miy attract the operation of ss.47. 48 or 49. The mking of a contract to acquire shares or assets may contrave.e s.50. The provisions of Part IV and of Division 1 of Part V (hich J shall call the trading practices provision3) are not, however, eapressed to alter the legal relationship which the mahing of a contract brings into existence. Division 2 of Part Vv (Conditions and Warrenties 1n Conéumer Transactions) has that effect, for 1t modifies the contractual retitiouship so that 1t conforms to the statutory conditions and earranties. 'The trading practices provie1cns prohip1t certain kinds of conduct, and the effeet upen contrac cual ey Tationships 18 consequential upon the prohibition. The legislature may, of course, Gefine the effcet which a stalutory prohibition shoutd have upon @ contract made o. given effect te in contravention of thal nrcohibiticn. The general rule 1s that .f the leg oslarure pirchibite the Making of a contract, the muking of the contriel deca aet Give rise to a. enforecable right ww ioebtigation, if the legislature pron' bits the perforoance of a contract, 'be performance calnot be compelied and non-perteormance ives no actionable pround of complaint. (Jn re Mahmoud and Ispahan1 (1921) 2 K.B. 716 at p. 729; Chai Sau Yin v. Licw Kuee Sam (1962) A.C. 304 at p. 311). "What is done in contravention of an Act of Parliament", said Lord ElJenborough, "cannot be made the subject matter of an action". (Lanrton v. Hmhes (1513) 1M. & 5. 593 at p. 598; 105 H.R. 222 at p. 223). Moreover What 1.3 douc wn contravention of an Act of Parliament cannot be aclorded a legal effect inconsistent with the Act. If a contract whieh the Act meaus to prohibit js nonttheless nude, the prohibiticn denzes - to the contract the effect of altcring proprietary or other rights. Whatever be the effect of transfers or conveyances made consistently with the contract, the contract itself is void (Cope v. Rowlands 2M. & W. 149 at p. 157; 150 E kh. 707 at p. 710). The legisiature may, however, provide that the gencral rule shuu!d not apply, and that contractui relationships shculd be enforeoed or accorded effect althoush the contract be made in breach of the prohibition (O'Meiit v. O'Connell (1946) 72 C.L.R. 101 at p. 132; Batu Pahat Bank Lid. v. Official Assiynee (1933) A.C, 691; Bassin v. Standen 46 S.R.(N.S.W.) 16 at p. 18). There must be "a special context in iho statute demonstrating an intention to exclude the general rule" (Menaha v. Luin Kum Chum (1977) 1 W.L.R. 267). . 8.87, and particularly subs.2(a) there sf, is said to cahibit a legislative sptent ion that the general rule should not appty. and that the avoidance of a contract made in contravention of s 45(2) should not be an inwdiate or inevilable conpequenee of the conliaventiuon, IL is caida that aveidince of the eoritoeet vourts avon the walbint under $.87(2)(a) of a declivattor i that behalf by the Court, 78. 8. and that s.87(2)(a) thus affects the operation which would otberwise be attributed to s.45(2). It 1s convenient to set out the whole of s.87(1) and (2). " (1) Where 1n a proceeding instituted under or for an offence against this Part tne Court finds thet there has been a contraxention of a provision of Part IV or V, the Court may, in addition to umposing a penalty under seetion 77 or 79, ranting au angunction under section 80 oF miking an order urdcer seetion $2 in en action for the recovery ef the amount of any Tess or Garage, make such other orders us 1b thinks Tit to redress injury (oO persuvns caused by any vondust to which the procecai ng relaves or ivy like vorduct engared in by the defendant. (2) The orders. that may be made under sub-section (1) include, bu? are avt limited to - (a) an order: declaring the whole or any part of a contract or of a ccllateral arran,coment relating to a contract 10 be void and, if the Court thinks far, to have been void ab anst1o or at all . times on and after such cate before the date on ahich the order is made as 15 specified in the order; (b) an order va1ying a contract or such an arrangsnient 1n such manner aS is specified 19 ihe order and, if the Court tnspks f2t, declariny ile codtrac or arrangement 19 have had effect es so varied on and after such dute befure the date on shich the order 1s mada as is so specified; (ec) an order direeting the refind of moncy or the return of property, and (ad) an order dirceting the vayment to a person who has suffered loss or dimase of the amount of the loss or darage Yhese provisious do not lay down a ritie governing the validity of contracts which are made o1 given effect to in contravention of s.45(2) or of the other triding practices provisions. 8.87(2)(a) purneorcs to confic a declaratory powor upon the Cuuart buii it says nothing as y te the alsdaty of a coutract hofore a dectaration is made, The derurzing Defendants argne that the poser to . 1/9, 9. mike a declaration 16 not &@ power Invrely tu declare that a contract 31% or has becn void (the voidne»s being dete mined otherwise). but is a power to nullify, retrospectively 1f appropriate, the contractual relationship. This arguinent would deny operation to the general rule which avoids contracts intde or given effect to in contravention of statute. It would assume those contracts to be valid uniil the avo1ding power 18 cxercised Jt 3S a consequence of this argument that, when the poser under 3.87(2)(4) 18 excrcised retrospectively, the ordcr would declare a contracs to have been void at a time when it was valid an point af law. A declaration of voidness mght thus have been inade by the Australtan Industrial Court (or might now be made by this Court) while a court of geveral jurisdiction ( Lose jurisdiction is preserved by ¢.87(5)) might, on the same material, mike a declaration of validity. So snceongrucus a result casts doubts upon the argument, The leanguege ot s.87(2)(a) does nor, 1n my vicw, require the decluralory power to be understocd as other than a familiar judicial power to make a declaration consonant with the legal status of the contract. Nor does the declaratory power, so understced, require that +.40(2) be given an operation d¢ffercnt from the vpercation vhich 1t would have 1f s.87(2)(a) were not found in the Act. S.387(2)(a) ' empowers the Court to make a declaration thal the vhoic of a contract 1s void, or that a part of a eonv_ract Is void, or that the whole or part has bheeome void from a date after the contract was made. A declaration tn one of these terns trey be apt to describe, in @ partiyen):r ecsee, the oovralion of S.42°2) apon the .ontinet adoane ston, Th the contrect be a14egal en part, and that part 1s severshie (seo Travel eat ./40, 10. v. Thomas Brown & Son Ltd. (1962) 108 C.L RR. 391; T. Lucas & Co. Lid. v. "Mitehelt (3975) Ch. 129) the severance may be reflected in the declaration. The phrase "and, 1f the Court thinks f7t, to have been void ... at all times on or after such date ... as 15 specitied in the order" appears at first sight to amply that the Court 3s vested with a diseretionsry power to mare a (h) contract void. There 3% a simidar phrase in paragraph of s.87(2). In paragraph (>), Lhe phiase connotes & power to make a declaration as to the terms of a contract which 1s varied retrospectively and wt may be thought thar voudness may, in like manner, be given a retrcspective effect by force merely of a declaralion under paragraph (2). But there is a distinction between a declaration censequen! upon variation (paregreph (1)) and the declaration cf voldness (paragraph (a)). Conceding, for the purpase of the prerenc discussion, that the power to vary a contract 1S validly conferred upon the Court, tue exercise of that poser co the intent that the contract be varicd fion a date anterior to the order, would effect a variation from that date. A declaration that, 1n point of Jaw, the contract nas been varied etfectively from that date accords precisely a3 th the legal relationship created by the order of variation, On the other hand, a declaration of voidness made in respect of a time when the contract was in truth valid would Le, to say the least, a cursal novelty. S 87(2)(a) doves not set the Court on 4 course of cdventurous dcstruction. The paragraph may be given its ordinary meaniag, end it will operate to confer a power to meke a declaration un aceordane with the lemnal vatidity of the contract detemancd in accordance with the ordiriry cule, . wee fl. A centravl shich 18 valid at inception may well become void bi fore ecotple tion by reason of supervening circumstances and parngreph (a) authorizes the decler.tory recognition of the change in uts legal effect. Thus, a contract may be avoided not only by Tegistatire prontbittien on the making of ut, but by the 11legality of ihe mamer of 1ts performanee. (CAnaesson Lid. v. Daniel (1428) 1 KB. 13% at pp. 144, 147-4). Deviin J. (as he then was) said in St. John Shipping Corporation v. Joseph Rank itd. (1957) 1 K.B. 267 at p. 285. "But whether 1t 1s the terms of the con.ract or vuhe performances of 1f that is caullcet in question, the test 18 gust the sane is the eontract, as made o1 as performed, &@ .ontract that 1s prohibited by the statute? vue When Tully considered, 1t ¢+s plain that they" (1.@. the authoritics cited) 'do nu. proceed upon the basis that in the covrse of porforming a legal contract an lilegality was comumettcd; but on the narrower basis that the wey in which the contract was performed turned it into che sort of contract thel was prohibited by the statute," As my brother Deane pointed out in the course of argument, the performince of a cortract which nas uneffecicda at its inception by s.45 might come to be prohibited because of the altered effect which performance of the contract has upon competition. Subs.(3) and (4) give to "restraint of trade or commerce" a meaning which focuses upon the etfeer of the restraint upon compctition. " (3) A contract, arvangenent or understanding having the pucpose or eftect of faxing, controlling or maintaining the price for, or any dixcount, allowance or rebate In relation ta, any gecds or services supplied by tne parties to the contract, arranycment or understanding, or by avy of them, In eempetatron vath ereh other Lo yerseng med being parties to the contrect, erraseenent oF understincing 31s not ta testrartat of tiede or coumeree for the purposes of this Act af the recitarnt Tis suvh a sap bt crfeet oom ceupetrcien beteecn the parties fo ibe euuliraet. errmgenment or understandiag, and on couwpetition betveen thase 12. a 3 °0r ¢ mcm ¢ ] 4Tsons parties or any of them ard other persons, as to be insiapebificant. (4) A conireet, arrercom nt or understunding that i: vot of the kind veferred to in sub-section (3) 18 not in rcotraint of tirade or commerce for the purpo.es the restraint has or is likely to lhave a Signif.cant elfect on erayedition boiween the parties 10 the contract, arrangepoat or under danding or on compoei ition between those partics or any of them and vther persons." Let the trading ecituation change 1s lawfully tnede, seo UL i.t giving a Significant effect upon competition of the and further performance beconus that the vonutreact beeame void from the unlawful, of th's Vet unte after a restraini effect to the eoant yn the trading situation would be apprepriate. The effect of s.45 upon contracts its ambit is therctore to avoid ab initio or trom the t2:me whea the contract within its tcrms. £2 think, with the remark of Gisbs v. Sevastapol Invosinenis Pty. Ttd. 5S ng rac relevant c them wholly or 1a pert ont bh Kin A declararion Line of the change the c1ireums.tanecs being This conclusicn 2c af e 564): "... the section, if valid, demonstrably reasonable hot the parties and in the interesis Of the publie" would have t result that a contract io which the sec applics will be invalid even though it 2 h co in Quadramain Pty. (6 A.L.R. 555 Le ection s Ln the mnterests dias at ract hs 4a, falling wirihin rds, I iv. Ltd. p. ic o The provisions of s.87(2)(9) do uot require a special construction to be given to s.45, The powers conferred by £.87(2)(a) may tn appropriate veces, he exerciscd to reflect precisely the ordinary operation of s.45 upon contracts falliug vithin its aabit. Atbributing to s.87(2)(a) the primiuy weanimes which at bear' conferring of & power fo Mahe ve wlth Jezrl relatica ain Cratier ye ze, U ceclarattean in aecor han @a power ty. attec relationships). the ordinary operation of 3.4802) ~ Wa ot he 413. 13. lamited or changed. Nor du the terms cf 5.87(2} (b) (the variation provision) require a speciel construction to be given to s.45(2). S.87 contains two powers of variation: in subsections (2) (b} and (3). Whe latter power 1s conditioned upon s.45 so operating upon "a contrect made before the expiration of the persed selcired to in sub-section 2(4)° as to make it "unentorceuble--in so fur as it confers rights or benefits or imposes duties or obligations on a corporation'. Paragraph (c) thus vgerates in respect of a contract that, prior to the exere:se of the wan i) fa power of variation, 1s (at least in part) unenforceeblo ( ~ s.45(1)). Why sheuld a variation under subs. (2) (b) be taken to operate upen enforccable contiacts whan ea variation ct under subs. (3) operates wpen unenforceable contracts? The better view 1s that the power ef varjation under erther paragraph is to be excrcised with respect to contracts which are unenforceable by reason of the trading practives provisions of the Act. Paragraphs (c) and (d) of s. 87(2) equally do not affect the operation of s.45(?). These paragraphs create nev remedics which may arise out of the making of a contract cr the giving of effect to a contract, but they are remedies which do net @epend upon the validity or voidnes of the contract ian question. Orders of these 'inds imrose Ba L additionai obligations upon perscas who contravene s.15(%), but the rel-ef 15 entirely ctatutory and docs nor deper] upon the status of a conbract which falls within she ambit of s.45(2). A similar prevision, wherchy an order might be made to s fure tu. parehGuct more y pard an creess of 4 price fiued under sequlatieis, was considered Ie Dieta CLS. «14. 14, and Taylor J. an Ri visbaw vw. Gilberts (Austratacian) Asenoy (Vic.) Ply, Ltd. (195%) 86 C.1.R2. 209 nt p. 219 "The very terms of the sub-seetion itself indicates that it was an obligation whach might be imposed upon a vendor aS an additional penalty, and they afford a means of reliel to a purehaser which would not be available cither upon the view that a sale, in coutraveniton of the section 18 quite valid or upon the view that 1l 23 1llegal and void." As the operation of ¢ 45(2) upon ecuntracts 1s unaffeeted by paragraphs (¢) and (dad) those parayraphs do not appgar to affect the operation of 5,45€2) in any material respect. 8.87 thus furnishes no riason Sor attrivuting te s.45(2) a meaning whieh differs from the mearing whieh sould be attributed to 1t 1f s.87 were rot found in the Act. The meaning of s.45(2) is therefore not denendcat upon, or affected by, the valicity or invalidity of s.87. A retevant relationship between the secticns may appcar, hovever, in the effect which s.87 has upon lesa] relationships after s.45(2) has done 3tSs work. Tt 18 immaterial, for the pari se of this enquiry, whether s.87 be snvalid or not, for the enyviry is made in order to discover the intention of the legisliture as to interdependence —- an intention to be gleaned from the terms of the relevant statutory provisions. Whether the Constitution sipports s.87 as chucted 1s a sepirate and subsequent question (Bank of N.S.W. v. The Commoersealth (1948) 76 C.L.R. 1 at p. 372). §.15A of the Acis Interpretation Act 1901, a severabiliiy clause, cnacts 2 continumg statutory proevumption as lo the intention of the Tesistatuse shon ay covision, Separately expressed jn a stourte, is mvelid, Tr the Banking Cane fut gp. oft), Disen d. (as he then was) refeoricd to the effect of sceverebility chairctes 15. " The effect of such clauses is io reverse the presumption that a statute 16 to operate as a whole, sv that the intention of the legislature 13 to be teken prima fecie to be that the cnactucnt should be divisible and that any parts fvuund constitutionally unobjectionahle should be carried into effect independently of those which fail. To displace the application of this new presumptinn to any given situation erising under the stetute by reason of the ipvalidation of part, 1t must sufficiently appear that the invalid provision forms part of an inseparable conte .t. The general vrovision contained in S.L5A ef the Acts Interpretation Act 1601-1941 xiceduees this effect ..." There is no reason to displace the statutory presumption in its application to s.87. If that seetion were held to be invalid, 1ts crxersicn frum the Act would neither frustrate the principal purposcs of the Act nor Jeave the remainder of the Act with a different operation. When the legislature, conceiving a mischief to exist, prohibits the continuance of the mischief, erdains Sanctions to enforce the prohibition and provides remedies for those who are injurcd by the mischief, the ending of th mischief is urmistakablv the principal purpose of the statute. The mischief to which 3.4542) 1s dirceted 1s the lessening of competition by contracts, arrangements or understandings which are in restraint of trade (s.45(3) and (4)), and the provision of remedies to redress injurics caused by the lessening of competition 15 subsidiary to the purpese of ending thé anti-competitive couduct proscribed. That purpose 1s not frustrated by the failure of a remedy, unless the remedy 1s intended to be the only or indispensable menns of ending the mischief. Clearly s.87 does not provide a romegy of that kind. The rencdy shich ¢ 87 provides is "ayn addition to" the rumcdics previded for clsewhere in Pari Vi. The remedies provided for elseshere in Part VI 11/16, Tu, do not depend upon 6.87 in any way. Nor dovs 3.87 by 1t¢ own foree alter the effect whieh olher provisions of the Act have vpon legal rights and liabilities. Although sume orders under s 87 might change rights and Jiabilities whicn result from the operation of $.45(2), the operation of $.45(2) would be unaffeeted 1f 3.87 were cxc1sed* 1ts proscription of conduct, its avoidance of contracts and 11s culvening of the sanctions sid remedies of Part VI (other than s.87) are unaffected by the provisions of s.87. The discretionary power conferred by s.87 does not become pact of an "inseparable context" becanse the power, if crereiced, may in Some cases change risynts or Jiabilities which are x moulded by the operation of s.45.2) or of the other provisions of the Act. hore 1s a disvinetion between a provision which produces "J1ieb11ities or rights of a differcat tenor, ricasure or nature" (The King v. Poole; Ex parte HNeury (No. 2) (1939) 61 C.L.R. 634 at p. 652) and a provision which cxposes legal relationships to a varlation depending nol only upon the making of an o1der but upon the terirs in which the order is made. 8.87 is a provision of the latter kind, and the statutory presu-ption of severability may be rightly applied to it. In my opinion, the exeision of s.87 for invalidity would not affect the validity of s.45, and 1t 1S unnecossnry to determine whether s.87 1s invalid. The demurrers should therefore be overruled. I eoncur in the order proposed by the Chiet Judge. Tayeneer sy aaaty t Of tie treri.alian MIGhL LPs vec Woy UVOTy in > ul , Sinem Let lent ee tes ners thewneives eid te tne price « Jironsot pens Arana O. pers ioe no: . ca a ye - % Le to pe Orig . rye) - |onytony fae Seclies becuut OOo. 02 vhica Li 19/5. Sule c.ctaore (lL) ana (2) cf tha se clion provtioe: "CT ) A coutereb on poeta rds te of deade or eon ee bhatou come dp 7 fot be el tle tt OF Las gubescst. eo be ora Sop a 7 le bd gap wt et comter es a Flo oe mre Sto up opr eres di tler a OP et Gg actera oh OF CUE TT Lone CA) fh eorpor dar shlll nel - Ce a a Sd TT CO Delo ar wer rt tan dt, on Tease ste OT beat OP rec cnte se (b) ctive effeet 8 a eovipseb, ariel) le under tue be TTD OL th ty Poet wee OP Tana AE aa tT bom, COntMath GP ober mus as Oa" underrated " efter bre er te we nga GP Lore eee wae 7 Section 76 of the Act provides elir, that a person whe contravenes a provision of Part TW OL wao alds, o- or is in any vay knovineivy concerned in the contravention wy 2 person of such @ provigien 1s fistnle, LF & SO OFtls we, @ pecuraary penalty. Prececcings fer the recovery of enc a pocuniery penalty ray be asstitutead by the Atbourey-Ctnces i is the Trade Practices Coruniss.on (9.70). Such prceractngs ore r cramina}) and a contravention of a provision of Pail TV dcex no . constitute an off-nce under the Act or ren@er the cerbtrevoner liable te crininal proceedaag. ¢s.7¢). Sacrion &C o: tert Ace provisscs tiact the Court may, on the applicatica of the fe tions General, the Comvission er any cther noreon, Gen. anjuaceive relief restraining any person Trea engigqing in virzcus classe- of con@uct aasluding conduce that constatuces or wees d wonoki' a contreavertian of & provit,en ot Part Vvoof tho cet. vader 4 of the Act, a nercon who suvfuers 8s or aimee by ay eco OF a per.won that tes dune aa comp oo zalscn of G pravivro., ac Lyin ? or Part Vomay vacuo: olor adodnt ch the loss G2 cen ye bl act against whe ofa. parlcn. All Geteneen rare + two of tne celonces anelude a demurrer to tuc whele of the Stalemont ¢c' Claiu or raise 2 point oF Lew. Conon te such denurrers aunt points of lav, gathowh slated an varyvint wares, is the contentson chek the provisions ef ¢.3h(2) of the Ach ee. void on constritatsenal grounds. Sore of tho demuicrors roe gona one distine&h qrocuses of Copurdcer. By virtue cro the poe visions oF 3.4 (2) of the Pederal Court of Av-.valia (Ceontcwue, Lie) Proviticns) Ach I87F, tae proce:dings jin tne matter were transterreo deotarrers contained in a numoers ef the Stetome were sel down, by the plarntilF Couuwtssic.i, hearing, an opportunicy to present arygamint wes arkexdace wo oti Geienvants whecher or net the Geuurscer o1 puint of law concatrc? in, or raised by, thoir dcf-nce had been sat Jorn fox heetinc. While, 22 has been said, a newer ef the Gere rers reicte addit grouids to the groeurd that s.45(2) of the avr as Vea tha ground was the only ground vron wuich reliance was pleced upon the hearing of the denurrers. Jt was net sugacsted on tehall of the defennants cart a the provisions vf ©.45(2) were, 1f conszeored in iselotion, beyon! tre legiuolotive comeetcnc2 of the Parliaveat of the Comven.c wth. Une unvejidsty of 5.15(2) vaso, Pt wos arquau, tae resuly of tay total or partial sovalidity 91 che provielons & 5.87(') arc .2}) of the «act. foo wos subvivlet tna «ane 24k sections wore orthor wetall, ox partoally aivelia sor th. rea ter that chey peepeart. ' te toanfeer vec this Count coveeve uhh wsule not properde tee tesa ded a. gueteab or oiae ducastary 19 ged sel powers apdtonbeesh covult not cata dig Le vest GQ wpa Couple. tet os ca by the larliarngnt perkuunt vo Chepler ITD ef the Cor ita. for the ewrci ec of pak of the juseciat tever with wigan toc Chupter deals. The relacionsh nr wetween ©.8/(1) and (2) ard tues, Lb ver aucgaod, seeh that, nowrrtnasrers to the invol a No eclief as claimeu Lu these presced ays pursuint co the provisions of 3.87(7} and (2) of tho Acc. ce on a) Y C fe) au = a i te "3 if) C"sy a : be _ > a a) r3 ~ a " 'o "¢ ie ct " r the we liartiy of present proc.edangs JF, un fact, that invelidirty would result 3 the invelicity of s.45(2). Tt as appro, date .9 = te anee ae a S alo UMe gd o3 KB + » 7 t-~ g 7 - La ~ cemoenee considoare cien OF the dete: wacther, in treth, the clasmed in aladzty of o.87/(2) apd (2) eo : cetijon $7 5 Conlbeo "Coin Part \a of 71 AOD Vas Scution C7 35 ct mbawagde. "=n P rt Cc the ee . oy cans] 6 to s.87 inclucave. Enbe-cectrons (2* ead (7. s. 87 provide: : "(1) Wrere i offense aget has b2en ae tie Co aticn wae GU 27 Te ay ee or Fe Mewar oS Pose eo veal . woo ds he aa! tet gu Leo pro. any Leke son'. ct 4. te by (2) Phe opto onal ae bo wed me Jan Sule sreblon 1 Grepuls, bat osc owed of, Soi bas ee (ua) 27 ah OR gy Et oe ' a a Ce oo) Fo a.d, f rn Co ree . A ee a St - ' note PE eT tye Lt (hb) ar cued nop a oe Crete on EN at a ay ee Mond 4s one, Poe eOrertc?' 60 vortod On DATS. . ce ae ey opts . ' fe} an euder dlecl te tha re fia 2 ef money wi he Peer at CL tec ate OLt Gf cts (a) Tt 1S, Ter pre ont purpe eS, impor tant to mote tues % cr a ee oe he POewsr CoO mt the provisions of gs. 87(2) ere gronmaetical of an order to redress anyusy coueir-d in 2.07()) ard thay user power only arises yen, in a preeeraing anslsaruted under a. tel an oficnce agaznsr Part Vi of the Act, the Coure Fanas thaec che has been a contr, the Act. Wher the pow, @ers avise, it is alia@ibeens.2 oo tie primary rovers of amposing 2a nonalty, ecranting wn octadunctic oc ordering the pavrent of Garages contained in other srcticns of Part VI. No attack 28 maue upon the validity of anv ol theres othr sections. The arguacnt advaiced, on vehalf of the defentnrecc, to the effect that the rel .tsonship between s.45(2) and s.87°1) and (2) 15 such that invalié@ics of the latter must Lead te invalicity ef the tormer derived much of its persvuas3ve foic?> from the cifact that 1t wes sewht tv cave co the provlniors of sub-ciauses (a) and fbi oF .,87'12), Phe po.er refer tC tl ain ©.87(2) (a) was not ceern es the or@inery power of dotlaring the effect of che operation of the Act in particuJar citeu stiucee. Tis ston wet eae Gnde gender Speuebive pover boomtha rend os rem ta bt oe eh ae Foch rratae sta 2 bome pe sor ait. pover Yeteireu to es S.u7f7y foe ee geen as a Vaiderralbe co Whee stowed the mur ye Cooter ana cd the effect ar suocr ees provisioas of tle Bet Py ctetuelen ss cy Coert de preveik to bat anvelidaty an, for crempte, cares "hore Lhe ov dsueary oper eeu the coureon Tats redes recardinyg cle tebtdity vorld lou va ty. whole of a conerest Icing avers 7 bro emacewy ef piers oer it ler: cortrary tO the provisions ef the Vel. FF have peaches lie eas. clusion, tuct tho defeacantie' com bkiverien oF s.87 (2) (2) sloct be ete bat one tuak uke peeve of - er alian tc: 3. fact, mech rarromer than that gaven toe ze aa the course oF tbe aefendrais' nrocment. The co:ferripe upon a Court Of a posrr to Acelire . contract vo:e does not carry vit. zt any anfo ence thekl tin Court is entitled to declurc or wa. vord «hak 1¢ Valad. The power, LO the cevst tulinds tit, to veclare tol vc: or any part of a contrace to hav- bowed vOut ao saitio o, at ark refero ac c.raudred by the farh thei cae pvt 2015 oF B Orr ice Vilaer vere not inmttielly avare a bho tae Mse oan houtwie vou ute hy reaisoa of the coming into operetien of new or alter: ad prot ss iP) iv) a 101.6 Cf the Act or by reason of en alteretion in circeme ton without any change in the relevant pectistons of the ccnericu: for exemple, @ contract which cane of the Act could lese that peotectiea Le scoason of ene parte cs the ccnutract iunereasing 1ts shar. of the arsed. Tha wards "2 it" make © Me plicit thir, in @ vats wher. the Cour. 45 oF tao vaow that eo declaration of inva a{i ~ wT -te a2 . o3 aa) urther yadicioat drlor vivon c. Pt is tporey dave, in the purl cate. cmos, te datlala ths tare fronova eh the thole or an, rerto ow @ ceutowt er of Grate APL uge sub FOEl tony tO a Cont all we at vee Core GL as Poss ces cach a Aiserotion gn erant ve er ww tab tenes « tons ase] etoypaay fe y . ce, o ardoostonn of any de. uw ay Une pwes te oraar avec rile ry Gdeelaracvex rofeayel te ry o.87 0} (ad 6,45(?) nor Timrtedq to deeds dip cwsrowpouray that this prover 1s declar voi add to or dvtreat frou the os ' "at .- - erie . - ats . r - - ° of Unc mie, 30 Reecrie. emp tent then ub we ove ssons tad ong of $.45(2) ete daidger arent of tho exiteenee os walicdit, of ak. v ' ran . - ae ¢ - - The anvelsor2,, La veole or luceayt, Co the pores wo grat ' qa mh fee t te ) declaratory relser referred to in s.67 (2) (a) could ror, lead to esther total oo. sartiel onvelilrarly of tpe of the Act proviccs $.45(2) would have oreat per ovacive forces vi the previ. ioe of s.87(2) (b} vere such as to confer a prinusry and ser co aor pever upon the Court. The powee referred vo an that pert. ass 28 ho cver, a& has been sar, . 7 - , 7 rr ~ - 4 _ ms Peyre SS - upon thie Court by s. C7(LY. An orter of th typ. refer ved 29a. 8.87(?) Ob) can only he made in 7 ¢2h& Woeers th Court kha foc il. in a procecding ansti.acec under co Lor an of Leonie acgapper Fact VI, thet there has Loon of a provicacns of Pex. IVior Port Vol the her errvoprpery Nhe metre 7 Inyu.s te porsent areas tiga, ernst et te whieh vb reece Thao ' - ' rotates or wv Vile maorntpet op tee tov ey to Ge Pau anes. re . Rover tO te boot tre re F eh bpp severed oe ra 8 Reon peer whch cua a eee te TD Mat eu Ga be Rn! ed Lees ne tee t of apprise you Mayr Cobo amc pets 79, the grant of an iyuncticr ws order for Geiiuges euch ano erver as nertier a poi ov textual nN enertlary povoer Foo tiv alors General po cr Opecation Of all or any parcicdle PLOVIS LOLS « boon AS Tras WTHLAD Cd, HOw correspond with Lhar of contains nO express om wiplsca re to graut the ancallacy rejicl for in any case where, in a proceadin offence agvinst any of the prorvus. J se = - Fels teat Court anter oy; itatLlor "ck, 1 does not oxist the necess. rv cou in text or opereticn, ketvecs, OLhG1, a s.87(1L) and (2) on it» + invaletioy Of a Tabter vouls cr ny SOT. wets mm wnvododiete od pad vLew that yer eat : "yt . b ayy legisla'? e intent wos that ibn s weer s.82). In ry power arse ders 1 of uw pL dex 3.80 ox the mating other words, Now A Lwer Con gens ot ¢.45 (23 pLewas Mm mo Ob waneneatien of IHS OF rons of rhece subs: "vty ae? DRE OSH tior- 3s no which s.€7{1) and [?} y anstitnted under . "ns ur the ect oleke aro Ho we metber Wot he Oa. Docld be dian vb.l t Adve par pene ¢ ie) on - Part V1 cof the avec, erouce Coupe ta Gow ct Oe Tee. PeQul CLO 4 ' } Nee. ; rn Loan rey pont Of 63701) sad (>) + . ' .> Ttoas thoretorn, an bocrva the ncitar, wumecae 06, ¢ - amet rey - - 5 toes "> . as - ' ' £O20 fier Feo tuceom te eho a 1 of ora eervt a. wt and (oe OO ur Pak oars teh ce as rhrw eo amadc.. the ep arl. ~ fal ~ ro ' ~ ' ~ = Hi ata ~ - 5 edlo iec mas bbe ger tye boot e rt taab tb 2 PO dd wns 3 Te tteus OF aeclitdall, o9 beye ud whit the ers vomits fol or as Tr.torcta Merariel sneals, t.aiwy wey rele my F1Fter in this conuk tron Vinge whiea. sul sucn a departure in a tinal Court. In the liane of the evrcouctee env ts 6 oO 8.871) ana (0) of che aur offec- Mee L077 (2.42) whach wiil a. Ve yest 4 --7 : ' woe eee diy July noeut, lL consice: | Pore', ut Scand ue ", L - -- - a « ' ~ "4 Sure (hach woe) presented ro tae Caouri, sue o- Wop date LOT Me LO inlwe tte aay view on tho oucs the teeta. oy parrial an < concur in the order pr-roacd by the Crieff ou -