CATCHWORDS Application for declaration under 5.1634 of the Trade Practices Act 1974 as to invalidity of Notice under s.155 of that Act — Case stated to Full Court -— Uncertainty of terms of notice ~ Width of Chairman's right to require information relevance of information sovght ~ Identification of relevant matter — Notice must show on its face that particular information required is within authority of Chairman to demand —- Information obtained in confidence by applicant, MELBOURNE HOME OF FORD P/L & ORS. v. TRADE PRACTICES COMMTSS30* AND _ ANOR, VG No. 54 of 1978 Cons: Smithers J. Melbourne 12 October 1979 Fd THOPAP Pop LL COURT or ist Rp J an JUDGE MAKING ORDFR: DATE OF ORDER: WHERE. MADE: VG no. 54 of 1978 IN THE MATTSR of the Trade Practices Act 1971, ss.155 and 163A and IN THE MATTER of applications by MELBOURIT, HOI OF FORD PPy. LTD., COL PATGE FORD PY. LTD., SLENMMGT TCRD PRY. LTD., HORRETORD Dry, LTD. DUHIG FORD PTY. LTD., GLEN HOLDINGS (VICTORIA) PTY, LYD., RETELL FORD PTY. LTD., ALAN COFFEY MOPORS (RANDEHONG) PTY, LIUITED, COOPER FORD PIY, LrD., meV OAKLELGH MOTORS PROPRIGERY LIMITED, BAYFORD IOTORS FTY. LTD., HEN F OSTER MOTORS PTY. LTD., B.S. STILLWELL FORD Pry, LTD., ETHERIDGE PROPRIET:RY LIMITED, BRIAN WOOD FORD PROPRIETARY LIiiIT#D, COURTNEY & PATTERSON MOTORS PROPRIETARY LIMITED, MORLEY FORD PTY. LTD., FRANZ BIRD PROPRIETARY LIMITED. LYON BROS. MOTORS PROPRIETARY LIMITED for declaratio- and other orders in respect of notices given on or about 28th July, 1978 by the Chairmen of the Trade Practices Commission to the above- named applicants, . + = = BETWeHeERN: ears] PURD Fiy, uD. HOL, pry. Trp... s - a! UraG ron Pey, LT), nal rc oS Pry. Lin. PY Ds. ALAN COs : ALAN COPE: COOP OL eee FORD. Bay, LUlTED, COURTNEY Lait ra) pry, San ct cn LYON BRUS. TOs Cus ~ bit Applicants AND: TRADE PRACTICES COMMTISSION AND RONALD MOORE BANNERIAN Respondents ORDER Smithers J. 12 October 1979 Melbourne MELBOURNE HOF OF FORD PIY. ETD. , COL PATCR 20%" THE COURT ORDERS THAT: In each of the above mentioned applications - 4. (a) In each of such applications the Court declares that in so far as the nolice of the Chairman dated 28 July 1978 requires the respondent to furnish the information referred to in paragraphs 4"(e) and 6(c)(v) of the first schedule and to produce the I documents referred to in paragraph 4(e) of the second schedule the operation of s.155 of the Act does not oblige the applicant to furnish such information or produce such documents pursusnt to wd " the requirement in such paragraphs, (b) Otherwise the application be dismissed. 2. That the question of costs be reserved, $ ate "sa om Beret. oJ en - x iz ib-)) . wipe et nnn enn + IN THE FRDPRAL COURT OF AUSTRALTA VICTORIA DISTRICT REGISTRY GENERAL DIVISTON SMITHERS J. 12 OCTOBER 1979 VG no. 54 of 1978 IN THE WATTER OF the Trade Practices Act 1974, ss.155 and 163A BETWEEN: MELPOQURNE OIE OF FORD Pry. LTD COL Pal BOnD PYy. Lid. SLE AN FORD Pry. Lp, . Port oF C Pry. LOD. , DILiG FORD ri. ton, GL EN HOLDE: GS (WICTORTA) 22. Lo So a | a TOTORS Ch ALAN CO" PrY. Liat NeW OANC-1G LiniThD, € KEN FOStaR LOrToxs | B.S. Stilbeziy rc PTHERIDGs Pron BRIAly vo ¥CRD COURTIEY oD. PROPR Its FORD Pry. Lib, PROPRIT! ane ot Applicants TRADE PRACTICES CQifiTSSIOI and RONALD MOORE BaNiiekoan Respondents ee eee ee ee REASONS FOR JUDGMENT ' On 28 July 1978 'the Chaiiman of the Trade Practices Commission (the Chairman) purported to issue a notice under s.155(1) of the Trade Practices Act (the Act) to a number of companies who may be called collectively if not entirely accurately "the Ford dealers", That notice required each of the companres Co furnish information ta the Trade Practices Commission (the Commission) by 28 August 1978 as requested in the first Schedule to the notice and to produce the documents described in the second Schedule to the Notice. <A number of recipients of the notace issued applications under s.163A of the Act for declarations that for various reasons the notices were invalid. At the = request of the Commission and the Chairman, the Ford dealers not opposing, I stated a case for the Full Court raising questions concerning the validity of the notaces and the oblirations of the companies thereunder. On 28 March, 1979 the Full Court answered the questions as set forth below. In general the answers given by the Full Court do not in any way lend aid to the Ford dealers! application under s.163A. The notice was in the follovang terms as shown in the netace to Melbourne Home of Ford Pty. Ltd. - NOTICE UNDER SECTION 155 "Pursuant to section 155 of the Trade Practices Act 1974 (hereinafter referred to as "the Act"), I, ROWALD MOORE BAIMERMAMN. Chaiiman of the Trade Practices Commission, having reason to believe that The Melbourne Home of Ford Pty. Ltd. (hereinafter referred to as "the company") is cavnable of furnishing inLormalion and proaucing documents relating to matters that constitute, or may con- stitute a contravention by the company of section 45 of the Act, namely, that the company has given effect lo a provision of an arraagement or understanding between the re re me npn ere ee rene mt = et ae ee company and other corporations, which has lle purpose, or has or is likely to have the effect, of fixing, controlling or maintaining the prices for Ford spare parts supplied by those corporations, in competition wath each other, to motor vehicle body repairers in Melbourne, HERPRY Ry PROUTRE the comyany to furnish to the Trade Practices Commission the information specified in Schedule I to this Notice, in writing signed by a competent officer of the company, by handing the said information to MORRIS HAIL BRODER, LES ANE JAYNE CHOONG or ALAN RaAYNORD DUGHET, mombers of the staff assisting the Commission and acting on its behalf, at the Office of the Commission at 35rd FLoor, 99 Queen Street, Melbourne, on Monday the 28th dey of August 1978, between the hours of 10.00 a.m. and 4,00 p.m., ARD JT HEREBY REQUIRE the company to produce all documents spéciztied in Schedule II to this Notice in the possession, power or control of the company to the said MORRIS HAIm BRODER, LENEANE JAviTS CHOOMG or ALal RAV IOND DUCRET at the Office of the Commission ac 4rd Floor, 99 Queen Street, Melbourne, on Monday the 28th day of-Avgust 1978, between the hours of 10.00 a.m. and 4.00 p.m. In this Notice and the Schedules to this Notice - . "ord spare parts" means any electrical, mechanical or structural component of Ford motor vehicles and includes body panels, accessories and mechanical parts; « "motor vehicle body repairer" means a person carrying on the business of repairing or otherwise restoring damaged motor vehicles; « "supplier" means a person carrying on a business which iumcludes the business of supplying Ford spare parts to motor vehicle body repairers; « "person" includes a body corporate as well as a natural person; « "communication" includes correspondence, circulars, notices, letters, memoranda, minutes, notes, telegrams or telex messages, and oral conversat- ions, including conversations at meetings or by telephone ; « "document" ancludes originals or copies (whether copied on paper, discs, tape, microfische or other Bevicc Crom which sound, yrors, op pagsaces are capable of heing reproduced) of correspondence, circulars, notices, memoranda, notes and mintucs of meetings, other notes including diary notes, telex messages or telegrams, notes of telephone conversations or other oral conversations 3 » "price" includes a charge of any description; . ''cteris or conditions" inchde those relating to discounts, allowances, rebates or credits given or allowed in relation to the supply of Ford spare parts; . the singular includes the plural and the plural includes the singular. Insofar as any information specified in Schedule I to this Notice is contained in a Gocunent produced in compliance with Schedule Il to this Notice, the inforration may be furnished by identifying the document and referring to it, provided that - (a) the document discloses on 1ts face - ~ & (i) the date it originated; (ii) the person who oraginated it; and (iii) if the document was passed to another person, the name or that person; or (b) those matters are stated when referring to the document. DATED this 28th day of July 1978 CHATRIIAN TRADE PRACTICES COrmdtISSION SCHEDULE I TO NOTICE UNDER SECTION 155 DATED THE 28H DAY OF JULY 1978 1 State whether at all times in the period 1 January 1977 to 30 June 1978 (hereinafter referrcd to as "the said period") the company was a body corporate, incorporated in Victoria. 2. State whether in the said period the company carricd on business in Viccoria, 3. If "Yes" to 2 above, state the nature of the business so carried on by the company in the said period. 4, State whether since 1 January 1977, any officer, employee or representative of the company has attended any meeting with any officer, employee or other represcntative of any other supplier, at which any of the following matters was discussed -— (a) the price, terms or conditions (whether suggested, recommenced or otheriase) at or subyect to which Ford spare parvs are, have been, may be or will be sold by — (i) the company; or (ii) any other supplier, to motor vehicle body repairers; (b) eny changes or proposed changes in the prices, terms or conditions referred to in (a)(i) or (ii); (c) any relationship betveen the praces at which Ford spare parts are, have been, may be or wall be sold to motor vehicle body repairers by - (i) the company; or (ii) any other supplier; and the prices recommended by Ford Motor Company cf Australia Liunited as appropriate for the sale of the said parts; (a) any change or proposed change in any relation- . ship referred to in (c)(2) or (ii); (e) any matter arising out of proceedings before the Prices Justification Tribunal relating to the prices, terms or conditions at or subject to which motor vehicle spare parts are, have been or may be sold by way of wholesale, 5. If "Yes" to 4(a) (i) or (21), (b), (c) (1) or (ii), (a@) or (e) above, state in respect of each such meeting - (b) (ec) (a) (e) (f) (g) (h) (i) 6. Insofar as is not stated in response to 4 above, the date and approximate time the meeting was held; the address of the place where the meeting was held; the neme, address and designation of the person who called the meeting; the purpose of the meeting; the name, address and designation of each officer, employee or other representative of the company present; the name, address and designation of each other person present and the name of the supplier representated by that person al the meeting; in respect of each person named in response to (e) or (f), the substance of what was said by that perscen to those present; ~ whether, to the knowledge of any officer, employee or other representative of the company, any documents were prought into existence that - (i) recorded in whole or in part the proceedings of the meeting; (ii) othervise referred, whether directly indirectly, to anything proposed to be said or done, or said or done at the meeting; and if "Yes" to (h) (i) or (ii), in respect of each such document, particulars sufficient to identify - (i) the date it was originated; (ii) the person who originated it; (iii) the name and address of the person who has possession, power or control of iat (iv) the meeting to which it relates, and state whether, since 1 January 1977, any communication has passed between any officer, employee or other PepPreseilrativys OL Wie Company chu aly O1LLcer, clployre or other representative of ~ (a) (b) any other supplier; the Australian Automotive Dealers Association; or (c) Ford Motor Company of Australia Limited, relating to - (i) the prices, terms or conditions Whether suggested, recommended or otherwise) at or subject to which Ford spare parts are, have been, may be or will be sold by - (A) the company; or (B) any other supplier, to motor vehicle body repairers; (41) any changes or proposed changes in the prices, terms or conditions referred to in (i) (A) or (B); (aii) any relationship between the prices at which Ford spare parts are, have been, may be or will be sold to motor vehicle body repairers by - (A) the company; or (B) any other supplier, and the prices recommended by Ford Motor Company of Australia Limited as appropriate for the sale by suppliers of the said parts; (iv) any change or proposed — change in any relationship referred to in (i121) (A) or (B); (v) any matter arising out of proceedings before the Prices Justification Tribunal relating to the prices, terms or conditions at or subject to which motor vehicle spare parts are, have been or may be sold by way of wholesale. 7. If "Yes" to 6(a),(b) or (c) above, state in respect of each such communication - (a) the date of the communication; (b) the name, address and designation of any officer, emnlovee or other revresentative of the company who took part ain the communication; (c) the name and designation of any officer, employee or other representative of any other supplier who was a party to the communication together with the name of the supplier represented by that person; (d) the name and designation of any officer, employee or other representative of ~ (i) Australian Automotive Dealers Association; or (ii) Ford Motor Company of Australia Limited, who was @ party to the communication; (e) in respect of each person named in response to (b), (c) or (dad), the substance of what was written or said by that person; (f) whether, to the knowledge of any officer, employee or other representative of the _ company, any documents were brought into existance that - (i) recorded the communication in whole or in part; or (ii) otherwise referred, directly or . indirectly, to the communication; and (g) if "Yes" to (f£) (i) or (ii), state in respect of each such document, particulars sufficient to identify - (i) the date it was originated; (ii) the person who originated it; (iii) the name and address of the person who has possession, power or control of the Gocument; and (iv) the communication to which it relates. 8, State whether, since 1 January 1977, the prices charged for Ford spare parts sold by the company to motor vehicle body repairers have been ascertained by calculation from, or by reference to, prices recommend— ed by Ford Motor Company of Australia Limited. 9. If "Yes" to & above, state full particulars of hov the prices charged by tne company during January 1977 were ascertained, including particulars of any formula, system or method used in ascertaining the said prices. Joe 10. State each date since 1 February 1977 on which there has been a change in the formula, system or method referred to in 9 above. 11. State in respect of each date stated in response to 10 above -~ (a) full particulars of the said change; (b) the names of officers and employees of the company who decided to make the said change; (c) whether at the time of deciding to make the said change any, and if so which, person named in response to (b) believed that other suppliers were likely to make a change to tne same effect as that referred to in (a); (a) if "Yes" to (c) above, in respect of each such person - (i) full particulars of the basis for that person's belief; (43) (4i4) the names of the suppliers the persons believed were likely to make such a change; and whether the person took the belief into account in deciding to make the change. 12. If "No" to 8 above, state full particulars of the bases upon which the prices charged for Ford spare parts supplied by the company to motor vehicle body repairers have, since 1 January 1977, been ascertained, 13. State in respect of each of the following Ford spare parts for a model XC Falcon 500 Sedan - (a) Part No. (b) (c) " (qd) (e) (f) 8 tt XC XC XC XC XC XC 16612A ~- Bonnet 16006A —- Front Right Fender 8200A - Radiator Grill 5L20124AA - Front Right Door Shell 13064C -— Head Light Rim 42404 - Tail Licht Asserbly, the wholesale and retail prices (excluding sales tax) charged by the company on each of the following dates — (i) 1 October 1976; (si) 1 February 1977; (iii) 1 June 1977; (iv) 1 July 1977; (v) 1 August 1977; (vi) 1 September 1977; (vii) 3 October 1977; (viii) 2 November 1977; (ix) 1 December 1977; (x) 1 March 1978; (xi) 3 April 1978; and (xii) 1 June 1978. SCHEDULE II TO NOTICE UNDER SECTION 155 DATED THE 28TH DAY OF JULY 1978 DOCUMENTS REQUIRED TO BE PRODUCED ON 28TH AUGUST 1978 1. All documents - (a) recording in whole or in part the proceedings of; or (b) otherwise referring, directly or indirectly, to, anything proposed to be said or done, or said or done at any meeting referred to in paragraph 4 of Schedule I to this Notice. 2. All documents - (a) recording in whole or in part; or (b) otherwise referring, directly or indirectly, to, any communication referred to in paragraph 6 of Schedule I to this Notice. Pat ee ' PEO EEN ETT RO AO Oe PY SR A PR me fret er ' Sr re eee ter 10. Be All documents, including a specimen of all price lists or microfische of price lists, recording or constituting in whole or in part any communication passing, since 1 January 1977, between Ford Motor Company of Australia Limited and the company, relating to - {a) the prices, terms or conditions (whether suggested, recommended or otherwise) at or subject to which Ford spare parts are, have been, may be or will be sold by - (i) the company; or (ii) any other supplier; or (b) changes or proposed changes in the prices, terms or conditions referred to in (a)(i) or (ii). 4, All reports, surveys, analyses, submissions, minutes, memoranda, notes or other documents prepared for consideration of officers, employees or other representatives of the company, relating in whole or in part to - (a) the prices, terms or conditions (whether suggested, recommended or otherwise) at or subject to which Ford spare parts are, have been, may be or will be sold by - (i) the company; or (ii) any other supplier, to motor vehicle body repairers; (b) any changes or proposed changes in the prices, terms or conditions referred to in (a) (1) or (ii); (c) any relationship between the prices at which Ford spare parts are, have been, may be or will be sold to motor vehicle body repairers by _ (i) the company; or (ii) any other supplier, and the prices recommended by Ford Motor Company of Australia Limited as appropriate for the Sule of tue caid parcs; (ad) any change or proposed change in any relation- ship referred to in (c) (i) or (ii); 11. (e) any matler arising out of proceedings before tne Prices Justification Tribunal relating to the praces, terms or conditions at or subject to which motor vehicle spare parts are, have been or may be sold by way of wholesale, 5. A specimen of any price list issued by or on behalf of the coimpany since i January 1977 showing the prices for Ford spare parts sold or offered for sale by the company to motor vehicle body repairers. 6. Copies of all invoices and cash sales dockets issued by or on behalf of the company in the period 1 June 1977 to 30 November 1977 in connexion with the supply of Ford spare parts. Section 155 of the Act provides, so far as is relevant for the purposes of this Notice, as follows:-~ "455.(1) Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, produc- ing documents or giving evidence relating to a matter that constitutes, or may constitute a contravention of this Act.,.. a member of the Commission may by notice in writing served on that person, require that person ~ (a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of that body corporate, within the tine and in the manner specified in the notice, any such information; (b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or (c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents. (5) A person shall not - (a) ceruse or Ia.sl to comply with a notice under this section to the extent that the person is capable of complying with it; SGT ne a ey a Se — 12. (b) in purported compliance with such a notice, knowingly furnish snformation or give evidence that is false or Misleading; or (c) obstruct or hinder an authorized officer acting in pursuance of sub-— section (2). Penalty: $1,000 or imprisonment for 5 months, (7) A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the information or document may tend to incriminate the person, but the answer by a person to any ouestion asked in a notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorized officer for inspection, is not- - admissible in evidence against the person ~— (a) in the case of a person not being a body corporate - in any criminal proceedings other than proceedings under this section; or (b) in the case of a body corporate - in any criminal proceedings other than proceedings under this Act," Section 156 of the Act provides as follows:- "456. (1) A member of the Commission, or a person authorized by a member of the Commission, may inspect a document produced in pursuance of a notice under section 155 and may make copies, of, or take extracts from, the document. (2) The Commission may, for the purposes of this Act, take and retain for as long as is necessary for those purposes, possession of a document produced in pursuance of a notice under section 155 but the person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable,.with a copy certified by a member of the Commission under his hand to be a true copy and the certified copy shall be received in all courts as evidence as if it were the original. (3) Until such certified copy is supplied, the Commission shall, at such times and places as it thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorized by that person, to inspect and make copies of or take extracts from the document. | /The questions raised in the case stated to the Full Court and the answers thereto were as follows:- "(iL) May a notice given under section 155 of the Act lavfully require a company to which it is directed to answer questions, provide information or produce documents which might tend to expose it to a penalty under sections 45 and 76 of the Act? / Answer. Yes. (ii) May a notice given under section 155 of the Act lawfully reouire attendance at any place, or the giving of evidence in writing or the production of documents at any place other than the usual place of business of the person to whom the notice is directed or the usval place of custody of such ~~ documents? Ansver. Yes, (iii) May a notice given under section 155 of the Act lawfully be directed to a company itself suspected (by the Trade Practices Commission or the person giving the notice) of a centra- vention of the said Act? Answer. Yes. (iv) Is the person to whom a notice is directed under section 155 of the Act relieved from complying with the requirements of such notice by reason only of the fact that the notice is : (a) vexatious; fishing; too wide; oppressive; unreasonable; too remote; uncertain; ' unclear; such that it enquires into matters of law; (j) such that 1t requires the making of judgments on questions of lav? Wot ausvercu,. (v) May a notice given under section 155 of the said Act lawfully require delivery of the anformation or documents therein referred to a person not being the firstnamed Respondent or a member of the firstnamed Respondent Brod AAS 14, but being a member of the starr assisting it and duly authorised to act on its behalf? Answer. Yes, "(vi) Does the notice a copy of which is annexed hereto and marked 'B' require delivery of the information and documents therein referred to othervise than to the firstaemed Respondent? Answer, No. (vii) May the Court, 1n the present application, enquire anto and examine - (a) the question whether the secondnamed Respondent had reason to believe the matters attributed to him in the notice a copy of which is annexed hereto and marked 'B'? (b) the question whether, if the secondnamed Respondent had reason to believe the matters ~ attributed to him in the saad notice, the grounds upon which such reason to believe is founded are lawfully sufficient to entitle him to serve the said Notice? Not Answered. (viii) Is it open, in the circumstances of the present Application, to order that the Respondents or either of them answer interrogatories relating to the questions (a) and (b) referred to in mestion (vii) or either of them? Not answered, (ix) Is it open, in the circumstances of the present Application, to order that the Respondents or either of them make discovery of documents relating to questions (a) and (b) referred to in question (vii) or either of them?" Not answered. I was of the opinion that these questions should be answered. (i yes; (ii yes; (iiz yes: (iv not answered; y) yes; (vi no; ere no; viii) no; (ix) no. slicedebemnareliek seein Seimeseeeeendiencemmneea tenemmenenenediaaadeeiaamaaiemaanibenan tied ienaaaeneenmmad eaancamammeaneaesienr anata a aemameneietiene cat eeeadiomeas oe ce seer ot lDe The original applications are now before me. Mr. Goldberg ©.C. who with Mr. C. A. Sweeney appeared for the applicants did not suggest that I could or should disregard the answers of the Full Court, The section presently conferring jurisdiction on the Court is s.163A, sub~section (1)(a) of which states: "(1) Subject to this section, a person may institute a proceeding in the Court seeking, in relation to a matter arising under this Act, the making of - (a) a declaration in relation to the operation or effect of any provision of this Act, other than Division 2 of Part V or in relation to the validity of any~ act or thing done, proposed to be done or purporting to have been done under this Act; " - The applicants in this case bring themselves under the second limb of s.163A(1)(a) and seek a declaration that the notice is not a valid notice under s.155(1) of the Act. The declarations sought by each of the applicants in substance were based on three grounds: (a) that the notices do not oblige the applicants or any of them to answer questions or deliver documents which might tend to expose them to a penalty; (b) that the notices do not oblige the applicants or any of them to comply with the requirements or any of them contained in the said notices; 16. (c) that the notices are wholly (or alternatively partly) void and without effect in law. The first of these grounds was the subject of questions raised in the stated case and were ansvered by the Full Court against the applicants. Only the two latter grounds were argued on the resumed hearing before me it being said, (a) that the terms of the notices were so uncertain as to render it void; and (b) that the requirements of the notices -o- are to be seen by the terms thereof to extend beyond the Chairman's statutory powers. Mr. Goldberg pointed out that failure to comply with a notice might give rise to the heavy penalty prescribed 1n s.155(5). For this and other reasons he said that a notice under s.155 must be expressed with sufficient clarity to enable the recipient tc comprehend what vas required of him. So much may be accepted. He contended that the notice in question did not fulfill this requirement in a number of respects. 17. It was said that the description of the matter alleged by the notice to be the relevant contravention of the Act, or that might be such contravention, was couched _ an such terms that the recipient of the notice gust did not know "what it was about", and therefore could not identify the information or document required. The major alleged defect of the notice in this respect was that the relevant . "matter" is described as an arrangement or understanding between the Company which received the notice and corporations other than the recipient with respect to prices for Ford spare parts supplied not by the recipient company but by those other corporations in competition with each other. But this 1s not the case. On the ordinary grammatical meaning of the notice the "matter" as described therein is an arrangement or understanding between the recipient company and other corporations concerning prices of Ford spare parts supplied by the recipient corporation and other corporations all in competition with each other. I would add that even were the situation such as is alleged I do not think there would be any relevant uncertainty in the notice. It was next contended that the definition of "Ford spare parts" appearing in the notice introduced such uncertainty as to make the notice unintelligible. According to that de- finition "Ford spare parts" means, "any electrical, mechanical or structural component of Ford Motor vehicles and includes hody panels, accessores and mechanical parts". It was said ee te ate 18. that by virtue of this definition the notice was to be under- stood as referring to motor parts actually incorporated in complete vehicles, that there was no trading in such parts and the notice was therefore absurd and ineffectual. However, despite some support for this contention in the Oxford English Dictionary arising out of the meaning of the word "component" it is my opinion that no reader of the notice would fail to understand that the definition refers to parts not incorporated in complete vehicles but to parts which are spare and as such are intended to be incorporated in vehicles by way of replace- ment for parts of complete vehicles or to be otherwise incorporated in complete or roadworthy vehicles and which are commonly the subject of commercial transaction as spare parts. Relevance of information sought to the contemplated contravention Mr. Goldberg pointed out that with respect to the contemplated contravention referred to in the notice, and which is in effect the foundation of the Commissioner's demand for information, no date of the commission of the contravention is stated. He contended that in the absence of the date of the contravention it is impossible to test the relevance thereto of the specified information which the Commissioner seeks in the notice. He submitted that it is a condition of the recipient's duty to furnish the information sought that the relevance thereof to the contemplated contravention should be 19. Me contended also that with respect to various items of information sought the relevance thereof to the specified contravention was seriously in question, on the face of the notice. He pointed out, for instance, that it was consistent with the notice that the contravention in question was committed on or after January 1978, and said that in that event, questions concerning conduct, meetings and marketing behaviour which occurred in 1976 or 1977 would be irrelevant. In this respect he relied upon the decision in Riley McKay Pty. Ltd. v. Bannerman (1977) 31 F.L.R. 129 and particularly the comments of Bowen C.J. at pps. 136-137. Those comments were made in respect of demands contained in a notice given pursuant to 8.155 relating to an advertisement of a stated date Said to be knowlingly misleading. The information sought was the state of knowledge of the recipient as to the truth of the matter stated in the advertisement at a date subsequent to the stated date of the advertisement. Clearly as the learned Chief Judge said, that demand was, on the face of the notice, insufficiently relevant. One would accept in full what was said by the learned Chief Judge but 1t is not significant in relation to the demands in the notice in this case. Nothing in the notace with which these proceedings are concerned can be so seen to be irrelevant, What the notice is intended to achieve is the acquisition by the Chairman of information relating to conduct which constituted or may have constituted a contravention of the Act committed at any time since the commencement of the Act. A notice may be referrable to a contravention or possible contravention the date of which is not known to the Chairman. rr a Be een ent ere terete iM mS twee we . ' 20. It was said also that the boundaries of relevance were transgressed in that the definition in the notice was in terms stating that it includes "berms or conditions relating to discounts, allowances, rebates or credits given or allowed in relation to the supply of Ford spare parts." The contention was that as the notice by its terms concerned a contemplated contravention of the Trade Practices Act relating exciusively to fixing, controlling or maintaining prices for Ford spare parts, enquiries by the Commissioner concerning allowances, rebates or credits given or allowed in relation to the supply of Ford spare parts were outside the scope of the contemplated contravention and accordingly outside the limits of permissible enquiries. It was said that a demand that information _ concerning such matters should be furnished was in the circum— stances beyond the power of the Commissioner and invalidated the notice, or at least, all demands therein relating to such matters. However, this contention cannot be sustained. It is clear that terms and conditions of supply of spare parts which relate to discounts, allowances, rebates and credits are capable of having a direct or indirect bearing on prices and vice-versa. A situation appropriate to the giving cf a notice under s.155(1) arises when the Commission, its Chairman or Deputy Chairman has reason to believe that a person. is capable of furnishing information producing documents or giving evidence relating to a matter that constitues or may constitute a contravention of the Act. The relevant belief may be, and presumably normally would be general in nature. As to particular items of information or particular documents there may be a belief? that possibly or even probably a person is capable of ee a eee te ee ete tee LR ee re 21. furnishing that information or producing those documents put not a belief that he is actually capable of doing so. But if it appears that the Chairman has reason to believe that the person to whom the notice is given is capable of furnishing anformation relating to a matter that constitutes or may constitute a contravention of the Act he may by the notice require that person to furnish "any such information" within the meaning of that expression in s.155(1)(a) of the Act. It may be argued that just as a notice under s.155(1) derives its prama facie general validity from the Chairman's assertion that he has reason to believe that the person-to whom it is given is capable of furnishing relevant information, and that validity persists unless there is satisfactory evidence challenging the existence of the relevant reason to believe, so the demand for particular information made in the notice given under the section derives, from the notice itself, a prima facie validity as a demand made for information with respect to which there 1s reason to believe that it does relate to a relevant matter, and that validity persists unless and until it is displaced by satisfactory evidence. This view does not rest upon statements in s.155(1) enacting it in express terms, but could gain support from the principle applicable, in relation to the prima facie validity of the Chairman's statement in a notice that he has the specified reason to believe. Concerning that prime facie Court sa he volidity the majority of the Ful d in the reasons for judgment in the case stated herein, ~ Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission per Franki and Northrop JJ. at p. 33:- 22. > "Since the requirement of 'reason to believe'is a condition precedent to the exercise of the power conferred by s.155(1) of the Act, a Couy~t may in an appropriate case, investigate whether the condition has been satisfied and whether the Commission, Chairman or Deputy Chairman has acted in good faith, but it seems that the grounds upon which reason to believe is founded need not be disclosed except possibly insofar as there is a basis for the contention that the power has been exercised improperly." and per Smithers J. at p. 15:- "Accordingly in a proceeding pursuant to s,163A(1) certainly in the absence of satisfactory evidence that the Chairman did not have the relevant reason to believe the applicants are faced with the vrima facie validity of the notice." It appears to me however, that on its proper construction the section authorises the Chairman, when he has reason to believe that a person is capable of furnishing information or producing documents relating to a matter that constitutes or may constitute a contravention of the Act,to demand only such information or documents which do in fact relate to such matter. Inforthation demanded does not acquire that quality of relatedness merely because it is demanded in a notice the authority for which is that the Chairman has reason to believe that the person to whom it is given is capable of furnishing information that relates to the relevant matter. "Any such information" referred to in ss.(1)(a) of s.155 and "any such documents" referred to in ss.1(b) thereof are such items of information and such documents as relate to the relevant matter, not such information and such documents as the Chairman may have reason to believe the person to whom the notice is given 1s capable of furnishing or producing. Clearly enough it 1s a condition of the Chairman's right to give the ndice under s.155(1) of the Act that he has reason to believe that the person to whom it is given is capable of furnishing information or producing some document relating to the relevant matter. It is clear also that the Chairman may seek and obtain by the notice, all the information relating to the relevant matter which the person is capable of furnishing. The extent of certain of that information and the precise nature thereof may well be unknovm to the Chairman but whatever the extent and nature of the information which it is within the capability of the recipient to furnish, it is that information and all of it which the Chairman may require tr ee 23. to be furnished. Thus are defined both the limit and the quantun of the information which may be required to be furnished. This follows from a literal construction of s.155. It is appropriate in the case of a statute conferring powers upon a public official to compel persons to furnish information ito him concerning the business affairs of themselves or others thought to be contrary to law. It reflects the very firm intention of Parliament that the procedure authorised by the section shall be effective and at the same time it does not expose the citizen to unlimited official demands. The deter- mination of Parliament that the section shall really be effective to enable the Chairman to obtain all information relevant to a contravention or possible contravention is exemplified by its abrogation of the privilege against self incrimination. (See s.155(7)) So far as the construction adopted relates to the limit of what may be required by the Chairman it appears to be in accordance with the approach adopted by the Court in Federal Commissioner of Taxation v. A.N.Z. Banking Grouv Ltd. and Ors. (1973) 23 A.L.R. at p.480 (Smorgonts Case) in relation to the validity of notices given by the Commissioner requirin, production of documents pursuant to s.264(1) of the Income Tax Assessment Act 1936. That section is very different from 5.155 but is of the same class of statutory provision. Accordingly when an occasion in which the Chairman may operate the prcecedure authorised by s.155 has arisen he may by notice vegeire the person to Whom a novice thereunder 15s given to furnish all the information which he is capable of furnishing which in fact relates to a matter which does or mene at Ree ne bP me Need een Men woe sere dad ante t 24, may constitute a contravention of the Act. To give a notice in these general terms would leave the identification of the information to be furnished to the judgment of the recipient of the notice. (See Smorgon's case (1973) 23 A.L.R. 480 per Mason J. at p.499.) But a nolice specifying particular information or documents is obviously likely to be more effic-— acious for achieving the purpose of s.155. It is quite in accordance with the terms of the section that the Chairman should descend to particulars and specify the information and documents he requires. Thereby the limits of the demand are Gefined. The protection for the recipient of the notice against oppressive demands is that the only information or documents which the Chairman is entitled to require is such information or documents as does or do relate to a matter that does or may constitute a contravention of the Act. If in operating the procedure the Chairman descends to particulars he will or may particularise in the dark. No doubt he will specify anformation or documents which he suspects, not necessarily believes, the person to be capable of furnishing which fallwithin the general capability to furnish relevant information which is the subject of his belief. If the atem of information specified relates to a matter that does or may constitute a contravention, then the demand on the person concerned to furnish it is valid, and subject to his capability to furnish it he must comply. To make the section effective Parliament has given to the Chairman authority over information which relates not cnly to matters which do, but also which may, constitute a contravention of the Act. Should the person against whom a demand was made challenge the relevance of any specified information demanded and consider that it does not relate to any such matter and acts on that view the lawfulness of his conduct will depend on the ansver to the question of fact-does the information demanded relate to a matter which does or may constitute a contravention of the Act? Parliament enables him to raise the matter in an application under s.163A(1)(a) of the Act. It was submitted by Mr. Goldberg that when a declaration is sought under s.163A(1)(a) in relation to the valadity of the notice given to a person under s.155, that being an "act or thing done ... under this Act", the validity of the requirement in such a notice to furnish particular information depends upon it being apparent from the terms of the notice, that such information does in fact relate to a relevant matter. I accept this submission as sound. It is in accordance with general principles of Administrative Law. Also it appears to me to follow from what was decided by the High Court in Smorgon's Case (supra). Under s.264(1) of the Income Tax Assessment Act the Commission may by notice require any person whether a taxpayer or not ... (a) to furnish him with such information as he may require; and (b) to attend and give evidence ... concerning his or any other person's income or assessment and may require him to produce all books, TP ent nah y epee tet Pee Re pM eet 26. documents and other papers whatever in : his custody or under his control relating thereto. * In respect of a notice given under s.264(1)(b) it was said by Gibbs J. at page 490:- "The next question that arises is whether the notices given to the Bank were sufficient in form. To be valid a notice to produce documents under / s.264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he 1s required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who 1s required to produce documents which relate to his own income or assessment, the very description of the documents (for example, ' your books of account') may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, -! - the notice must show that those documents relate to the income or assessment of a particular person, who must be identified." It is to be observed that the contemplated contravention referred to in the notice 1s a contravention of the provisions of s.45 of the Act. Accordingly, it may concern a provision in a contract, arrangement or understanding of an extremely complex kind. In order to interpret s.45 one is required to go to s.45A. Section 45A(1) provides that without limiting the generality of s.45 a provision of a contract, arrangement or understanding shall be deemed, for the purposes of that section, to have the purpose or to have or is likely to have the effect of substantially lessening competition if the provision has the purpose or has or is likely to have the wim at een ee ee ete vee tee 27. effect of fixing, controlling or maintaining a price or discount, allowance, rebate or credit in relation to goods or services supplied by any bodies corporate which are parties to the agreement, arrange- ment or understanding in competition with each other. Accordingly information that relates to a matter that constitutes or may constitute a contravention of the Act embraces information about aspects of transactions which may indicate whether there has been such an arrangement or understanding. These are very wide terms in themselves. (see Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. (No. 2) (1978) 32 F.L.R. 420. Assuming that there has been an arrangement or understanding the relevant information may disclose not only whether it has the effect of price fixing, but whether it is likely to have that effect or whether its purpose is to fix prices contrary to s.45. (See s.45(2)) Further by reason of s.45A(7) the area of relevant information extends to matters concerning the question whether a provision in a contract, arrangement or understanding has the purpose ,or has or is likely to have the effect of fixing, controlling, or maintaining or providing for the fixing, controlling, or maintaining of such a price, discount, allowance, rebate or credit in relation to a re-supply of goods in question by persons to whom the goods are or would be supplied by the parties to the contract, arrangement or understanding or the proposed parties to the proposed contract, arrangement or understanding or by any of them, or by any bodies corporate that are related to any of them. ste Min ere om eee Bot han ee Vm ee" A nw nae nee 28. In his enquiries concerning such matters the Chairman is necessarily concerned to ascertain whether there has been 4 communication between the person to whom the notice is given and others or between verious persons who might have been parties to the contemplated contravention or active in relation thereto, He is concerned to ascertain whether there was community of purpose between various parties amounting to conspiracy, in a non-criminal sense. This concept is intro- duced particularly by s.75B which provides that references in , Part VI of the Act to a person involved in a contravention of the provisions of Part IV of the Act shall be read as a reference to, inter alia, a person who has conspired with others to effect the contravention. The same concept -is found in s.80(j) of the Act, In relation to the nature of information the Chairman may well require to seek, it is to be remembered that from the point of view of enforcement of the Act, evidence of contravention of a direct kind is not normally available. Circumstantial evidence may be used to establish the kind of ' contract, arrangement or understanding in question, its implementation or the conspiracy to give effect thereto. As was said by Isaacs J. in R. v. Associated Northern Collieries (1911) 14 C.L.R. 387 at pp.400 and 401:- "Community of purpose may be proved by independent facts, but it need not be. If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there ea be such 1 conenrrence are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifest of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge, ... Then I wish to say a few words with regard to the manner in which I propose to regard these separate acts as bearing on the common purpose. The Judges in advising the douse of Lords in Mulcahy v. the Queen(1), say:- 'And so far as proof goes conspiracy, as Grose J. said in R. v. Bussac(2), is generally 'matter for inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose and cause danger.! " See also Trafodi v. The Queen (1961) 104 C.L.R. 1 and C-0-Two Fire Equipment Co, et al v. United States 197 F.2nd. 489 and Interstate Circuit Inc, et al v. The United States 306 United States Reports 208 at p.221. Mr. Tadgell submitted for the Chairman that the wide range of activities which may relate to a matter that constitutes or might constitute a contravention of the provisions under s.45 of the Act is usefully described by Professor Areeda in "Antitrust Analysis" second edition at paragraph 320(b), namely:-— "As we have seen, competitors might agree on minimum or maximum prices, buying or selling prices, the limitation of their own output, or the removal from the market of 'excess! supply in the hands of others. Competitors have also been known to agree on formulae for the allocation of business or the determination of price. They might agree to rotate bids (where they take turns submitting 'low!' bids), to circulate price lists, to charge published prices or at least to begin bargaining from list prices, to fix trdadé-1 atav.aticus OF uiscouuwts or moark-ups or to set the price spread between premium and lesser products." ees a orn aoe a It is therefore clear that the concept of information which relates to a matter, which constitutes or may constitute a contravention of the Act embraces a wide range of information. It would comprise information concerning conduct which was committed by corporations or persons which might throw light on the question whether or not conduct constituting a contravention had occurred. It would seem that information of any kind which concerns the conduct of persons in activities which touch and concern trade and commerce in the area of contem- plated arrangements or understandings designed to provide proscribe common price policies or to commit other proscribed trading conduct in relation to prices which might have been made or arrived at is fairly within the description of information relating to a matter that constitutes or may constitute a contravention of the Act. It is a consequence of these considerations that requirements directed to commercial conduct of persons in a relevant commercial area are "any such information" within the meaning of s.155(1)(a) of the Act. From a practical point of view so long as the requirement for information concernsconduct in relation to prices charged or to be charged for Ford spare parts in what one may call the domain of corporate trade and commerce, that which is required will normally be seen to be "any such information". In these applications the applicants are entitled to ask the Court to look at the information sought to determine whether what is demanded is "any such informaLlion" or"any such @ocuments" within the meaning of s.155(1)(a) and (b). Accordingly I have considered the requirements of the notice with a view to forming a judgment | : ee ee 31. as to whether the information sought satisfies the test referred to above. I am satisfied that the information and documents sought all relate to ane@ea of corporate activity in trade and commerce carried on by the applicant and other corporations in competition with each other, and that the conduct relates to contemplated arrangements or understandings having the purpose of or being likely to have the effect of fixing, controlling or maintaining the prices of Ford spare parts supplied by those corporations to motor vehicle body repairers in Melbourne, or to the giving effect to any such arrangements or understandings and that such conduct constitutes or may constitute a contravention of the Act. In the extensive requirements of the notice it is not possible to point to any which seek information or production of documents other than such as would,if supplied, relate to a matter which did or might constitute a contravention of the Act. The enquiries seek information concerning meetings of relevant parties or their representatives at which prices charged or to be charged for Ford spare parts by relevant parties were discussed, the content of the discussions, the relationship between the prices charged for such parts by the relevant parties or between those prices and prices recommended by the Ford Motor Company Ltd. and the communi- cations between relevant parties on the subject of prices charged or to be charged for Ford spare parts and similar matters. All such information would relate to matters which constitute or might constitute a contravention of the act. It would when furnished either provide evidence of such convraventions or assist the Commissioner to decide whether rors 32. a contravention had occurred. Accordingly, in my opinion, the information sought was "any such information" within the meaning of s. 155(1) of the Act. This is true even in relation to "questions" 4(e) and 6(c)(v) of the first schedule and the documents referred to in paragraph 4(e) of the second schedule of the notice although for a particular reason mentioned below the notice lacks validity in respect thereof. Identification in the notice of the relevant "matter" As indicated above the notice must contain sufficient information to enable the recipient to perceive that the obligations cast upon him by the notice are obligations which may properly be cast upon him according to law. In the present case he should be able to perceive that the information and documents which he is required to furnish and produce do relate to a matter which constitutes or may constitute a contravention of the Act, The notice does anform him that the contemplated contravention is that the recipient has given effect to a provision of an arrangement or under- standing between the recipient and other corporations which has the purpose or is likely to have the effect of fixing, controlling or maintaining the prices for Ford spare parts supplied by those corporations in competition with each other to motor vehicle body repairers in Melbourne. It rotice w appears co ine that the only pocsable detect in thi is that the parties to the arrangement or understanding other 33. than the recipient of the notice are not identified. I do not regard this as an invalidating defect. The subject matter df the arrangement or understanding is comprehensively ktated. The notice informs the recipient that the"matter" is conduct in his business of suoplying Ford spare parts to motor vehicle repazrrers in Melbourne carried on by the recipient in competition with other corporations who carried on the same business and concerns an arrangement or under- standing or conduct that may constitute an arrangement or under- standing contrary to the provisions of the Act for the fixing, controlling or maintenance of prices for such spare parts. That is enough to show the recipient that the information which he is required to furnish and the documents which he is required to produce are information and documents the furnishing of which the Chairman "1s entitled to require". See per Gibbs J. in Smorgon's Case (supra) where quoted above. The further identification of the other corporations the parties to the contemplated contravention is unnecessary for the purpose of showing to the recipient the connection between the information and documents required and the relevant matter. Of course although in the present case it would appear that the Chairman has a knowledge of the identity of the corporations probably or possibly parties to the contravention or possible contravention, that would not always be the case. Objections in respect of particular requirements I turn now to various particular requirements or "questions", as they were referred to in argument, and objections taken thereto. It is a consequence of the foregoing that the absence from the notice of the date at which the contravention the subject of the Chairman's concern is alleged to have occurred is of no concern. There is no ambiguity as to dates in respect of the information and documents : t particularised. 'The Chairman might not know the date of the contemplated contravention which has prompted the use of the procedure under s.155. But that every item of information sought relates to a matter that constitutes or may constitute a contravention of the Act is manifest. Objection was taken to question four of schedule one on the ground that there was ambiguity as to what may or may not constitute a meeting. It is true that when two or three are gathered together it might in the absence of circumstances be difficult to say whether they are at a meeting. But from the text and context of question four it is reasonably clear that the kind of meeting referred to is one of some fomality and purpose. It is a meeting which is between representatives of suppliers of Ford Spare parts and it is a meeting which is "attended". Also from question five it is apparent that question four proceeds on the basis that 1t 15 a meeting which has been called by some person. It is therefore an arranged meeting rather than a casual one. It was put that the recipient of the notice should not be left to assess for himself whether the circumstances in which the representatives of any supplies discussed the matters specified in question four constitutes a meeting. The penalLly for an snadequate answer Pre ees Bem tere sees was referred to, But in my opinion, interpreting the expression "has attended any meeting" reasonably and honestly, and according to the indications in the context, the recipient of the notice would be in no real difficulty. In this case the point 1s of little importance as any discussion omitted by the recipient of the notice in his answer to question four on the ground for instance, that it occurred at a dinner party or a game of golf rather than at a formal meeting,will be disclosed by his answer to question six, Objection was taken to question 4(c) (first schedule) on the ground that the recipient would be in diffictlt¥ in understanding and applying the expression "any relationship" between the prices at which Ford spare parts had been or would be sold by the recipient company and those at which such parts had been or would be sold by other suppliers of Ford spare parts after 1 January 1977. I do not think that the recipient would be in any difficulty. In the commercial world the concept of a relationship between prices of a dealer in spare parts and those of the subject of a recommendation such as that specified in the question would be fairly elementary. . Objection was taken to questions 4(e) and 6(c)(v) (first schedule) on the ground that there was real ambiguity and uncertainty in what information the Ghairman was seeking and that the recipient of the notice is put under the necessity of forming judgments as to what matters arose in the proceedings before the Prices oS SN OV . Justification Tribunal in the relevant sense which he is under no duty to attempt to do. These are in my opinion sound objections. They are also so regarded by the respondent as counsel announced that the respondent did not press for an answer thereto by the recipient company. Objection was taken to question five (first schedule) on grounds similar to those raised in respect of question four generally. I do not think such objection is sustainable. Objection was taken to question six (first schedule) on a number of grounds discussed above and which are not sustain- able. Objection thereto was taken also on the ground that to enquire as to communications between the recipient company and the Australian Automotive Dealers Association or the Ford Motor Company of Australia Limited relating to prices at which terms and conditions on which Ford spare parts are, have been, may be, or will be sold is to enquire into matters quite irrelevant to any possible contravention of s.45 of the Act and accordingly beyond the authority of the Chairman, I am unable to concur in this submission for reasons discussed above. It is quite clear that the information sought in question six is directed to matters well within the scope of the enquiries which are authorised by s.155 of the Act. ener o& Objection was taken to question seven (first ' schedule) on the particular ground that there was ambiguity in identifying a party who "took part in" a communication, JI do not consider this objection sustain-— able for the same reasons IT have given in answer to the objection to question 4(c). Objection was taken to question eight on the ground that because of the absence of the date of the contravention contemplated in the notice the relevance of the information sought is not apparent. But as stated above the absence of the date is of no importance, Objections were taken to questions 9, 10, 11, 12 and 13 on the grounds of relevance, The groundsof objection is for reasons discussed above not sustainable. With respect to the requirement to produce documents in accordance with Schedule two of the notice objections were' taken to production of certain of the documents referred to in various paragraphs of the schedule. As to questions one, two and three, four(a),(b), (c) and (ad), objections were raised on grounds of the same nature as those raised in respect of various questions asked in the first schedule. Those particular grounds of obgection are not sustainable. But objection taken to the requirement for production of the documents referred , 38, to in paragraph 4(e) of the second schedule is sustainable on the grounds taken 1n respect of paragraphs 4(e) and 6(c)(v) of the first schedule. Oppression The requirements of questions 5 and 6 of the second schedule were the subject of objection on grounds of oppressiveness, As to this the remarks of Bowen C.J. in Riley v. McKay Pty, Ltd. (supra) at p.136 are in point:- "It is not, I think, a good ground of objection to a notice under s.155 that it is burdensome or oppressive. It is clear that when such a notice is given, the answering of it may. involve the recipient in considerable work and expense, This, in itself, may constitute a kind of penalty whether or not there is ultimately found to have been a contravention. The legislation assumes that the public interest necessitates this. No doubt in practice, the commission will administer the Act in such a way as not to impose upon a person or company a burden completely dis-proportionate to the value to the commission of the information sought," In cases where this class of objection is taken the real question is generally whether the demand is so unreasonable that the correct view is that 1t exceeds the purposes of the grant of authority pursuant to which it is made. Having regard to the nature of the contemplated contra-— vention of the Act with respect to which the notice in question in this case wes given no such case could be made, That contravention involved complicated commercial dealings of multiple porties over a wide renge of products during a substantial period of time and to which the documents production of which is sought although multitudinous, are relevant. 39. With respect to this subject the judgement of Ackner J. in Clinch v. Inland Revenue Commissioners [1974] Q.B. 76 is anstructive. In that case the Commissioners had issued a notice under s.481 of the Income and Corporation Taxes Act. 1970 (U.K.) to the plaintiff the manager of a subsidiary of a bank situated in Bermuda which was described as a tax haven, Section481(i1) states:- "The board or for the purpose of charging tax at the standard rate, an inspector may by notice in vriting require any person to furnish them within such time as the may direct (not being less than 28 days) with such particulars as they think necessary for the purposes of this chapter," . " The notice sought particulars of various transactions in which the plaintiff had acted for or advised United Kingdom clients. The plaintiff sought declarations that the notice was bad on two grounds, The first was that the notice was generally ultra vires. This may be passed by as its resolution depended to some extent on the phrase "such particulars as they may think necessary for the purposes of this Chapter", which is significantly different to the legislative language before me. The second ground was that the commissioners had exercised their discretion unreasonably, in particular that the requirements of the notice were inordinately burdensome or oppressive. The plaintiff asserted thal "it would take some five months working full time, with the assistance of a secretary, also working full time for him to comply wath the notice", Ackner J. rejected both grounds, His Honour said at p.91:- 40. "Tl am accordingly satisfied that the plaintiff does not have to go to the extent of establishing bad faith against the commissioners. The commissioners may have had regard to quite irrelevant considerations or may have acted quite unreasonably in the sense defined by Lord Greene M.R. fin Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation /1948/ 1 K.BY 223/ Dut yet be entirely iunnocent of dishonesty or malice." He continued:- "The notice does not require him to carry out any researches in order to obtain knowledge which he never had. He must examine the records maintained by him or maintained by the London bank and he must seek to refresh his knowledge from any sources which he considers are capable of providing such refreshment ... I would accept the principle that a notice could well be inordinately burdensome or oppressive and therefore invalid if it had the consequences described by Sir Elwyn. But this is not the case here. The interpretation clause of the notice removes many problems that might otherwise have arisen. Although it may well be necessary for the plaintiff to refer, on occasions, to his legal advisers or to his accountantsfor advice, this is by no means an unusual situation vhere information 1s sought by the revenue," And his Lordship added:- "Accordingly, if the particulars sought went substantially beyond that which was required for this purpose, so that they could be properly described as unduly oppressive or burdensome, I have no doubt that a court would be entitled to intervene, and declare that notice invalid. One of the vital functions of the Courts is to protect the individual from any abuse of power by the executive, a function which nowadays grovs more and more important as govern- mental interference increases," Similar views were expressed by Goulding J. in Wilover Nomzoces Ltd. v. Inland Kevenue Commissioners [19/3] 2 All E.R. 977. "1. The case before me has been presented with no evidence to suggest that the second respondens has not exercized his powers for the purposes for which they were vested, If such evidence were available the matter would of course be different. Information obtained in confidence An additional matter raised by the applicants was that certain of the information required by the Commission- er was or might be information received by the applicants in confidence. There is no evidence before me that any of the information smght was received by the applicants in any kind of confidence, Mr. Goldberg submitted that by virtue of s.4M(b) of the Trade Practices Act 1974 a person in the position of the applicants was entitled to refrain from furnishing information demanded where the furnishing thereof would constitute a breach of confidence. That section is in the following terms:- t4mM, This Act does not affect the operation of - (a) the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Act; or (b) the law relating to breaches of confidence, but nothing in the law referred to 1n paragraph (a) or (b) affects the interpretation of this Act." It does not appear to me that the intention of Parliament embodied in this seclion vas to modify in any way the duties imposed upon persons by express and 42, implied terms of the provisions of the Act which, for the purposes of the Act impose such duties. I did not under- stand Mr. Goldberg to submit a response of any force to the question posed in argument, "It would be very curious that you could make an agreement contrary to the Act and then say, 'this 1s confidential. I will tell you what my prices are confidentially. You tell me what your prices are confidentially. I will write you a confidential letter'." The remarks of Diplock L.J. in Parry-Jones v. Law Society £19697 1 Ch.D. 1 at p.9 are in point:- . > "What we are concerned with here is the contractural duty of confidence, generally implied though sometimes expressed, between a solicitor and client. Such a duty exists not only between solicitor and client, but for example, between banker and customer, doctor and patient and accountant and client. Such a duty of confidence is subject to and overriden by, the duty of any party to that contract to comply with the law of the land, If it is the duty of such a party to a contract, whether at common lav or under statute, to disclose in defined circumstances confidential information, then he must do so, and any express contract to the contrary would be illegal and void. For example, in the case of banker and customer, the duty of confidence is subgect to the overriding duty of the banker at common law to disclose and answer questions as to his customer's affairs when he is asked to give evidence on them in the witness box in a court of law, I think that similar provisions as to disclosure apply to doc- tors under the National Health Act." Compare Sankey v. Whitlam (1978) 53 A.L.J.R. 1 in particular the remarks of Gibbs A.C.J, at p.11 43. j Conclusion i Accordingly a declaration should be made that the operation of s.155(1) does not require the applicants to furnish the information sought in paragraphs 4(e) and 6(c) of the first schedule to the Chairman's notice dated 28 July 1978 or to produce the documents referred to in 4(e) of the second schedule to the said notice but that otherwise the applications be dismissed. There is thus a limited success of the applications but the time and attention which was involved in dealing with the demand under the paragraphs last referred to was minimal. However the concessions made by the respondent were made only in the pressure of the litigation. I think therefore that the applicants' limited success has some significance on the question of costs. Accordingly the question of costs is reserved to enable the parties to make any submissions should they desire to do so.