FEDERAL COURT OF AUSTRALIA Australian Competition & Consumer Commission & Anor v Commonwealth Bank of Australia [2003] FCA 1397 TRADE PRACTICES – breaches established – content of declaratory relief and orders for corrective advertising mutually agreed in light of reasons for findings of breaches – whether injunctive relief should additionally be ordered in context of legislative changes – whether injunctive relief should be granted in exercise of Court's discretion – interpretation of two sets of identical legislation operating in temporal succession. Trade Practices Act 1974 (Cth) ss 4 (1), 51AF, 52, 53(c), (e) and (g) Australian Securities and Investments Commission Act 2001 (Cth) ss 12DA, 12DB and 12GD Acts Interpretation Act 1901 (Cth) ss 8(c) and (d) Australian Competition and Consumer Commission v Wizard Mortgage Corporation Limited (2002) ATPR 41-903 Thomson Australian Holdings Pty Ltd v Trade Practices Commission & Ors (1981) 148 CLR 150 Cassidy & Anor v Medical Benefits Fund of Australia (No 2) [2002] FCA 1097 OD Transport Pty Ltd v WA Government Railways Commission (1987) 13 FCR 500 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Australian Competition and Consumer Commission v Z-Teck Computer Pty Ltd (1997) 78 FCR 197 Australian Competition and Consumer Commission v Health Partners Inc (1997) 151 ALR 662 Australian Competition and Consumer Commission v Woolworths Limited (No 2) [2002] FCA 1046 Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION, AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v COMMONWEALTH BANK OF AUSTRALIA N 1002 OF 2002 CONTI J 5 DECEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1002 OF 2002 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION FIRST APPLICANT AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION SECOND APPLICANT AND: COMMONWEALTH BANK OF AUSTRALIA RESPONDENT JUDGE: CONTI J DATE OF ORDER: 5 DECEMBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application of the applicants for injunctive relief be refused. 2. There be no order as to the costs of the proceedings which took place on 20 November 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1002 OF 2002 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION FIRST APPLICANT AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION SECOND APPLICANT AND: COMMONWEALTH BANK OF AUSTRALIA RESPONDENT JUDGE: CONTI J DATE: 5 DECEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 In my reasons for judgment given on 17 October 2003, I concluded that the Commonwealth Bank of Australia's ('the Bank') television and in-branch advertising involved contraventions on the Bank's part of s 52 of the Trade Practices Act 1974 (Cth) ('TP Act'), and additionally of ss 53(c), 53(e) and 53(g) thereof. I discussed at [84-92] the nature of the fourfold relief sought by the applicants, namely declarations, injunctions, orders for corrective advertising and orders for refund of establishment fees paid by applicants for home loans. I observed (at [85]) that the latter or fourth category of relief was not presently open to the ACCC to pursue, upon the present state of the general law: see also Medibank Private Ltd v Cassidy (2002) ATPR 41-895. It is convenient to adopt the same course of identification as that apparent in those reasons for judgment, namely to refer to the first applicant as 'ACCC', and the second applicant as 'ASIC', and unless inconsistent with the context, to follow the course of convenience adopted in my previous reasons of referring to both as ACCC. 2 Since handing down my reasons for judgment of 17 October 2003, I was informed by counsel that the parties were engaged in discussion as to the proposed terms of declaratory relief and the nature and extent of corrective advertising to be ordered, but that the issue as to the grant of injunctive relief could not be resolved and was required to be resolved by the Court. The Bank has vigorously opposed the grant of injunctive relief, both on the ground of unavailability of any such relief in the light of the prevailing statutory scheme, and in any event on discretionary grounds. 3 In my reasons for judgment of 17 October 2003, I referred to the circumstance that injunctive relief had been granted by this Court in Australian Competition and Consumer Commission v Wizard Mortgage Corporation Limited (2002) ATPR 41-903, being litigation which related to what was found to be misleading and deceptive television advertising of home loans, in contravention of s 52 of the TP Act, and also of subs 53(aa), (c) and (e) of the TP Act. I did not of course then resolve the issue as to whether injunctive relief should be granted, in the light of my reasons for judgment. Relief of that nature now falls to be resolved, in the light of the competing submissions made by the parties since 17 October 2003. The grant of any such relief raises questions of complexity, because the injunctive relief sought would relate to future conduct governed by replacement legislation, albeit relevantly framed in similar terms to that in force at the time when the conduct complained of had occurred. The breaches the subject of evidence adduced in the proceedings, at least so far as television advertising is concerned, took place from 22 November 2001 to 27 November 2002, and it may be reasonably inferred that the in-branch advertising was in place for about the same period of time, or perhaps marginally longer by reason of the dynamics involved in the physical removal of posters of varying sizes from the Bank's numerous branches throughout Australia. 4 The injunction initially sought by ACCC was framed in the following terms: 'An injunction restraining the Respondent by its servants or agents or otherwise howsoever, in trade or commerce, in connection with the supply or possible supply of or the promotion of the supply of, its home loan products from representing that the said products are available without payment of an establishment fee when an establishment fee is or may be payable or there are other products of the Respondent required to be held or obtained by the customer in order to obtain the home loan without the payment of an establishment fee.' 5 In the course of the subsequent submissions of ACCC relating to the issue of injunctive relief, an amended form of injunction has been framed in the following terms: 'The Respondent, by itself, its servants, agents or otherwise howsoever, for a period of 5 years, be restrained, in connection with the promotion of the supply of home loan products, from representing in an advertisement that no establishment fee is payable without clearly and prominently disclosing in the advertisement all conditions that must be satisfied for no establishment fee to be payable.' 6 It may thus be observed that ACCC is now prepared to limit the duration of the injunction to a period of five years, and to frame the injunction in more general, and otherwise in less controversial, terms than as originally proposed. Nevertheless the Bank maintained its objection to the grant of any injunctive relief. Underpinning the Bank's opposition to injunctive relief are the circumstances that it is a substantial listed public company with a responsible board of directors, and that the sanction of an injunction is not necessary or appropriate to ensure that the Bank would be always concerned to abide by and fulfil the agreed terms of the declaratory relief and corrective advertising. I did of course outline in my reasons for judgment of 17 October 2003 the nature and extent of corrective advertising which I proposed in principle to order. The grounds of opposition propounded by the Bank raise issues as to the exercise of the Court's discretion which I will later address. 7 At the commencement of my reasons for judgment of 17 October 2003, I referred to the circumstance that ACCC is seeking injunctive relief against the Bank pursuant to s 80 of the TP Act, and also pursuant to s 12GD of the Australian Securities and Investments Commission Act 2001 (Cth) ('ASIC Act'). That scope of relief is sought, albeit in the context of the conduct of the Bank complained of having taken place prior to the addition of s 51AF to the TP Act on 11 March 2002, that is to say, prior to the time when that conduct was regulated by the operation of ss 52 and 53(c), (e) and (g) of the TP Act. Section 51AF stipulates in effect that Part V of the TP Act does not apply to the supply, or possible supply, of services that are financial services, implicitly in the context of the provisions simultaneously inserted in the ASIC Act, relevantly comprising for present purposes ss 12DA, 12DB and 12GD of the ASIC Act. The statutory expression 'financial service' is accorded by s 4(1) of the TP Act the same definitive meaning as that appearing in Part 2 of Division 2 of the ASIC Act. 8 There is no dispute that the provision by the Bank of each of the home loans the subject of the present proceedings constitute the defined expression 'financial service'. Sections 12DA, 12DB and 12GD of the ASIC are essentially the same, for all purposes here relevant, as ss 52, 53 and 80 of the TP Act, except that the former relate to 'financial services', whereas the latter relate to 'goods and services', as respectively defined in those two statutes. ACCC's case for availability of injunctive relief 9 In its initial written submissions to the Court, ACCC asserted reliance upon both s 80 of the TP Act and s 12GD of the ASIC Act in order to sustain its claim to injunctive relief. Nevertheless, in the course of oral submissions, senior counsel for the applicants conceded that s 80 of the TP Act did not provide a source of power for the granting in its favour of an injunction to restrain future conduct of the Bank, in circumstances where that conduct was no longer proscribed by the TP Act, but by the ASIC Act instead. That concession was made by ACCC purportedly by reason of what had been earlier said by a majority of the High Court in Thomson Australian Holdings Pty Ltd v Trade Practices Commission & Ors (1981) 148 CLR 150 at 159 (Gibbs CJ, Stephen, Mason and Wilson JJ), as follows: '… there was no ground for granting an injunction to restrain future conduct unless that conduct was proscribed by the [TP] Act in its amended form. Consequently, the consent orders are to be justified, if at all, on the ground that they prohibit conduct which amounts to a contravention of the new s 45(2).' 10 ACCC has since withdrawn the concession that the reasoning in Thomson is applicable to the present circumstances, given what ACCC described as the entirely different wording of s 80 then under consideration by the High Court in Thomson to that at all times presently material to the allegations against the Bank. Accordingly ACCC has now sought leave to withdraw its concession that s 80 of TP Act did not empower the Court to grant a prohibitive injunction in relation to the future conduct of the Bank occurring after the enactment of s 51AF on 11 March 2002. There is no reason why that leave should not be granted, no reliance having been relevantly placed by the Bank on ACCC's concession. 11 ACCC acknowledged in the course of its submissions that as from 11 March 2002, the statutory regulation of the Bank's conduct in relation to 'financial services' had been removed from Part V of the TP Act, by virtue of s 51AF of the TP Act, that being of course also the time when the 'mirror' provisions of s 12DA, 12DB and 12GD, inter alia, were inserted into the ASIC Act concerning financial services, albeit without the statutory facility of explicit transitional provisions. It was mutually accepted by the parties that the conduct of the Bank complained of, if it had occurred subsequently to 11 March 2002 (see also again [7] above), would be regulated and governed by the ASIC Act under the aegis of those 'mirror' provisions of the ASIC Act, instead of the TP Act. What however remains for resolution is whether the conduct of the Bank the subject of complaint remained actionable by ACCC and/or ASIC for the purposes of entitlement to injunctive relief, given that such conduct took place prior to 11 March 2002 when the same was governed by the TP Act, and the injunctive relief sought would be for five years henceforth (see [5] above). 12 There is no dispute that notwithstanding the absence of any transitional provisions, the jurisdiction of the Court to grant relief by way of declarations, and orders for corrective advertising, in respect of the contraventions of the TP Act which I have already found, remain unaffected by the legislative changes which took effect on 11 March 2002. 13 I was referred by ACCC in that regard to ss 8(c) and (d) of the Acts Interpretation Act 1901 (Cth), which provide as follows: 'Where an Act repeals in whole or in part a former Act, then unless the contrary intention appears the repeal shall not: … (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or … (e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid; and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.' 14 Upon that footing it was submitted by ACCC that the abovementioned amendments made to the TP Act on 11 March 2002, by the insertion of s 51AF thereof, did not affect, much less abrogate, any rights or remedies of ACCC in relation to the pre-11 March 2002 conduct of the Bank complained of, and in particular any rights or remedies by way of an injunction to restrain repetition of the Bank's conduct complained of. It was further submitted by ACCC that the above extracted provisions of the Acts Interpretation Act applied to rights and remedies in favour of ACCC accrued under s 80 of the TP Act, and thus to all of the rights and remedies sought by ACCC's pleadings, including in particular injunctive relief. Notwithstanding these legislative changes, ACCC contended that in the circumstances of the case, the Court retained authority under s 80 of the TP Act to grant ACCC the injunction it seeks in respect of conduct proscribed by ss 52 and 53 of the TP Act concerning the supply of financial services, notwithstanding the provisions of s 51AF of the TP Act, and notwithstanding that such future conduct is now regulated solely by the ASIC Act. Additionally or alternatively, it was submitted that in the events which happened, ASIC could maintain the case for injunctive relief on the footing of the ASIC Act, and ss 12DA, 12DB and 12GD thereof in particular. 15 ACCC submitted moreover that irrespective of the construction of the above identified statutory provisions, the terms of the Acts Interpretation Act set out above applied to rights and remedies accrued under s 80 of the TP Act. In other words, notwithstanding the legislative changes, the Court retains the power under s 80 of the TP Act to grant the injunction sought in any event, even though the conduct sought to be restrained is now regulated by the ASIC Act. 16 Relevantly for present purposes, s 80(1)(a) of the TP Act provides that 'where… the Court is satisfied that a person has engaged… in conduct that constitutes… a contravention of… Part V [of the Act]… the Court may grant an injunction in such terms as the Court determines to be appropriate'. Subsection 12GD commences in similar terms, by reference to contraventions of Part 2 of Division 2 of the ASIC Act. I make the initial observation that the Legislature implicitly intended that those respective provisions should operate symmetrically, and in particular in the light of the legislative reform summarised in [7] above. 17 ACCC contended that the reasoning in Thomson is not here applicable, primarily upon the basis of the different wording of s 80 then under consideration by the High Court. The content of s 80 of the TP Act was then, relevantly, in the following terms: 'The Court may, on the application of – (a) the Minister (b) the [Trade Practices] Commission; or (c) … any other person, grant an injunction restraining a person from engaging in conduct that constitutes or would constitute – (d) a contravention of a provision of Part IV or V…' 18 It was pointed out by ACCC that s 80(1)(d) in that earlier form appearing in the TP Act in 1981 provided the Court with power to grant an injunction to restrain only conduct amounting to contravention of Parts IV or V of the TP Act (OD Transport Pty Ltd v WA Government Railways Commission (1987) 13 FCR 500 at 506 per French J). The circumstances in Thomson were that certain undertakings (in lieu of injunctions) were offered to and accepted by the Federal Court in respect of contraventions of Part IV of the TP Act. The relevant provisions of Part IV had been the subject of amendment between the time of the impugned conduct and the acceptance of the undertakings to the Trade Practices Commission by the Federal Court. It was subsequently held by a majority of the High Court in Thomson that as some of the undertakings went beyond conduct amounting to a contravention of the amended provisions of Part IV of the Act, there had been no curial power to grant the injunctions, nor to accept undertakings to similar affect, in the form presented to the Federal Court. It was in that context that the majority of the High Court said that although rights were preserved by s 8 of the Acts Interpretation Act, '…there was no ground for granting an injunction to restrain future conduct unless that conduct was proscribed by the Act in its amended form'. 19 The 1983 amendments to s 80 of the TP act were said by ACCC to have been made in order to directly address perceived shortcomings arising from the decision in Thomson. Following those amendments, s 80 has empowered the Court to grant an injunction in such terms as it determines to be appropriate, where it is satisfied that a person has contravened the Act. As pointed out by counsel for ACCC, a Full Federal Court in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 (per Lockhart J at 254-257, per Gummow J at 263-268 and per French J at 268) discussed both the fact that the amended form of s 80 is a widely drawn and flexible remedial provision, and is additionally concerned with issues of a public interest nature. 20 ACCC drew my attention to the decision of this Court in Australian Competition and Consumer Commission v Z-Teck Computer Pty Ltd (1997) 78 FCR 197 at 202-204, where Merkel J identified three limitations on the Court's power under s 80 of the Act. The first was by reference to the scope and purpose of the Act. The second was the requirement that an injunction have a sufficient nexus with the contravening conduct, and the third was that the injunction be related to the case or controversy between the parties the subject of the proceedings. Each of those requirements was said by ACCC to be satisfied in the present case, both in terms of liability and of discretion. 21 Accordingly, while the contravening conduct of the Bank, if repeated in the future, is no longer proscribed by the TP Act, but is now proscribed instead by the ASIC Act, ACCC submitted that s 80 of the TP Act provides the Court with power to grant an injunction to restrain repetition of such conduct on the Bank's part in the future. The difficulty with that submission is that the proscription of that conduct is no longer to be found in the TP Act. 22 ACCC, or more precisely ASIC, further sought however to rely upon the terms of s 12GD of the ASIC Act, as an alternative basis for the power to grant the injunctive relief it seeks for anticipatory statutory breach, submitting that the Bank 'has engaged… in conduct that… would constitute' a contravention of the ASIC Act. In principle, that submission is I think soundly conceived. 23 In my opinion, ASIC has legislative authority to seek injunctions to the effect presently sought, upon the footing that future breaches of the law which it purportedly apprehends are based upon the currently operating provisions of ss 12DA and 12DB of the ASIC Act, being provisions identical to their statutory precursors comprising ss 52 and 53 of the TP Act. What is sought is an injunction for which legislative authority and provision is to be found in s 12GD of the ASIC Act, which is in substance the same in terms as s 80 of the TP Act. Thus no obstacle, of the kind which arose in Thomson, is here present, since the future conduct sought to be restrained in the present proceedings is identically proscribed by the current legislation and the superseded legislation. 24 I do not think that the Bank has mustered any sound contention to the contrary of ACCC's position that the grant of an injunction in favour of ASIC in the circumstances of this case is authorised in principle. Whilst the Bank's arguments did not appear to accept that in the events which have happened, s 12GD should now be regarded as regulating the circumstances and conditions in which the power to restrain future contraventions of the ASIC Act should be exercised, I am unable to accept the Bank's proposition that the conditions for exercise of that power have not been enlivened. That the circumstance that there has been no contravention of Part 2 of Division 2 of the ASIC Act is not to the point. The issue is whether there may be the threat or prospect of any such contravention in the future, in the light of the Bank's conduct at the time the same was governed by the TP Act. Whether injunctive relief should nevertheless be refused on discretionary grounds 25 Irrespective of the view which I have reached as to the entitlement of ASIC to injunctive relief, I do not think that it is appropriate, in all the circumstances that I should grant the injunctive relief sought against the Bank. In my opinion, the declaratory relief and corrective advertising, along the lines foreshadowed in my previous reasons for judgment, should in principle suffice in the circumstances of the case. 26 The circumstances I have in mind include the following: (i) the absence of evidence as to any person who actually committed to a home loan borrowing from the Bank as a consequence of being misled or deceived by the Bank's advertising complained of; as I mentioned in [51] of my reasons for judgment of 17 October 2003, it was fairly and I think reasonably conceded by senior counsel for ACCC to the effect that it was difficult to imagine that there would have been anyone who ultimately committed to taking up one of the subject home loans, yet whose attention had not been drawn by the Bank's officers in the meantime to the home loan conditions which I have found to have been misrepresented; (ii) the passage of time which has elapsed since the offending television and in-branch advertising took place, without any suggestion of repetition thereof on the Bank's part; (iii) the limited number of complainants, whether directly to the ACCC or otherwise, concerning the offending advertising, comprising as they did the three persons who gave evidence for ACCC in the proceedings, and who did not in any event take up any of the advertised home loans, and an anonymous fourth person, concerning whom no detail is known; (iv) the absence of evidence to the effect that the Bank actually gained any net increase in its home loan patronage from the offending advertisements (see [88(iii)] of my earlier reasons); (v) the absence of evidence of complaint made by any of the Bank's competitors concerning the Bank's impugned advertising; (vi) the Bank's subsequent revision of its existing compliance based staff training programme, and the introduction of new promotional procedures, thereby giving rise to an inference of unlikely repetition of the conduct complained of on the Bank's part; and (vii) the absence consequently of likely repetition of the Bank's conduct complained of. 27 There is analogous judicial precedent to the course I propose as to refusal of injunctive relief in the exercise of my discretion; I refer for instance to the following: (i) the reasons for judgment of Hill J in Cassidy & Anor v Medical Benefits Fund of Australia & Anor (No 2) [2002] FCA 1097 at [79-81]; though in that litigation there was a subsequent appeal to the Full Federal Court on the issue of liability, and the issue of corrective advertising, no cross-appeal was lodged in relation to his Honour's refusal at first instance to grant injunctive relief, in circumstances where his Honour observed, first, that the Fund had since instituted an extensive compliance programme, and secondly, that it was unlikely that there would be repetition of the Fund's conduct complained of; (ii) the reasons for judgment of Mansfield J in Australian Competition and Consumer Commission v Health Partners Inc (1997) 151 ALR 662 at 682, where in the context of a finding adversely to the respondent of resale price maintenance, his Honour declined the grant of an injunction, upon the footing that the public interest would be sufficiently served by the recording of findings adverse to the respondent, notwithstanding the existence of certain important considerations in the public interest to which his Honour acknowledged; (iii) the reasons for judgment of Lindgren J in Australian Competition and Consumer Commission v Woolworths Limited (No 2) [2002] FCA 1046, where his Honour declined to grant injunctive relief in relation to conduct which had occurred four years earlier, and had been found to be unconscionable, in the light of the circumstance, in particular, that there was nothing to indicate any significant risk of repetition of that conduct. 28 In the reasons for judgment in each of those cases, the presiding judge was conscious of the terms of s 80(4) of the TP Act, reading as follows: 'The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised: (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; (b) whether or not the person has previously engaged in conduct of that kind; (c) whether or not there is any imminent danger of substantial damage to any person if the first-mentioned person engaged in conduct of that kind.' Each presiding judge was also conscious of what had been earlier observed by the Full Federal Court in ICI Australia Operations, as to the scope of operation of s 80(4) of the TP Act, in terms of the important considerations as to public interest, yet the need for the injunctive power thereby conferred to be exercised judicially and sensibly to suit the needs of each case, and to be determined appropriately in conformity with the terms of subs 80(1) of the TP Act. 29 The circumstances propounded by ACCC in support of the exercise of discretion for the grant of injunctions sought in the proceedings are chiefly as follows: (i) the so-called widespread and persistent nature of the contravening conduct of the Bank, comprising nationally televised advertisements and Australia wide in-branch advertising 'over a number of months' (the period of time of television advertising was from 22 November 2001 to 27 January 2002); (ii) the entire inadequacy of procedures to ensure compliance occurred (see in that regard my findings in [40-41]) of my reasons for judgment of 17 October 2003); and (iii) the public interest nature of the proceedings, and the need to mark the Court's disapproval of the conduct of the Bank complained of. 30 I was also referred by ACCC to the following passage in Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 300: 'The imposition of an injunction may, in an appropriate case, be an additional sanction to a pecuniary penalty. For instance, in the case of a particularly flagrant breach, even though there was no evidence to indicate the offender's intention to continue the offending conduct, it might be appropriate to mark the court's disapproval by an injunction as well as a monetary penalty.' Whilst the Bank's breaches did have implications of potentially substantial significance, I would hesitate to describe the Bank's conduct, taken as a whole or to the extent which I summarised in my reasons for judgment of 17 October 2003, as flagrant. 31 I am of the opinion that the circumstances of the case do not justify the grant of injunctive relief against the Bank. There should be no order as to the costs of the proceedings which took place on 20 November 2003, which were confined to the issue of the grant or otherwise of an injunction. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 5 December 2003 Counsel for the Applicant: P Renehan Solicitor for the Applicant: Phillips Fox Counsel for the Respondent: J Hilton SC, D Sibtain Solicitor for the Respondent: L E Taylor Date of Hearing: 20 November 2003 Date of Judgment: 5 December 2003