HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
TRUTH ABOUT MOTORWAYS PTY LIMITED APPLICANT
AND
MACQUARIE INFRASTRUCTURE
INVESTMENT MANAGEMENT LIMITED RESPONDENT
Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11
9 March 2000
S186/1998
ORDER
The questions in the Case Stated on 17 August 1999 should be answered as follows:
Are sections 80 and 163A of the Trade Practices Act 1974 (Cth) invalid insofar as they purport to confer standing on the applicant to bring the present proceedings?
Answer: No.
Does the applicant have standing to bring proceedings in the Federal Court in respect of the subject matter of these proceedings:
(a) for an injunction in reliance upon section 65 of the Fair Trading Act 1987 (NSW) and in purported reliance upon the accrued or pendent jurisdiction of the Federal Court;
(b) for an injunction in reliance upon section 23 of the Federal Court of Australia Act 1976 (Cth);
(c) for a declaration that another person has engaged in misleading and deceptive conduct in contravention of section 52 of the Trade Practices Act or section 42 of the Fair Trading Act?
Answer: Unnecessary to answer.
2.
Is section 65 of the Fair Trading Act a law of a State:
(a) for the purposes of section 109 of the Constitution, inconsistent with the Trade Practices Act; or
(b) in conflict with Chapter III of the Constitution in purporting to confer standing on the applicant to bring the proceedings in the Supreme Court of New South Wales against the respondent?
Answer: Unnecessary to answer.
If the Federal Court has no jurisdiction in respect of these proceedings, should the proceedings be remitted to a court of a state?
Answer: Unnecessary to answer.
By whom should the costs of the proceedings in the Full Court be borne?
Answer: The respondent.
Representation:
J D Heydon QC with G J Williams and I R Pike for the applicant (instructed by Maurice May & Co)
D F Jackson QC with T D Castle and J R Clarke for the respondent (instructed by Mallesons Stephen Jaques)
Interveners:
H C Burmester QC, Acting Solicitor-General of the Commonwealth with M K Moshinsky intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
D Graham QC, Solicitor-General for the State of Victoria with N D Hopkins intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with P D Quinlan intervening on behalf of the Attorneys-General for the States of Western Australia and South Australia (instructed by Crown Solicitors for Western Australia and South Australia)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited
Constitutional law – "Matter" – Validity of law conferring standing to seek injunctive and declaratory relief – Where applicant has no direct or special interest in subject matter of proceedings – Whether reciprocity of right and duty is required.
Trade practices – Misleading and deceptive conduct – Application for injunction and declaration – Standing of applicant.
The Constitution, Ch III, ss 71, 75-78.
Trade Practices Act 1974 (Cth), ss 51A, 52, 53(aa), 53(c), 80, 163A.
Words and phrases – "matter" – "a person".
GLEESON CJ AND McHUGH J. The primary issue for determination is whether the Parliament, in legislating with respect to a subject matter specified in s 51 of the Constitution, (in this case, corporations of the kind referred to in s51(xx)), may provide for the judicial enforcement of the law at the suit of any person.
There are reasons why, in the case of many laws, Parliament may not wish to enact such a provision. The common law requirement that a plaintiff who brings an action, not to vindicate a private right, but to prevent the violation of a public right or to enforce the performance of a public duty, must have a special interest to protect[1], is based upon considerations of public policy which the legislature would not lightly disregard[2]. Nevertheless, it is not difficult to understand why, in the case of certain laws, it might be considered in the public interest to provide differently. Apart from statute, there are ample precedents for private enforcement of laws. In Phelps v Western Mining Corporation Ltd[3], in considering the legislation in question in the present case, Deane J pointed out that such private enforcement has a long history in the administration of the criminal law. He referred to Lord Mansfield's statement[4] that if a certain kind of restrictive trade agreement were made "the court would be glad to lay hold of an opportunity, from what quarter soever the complaint came, to shew their sense of the crime". An application for a writ of prohibition, seeking the exercise of the judicial power of the Commonwealth under s 75(v) of the Constitution, may be made by a "stranger"[5]. The same applies to applications for habeas corpus[6]. The people who sought, and obtained, the release of the slave in Somerset v Stewart[7] were regarded by some as officiously interfering with England's trading interests, but their standing was not in dispute.
[1]Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 524 per Gibbs J.
[2]Gouriet v Union of Post Office Workers [1978] AC 435.
[3](1978) 20 ALR 183 at 189.
[4]R v Norris (1758) 2 Keny 300 [96 ER 1189].
[5]Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247.
[6]cf Clarkson v The Queen [1986] VR 464.
[7](1772) Lofft 1 [98 ER 499].
The concern of this Court is not whether a law of the kind in question is a good idea. The issue is whether it is beyond legislative power.
At first sight, a provision that a law concerning the conduct of corporations may be enforced by a court at the suit of any person appears to be within the power given by s 51(xx). That power, however, is subject to the Constitution. It is argued that the enactment of such a law is inconsistent with Ch III of the Constitution, and with the arrangements made by Ch III for the exercise of the judicial power of the Commonwealth.
The context in which the issue arises may be stated briefly.
Section 52 of the Trade Practices Act 1974 (Cth) ("the Act") provides that a corporation shall not, in trade or commerce, engage in misleading or deceptive conduct. That section appears in Pt V of the Act. Section 80 of the Act, which is in Pt VI dealing with "Enforcement and Remedies", provides that the Federal Court of Australia may grant injunctive relief where, on the application of the Australian Competition and Consumer Commission ("the Commission") "or any other person", it is satisfied that a person was engaged, or is proposing to engage, in conduct in contravention of a provision of Pt V. Section 163A of the Act also provides that "a person" may institute proceedings, in the Federal Court, seeking, in relation to a matter arising under the Act, a declaration in relation to the operation or effect of (amongst others) a provision of Pt V, and that the Federal Court has jurisdiction to hear and determine the proceedings.
The applicant commenced proceedings against the respondent in the Federal Court, claiming that the respondent contravened s 52 and two related provisions of Pt V. The applicant sought a declaration that the respondent had contravened s 52, and an order, in the nature of a mandatory injunction, compelling publication of corrective advertising.
The alleged misleading and deceptive conduct related to the publication of a prospectus inviting the public to subscribe for units in an investment trust. The investment concerned the construction of a toll road. The applicant complains that information given concerning the volume of traffic on the road was misleading.
The applicant claims no special interest in the subject matter of the dispute. It has not suffered any loss or damage by reason of the respondent's conduct. It invokes the jurisdiction conferred on the Federal Court by ss 80 and 163A simply in its capacity as a (corporate) person.
The respondent challenges the applicant's standing to bring the proceedings, and has raised a number of questions which have been made the subject of a Case Stated for this Court.
The first question asks whether ss 80 and 163A of the Act are invalid, insofar as they purport to confer standing on the applicant to bring the present proceedings.
It is agreed that, if that question is answered in the negative, and the validity of the provisions is upheld, it is unnecessary to answer the other questions.
It has been established for more than 20 years that s 80 means what it says. In Phelps v Western Mining Corporation Ltd[8] the Full Court of the Federal Court rejected an argument that the words "any other person" in s 80 should be read down as meaning that only persons who are affected by a contravention of Pt V could seek relief under s 80. Deane J said[9]:
"As a matter of ordinary language, the phrase 'any other person' connotes any other person whatsoever. The context in which the phrase appears in s 80 … does not, upon analysis, suggest, let alone justify, the conclusion that the Legislature intended that the phrase be modified by the engrafting of speculative qualifications such as 'who is a consumer' or 'who is a competitor' or 'who has an interest of a type which would give him standing to institute common law civil proceedings if the conduct complained of were tortious'."
[8](1978) 20 ALR 183.
[9](1978) 20 ALR 183 at 189.
Bowen CJ pointed out[10] that what was at issue was a question of standing, not a question as to the considerations which might, in a particular case, bear upon whether it was appropriate to grant any, and if so what, relief. He adverted to the problems, as to relief, that could arise in the case of a suit commenced by an officious bystander, but declined to accept, in relation to legislation protective of the public interest, that the solution to those problems was to be found in giving a narrow and artificial interpretation to the statutory provisions conferring jurisdiction and standing.
[10](1978) 20 ALR 183 at 187-188.
The word "any" does not lend itself to a restrictive interpretation.
The relevant provisions of Ch III of the Constitution, which are relied upon in aid of the respondent's contention that ss 80 and 163A of the Act do not validly confer upon the applicant standing to bring these proceedings, are as follows. Section 76 (ii) empowers the Parliament to make laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament. Section 77 enables the same jurisdiction to be conferred on another federal court. The essence of the respondent's argument is that in a case such as the present, there is no "matter", and the purported conferment of jurisdiction is therefore invalid. The reason why there is no matter, it is submitted, is that there is no justiciable controversy. That, in turn, is said to follow from the absence of any direct or special interest of the applicant in the subject matter of the proceedings.
As Bowen CJ observed in Phelps v Western Mining Corporation Ltd[11], the purpose of s 52 is to protect the public from being misled or deceived. An application for injunctive relief under s 80 is, in its nature, one for the protection of the public interest. The same may be said of s 163A. Any public protection of the applicant's own business or other interests is incidental or collateral. What is sought to be established by the determination of a court is a violation by the respondent of a statutory norm of conduct, and the existence of a duty or liability. The court is not invited "to make a declaration of the law divorced from any attempt to administer that law"[12]. Such a subject matter is justiciable in character. Parliament, by conferring standing upon any person to invoke the jurisdiction of the court has, at the one time, created the potential for a justiciable controversy and conferred jurisdiction to determine the controversy. This is a common feature of legislation.
[11](1978) 20 ALR 183 at 186-187.
[12]cf In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266.
In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett[13], Dixon J said:
"Legislation in the form under discussion must, of course, fall within one of the subjects of the legislative power of the Federal Parliament in s 51 or s 52. But, assuming the law is one with respect to one or other of the enumerated powers and that it also defines the jurisdiction of a Federal court with respect to a justiciable subject matter, why should not an application to obtain the benefit of the provision be a matter arising under that very law? Ex hypothesi, the justiciable subject matter is not only specified or indicated by the law defining the jurisdiction, but falls within one of the enumerated legislative powers. That is to say that, apart from the special requirements of Chapter III, it would be an exercise of legislative power upon an assigned subject. Why should not the legislation thus conferring power upon the court perform the two functions of giving rise to the 'matter' and conferring jurisdiction over it?"
[13](1945) 70 CLR 141 at 168.
The same may be asked of ss 80 and 163A.
The fact that no private right, or special interest, of the applicant is at stake in the present case does not deny to its disputed assertion that the respondent has violated s 52 of the Act and its claim for remedies of the kind provided by the Act the character of a justiciable controversy. Parliament is no less entitled to confer on a federal court jurisdiction to grant such remedies at the suit of "any other person" than it is entitled to confer jurisdiction to grant them at the suit of the Commission.
Reliance was placed upon authorities concerning Art III of the United States Constitution and the power of Congress to confer standing in citizen suits[14]. The constitutional context in which those cases were decided is materially different from the Australian context. In particular, the references in Art III to "cases" and "controversies", as opposed to "matters", and the somewhat different role of the Executive, means that the United States learning is not of assistance in the resolution of the Australian problem.
[14]eg Steel Co v Citizens for a Better Environment 523 US 83 (1998).
The legislation is valid. The first question in the Case Stated should be answered in the negative. The other questions, except as to costs, need not be answered. The costs of the Case Stated in this Court should be borne by the respondent.
GAUDRON J. The respondent, Macquarie Infrastructure Investment Management Limited, is the manager of two unit trusts ("the trusts"). One of the assets of those trusts is a toll road project in Sydney known as the "Eastern Distributor". In November 1996, the respondent issued a prospectus and a supplementary prospectus inviting members of the public to purchase units in the trusts. The prospectus contained the following statement:
"Traffic volume on the Eastern Distributor is anticipated to build up rapidly, as a consequence of the existing traffic volumes and the current congestion in the corridor, to an average daily volume of nearly 60,000 vehicles by 2006. Thereafter traffic volume on the Eastern Distributor is forecast to increase more slowly."
The applicant commenced proceedings against the respondent in the Federal Court of Australia claiming that, in making the statement set out above, it contravened ss 52, 53(aa) and 53(c) of the Trade Practices Act 1974 (Cth) ("the Act") and the equivalent provisions of the Fair Trading Act 1987 (NSW). The terms of ss 52(1), 53(aa) and 53(c) of the Act will be set out later in these reasons.
By its amended application, the applicant seeks an order that the respondent publish "corrective advertising ... so as to provide an accurate estimate of likely future traffic volumes on the Eastern Distributor" and also a declaration that the respondent engaged in misleading and deceptive conduct contrary to s 52 of the Act or in breach of s 42 of the Fair Trading Act. The proceedings were removed into this Court by order under s 40(1) of the Judiciary Act 1903 (Cth).
The applicant does not assert that it suffered any loss or damage in consequence of the conduct of which it complains. Moreover, it admits that it has no special interest in the subject-matter of the proceedings. It claims, however, that, so far as it complains of contraventions of the Act, it has standing to bring the proceedings by reason of ss 80 and 163A of the Act.
Subject to certain other provisions which do not bear on these proceedings, s 80(1) relevantly provides that:
"... where, on the application of the Commission[15] or any other person, the Court is satisfied that a person has engaged ... in conduct that constitutes ...:
(a)a contravention of any of the following provisions:
(i) a provision of Part IV, IVA, IVB or V;
...
the Court may grant an injunction in such terms as the Court determines to be appropriate."[16]
Sections 52, 53(aa) and 53(c) of the Act, which, as already noted, the applicant claims were contravened by the respondent, are in Pt V of the Act.
[15]"Commission" is defined in s 4(1) to mean:
"the Australian Competition and Consumer Commission established by section 6A, and includes a member of the Commission or a Division of the Commission performing functions of the Commission".
[16]Section 80 of the Act was in a slightly different form at the time the action was commenced but nothing turns on that difference.
Section 163A(1) relevantly provides that:
"... 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 the following provisions:
(i) Division 2, 2A or 3 of Part V;
(ia) Part VB;
(ii) Part XIB;
(iii) Part XIC;
... and the Court has jurisdiction to hear and determine the proceeding."
Sections 52, 53(aa) and 53(c) are not in any of the Divisions or Parts referred to in ss 163A(1)(a)(i), (ia), (ii) and (iii)[17].
[17]Again, s 163A(1) was in slightly different form when the action was commenced but nothing turns on that difference.
After the proceedings were removed into this Court, a case was stated for the consideration of the Full Court. The first question in the Case Stated asks:
"Are sections 80 and 163A of the Trade Practices Act 1974 (Cth) invalid insofar as they purport to confer standing on the applicant to bring the present proceedings."
The parties are agreed that, if that question is answered "No", it is unnecessary to answer other questions in the Case Stated. As I am of the view that the first question should be answered in that way, it is unnecessary to refer, at this stage, to the other questions.
The argument for invalidity
As a matter of ordinary language, the expressions "any other person" in s 80 and "a person" in s 163A of the Act include a person who has neither a direct nor special interest in the subject-matter of the proceedings[18]. And the ordinary rules of statutory interpretation require that they be so construed[19]. However, it was contended for the respondent that those sections are invalid insofar as they purport to authorise the institution of proceedings by persons who have neither a direct nor a special interest in the subject-matter of the proceedings and that they should be read down accordingly. That is so, it was put, because, absent a direct or special interest, there is no justiciable controversy with respect to which jurisdiction may be conferred on or invested in a court pursuant to Ch III of the Constitution.
[18]See World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 186 per Bowen CJ, 198 per Brennan J; Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 234 per Murphy J; R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 120-121 per Stephen J, 128 per Mason J (with whom Jacobs J agreed), 131 per Murphy J; Phelps v Western Mining Corporation Ltd (1978) 20 ALR 183; ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 255 per Lockhart J, 268 per French J.
[19]See Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 420-421. See also Hyman v Rose [1912] AC 623 at 631 per Earl Loreburn LC; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283-284 per Wilson J, 290 per Gaudron J; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 185 per Mason CJ and Deane J, 202-203 per Dawson J, 205 per Gaudron J.
It is well settled that the only power that the Parliament may confer on courts created pursuant to Ch III of the Constitution is judicial power or power ancillary to the exercise of judicial power[20]. Moreover, by ss 75, 76 and 77 of the Constitution, it can only confer or invest jurisdiction with respect to "matters"[21]. Central to the notion of "judicial power" and central, also, to the meaning of "matter" is the requirement that there be a justiciable controversy[22]. In essence, it was contended for the respondent that, unless the person who institutes proceedings has some direct or special interest in the subject-matter of the proceedings, there is no justiciable controversy and, hence, no "matter" capable of resolution by the exercise of judicial power.
[20]See R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 271-272, 289 per Dixon CJ, McTiernan, Fullagar and Kitto JJ. See also In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264-265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 97-98 per Dixon J; R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at 586-587 per Dixon and Evatt JJ; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 606-607 per Deane J, 703 per Gaudron J; Leeth v The Commonwealth (1992) 174 CLR 455 at 469 per Mason CJ, Dawson and McHugh JJ, 487 per Deane and Toohey JJ; Gould v Brown (1998) 193 CLR 346 at 385-386 per Brennan CJ and Toohey J, 400-401 per Gaudron J, 419 per McHugh J, 440 per Gummow J, 499-500 per Kirby J.
[21]See Abebe v Commonwealth (1999) 73 ALJR 584 at 590-591 per Gleeson CJ and McHugh J, 626 per Kirby J; 162 ALR 1 at 8-9, 58. See also In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 491-492 per Gibbs J, 506 per Mason J (with whom Stephen J agreed), 547 per Wilson J; Fencott v Muller (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 290 per Mason, Brennan and Deane JJ.
[22]See Abebe v Commonwealth (1999) 73 ALJR 584 at 596 per Gleeson CJ and McHugh J, 618 per Gummow and Hayne JJ; 162 ALR 1 at 16, 46. See also In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 508-509 per Mason J (with whom Stephen J agreed); Fencott v Muller (1983) 152 CLR 570 at 606-608 per Mason, Murphy, Brennan and Deane JJ; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 278 per Gibbs CJ, 290 per Mason, Brennan and Deane JJ; Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 316 per Brennan J.
In support of the argument that there is no justiciable controversy unless the person invoking jurisdiction has some direct or special interest in the subjectmatter of the proceedings, counsel for the respondent pointed to various judicial statements as to what is involved in the notion of "justiciable controversy" and, also, to a number of decisions of the United States Supreme Court with respect to Art III of the United States Constitution. Recently, in Steel Co v Citizens for a Better Environment[23], the United States Supreme Court considered a question similar to that involved in these proceedings. It is convenient to refer at once to that case.
[23]523 US 83 (1998).
The question in Steel Co was whether an environmental protection organisation had standing under a citizen-suit provision[24] to seek a declaration that Steel Co had violated a legislative reporting requirement and, also, to seek injunctive and other relief. In that case, Scalia J (with whom Rehnquist CJ, O'Connor, Kennedy and Thomas JJ concurred; Breyer J also concurred in relation to this part of the judgment) enunciated three "irreducible" constitutional requirements for standing. The first was that earlier identified in Lujan v Defenders of Wildlife[25], namely, that there be "an 'injury in fact' – an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) 'actual or imminent, not "conjectural" or "hypothetical"'"[26]. The second was that there be "a fairly traceable connection between the plaintiff's injury and the complained-of conduct" and the third that there be "redressability – a likelihood that the requested relief will redress the ... injury"[27].
[24]The Emergency Planning and Community Right-To-Know Act 1986 (42 USCS §§11001 et seq) provides in 42 USCS §11046(a)(1) that, subject to a qualification that was not relevant in the Steel Co case, "any person may commence a civil action on his own behalf against" an owner or operator of a facility, the Administrator, a State Governor or a State emergency response commission for failure to do any of a number of listed actions.
[25]504 US 555 (1992).
[26]504 US 555 at 560 (1992).
[27]Steel Co v Citizens for a Better Environment 523 US 83 at 103 (1998). See also Simon v Eastern Kentucky Welfare Rights Organization 426 US 26 at 41-42 (1976); Lujan v Defenders of Wildlife 504 US 555 at 560-561 (1992).
Sections 52(1), 53(aa) and 53(c) of the Act
Before turning to the notion of "justiciable controversy", it is convenient to note the terms of ss 52(1), 53(aa) and 53(c) of the Act. Section 52(1) is in these terms:
" A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive."
Section 53 relevantly provides as follows:
" A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services:
...
(aa)falsely represent that services are of a particular standard, quality, value or grade;
...
(c)represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have".
The Act provides a number of different remedies and enforcement procedures for contravention of the provisions of Pt V, in which ss 52 and 53 are found. By s 82(1), a person who has suffered loss or damage may bring an action for damages. And as already indicated, ss 80 and 163A, respectively, allow for any person to institute proceedings for an injunction and declaration. By s 79(1), a person who contravenes s 53 is guilty of an offence in respect of which proceedings may be instituted by the Australian Competition and Consumer Commission[28]. However, s 79(1) expressly states that that section does not apply to a person who contravenes s 52 of the Act. In context, ss 52 and 53 impose a public duty on corporations not to engage in conduct of the kind proscribed by those sections. This is achieved by effecting a general prohibition upon that conduct, short, only, of rendering conduct in contravention of s 52 a criminal offence.
[28]Section 163(4)(a). Section 163(4) also permits prosecutions for offences against the Act to be instituted by a person authorised in writing by the Commission, the Secretary to the Department, the Minister or a person authorised by the Minister in writing to give such consents.
Had the Act rendered contravention of s 52 a criminal offence, as it has with s 53, and allowed that any person might institute proceedings for those offences, there could be no doubt that, in each case, those proceedings would constitute a justiciable controversy and, thus, a "matter" for the purposes of Ch III of the Constitution. In this regard, it is sufficient to note that private prosecutions have long been known to the law[29]. The question raised by this case is whether different considerations apply with respect to non-criminal proceedings founded on breach of a public duty constituting a contravention of those sections. Before turning to that question, it is convenient to say something of the notion of "special interest" and the general rule that only the Attorney-General or a person who has been granted the Attorney-General's fiat can institute proceedings with respect to a public wrong.
[29]See, for example, Sargood v Veale (1891) 17 VLR 660 at 662; Lizars v Sabelberg [1905] VLR 608 at 609 per Hood J; Steane v Whitchell [1906] VLR 704 at 705-707; Brebner v Bruce (1950) 82 CLR 161 at 167 per Latham CJ (with whom Webb and Kitto JJ agreed), 169-170 per McTiernan J, 173-175 per Fullagar J; Gouldham v Sharrett [1966] WAR 129 at 132-134 per Wolff CJ (with whom Jackson and Nevile JJ concurred).
Special interest and the role of the Attorney-General in relation to public wrongs
In Gouriet v Union of Post Office Workers, Lord Wilberforce described the general rule that only the Attorney-General or a person who has been granted the Attorney-General's fiat may bring proceedings with respect to a public wrong as "constitutional" in nature, explaining "[t]hat it is the exclusive right of the Attorney-General to represent the public interest"[30]. In that regard, his Lordship referred to the observation of Lord Westbury LC in Stockport District Waterworks Company v Mayor of Manchester[31] that "the constitution of [Great Britain] ha[d] wisely intrusted the privilege [of representing the public interest] with a public officer, and has not allowed it to be usurped by a private individual."
[30][1978] AC 435 at 481.
[31](1863) 9 Jur NS 266 at 267.
It is clear from what was said in Gouriet that the general rule that only the Attorney-General may institute proceedings for a public wrong derives not from any constitutional limitation as to the role or jurisdiction of courts, but from the constitutional role of the Attorney-General. So much is confirmed by Attorney-General v Oxford, Worcester, and Wolverhampton Railway Company, in which case Lord Romilly MR founded the Attorney-General's right to seek relief for a public wrong on his role as the representative of the parens patriae[32].
[32](1854) 2 WR 330 at 331. See also Attorney-General v Shrewsbury (Kingsland) Bridge Company (1882) 21 Ch D 752 at 755 per Fry J; Gouriet v Union of Post Office Workers [1978] AC 435 at 508 per Lord Edmund-Davies.
The general rule that only the Attorney-General may institute proceedings with respect to a public wrong is, however, subject to exceptions. Thus in Boyce v Paddington Borough Council[33], Buckley J held that an individual could bring proceedings with respect to an interference with a public right, "first, where the interference ... is such as that some private right of his is at the same time interfered with ... and, secondly, where ... the plaintiff, in respect of his public right, suffers special damage peculiar to himself". In Australian Conservation Foundation v The Commonwealth[34], this Court extended the second of those exceptions to permit of the institution of proceedings by a person who has a special interest in the subject-matter of those proceedings.
[33][1903] 1 Ch 109 at 114.
[34](1980) 146 CLR 493.
Once it is appreciated that the "constitutional" nature of the rule that only the Attorney-General may bring proceedings with respect to a public wrong derives from the status of the Attorney-General in British law, it follows that there is no equivalent constitutional basis for that rule in this country. That is because, although the Attorney-General occupies an office which is well understood in our legal system, it is not an office recognised by the Constitution. Thus in this country, the general rule that only the Attorney-General may bring proceedings with respect to a public wrong is simply a rule of the common law.
To say that the general rule that only the Attorney-General may bring proceedings with respect to a public wrong is simply a rule of the common law is not to say that it does not find some resonance within the concept of "judicial power" or in the constitutional meaning of "matter" in Ch III of the Constitution. But save to the extent that it finds that resonance, there is no reason why it cannot be abrogated by the Parliament so as to allow any person to represent the public interest and, thus, institute legal proceedings with respect to a public wrong. And subject to the same qualification, there is no reason why the rule cannot be modified and adapted by the evolutionary processes of the common law. In fact, it was modified by those processes when the second of the Boyce exceptions was extended to allow for persons having a special interest to institute proceedings with respect to a public wrong.
Chapter III of the Constitution: "Judicial power" and "matter"
It is convenient to note, at once, that although Ch III of the Constitution has significant similarities with Art III of the Constitution of the United States of America, there are, as this Court has often noted, significant differences[35]. In particular, the latter is concerned with "Cases" and "Controversies", whereas Ch III selects "matters" as the subject-matter of federal jurisdiction. And "matters" is a word of such generality that it necessarily takes its content from the categories of matter which fall within federal jurisdiction and from the concept of "judicial power". There is, thus, no reason why the position in this country should equate precisely with that reached in the United States of America.
[35]See Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 544-546 per Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ; Felton v Mulligan (1971) 124 CLR 367 at 387-388 per Windeyer J; Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 530 per Gibbs J, 550-551 per Mason J; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 536 per Aickin J (dissenting in the result), 548 per Wilson J; Fencott v Muller (1983) 152 CLR 570 at 630 per Dawson J. But compare Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 508-509 where Mason J stated that the interpretation of the word "matter" in Ch III does not depart from the American concept of "cases" and "controversies" in Art III of the Constitution of the United States.
Although the constitutional meaning of "matter" is to be derived, in significant part, from the concept of "judicial power", it is not necessary in this case to attempt any exhaustive exposition of that concept. It is sufficient to describe judicial power as that power exercised by courts in making final and binding adjudications as to rights, duties or obligations put in issue by the parties[36]. Similarly, it is sufficient to note that the constitutional meaning of "matter" involves the existence of a controversy as to "some immediate right, duty or liability to be established by the determination of the Court."[37]
[36]See Huddart, Parker & Co Proprietary Ltd v Moorehead (1909) 8 CLR 330 at 357 per Griffith CJ; Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 at 463 per Isaacs and Rich JJ; Rola Co (Australia) Pty Ltd v The Commonwealth (1944) 69 CLR 185 at 211-212 per Starke J; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 666; Harris v Caladine (1991) 172 CLR 84 at 147 per Gaudron J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 497 per Gaudron J; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 256-259 per Mason CJ, Brennan and Toohey JJ, 267-269 per Deane, Dawson, Gaudron and McHugh JJ; Nicholas v The Queen (1998) 193 CLR 173 at 207 per Gaudron J; Abebe v Commonwealth (1999) 73 ALJR 584 at 609 per Gaudron J; 162 ALR 1 at 34.
[37]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Fencott v Muller (1983) 152 CLR 570 at 603 per Mason, Murphy, Brennan and Deane JJ; Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 316-317 per Brennan J; Abebe v Commonwealth (1999) 73 ALJR 584 at 609 per Gaudron J, 618 per Gummow and Hayne JJ, 626 per Kirby J; 162 ALR 1 at 34, 46, 58; cf Abebe v Commonwealth (1999) 73 ALJR 584 at 591 per Gleeson CJ and McHugh J; 162 ALR 1 at 9.
The classes of matter in respect of which the judicial power of the Commonwealth is engaged are specified in ss 75 and 76 of the Constitution and include matters "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth"[38]. It is well established that prohibition may issue to a person who has neither a direct nor special interest in the subject-matter of the proceedings constituted by an application to obtain that relief[39]. That being so, there is no basis for concluding that either the concept of "judicial power" or the constitutional meaning of "matter" dictates that a person who institutes proceedings must have a direct or special interest in the subject-matter of those proceedings. Indeed that proposition is denied by the very rule that the Attorney-General as the representative of the public interest – not as a person having a direct or special interest – may bring proceedings with respect to a public wrong.
[38]Section 75(v).
[39]See R v Graziers' Association of NSW; Ex parte Australian Workers' Union (1956) 96 CLR 317 at 327 per Dixon CJ, McTiernan and Kitto JJ; R v Watson; Ex parte Australian Workers' Union (1972) 128 CLR 77 at 81-82 per Menzies J, 97 per Gibbs J; R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 201-202 per Barwick CJ; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 263 per Gaudron, Gummow and Kirby JJ.
Once it is accepted that neither the concept of "judicial power" nor the constitutional meaning of "matter" dictates that a person who institutes proceedings must have a direct or special interest in the subject-matter of those proceedings, it follows as was pointed out in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd that, for the purposes of Ch III of the Constitution, "questions of 'standing', when they arise, are subsumed within the constitutional requirement of a 'matter'."[40] This does not mean that, for the purposes of Ch III, questions of standing are wholly irrelevant.
[40](1998) 194 CLR 247 at 262 per Gaudron, Gummow and Kirby JJ. See also Croome v Tasmania (1997) 191 CLR 119 at 132-133 per Gaudron, McHugh and Gummow JJ.
There may be cases where, absent standing, there is no justiciable controversy. That may be because the court is not able to make a final and binding adjudication. To take a simple example, a court could not make a final and binding adjudication with respect to private rights other than at the suit of a person who claimed that his or her right was infringed. Or there may be no justiciable controversy because there is no relief that the court can give to enforce the right, duty or obligation in question[41].
[41]See Abebe v Commonwealth (1999) 73 ALJR 584 at 592-593 per Gleeson CJ and McHugh J; 162 ALR 1 at 11-12.
The relationship between "standing" and available relief was adverted to by Aickin J in Australian Conservation Foundation v The Commonwealth. In that case his Honour observed[42]:
"it is an essential requirement for locus standi that it must be related to the relief claimed. The 'interest' of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed. I do not mean that, where the relief is discretionary, locus standi depends on showing that the discretion must be exercised favourably. What is required is that the plaintiff's interest should be one related to the relief claimed".
That passage not only poses the test to be applied when there is a question of standing but, in my view, discloses the significance of standing to the existence of a matter for the purposes of Ch III of the Constitution.
[42](1980) 146 CLR 493 at 511.
There is no matter within the constitutional meaning of that term unless there is a remedy available at the suit of the person instituting the proceedings in question. That follows from the essential features of "matter" identified in In re Judiciary and Navigation Acts.It was said in that case[43]:
"there can be no matter ... unless there is some immediate right, duty or liability to be established by the determination of the Court. ... [And the legislature] cannot authorize [the] Court to make a declaration of the law divorced from any attempt to administer that law."
[43](1921) 29 CLR 257 at 265-266 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ.
Absent the availability of relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the Court's determination. Similarly, if there is no available remedy, there is no administration of the relevant law. Thus, as Gleeson CJ and McHugh J pointed out in Abebe v Commonwealth, "[i]f there is no legal remedy for a 'wrong', there can be no 'matter'."[44]
[44](1999) 73 ALJR 584 at 592; 162 ALR 1 at 11.
Provided there is a remedy which is appropriately related to the wrong in question, whether the remedy derives from the general law or is created by statute, nothing in Ch III of the Constitution prevents Parliament from modifying the general rule that only the Attorney-General may bring proceedings with respect to a public wrong and permitting any person to institute proceedings of that kind. If it does so, and if there is a remedy appropriate to the asserted wrong, there is, in my view, a matter for the purposes of Ch III of the Constitution.
Appropriate relief
The present matter was argued solely on the basis that, for proceedings with respect to a public wrong to constitute a matter for the purposes of Ch III of the Constitution, a private individual must have some special interest in the subjectmatter of those proceedings. It is therefore not appropriate to express a concluded view whether, in the circumstances of this case, an appropriate remedy is available. The view has been taken in the Federal Court that, notwithstanding the terms of s 80A(1) of the Act[45], s 80 permits of an order requiring corrective advertising at the request of a person other than the Minister or the Commission[46]. If so, the relief sought pursuant to s 80 of the Act appears appropriate to the wrong complained of. However, different considerations may apply to the claim for declaratory relief by way of a declaration that the respondent has contravened s 52 of the Act and s 42 of the Fair Trading Act 1987 (NSW).
[45]Section 80A(1) provides that, "[w]ithout limiting the generality of section 80", the Court may, on the application of the Minister or the Commission only, order a person involved in a contravention of Pts IVB or V of the Act to disclose information to the public or to publish corrective advertising.
[46]Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd (1986) ATPR ¶40-654 at 47,295 per Burchett J; HCF Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483 at 491-492 per Morling J; Makita (Australia) Pty Ltd v Black & Decker (Australasia) Pty Ltd (1990) ATPR ¶41-030 at 51,477 per Wilcox J.
There may be cases where a bare declaration that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention. Ainsworth v Criminal Justice Commission[47] was such a case. But a declaration cannot be made if it "will produce no foreseeable consequences for the parties."[48] That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth[49]. In this respect, at least, the practical position may not be very different from that reached in the United States with respect to citizen-suit provisions of the kind considered in Steel Co. This issue can, however, be put to one side, for it is not a question raised by the Case Stated.
[47](1992) 175 CLR 564.
[48]Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 per Mason J (with whom Jacobs and Murphy JJ agreed). See also at 189 per Aickin J; 18 ALR 55 at 69, 71. And see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ; Friends of the Earth, Inc v Laidlaw Environmental Services (TOC), Inc unreported, Supreme Court of the United States, 12 January 2000.
[49]See Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ.
Answers to questions in the Case Stated
The questions in the Case Stated should be answered as follows:
Q12.1Are sections 80 and 163A of the Trade Practices Act 1974 (Cth) invalid insofar as they purport to confer standing on the applicant to bring the present proceedings?
A No.
Q12.2Does the applicant have standing to bring proceedings in the Federal Court in respect of the subject matter of these proceedings:
(a)for an injunction in reliance upon section 65 of the Fair Trading Act 1987 (NSW) and in purported reliance upon the accrued or pendent jurisdiction of the Federal Court;
(b)for an injunction in reliance upon section 23 of the Federal Court of Australia Act 1976 (Cth);
(c)for a declaration that another person has engaged in misleading and deceptive conduct in contravention of section 52 of the Trade Practices Act or section 42 of the Fair Trading Act?
A Unnecessary to answer.
Q12.3 Is section 65 of the Fair Trading Act a law of a State:
(a)for the purposes of section 109 of the Constitution, inconsistent with the Trade Practices Act; or
(b)in conflict with Chapter III of the Constitution in purporting to confer standing on the applicant to bring the proceedings in the Supreme Court of New South Wales against the respondent[50]?
[50]This question originally referred to the Federal Court. The Case Stated was subsequently amended to refer to the Supreme Court of New South Wales.
A Unnecessary to answer.
Q12.4If the Federal Court has no jurisdiction in respect of these proceedings, should the proceedings be remitted to a court of a state?
A Unnecessary to answer.
Q12.5By whom should the costs of the proceedings in the Full Court be borne?
AThe respondent, Macquarie Infrastructure Investment Management Limited.
GUMMOW J. One of the questions in the case stated for the Full Court, by a Justice of the Court under s 18 of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), asks:
"Are sections 80 and 163A of the Trade Practices Act 1974 (Cth) invalid insofar as they purport to confer standing on the applicant to bring the present proceedings"?
The Federal Court proceeding
In a proceeding commenced in the Federal Court of Australia in 1997 (and removed into this Court by order under s 40 of the Judiciary Act), the applicant seeks relief under provisions of the Trade Practices Act 1974 (Cth) ("the Act"). It seeks an order pursuant to s 80 of the Act that the respondent publish certain corrective advertising, and a declaration, apparently pursuant to s 163A of the Act, that the respondent engaged in misleading or deceptive conduct contrary to s 52 of the Act by acting in the fashion described in the Amended Application dated 1 July 1998.
On the pleadings, the applicant admits that it has no "special interest" in the subject-matter of the claim but it says that it has an interest in common with others in ensuring compliance by the respondent with the laws of the Commonwealth, contravention of which it alleges. The applicant further says that its interest in the subject-matter of the claim, although not an interest which would satisfy "the common law test of standing" is that vested in it by ss 80 and 163A of the Act.
The respondent is the manager of two unit trusts identified as Infrastructure Trust of Australia (I) and Infrastructure Trust of Australia (II) ("the ITA Group"). On or about 5 November 1996 the respondent issued a prospectus and a supplementary prospectus for the ITA Group. The prospectus invited the public to purchase units in those trusts. The Eastern Distributor is a project for the construction and operation of a toll road between the city of Sydney and Sydney Airport. The prospectus identified the Eastern Distributor as one of four "seed assets" of the ITA Group. The prospectus contained a statement ("the Statement"):
"Traffic volume on the Eastern Distributor is anticipated to build up rapidly, as a consequence of the existing traffic volumes and the current congestion in the corridor, to an average daily volume of nearly 60,000 vehicles by 2006. Thereafter traffic volume on the Eastern Distributor is forecast to increase more slowly."
The applicant contends that in making the Statement the respondent represented that traffic on the Eastern Distributor would build up rapidly, that the average daily traffic volume on the Eastern Distributor would be nearly 60,000 vehicles in 2006, and that traffic volume would build up more slowly after 2006. It alleges that the respondent's conduct in making such representations contravened s 52 of the Act.
The order sought pursuant to s 80 of the Act is that the respondent publish corrective advertising in a form and manner approved by the Federal Court "so as to provide an accurate estimate of likely future traffic volumes on the Eastern Distributor, and so as to correct the estimates of such traffic volume made in [the Statement]". The declaration sought is that in making the traffic volume forecasts for the Eastern Distributor in the Statement the respondent engaged in misleading and deceptive conduct.
Section 52
Section 52 of the Act states:
"(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1)."
The United States provenance of s 52 was described by Stephen J in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd[51].
[51](1978) 140 CLR 216 at 226-227.
Section 52 is contained in Div 1 of Pt V of the Act. Part V (which at the relevant time comprised ss 51A-75A) is headed "Consumer Protection" and Div 1 (which then contained ss 51A-65A) is headed "Unfair Practices". Section 52(1) must be read with s 51A. This provides:
"(1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.
(2) For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.
(3) Subsection (1) shall be deemed not to limit by implication the meaning of a reference in this Division to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead."
Further, with effect from 1 July 1998, s 52 does "not apply to conduct engaged in in relation to financial services". This is the effect of s 51AF(2)(a) which was inserted by s 3 and s 27 of Pt 2 of Sched 2 of the Financial Sector Reform (Consequential Amendments) Act 1998 (Cth). Since 1 July 1998, provision with respect to consumer protection in relation to financial services has been made by Div 2 of Pt 2 (ss 12AA-12IA) of the Australian Securities and Investments Commission Act 1989 (Cth). Section 12IA(1) provides:
"If:
(a)conduct was, or may have been, engaged in in relation to financial services before the commencement of this Division; and
(b)the conduct contravened, or may have contravened, Part IVA or V of the [Act]; and
(c)if the conduct had been engaged in after the commencement of this Division it would have, or may have, contravened this Division;
the [Australian Securities and Investment] Commission has, by virtue of this section, the same powers under the [Act] in relation to the conduct as the Australian Competition and Consumer Commission."
No point has been taken before this Court as to the significance these changes might have for the present litigation and I say nothing more respecting them.
Section 52 has various operations. Upon its face it is addressed to any "corporation". That term is defined in s 4(1) of the Act to mean a body corporate that is a foreign corporation, or a trading corporation formed within the limits of Australia or a financial corporation so formed (s 51(xx) of the Constitution), a body corporate that is incorporated in a Territory (s 122 of the Constitution), and a body corporate that is the holding company of any of these other bodies corporate. Section 6 gives s 52 an expanded operation by implicit reference to various constitutional powers of the Parliament, including those respecting interstate and overseas trade and commerce (s 51(i) of the Constitution), Territories (s 122) and posts and telegraphs (s 51(v)).
Remedies
Part VI (ss 75B-87C) of the Act is headed "Enforcement and Remedies". So far as immediately material, s 80(1) of the Act provides[52]:
[52]The reference to s 75AU was included by Item 9 in Sched 1 of A New Tax System (Trade Practices Amendment) Act 1999 (Cth), which commenced on 9 July 1999.
"[W]here, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
(a) a contravention of any of the following provisions:
(i)a provision of Part IV, IVA, IVB or V;
(ii)section 75AU;
(b)attempting to contravene such a provision;
(c)aiding, abetting, counselling or procuring a person to contravene such a provision;
(d)inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;
(e)being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f)conspiring with others to contravene such a provision;
the Court may grant an injunction in such terms as the Court determines to be appropriate."
Part IV deals with restrictive trade practices and Pt IVA with unconscionable conduct. It will be apparent that s 80 operates in respect of a wide range of contraventions of the Act and it would be myopic to construe it solely by reference to its connection with Pt V, and with s 52 in particular.
The reference in s 80(1) to "the Commission" is to the Australian Competition and Consumer Commission established by s 6A of the Act. Section 86(1) is a law made pursuant to s 76(ii) and s 77(i) of the Constitution. It confers jurisdiction upon the Federal Court with respect to matters arising under the Act, such as the present litigation. Concurrent federal jurisdiction with respect to certain matters is invested in or conferred upon the courts of the States and Territories by s 86(2), (3). Provision is made by s 86A for the transfer of certain matters by the Federal Court to a court of a State or Territory and s 86B provides for transfer to the Family Court of Australia.
The Federal Court may grant an interim injunction pending the determination of an application under s 80(1) where, in the opinion of the Court, it is desirable to do so (s 80(2)). If the Court would require an applicant, not being the Minister or the Commission, to give an undertaking as to damages or costs, the Minister may give that undertaking and it is to be accepted by the Court without requirement of a further undertaking from any other person. That is the effect of s 80(7). Where the applicant in such a proceeding is the Minister or the Commission, there is to be no requirement by the Court for an undertaking as to damages (s 80(6)).
The section is wider in scope than s 16 of the Clayton Act 1914 (US) which entitles a private party to seek injunctive relief against "threatened loss or damage by violation of the antitrust laws"[53]. The regime established by s 80 differs in several respects from that applying to injunctions as traditionally understood[54]. In particular, negative and mandatory injunctions may be granted whether or not it appears to the Court that there is a continuing threat or an imminent danger of substantial damage and whether or not there has been a previous contravention. That is the effect of sub-ss (4) and (5) of s 80.
[53]See Eastern Express Pty Limited v General Newspapers Pty Limited (1992) 35 FCR 43 at 71.
[54]ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 248 at 254-257, 263-264, 268.
The entitlement conferred upon "any other person" by s 80(1) is subject to limitations. In particular, a person, other than the Commission, is not entitled to make such an application by reason of contravention of s 50 (s 80(1A)). Section 50 is in Pt IV (ss 45-51AAA), and deals with the prohibition of acquisitions that would result in a substantial lessening of competition. Section 50A deals with certain acquisitions that occur outside Australia. A person, other than the Minister or the Commission, may not apply for an injunction under s 80(1) on the ground of a person's actual or attempted or proposed contravention of s 50A or actual or proposed involvement in a contravention of that provision (s 80(1AAA)).
Phelps v Western Mining Corporation Ltd[55]
[55](1978) 20 ALR 183.
Section 80 has been amended from time to time since it was first enacted. At the time of the decision of the Full Court of the Federal Court in Phelps, s 80(1) provided in part:
"The Court may, on the application of –
(a)the Minister;
(b) the [Trade Practices] Commission; or
(c) subject to sub-section (1A) – any other person,
grant an injunction restraining a person from engaging in conduct that constitutes or would constitute –
(a) a contravention of a provision of Part IV or V".
In Phelps, the Full Court was construing s 80(1)(c) in its operation with respect to contraventions of certain provisions of Pt V of the Act, including s 52. No question of validity arose.
In construing s 80(1)(c), Bowen CJ accepted the submission[56]:
[56](1978) 20 ALR 183 at 185.
"that Parliament intended to modify the principles applicable to the standing of private citizens to enforce public rights in their own name and not on the relation of the Attorney-General, by removing the requirement that such a litigant suffer either an infringement of some private right of his own or suffer special damage other than that suffered by the rest of the public (see Boyce v Paddington Borough Council[57]; Helicopter Utilities Pty Ltd v Australian National Airlines Commission[58])."
[57][1903] 1 Ch 109.
[58][1962] NSWR 747.
His Honour concluded[59]:
[59](1978) 20 ALR 183 at 187.
"The remedy afforded by s 80(1)(c) is a remedy primarily in protection of the class of persons affected by the conduct called in question. In this sense it is in protection of the public against misleading and deceptive practices. Incidentally or collaterally with that protection an applicant under s 80(1)(c) may obtain an advantage to his own trade or business. His standing, however, is derived from the fact that the essential nature of his suit is one for the protection of the public interest. In my view it is irrelevant whether an interest of his own is affected or not (see World Series Cricket Pty Ltd v Parish[60]). The standing which the legislature afforded under s 80(1)(c) is expressed in the clearest and simplest terms. In my opinion there is no warrant for qualifying the language which the legislature has used. Certainly the qualifications for which the applicant contends cannot survive the decision of the High Court in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd[61] for there it was held that a competitor of a defendant has standing under s 80(1)(c) not by reason of his competitive interest, but rather because he is one of an unqualified class of persons who can proceed under the section."
In his concurring judgment in Phelps, Deane J said[62]:
"The argument that to give the words which the Parliament has used their ordinary meaning would, to use a popular phrase, 'open the flood-gates of litigation' strikes me as irrelevant and somewhat unreal. Irrelevant, in that I can see neither warrant for concluding that the Parliament did not intend that flood-gates be opened on practices which contravene the provisions of the Act nor reason for viewing that prospect, if it were a realistic one, with other than equanimity. Unreal, in that the argument not only assumes the existence of a shoal of officious busybodies agitatedly waiting, behind 'the flood-gates', for the opportunity to institute costly litigation in which they have no legitimate interest but treats as novel and revolutionary an approach to the enforcement of laws which has long been established in the ordinary administration of the criminal law".
His Honour went on to refer to various authorities respecting informations laid by common informers including Brebner v Bruce[63]. In that case this Court construed s 13 of the Crimes Act 1914 (Cth) ("the Crimes Act"). Section 13 conferred authority upon "any person" to institute criminal proceedings in respect of an alleged contravention of a law of the Commonwealth.
[60](1977) 16 ALR 181 at 186-187, 194.
[61](1978) 140 CLR 216.
[62](1978) 20 ALR 183 at 189.
[63](1950) 82 CLR 161.
At the time of the adoption of the Constitution, it was well recognised both in England and the United States that statute might grant to the first common informer who brought the action "[t]he right to recover the penalty or forfeiture granted by [the] statute … although he has no interest in the matter whatever except as such informer"[64]. Further, beginning in 1692 (with 4 Will & Mary, c 8), various English statutes had provided for rewards in substantial sums to persons who apprehended and prosecuted to conviction those guilty of a range of felonies[65]. This "reward system" had been "designed to enhance the incentives to prosecute in a largely privatised criminal justice system, which lacked both police and public prosecutors in the modern sense"[66].
[64]Marvin v Trout 199 US 212 at 225 (1905). See also Marcus v Hess 317 US 537 at 541-542 (1943); Radzinowicz, A History of English Criminal Law, (1956), vol 2 at 138-147.
[65]Radzinowicz, A History of English Criminal Law, (1956), vol 2 at 57-82.
[66]Langbein, "The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors", (1999) 58 Cambridge Law Journal 314 at 357.
In Phelps Deane J continued[67]:
"It is patently desirable that the legislature does not assume that traditional rules of the common law relating to locus to institute civil proceedings are universally appropriate to circumstances where laws are increasingly concerned with the attainment and maintenance of what are seen as desirable national economic and commercial objectives and standards and with the protection not only of the life and liberty of the citizen but of the environment in which he lives and of the quality of the life which he may lead. There is little merit in approaching the construction of a statute on the basis that it is to be presumed that the Parliament has in fact ill‑advisedly made such an assumption."
[67](1978) 20 ALR 183 at 190.
The reasoning in Phelps also applies to the construction of s 163A of the Act. This is found in Pt XII (ss 155-173) which also deals (s 163) with prosecutions for offences against the Act. Prosecutions by private parties shall not be instituted without Ministerial consent (s 163(4)). Contravention of s 52 does not give rise to an offence (s 79(1)). So far as presently material, s 163A authorises "a person" to institute a proceeding "in relation to a matter arising under this Act", seeking the making of a declaration in relation to the operation or effect of any provision of the Act, other than Divs 2, 2A or 3 of Pt V, Pt VB, Pt XIB and Pt XIC. Division 2 of Pt V deals with conditions and warranties in consumer transactions, Div 2A with actions against manufacturers and importers of goods and Div 3 with the rescission by consumers of certain contracts. Part VB deals with "Price exploitation in relation to A New Tax System"[68]. Part XIB deals with the telecommunications industry and Pt XIC establishes a telecommunications access regime.
[68]The reference to Pt VB was inserted by Item 17 in Sched 1 of A New Tax System (Trade Practices Amendment) Act 1999 (Cth), which commenced on 9 July 1999.
In the present litigation, the respondent's submissions accept the construction placed upon s 80, in its various forms, in Phelps and later authorities over the last 20 years, but challenge its validity and that of s 163A.
Validity
The respondent denies the validity of the operation of ss 80 and 163A with respect to the relief sought by the applicant for alleged contravention of s 52 by the respondent. The respondent submits that the vice of these provisions is that, in contravention of Ch III of the Constitution, they purport to confer standing on the applicant, as a person entitled to bring proceedings in the Federal Court and thereby invoke the judicial power of the Commonwealth. This attack is mounted on the ground that there is no "justiciable controversy" and no "matter" to be determined. In particular, it was said to be a fatal defect in the statutory remedial scheme that there was no requirement of mutuality or reciprocity of right and liability between parties.
There is no such requirement for enforcement of a law as a matter arising under s 76(ii) of the Constitution. I turn to explain why this is so. It is convenient first to indicate further the place of s 52 in the Act and the nature of the present proceeding.
In Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc[69], the Full Court of the Federal Court analysed the operation of s 52 as follows:
"Section 52 does not purport to create liability, nor does it vest in any party any cause of action in the ordinary sense of that term; rather, s 52 establishes a norm of conduct, and failure, by the corporations and individuals to whom it is addressed in its various operations, to observe that norm has consequences provided for elsewhere in the Act[70]."
[69](1988) 19 FCR 469 at 473.
[70]Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348.
Section 52 thus is an exercise by the Parliament of its powers to create new norms of conduct and require their observance by specified sections of the community. The legislature may also, in exercise of its powers, adapt remedies known at general law or modify them or create new remedies. It may do so not only to prevent or to compensate for injury done by violation of the new federal norm of conduct[71], but to enforce or induce compliance with the federal law[72]. An example of the latter was the treble damages provision of s 11 of the Australian Industries Preservation Act 1906 (Cth). The validity of s 11 was upheld in Redfern v Dunlop Rubber Australia Ltd[73].
[71]Fencott v Muller (1983) 152 CLR 570 at 599‑600.
[72]Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194 at 209, 213‑214, 223, 229, 232.
[73](1964) 110 CLR 194.
Part VI (which contains s 80) and Pt XII (which contains s 163A) make provisions which effect the attainment of one or more of those ends. In many cases, the remedy sought under s 80 for a prohibitory injunction would have the character of enforcing present compliance or inducing future compliance with the norm of conduct imposed by s 52, and a declaration would provide consequential relief. In the present case, the mandatory injunction sought would be apt to counterbalance the injury to the public interest allegedly sustained by the publication of the Statement.
The applicant contends that its application to the Federal Court invited the exercise by that Court of jurisdiction with respect to a matter arising under a law made by the Parliament, within the meaning of s 76(ii) of the Constitution. The "matter" would "arise under" the Act because the duty in question in the matter, observance of the norm imposed by s 52, would both owe its existence to the Act and depend upon Pt VI of the Act for its enforcement[74].
[74]LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581.
The constitutional point taken by the respondent, which precipitated the order for removal into this Court, gives rise to another "matter" in the same proceeding. This is a matter arising under the Constitution or involving its interpretation within the meaning of s 76(i) of the Constitution and s 30(a) of the Judiciary Act. There is no objection to the constitutional competence of this Court to determine that matter. The objection is that the substantive proceeding does not answer the criteria for a matter arising under a law of the Commonwealth.
The Act in its various operations is supported by a number of heads of power in s 51 of the Constitution. I have indicated earlier in these reasons the support derived from such provisions of ss 51(i), (v), (xx) and 122 of the Constitution. However, the legislative powers conferred by s 51 are expressed to be "subject to this Constitution" and therefore to Ch III[75].
[75]See Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 205.
Section 76(ii), in conjunction with s 77(i), of the Constitution permits the conferral of jurisdiction on federal courts in matters arising under laws made by the Parliament for the Territories under s 122 of the Constitution. It was determined in Northern Territory v GPAO[76] that in such cases the constitutional source of the jurisdiction is those provisions of Ch III and that the jurisdiction is federal. Section 122 of the Constitution is not, in terms, expressed to be "subject to this Constitution", as is s 51. Nevertheless, for the purposes of conferral of federal jurisdiction pursuant to Ch III, the same situation must obtain.
[76](1999) 73 ALJR 470; 161 ALR 318.
Sections 75 and 76 of the Constitution
Sections 75 and 76 of the Constitution state:
"75. In all matters –
(i) Arising under any treaty:
(ii) Affecting consuls or other representatives of other countries:
(iii)In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:
(iv)Between States, or between residents of different States, or between a State and a resident of another State:
(v)In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:
the High Court shall have original jurisdiction.
76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter –
(i) Arising under this Constitution, or involving its interpretation:
(ii) Arising under any laws made by the Parliament:
(iii) Of Admiralty and maritime jurisdiction:
(iv)Relating to the same subject-matter claimed under the laws of different States."
The nine heads of "matter" specified in ss 75 and 76 of the Constitution are identified (a) as to some (for example, s 75(ii), (iii), (iv)) by the identity of the parties not by the source of the rights and liabilities in question or the remedy sought; (b) as to others (for example, ss 75(i), 76(ii), (iii)) by the source of those rights and liabilities; or (c) by the nature of the remedy sought against a party who answers a particular description (as in s 75(v)).
To some extent, for example, for matters arising under the Constitution or involving its interpretation (s 76(i)), and actions between States (s 75(iv)), the subject of the litigation has no counterpart to the private law rights and liabilities disputed in common law actions. In other litigation, for example, the subject of the case stated, the liabilities in question are created purely by statute. Further, s 75(v) indicates a head of federal jurisdiction where the activity complained of may be that in purported exercise of the executive power of the Commonwealth, affecting personal rather than proprietary rights. Again, the traditional Admiralty jurisdiction had its own peculiar procedures and remedies, in particular those respecting maritime liens and the action in rem; jurisdictional provision in this respect now is made by Pt II (ss 9-13) of the Admiralty Act 1988 (Cth). Further, as this litigation demonstrates, the one proceeding may answer the description of several species of "matter".
The development before 1900 of "standing"
The terms "standing" and "locus standi" are metaphors, whose origin apparently comes from the posture required of advocates[77]. Metaphors in the law are apt to obscure rather than illuminate.
[77]Winter, "The Metaphor of Standing and the Problem of Self-Governance", (1988) 40 Stanford Law Review 1371 at 1386‑1393.
Care is called for in accepting any all-embracing limitation as to what is required for "standing" in matters in federal jurisdiction. It has been well said of the developing use of the term "standing" in the last century[78]:
"The word appears here and there, spreading very gradually with no discernible pattern. Judges and lawyers found themselves using the term and did not ask why they did so or where it came from."
The term may have its origins in British parliamentary practice. The position reached by 1912 was described as follows in Halsbury, The Laws of England[79]:
"In both Houses there are standing orders which give to certain classes of petitioners a definite locus standi or right to appear in opposition against any Bill the provisions of which may affect them injuriously".
[78]Vining, Legal Identity, (1978) at 55.
[79]1st ed, vol 21 at 749.
The use of private bills to authorise the activities of corporations formed to develop railways, waterworks, gasworks, sewers, docks, bridges and other elements of modern infrastructure had directed attention to the practice of the British Parliament with regard to the admission or rejection of the rights of petitioners to be heard in opposition to the promotion of such bills. In their treatise, published in 1870, on the practice with respect to locus standi of petitioners, Clifford and Stephens said[80]:
"There can be few subjects in themselves more worthy of investigation, and few more interesting in their practical bearing upon the springs of national wealth and enterprise, than those which are covered by the Parliamentary phrase of Locus Standi."
Until 1864 questions of locus standi were determined in the House of Commons by the Committee to which the private bill had been referred; petitioners had no locus standi, as Erskine May, somewhat ambiguously put it, "when their property or interests [were] not directly and specially affected by the bill, or when, for other reasons, they [were] not entitled to oppose it"[81]. In 1864, the Commons established bodies within the House, known as the Courts of Referees, to decide such questions[82]. Standing Orders limited the standing of dissentient shareholders in the company promoting the bill, provided for petitions by municipal authorities and the inhabitants of any town or district alleged to be "injuriously affected" by the bill, and for the admission of petitions against the bill "on the ground of competition"[83].
[80]1 Locus Standi Reports 1.
[81]Erskine May, A Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 5th ed (1863) at 731.
[82](1870) 1 Clifford and Stephens Locus Standi Reports 1 at 1; Smethurst, A Treatise on the Locus Standi of Petitioners Against Private Bills in Parliament, 2nd ed (1867) at vii; Erskine May, A Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 10th ed (1893) at 732‑733. The Courts of Referees were empowered by statute, The Parliamentary Costs Act 1867 (UK), 30 & 31 Vict c 136, to administer oaths and award costs in the same manner as Committees on Private Bills.
[83]The text of the relevant Standing Orders Nos 130, 131 and 133 is set out in Smethurst, A Treatise on the Locus Standi of Petitioners Against Private Bills in Parliament, 2nd ed (1867) at 130.
These provisions foreshadowed the development of principles to identify a sufficiency of interest to seek equitable relief to restrain the enterprise, enfranchised by the enactment of the bill, from exceeding its statutory authority[84].
[84]In some instances, the occasion for the promotion of a particular private bill was provided by proceedings in Chancery which had established that the proposed development, for example a railway line, went beyond that authorised by an existing statute. As such, the proprietor of the railway would not attract a statutory immunity against actions for nuisance by neighbouring landowners: Great Northern Railway (Further Powers) Bill, (1874) 1 Clifford and Rickards Locus Standi Reports 80 at 81; South Eastern Railway Bill, (1876) 1 Clifford and Rickards Locus Standi Reports 258 at 259.
When the jurisdiction of the courts of common law in England was defined by the system of writs and the forms of action, there was no need to speak of standing. The question was whether the plaintiff was entitled to a writ and whether the writ lay. Writing in 1870, after the abolition of the forms of action, Dicey said[85]:
"The maintenance of an action depends upon the existence of what is termed a 'cause of action,' ie, of a right on the part of one person (theplaintiff), combined with the violation of, or infringement upon, such right by another person (the defendant). … There goes, it should be noticed, to make up the cause of action at once the 'existence' and the 'violation' of a right, and the expression cause of action means (in strictness) the whole cause of action, ie, all the facts which together constitute the plaintiff's right to maintain the action".
Under a system of strict common law pleading, "the question of [the] plaintiff's standing merged with the legal merits"[86]. Hence the statement by Gaudron, Gummow and Kirby JJ in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd[87]:
"In private law there is, in general, no separation of standing from the elements in a cause of action."
The result is that when a resident of one State sues a resident of another State in tort or contract, federal jurisdiction under s 75(iv) is attracted, but no distinct question of standing arises.
[85]A Treatise on the Rules for the Selection of the Parties to an Action, (1870) at 6-7.
[86]Chayes, "The Role of the Judge in Public Law Litigation", (1976) 89 Harvard Law Review 1281 at 1290.
[87](1998) 194 CLR 247 at 264.
In any event, the common law courts were not limited to the trying of civil actions to vindicate disputes as to private rights and liabilities. Further, in criminal prosecutions, the Crown was not the only competent moving party. Reference has been made earlier in these reasons to the importance placed upon the role of the common informer by Deane J in his analysis of s 80 in Phelps. Reference must also be made to the writs of habeas corpus, quo warranto and prohibition.
Habeas corpus has been associated in the popular mind with relief against abuse of public power by wrongful deprivation of liberty. The association is correct, but the writ lay also in what now would be called family law disputes[88]. However, where the complaint was of the wrongful imprisonment of a person, then, in the words of Madden CJ, "[a]nybody in the community who knows that a person is wrongfully imprisoned has a right to have the writ to discharge that person out of the imprisonment"[89]. In Ex parte Walsh and Johnson; In re Yates, Isaacs J rejected the proposition that when habeas corpus was sought in this Court in aid of a case of alleged constitutional invalidity, there was no cause "between parties"[90].
[88]Barnado v McHugh [1891] AC 388.
[89]R v Waters [1912] VLR 372 at 375.
[90](1925) 37 CLR 36 at 75.
The applicant in this matter brought a claim against the applicant in the Federal Court, alleging that various statements in the prospectus, particularly the one quoted, were made in breach of ss 52, 53(aa) and 53(c) of the Trade Practices Act 1974 (Cth) and ss 42, 44(b) and 44(e) of the Fair Trading Act 1987 (NSW), and seeking relief pursuant to s 80 of the Trade Practices Act by way of declarations and corrective advertising. Declaratory and injunctive relief was also sought pursuant to ss 21 and 23 of the Federal Court of Australia Act 1976 (Cth).
It is the respondent's case that the applicant has no standing to seek relief under these Acts, and that, in so far as they purport to confer standing on the applicant in these proceedings, ss 80 and 163A of the Trade Practices Act, s 65 of the Fair Trading Act and ss 21 and 23 of the Federal Court of Australia Act are invalid.
The proceedings were removed from the Federal Court pursuant to s 40 of the Judiciary Act 1903 (Cth)[253] by Gaudron J who reserved the following questions for the Full Court:
[253]Section 40(1) relevantly provides:
"Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a federal court other than the High Court or in a court of a State or Territory may, at any stage of the proceedings before final judgment, be removed into the High Court under an order of the High Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit …"
"1. Are sections 80 and 163A of the Trade Practices Act1974 (Cth) invalid insofar as they purport to confer standing on the applicant to bring the present proceedings?
2. Does the applicant have standing to bring proceedings in the Federal Court in respect of the subject matter of these proceedings:
(a)for an injunction in reliance upon section 65 of the Fair Trading Act1987 (NSW) and in purported reliance upon the accrued or pendent jurisdiction of the Federal Court;
(b) for an injunction in reliance upon section 23 of the Federal Court of Australia Act1976 (Cth);
(c) for a declaration that another person has engaged in misleading and deceptive conduct in contravention of section 52 of the Trade Practices Act or section 42 of the Fair Trading Act?
3. Is section 65 of the Fair Trading Act a law of a State:
(a) for the purposes of section 109 of the Constitution, inconsistent with the Trade Practices Act; or
(b) in conflict with Chapter III of the Constitution in purporting to confer standing on the applicant to bring the proceedings in the Supreme Court of New South Wales against the respondent?
4. If the Federal Court has no jurisdiction in respect of these proceedings, should the proceedings be remitted to a court of a state?
5. By whom should the costs of the proceedings in the Full Court be borne?"
It was agreed that if question (1) were answered "no" then it would be unnecessary to answer any of the other questions in the case stated. As I am of the view that ss 80 and 163A validly confer standing on the applicant, it is unnecessary for me to deal with the respondent's arguments in relation to, or to answer the other questions.
Section 80 of the Trade Practices Act relevantly provides as follows:
"(1) Subject to subsections (1A), (1AAA) and (1B), where, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
(a) a contravention of any of the following provisions:
(i)a provision of Part IV, IVA, IVB or V;
(ii)section 75AU;
(b) attempting to contravene such a provision;
(c) aiding, abetting, counselling or procuring a person to contravene such a provision;
(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f) conspiring with others to contravene such a provision;
the Court may grant an injunction in such terms as the Court determines to be appropriate.
...
(2) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).
(3) The Court may rescind or vary an injunction granted under subsection (1) or (2)."
Section 163A is in these terms:
"(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 the following provisions:
(i) Division 2, 2A or 3 of Part V;
(ia) Part VB;
(ii) Part XIB;
(iii) Part XIC; or
(aa) a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act; or
(b) an order by way of, or in the nature of, prohibition, certiorari or mandamus;
or both such a declaration and such an order, and the Court has jurisdiction to hear and determine the proceeding.
(2) Subject to subsection (2A), the Minister may institute a proceeding in the Court under this section and may intervene in any proceeding instituted in the Court under this section or in a proceeding instituted in any other court in which a party is seeking the making of a declaration of a kind mentioned in paragraph (1)(a) or (aa) or an order of a kind mentioned in paragraph (1)(b).
(2A) Subsections (1) and (2) do not permit the Minister:
(a) to institute a proceeding seeking a declaration, or an order described in paragraph (1)(b), that relates to Part IV; or
(b) to intervene in a proceeding so far as it relates to a matter that arises under Part IV.
(3) The Commission is not entitled to institute a proceeding in the Court under this section but may intervene in a proceeding instituted in the Court or in any other court, being a proceeding:
(a) that involves a matter arising under Part IV other than a matter arising under section 48; and
(b) in which a party is seeking the making of a declaration of a kind mentioned in paragraph (1)(a) or (aa).
(4) The jurisdiction of the Court to make:
(a) a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act by the Tribunal; or
(b) an order of a kind mentioned in paragraph (1)(b) directed to the Tribunal;
shall be exercised by not less than 3 Judges.
(5) In this section, 'proceeding' includes a cross-proceeding."
The respondent's argument starts with the proposition that the Federal Court as a court established under Ch III of the Constitution may exercise only the "judicial power of the Commonwealth"[254], and then only in respect of a "matter"[255]. The respondent contends that there can be no exercise of the "judicial power of the Commonwealth", and no "matter" within the meaning of those words in Ch III of the Constitution unless the party commencing proceedings has a relevant standing to do so. A party will only have such standing, on the respondent's argument, if it has a "special interest" in the proceedings of the kind sufficient to confer standing at common law[256]. Because the applicant concedes that it does not have a "special interest" in the proceedings, the respondent's argument, if accepted, would compel the conclusion that ss 80 and 163A are invalid in so far as they purport to give the applicant standing in these proceedings.
[254]Section 71 of the Constitution provides:
[255] Section 76(ii) of the Constitution provides:
[256]cf Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 262.
The respondent's contention is that the high water mark of decisions of this Court with respect to the grant of declaratory relief is Ainsworth v Criminal Justice Commission[257], in which it was held that the appellant was entitled to a declaration, notwithstanding that an injunction was not available (as the conduct of which the appellant complained was in all respects complete) and notwithstanding that the appellant had no right to damages. The Court held that a declaration would nonetheless be of utility to the appellant because it would go some way towards dispelling or reducing the harm that the unlawful conduct had done to the appellant. The instant case, the respondent submitted, was not one in which the applicant could advance arguments and point to facts of the kind which led to the decision in Ainsworth.
[257](1992) 175 CLR 564.
The respondent referred to the history of relator actions in the United Kingdom. Reliance was placed upon a number of the statements made in the speeches of their Lordships in Gouriet v Union of Post Office Workers[258], and in particular statements made by Lord Wilberforce, in which his Lordship pointed out that the discretionary role of the Attorney-General in deciding whether to lend his or her name to an action for the enforcement of the law in the civil courts was not merely formal, but involved important social and political considerations: to allow a litigant such as the applicant in this case who has in no way been personally adversely affected by the conduct of the respondent to bring proceedings for a declaration, or to compel the respondent to correct or answer for its misconduct, amounts to an unwarranted and unlawful circumvention of legal principle and the sound underlying policy reasons for relator actions. Relevantly, the respondent argued, the Commission established under the Trade Practices Act stood in the shoes of, and had a like role to the AttorneyGeneral in enforcing the Trade Practices Act. Accordingly the principles traditionally applied to attempts by ordinary members of the public to enforce the law in situations in which they had no interest over and above that of any other person, and the discretionary but exclusive right of the AttorneyGeneral to do so, should be applied here, and to the Commission as a statutory alter ego of the Attorney-General.
[258][1978] AC 435.
I point out at this stage that s 80 itself evinces a clear legislative intention that neither the Minister, the Commission nor any other person should in all cases have an exclusive right of enforcement, or the same rights or obligations in making claims for relief pursuant to the section.[259]
[259]For example: ss 80(1), 80(1AAA), 80(6) and 80(7).
Reference was made by the respondent to three cases in this Court: Australian Conservation Foundation v The Commonwealth[260]; Onus v Alcoa of Australia Ltd[261]; and Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd[262], all of which, it was claimed, reinforced the notion that the existence of a special interest was required to support proceedings of the kind brought by the applicant.
[260](1980) 146 CLR 493.
[261](1981) 149 CLR 27.
[262](1998) 194 CLR 247.
Counsel for the respondent also sought to call in aid cases in the United States in which strong majority opinions have been expressed, and which, if they were to be adopted here, would be determinative of the case on the first question in the respondent's favour. Particular reference was made to Lujan v Defenders of Wildlife in which Scalia J in delivering the opinion of the majority in the United States Supreme Court said this of the jurisdiction of federal courts of that country to determine "cases" and "controversies"[263]:
"Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an 'injury in fact' – an invasion of a legally protected interest which is (a) concrete and particularized[264] and (b) 'actual or imminent, not "conjectural" or "hypothetical"'[265]. Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be 'fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court.'[266] Third, it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'
The party invoking federal jurisdiction bears the burden of establishing these elements[267]. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, ie, with the manner and degree of evidence required at the successive stages of the litigation."
[263]Lujan v Defenders of Wildlife 504 US 555 at 560-561 (1992),
see also Art III, s 2 of the Constitution of the United States:
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. …"
[264]See Warth v Seldin 422 US 490 at 508 (1975); Sierra Club v Morton 405 US 727 at 740-741 n 16 (1972).
[265]See Los Angeles v Lyons 461 US 95 at 102 (1983).
[266]Simon v Eastern Kentucky Welfare Rights Organization 426 US 26 at 41-42 (1976).
[267]See FW/PBS, Inc v Dallas 493 US 215 at 231 (1990).
Right from the time of the decision of this Court in In re Judiciary and Navigation Acts, it has been stressed, the respondent further submitted, that the separation of judicial power from the legislative and executive powers of the Commonwealth has been a fundamental Constitutional doctrine; and that judicial power is only exercisable in respect of a controversy, that is a "matter" correctly so defined; or, as was said in In re Judiciary and Navigation Acts, there must be in existence "some immediate right, duty or liability to be established by the determination of the Court"[268]. It was a key part of the respondent's argument that for the Parliament to seek to invest in a Federal Court jurisdiction to determine the applicant's claim in the absence of standing by reason of a special interest, would be to do what this Court held to be impermissible in R v Kirby; Ex parte Boilermakers' Society of Australia[269], as an attempted investiture of nonjudicial functions in Ch III courts.
[268](1921) 29 CLR 257 at 265.
[269](1956) 94 CLR 254.
The respondent accepted that in advancing the arguments which it did, it was necessary to meet and deal with the express language of ss 52, 53, 163A and in particular s 80(1) of the Trade Practices Act.
Sections 52 and 53 proscribe conduct of the kind of which the applicant here complains, that is, misleading or deceptive conduct in trade or commerce, inter alia, either in, or in connexion with the supply of services.
Sub-section (1) of s 80, however, expressly contemplates that an application may be made by the Commission (established by the Act) or any other person in respect of the conduct as prescribed. Section 163A is concerned with the jurisdiction of the (Federal) Court to make declarations and orders.
Confronted with the express language of these two sections, and in particular s 80(1), the respondent submits that each section is wholly invalid or should be read down to exclude the making of an application by any person other than one who has a special interest or, to put it another way, the equivalent of common law standing to make a claim.
Finally, on this aspect of the case, the respondent argues that there is no relevant justiciable controversy determinable by a Federal Court unless there is some reciprocity between the parties, and that can only exist, if, in effect, there is some relationship of cause and effect between the actions of the respondent and the applicant.
There is no case in this Court in which any argument as far reaching as that advanced by the respondent has been upheld. Nor was the respondent able to point to any statements in this Court which go nearly as far as the arguments advanced. Perhaps the closest any Justice of this Court came to suggesting anything as far reaching as the respondent's propositions was Isaacs J whose language in The State ofSouth Australia v The State of Victoria[270] implicitly suggests a need for some degree of reciprocity between parties in order for there to be in existence a "matter" fit for determination by a Ch III court. His Honour said[271]:
"In my opinion, ['matters' in s 75 of the Constitution], used with reference to the judicature, and applying equally to individuals and States, includes and is confined to claims resting upon an alleged violation of some positive law to which the parties are alike subject, and which therefore governs their relations, and constitutes the measure of their respective rights and duties."
[270](1911) 12 CLR 667.
[271](1911) 12 CLR 667 at 715.
The invalidation of s 80 of the Trade Practices Act or its reading down would seriously curtail its intended operation as explained in R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd[272]:
"[to read 'any other person' as 'a person aggrieved'] would lead to frequent investigations and arguments, resulting in waste of public time and resources (as has occurred elsewhere) in determining who was and who was not aggrieved … Also, experience shows that enforcement agencies in environmental and consumer protection (as well as those in occupational safety and health) often become unable or unwilling to enforce the law (because of inadequate resources or because they tend to become too close to those against whom they should be enforcing the law). Section 80 expresses the policy that such tendency to non-enforcement or limited enforcement should be overcome …"
[272](1978) 142 CLR 113 at 131.
In Victoria v The Commonwealth and Hayden, Gibbs J said that it was[273]:
"somewhat visionary to suppose that the citizens of a State could confidently rely upon the Commonwealth to protect them against unconstitutional action for which the Commonwealth itself was responsible".
[273](1975) 134 CLR 338 at 383.
And in Bateman's Bay, Gaudron, Gummow and Kirby JJ made some similar observations[274]:
"[It is] 'somewhat visionary' for citizens in this country to suppose that they may rely upon the grant of the Attorney-General's fiat for protection against ultra vires action of statutory bodies for the administration of which a ministerial colleague is responsible".
[274]Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 262-263.
These statements may have a particular relevance now that, as a result of the insertion of s 2A of the Trade Practices Act in 1977, the Act binds the Crown in right of the Commonwealth to the extent that it may be carrying on a business. It may perhaps be doubted whether the Commonwealth, one of its agencies or a member of the executive would in all situations be anxious to enforce legislation against the Commonwealth in respect of any business activities that it might carry on.
In The State ofSouth Australia v The State of Victoria, Griffith CJ said[275]:
"The word 'matters' was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice … a matter … in order to be justiciable … must be such that it can be determined upon principles of law."
[275](1911) 12 CLR 667 at 675.
His Honour may very well have had in mind what had been said by Josiah Symon QC at the 1898 Melbourne Convention as the Chairman of the Convention Judiciary Committee[276]:
"We want the very widest word we can procure in order to embrace everything which can possibly arise within the ambit of what are comprised under the sub-section … it would be of no use to adopt the word 'case' or 'controversy'".
[276]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 31 January 1898 at 319. See also Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 765; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 507-508, per Mason J.
It is not accurate to say that for all classes of proceedings the law required that the moving party have a real, or actual, or special interest in the outcome. At common law, any person could prosecute for breaches of the criminal law by information unless the relevant statute on its true construction confined prosecutors to particular persons[277]. Also, at common law, any person could obtain leave to file an information relating to the common law crime of conspiracy[278]. The Attorney-General always had standing to seek an injunction for breach of a statute unless the statute in terms excluded the remedy. Before Federation it was well established that a relator need not have any personal interest in the controversy[279], and an absence of a special interest, or of a particular grievance does not preclude a grant of prohibition or certiorari
respectively[280]. A stranger may seek habeas corpus[281] and quo warranto may be granted at the suit of either the Attorney-General ex officio, or any other person[282].[277]Steane v Whitchell [1906] VLR 704 at 705-706; approved in Brebner v Bruce (1950) 82 CLR 161 at 173.
[278]See R v Norris (1758) 2 Keny 300 [96 ER 1189], where Lord Mansfield said that an information could be filed "from what quarter soever".
[279]Attorney-General v Vivian (1826) 1 Russ 226 at 236 [38 ER 88 at 92]; Attorney General v Logan [1891] 2 QB 100 at 103, 106; Attorney-General and Spalding Rural Council v Garner [1907] 2 KB 480 at 485; Attorney-General v Crayford Urban District Council [1962] Ch 575 at 585, 590; Attorney-General (Q); Ex rel Duncan v Andrews (1979) 145 CLR 573 at 582 per Gibbs J.
[280]With respect to prohibition, see Re Forster v Forster and Berridge (1863) 4 B & S 187 at 199 [122 ER 430 at 435]; Worthington v Jeffries (1875) LR 10 CP 379 at 381-384; Farquharson v Morgan [1894] 1 QB 552 at 556; R v Licensing Court and McEvoy; Ex rel Marshall [1924] SASR 421. With respect to certiorari, see R v Justices of Surrey (1870) LR 5 QB 466 at 473; Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482 at 517-518 per Isaacs and Rich JJ.
[281]Ex parte West (1861) 2 Legge 1475.
[282]R v Speyer; R v Cassel [1916] 1 KB 595 at 609, 613.
If the respondent's submissions were correct, Parliament might not be able to enact a statute codifying those parts of the common law to which I have referred and conferring jurisdiction upon the Federal Court to grant those remedies without infringing Ch III of the Constitution, to say the least, a rather unlikely conclusion.
So far as the cases in the United States are concerned, it is sufficient for present purposes to point out that the word "matter" was chosen as the appropriate expression for Ch III of the Australian Constitution as opposed to either "case" or "controversy" (the United States' choices) because "matter" was an expression which was thought to have, and indeed is clearly capable of having a wider meaning than the words chosen in that country.
In my opinion the respondent's challenge to the legislation must fail. First, even if I were to assume that "matter" is to be confined to a case in which the initiating party has standing to commence the case, there does not seem to be any reason why there may not be a statutory conferral of standing by legislation enacted under an appropriate Commonwealth head of power. The Trade Practices Act is such a statute, and it has conferred, in express terms standing upon any person to seek enforcement or relief under, or with respect to some of its provisions. Secondly, as the examples to which reference has been made show, there have always been some exceptions to any general rule that a litigant must have some special interest to protect or vindicate, in seeking to enforce legislation. Thirdly, according to its ordinary meaning, to the understanding of its meaning by the framers of the Constitution, and its interpretation by Justices of this Court in the cases to which reference has been made, the word "matter" is capable of embracing a case of the kind here in respect of which the Federal legislature, within power, has enacted that any person may bring proceedings under s 80 of the Trade Practices Act.
It is unnecessary therefore to express any view upon competing considerations of mixed law and policy of the kind referred to in Gouriet[283] regarding the desirability or otherwise of the undertaking of a filtering exercise by the Attorney-General, or the risk of the inundation of the courts by a multiplicity of suits by persons who have been described, in other contexts, as busy-bodies or "phantom litigants"[284] or whether law enforcement (conventional civil remedies apart) should be a matter for officious, or other members of the public.
[283][1978] AC 435.
[284]cf Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 260-264 per Gaudron, Gummow and Kirby JJ, 275-280 per McHugh J.
The claims of the applicant are for:
"1. An order pursuant to s 80 of the Trade Practices Act 1974 (Cth) (the Act) or alternatively s 65 of the Fair Trading Act 1987 (NSW) or s 23 of the Federal Court of Australia Act 1976 (Cth) that the Respondent publish corrective advertising, in a form and manner approved by the court, so as to provide an accurate estimate of likely future traffic volumes on the Eastern Distributor, and so as to correct the estimates of such traffic volume made in the prospectus for the Infrastructure Trust of Australia Group ("ITA") dated 22 October 1996.
2. A declaration that the Respondent, in making the traffic volume forecasts for the Eastern Distributor in the Prospectus, has engaged in misleading and deceptive conduct contrary to s 52 of the Act and or in breach of s 42 of the Fair Trading Act 1987 (NSW).
3. Such further or other order as the Court thinks fit."
Nothing that I have said should in any way be taken as foreclosing, or trammelling the exercise by the Court of the usual discretions which a court entertaining claims of these kinds may exercise, whether to grant relief at all, or relief in some other or more limited form as may be appropriate.
I would accordingly answer question 1 as follows:
"Are sections 80 and 163A of the Trade Practices Act 1974 (Cth) invalid insofar as they purport to confer standing on the applicant to bring the present proceedings?"
Answer: no.
It is unnecessary to answer any other of the questions in the case stated. The proceedings should be remitted to the Federal Court and the respondent should pay the applicant's costs in this Court.
"The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction …"
"The Parliament may make laws conferring original jurisdiction on the High Court in any matter –
…
(ii) Arising under any laws made by the Parliament."
Section 77(i) provides:
"With respect to any of the matters mentioned in the last two sections the Parliament may make laws –
(i) Defining the jurisdiction of any federal court other than the High Court."