Case: Joye v Beach Petroleum NL (1996) 67 FCR 275
Outcome: cited
In Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472, Hill J was concerned to interpret s 6(2)(b)(ii) of the Trade Practices Act 1974 (Cth) which confined the operation of s 60 of that Act to conduct which took place in the course of or in relation to trade or commerce between Australia and places outside Australia. Hill J said at 487-488: "It may be accepted that there will always be a question of degree involved where the issue is the relationship between two subject matters. The words 'in relation to' are wide words which do no more, at least without reference to context, than signify the need for there to be some relationship or connection between two subject matters: see Smith v Commissioner of Taxation (Cth) [1987] HCA 48 ; (1987) 164 CLR 513 at 533 per Toohey J and PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 328 per Toohey and Gummow JJ. But the phrase is both 'vague and indefinite': see per Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35 ; (1961) 105 CLR 602 at 620. Like the phrase 'in respect of', the phrase 'in relation to' will not, at least normally, apply to any connection or relationship no matter how remote: see Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24 ; (1989) 167 CLR 45 at 51 per Dawson J. The extent of the relationship required will depend upon the context in which the words are used. As Beaumont and Lehane JJ said in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285 in discussing a number of the cases dealing with 'relates to': ' ... it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice.' (References omitted.)" 70 In Joye v Beach Petroleum NL (1996) 67 FCR 275, the Full Court of the Federal Court said at 285: "The relevant question here, whether the 'matter' is one 'relating to' a winding up, is concerned with the existence of a relationship. It does not raise a question of characterisation. Of the phrase 'relating to', Taylor J said, in Tooheys Ltd v Commissioner of Stamp Duties [1961] HCA 35 ; (1961) 105 CLR 602 at 620: ' ... the expression ... is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so, all that a court can do is to endeavour to seek some precision in the context in which the expression is used'" Taylor J went on to say (at 620) that 'relating to' in the context there considered was not the 'equivalent of 'referring to'; the 'relationship' must be based upon some more substantial ground'. Other decisions of the High Court have acknowledged that, ordinarily, 'relates to' is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice (see Re Dingjan; Ex parte Wagner [1995] HCA 16 ; (1995) 183 CLR 323 at 338 per Brennan J, at 347 per Dawson J, at 354 per Toohey J and at 370 per McHugh J; PMT Partners Pty Ltd (In liq) v Australian National Parks &amp; Wildlife Service [1995] HCA 36 ; (1995) 69 ALJR 829 at 835-836 per Brennan CJ, Gaudron and McHugh JJ and at 845-846 per Toohey and Gummow JJ; Re Jarman; Ex parte Cook [1996] HCA 7 ; (1996) 70 ALJR 550 at 553 per Brennan CJ and Gaudron J and at 556 per Kirby J. Tooheys' case has been followed in this Court (see, eg, Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367 at 374 per Hill J and at 383 per Cooper J). In our view, there is nothing in the present context to suggest that the term 'relating to', where used in s 580 and when picked up by s 581(4) , was not intended to have a wide operation or that an indirect, but relevant, connection would not be a sufficient relationship for present purposes."