Case: ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460
Outcome: applied
In many cases it will be necessary and appropriate to infer the subjective purpose from evidence of the conduct of the parties: see Northern Collieries at 402 per Isaacs J. Statements as to purpose from the witness box may be highly probative, but they must be tested closely and received with great caution: ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 ( 'Pont Data' ) at 482-483. 125 In Pont Data , the Full Court considered the approach to the determination of purpose under s 4F which, like s 45E(3), operates where a particular provision was included in a contract, arrangement or understanding for a proscribed purpose. Their Honours said at 476: 'In its operation upon provisions stated to have a particular purpose, s 4F uses the words "the provision was included in the contract ... for that purpose or for purposes that included or include that purpose". This indicates that s 4F, in this operation, requires one to look to the purposes of the individuals by whom the provision was included in the contract, arrangement or understanding in question. It therefore directs attention to the "subjective" purposes of those individuals.' The Court adopted the test of purpose as construed by Toohey J in Hughes at 37-38, where his Honour said: 'I accept the view that it is the subjective purpose of those engaging in the relevant conduct with which the court is concerned. All other considerations aside, the use in s 45(2) of "purpose" and "effect" tends to suggest that a subjective approach is intended by the former expression. The application of a subjective test does not exclude a consideration of the circumstances surrounding the reaching of the understanding.' 126 On the facts in Pont Data , the relevant provisions were included in the agreements because one of the parties, ASX Operations Pty Ltd, had insisted upon their inclusion. The other party, Pont Data Australia Pty Ltd, had objected to the inclusion of the provisions. In those circumstances, the Court considered that it was appropriate to look to the purposes of the party as a result of whose efforts the provisions were included: at 477. In the present case, the CEPU instigated the requirement that resulted in the provision, but neither party submitted that either Edison or the CEPU objected to its inclusion. Thus, in my view, it is appropriate to consider the subjective purposes of both Edison and the CEPU in determining whether the provision was included for the proscribed purpose. 127 I reject the CEPU's submission that s 45E requires consideration of the subjective purposes of Edison, to the exclusion of the CEPU's purposes. The language of the section does not suggest that the inquiry as to purpose is limited to a consideration of the purpose of the party to the contract, arrangement or understanding upon which liability is directly imposed. In my opinion, the subjective purposes of each of the parties to a contract, arrangement or understanding are relevant to the determination of the purpose for which that provision was included. I doubt that s 45E requires the Court to search, perhaps vainly, for a common purpose: Pont Data at 477; see also South Sydney per McHugh J at 579 [38]. However, I do not need to express any final view on this issue because I have concluded on the evidence that there was no relevant disparity between the CEPU's purpose and Edison's purpose for including the provision. 133 In any event, in Pont Data , the Full Court considered the phrase 'particular persons or classes of persons' in the context of s 4D. The Court found that the phrase allowed for the identification of persons by reference to a negative characterisation; namely, persons who may not be supplied with information unless they accepted and became bound by the restraints imposed by the agreements at issue. The Full Court said at 488: 'It was said [by the appellants] that the persons or classes excluded must still be "identified" if s 4D is to apply. That may be conceded, but they are identified, in the present case, by the characteristic that they may not be supplied with the information in question, unless they accept and become bound by the restraints imposed by the Dynamic Agreement. Such persons come within a particular category or description defined by a collective formula: cf Pearks v Moseley, Re Moseley's Trusts (1980) 5 App Case 714 at 723. They ordinarily would be treated as constituting a particular class, even though at any one time the identity of all the members of the class might not readily be ascertainable. What distinguishes the class and makes it particular is that its members are objects of an anti-competitive purpose, with which s 4D is concerned.' 134 In Rural Press , the High Court did not find any error in the Full Court's conclusion in Pont Data that a particular class can be defined by its exclusion from supply or acquisition: at 90-91 [88] per Gummow, Hayne and Heydon JJ, see also Gleeson CJ and Callinan J at 62 [7]; and Gummow J in South Sydney at 590 [77]. 135 It follows that, if and to the extent that s 45E requires the second person to be particularly or specifically identified, that requirement can be satisfied by the use of a negative or exclusionary formula, as in Pont Data . 136 It was not in dispute that there was a contract, arrangement or understanding between Edison and the CEPU in relation to Edison's engagement of electrical contractors to perform work at the Loy Yang B site. The parties differed about the nature, scope and content of that contract, arrangement or understanding. 137 As I have already noted, the ACCC put its case in essentially two ways. Its primary case was that prior to 23 August 2001 Edison and the CEPU made a contract or arrangement, or arrived at an understanding, that all electrical contractors performing work at Loy Yang B must have a current certified agreement with the CEPU prior to commencing work at the site. The ACCC contended that this contract, arrangement or understanding was broader than, and overshadowed and controlled, the provision that was subsequently inserted in the heads of agreement. 179 Section 45E does not require that the provision be included for the purpose of preventing or hindering a person who is particularly or specifically identified. It is sufficient for the purposes of s 45E that the 'second person' be identified by reference to a group of persons who possess a particular characteristic: Pont Data at 488. Here, the relevant group of persons comprised electrical contractors performing, or who wished to perform, work at Loy Yang B who did not have a current certified agreement with the CEPU. The provision in question here specifically identifies and defines the particular group of persons from whom Edison agreed to refuse to acquire services.