Case: Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331
Outcome: considered
Within s 190F(6)(a), the meaning to afford the word "likely" is elusive. The judgments delivered by Bowen CJ (with whom Evatt J agreed) and Deane J in Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331 in relation to the meaning of that word as it appears in s 45D of the Trade Practices Act 1974 (Cth) nicely illustrate why this is so. Sir Nigel Bowen observed (at 339-340): The word "likely" is one which has various shades of meaning. It may mean "probable" in the sense of "more probable than not" - "more than a fifty per cent chance". It may mean "material risk" as seen by a reasonable man "such as might happen". It may mean "some possibility" - more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified. In Australian Telecommunications Commission v Kreig Enterprises Pty. Ltd. (1976) 27 FLR 400 Bray C.J. had to consider the meaning of the word "likely" in s. 139B of the Post and Telegraph Act 1901-1973 (Cth). The context, of course, was different. However, Bray C.J. concluded it meant "more probable than not" in that context. His Honour expressed the view that that was the natural and ordinary meaning of "likely", though he referred also to the rules of construction applicable where the statute being interpreted is a penal statute or one which, as in the case of s. 139B, imposed an additional liability beyond the liability in tort. It was suggested by Joske J. in Trade Practices Commission v Total Australia Ltd. (1975) 24 FLR 413 that "likely" in s. 47 (5) of the Trade Practices Act was equivalent to "calculated" and he referred to Thurley v Hayes [1920] HCA 28 ; (1920) 27 CLR 548 , at p 551 . However, in that case "calculated" was interpreted to mean "likely" in order to rid the word of its overtones of intention. ... The circumstances to which s. 45D may apply are so various that I hesitate to place a gloss on the section by preferring one meaning of "likely" rather than another for the determination of this particular case. It is unnecessary to do so, because I have formed the view that whichever meaning is adopted the evidence leads me to the conclusion that the likelihood of substantial loss or damage has been established. Mr Justice Deane observed (at 346-347): The word "likely" can, in some context, mean "probably" in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a fifty per cent chance ("an odds-on chance", per Lord Hodson in Koufos v. C. Czarnikow Ltd. [1969] 1 AC 350, at p 410 and see, as to the meaning of the word "probable", Eggleston Evidence, Proof and Probability (1978), p. 10 et seq). It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to "prone", "with a propensity" or "liable". When so used, it is sometimes equated with the concept of foreseeability in the law of negligence (see, for example, Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. Ltd. (Wagon Mound No. 2) [1967] 1 AC 617, at pp 634-635 ; Callaghan v. Wm. C. Lynch Pty. Ltd. (1962) 79 WN (NSW) 830 , at p 835 ). Thus, if I fire a rifle through drawn curtains into a quiet lane in a country village, it is not likely, in the sense of more likely than not or an odds-on chance, that I will injure anyone. It would, however, be difficult to deny that there was a real chance or possibility (or likelihood in that sense) that an occasional passer-by would be wounded by the bullet. Plainly, the act of firing a rifle through drawn curtains into a lane used by pedestrians would be an act which was, in the circumstances, prone or liable (likely in that sense) to cause injury to a passing pedestrian. In Australian Telecommunications Commission v. Krieg Enterprises Pty. Ltd. (1976) 27 FLR 400, Bray C.J., after an instructive consideration of relevant authorities, expressed the view that the ordinary and natural meaning of the word "likely" is synonymous with the ordinary and natural meaning of the word "probable" and both words mean that there is an odds-on chance of the thing happening. His Honour added that statutes containing the words have usually been construed that way, particularly so where the statute is a penal statute or is imposing an additional liability in tort. This view, if accepted, would lead to the conclusion that, prima facie, the word "likely" in s. 45D (1) means probably in the sense of more likely than not. While dictionary definitions and examples of judicial and lay usage can be adduced to offer strong support for that view, I am unable to accept that likely is synonymous with "more likely than not" or that if there is a 49.9 per cent chance of an event occurring it would ordinarily be denied that it was likely (or "quite likely") that the event would occur. Nor does it appear to me that there is a presumption that, in a legislative provision proscribing conduct that is likely to cause loss or damage to another, the legislative intent was that conduct which had a 49.9 per cent chance of causing such damage was to be outside the proscription. 44 Thus, depending upon the context in which it appears, "likely" can mean "more probable than not" or it can mean "some possibility, more than a remote or bare chance". Tillmanns Butcheries and, in turn, Australian Telecommunications Commission v Kreig Enterprises Pty. Ltd , referred to in each of the substantive judgments delivered in Tillmanns Butcheries, demonstrate the importance of context in the determination of the meaning of the word. For example, that there was a reticence on the part of this Court in Tillmanns Butcheries to confine the meaning of the word to "more probable than not" in the context a provision directed in the public interest to the proscription of a form of behaviour in trade or commerce considered by Parliament to be undesirable is, with respect, readily comprehensible.