Case: ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No1) (1990) 27 FCR 460
Outcome: discussed
passage in ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No1) (1990) 27 FCR 460 (" Pont Data" ) at 488 referred to by Gummow J, Hayne J and Heydon J was as follows: [The persons or classes excluded] ... are identified ... by the characteristic that they may not be supplied with the information in question, unless they accept and become bound by the restraint imposed by the [relevant] agreement] ... 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. This can be said to permit the identification of the particular persons or classes of person by reference to the operation of the provision. As Gummow J, Hayne J and Heydon J show in footnote 132 in Rural Press (HC), whilst Callinan J in Souths expressed opposition to such an operation of s 4D, Gummow J, with whom McHugh J agreed, did not, and, indeed cited this passage in Souths . Neither Gleeson CJ nor Kirby J in Souths referred to the passage in question from Pont Data . In Pont Data the Full Court said at 476 and 477 about s 4F: 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 ... ... ...it is therefore appropriate to look at the purposes of the party as a result of whose efforts they were included In Souths , Gleeson CJ said at [18] that it was the subjective purpose of "News and ARL in including the fourteen team ... that is to be determined." His Honour referred with approval to Pont Data at 474-77 as to this point. McHugh J at [41] concurred with the view that it was the subjective purpose of the makers of the provision. In so doing he gave weight to the body of Full Federal Court authority, including implicitly, Pont Data. Gummow J at [62] specifically cited Pont Data at 476 and said that s 4F required examination of the purposes of the individuals by whom the provision was included and noted that the "substantial purpose" test avoids difficulties in discerning the relevant purpose of multiple parties to a contract, arrangement or understanding. Callinan J at [212] referred to the parties' subjective reason for the inclusion of the provision in the contract, arrangement or understanding and in so stating referred specifically to, amongst other cases, Pont Data at 474-77. The Commission's case was that in each case Woolworths and Liquorland were parties to the contract, arrangement or understanding. Each was competitive with the other in relation to the supply of take-away packaged liquor. This satisfied s 4D(1)(a) of the Act. It was also said that each licence applicant was likely to be competitive with Woolworths and Liquorland in the supply of takeaway packaged liquor, but for the provisions in question, for the purposes of s 4D(2) and thereby s 4D(1)(a). The Commission also asserted that the purpose of the provisions in the deeds was to prevent, restrict or limit the supply of takeaway packaged liquor by the licence applicants to one or more of the following classes of persons: (a) customers and potential customers of the licence applicants and (b) customers and potential customers of each Woolworths and Liquorland bottle shop in the vicinity. It was unnecessary to be able to identify the individual members of the class. It was capable of being a "future" class, which was identifiable at the time of the making of the contract, arrangement or understanding. The legitimacy of this element of possible futurity was assisted, it was said, by the terms of s 4D(2) which identifies a future or contingent state of affairs. Section 4D(1) should, it was said, be given a construction conformable with the future, contingent aspects of the section's possible operation in relation to contracts, arrangements or understandings. Importantly, it was submitted that unless the Commission proved the purpose of each of the parties to the deeds it must lose this part of the case. That is so, it was said, because without it the second stage in (b) cannot be undertaken. Pont Data was said to be irrelevant to this case because no party entered the deed under protest or complaint. That being so, it was said, it was necessary to consider the purposes of all the parties to the deed. Turning to the purposes of the parties in including the provision, Woolworths submitted that the Commission confused the purpose of the provision with the purpose of lodging the objection and failed to understand the effect of the Liquor Act on unlicensed persons. At the time of the execution of the deed, the purpose of Woolworths was not to prevent the issue of an unconditional licence, because by that time, to Woolworths' knowledge, each applicant was not seeking an unconditional licence. Further, it was submitted that even if Woolworths' purpose in entering the contract was to prevent the issue of an unconditional licence that was not a purpose of limiting supply to particular persons or classes of persons. This was so because at the time of execution of the deeds the licence applicants had no lawful entitlement to supply the goods to which the provision related. Such an existing, lawful entitlement was, it was said, a necessary precondition for the engagement of s 4D. At the time of the entry into the deeds, the licence applicants were prohibited by the Liquor Act from selling takeaway packaged liquor. Also, as to Palms Village, the provision did not prevent, restrict or limit the supply of any takeaway liquor, because the restrictions were as to stocking, site and configuration of the shop. There was, it was said, no relevant prevention, limitation or restriction on sale to any particular person or class of person. One answer given by Ms Stapleton when being asked about the Dry Dock bottle shop revealed a mundane, but important, distinction that was related to the notion of competition and substitution. The following exchange took place: You don't list the Dry Dock Bottle Shop in paragraph 34 [of your statement] as a main competitor. No. Why is that? It's a very small store. Would you regard it as a competitor at all? Oh, everyone's a competitor, but not a main competitor. There are competitors and there are main competitors. There is competition and there is close competition. The analysis and the description depends on the context. Mr Gordon Mr Michael Gordon was called by the Commission. He was the Managing Director and Chief Executive Officer of "Liquor Marketing Group" ("LMG"). He had been involved for most of his working life since the 1970s in the liquor industry. He and a partner established the Liquorland chain of stores, and later the Mac's Liquor chain, before each was sold, respectively, to Coles and Woolworths. Mr Gordon was articulate, intelligent and helpful. LMG was a hotel liquor buying and marketing group with over one thousand members. I have also dealt with the purpose of each of the parties to the deeds. In each case, Woolworths, on the evidence, was one of the parties as a result of whose efforts the relevant provisions were included. I reject the submission of Woolworths that Pont Data is irrelevant because that case only has relevance where a provision or deed is entered into or undertaken under protest. In each case, the provisions were included as a result of the efforts of Woolworths and Liquorland. In any event, the purposes of the other parties can be inferred as I have. Section 4F does not require that there be one substantial purpose or the substantial purpose, the relevant purpose need only be a substantial purpose. Woolworths submitted that the particularity of the persons or class must arise entirely otherwise than by the characteristic of being excluded from supply. Reliance was placed on what Callinan J said in Souths at [189]. However, as I sought to show earlier, the passage from Pont Data (set out at [58] above) which was criticised by Woolworths has not been disapproved. In my view, the passage referred to at [58] above is an expression of view by a Full Court of this Court (Lockhart, Gummow and von Doussa JJ) in a joint judgment which I should follow. Thus, relevant to the particularity of the class, is the fact that its members are the objects of the purpose in question. It was submitted by Woolworths that the class cannot be "some unidentified potential group of customers". The relevant question is not an isolated proposition capable of independent analysis; rather, the relevant question is whether, on the facts as they present themselves here, a purpose of each relevant provision was to prevent, restrict or limit the supply of goods to particular persons or class of person. The degree of definition and the common characteristics that lead one to the conclusion that a class is "particular" is not capable of being expressed otherwise than by application of the language chosen by Parliament to the facts and purpose in question. To seek to do so is to embark on a process of deconstructing, or glossing, of Parliament's words with the almost inevitable (and certainly impermissible) substitution of a different word or phrase for that chosen by Parliament. That one person's view that the definition of a class to which the purpose in question was directed is sufficiently "particular" to fall within the section is open to debate is an inevitable consequence of the indeterminate frame of reference contained within the adjective "particular". It is necessary to turn to the episodes here and assess whether s 4D (and so, s 45(2)(a)(i) and (b)(i)) is satisfied. Ettamogah