Case: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150
Outcome: considered
StoresOnline submits that it has complied with most of the terms of the undertaking it gave to the ACCC, and that any breaches were minor and should not persuade the Court to exercise its discretion to grant the relief sought. It says that it has taken steps to ensure there are no further breaches. In addition, StoresOnline says that the Court does not have jurisdiction to grant the relief, citing Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 (" Thomson ") and arguing that s 80 of the TPA is an exhaustive statement of the circumstances in which injunctive relief sought under the TPA may be granted, to the exclusion of s 23 of the FCA Act . StoresOnline also submits that the balance of convenience does not favour the ACCC because there has been no material harm or prejudice to the ACCC or its purchasers; reliance on the public interest is not decisive; and the breadth of the ACCC's Amended Application travels beyond the scope and duration of some of the terms of the original undertaking. 7 Three issues therefore arise. The first concerns the jurisdiction of the Court to entertain this application and, if it sees fit, its power to grant the relief sought. The second is whether the evidence establishes breaches by StoresOnline of the undertaking necessary to invoke the power of the Court to make orders under s 87B(4) of the TPA. The final issue is whether the balance of convenience weighs in favour of granting or refusing the relief sought. 12 StoresOnline relies on Thomson as authority for the proposition that the Federal Court cannot grant injunctive relief in respect of matters under the TPA unless it does so pursuant to s 80 of the TPA, therefore rendering the ACCC's application for orders beyond the jurisdiction of this Court. It refers to the reasons of Gibbs CJ, Stephen, Mason and Wilson JJ, where there Honours comment at 162 on s 80 (as it then stood): '... s. 80 proceeds upon the footing that it constitutes the Federal Court's exclusive charter to grant injunctions restraining, or relating to, contraventions of the Trade Practices Act . In various sub-sections of s. 80 references are made to injunctions granted "under" the section or a particular sub-section and to applications for injunctions "granted" under the section or a sub-section see sub-ss. (1A), (4) (a) and (b), (5) (a) and (b) and (6). Section 80 makes special provision in several respects for the grant of injunctions under the section see sub-ss. (4), (5) and (6). It is scarcely to be supposed that the Parliament intended to draw a distinction in these respects between two classes of injunctions, one class of injunctions granted under s. 80 and another class granted under ss. 22 or 23 of the Federal Court of Australia Act . The inference is irresistible that Parliament looked upon s. 80 as a complete and comprehensive statement of the circumstances in which injunctions might be granted in respect of relief sought under the Trade Practices Act .' (Emphasis added.) 13 There are several reasons why the observations of their Honours do not mandate that this Court dismiss the present application as beyond jurisdiction. The first is that, when Thomson was decided in 1981, the TPA did not include s 87B which was later inserted by s 13 of the Trade Practices Legislation Amendment Act 1992 (Cth). Counsel for StoresOnline invited me to infer that the insertion by Parliament of s 87B must have been done with the High Court's decision in Thomson in mind and as a guiding principle. This suggested inference is not supported by the language of the TPA itself or any extrinsic material to which I have been referred. The preferable approach, in my view, proceeds on the basis that Parliament introduced s 87B into the TPA to enhance enforcement by the ACCC by increasing the scope and flexibility of the powers of the Court to provide effective means of dealing with breaches or apprehended breaches of the TPA. The fact that Parliament granted power to the Court in s 87B(4) points to the conclusion that it did not intend the powers in relation to s 80 to be the exclusive expression of the Court's ability to grant relief of an injunctive nature. It is not correct, in my view, to regard s 87B as limited in its operation to the scope of the powers conferred by s 80. 14 The second difficulty for OnlineStores is that s 87B of the TPA regulates the particular circumstances in which an undertaking is given directly to the ACCC rather than to the Court. The Court is not involved in that process, and the undertaking is a binding agreement which arises in the context of a statutory regime. The power under s 87B is designed to give effect to and reinforce the undertaking where there has been non-compliance. The Court is given power for the purposes of more effective enforcement if the undertaking is breached. The ordinary and natural meaning of s 87B(4) is to give the Court power to better enforce undertakings by converting them into orders of the Court, and to make other orders in its discretion, if and when it becomes appropriate. 15 Section 80 is a provision invoked when there has been contravention or possible contravention of specified provisions in the TPA. Section 87B is not one of those provisions. The limitations imposed by s 80 on the ability of the Court to make " any other order ... [it] considers appropriate " under s 87B(4)(d) must, on the reasoning advanced by StoresOnline, be found to be implicit in s 80. In my view, there is no basis to imply such a limitation. Section 87B is directed to investing the Court with powers. To limit the Court's ability to grant injunctions at the request of the ACCC where undertakings given under s 87B have been breached is a non-beneficial and inappropriate interpretation of s 87B.