Case: S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357
Outcome: cited
29 is in different terms to s 155 of the Trade Practices Act 1974 (Cth). Section 155 uses the term " specified " on a number of occasions &#8212; but not to describe the information required to be produced when that section is invoked. Section 155 refers to the statutory requirement that there be reason to believe that a person is capable of " furnishing information ... relating to a matter that constitutes, or may constitute, a contravention of this Act ". The section then authorises the issue of a notice requiring the production of " any such information ... ". Subject to noting that difference in language, in Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, Northrop, Deane and Fisher JJ relevantly observed at 372: Questions of ultra vires aside, we would respectfully agree with Fox J that uncertainty or ambiguity will not invalidate subordinate legislation or a written directive issued under statutory power unless a point is reached where it cannot reasonably be given any meaning. Strictly speaking, when this point is reached, what is involved is not a matter of mere ambiguity or uncertainty. As Lord Keith of Avonholm commented in Fawcett Properties Ltd v Buckingham County Council ( [1961] AC 636): "If it is impossible, on construction of the condition, to reach a conclusion as to what was in the craftsman's mind, the condition is meaningless and must be read as pro non scripto It is not a question of ambiguity. If a clause may convey several different meanings it is for the court to say, looking at the general background, surrounding circumstances, subject-matter of discourse and other aids derived from the context of the clause, supplemented not infrequently by certain legal presumptions, what meaning is to be attributed to the clause" ([1961] AC at 670). Their Honours further observed at 375: The requirement that a notice under s 155(1) convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce is not to be applied in a precious or hypercritical fashion (see Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163). Artificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning. Provided a notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information or documents are required, the requirements of s 155(1) as to clarity will be satisfied. In this regard, the mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear. On appeal, the decision was affirmed: Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328. See also: S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370 per Fisher and French JJ; Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 at [36] to [43], 97 ALD 652 at 660 to 662 per Bennett J. Each statutory provision, of course, presents its own potential difficulties in construction. Section 155 , for example, employs the language of " information " ( Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 at [18] , [2004] FCAFC 267 ; 140 FCR 170 at 175 to 176 per Tamberlin J) &#8212; a term less certain in meaning than a " document ". After referring to Pyneboard and other decisions of the Full Court of this Court, in Australian Securities Commission v Lucas (1992) 36 FCR 165. Drummond J summarised the position in respect to notices issued under s 155 as follows: ... so far as form is concerned, a notice issued under s 155 of the Trade Practices Act to be valid must contain the following information: (a) it must disclose on its face sufficient information to identify the "matter" with respect to which the recipient of the notice is thought to be capable of giving information, evidence or producing documents; and (b) the notice must contain sufficient information to disclose the necessary relationship between the information or documents sought and the matter in respect of which that material is sought. This has been described as the " entitlement disclosure condition ": S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370 per Fisher and French JJ.