McGraw-Hinds (Aust) Pty Ltd v Smith
144 CLR 63324 ALR 175
(Judgment by: GIBBS ACJ)
Between: McGRAW-HINDS (AUST) PTY LTD
And: SMITH
Judges:
Gibbs ACJ.Stephen J.
Mason J.
Jacobs J.
Murphy J.
Aickin J.
Subject References:
Constitutional Law (Cth)
Trade Practices
Judgment date: 5 April 1979
Sydney
Judgment by:
GIBBS ACJ
This is an appeal from a judgment of the Full Court of the Supreme Court of Queensland which allowed an appeal from a decision of a stipendiary magistrate dismissing a complaint brought by the present respondent against the appellant under s. 8 of the Unordered Goods and Services Act, 1973 (Q.), as amended, ("the Act").
Section 8 of the Act provides as follows:
"(1) A person shall not assert a right to payment of any charge or fee for the making of a directory entry or the rendering of a prescribed service, whether made or to be made or rendered or to be rendered by him or another person and whether made or to be made or rendered or to be rendered within or without the State or partly within and partly without the State, unless he has reasonable cause to believe (proof of which shall lie upon him) that a note complying with section 7 has been signed by or on behalf of the person against or in relation to whom that right is asserted.
Penalty: $500.
(2) Without limiting the generality of subsection (1), in proceedings for an offence that is a contravention of that subsection the receipt by a person, at any place within the State, of a prescribed document relating to a directory entry or prescribed service that was sent or purports to have been sent, within or without the State, by or on behalf of the person who made or proposes to make that entry or rendered or proposes to render that service shall be deemed to be an assertion by that person, made at the place where the receipt occurs, of a right to payment from the first-mentioned person of a charge or fee for the making of the directory entry or the rendering of the prescribed service, as the case may be.
(3) In this section 'prescribed document' in relation to a directory entry or prescribed service means a writing that asserts or implies that the payment of a charge or fee should be made for the making of the directory entry or the rendering of the prescribed service or that sets out the price for the making of the directory entry or rendering of the prescribed service."
In order to comply with s. 7 a note must, in relation to a contract or agreement for the making of a directory entry, specify:
"(a) the particulars of the entry inserted or proposed to be inserted;
(b) the amount of the charge or fee or the basis on which the charge or fee to be charged is or is to be calculated;
(c) the name of the directory or other similar publication in relation to an entry in which the charge or fee is payable; and
(d) the name and address of the person publishing the directory or other similar publication" (s 7(3)).
A person is not liable to make any payment under any such contract unless a note complying with the section has been signed by him or on his behalf (s. 7(1)).
The case for the respondent was based upon the receipt through the post by an officer of the Queensland Government Tourist Bureau in Brisbane of a document that was sent or purported to have been sent by or on behalf of the appellant. The document bore the heading "International Telex Directory", followed by the statement that the directory was published by the appellant whose address in Sydney was given. It was addressed to "Queensland Government Tourist Board". It included, in a prominent position, the words "Invoice/Statement"; in form it resembled an invoice or statement of account and showed "Reference Number", "Annual Subscription" (viz., $68.50), "Previous Balance" (viz., nil) and "Total" (viz., $68.50) in such a way that at a cursory glance it might have suggested that the total mentioned was due for payment. However, there appeared prominently, in capital letters, the following words:
"If the entry is desired please use the payment advice slip attached to this statement. This is not a demand or claim for payment of the amount shown."
In smaller type there appeared the words "Contract and Invoice terms overleaf". On the reverse of the document there were some numbered paragraphs, including the following:
"1. Upon payment of the pro-forma offered on reverse side your name and information as indicated will be included in our international directory."
The "payment advice slip" attached to this document was in fact a duplicate "Invoice/Statement"; the amounts opposite the words "Annual Subscription" and "Total" were however blank, possibly because of imperfect reproduction. The appellant is a company registered in New South Wales. There was no proof that the appellant sent the document, but it was admitted in evidence under the evidentiary provisions contained in s. 15 of the Act. There is no "Queensland Government Tourist Board", but it is not contested that the document was intended to be addressed to the Queensland Government Tourist Bureau, an unincorporated organization which is an agency of the Crown in the right of the State of Queensland. The appellant did not attempt to suggest that it had reasonable cause to believe that a note complying with s. 7 had been signed.
The first submission on behalf of the appellant is that s. 8 does not apply where the assertion of a right to payment is made against the Crown. This submission is based on the premise that as a general rule the same meaning should be given to the same word wherever it occurs in a statute, especially if it occurs more than once in the same section. It is not disputed that s. 8 of the Act does not bind the Crown - see s. 13 of the Acts Interpretation Act, 1954 (Q.), as amended. It is argued that this means that the word "person" where it last appears in s 8(1), and where it appears on the second and third occasions in s 8(2), does not refer to the Crown, and that for this reason "person" where it appears elsewhere in the section similarly does not refer to the Crown. This argument cannot be accepted. The rule that the same words which occur in different parts of a statute have the same meaning is one which "must yield to the requirements of the context" (Madras Electric Supply Corporation Ltd. v. Boarland [1955] AC 667 , at p 685 ); it is "only a presumption" (Littlewoods Mail Order Stores Ltd. v. Inland Revenue Commissioners [1963] AC 135 , at p 159 ). It is well recognized that a word may be used in two different senses in the same section of the one Act: see the cases cited in Craies on Statute Law, 7th ed. (1971), p. 169. If it is right to say that "person" in s. 8 in some places means "person other than the Crown", that is only because of the circumstance that the Act does not bind the Crown. The fact that an offence is one that may not be committed by the Crown is no reason for concluding that it may not be committed against the Crown. It would be irrational to hold that because the word "person", when used to refer to the offender, does not include the Crown, therefore the word, when used to refer to the victim of the offence, also does not include the Crown. There is no reason why the prohibitions contained in the section should not apply when the person against whom the right to payment is asserted is an agency of the Crown. The section is quite generally expressed and it is impossible to conclude that the legislature intended to create an exception in favour of offences committed against the Crown. The first submission made on behalf of the appellant therefore fails.
The appellant next relies on an argument of quite a different kind, namely that in so far as s. 8 of the Act applies to the facts of the present case, it contravenes the Constitution and is invalid. This argument is based on the concluding words of s. 8(3). Those words, it is said, mean that any writing that sets out the price for making a directory entry is a "prescribed document" even though the writing does not suggest that the entry has been made or ordered or that the price is payable and even though the document is in no way misleading. It is then submitted that the effect of s. 8(2) is to render it unlawful to send from one State to another a document which does no more than inform the recipient of the price that would be payable if the recipient required a directory entry to be made and placed an order for that service to be performed, and that this would be so even if the document were sent at the request of the recipient, and that such a provision places a direct burden on interstate trade, commerce or intercourse of a kind that cannot be regarded as merely regulatory.
It was conceded in the present case that the appellant was caught by s. 8 only by reason of the operation of the provisions of sub-s. (2). The receipt by the officer of the Queensland Government Tourist Bureau of the document that was sent or purported to have been sent by the appellant from New South Wales was deemed to be an assertion within s. 8(1), that is of course assuming that the document was a "prescribed document" within s. 8(2), although the offence is constituted by the receipt of the document, the person liable to penalty is the person by whom it was, or purported to have been, sent. If the document was sent by post from outside the State, to penalize the sender because the document was received in Queensland would be to impose a penalty on the sender for sending the document interstate. The direct operation of the section, in so far as its scope is expanded by s. 8(2), is to place a restraint on the sending of documents of a certain kind, including the sending of documents interstate. It is true that to send a document of the kind in question would not in itself be part of interstate trade, and indeed there is no evidence that the appellant was engaged in interstate trade. It is also true that if the document was delivered personally, rather than sent through the post, there would be no act of interstate commerce or intercourse involved. Nevertheless the sending by post of a communication from New South Wales to Queensland would in itself be an act of interstate commerce or intercourse - see Hospital Provident Fund Pty. Ltd. v. Victoria (1953) 87 CLR 1 , at pp 14-15. A direct restraint of or burden upon the sending of a communication from one State to another could only be lawful if the enactment which imposed the restraint or burden could properly be regarded as doing no more than effecting a permissible regulation of the manner in which commerce or intercourse could be carried on.
The meaning of the proposition, laid down in The Commonwealth v. Bank of NSW (1949) regulation of trade, commerce and intercourse among the States is compatible with its absolute freedom" has since been discussed by this Court in many cases, including Samuels v. Readers' Digest Association Pty. Ltd. (1969) 120 CLR 1 and Mikasa (NSW) Pty. Ltd. v. Festival Stores (1972) 127 CLR 617 where other authorities are mentioned. It is unnecessary for the purposes of the present case to engage in a further discussion of that question, because the real difficulty in the case lies not in determining the governing principles but in construing the statutory provisions in question and applying them to the facts of the case. There can in my opinion be no doubt that the provisions of s. 8(3) in combination are merely regulatory. Those provisions are designed to prevent one person from sending to another a document that suggests that a payment should be made for the making of a directory entry, unless the sender has reason to believe that a note complying with s. 7 has been signed by or on behalf of the recipient, or in effect that the recipient has given a written order for the making of the entry. The provision that the charge or fee should not be recoverable in the absence of a note might fairly be regarded as affording reasonable protection to possible customers against pressure or undue solicitation. Moreover, in view of the provisions of s. 7 it would be deceitful to suggest that the charge or fee should be paid if a note had not been signed. The provisions mentioned might reasonably be regarded as directed at practices in trade or commerce which are deceitful or otherwise undesirable. There is nothing discriminatory about them. Legislation of that kind does no more than provide part of the legal framework within which trade, commerce or intercourse may be carried on, and does not contravene s. 92.
However, when the second limb of s. 8(3) operates in conjunction with sub-ss. (1) and (2) of s. 8 the legislation goes further. The document which may not then be sent, unless the sender has reasonable cause to believe that a note complying with sets out the price for the making of the directory entry..." If these words are given their natural meaning it is enough that the document is one that states the price. The phrase "sets out" may not be altogether appropriate when one item only is to be enumerated, but it carries no suggestion that there should be an assertion or implication that the price set out ought to be paid. I am unable to construe the second limb as though "price" were followed by the words "which is claimed to be payable". The word "price", when applied to property, may mean the amount payable for something already sold, or the amount that the owner of property expects to receive for it if and when he sells it. When, as here, the word is used in relation to a service, it may similarly mean the amount that will be charged if the service is requested and performed. The first limb of s. 8(3) expressly refers to a writing that asserts or implies that payment of a charge or fee should be made, and the second limb would add nothing to the sub-section if it also referred only to a writing that set out the price in such a way as to assert or imply that it should be paid. The context provided by the first limb of s. 8(3) strongly supports the conclusion that the words of the second limb should be given their ordinary meaning. They refer to a document which contains an express statement of the price for making the entry, and therefore includes a document which informs the person to whom it is addressed what amount he would have to pay if he requested that an entry be made and it was made. This would appear to mean that it would be an offence for one person to send to another a note complying with s. 7 for the purpose of having it signed. However, it does not follow that this construction of s. 7 unworkable, since obviously it would be possible for the person ordering the service to prepare the note for himself. It cannot be denied that the construction which I have suggested should be put on the second limb of s. 8(3) is an inconvenient one, but it is the construction to which the words of the section plainly lead.
On this construction, it would be an offence against s. 8 to send from New South Wales to Queensland a document inquiring whether a potential customer wished to have his name included in a directory and informing him of the price payable if he did wish it to be included. It would even be an offence to write in reply to an inquiry from a potential customer, giving him, at his request, information as to the price which would be charged if an entry were to be made. Once this construction is given to the section, it is impossible to uphold it as regulatory. There is no doubt that in matters of regulation the legislature must be allowed a very wide discretion. If it fairly appears that the object of the legislation is the proscription of undesirable and objectionable practices in trade or commerce, it is for the legislature, not for the court, to say what practices should be regarded as reprehensible: cf. Samuels v. Readers' Digest Association Pty. Ltd. (1969) 120 CLR, at p 38 and Greutner v. Everard (1960) 103 CLR 177 , at pp 185-187. No doubt the motive of the legislature in enacting s. 8 was the proscription of undesirable and objectionable practices, but the second limb of s. 8(3) gives the legislation an operation which no one could fairly say was limited to that subject matter. On no possible view can it be said to be undesirable in all circumstances to send a document informing the recipient of the price that would be charged for a service if it were performed. Yet that is what the legislation prevents, even if the recipient has asked for the document and it is in no way misleading. In Mikasa (NSW) Pty. Ltd. v. Festival Stores (1972) 127 CLR, at p 655 , Stephen J. said:
"It is one of the tasks of the legislatures of this country to create the permissible framework within which s. 92 is to operate and of this Court to adjudicate upon whether their enactments go beyond the permissible limits of that framework and entrench upon the freedom which s. 92 preserves; but it is no part of this Court's task to evaluate the merits of the component parts of that framework; its features are open to judicial examination only for the purpose of ensuring that it is a framework which is being erected and not a barrier. The distinction between the two will frequently be elusive but never illusory."
In the present case the second limb of s. 8(3) goes beyond permissible limits; it erects a barrier to interstate commerce and intercourse, and is invalid in its operation on interstate commerce and intercourse. Perhaps I should repeat, because the situation is somewhat unusual, that the section has no direct operation on interstate trade, but it does directly affect interstate commerce and intercourse.
The section must be construed so as to make it valid to the extent to which it is not in excess of power: s. 4 of the Acts Interpretation Act, 1954 (Q.), as amended. The first limb of s. 8(3) is constitutionally unobjectionable, and the final question is whether a conviction of the appellant could be sustained in reliance on the first limb. The document received by the Queensland Government Tourist Bureau does not expressly assert that the payment should be made; the question is whether it implies that the payment should be made. In my opinion the words "a writing that... implies" mean that the implication must be gathered from the words of the writing as a whole - it is not enough that an implication may be drawn from parts of the writing if it is negatived by other parts. The word "invoice" which is used in the document usually suggests that goods have been delivered, and in the present context no doubt implies that services have been performed. Similarly the word "statement" may be taken to imply that the document is a statement of account - that moneys are due. However the document expressly states that the service to which it refers would only be performed if the "payment advice slip" attached were forwarded and it further expressly states that it is not a demand or claim for payment. Although the document may be in a form that is calculated to mislead the unwary, taken as a whole it does not in my opinion imply the contrary of what it expressly states. It was therefore not a "prescribed document" within the first limb of s. 8(3).
For these reasons in my opinion the magistrate was correct in dismissing the charge. I would accordingly allow this appeal.