McGraw-Hinds (Aust) Pty Ltd v Smith
144 CLR 63324 ALR 175
(Judgment by: STEPHEN J)
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:
STEPHEN J
The facts, together with the relevant legislation, sufficiently appear from other judgments.
The Queensland Government Tourist Bureau, an instrumentality of the Queensland Crown, was one of, no doubt, numerous persons from whom the appellant, McGraw-Hinds (Aust.) Pty. Ltd., solicited an order for the making of an entry in a publication, styled the International Telex Directory. Having been prosecuted and, on appeal, convicted for an offence under s. 8 of the Unordered Goods and Services Act, 1973 (Q.), as amended, the appellant, as one of its contentions, argues that , since the Queensland Crown is not, in the absence of express words, bound by the statutes of that State (Acts Interpretation Act, 1954 (Q.), as amended, s. 13), the injunction contained in s. 8(1) against the assertion of a right to payment for directory entries does not include such an assertion when made to the Crown. In effect, it is said that not only do State statutes not bind the Crown but that, at least in the case of this particular statutory provision, the Crown is excluded from those against whom an offence may be committed.
This curious result is said to flow from the draftsman's use of "person" to describe those to whom an assertion, made unlawful by s. 8(1), is directed. This section uses "person" to describe both the maker of the unlawful assertion and its recipient. Since the Crown is not to be bound, and is therefore free to make such assertions, it would, it is said, be to give the one word, "person", different meanings within the one sub-section if it did not include the Crown as maker, but did include it as recipient, of an unlawful assertion. It is also said that in any event "person" in a State statute should not be understood to include the State Crown.
No authority directly supports these propositions, which involve an extension of the general rule, excluding the Crown from the restraints of legislation, which finds no support either in history or in what might be thought to be likely legislative intent. This is especially the case with a modern statute, aimed at undesirable trade practices, and in a community in which the State has come to conduct a large variety of undertakings of a more or less commercial character.
If to afford to the Crown, in common with subjects generally, the protection of s. 8(1) requires that "person" should be given different meanings in different portions of the sub-section, I would not see this as presenting any great difficulty of interpretation. In fact no such requirement is, I think, involved. As Lord Tucker said in Madras Electricity Supply Corporation Ltd. v. Boarland [1955] AC 667 , at p 692 , the "ordinary and natural meaning" of "person" is one which "clearly includes the Crown". In s. 8(1) "person" may throughout bear the wide meaning which it naturally conveys, a meaning expressly extended by s. 36 of the Acts Interpretation Act so as to include bodies corporate, while its restrictive operation, enjoining "a person" from particular conduct, will nevertheless not apply to the Crown because of the specific provisions of s. 13 of the Acts Interpretation Act. This does not mean that "person" is given a shifting meaning: all that occurs is that, insofar as the sub-section is restrictive, effect is given to s. 13, notwithstanding the use of a term in itself apt to include the Crown.
In my view this submission made on the appellant's behalf, and turning upon the meaning of "person", must fail.
For the purposes of the appellant's remaining contention, which invokes s. 92 of the Constitution, it is necessary first to determine the meaning of s. 8(3) of the Act and to do so in the context not only of the remainder of that section but also of so much of the Act as relates generally to the soliciting of directory entries.
The Act is concerned with what are seen to be practices in trade which, if unregulated by legislation, are social evils. Sections 7 and 8 are concerned with one such practice, the soliciting of directory entries, while s. 9, not itself presently relevant, confines the temporal operation of those two sections.
Section 7 makes unenforceable any promise to pay (and, if already paid, permits recovery of) a charge or fee under a contract for the making of such an entry unless a note in statutory form has been signed and a copy supplied. Thus s. 7 operates upon contractual relationships existing between parties to a contract concerning a directory entry: for the purposes of this judgment I ignore, as irrelevant the alternative operation of this section, and of s. 7, an operation which is concerned not with directory entries but, rather, with the "rendering of a prescribed service".
Section 8(1) is, on the other hand, a penal provision and, unlike s. 7, applies whether or not any contract has come into existence between the parties. It creates an offence by making it unlawful, in the absence of a note complying with s. 7, to assert a right to payment for the making of an entry. What might constitute the making of such an assertion was thought to require statutory elucidation, hence sub-ss. (2) and (3) of s. 8. Sub-section (2) deems receipt within Queensland of a "prescribed document" to be an assertion: sub-s. (3) then gives meaning to the term "prescribed document".
The respective functions of sub-ss. (2) and (3) of s. 8 are of importance. Sub-section (2), without more, has no operative effect. All it does is to deem a "prescribed document" to be such an assertion as sub-s. (1) speaks of. But because it attaches no meaning to "prescribed document" it is, on its own, inoperative. Standing alone its deeming effect will never result in anything being deemed an "assertion". Sub-section (3) serves the sole function of giving operative effect to sub-s. (2). It does so by assigning two alternative meanings to "prescribed document". That it should supply two meanings rather than only one, and in that sense operate in two limbs, follows from the form taken by sub-s. (2), which is itself concerned with two distinct situations. The first is that of the receipt of a prescribed document relating to a directory entry, sent by a person who has made that entry. The second is that of the receipt of a prescribed document, again relating to a directory entry but in this case sent by a person who proposes to make that entry. The first concerns an entry already made, the second an entry to be made in the future. Then, when sub-s. (3) supplies two meanings to the phrase "prescribed document", it conforms to this temporal distinction, already established in sub-s. (2). It accordingly describes two types of document. The first is a writing asserting or implying that payment of a charge or fee should be made by the recipient for the making of the directory entry: that applies to the case of an entry proposed to be made. The second is a writing which is not concerned with any assertion or implication that payment of a charge or fee should be made but which, instead, "sets out the price for the making of the directory entry... ". It applies to the case of an entry already made, hence the change of language which occurs, the shift from the making of an assertion or implication that payment of a fee or charge should be made, appropriate words for a service to be rendered in the future, to the setting out of "the price for the making" of an entry, appropriate to describe the price of completed work.
So interpreted, each of these two interdependent sub-sections has, with the aid of the other, a full and appropriate operation, involving no ambiguity, nor any result which is not in harmony with the rest of s. 8. No part of either sub-section strikes at mere innocent offers to treat concerning the publication of a directory entry. They are, throughout, concerned with something in the nature of just such an assertion as sub-s. (1) legislates for.
As I read s. 8, the second limb of sub-s. (3) has no application to the present case, which concerns the proposed making of a directory entry and not one already made.
There remains the first limb. The document received in this case was, I think, one which answers the description of "a writing that asserts or implies that the payment of a charge or fee should be made for the making" of a directory entry: the title which the document bears, "Invoice/Statement", and the accompanying details of how much is to be paid would be conclusive of this were it not for the other words which also appear on the document, "This is not a demand or claim for payment of the amount shown". The document must, of course , be read as a whole since it is the character which the entirety of the writing possesses that will determine whether it answers the statutory description: no single part of it can be decisive one way or another and if some parts are inconsistent with others it will be the impression which, on balance, is conveyed by the document as a whole that will determine its character. Read as a whole the document possesses, in my view, just such a character as is described in the first limb of sub-s. (3). Addressed, as it is, to potential subscribers and not to a court of law, I regard the statement that it is not a "demand or claim" as quite consistent with it containing an assertion or implication that payment should be made. Both "demand" and "claim" convey, in the language of commerce, an abrupt, even a harsh, impression, usually reserved for the recalcitrant debtor. It is perhaps only the governmental or semi-governmental creditor which can afford to describe the first notification which it sends out as a "first and final demand". To deny that the document is either a demand or a claim is not inconsistent with it being a notification that payment should be made.
Accordingly, reading the document as a whole, I would regard it as answering the description in the first limb of s. 8(3). Its receipt was, therefore, the receipt of a "prescribed document" within s. 8(2) and all the ingredients of an offence under s. 8(1) are satisfied.
My earlier reference to the appellant's reliance upon s. 92 of the Constitution has led me to this examination of the operation of s. 8 generally and of sub-s. (3) in particular. I can now return to the nature of the appellant's reliance upon s. 8(3) and depends upon attributing to it an operation going far beyond what the appellant concedes to be valid regulation, namely the prevention of demands for payment for unordered services, and striking, instead, at any "document telling people what the price is, even if it is a perfectly innocent, non-misleading document... " This is how the appellant seeks to invoke the protection of s. 92.
On the view which I take of s. 92 arises. Not only do I regard the second limb of sub-s. (3), the only provision said to be in conflict with s. 92, as irrelevant in the present case: even were it relevant, it will be apparent from what I have already said that I would not regard its operation as extending to the mere quotation of a price for an offered service, which is the meaning the appellant seeks to give it so that the protection of s. 92 may be invoked.
It follows that I would dismiss this appeal.