McGraw-Hinds (Aust) Pty Ltd v Smith
144 CLR 63324 ALR 175
(Judgment by: AICKIN 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:
AICKIN J
I have had the advantage of reading the reasons for judgment prepared by Mason J. and I am in substantial agreement with them. There is little that I need to add.
In my opinion, it is clear that s. 8(3) of the Unordered Goods and Services Act, 1973 (Q.), as amended, describes two categories of document; first, one which "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", and second, one which "sets out the price for the making of the directory entry or rendering of the prescribed service". I am unable to read the second category as referring to cases where the document appears to state the price charged for a directory entry already made or which will be made. That ground is already covered by the first limb of the sub-section, and there is no reason to suppose that the second category is a mere repetition of the first. The words appear to me to refer to documents which set out the price of a directory entry or service if required or ordered. If there is a difficulty about the second limb it is not what it means, but why it was inserted in the sub-section at all. However, once it is there the sub-section must operate according to its terms.
In my opinion, the appellant's document can only be brought within the term "prescribed document" if it falls within the second limb of sub-s. (3), because, for the reasons given by Mason J., I do not think that the document can be said to "assert or imply" that a payment should be made. It asserts the contrary and leaves no room for the required implication. The document may be misleading in some respects or be capable of misleading a recipient, but that is not the criterion established by the section.
In my opinion, the Constitution does not permit the valid operation of a law which prohibits the sending from one State to another of a document which lists prices for which goods or services are available or quotes a price for goods or services in response to an inquiry. Such acts are at the least "intercourse" between the States; indeed they are commercial intercourse. It is true that s. 8(2) operates upon the receipt in Queensland of the relevant document, but what it does in effect is to give to receipt of the document in Queensland, the deemed quality of an assertion in Queensland by the sender (whether or not in Queensland) of a right to payment. The practical operation, however, is to prevent the despatch of the document from other States to destinations in Queensland. I agree with the reasons given by Mason J. for the conclusion that this provision cannot be regarded as "regulatory" in the relevant sense.
I am unable to accept the argument of the Solicitor-General for the Commonwealth that with the freedom of the totality of interstate trade, with trade as a whole" and that the proper question to ask of this legislation is whether "the law as a whole (is) directed to the freedom of interstate trade as a whole". These propositions seem to me to be in direct conflict with decisions too numerous to mention. They resemble more than anything the views expressed in the Transport Cases of the 1930s which were expressly overruled by the Privy Council in Hughes and Vale Pty. Ltd. v. New South Wales (1954) 93 CLR 1 ; [1955] AC 241 and not since revived by any decision of this Court.
The Acts Interpretation Act, 1954 (Q.), as amended, contains in s. 4 the following provision:
"Every Act shall be read and construed so as not to exceed the legislative power of the State, to the intent that, where any enactment or provision thereof, but for this provision, would be construed as being in excess of that power, it shall nevertheless be a valid enactment or, as the case may be, provision to the extent to which it is not in excess of that power."
In the result, therefore, s. 8 must be "read down" so as not to apply to relevant documents dispatched from another State to destinations in Queensland.
I am, therefore, of opinion that the appeal should be allowed and the order of the Full Court of the Supreme Court of Queensland set aside.