McGraw-Hinds (Aust) Pty Ltd v Smith

144 CLR 633
24 ALR 175

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(Judgment by: JACOBS J)

Between: McGRAW-HINDS (AUST) PTY LTD
And: SMITH

Court:

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

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Judgment by:
JACOBS J

Section 8 of the Unordered Goods and Services Act, 1973 (Q.), as amended, provides as follows:

"8....

(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."

The appellant was charged that it asserted a right to payment of a charge for the making of a directory entry, not having reasonable cause to believe that a note complying with s. 7 of the Act had been signed by or on behalf of the person against or in relation to whom the said right was asserted. Section 7 (3) and (4) of the Act provides:

"(3)

In order to comply with this section a note referred to in subsection (1) shall, 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.

(4)

In order to comply with this section a note referred to in subsection (1) shall, in relation to a contract or agreement for the rendering of a prescribed service, specify -

(a)

the particulars of the service rendered or proposed to be rendered; and

(b)

the amount of the charge or fee for the service or the basis on which the charge or fee to be charged is or is to be calculated."

There was tendered in evidence a document headed "International Telex Directory" and described in the document as "Invoice/Statement". The document came from the appellant whose address was stated in the document to be Suite 5, 686 New South Head Road, Rose Bay 2029, Sydney, Australia. The document was received in Brisbane by post by the Queensland Government Tourist Bureau. It showed the form of entry proposed in a telex directory, with the telex number of the Queensland Government Tourist Bureau, an answer back code, and the description "Queensland Government Tourist Board (sic), Adelaide (sic) St, Brisbane". On the right hand side of the document below the words Invoice/Statement appeared the following:

"Date 22/8/75

Reference Number ET-375

Annual Subscription $68.50

Previous Balance - - -

* Total $68.50"

A duplicate of this form was also enclosed containing the same information but with the entries opposite the items lastly stated not included. On this duplicate below the heading there were the words "PLEASE RETURN THIS PORTION WITH PAYMENT TO:" and then the name and address of the appellant were printed.

At the bottom of each of the documents which I have described there were two lines of print as follows:

"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."

The asterisk at the commencement of the last statement clearly refers back to the asterisk against the item "Total" in the tabulation. The magistrate who heard the charge concluded:

"I find that by virtue of the provisions of section 8, subsections (2) and (3) and notwithstanding that it contains the statement that it is not a demand or claim for payment of the amount shown, Exhibit 1 does assert a right to payment of a charge for the making of a directory entry."

However, he found that the Queensland Government Tourist Bureau, being an instrumentality of the Crown, could not within the meaning of s. 8 of the Act have asserted against it a right to payment of any charge or fee for the making of a directory entry and he dismissed the charge.

On an order to review, the Supreme Court of Queensland affirmed the conclusion of the magistrate that the document fell within the terms of s. 8 but it concluded, contrary to the magistrate's view, that such a document, asserting a right to payment against the Crown, fell within the terms of the section.

There was raised before the Queensland Supreme Court the question whether the application of s. 8 to the facts of this case offended against s. 92 of the Constitution. The Court held that it did not. It therefore set aside the decision and order of the magistrate and remitted the matter to him. This Court granted special leave to appeal.

The first question is whether s. 8 applies to an assertion of a right to payment against the Crown. I can see no reason at all why it should not. It is true that the Act does not bind the Crown: Acts Interpretation Acts, 1954-1971 (Q.), the Act does not bind the Crown is no reason for concluding that the Crown is not a person in respect of whom an offence under the Act might be committed. It has been submitted that the word "person" should be given the same meaning throughout the section. But to say that the word "person" does not include the Crown in the description of persons who may commit an offence against the section, but does include the Crown as a person against whom an offence against the section may be committed, does not give different meanings to the same word in the same section. In the different context it gives a different content to the word arising from the circumstance that the Act does not bind the Crown. To include within the scope of the Act the assertion of a right to payment against the Crown does not directly or indirectly affect a prerogative of the Crown, and whether the test be one of construction of the Act in the light of that prerogative or whether the test be one of direct application of the law of the prerogative in the absence of a contrary legislative intention, the result is the same (Madras Electric Supply Corporation Ltd. v. Boarland [1955] AC 667 ).

The argument on s. 92 has been so presented that it depends upon the definition of "prescribed document" in sub-s. (3). It has been submitted that the document the subject of these proceedings does no more than set out the price of the directory entry, and that to prohibit a company in New South Wales from making an offer by letter post to a person in Queensland offering to insert a directory entry, with an accompanying statement of the consideration payable, interferes with the freedom of trade commerce and intercourse among the States. On the other hand, for the respondent it is submitted that the document in the present case asserted or implied that the payment of a charge or fee should be made for the making of a directory entry within the words of s. 8(3) and that the prosecution did not depend upon the application to the facts of the case of the concluding clause in s. 8(3).

In my opinion the respondent is correct in this submission. I do not think that a conclusion is governed by the presence in the document of the sentence "THIS IS NOT A DEMAND OR CLAIM FOR PAYMENT OF THE AMOUNT SHOWN". In form and description it is an "Invoice/Statement". A person receiving it could quite likely and reasonably place the documents with other invoices and statements awaiting payment and pay the same without directing his attention to the footnote. It may be that the effect of the footnote is that the writing as a whole does not assert that payment of the charge should be made but certainly, in my opinion, the writing implies by its form that the payment of the charge should be made. An ordinary, but not over-careful, person could take the document as implying that, being an invoice/statement, stating a charge, that charge should be paid. That is a mischief at which, it seems to me, the statutory provision is aimed.

Further, in my opinion, the words in sets out the price for the making of the directory entry" mean the setting out of the price in such a way that it does not appear simply as the consideration which would be payable upon acceptance of the offer and performance of the resulting contract but the setting out of the price in such a way that it appears to be the price presently being charged for a directory entry which has been or will be made. When must be read as "price charged" or "price payable" under an incurred obligation. It does not refer to a mere statement of consideration in an offer. The "Invoice/Statement" stated a price in a form which appeared to suggest that that price was payable, that the price was charged for a directory entry made or to be made. I do not think that this is the less so because there is included in a footnote a statement that no demand or claim for payment is being made. In my opinion, the conclusion of the magistrate that the document fell within the description of "prescribed document" in s. 8(3) is sustainable despite the presence of the footnote.

That being so, it has not been argued that the document, if it can be so regarded, does not fall within the terms of the section. Nor has it been argued that the section applying to a document so regarded imposes a prohibition inconsistent with s. 92. I therefore do not find it necessary to consider whether a prohibition on the mere making of an offer by a person in one State to a person in another to insert a directory entry for a stated consideration would offend against s. 92. I would dismiss the appeal.