case_text: Mr Wooding was awarded a certificate from the United States Military Assistance Command, Vietnam in respect of each of his two visits there, attesting to his contribution to the morale and welfare of the military forces in Vietnam (T48/49) [sic].' 4 Further facts were subsequently agreed of which I need refer to only one. It was: "1. Mr Wooding was issued with General Briefing Orders upon his arrival in Vietnam for the second Concert Party. A copy of those orders is attached as Annexure E." The annexure was entitled "Adelaide Concert Party 17 Feb 10 Mar 70" and was prepared by a military officer. It dealt with such matters as travel arrangements, performances, accommodation and allowances (seemingly paid by the Commonwealth), identification ("You will be supplied with a Military Identity Card by your escort officer"), clothing, security etc. 5 Of the material referred to in, or annexed to, the Statement of Agreed Facts, I need only mention the following. In para 9 the references to the Concert Parties being "arranged" and "sponsored" by AFOF are references to newspaper articles where these terms happen to be used. In particular where the word "sponsored" is used it would seem that the journalist who wrote the piece was referring to the fact (also reflected in para 9) that the Concert Party came from South Australia and their trip had been funded by public donation. In Annexure B (referred to in that same paragraph) a member of the Committee of AFOF, SA Division, acknowledged "the great help we have received in arranging the Concert Party to tour Vietnam". 6 As to the history and background referred to in para 12, it is only necessary to refer to the following part of the letter of Major General W J Crews of 24 April 2006: "The RSL Australian Forces Overseas Fund is an approved and accredited philanthropic organisation to operate within the Australian Defence Force. The RSL began providing Christmas parcels to members of the Australian Army serving in Vietnam in 1963. This early RSL fund was amalgamated with the (Sydney) Lord Mayor's Comfort Fund, and hence the Australian Forces Overseas Fund (AFOF) was officially established on 26 January 1966. It was tasked with coordinating a program for the provision of amenities and concert parties for troops serving in the South East Asia Region, and while initially established in NSW, it soon became a National organisation on the establishment of the RSL National Council. In those earliest years, each RSL State Branch appears to have a similarly worded AFOF Constitution (NSW dated Feb 1966 and 28 May 1968, TAS dated 18 June 1968, WA dated 28 Feb 1968), with no specific mention of FACE, except that the Objects state that 'The objects shall be the provision of comforts, equipment and entertainment for Australian Servicemen and women serving overseas or in such other areas as may be determined from time to time'. To assist in the management and coordination of the concert parties, the Minister of Defence has established The Forces Advisory Committee on Entertainment (FACE) in 1966 as a joint venture involving Defence, the RSL and the Australian Broadcasting Commission. FACE was to act as a planning Committee to organise entertainment for Australian forces in Vietnam, thus removing any direct Ministerial involvement with the music industry. It is known from our records that the Concert Parties were originally arranged by the RSL State Branches in rotation, under the guidance of the entertainment managers from within the Australian Broadcasting Commission (ABC). It is of interest that the RSL National Headquarters holds a brief signed by Major General D B Dunstan, Commander Australian Forces Vietnam, dated 23 November 1971, titled 'Canteens and Amenities in Vietnam'. This sets out arrangements for all canteen matters and the provision of amenities. It notes that the provision of amenities were financed from four sources as follows: a. ASCO Rebate to Vietnam Command Amenities Fund (VCAF) all movable amenities; tennis courts at Vung Tau; swimming pool at Phan Rang; part of cost of concert parties from Australia. b. Australian Forces Overseas Fund (AFOF) Part of cost of concert parties; two recreation huts at Nui Dat; AATV Club, Danang. c. RSL (Sportsmen's Appeal) Harold Holt Pool, Vung Tau; most of cost of Kevin Wheatley Stadium, Vung Tau. d. Public Funds Peter Badcoe Club, Vung Tau (contained billiard and reading rooms as amenities but otherwise housed ASCO facilities and living quarters for OC Amenities Unit); Pearson Centre, Nui Dat (contained Amenities store and tape centre but otherwise housed ASCO facilities, education centre and film Library); part of cost of concert parties from Australia. Noting the above, it is quite clear that the earliest concert parties were arranged for or on behalf of AFOF, and that they were managed either directly by FACE or another agency on its behalf. It is also clear that the parties were an official part of the Army's philanthropic program. Unfortunately, the records held in the RSL National headquarters do not provide any listings of which entertainers were accredited to each concert party and we may need to rely on State Branch records for this." 7 The second letter referred to in para 12 warrants reference if only because it may have been the source of some confusion in this matter. "As you are aware, Entertainers in Vietnam who were accredited members of Australian Forces Overseas Fund (AFOF) are considered to be members of a philanthropic organisation and are covered by the instrument signed by the Honourable Ben Humphries, Minister of State for Veterans' Affairs and are eligible for Veterans' Entitlements Act 1986 (VEA) coverage. These personnel completed the accreditation process administered by the Army. As part of this process, they were allocated a service number, have a service record and were issued with approved identification cards. These people were permanent representatives accredited to accompany an Australian Defence Force (ADF) sponsor unit on a full time basis. Unaccredited entertainers may have been in Vietnam at the behest of the Defence Forces and may have had assisted with logistical support for Entertainers in Vietnam (Travel, etc). However, following a review by the Department of Defence, they confirmed that they were not 'attached' to the Forces and were not under the command of the ADF. Accordingly, these entertainers do not have VEA coverage. A number of these entertainers state that the tours were financed by the AFOF and state that their pay was handed to them by the Army acting as AFOF agents. However, this is does not prove that they were employees of the Army. Many of these entertainers have Certificates of Appreciation issued by AFOF. However, this does not indicate that they were members of an approved philanthropic organisation. As we have previously advised you if Mr Wooding or Mr Milburn-Lloyd are able to provide evidence that they completed the AFOF accreditation process, such as being allocated a service number or service record, or were issued with an approved identification card, then they may have a case for being considered an accredited member of a philanthropic organisation." THE TRIBUNAL'S DECISION 8 It is sufficient for present purposes if I set out in full the following paragraphs of the Tribunal's reasons: "8. I was referred to a decision of Edmonds J in Iversen v Repatriation Commission [2006] FCA 942. This decision answered an appeal from a decision of Senior Member Kelly in Re Iversen & Repatriation Commission [2006] AATA 280. In her decision Senior Member Kelly rejected an argument to the effect that Mr Iversen (who also provided entertainment for troops serving in Vietnam under similar circumstances to Mr Wooding) should be treated as a full-time member of the Defence Force serving in an operational area. 9. Senior Member Kelly noted that Mr Iversen rendered courageous and valuable service in performing for the troops in Vietnam; his service was recognised through a listing in the nominal roll of Vietnam veterans and through the awarding of a Logistics Support Medal; he was a member of a group of civilian entertainers who were, in part sponsored by the AFOF and that the AFOF is an approved philanthropic organisation. She nevertheless decided that Mr Iverson was not a representative of AFOF and consequently was not covered by the Ministerial Determination. 10. On appeal Justice Edmonds rejected a submission that Mr Iversen had been a representative of AFOF: '15. The applicant, in his written submissions, contended that "representatives" as it appears in the Determination should be given a meaning that protects those who were in fact in a war zone and thereby exposed to the risks and circumstances associated with that war. It was submitted that such "factual" emphasis on the meaning of representative would accord with the beneficial nature of the Act and the Determination made under it. But such a construction goes well beyond the natural and ordinary meaning of the word "representative" as exemplified in the dictionary meanings of the word upon which the applicant himself relies. 16. In his oral submissions, the applicant articulated what is substantively, albeit not in the same terms, a similar argument, namely that if the applicant's presence in the war zone is only explicable by reference to his participation in a concert tour co-sponsored by the AFOF and the Australian Army, then he can be a representative of the former. That might be so, but such co-sponsorship will not of itself make the applicant a representative of the co-sponsor. Indeed, as the respondent submits, even if the applicant had been an "AFOF sponsored" entertainer rather than an "Army sponsored" entertainer, being sponsored by an organisation cannot be equated with being a representative of that organisation.' 11. I have carefully considered the statement of agreed facts. I have also considered a VRB decision of Milburn-Lloyd dated 30 August 2006. I have reached the view that the only way Mr Wooding could be entitled to benefits under the VE Act would be if his service in Vietnam could be considered to have been performed 'as a representative' of the AFOF. 12. Point 9 of the statement of agreed facts indicates that the concert parties were 'arranged and sponsored' by the AFOF. However, as mentioned by Justice Edmond in Iversen , such sponsorship 'cannot be equated with being a representative of that organisation'. In my view, the term 'representative' connotes an entitlement to act on behalf of another. Point 14 of the statement of agreed facts indicates that Mr Wooding does not recall being a 'member of AFOF'. On the information before me, I have not been satisfied that Mr Wooding was a representative of that organisation. In these circumstances, Mr Wooding does not fall within the ambit of the 1987 Ministerial Direction. I have not been satisfied that Mr Wooding's service, although courageous and valuable, satisfies the basic eligibility conditions for payment of a Disability Pension under the VE Act. The decision under review is affirmed." THE APPLICATION 9 There was, for some time, controversy between the parties as to whether a question of law, as opposed to a mixed question of law and fact was raised in this application: cf s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth); Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439. As I now understand it, the parties have agreed the question of law and that is whether or not it was open to the Tribunal to adopt a constrained interpretation of the word "representative" given the context of its use in the Ministerial Determination. 10 To put the applicant's submission shortly, it is that, having regard to the context and purpose of the Determination, the word "representative" comprehends a person who provides the relevant service under the aegis of, as an emissary of, or in association with, one of the defined philanthropic organisations. Iversen v Repatriation Commission (2006) 91 ALD 114, it is said, is distinguishable on its facts. 11 The respondent's case is that the view taken by the Tribunal, that "representative" connotes an entitlement to act on behalf of another, was one that was open to it. It could not be an error of law for it to have taken that view. Iversen , it is said, is presently relevant and highly persuasive. The respondent also emphasised the limitations of the Statement of Agreed Facts. There was simply no evidence on some number of matters. 12 There was some controversy as well as to whether it could properly be said that the Tribunal actually made findings of fact at all. I am satisfied that on a fair reading of the member's reasons, the agreed facts were the facts found. CONSIDERATION 13 The starting point is, necessarily, with the principles of statutory interpretation. Of these, it was observed in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408: "It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed in Isherwood v Butler Pollnow Pty Ltd , if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent ": emphasis added. 14 The clear object of the Ministerial Determination was to extend to designated classes of person who were not members of the Defence Force the same entitlements they would have had as an actual member of the Force who was rendering continuous full-time service, for the purposes of the Veterans' Entitlement Act, provided (for present purposes) three requirements were met. These were (i) the person provided welfare services to the Defence Force; (ii) in a prescribed operational area (here Vietnam); and (iii) as a representative of any one of six "approved philanthropic organisation[s]". Those organisations were: (a) the Australian Red Cross Society; (b) the campaigners for Christ Everyman's Welfare Service; (c) the Salvation Army; (d) the Young Women's Christian Association of Australia; and (e) the Young Men's Christian Association of Australia; and (f) the Australian Forces Overseas Fund. 15 While all of these conditions are required to be satisfied, it is, in my view, relatively clear that the first and second of them differ in their significance and burden from the third. They provide the reason why, as a matter of policy, a person who has satisfied those conditions should be considered as having a possibly legitimate claim to be put on the same footing as members of the Defence Force rendering continuous full-time service, for the purposes of the Veterans' Entitlement Act. 16 The third condition (in the "as representative" requirement) would appear to be a channelling or control device regulating who actually will be equated with a member of the Defence Force. The relevant organisation is required to be "approved" and the presupposition is that in some manner it provides or procures the provision of welfare services to the Defence Force. The question posed by the condition is what is the nature of the connection that must exist between the actual service provider and the approved organisation before the service provider will have his or her service recognised for the purpose of the Act. 17 While the third condition controls access to the benefits of the Act, there is nothing in the beneficial policy, that appears to animate the Ministerial Determination, which would warrant a restrictive interpretation of the required connection. For reasons I give below, I consider that both the Veterans Review Board and the Tribunal have given the Determination such an interpretation, in their respective imposition of an "agency" like role on the service provider. This is best illustrated in observations of the Board in reaching its decision. 18 Having referred to a particular dictionary definition the Board said (at [15]): "In this dictionary definition there appears to the Board to be a concept of a person having authority to act 'for' or 'on behalf of' another involving the notion of agency. The evidence before the Board is that the SACP [South Australia Concert Party] tours of Vietnam were organised, funded and sponsored by the AFOF. This included obtaining the unpaid services of Mr Wooding and others as entertainers. Although the SACP travelled and operated under the AFOF banner, there is no evidence of direct authority or any inferential manifestation of consent by the AFOF that Mr Wooding or any other member of the SACP should act on behalf of the Fund." 19 In my view so to treat the representational requirement is to subvert what appears to be the purpose of the Determination itself. That purpose, in my view, is to provide potential benefits to persons who relevantly provide welfare services provided those services are provided or procured by one of the approved organisations. 20 Given that the object of the Determination is to identify the classes of persons who will benefit from the Determination, it is understandable that, in form, its focus is on the relationship of the relevant person to the approved philanthropic organisation (i.e. "who, as representatives of ..."). This said, the apparent policy and purpose of the Determination is manifest in the relationship of the philanthropic organisation to the person providing the service and, especially, to its role in the provision of that service.


case_outcome: applied

case_title: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384


case_outcome: cited

case_text: respect of Bowesco, it should be noted that on 20 April 2006 freezing orders were made in respect of its assets pursuant to s 1323 of the Act Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433. The orders were varied on 30 June 2006. They were expressed so as to permit the Bowesco receivers to exercise their powers pursuant to their appointment by Sunway-Metcorp, including their powers under s 420 of the Act. On 11 August 2006 Ms Karen Carey-Hazell, a director of both Lanepoint and Bowesco, filed a motion in each of the proceedings seeking leave '... to take responsibility on behalf of the respondent in these proceedings'. Argument on her motion was heard on 16 August 2006 and reserved until today. Section 459A lists the categories of persons who may apply to the Court for a company to be wound up in insolvency. They include the company itself, a creditor, a director and ASIC. An application by a director or by ASIC may only be made with the leave of the Court (s 459P(2)). The Court may give leave if satisfied that there is a prima facie case that the company is insolvent but not otherwise (s 459P(3)). Except as permitted by s 459P a person cannot apply for a company to be wound up in insolvency (s 459P(5)).


case_text: appointment of a receiver under a charge over its property does not end the life of the company to which the receiver has been appointed. It has been said that the company in such a case is 'anaesthetised' but may be restored to 'full conscious activity when the anaesthetic is no longer applied after the debts owing to the debenture holders have been paid' George Barker (Transport) Ltd v Eynon [1973] 3 All ER 374 at 380 (Mocatta J). Moreover, while receivers may effectively control a company's dealings with the outside world, receivership does not change the company's internal structure Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd [1969] 2 NSW 782 (Street J). Street J there said (at 790): structure continues to exist notwithstanding that the directors no longer have authority to exercise their ordinary business management functions. A valid receivership and management will ordinarily supersede, but not destroy, the company's own organs through which it conducts its affairs. The capacity of those organs to function bears a direct inverse relationship to the validity and scope of the receivership and management.'


case_title: Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd [1969] 2 NSW 782


case_title: Re Geneva Finance Ltd [1992] 7 WAR 496

case_text: Re Geneva Finance Ltd [1992] 7 WAR 496, Owen J accepted that, upon the appointment of a receiver under a charge, there will be limited residual duties that a company's directors can carry out (at 510): are residual duties which the directors must carry out. I do not doubt that they are limited in nature.' Importantly for the present case, his Honour also said (at 510): is difficult to see why a director should be prevented from taking a step which he believes to be in the interests of the company unless that step would, in the reasonable opinion of the receiver, prejudice the proper administration of the receivership.' The practical concern must be whether the exercise by a director of any power in the name of the company would interfere with the legitimate exercise by the receivers of their powers. As Owen J said in Re Geneva Finance (at 511): real question is whether the directors, wishing to exercise a power which they would otherwise have, can do so without prejudicing the legitimate interests of the receiver and the secured creditor in the realisation of the asset.' In the present case the receivers do not oppose the ASIC applications. There is no actual or apparent conflict between that non-opposition and Ms Carey-Hazell's proposed exercise, in the name of the companies, of their rights to oppose the winding up applications. The existence of the power, conferred upon the receivers by s 420 of the Act, to defend the winding up applications, does not give rise to any such conflict. Nor does the assistance provided to ASIC by the receivers in the form of the affidavits sworn by Messrs Fraser and McMaster. Their cooperation with ASIC does not of itself involve any exercise of their powers which would be compromised by Ms Carey-Hazell's defence of the winding up applications in the names of the companies. Absent Ms Carey-Hazell's participation as proposed, there is no contradictor to the winding up application. She asserts that there is a case to be made against the orders sought by ASIC. Quite apart from the question of her entitlement to bring that contention before the Court, it is in the interests of justice that as a director of the company she has an opportunity to make that case if she does so in accordance with the duties imposed upon her by the Act and not, for example, for some collateral purpose. In so doing, it should not be assumed that Ms Carey-Hazell will have any a priori entitlement to resort to the assets of the company for the purpose of funding legal representation in the winding up proceedings. I will, however, allow liberty to apply at the termination of the proceedings in that respect. In my opinion the matter need be taken no further than this. There is no need for an application for leave under s 237 of the Act. Ms Carey-Hazell is at liberty, without the leave of the Court, to defend the winding up application in the name of each of the companies subject to the restrictions I have already mentioned in relation to access to the assets of the companies For the preceding reasons I will permit Ms Carey-Hazell to continue to instruct legal representatives for the purpose of defending the applications in the name of the respondent companies. The costs of the motion in each case will be reserved. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 30 August 2006 Counsel for the Applicant: Mr CM Slater Solicitor for the Applicant: Australian Securities and Investments Commission Counsel for the Respondents: Mr NDC Dillon Solicitor for the Respondents: Clavey Legal Date of Hearing: 16 August 2006 Date of Judgment: 30 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1163.html


case_text: may be a question whether the power conferred upon a receiver can displace all of a director's powers and functions for the duration of the receivership. Given that a receiver's powers must be exercised for the purposes of the appointment and the enforcement of the security under which appointment is made, it may be doubtful whether such a situation could arise even in theory. In Deangrove Pty Ltd v Commonwealth Bank of Australia [2001] FCA 173 ; (2001) 19 ACLC 595, Sackville J said (at 600): general principle, at least so far as the usual form of debenture or charge is concerned, is that the appointment of receivers does not entirely displace the powers and authority of the directors.'


case_text: Although the phrase "carries on a business" appears in a number of provisions of the TPA including s 2B, it is not defined in the Act. However it has received consideration by Courts to the extent that a number of principles have emerged which are of relevance in this case. They are as follows: 1. "Business" in the context of s 2B is normally a "wide and general" word: Gibbs CJ in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23 ; (1982) 150 CLR 169 at 184, McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power 219 CLR at 116. Its meaning in the TPA is widened by s 4(1), since "business" includes "a business not carried on for profit": NT Power 219 CLR at 116. 2. The phrase "carries on a business" should be interpreted in light of the purpose of Parliament in introducing s 2B and related legislation, which was to ensure that "with state and territory application legislation, the prohibitions against anti-competitive conduct can be applied to all businesses in Australia." (Australia, House of Representatives, Parliamentary Debates (Hansard) 30 June 1995, p 2794). 3. Subject to a statutory qualification as to not for profit businesses, in the context of the TPA, "carrying on a business" is intended to refer to activities undertaken in a commercial enterprise or as a going concern: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 303, Corrections Corporation of Australia Pty Ltd v Commonwealth [2000] FCA 1280 ; (2000) 104 FCR 448 at 451. 4. An act of government, whether directly or through an authority, which is merely the carrying out of the functions of government in the performance of its statutory duty, is unlikely to be characterised as "carrying on a business": Village Building Company Limited v Canberra International Airport Pty Limited (No 2) [2004] FCA 133 at [90] . So, for example, the issue of certificates by a municipal council with respect to a real property pursuant to the Environmental Planning and Assessment Act 1979 (NSW) was not "carrying on a business" ( Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579), nor was operating a detention centre ( Corrections Corporation of Australia [2000] FCA 1280 ; 104 FCR 448), nor were the activities of the New South Wales Department of Agriculture in acquiring cattle in endeavours to eradicate Bovine Johne's Disease, providing compensation to farmers for cattle slaughter, and reselling the carcases to recoup some of the funds: State of New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54 ; (2003) 57 NSWLR 1. However, activities for reward which are those which could be performed by any citizen or private trader potentially constitutes "carrying on a business". Examples of this are Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 where the Ambulance Service of New South Wales supplied, for reward, ambulance services at sporting events and first aid training, and JS McMillan v Commonwealth (1997) 77 FCR 337 where the Commonwealth in its guise as AGPS provided general printing services, dispatch and distribution services, graphic design services and editorial services. 5. Mere repetitiveness is not sufficient to constitute carrying on of a business; further, although system and regularity are involved in the carrying on of the business it does not necessarily follow that one who has transactions of the same kind systematically or regularly is carrying on a business in those transactions: JS McMillan 77 FCR at 354, GEC Marconi Systems 128 FCR at 303, Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 at [53] .


case_outcome: considered

case_text: Although the term "competitor" has received no judicial attention that I can identify, the word "competition" has, in the context of Pt IV TPA. So in Adamson v West Perth Football Club (1979) 27 ALR 475 at 502, Northrop J said: "When used in s 45 of the Act, the word is used in a commercial or economic sense. Thus in order to have competition in a market, there must be substitution between one product and another and between one source of supply and another in response to changing prices or the quality of the product being supplied." 139 I have already expressed the view that the respondent is not "carrying on a business" within the meaning of s 2B TPA in relation to its supply of data in response to individual searches, which forms the primary activity of the respondent in the Retail Market. If the respondent is not carrying on a business, the question immediately arises whether the respondent is capable of being a "competitor" of the applicant in the Retail Market for the purposes of s 46(1)(a), in respect of this particular conduct of the respondent. In my opinion, the obvious answer in this case is that the respondent is not the respondent is fulfilling a statutory function in supplying that data, and is subject to legislative control in respect of prices charged and product quality. There are, however, some elements of "competition" as between the applicant and the respondent as submitted by the applicant, particularly in relation to issues of product substitution. In the event that I am in error in relation to whether the respondent is carrying on a business in relation to its supply of data, then as I have done elsewhere in this judgment I propose to continue to consider whether, within the meaning of s 46(1)(a), the applicant is a "competitor" of the respondent in the Retail Market. 140 Further, I have also said that the evidence before me does not support a finding that the respondent has a substantial degree of power in the Retail Market. Irrespective whether the respondent has any power in the Retail Market flowing from its power in the Wholesale Market as a monopoly supplier, this does not equate to the respondent being a "competitor" of the applicant in the Retail Market. 141 To date the activities of the applicant and the respondent have been at different points on an economic continuum, with different product offerings, different levels of sophistication of products, different client bases, and apparently minimal overlap. The value-added products of the applicant appear to have little in common with such products of the respondent as SmartMap, or the raw data supplied in response to statutory searches. The applicant and the respondent have not been "rivals" in the Retail Market in the sense of being entities who strive to outdo each other (see discussion by Professor Stephen Corones Competition Law in Australia (4th ed, Lawbook Co, 2007) at 5. Nor, as the respondent submitted with reference to statements of Mr Catelan and the applicant in its Information Memorandum, does the applicant perceive the respondent as its competitor in the Retail Market. 142 Nonetheless there is commonality in the activities of the applicant and the respondent in the Retail Market in that both supply data sourced from the respondent, and it appears that the Excluded Data at present can be obtained by customers of the applicant from either the applicant or the respondent. In that sense there is presently the potential of substitution between one source of supply and another of that data as contemplated in Adamson . Although the competition appears in the present environment to be minimal, leaving aside for the moment issues arising out of s 2B TPA, I am prepared to assume that the applicant is a "competitor" of the respondent in the Retail Market. Can the purpose of eliminating or substantially damaging the applicant as a competitor in the Retail Market be inferred? 143 However, irrespective whether applicant and the respondent are competitors in the Retail Market, in my view the alleged purpose of the respondent as claimed by the applicant is neither demonstrated by the evidence, nor can it be inferred from the respondent's conduct. In fact, the evidence demonstrates unambiguously that the purpose claimed by the respondent in engaging in the conduct the subject of complaint was in truth its purpose. This is so on any view of the meaning of the word "purpose", and regardless whether the interpretation submitted by the applicant or the respondent as to the meaning of "purpose" in s 46(1) is accepted. The object in view or sought to be achieved by the conduct of the respondent was clearly to ensure that Collected Data could not be used by anyone for the purpose of direct marketing to consumers. It was for this reason, and this reason alone, that the respondent took advantage of its substantial degree of market power in the Wholesale Market. This purpose is not a proscribed purpose within the meaning of s 46(1)(a) TPA. The respondent did not engage in the relevant conduct for the purpose of eliminating or substantially damaging the applicant as a competitor in the Retail Market. 144 I form this view for the following reasons, taking into consideration relevant submissions of the applicant in relation to this claim.


case_text: Section 46 is found in Pt IV TPA. However the extended application only operates if the Crown in right of the relevant State or Territory is carrying on a business, either directly or by an authority of the State of Territory. As is clear from such cases as NT Power 219 CLR (particularly at 116) and Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512 (particularly at 526-527), this condition is strictly applied. 158 Section 46(1)(c) must be read in the context of the policy objective sought to be achieved by the TPA. As pointed out by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway 205 CLR at 13). "Section 46 aims to promote competition, not the private interests of particular persons or corporations." (cf Boral 215 CLR 373 per Gleeson CJ and Callinan J at 411, Gaudron, Gummow and Hayne JJ at 429, McHugh J at 458-459; Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Baxter Healthcare 237 ALR at 535, Rural Press [2002] FCAFC 213 at [139] , Universal Music 131 FCR at 585, and the discussion of Professor Corones at pp 34-37). It follows that the conduct of a person which the corporation or other entity with the substantial degree of market power seeks to affect must be conduct in the nature of competition in a market. Like s 46(1)(a), the breadth of application of s 46(1)(c) is such that it does not need to be the market in which the respondent is a participant (cf Merkel J in Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 at 643, Toohey J in Ross Payne & Co v Western Australian Lamb Marketing Board unreported, Federal Court of Australia, 3 August 1983, Wilcox J in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 at 555). Accordingly, it is within the scope of s 46(1)(c) that a corporation or entity with a substantial degree of market power in the Wholesale Market could breach s 46(1)(c) because, inter alia , its purpose was to deter or prevent the a person from engaging in competitive conduct in the Retail Market. 160 First, while I accept that, as a result of the respondent's proposal, the applicant will not be able to continue to provide services to its customers which include the Excluded Data, and that this may impact upon the business of the applicant as claimed in para 9(b) of the amended statement of claim, the applicant must demonstrate more than this effect to show that the purpose of the respondent's conduct was in breach of s 46(1)(c). As pointed out by Lee J in NT Power Generation v Power & Water Authority [2002] FCAFC 302 at [17] , although the effect of conduct may, in some circumstances, explain or reveal the purpose of the conduct, the inference may be negated by other material relevant to the issue of purpose (cf Photo-Continental Pty Ltd v Sony (Australia) Pty Ltd (1995) ATPR 41-372 at 40,122-40,123). It is the purposeful conduct of the contravening corporation that attracts the operation of s 46(1)(c): Baxter Healthcare 237 ALR at 519.


case_title: Australian Competition and Consumer Commission v Boral Ltd (1999) 166 ALR 410

case_text: However as was pointed by the High Court in Queensland Wire [1989] HCA 6 ; 167 CLR 177, and subsequently reiterated by the majority of the High Court in Melway 205 CLR at 17, "take advantage of" does not mean anything materially different from "use" and does not require conduct which is predatory or morally blameworthy: per Mason CJ and Wilson J at 191, Deane J at 194, Dawson J at 198, Toohey J at 212-214 (cf also the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 at [137] ). In terms of s 46 it does, however, entail an analysis of actions in the context of a competitive environment, and identification of a determinative approach in the entity with the substantial market power to achieve an outcome proscribed by s 46. So, as Heerey J said in ACCC v Boral Ltd (1999) 166 ALR 410 (at 440), subsequently approved by the majority of the High Court in Boral Besser [2003] HCA 5 ; 215 CLR 374 (at 434): "If the impugned conduct has a business rationale, that is a factor pointing against any finding that conduct constitutes a taking advantage of market power. If a firm with no substantial degree of market power would engage in certain conduct as a matter of commercial judgment, it would ordinarily follow that a firm with market power which engages in the same conduct is not taking advantage of its power." 113 So, to paraphrase Heerey J in ACCC v Boral 166 ALR 410 as adopted by the majority of the High Court in Boral Besser [2003] HCA 5 ; 215 CLR 374, was the conduct of the respondent taking advantage of its market power in withdrawing the supply of the Excluded Data, such that an entity with no substantial degree of market power in the Wholesale Market would not, as a matter of commercial judgment, engage in that conduct?


case_text: However, notwithstanding the submissions of the applicant, I am not persuaded that the purpose of the respondent was to deter or prevent the applicant from engaging in conduct which was competitive with the conduct of the respondent when it discharged its statutory function of providing names and addresses in response to statutory searches in the Retail Market. Similarly, it cannot be said that the proposal of the respondent had the purpose of deterring or preventing the applicant from engaging in competitive conduct in the Retail Market to the benefit of other licensees the proposal to exclude the Excluded Data from the data supplied by the respondent was identical in respect of all licensees. So, for example, in my view the purpose of the respondent in this case was not to gain a competitive advantage in the Retail Market over the applicant in relation to the Excluded Data or to deter the applicant from discounting prices of its product to competitors of the respondent (cf Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [2003] FCAFC 149 ; (2003) 129 FCR 339 at 355-356. I form this view for the following reasons.


case_text: However, with respect there is little material presented before me upon which I can find that the respondent does have a substantial degree of market power in the Retail Market. In particular, I note the following: • In the Joint Expert Statement of Areas of Agreement and Disagreement, the expert witnesses for both parties agreed that, because of the respondent's substantial degree of market power in the Wholesale Market, "it is able to substantially influence patterns of competition in the Retail Market". The respondent points out however, that the experts do not say that the respondent has a "substantial degree of market power" in the Retail Market. This is in contrast with their agreement as the respondent's substantial degree of power in the Wholesale Market. Indeed Mr Williams gave evidence at the hearing that he was not an expert in the Retail Market (TS p 88 ll 40-42) and that he had not put his mind to whether the applicant had a substantial degree of power in the Retail Market (TS p 78 ll 3-4). • Conduct in a wholesale market which in turn affects levels of competition in a "downstream" retail market is a relatively common phenomenon, and issues relevant to this phenomenon have been considered in this court, for example, in the context of claims of alleged anti-competitive conduct in Pt XIB TPA ( Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493) , in relation to claims for access to services under Pt IIIA TPA ( Sydney Airport Corporation Limited v Australian Competition Tribunal [2006] FCAFC 146) , and in the context of acquisitions claimed to result in a substantial lessening of competition ( Australian Gas Light Company (ACN 052 167 405) v Australian Competition & Consumer Commission (No 3) [2003] FCA 1525). However, the ability of an entity to "substantially influence patterns of competition" in a retail market because of its market power in a wholesale market, as agreed by the experts, is not, in my view, necessarily tantamount to "a substantial degree of market power" in the Retail Market or even, as submitted by the respondent, "market power" within the meaning of the s 46 TPA. • As I have already noted, the activities of the applicant and the respondent in the Retail Market are quite different, supplying different services to different customers. It is not in contention before me that there is "a" Retail Market in which both the applicant and the respondent are supplying information. However, whereas it is clear that the respondent supplies base data to members of the general public who pay the prescribed statutory fee and makes available its SmartMap product, it is also clear that the applicant offers a much greater range of sophisticated products to a different customer base, namely parties who are prepared to subscribe to the applicant's services, as distinct from any members of the public who seek information over the counter. It is also apparent from the evidence before me that the applicant does not view the respondent as a significant competitor in its area of the Retail Market (RP Data Information Memorandum Document 1 pp 14, 15; evidence of Mr Catelan TS p 57 ll 37-42). In this respect, the "market power" of the respondent in the Retail Market, viewed in light of its activities in this broad Retail Market, is not obvious. Even if the respondent had market power in its area of the Retail Market in respect of its supply of raw data to end-users, it has not been demonstrated that such market power extends throughout the entire Retail Market as was the subject of consideration by the Full Court in Singapore Airlines Limited v Tabropane Tours WA Pty Ltd (1991) 33 FCR 158. • I note the submission of Mr Hinson SC for the respondent that the evidence fell short of establishing that the respondent had any market power let along any substantial degree of market power in the Retail Market. Further, I note that, notwithstanding para 7 of the amended statement of claim, Mr Hinson SC also submitted and this was not contested by Mr Jackson QC at the hearing that the respondent did not understand the applicant's case to assert that the respondent had a substantial degree of power in the Retail Market (note TS p 370 ll 12-17). • I also note that: o despite a number of oral submissions in his opening statement (TS p 2 ll 1-14, p 7 ll 19-23), Mr Jackson QC for the applicant did not subsequently press the claim that the respondent had a substantial degree of power in the Retail Market o Mr Jackson QC, in his written submissions concerning the issue of power in the Retail Market, confines the position of the applicant to the agreed position of the experts, and does not specifically submit that the respondent has a substantial degree of power in the Retail Market. • I have carefully reviewed the transcript and after submissions in the opening statement, I can identify no subsequent submissions made on behalf of the applicant that the respondent had a substantial degree of power in the Retail Market. • As pointed out in Queensland Wire , the existence of market power is identifiable by reference to factors including pricing, barriers to entry, market share. However in this case I note, for example, that: a. no evidence is lead as to the impact on prices in the Retail Market of conduct of the respondent b. although the entry of retailers into the market appears dependent upon their ability to obtain a licence from the respondent, there is no evidence before me as the extent to which this is a barrier to market entry by retailers c. no evidence is lead as to market share (if any) in the Retail Market held by the respondent.


case_text: A number of submissions were made the respondent in relation to these claims. In particular: 1. The respondent's proposal to withdraw the Excluded Data from the Collected Data supplied to licensees does not prevent real estate agents from engaging in direct marketing. The proposal merely prevents persons, including real estate agents, from using data collected by the Department being used for purposes other than those contemplated by ss 77(3) and (3A) VL Act . There is no deterrence on real estate agents and others direct marketing by, for example, newsletter drops, newsletters and so on. 2. Evidence of witnesses of the respondent was that the purpose of the respondent was to try and stop direct marketing using the Department's data-sets rather than stop direct marketing activities of real estate agents per se . So, for example, at the hearing, evidence of Mr Rush was as follows: "And specifically, you wanted to stop direct marketing by real estate agents?--- I wanted to stop direct marketing using government sourced information." Similarly, Mr Fry gave evidence as follows: (TS p 200 ll 19-23) "But how do you know that it's going to stop direct marketing by simply taking it out of the hands of the six licensees who you've licensed to obtain bulk data --- We're not saying we are trying to stop direct marketing in total. We are saying we are trying to stop direct marketing using this data set from our Department." (TS p 334 l 25) 3. On the evidence there appears to be no prohibition on anyone using information obtained directly from either the respondent or a third party (for example, local government authorities) in direct marketing activities. The effect of the prohibition is that a person cannot use for direct marketing purposes information obtained through a distributor such as the applicant. 4. A distinction needs to be made between the purpose of the proposal of the respondent and the effect of it if implemented. The sole purpose of the Department is the prevention of the misuse of the Excluded Data and the protection of privacy of individuals and businesses that have provided, compulsorily, information to the respondent. The proposal, if implemented, may have the effect of preventing or deterring certain competitive conduct such as direct marketing, by closing off one source of names and addresses, but that the proposal might have that effect is irrelevant if the purpose for its implementation was not to deter or prevent competition, which is the case here. 5. This case is no different to that encountered by the Full Court in Australasian Performing Right Association Ltd v Ceridale Pty Ltd (1990) 97 ALR 497. 6. The respondent supplies a product, the QVAS database, which is compiled for purposes which do not include direct marketing. The respondent is entitled to prevent the misuse of its information for a purpose for which the information was not collected. 7. The licence agreement emphasises that data supplied may only be used for certain purposes. Clause 1.1 of the 2003 Licence states: "It's a non-exclusive, non-transferable licence to use the licence data for the purposes specified in the agreement, subject to the terms and conditions." Further, cl 4.1.1 provides: "The agreement does not confer on the licensee any rights of ownership in the licensed data, and all intellectual property rights, including copyright in the licensed data, are unaffected by this agreement." 170 No evidence was produced at the trial demonstrating that real estate agents who are customers of the applicant and who engage in direct marketing activities utilise data sourced from the respondent. Indeed it would be difficult to produce such evidence it is clear from the terms of the 2003 Licence Agreement that the applicant is contractually obliged to ensure that its customers (including real estate agents) do not use the information for such purposes, and presumably any direct marketing activity engaged in by real estate agents who are customers of the applicant would be in breach of their own agreement with the applicant. 171 In my view the following issues are clear. 175 Third, while in the absence of evidence to the contrary I accept that the most likely persons affected in their direct marketing activities by the withdrawal of the Excluded Data would be real estate agents, I accept the respondent's submission that this is an effect rather than the purpose of the respondent's conduct. I also consider that principles articulated by the Full Court in Ceridale 97 ALR 497 are relevant here. 176 In Ceridale 97 ALR 497, the Australasian Performing Right Association Ltd ("APRA") owned copyright of public performances in nearly all current popular copyright music, and the respondents were all persons associated with premises within which the subject works had been performed without the licence of APRA. APRA would grant, inter alia , licences in respect of premises to play recorded music, the use of a background music system, and live performances with respect to works over which APRA held copyright. The respondents were persons associated with premises within which works over which APRA held copyright had been performed. The licence held by the first respondent was terminated by APRA on account of non-payment of outstanding licence fees. Further dispute between the parties led to APRA filing a notice of motion seeking summary judgment with injunctive relief. In relation to s 46 , his Honour said that APRA had the monopoly control over the market concerning the supply of the performing rights of music played to patrons in nightclubs and discotheques, and the refusal to grant a customer such as the defendants a licence which would enable the customer to obtain that commodity was plainly an exercise of market power (at 508-509). His Honour also found that it was no answer to a complaint of a contravention of s 46 that the corporation was only taking advantage of a legal right (at 509) and in this case the proper characterisation of APRA's actions was that it was taking advantage of its powers in the market to prevent the defendants from engaging in competitive conduct in another market simply in order to collect a disputed debt (at 509). The trial judge refused to grant an injunction, the object and effect of which was to force a business to pay a debt which was subject to a genuine dispute. 177 Wilcox, Spender and Pincus JJ allowed the appeal of APRA. In particular at 510-511 their Honours said: "There is no doubt, in the present case, that APRA enjoys a substantial degree of power amounting indeed to dominance in the market for music rights. It would seem that, in practical terms, it would be impossible for a nightclub or discotheque to survive without using music of the appellant. Accordingly, APRA is a corporation to which section 46 applies. But we are unable to agree that, upon the facts of this case, APRA has been guilty of any of the proscribed acts. The only suggested conduct was a contravention of para (c), that is that APRA had denied licences 'for the purpose of deterring or preventing a person from engaging in competitive conduct in that or any other market'; the relevant 'person' being each of the respondents and the relevant 'other market' being the nightclub or discotheque market. We agree that the granting of an injunction might have the effect of preventing the respondents from competing in those markets. But there is no basis for saying that this was APRA's purpose. APRA had nothing to gain by putting the respondents out of business. On the contrary, it was in the interests of APRA to maximise the number of users of its material, so long as they paid licence fees. APRA's purpose was merely to prevent unauthorised use of its material and the integrity of its licensing system ." (emphasis added) 178 In my view the comments of their Honours I have italicised are of particular relevance in this case before me. The evidence is overwhelming that the purpose of the respondent was to prevent misuse of its database, in circumstances where legislatively supported contractual provisions in the licence agreements appear not to have been successful in preventing that misuse. Indeed, in my view it is fair to say that as a general proposition, provided they did not misuse Departmental data, the respondent had nothing to gain by deterring or preventing the participants in the Real Estate Agents' Services Markets from engaging in competitive conduct in those markets. 179 Fourth, irrespective whether during the 1990s the Department may have had no qualms concerning its database being used for direct marketing purposes by real estate agents as claimed by Mr Catelan (TS p 46 ll 44-46) and conceded by Mr Witt (TS p 222 ll 46-48 and p 223 ll 1-3), it appears that by October 2002 the Department was concerned about misuse of the data for direct marketing as a general proposition (for example, evidence of Mr Fry TS p 195 ll 13-14). This concern is reflected in the enactment of s 77(3A) VL Act , introduced into the VL Act in May 2003, which specifically required the inclusion in any contract for the supply of information a provision allowing the chief executive of the respondent to exclude particulars of valuation roll information if satisfied, on reasonable grounds, that inclusion of the particulars may result in the particulars being inappropriately disclosed or used. The clear purpose in the conduct of the respondent has been to ensure that the respondent's database should not be misused, by anyone . While real estate agents may be the most affected group, in my view this does not mean that the purpose of the respondent is to deter real estate agents engaging in competitive conduct in the relevant market. 180 A threshold issue in these proceedings was whether the respondent was bound at all by s 46 TPA, because it is not a "corporation" as required by that section. I formed the view early in this judgment that: (a) conduct of the respondent in the Wholesale Market in supplying Collected Data to the applicants and others did constitute the carrying on of a business by the respondent for the purposes of s 2B TPA, with the result that the respondent was bound by s 46 in respect of this conduct; but (b) the supply by the respondent of data in response to individual searches in the Retail Market was not subject to s 46 TPA because, in so doing, the respondent was not "carrying on a business" as contemplated by s 2B. 181 Although the respondent clearly has a substantial degree of power in the Wholesale Market, and it did take advantage of that power, in my view it did not take advantage of that power for purposes proscribed by s 46(1) TPA. 182 Accordingly, the claim of the applicant fails, and is dismissed with costs. THE COURT ORDERS THAT: 1. The application filed 18 March 2005 is dismissed. 2. The applicant pay the respondent's costs of and incidental to the application, to be taxed if not otherwise agreed. I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 30 October 2007 Counsel for the Applicant: D Jackson QC and M Martin Solicitor for the Applicant: ClarkeKann Counsel for the Respondent: M Hinson SC and D O'Brien Solicitor for the Respondent: Crown Law Date of Hearing: 20 October 2006 Date of Judgment: 30 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1639.html


case_text: The necessity for competition to exist before a "market" is constituted was emphasised in Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374. As Gleeson CJ and Callinan J observed: "A market is an area of close competition; a field of rivalry. As the passage from Re Queensland Co-Operative Milling Association Ltd quoted above indicates, and as s 46(3) recognises, both the supply side and the demand side are relevant to an assessment of the market. It does not solve, but merely re-states, the problem to speak of sub-markets. There may be a wider, and a narrower, area of rivalry; but, if the narrowest area itself constitutes a market, then it is power and conduct in that area that must be examined." (at 422-423) (cf Deane J in Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd [1989] HCA 6 ; (1989) 167 CLR 177 at 195) 97 However as was pointed by the High Court in Queensland Wire [1989] HCA 6 ; 167 CLR 177, and subsequently reiterated by the majority of the High Court in Melway 205 CLR at 17, "take advantage of" does not mean anything materially different from "use" and does not require conduct which is predatory or morally blameworthy: per Mason CJ and Wilson J at 191, Deane J at 194, Dawson J at 198, Toohey J at 212-214 (cf also the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 at [137] ). In terms of s 46 it does, however, entail an analysis of actions in the context of a competitive environment, and identification of a determinative approach in the entity with the substantial market power to achieve an outcome proscribed by s 46. So, as Heerey J said in ACCC v Boral Ltd (1999) 166 ALR 410 (at 440), subsequently approved by the majority of the High Court in Boral Besser [2003] HCA 5 ; 215 CLR 374 (at 434): "If the impugned conduct has a business rationale, that is a factor pointing against any finding that conduct constitutes a taking advantage of market power. If a firm with no substantial degree of market power would engage in certain conduct as a matter of commercial judgment, it would ordinarily follow that a firm with market power which engages in the same conduct is not taking advantage of its power." 113 So, to paraphrase Heerey J in ACCC v Boral 166 ALR 410 as adopted by the majority of the High Court in Boral Besser [2003] HCA 5 ; 215 CLR 374, was the conduct of the respondent taking advantage of its market power in withdrawing the supply of the Excluded Data, such that an entity with no substantial degree of market power in the Wholesale Market would not, as a matter of commercial judgment, engage in that conduct? 123 In relation to identifying the "purpose" of the respondent, as illustrated by the cases listed in Miller's Annotated Trade Practices Act 28th edition para 1.46.65, the weight of authority indicates that the relevant purpose is to be identified on the basis of a subjective test rather than objectively, although purpose may be established by inference from the conduct of the respondent (s 46(7)). As Toohey J observed in Queensland Wire 167 CLR, the reference to "for the purpose of" carries with it the notion of an intent to achieve the result spoken of in each of the paragraphs in s 46(1) (at CLR 214). I note that the subjective nature of the relevant intent was also endorsed by the High Court in Boral Besser 215 CLR at 484. 158 Section 46(1)(c) must be read in the context of the policy objective sought to be achieved by the TPA. As pointed out by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway 205 CLR at 13). "Section 46 aims to promote competition, not the private interests of particular persons or corporations." (cf Boral 215 CLR 373 per Gleeson CJ and Callinan J at 411, Gaudron, Gummow and Hayne JJ at 429, McHugh J at 458-459; Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Baxter Healthcare 237 ALR at 535, Rural Press [2002] FCAFC 213 at [139] , Universal Music 131 FCR at 585, and the discussion of Professor Corones at pp 34-37). It follows that the conduct of a person which the corporation or other entity with the substantial degree of market power seeks to affect must be conduct in the nature of competition in a market. Like s 46(1)(a), the breadth of application of s 46(1)(c) is such that it does not need to be the market in which the respondent is a participant (cf Merkel J in Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 at 643, Toohey J in Ross Payne & Co v Western Australian Lamb Marketing Board unreported, Federal Court of Australia, 3 August 1983, Wilcox J in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 at 555). Accordingly, it is within the scope of s 46(1)(c) that a corporation or entity with a substantial degree of market power in the Wholesale Market could breach s 46(1)(c) because, inter alia , its purpose was to deter or prevent the a person from engaging in competitive conduct in the Retail Market.


case_title: Corrections Corporation of Australia Pty Ltd v Commonwealth [2000] FCA 1280 ; (2000) 104 FCR 448


case_text: The notion of "market power" in the sense of capacity to act in a manner unconstrained by the conduct of competitors has been the subject of frequent judicial consideration. The leading case in this context is Queensland Wire [1989] HCA 6 ; 167 CLR 177. Usefully, Lockhart J in Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 at 138 summarised from the judgment of Mason CJ and Wilson J in Queensland Wire 167 CLR at 188-190 the following factors as relevant in defining and identifying market power: "(a) "the ability of a firm to raise prices above the supply cost without rivals taking away customers in due time, supply cost being the minimum cost an efficient firm would incur in producing the product"; (b) "the extent to which the conduct of [any of the respondents] in that market is constrained by the conduct of...competitors or potential competitors..." (s 46(3)); (c) market share of each respondent must be examined but this alone is generally not determinative of market power as "the relative effect of percentage command of a market varies with the setting in which that factor is placed" (Mason CJ and Wilson J adopted the language of Reed J in United States v Columbia Steel Co (1948) 334 US 495 at 528); (d) the presence of vertical integration is another factor, but its presence does not necessarily mean that a substantial degree of power exists; and (e) to what extent is it rational or possible for new entrants to enter the relevant market? That is to say, what are the barriers to entry? It is this factor which must be taken as the primary consideration in determining market power. See also the judgment of the Full Court of this court in Arnotts Ltd v Trade Practices Commission at FCR 336 9." 126 The respondent relied on comments of Lockhart J in Dowling v Dalgety 34 FCR at 143 where his Honour said that "purpose" in s 46 "is not concerned directly with the effect of conduct, but with the purpose in the sense of motivation and reason, though, as mentioned earlier, purpose may be inferred from conduct". 127 The applicant in para 10 of the amended statement of claim alleges that the respondent has so acted for the following purposes: "(a) for the purpose of eliminating or substantially damaging RP Data in the Market or the Retail Market (b) for the purpose of deterring or preventing RP Data from engaging in competitive conduct in the Market or the Retail Market Particulars (i) The fact that the Department has this purpose is to be inferred from: (A) the effect of the proposal as set out in paragraphs 8 and 9 hereof (B) the Department, through Colin Witt, has evinced an intention to harm and prevent RP Data competing in the market place by: (I) offering Infopac favourable terms in order to compete with RP Data (II) informing John Edwards of Residex that the Department had an intention to reduce the cost of the Collected Data so as to break RP Data's monopoly (C) Wayne Fry and Geoff Oakley on 4 February 2005 stating to Jane Woodward of RP Data that if RP Data did not agree to the new licence conditions that they would not receive any Collected Data in the future. (ii) The purpose is that of the persons set out in paragraph 8 above (iii) The competitive conduct of RP Data which it is the Department's purpose to deter or prevent RP Data from engaging in is the provision electronically of the Collected Data including the Excluded Data: (A) in competition with the Department (B) in competition with other licensees (ba) for the purpose of deterring or preventing real estate agents from direct marketing to owners of real property using the Excluded Data (bb) for the purpose of deterring or preventing real estate agents thereby from engaging in competitive conduct in the Real Estate Agents' Services Markets." 128 The respondent in its amended defence denied that it has acted in the manner alleged by the applicant, and states in para 42 that its purpose in proposing to exclude the Excluded Data from the Collected Data available under future licences is to ensure that such information in bulk data form is not available for direct marketing purposes.


case_text: The reference in s 46(1) to a "substantial degree" of market power was considered by the Full Court in Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43 at 63 where Lockhart and Gummow JJ said: "For a corporation to have a substantial degree of market power it must have a considerable or large degree of such power. The difficulty lies not in defining the word 'substantial' but in applying the concept of a substantial degree of market power to the circumstances of each case and in identifying whether the requisite degree of market power exists. This is a relative concept." (cf Wilcox, French and Gyles JJ in Universal Music Australia Pty Ltd v Australian Competition & Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at 564-565. 80 Finally, as was explained in the Trade Practices Amendment Bill 1985 Explanatory Memorandum: • "Market power" is a recognised economic concept which has been subject to considerable analysis in economic literature (at [40]). • The use of the word "degree" in the expression "degree of power in a market" reflects the fact that "market power" is a relative concept. All participants in a market possess a degree of market power which may range from negligible to very great (at [41]). • The circumstances which give rise to absence of competitive constraint upon a corporation are diverse. They are not confined to size or market share in relation to competitors, or to those matters combined with technical knowledge, raw materials or capital. Other matters such as easier access to supplies or government controls on the market are relevant if they bear upon the extent to which the corporation can act without being constrained by competition (at [45]). 81 In the Wholesale Market in the case before me, it is not in contention that the respondent has not only market power, but a substantial degree of market power. Both the applicant and the respondent, and their respective experts, are in agreement on this point. I accept that the respondent has a substantial degree of market power in this market. It is therefore appropriate to consider the claim of the applicant that the respondent has taken advantage of that power for a purpose proscribed by s 46 TPA.


case_text: So for example, in Queensland Wire [1989] HCA 6 ; 167 CLR 177 Deane J held that the identification of the proscribed purpose in that case led directly to the conclusion that BHP was taking advantage of its market power, because the nature of the purpose was such that, in the circumstances of that case, it could not have been achieved by the conduct impugned had it not been for the existence of the market power ( Queensland Wire 167 CLR at 197-198, Melway 205 CLR at 17). The majority in Melway at 18 also noted comments of Scalia J in the Supreme Court of the United States when his Honour said: "Where a defendant maintains substantial market power, his activities are examined through a special lens: Behavior that might otherwise not be of concern to the antitrust laws or that might even be viewed as procompetitive can take on exclusionary connotations when practiced by a monopolist." ( Eastman Kodak Co v Image Technical Services Inc (1992) 504 US 451 at 488)


case_title: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1


case_text: The applicant submits that purpose is not motive, but rather is the object in view or sought to be achieved by the conduct whereas the motive may be no more than the spur for it. Authority for this proposition derives from comments of the Full Court in General Newspapers Pty Ltd v Telstra (1993) 45 FCR 164 at 187.


case_text: The onus of proof is on the applicant to show that the impugned conduct of the respondent had the proscribed anti-competitive effect: Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour Services Pty Limited v Bunbury Port Authority [2000] FCA 1381 at [13] . 90 I make this point particularly in light of the onus of proof which rests on the applicant to demonstrate that the impugned conduct breaches s 46 ( Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour [2000] FCA 1381 at [13] .)


case_outcome: distinguished

case_text: Although the phrase "carries on a business" appears in a number of provisions of the TPA including s 2B, it is not defined in the Act. However it has received consideration by Courts to the extent that a number of principles have emerged which are of relevance in this case. They are as follows: 1. "Business" in the context of s 2B is normally a "wide and general" word: Gibbs CJ in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23 ; (1982) 150 CLR 169 at 184, McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power 219 CLR at 116. Its meaning in the TPA is widened by s 4(1), since "business" includes "a business not carried on for profit": NT Power 219 CLR at 116. 2. The phrase "carries on a business" should be interpreted in light of the purpose of Parliament in introducing s 2B and related legislation, which was to ensure that "with state and territory application legislation, the prohibitions against anti-competitive conduct can be applied to all businesses in Australia." (Australia, House of Representatives, Parliamentary Debates (Hansard) 30 June 1995, p 2794). 3. Subject to a statutory qualification as to not for profit businesses, in the context of the TPA, "carrying on a business" is intended to refer to activities undertaken in a commercial enterprise or as a going concern: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 303, Corrections Corporation of Australia Pty Ltd v Commonwealth [2000] FCA 1280 ; (2000) 104 FCR 448 at 451. 4. An act of government, whether directly or through an authority, which is merely the carrying out of the functions of government in the performance of its statutory duty, is unlikely to be characterised as "carrying on a business": Village Building Company Limited v Canberra International Airport Pty Limited (No 2) [2004] FCA 133 at [90] . So, for example, the issue of certificates by a municipal council with respect to a real property pursuant to the Environmental Planning and Assessment Act 1979 (NSW) was not "carrying on a business" ( Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579), nor was operating a detention centre ( Corrections Corporation of Australia [2000] FCA 1280 ; 104 FCR 448), nor were the activities of the New South Wales Department of Agriculture in acquiring cattle in endeavours to eradicate Bovine Johne's Disease, providing compensation to farmers for cattle slaughter, and reselling the carcases to recoup some of the funds: State of New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54 ; (2003) 57 NSWLR 1. However, activities for reward which are those which could be performed by any citizen or private trader potentially constitutes "carrying on a business". Examples of this are Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 where the Ambulance Service of New South Wales supplied, for reward, ambulance services at sporting events and first aid training, and JS McMillan v Commonwealth (1997) 77 FCR 337 where the Commonwealth in its guise as AGPS provided general printing services, dispatch and distribution services, graphic design services and editorial services. 5. Mere repetitiveness is not sufficient to constitute carrying on of a business; further, although system and regularity are involved in the carrying on of the business it does not necessarily follow that one who has transactions of the same kind systematically or regularly is carrying on a business in those transactions: JS McMillan 77 FCR at 354, GEC Marconi Systems 128 FCR at 303, Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 at [53] . 60 It follows that, in my view, the supply of data by the respondent in response to individual searches is not, as was the case in Paramedical Services [1999] FCA 548 or JS McMillan 77 FCR 337, an activity for reward which could be performed by any citizen or private trader, and thus potentially "carrying on a business" by the respondent.


case_text: The comments of his Honour were adopted by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13 ; (2001) 205 CLR 1 at 21 and 27, where their Honours said: "As Dawson J explained, in Queensland Wire , market power means capacity to behave in a certain way (which might include setting prices, granting or refusing supply, arranging systems of distribution), persistently, free from the constraints of competition..." (at 27) 94 The notion of "taking advantage of" in s 46(1) is closely related to the proscribed purpose in the section ( Melway 205 CLR at 16-17). As the majority observed in Melway , (The TPA) requires, not merely the co-existence of market power, conduct and proscribed purpose, but a connection such that the firm whose conduct is in question can be said to be taking advantage of its power (at 21). 95 So for example, in Queensland Wire [1989] HCA 6 ; 167 CLR 177 Deane J held that the identification of the proscribed purpose in that case led directly to the conclusion that BHP was taking advantage of its market power, because the nature of the purpose was such that, in the circumstances of that case, it could not have been achieved by the conduct impugned had it not been for the existence of the market power ( Queensland Wire 167 CLR at 197-198, Melway 205 CLR at 17). The majority in Melway at 18 also noted comments of Scalia J in the Supreme Court of the United States when his Honour said: "Where a defendant maintains substantial market power, his activities are examined through a special lens: Behavior that might otherwise not be of concern to the antitrust laws or that might even be viewed as procompetitive can take on exclusionary connotations when practiced by a monopolist." ( Eastman Kodak Co v Image Technical Services Inc (1992) 504 US 451 at 488) 97 However as was pointed by the High Court in Queensland Wire [1989] HCA 6 ; 167 CLR 177, and subsequently reiterated by the majority of the High Court in Melway 205 CLR at 17, "take advantage of" does not mean anything materially different from "use" and does not require conduct which is predatory or morally blameworthy: per Mason CJ and Wilson J at 191, Deane J at 194, Dawson J at 198, Toohey J at 212-214 (cf also the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 at [137] ). In terms of s 46 it does, however, entail an analysis of actions in the context of a competitive environment, and identification of a determinative approach in the entity with the substantial market power to achieve an outcome proscribed by s 46. So, as Heerey J said in ACCC v Boral Ltd (1999) 166 ALR 410 (at 440), subsequently approved by the majority of the High Court in Boral Besser [2003] HCA 5 ; 215 CLR 374 (at 434): "If the impugned conduct has a business rationale, that is a factor pointing against any finding that conduct constitutes a taking advantage of market power. If a firm with no substantial degree of market power would engage in certain conduct as a matter of commercial judgment, it would ordinarily follow that a firm with market power which engages in the same conduct is not taking advantage of its power." 112 In this case it is clear that, in the Wholesale Market, the respondent is a monopoly supplier. Although there was some discussion throughout the hearing as to local government authorities in Queensland being a source of data, it is clear that they are not a source of Bulk Data. It is also not in contention that the reason for this monopoly is because of the statutory function of the respondent, which, as stated by Mr Rush in his affidavit, is the point of truth source for sales data. However as pointed out by the majority in Melway 205 CLR at 27: "Freedom from competitive constraint might make it possible, or easier, to refuse supply and, if it does, refusal to supply would constitute taking advantage of market power. But it does not follow that because a firm in fact enjoys freedom from competitive constraint, and in fact refuses to supply a particular person, there is a relevant connection between the freedom and the refusal. Presence of competitive constraint might be compatible with a similar refusal, especially if it is done to secure business advantages which would exist in a competitive environment." 117 Third, I am not persuaded by the submissions of the respondent, or the evidence of Mr Norling, that the removal of names and addresses from the Bulk Data would be conduct expected to occur within a (hypothetical) competitive wholesale market because suppliers other than the respondent in such a wholesale market would be subject to the Privacy Act 1988 (Cth). To paraphrase comments of the majority in Melway 205 CLR at 22 in a similar context, the evidentiary basis for that conclusion is not entirely clear, and not everyone would agree that, as a proposition of fact, it is self-evidently correct. Irrespective whether the information supplied by the respondent was as a matter of law a generally available publication and not subject to the Privacy Act as was submitted, in my view correctly, by the applicant: • the assumption that the Privacy Act would compel suppliers in the hypothetical Wholesale Market from withholding the Excluded Data was not proven; • there is no basis in fact or in law made out for assuming that the QVAS data and the supply thereof by a hypothetical competitor in the Wholesale Market is something that would be subject to the Privacy Act ; and • depending on the identity of such hypothetical competitors they might or might not be organisations subject to the Privacy Act with the result that it was questionable whether the Privacy Act would have any application in any event. 118 Fourth, I do not accept as material the distinction drawn by the respondent between the facts of this case and other refusal to supply cases such as Melway [2001] HCA 13 ; 205 CLR 1 and Queensland Wire [1989] HCA 6 ; 167 CLR 177, in that in those cases there was a refusal to supply one of several acquirers of goods and services. Whether or not all licensees were being treated equally in this case is not germane to the issue of whether the respondent, for reasons of its own, was taking advantage of its market power. (Whether it is relevant to purpose is a different question, which I shall consider shortly). In, for example, a hypothetical situation where a wholesale supplier formulated a strategy of itself entering the retail market and as part of that strategy informed its customers who were retailers in that retail market of its decision to henceforth refuse supply of its products, the fact that all retailers were equally disadvantaged does not mean that the wholesale supplier has not taken advantage of its market power. 121 Irrespective whether the respondent has taken advantage of its substantial degree of market power in the Wholesale Market, as a matter of law it will only be in breach of s 46 if it has done so for a purpose proscribed by s 46(1). That this is so is demonstrated by the unambiguous terms of s 46(1) , and decisions in Australia at the highest level confirming this principle (for example Queensland Wire [1989] HCA 6 ; 167 CLR 177, Melway 205 CLR at 22). 158 Section 46(1)(c) must be read in the context of the policy objective sought to be achieved by the TPA. As pointed out by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway 205 CLR at 13). "Section 46 aims to promote competition, not the private interests of particular persons or corporations." (cf Boral 215 CLR 373 per Gleeson CJ and Callinan J at 411, Gaudron, Gummow and Hayne JJ at 429, McHugh J at 458-459; Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Baxter Healthcare 237 ALR at 535, Rural Press [2002] FCAFC 213 at [139] , Universal Music 131 FCR at 585, and the discussion of Professor Corones at pp 34-37). It follows that the conduct of a person which the corporation or other entity with the substantial degree of market power seeks to affect must be conduct in the nature of competition in a market. Like s 46(1)(a), the breadth of application of s 46(1)(c) is such that it does not need to be the market in which the respondent is a participant (cf Merkel J in Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 at 643, Toohey J in Ross Payne & Co v Western Australian Lamb Marketing Board unreported, Federal Court of Australia, 3 August 1983, Wilcox J in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 at 555). Accordingly, it is within the scope of s 46(1)(c) that a corporation or entity with a substantial degree of market power in the Wholesale Market could breach s 46(1)(c) because, inter alia , its purpose was to deter or prevent the a person from engaging in competitive conduct in the Retail Market.


case_text: Although the phrase "carries on a business" appears in a number of provisions of the TPA including s 2B, it is not defined in the Act. However it has received consideration by Courts to the extent that a number of principles have emerged which are of relevance in this case. They are as follows: 1. "Business" in the context of s 2B is normally a "wide and general" word: Gibbs CJ in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23 ; (1982) 150 CLR 169 at 184, McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power 219 CLR at 116. Its meaning in the TPA is widened by s 4(1), since "business" includes "a business not carried on for profit": NT Power 219 CLR at 116. 2. The phrase "carries on a business" should be interpreted in light of the purpose of Parliament in introducing s 2B and related legislation, which was to ensure that "with state and territory application legislation, the prohibitions against anti-competitive conduct can be applied to all businesses in Australia." (Australia, House of Representatives, Parliamentary Debates (Hansard) 30 June 1995, p 2794). 3. Subject to a statutory qualification as to not for profit businesses, in the context of the TPA, "carrying on a business" is intended to refer to activities undertaken in a commercial enterprise or as a going concern: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 303, Corrections Corporation of Australia Pty Ltd v Commonwealth [2000] FCA 1280 ; (2000) 104 FCR 448 at 451. 4. An act of government, whether directly or through an authority, which is merely the carrying out of the functions of government in the performance of its statutory duty, is unlikely to be characterised as "carrying on a business": Village Building Company Limited v Canberra International Airport Pty Limited (No 2) [2004] FCA 133 at [90] . So, for example, the issue of certificates by a municipal council with respect to a real property pursuant to the Environmental Planning and Assessment Act 1979 (NSW) was not "carrying on a business" ( Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579), nor was operating a detention centre ( Corrections Corporation of Australia [2000] FCA 1280 ; 104 FCR 448), nor were the activities of the New South Wales Department of Agriculture in acquiring cattle in endeavours to eradicate Bovine Johne's Disease, providing compensation to farmers for cattle slaughter, and reselling the carcases to recoup some of the funds: State of New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54 ; (2003) 57 NSWLR 1. However, activities for reward which are those which could be performed by any citizen or private trader potentially constitutes "carrying on a business". Examples of this are Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 where the Ambulance Service of New South Wales supplied, for reward, ambulance services at sporting events and first aid training, and JS McMillan v Commonwealth (1997) 77 FCR 337 where the Commonwealth in its guise as AGPS provided general printing services, dispatch and distribution services, graphic design services and editorial services. 5. Mere repetitiveness is not sufficient to constitute carrying on of a business; further, although system and regularity are involved in the carrying on of the business it does not necessarily follow that one who has transactions of the same kind systematically or regularly is carrying on a business in those transactions: JS McMillan 77 FCR at 354, GEC Marconi Systems 128 FCR at 303, Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 at [53] . 59 However, the position appears quite different with respect to the supply by the respondent - to end users - of data in response to individual over the counter searches. In particular, I note: • There is a clear legislative delineation between the commercial contracts concerning bulk data sanctioned by s 77 , and the compulsory provision of information required s 76. • The supply by the respondent of s 76 data does not form any part of its business relationship with the licensees, who receive bulk data from the respondent. • Obligations of the respondent in relation to valuation of land throughout Queensland, the collection of data, the maintenance of valuation records and the supply of the data are mandated by the VL Act . As Mr Hinson SC for the respondent submitted, the Department is required by s 76(1) VL Act to supply a certified copy of the particulars of a valuation entered on a valuation roll, to a person who pays the prescribed fee. I note the prescribed fee is found in the Valuation of Land Regulation 2003 (Qld). Indeed, I note that the long title of the VL Act is "An Act to make better provision for determining the valuation of land for rating and taxing purposes, and for matters incidental thereto or consequent thereon". I accept the evidence of Mr Rush that the QVAS data is the point of truth source for sales data, that is, how much a property was sold for at a particular date (Rush affidavit para 10). In my view, the supply of data by the respondent in respect of individual searches is an act of government and carrying out of the functions of government in the performance of its statutory duty, similar to the provision of a certificate by the municipal council in Mid Density Development Pty Ltd 39 FCR 579. • In light of the foregoing, the fact that the Department would undoubtedly enter into many transactions of this nature does not mean that the Department is "carrying on a business" of supplying data in response to individual searches. • Although the respondent has submitted that local governments and the applicant can supply data in response to individual searches, in my view this does not derogate from the fact that the activities of the respondent in this regard constitute a function of government in the performance of its statutory duty rather than "carrying on a business". Indeed in this respect I note that: o the provision of valuation information by local government is required by s 995 Local Government Act 1993 (Qld) to be given to parties contemplated by that section, and is itself information which the chief executive is required to give local governments pursuant to s 73(1)(f) VL Act o unlike the statutory obligation of the respondent, individual search data provided by the applicant is only to its customers, in a "commercially user friendly format" (Catelan affidavit para 3).