case_text: As these passages from Leahy and Apco indicate, the authorities have expressly refrained from holding that the consensus or meeting of minds required by the words 'arrangement' or 'understanding' must involve a reciprocity of obligation. In Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 (' Amcor' ) at 359-360 [75], Sackville J said: 'An arrangement or understanding for the purposes of s 45(2) of the TP Act is apt to describe something less than a binding contract or agreement: Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465; 24 FLR 286 at 290 1 (Aust Ind Ct, FC) per Smithers J. However, in order for there to be an arrangement or understanding for the purposes of s 45(2), there must be a meeting of the minds of those said to be parties to the arrangement or understanding. There must be a consensus as to what is to be done and not merely a hope as to what might be done or happen: Trade Practices Commission v Email Ltd (1980) 43 FLR 383 at 385 (Lockhart J); Ira Berk at FLR 291 per Smithers J. Ordinarily, an arrangement or understanding involves communication between the parties arousing expectations in each that the other will act in a particular way: Email at 395. There is no necessity for an element of mutual commitment between the parties to an arrangement or understanding, although in practice such an arrangement or understanding would ordinarily involve reciprocity of obligation: Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 at 230 1; 116 ALR 643 per Lockhart J.' There are, however, several cases in which the courts have said that an assumption of mutual obligations or reciprocal commitments will be the common situation: eg Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 5 FCR 140 at 144. In Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 at 230-231 and 238, the Full Court endorsed Lockhart J's observation in Email at 397 that it is difficult to envisage circumstances where there would be an understanding involving a commitment by one party as to the way it should behave, without some reciprocal obligation by the other party.


case_outcome: cited

case_text: In Leahy , Merkel J discussed the concepts of 'arrangement' and 'understanding' where multiple parties were alleged to have been involved, in different capacities, in price fixing contravening s 45 of the TPA. In that case, the ACCC brought proceedings against eight corporations and eight individuals. A number of the respondents admitted to contraventions of the TPA. The remaining respondents did not seriously challenge the ACCC's case against the admitting respondents, but rather they sought to distinguish their actions from those of the admitting respondents. The contesting respondents submitted that, unlike the other respondents, they had not initiated any of the price increases in the pricing 'cycle' at the heart of the ACCC's case. While the contesting respondents did not dispute that price increases were communicated amongst competitors in the Ballarat petrol market, they argued that their price increases were the result of competitive market forces and not made pursuant to an understanding to increase petrol prices in the event of a 'price-increase call' by the initiating respondents. His Honour stated at 200 [54]: 'It is well established that, for the purposes of ss 45(2) and 45A , the term "understanding" is apt to describe something less than a binding contract or arrangement. An understanding will usually, but may not necessarily, involve some reciprocity of obligation: see Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at 360 (ACCC v Amcor); Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 at 230-231 and Trade Practices Commission v Email Ltd (1980) 43 FLR 383 at 397. At the least, there must be a meeting of minds of those said to be parties to the understanding and a consensus as to what is to be done; not merely a hope as to what might be done or might happen. Thus, ordinarily, an understanding involves communication between the parties arousing expectations in each party that the other party/parties will act in a particular way: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [2003] FCAFC 149 ; (2003) 129 FCR 339 at [409] '. 111 As these passages from Leahy and Apco indicate, the authorities have expressly refrained from holding that the consensus or meeting of minds required by the words 'arrangement' or 'understanding' must involve a reciprocity of obligation. In Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 (' Amcor' ) at 359-360 [75], Sackville J said: 'An arrangement or understanding for the purposes of s 45(2) of the TP Act is apt to describe something less than a binding contract or agreement: Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465; 24 FLR 286 at 290 1 (Aust Ind Ct, FC) per Smithers J. However, in order for there to be an arrangement or understanding for the purposes of s 45(2), there must be a meeting of the minds of those said to be parties to the arrangement or understanding. There must be a consensus as to what is to be done and not merely a hope as to what might be done or happen: Trade Practices Commission v Email Ltd (1980) 43 FLR 383 at 385 (Lockhart J); Ira Berk at FLR 291 per Smithers J. Ordinarily, an arrangement or understanding involves communication between the parties arousing expectations in each that the other will act in a particular way: Email at 395. There is no necessity for an element of mutual commitment between the parties to an arrangement or understanding, although in practice such an arrangement or understanding would ordinarily involve reciprocity of obligation: Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 at 230 1; 116 ALR 643 per Lockhart J.' There are, however, several cases in which the courts have said that an assumption of mutual obligations or reciprocal commitments will be the common situation: eg Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 5 FCR 140 at 144. In Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 at 230-231 and 238, the Full Court endorsed Lockhart J's observation in Email at 397 that it is difficult to envisage circumstances where there would be an understanding involving a commitment by one party as to the way it should behave, without some reciprocal obligation by the other party.


case_text: On Monday 20 August, Sutherland sent an email to Mighell which stated: 'Dean - Attached is a draft agreement as prepared by our solicitors. Please call me call me on Tuesday, if you can. Regards Col [Sutherland] ' 74 The email attached a draft heads of agreement between Edison and the CEPU that had been prepared by Corrs. The draft heads of agreement was phrased in language that differed considerably from the 13 August letter. Clause 4.1 of the draft heads of agreement provided: '4 THE COMPANY SHALL 4.1 The Company [Edison] shall request that companies that: (a) are contracted to work for the Company at the Site; and (b) who employ people whose employment is governed by the National Electrical, Electronic and Communications Contracting Industry Award 1998; have acceptable industrial arrangements in place before work is commenced.' 75 Sutherland gave evidence that he thought that the draft heads of agreement would be 'the solution' he and Burns were looking for. He was not examined on whether he spoke to Mighell on Tuesday 21 August as foreshadowed in his 20 August email, although Sutherland confirmed that it was his intention to speak to him the day after sending the email. 77 On 23 August, an email was sent to Burns' email address at 3.49 pm from an officer of the CEPU, Jesse Maddison ('the CEPU's email'). The CEPU's email stated: 'Col [Sutherland] , Please find attached document as discussed. Peter [Mooney] * ==================== * Jesse Maddison Industrial Officer Electrical Trades Union of Australia 516-520 Swanson Street Carlton South VIC 3053' 78 A marked-up version of the draft heads of agreement was attached to the CEPU's email. An additional sentence had been added to cl 4.1, which is of particular significance in the present case. As revised, cl 4 provided: '4 THE COMPANY SHALL 4.1 The Company shall request that companies that: (a) are contracted to work for the Company at the Site; and (b) who employ people whose employment is governed by the National Electrical, Electronic and Communications Contracting Industry Award 1998; have acceptable industrial arrangements in place before work is commenced. What constitutes acceptable industrial arrangements includes having a current certified agreement with the union. ' Sutherland was not asked any questions about the discussion with Mooney that Mooney refers to in the CEPU's email. 79 Upon receipt of the CEPU's email, Burns and Sutherland discussed Edison's proposed response. They agreed that the proposed changes should be accepted and a response put back to the CEPU as a matter of urgency. Sutherland recalled thinking that he had had enough of this issue and it was of paramount concern to press on in order to get the Simon Engineering site agreement signed. Burns said that he was standing beside Sutherland as Sutherland dictated the reply email to Ms Jongerius, Burns' personal assistant. Sutherland said that they discussed the response by telephone he said he was in Melbourne but confirmed that the actual words of the email were at his suggestion. I prefer, and accept, Burns' evidence. 80 The reply email was sent to the CEPU from Burns' email address at 4.19 pm. It stated: 'Urgent Attention: Dean Mighell, Peter Mooney This note is to confirm Edison Mission Energy's acceptance of your attached document (no changes made by EME) as the text of our Agreement pertaining to contract labour on the proviso that the Simon Engineering Valley Power Site Agreement is appropriately signed today. Our signed copy of the Contract Labour Agreement will be delivered to your office tomorrow morning in exchange for a copy of the signed Simon Engineering EBA. Regards, Col Sutherland\Paul Burns.' 81 Burns said that he understood that the revised cl 4.1 specified that an EBA certified with the union would be a prerequisite for the contractors that Edison would employ. He considered that cl 4.1 represented a change in Edison's practices, as Edison had not previously insisted that contractors have a certified EBA with the union in place prior to carrying out work at the Loy Yang B site. He said that Pearson and Buckley would implement the change because maintenance work was undertaken by their department. 112 Parallel conduct can constitute circumstantial evidence from which an arrangement or understanding may be inferred: Email at 386. Where there is no direct evidence of an arrangement or understanding, an inference that such an arrangement or understanding existed may be drawn from evidence that the parties' conduct exhibits 'a concurrence of time, character, direction and result': David Jones at 468 applying R v Associated Northern Collieries [1911] HCA 73 ; (1911) 14 CLR 387 (' Northern Collieries' ) at 400. Inferences of an arrangement or understanding are apt to be drawn from circumstantial evidence when the facts are particularly within the knowledge of a party who is not called to give evidence: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 (' Jones v Dunkel' ); see also David Jones at 465. 121 In many cases it will be necessary and appropriate to infer the subjective purpose from evidence of the conduct of the parties: see Northern Collieries at 402 per Isaacs J. Statements as to purpose from the witness box may be highly probative, but they must be tested closely and received with great caution: ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 ( 'Pont Data' ) at 482-483. 163 Sutherland's covering email to Mighell on 20 August said: 'Dean Attached is the draft agreement as prepared by our solicitors. Please call me on Tuesday, if you can. Regards Col' The terms of this email indicate Sutherland had previously discussed the question of a draft agreement with Mighell and that Mighell was aware that a draft agreement between Edison and the CEPU dealing with contract labour was being prepared by Edison's solicitors. 164 It is clear that Sutherland was in direct discussion with CEPU officers about the heads of agreement. In addition to the suggestion in the 20 August email that Mighell should call Sutherland on Tuesday, the CEPU's email of 23 August shows that Sutherland was in direct discussion with Mooney about the heads of agreement. Between 20 August and 23 August, most probably on 23 August, Sutherland told Burns that the way the draft heads of agreement was worded was not satisfactory to the CEPU because it did not give the union anything. This exchange confirms that Sutherland was in direct discussion with Mooney, and perhaps other CEPU officers, about the heads of agreement. 165 In my opinion, the fact that Edison sought and obtained Corrs' assistance in drafting the heads of agreement in the week of 13 August does not alter the probability that the 13 August letter was dispatched by Sutherland on 13 August. It is not uncommon for those charged with finding a solution to a commercial problem to arrange a solution and then seek legal advice in relation to the documentation of that solution, especially when the matter is urgent.


case_outcome: followed

case_text: Parallel conduct can constitute circumstantial evidence from which an arrangement or understanding may be inferred: Email at 386. Where there is no direct evidence of an arrangement or understanding, an inference that such an arrangement or understanding existed may be drawn from evidence that the parties' conduct exhibits 'a concurrence of time, character, direction and result': David Jones at 468 applying R v Associated Northern Collieries [1911] HCA 73 ; (1911) 14 CLR 387 (' Northern Collieries' ) at 400. Inferences of an arrangement or understanding are apt to be drawn from circumstantial evidence when the facts are particularly within the knowledge of a party who is not called to give evidence: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 (' Jones v Dunkel' ); see also David Jones at 465. 158 Senior counsel for the ACCC urged me to apply the principles enunciated by the High Court in Jones v Dunkel to support the inference that Edison and the CEPU made an arrangement to the effect alleged by the ACCC. While it is clearly open to me to infer from the CEPU's failure to call evidence from key players at the CEPU who would have direct knowledge of the events in question that those witnesses would not assist the CEPU's case, there are limits to the Jones v Dunkel principle. The principle allows me to draw inferences that are open on the evidence more confidently than might otherwise be the case; but it cannot be used to make up for gaps in the evidence. In this case, the inferences that I have drawn from the evidence are so clear that I do not need to rely upon Jones v Dunkel . It is, nonetheless, correct that the absence of evidence adduced by the CEPU from Mighell and Mooney allows me to infer with greater confidence that the CEPU received the letter of 13 August from Sutherland and that it did so before Mooney signed the Simon Engineering MOU on 15 August. More generally, the absence of evidence from the CEPU allows me to conclude, more confidently, that Edison had communicated to the CEPU by 15 August the fact that Edison agreed to the CEPU's requirement that electrical contractors not be permitted to perform work at Loy Yang B unless they had a current certified agreement with the CEPU. 159 The CEPU advanced a series of reasons why I should infer that the 13 August letter was not sent to the CEPU. 160 First, it argued that to infer that the 13 August letter was sent is inconsistent with the fact that Burns and Sutherland agreed to seek advice from Corrs on 10 August or in the week of 13 August. Sutherland gave evidence that he recalled having some discussions by telephone with Burns at Loy Yang B and arising from those discussions they thought that Edison should get some advice from Corrs. He said that Burns agreed to approach Corrs to get the advice. He also said that he believed his discussion with Burns by telephone took place on 10 August and that the proposed legal advice was to relate to both the site access issue and the electrical contractors issue. Sutherland said that Burns made the contact with Corrs, although Sutherland was involved in an initial meeting with Corrs. Sutherland confirmed that Corrs drafted the heads of agreement. On the other hand, Burns said he was not involved in giving any instructions to Corrs to prepare the draft heads of agreement.


case_outcome: applied

case_text: Section 45E is directed at a contract, arrangement or understanding containing a provision which has been included for a proscribed purpose, or for purposes including the proscribed purpose. The test of 'purpose' is a subjective test; it is determined by examining the subjective purposes of the parties for including the provision in the contract, arrangement or understanding: News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ; (2003) 215 CLR 563 (' South Sydney' ) at 573 [18] per Gleeson CJ, at 580 [43] per McHugh J, at 585-587 [60], [62]-[63] per Gummow J, and at 636-637 [212] per Callinan J; and Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 (' Hughes' ).


case_text: Section 45E is directed at a contract, arrangement or understanding containing a provision which has been included for a proscribed purpose, or for purposes including the proscribed purpose. The test of 'purpose' is a subjective test; it is determined by examining the subjective purposes of the parties for including the provision in the contract, arrangement or understanding: News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ; (2003) 215 CLR 563 (' South Sydney' ) at 573 [18] per Gleeson CJ, at 580 [43] per McHugh J, at 585-587 [60], [62]-[63] per Gummow J, and at 636-637 [212] per Callinan J; and Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 (' Hughes' ). 125 In Pont Data , the Full Court considered the approach to the determination of purpose under s 4F which, like s 45E(3), operates where a particular provision was included in a contract, arrangement or understanding for a proscribed purpose. Their Honours said at 476: 'In its operation upon provisions stated to have a particular purpose, s 4F uses the words "the provision was included in the contract ... for that purpose or for purposes that included or include that purpose". This indicates that s 4F, in this operation, requires one to look to the purposes of the individuals by whom the provision was included in the contract, arrangement or understanding in question. It therefore directs attention to the "subjective" purposes of those individuals.' The Court adopted the test of purpose as construed by Toohey J in Hughes at 37-38, where his Honour said: 'I accept the view that it is the subjective purpose of those engaging in the relevant conduct with which the court is concerned. All other considerations aside, the use in s 45(2) of "purpose" and "effect" tends to suggest that a subjective approach is intended by the former expression. The application of a subjective test does not exclude a consideration of the circumstances surrounding the reaching of the understanding.'


case_text: The proscribed purpose can be one of a number of purposes, but it must be an operative purpose. In argument, senior counsel for the ACCC seemed to suggest that s 45E imposes a lower threshold than this, relying on the absence of the word 'substantial' in s 45E and the inapplicability of s 4F to ss 45E(3). Section 4F(1) provides that a reference to the 'purpose' of a provision of a contract, arrangement or understanding means the purpose, or one of the purposes, for including the provision, so long as it was or is a 'substantial purpose'. While it is true that s 4F does not apply to s 45E(3), this does not mean that an incidental purpose, which is not an operative purpose, will be sufficient to satisfy s 45E. Like s 45E(3), s 45D(1) is outside the ambit of s 4F and does not contain any explicit requirement that the purpose be a 'substantial' purpose. The High Court has construed s 45D(1) as requiring that the purpose be an operative subjective purpose: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 382-383 per Deane J. In my opinion, s 45E(3) should be construed in the same way. The reference to 'purpose' in s 45E connotes an operative subjective purpose.


case_outcome: considered

case_text: The issue of 'purpose' was investigated by the High Court in South Sydney in the context of s 45 and s 4D of the TPA. The case concerned a sporting club, South Sydney District Rugby League Football Club Ltd ('Souths'), which alleged that News Ltd and the Australian Rugby Football League Ltd ('ARL') had entered into a contract, arrangement or understanding in contravention of s 45 of the TPA. The alleged agreement between News Ltd and ARL was for the merger of two rugby league competitions. It provided for a unified rugby league competition to be conducted between, ultimately, fourteen teams only. The trial judge held that although the fourteen-team term was part of a contract, arrangement or understanding made between News Ltd and ARL, it did not have the purpose of preventing, restricting or limiting the supply or acquisition of services from particular persons or classes of persons. The Full Court overturned the trial judge's decision (Merkel and Moore JJ, Heerey J dissenting): see South Sydney District Rugby League Football Club Ltd v News Ltd [2001] FCA 862 ; (2001) 111 FCR 456. Merkel J found that the trial judge had conflated the purpose of the merger, joint venture and regional participation provisions of the agreement, with the purpose of the fourteen-team term provision: at 522-523 [264]. Merkel J held at 531 [295] that the agreement had the purpose of preventing the supply or acquisition of services from a particular class of persons by restricting or limiting supply or acquisition to or from the clubs or entities selected to be included in the merged competition. Moore J found that by operation of the fourteen-team term, the services supplied by Souths and other affected clubs would be limited and restricted: at 501-502 [186]. In dissent, Heerey J held that the exclusion of clubs from the merged competition was not a purpose at all: at 474 [78]. Heerey J agreed with the trial judge that while the fourteen-team term limited, and was intended to limit, the number of clubs in the competition, it did not follow that the provision was included for the purpose of preventing the supply of services to, or the acquisition of services from, clubs in excess of the fourteen: at 467 [37]. 117 The High Court overturned the Full Court's decision (Gleeson CJ, McHugh, Gummow and Callinan JJ, Kirby J dissenting). Each of their Honours' separate reasons for judgment considered the proper approach to assessing the 'purpose' of a provision in a contract, arrangement or understanding for the purposes of ss 45 and 4D of the TPA. Gleeson CJ stressed the distinction between the purpose and the motive for including a provision in a contract, arrangement or understanding at 573 [18]: '... Purpose is to be distinguished from motive. The purpose of conduct is the end sought to be accomplished by the conduct. The motive for conduct is the reason for seeking that end. The appropriate description or characterisation of the end sought to be accomplished (purpose), as distinct from the reason for seeking that end (motive), may depend upon the legislative or other context in which the task is undertaken... [I]n the context of competition law, it is necessary to identify purpose by describing what is sought to be achieved by reference to what is relevant in market terms. The purpose of the fourteen team term was the objective, in relation to the nature of their business arrangements, that News and ARL sought to achieve; not the reason why they sought to achieve that objective. They may have had different, and multiple, reasons for their conduct. The manifest effect of a provision in an agreement, in a given case, may be the clearest indication of its purpose. In other cases, it may be difficult, or even impossible, to determine the purpose (of a kind relevant to the operation of the Act) of a provision in a written contract merely by reading the document. And, of course, the legislation deals with contracts, arrangements or understandings.' His Honour found that, in the circumstances of the case, it was necessary for the agreement to state how many clubs would participate in the merged competition, and by selecting fourteen as the number News Ltd and ARL did not have a purpose of excluding any particular club or clubs: at 575 [23] and at 576 [27]. 118 While the manifest effect of the provision may provide, as Gleeson CJ said, the clearest indication of subjective purpose, care must be taken that evidence of the effect of a provision does not render the test an objective one. Gummow J warned against this danger at 586 [63]. It must be kept in mind that the effect that the parties sought to achieve through inclusion of the provision in a contract, arrangement or understanding is crucial to the test of subjective purpose. 119 Both McHugh and Gummow JJ expressed some hesitation about determining purpose under s 4D by reference to the subjective purpose of the makers of the provision, but in the end they both accepted the correctness of the subjective interpretation of the section: at 580 [41]-[43] per McHugh J and at 585 [59]-[60] per Gummow J, cf Kirby J at 606 [130]. McHugh J agreed with Gummow J that the trial judge applied a subjective test of purpose and his findings should be upheld: at 581 [46]. 120 Section 45E(3) requires consideration of the subjective purpose for inclusion of the provision in a contract, arrangement or understanding, not the purpose of the contract, arrangement or understanding as a whole. As Callinan J said in South Sydney at 638 [216] in relation to purpose under s 45: 'It is the purpose of the provision that is important. The discovery of that purpose is by no means necessarily to be gained by an examination of the provision itself only. As with any term of an agreement or arrangement, a provision may, sometimes must, be read with, and seen for its true meaning, effect and purpose, the relevant agreement or arrangement as a whole.' Gummow J agreed with Callinan J on this point: see at 587 [65].


case_text: In many cases it will be necessary and appropriate to infer the subjective purpose from evidence of the conduct of the parties: see Northern Collieries at 402 per Isaacs J. Statements as to purpose from the witness box may be highly probative, but they must be tested closely and received with great caution: ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 ( 'Pont Data' ) at 482-483. 125 In Pont Data , the Full Court considered the approach to the determination of purpose under s 4F which, like s 45E(3), operates where a particular provision was included in a contract, arrangement or understanding for a proscribed purpose. Their Honours said at 476: 'In its operation upon provisions stated to have a particular purpose, s 4F uses the words "the provision was included in the contract ... for that purpose or for purposes that included or include that purpose". This indicates that s 4F, in this operation, requires one to look to the purposes of the individuals by whom the provision was included in the contract, arrangement or understanding in question. It therefore directs attention to the "subjective" purposes of those individuals.' The Court adopted the test of purpose as construed by Toohey J in Hughes at 37-38, where his Honour said: 'I accept the view that it is the subjective purpose of those engaging in the relevant conduct with which the court is concerned. All other considerations aside, the use in s 45(2) of "purpose" and "effect" tends to suggest that a subjective approach is intended by the former expression. The application of a subjective test does not exclude a consideration of the circumstances surrounding the reaching of the understanding.' 126 On the facts in Pont Data , the relevant provisions were included in the agreements because one of the parties, ASX Operations Pty Ltd, had insisted upon their inclusion. The other party, Pont Data Australia Pty Ltd, had objected to the inclusion of the provisions. In those circumstances, the Court considered that it was appropriate to look to the purposes of the party as a result of whose efforts the provisions were included: at 477. In the present case, the CEPU instigated the requirement that resulted in the provision, but neither party submitted that either Edison or the CEPU objected to its inclusion. Thus, in my view, it is appropriate to consider the subjective purposes of both Edison and the CEPU in determining whether the provision was included for the proscribed purpose. 127 I reject the CEPU's submission that s 45E requires consideration of the subjective purposes of Edison, to the exclusion of the CEPU's purposes. The language of the section does not suggest that the inquiry as to purpose is limited to a consideration of the purpose of the party to the contract, arrangement or understanding upon which liability is directly imposed. In my opinion, the subjective purposes of each of the parties to a contract, arrangement or understanding are relevant to the determination of the purpose for which that provision was included. I doubt that s 45E requires the Court to search, perhaps vainly, for a common purpose: Pont Data at 477; see also South Sydney per McHugh J at 579 [38]. However, I do not need to express any final view on this issue because I have concluded on the evidence that there was no relevant disparity between the CEPU's purpose and Edison's purpose for including the provision. 133 In any event, in Pont Data , the Full Court considered the phrase 'particular persons or classes of persons' in the context of s 4D. The Court found that the phrase allowed for the identification of persons by reference to a negative characterisation; namely, persons who may not be supplied with information unless they accepted and became bound by the restraints imposed by the agreements at issue. The Full Court said at 488: 'It was said [by the appellants] that the persons or classes excluded must still be "identified" if s 4D is to apply. That may be conceded, but they are identified, in the present case, by the characteristic that they may not be supplied with the information in question, unless they accept and become bound by the restraints imposed by the Dynamic Agreement. Such persons come within a particular category or description defined by a collective formula: cf Pearks v Moseley, Re Moseley's Trusts (1980) 5 App Case 714 at 723. They ordinarily would be treated as constituting a particular class, even though at any one time the identity of all the members of the class might not readily be ascertainable. What distinguishes the class and makes it particular is that its members are objects of an anti-competitive purpose, with which s 4D is concerned.' 134 In Rural Press , the High Court did not find any error in the Full Court's conclusion in Pont Data that a particular class can be defined by its exclusion from supply or acquisition: at 90-91 [88] per Gummow, Hayne and Heydon JJ, see also Gleeson CJ and Callinan J at 62 [7]; and Gummow J in South Sydney at 590 [77]. 135 It follows that, if and to the extent that s 45E requires the second person to be particularly or specifically identified, that requirement can be satisfied by the use of a negative or exclusionary formula, as in Pont Data . 136 It was not in dispute that there was a contract, arrangement or understanding between Edison and the CEPU in relation to Edison's engagement of electrical contractors to perform work at the Loy Yang B site. The parties differed about the nature, scope and content of that contract, arrangement or understanding. 137 As I have already noted, the ACCC put its case in essentially two ways. Its primary case was that prior to 23 August 2001 Edison and the CEPU made a contract or arrangement, or arrived at an understanding, that all electrical contractors performing work at Loy Yang B must have a current certified agreement with the CEPU prior to commencing work at the site. The ACCC contended that this contract, arrangement or understanding was broader than, and overshadowed and controlled, the provision that was subsequently inserted in the heads of agreement. 179 Section 45E does not require that the provision be included for the purpose of preventing or hindering a person who is particularly or specifically identified. It is sufficient for the purposes of s 45E that the 'second person' be identified by reference to a group of persons who possess a particular characteristic: Pont Data at 488. Here, the relevant group of persons comprised electrical contractors performing, or who wished to perform, work at Loy Yang B who did not have a current certified agreement with the CEPU. The provision in question here specifically identifies and defines the particular group of persons from whom Edison agreed to refuse to acquire services.


case_text: In the context of Pt IV of the TPA, 'preventing' and 'hindering' commonly refer to conduct which has the object of ceasing the supply or acquisition of goods or services. 'Hindering' has been given a broad construction by the courts; the concept encompasses conduct which in any way affects to an appreciable extent the ease of the usual way of supplying or acquiring an article: Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 (' Devenish' ) at 45-46 per Mason CJ. Preventing or hindering can be engaged in by threat or verbal intimidation, as well as by physical interference with the actual activities: Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 153. The concept is not to be limited by any pre-conceived notion of a 'secondary boycott': see Devenish at 41-42 per Mason CJ, at 51-52 per Deane J, and at 58 per Toohey J; Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452 at 459 per Lockhart and Gummow JJ.


case_title: Australian Broadcasting Commission v Parish (1980) 43 FLR 129


case_title: Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452


case_text: The CEPU drew support for this argument from judicial consideration of the words 'particular persons' in s 4D of the TPA in Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 (' Bullock' ); see also TNT at 75-76. Prior to 1986, s 4D referred to 'particular persons' as the target of the proscribed provision. In Bullock, the Full Court left open the question whether Gray J had been correct in limiting the words 'particular persons' in s 4D to 'persons whose identity is known or can be ascertained': at 473. In apparent response to the decisions in Bullock and TNT, the words 'or classes of persons' were added to s 4D by the Trade Practices Revision Act 1986 (Cth): see Gummow J's discussion in South Sydney at 589-590 [75]. The scope of s 45E has not been similarly expanded to include 'classes of persons'. According to senior counsel for the CEPU, it can therefore be inferred that the legislature did not intend to expand the scope of s 45E. Thus, it was submitted, the section requires the identification of a particular second person.


case_text: The authorities on s 45 of the TPA explain the concept of a 'contract, arrangement or understanding' as it is used in Pt IV: see Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678 ; (2004) 141 FCR 183 (' Leahy' ); Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission [2005] ATPR 42-078 (' Apco' ); Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 (' Rural Press' ); Trade Practices Commission v Email Ltd (1980) 43 FLR 383 (' Email' ); and Trade Practices Commission v David Jones (Australia) Pty Ltd (1986) 13 FCR 446 (' David Jones' ). Some assistance is also to be gained from authorities that have considered s 45E in its original form: Gibbins ; see also Keith Russell Simplicity Funerals Pty Ltd v Cremation Society of Australia (ACT) Ltd (1982) 57 FCR 472. 110 On appeal, in Apco , the Full Court of this Court (Heerey, Hely and Gyles JJ) considered whether an understanding necessarily involves the making of a commitment to a particular course of action, as opposed to giving rise to a mere expectation or hope that a party will act in a certain way. After considering Merkel J's findings in Leahy , their Honours said at 43,234 - 43,235: 'Whilst the appellants attacked the factual finding that the parties arrived at the price-fixing understanding outlined in [330] of the reasons for judgment, they did not dispute that the primary judge had enunciated the correct legal principles which are applicable in determining whether parties have entered into an understanding. In particular, the primary judge referred to the following observations of Lindgren J in Australian Competition and Consumer Commission v CC (NSW) Pty Ltd [1999] FCA 954 ; (1999) 92 FCR 375 at [141] (emphasis in original) which were specifically endorsed by the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [79] : "The cases require that at least one party 'assume an obligation' or give an 'assurance' or 'undertaking' that it will act in a certain way. A mere expectation that as a matter of fact a party will act in a certain way is not enough, even if it has been engendered by that party. In the present case, for example, each individual who attended the meeting may have expected that as a matter of fact the others would return to their respective offices by car, or, to express the matter differently, each may have been expected by the others to act in that way. Each may even have 'aroused' that expectation by things he said at the meeting. But these factual expectations do not found an 'understanding' in the sense in which the word is used in ss 45 and 45A . The conjunction of the word 'understanding' with the words 'agreement' and 'arrangement' and the nature of the provisions show that something more is required." The primary judge's inference at [371] that Anderson [the Director and General Manager of one of the respondent companies] expected that his competitors would hold their increased price for a time whilst he was deciding whether or not to match their prices represents Anderson's assessment of what was likely to occur, without any assurance being given to him that the competitors would act in that way. It is no more than what Lindgren J described as a "factual expectation" which falls short of an "understanding".' Special leave to appeal the Full Court's decision was refused by the High Court in Australian Competition and Consumer Commission v APCO Service Stations Pty Ltd [2006] HCATrans 272. 134 In Rural Press , the High Court did not find any error in the Full Court's conclusion in Pont Data that a particular class can be defined by its exclusion from supply or acquisition: at 90-91 [88] per Gummow, Hayne and Heydon JJ, see also Gleeson CJ and Callinan J at 62 [7]; and Gummow J in South Sydney at 590 [77]. 225 There is utility in making a declaration of the kind sought by the ACCC: see Rural Press at 92 [95]. It will record the consequences of the Court's findings in a legally binding way, and will mark the Court's disapproval of the CEPU's conduct. However, it is essential that the terms of the declaration are tied to the proven facts: see Rural Press at 91 [90]; cf Bass v Permanent Trustee Company Ltd [1999] HCA 9 ; (1999) 198 CLR 334; and Electricity Supply Association of Australia v Australian Competition and Consumer Commission [2001] FCA 1296 ; (2001) 113 FCR 230. I propose to vary the terms of the declarations sought by the ACCC to ensure that they accord with and are sufficiently tied to the factual findings I have made.


case_text: The High Court's enunciation of the civil standard of proof in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 is frequently cited, but Dixon J's statement at 361-362 bears repeating: 'Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.' I have applied these principles to the determination of the issues in this case. 143 Based on the factual findings and applying the legal principles which I have set out above, I am satisfied that prior to 23 August 2001 Edison and the CEPU made or entered into an arrangement that included a provision that Edison would not engage electrical contractors to perform work at Loy Yang B unless they have a current certified agreement with the CEPU prior to commencing work at the site. The arrangement involved a commitment on Edison's part not to permit electrical contractors who did not have a certified agreement with the CEPU to work at Loy Yang B. In exchange, the CEPU committed to signing the Simon Engineering site agreement. The evidence establishes, in my view, that Edison and the CEPU made or entered into this arrangement prior to 15 August 2001. The heads of agreement was entered into in accordance with, and was controlled by, this arrangement. I will elaborate my reasons for these findings in the course of considering the arguments advanced by the CEPU. 144 The CEPU submitted that the evidence showed only one 'meeting of the minds' between Edison and the CEPU that is, the heads of agreement of 23 August 2001. The CEPU contended that the communications and events surrounding the making of the heads of agreement are insufficient to prove that there was a meeting of the minds between Edison and the CEPU; rather, they are evidence of the negotiations and canvassing of proposals which ultimately culminated in the heads of agreement on 23 August. In my view, these submissions do not grapple with the overall force and effect of the evidence that is before the Court. 203 In his reasons for judgment, Dixon J explained why Mallan could not be held liable as an accessory to the principal offence, at 215-216: 'On the interpretation I have given to s. 230 (1), for more than one reason s. 5 of the Crimes Act cannot apply to a public officer so as to make him an accessory to the offence of the company. In the first place, the public officer's act on behalf of the company making it an offender ipso facto amounts to a substantive offence on his part under s. 230 (1). In the second place, the sub-section makes him the actor, the principal, for whose guilty conduct the company is responsible vicariously. It would be an inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts. But if the interpretation were placed on s. 230 (1) opposed to that which I have adopted, I should think it would equally follow that s. 5 of the Crimes Act could not be applied to make the public officer liable under that provision. For it would mean that by s. 230 (1) the legislature had made the company responsible as an offender for the knowing and wilful understatement of income by the public officer to the exclusion of any such liability of the public officer. If that conclusion were reached it would be impossible to make him liable for the same conduct under a provision dealing with accessories. There is a number of cases which show that the application of sections dealing with aiding and abetting may be excluded by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created: cf. R. v. Tyrrell ; Morris v. Tolman ; Ellis v. Guerin .'


case_outcome: distinguished

case_text: The CEPU submitted that, as the heads of agreement is a binding contract, the Court's task is to interpret the words of the contract, without regard to negotiations which transpired beforehand, so long as the words of the contract are clear: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 (' Codelfa' ). It said that cl 4.1 of the heads of agreement merely obliged Edison to 'request' that electrical contractors have acceptable industrial arrangements. On the CEPU's preferred reading, cl 4.1 simply provided that having a current certified agreement with the CEPU was one way, but not the mandated way, that an electrical contractor could have acceptable industrial arrangements for the purposes of the heads of agreement.


case_text: In Federal Commissioner of Taxation v Lutovi Investments Pty Ltd [1978] HCA 55 ; (1978) 140 CLR 434 (' Lutovi' ), the meaning of an 'arrangement' was considered in the context of s 260 of the Income Tax Assessment Act 1936 (Cth). Gibbs and Mason JJ (Murphy J agreeing) said at 444: 'In the context of s 260 an arrangement is something less than a binding contract or agreement, something in the nature of an understanding which may not be enforceable at law ( Newton v Federal Commissioner of Taxation). ... It is, however, necessary that an arrangement should be consensual, and that there should be some adoption of it. But in our view it is not essential that the parties are committed to it or are bound to support it. An arrangement may be informal as well as unenforceable and the parties may be free to withdraw from it or to act inconsistently with it, notwithstanding their adoption of it.' The High Court's formulation in Lutovi has been applied in the context of 'arrangement or understanding' under s 45 of the TPA: see, eg, Email at 396; and David Jones at 463-464. In Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 (' TNT' ), Franki J referred to the above passage from Lutovi and said at 25: 'I lean with respect to the views expressed by Smithers J in L Grollo & Co Pty Ltd v Nu-Statt Decorating Pty Ltd ... at 89; 17,842 where he said: "I have to remember that the concept of an understanding is broad and flexible. It may arise merely where the minds of the parties are at one that a proposed transaction proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct."' 108 In David Jones at 463-464, Fisher J agreed with Franki J's comments in TNT and also favoured the views expressed by Smithers J in L Grollo & Co Pty Ltd v Nu-Statt Decorating Pty Ltd (1978) 34 FLR 81. 174 Under s 45E of the TPA, I am not limited to an examination of the words of cl 4.1. This is not a proceeding to enforce a contract. Section 45E is not concerned only with written agreements; it is also concerned with the making of an 'arrangement' or arriving at an 'understanding'. An arrangement or understanding may be informal and unenforceable: Lutovi at 444. The concept of an 'understanding' is a broad and flexible one: L Grollo & Co Pty Ltd v Nu-Statt Decorating Pty Ltd , supra, at 89; TNT at 25; and David Jones at 463-464. For the reasons explained above, I am satisfied that there was a broader arrangement between the parties which overshadowed and controlled the language used in the heads of agreement. It was understood and agreed between the CEPU and Edison that the heads of agreement imposed an obligation on Edison not to retain electrical contractors at the Loy Yang B site if they did not have a current certified agreement with the CEPU, and that this is the way in which Edison would implement it. Nothing in cl 4.1 prevented Edison implementing its arrangement with the CEPU in this way.


case_text: The CEPU submitted that the surrounding circumstances show that the provision was included for the purpose of securing the signing of the Simon Engineering site agreement. Senior counsel for the CEPU submitted that the present case is analogous to Australian Workers' Union v John Holland Pty Ltd (2001) 103 IR 205. That case involved a prohibition under s 298K of the Workplace Relations Act 1996 (Cth) on dismissing an employee for 'a prohibited reason, or for reasons that include a prohibited reason'. The applicants claimed that the employer had terminated the employment of the second applicant for a 'prohibited reason', namely, because the second applicant was a member of Australian Workers' Union. In determining the reason for the employer's termination of the second applicant's employment, Goldberg J had regard to a broader industrial crisis created by another entity that was affecting the employer. Goldberg J concluded that the second applicant's membership of the union was not the reason for the employer's termination of his employment; the major reason was to solve the broader industrial relations problem that the employer faced: at 214 [41] and at 216 [49]. So too here, the CEPU submitted, the operative reason or purpose for including the provision was to secure the CEPU's signing of the Simon Engineering site agreement. 178 This argument faces insurmountable difficulties. Edison's reason for entering into an agreement with the CEPU may have been to secure the signing of the Simon Engineering site agreement and to ensure that construction work on the peaker plant commenced without further delay. But that was the motive for the agreement, not the purpose of including the provision: South Sydney at 573 [18]. The purpose of the provision is the end that it seeks to achieve. Here, Edison's operative purpose for including the provision was to restrict the electrical contractors it could engage at Loy Yang B to those who had a current certified agreement with the CEPU, conformably with the request from the CEPU. That was also the manifest effect of the provision. Notably, the CEPU's argument does not address its own purpose for including the provision in its arrangement with Edison. On any view of the evidence, the CEPU's purpose for including the provision was to limit the electrical contractors who could be engaged to work at Loy Yang B to those who had a current certified agreement with the CEPU. The CEPU did not include the provision in order to get the Simon Engineering site agreement signed; that was the leverage that the CEPU used to get Edison to agree to include the provision.


case_text: The principles of accessorial liability were discussed by the High Court in Mallan v Lee [1949] HCA 48 ; (1949) 80 CLR 198 (' Mallan' ). The case involved a complaint laid against a company and its public officer, Mallan, for understating the company's income for the purposes of its income tax return . The company was charged pursuant to s 230(1) of the Income Tax Assessment Act with the principal offence. Mallan was charged as an accessory to the company's offence under s 5 of the Crimes Act 1914 (Cth). Section 230(1) of the Income Tax Assessment Act provided: 'Any person who, or any company on whose behalf the public officer, or a director, servant or agent of the company, in any return knowingly and wilfully understates the amount of any income or makes any misstatement affecting the liability of any person to tax or the amount of tax shall be guilty of an offence.' The Court held that s 230(1) imposed liability for the offence on Mallan as a principal, and on the company vicariously for Mallan's acts. Thus, Mallan could not be held liable as an accessory to the principal offence. 205 Mason J considered the application of Mallan and the exclusion of the doctrine of secondary participation at common law. His Honour identified a number of circumstances in which it may be appropriate to exclude liability for secondary participation. In particular, his Honour stated that the doctrine of secondary participation may be inapplicable 'to a class of persons whom the substantive offence was designed to protect' or 'where the substantive offence itself involves some element of secondary participation'. Mason J continued at 491-492: 'It is inherent in the concept of secondary participation, however, that a person may be convicted on the basis of aiding, abetting, counselling or procuring the commission of a statutory offence although the statute creating the offence deals only with the liability of the principal offender. So much was stated by Coke and Hale (3 Co. Inst. 59; 1 P.C. 613, 614, 704). And it has been settled at common law at least since R. v. Potts . This is also the case even where the offence is of such a nature that the person could not have committed it as a principal offender: cf. R. v. Goldie ; Ex parte Picklum , at pp. 263-264; Mallan v. Lee ; Reg. v. Australian Industrial Court ; Ex parte C. L. M. Holdings Pty. Ltd . , at pp. 245-246.' A similar view was expressed by Wilson, Deane and Dawson JJ at 501: 'The application of that section [section 351] may be excluded by necessary implication (see Mallan v Lee, per Dixon J.; Morris v Tolman ; Ellis v Guerin ) and it would be excluded if it appeared that the offence of culpable driving created by the legislature was intended to apply only to the driver of the vehicle involved and not to a secondary participant. The mere absence in the section of any reference to secondary participation does not, however, show any intention to exclude it: see Hale's Pleas of the Crown (1800), vol 1, p 704; R v Potts .' 206 Mason J held at 492 that the mere description of the offender under s 52A of the Crimes Act 1900 (NSW) as the driver of a motor vehicle cannot be seen as evidencing a legislative intention to exclude the operation of the common law with respect to secondary participation. Nor, his Honour opined, could such an intention be otherwise extracted from the nature of the offence or the terms of the section by which it was created. Accordingly, the applicant was liable to conviction on the basis that he aided, abetted, counselled or procured the commission of the offence of culpable driving by his employee. The same conclusion was reached by Gibbs CJ at 477; see also Wilson, Deane and Dawson JJ at 503. 207 In reliance on Dixon J's approach in Mallan , as affirmed in Giorgianni , the CEPU submitted that the question whether a statutory provision excludes accessorial liability is to be determined by having regard to the way in which a section is structured and the purposes for which it was enacted. If such an approach is applied in the present case, the CEPU argued, there is a strong inference that the legislature did not intend a union, as a necessary party to a contravention of ss 45E and 45EA, to be caught by the accessorial liability provisions of the TPA. 208 It is important to note that the statutory provisions at issue in Giorgianni and Mallan differed in material respects from the provisions of the TPA in the present case. In Mallan , the Income Tax Assessment Act provided that the company on whose behalf the alleged accessory had acted was vicariously liable for his acts. In Giorgianni , the legislation deemed an accessory, who was not a 'driver', to be liable as a principal for the offence of culpable driving. Nevertheless, Mallan and Giorgianni recognise that accessorial liability can be excluded by a sufficiently clear expression of a contrary legislative intention. 214 Insofar as it is possible to discern the policy of the legislation, it is unlikely that the legislature intended to exclude a union from liability in relation to a contravention of ss 45E and/or 45EA. Unions are not a class of persons whom the legislation is designed to protect: see Mallan v Lee ; cf R v Tyrell [1894] 1 QB 710. Quite the opposite, ss 45E and 45EA were designed to prohibit certain types of industrial action by unions. Although liability is imposed on a union as principal for the purposes of some provisions of Pt IV of the TPA, the fact that this course is not taken in relation to ss 45E and 45EA does not, of itself, evidence a legislative intention to exclude a union from liability under ss 76(1) and 80(1).


case_text: In Giorgianni v The Queen [1985] HCA 29 ; (1984) 156 CLR 473 ( 'Giorgianni' ), the High Court considered the circumstances in which the doctrine of secondary participation may be excluded. In that case, the applicant was charged with culpable driving under s 52A of the Crimes Act 1900 (NSW), in reliance on s 351. Section 351 enabled an accessory to be convicted as a principal offender. The applicant was the lessee of a truck that suffered a brake failure and collided with two motor vehicles while being driven by the applicant's employee. An issue before the Court was whether the applicant could be convicted of the offence of culpable driving as a principal by reason that he had aided, abetted, counselled or procured the commission of the offence by his employee. 207 In reliance on Dixon J's approach in Mallan , as affirmed in Giorgianni , the CEPU submitted that the question whether a statutory provision excludes accessorial liability is to be determined by having regard to the way in which a section is structured and the purposes for which it was enacted. If such an approach is applied in the present case, the CEPU argued, there is a strong inference that the legislature did not intend a union, as a necessary party to a contravention of ss 45E and 45EA, to be caught by the accessorial liability provisions of the TPA. 208 It is important to note that the statutory provisions at issue in Giorgianni and Mallan differed in material respects from the provisions of the TPA in the present case. In Mallan , the Income Tax Assessment Act provided that the company on whose behalf the alleged accessory had acted was vicariously liable for his acts. In Giorgianni , the legislation deemed an accessory, who was not a 'driver', to be liable as a principal for the offence of culpable driving. Nevertheless, Mallan and Giorgianni recognise that accessorial liability can be excluded by a sufficiently clear expression of a contrary legislative intention. 218 It is also worth noting that ss 76(1) and 80(1) of the TPA catch accessorial conduct of the kinds falling within paras (d), (e) or (f), which includes persons who are directly or indirectly knowingly concerned in, or party to, a contravention: cf Giorgianni . The application of accessorial liability to persons who are parties to a contravention indicates that the legislature intended that accessorial liability would attach to parties to a contract, arrangement or understanding which contravenes the principal provision. 219 I am satisfied that ss 76(1) and 80(1) apply to a union which is a party to a contract, arrangement or understanding which contravenes ss 45E and 45EA. It follows that the CEPU is not excluded from accessorial liability under ss 76(1) and 80(1) of the TPA in relation to contraventions of ss 45E and 45EA. 220 The next question is whether the CEPU's conduct attracts liability under ss 76(1) and 80(1). The principles of accessorial liability applicable to the present case can be shortly stated. It is necessary to prove knowledge of the essential elements constituting the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 670. The requirement of 'knowledge' is actual and not constructive knowledge: Giorgianni at 504-507; Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 5. Actual knowledge may be established as a matter of inference from the circumstances surrounding the contravention: Pereira v Director of Public Prosecutions [1988] HCA 57 ; (1998) 82 ALR 217 at 219.


case_title: R v Tyrell [1894] 1 QB 710

case_text: Insofar as it is possible to discern the policy of the legislation, it is unlikely that the legislature intended to exclude a union from liability in relation to a contravention of ss 45E and/or 45EA. Unions are not a class of persons whom the legislation is designed to protect: see Mallan v Lee ; cf R v Tyrell [1894] 1 QB 710. Quite the opposite, ss 45E and 45EA were designed to prohibit certain types of industrial action by unions. Although liability is imposed on a union as principal for the purposes of some provisions of Pt IV of the TPA, the fact that this course is not taken in relation to ss 45E and 45EA does not, of itself, evidence a legislative intention to exclude a union from liability under ss 76(1) and 80(1).


case_text: The next question is whether the CEPU's conduct attracts liability under ss 76(1) and 80(1). The principles of accessorial liability applicable to the present case can be shortly stated. It is necessary to prove knowledge of the essential elements constituting the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 670. The requirement of 'knowledge' is actual and not constructive knowledge: Giorgianni at 504-507; Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 5. Actual knowledge may be established as a matter of inference from the circumstances surrounding the contravention: Pereira v Director of Public Prosecutions [1988] HCA 57 ; (1998) 82 ALR 217 at 219.


case_title: Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1


case_title: Pereira v Director of Public Prosecutions [1988] HCA 57 ; (1998) 82 ALR 217


case_text: As to whether the CEPU was involved in Edison's contravention of s 45EA, it is necessary to bear in mind the width of the concept of 'give effect to'. It is defined in s 4(1) as including the doing of 'an act or thing in pursuance of or in accordance with' the contract, arrangement or understanding. An act or thing may be done in accordance with a contract, arrangement or understanding even though the person who did that act or thing did not have the contract, arrangement or understanding in mind at the time: TNT at 68. Independent decisions made by parties to a contract, arrangement or understanding can nevertheless give effect to an arrangement made between them: Dowling v Dalgety Australia Ltd (1992) 34 FCR 109.


case_text: There is utility in making a declaration of the kind sought by the ACCC: see Rural Press at 92 [95]. It will record the consequences of the Court's findings in a legally binding way, and will mark the Court's disapproval of the CEPU's conduct. However, it is essential that the terms of the declaration are tied to the proven facts: see Rural Press at 91 [90]; cf Bass v Permanent Trustee Company Ltd [1999] HCA 9 ; (1999) 198 CLR 334; and Electricity Supply Association of Australia v Australian Competition and Consumer Commission [2001] FCA 1296 ; (2001) 113 FCR 230. I propose to vary the terms of the declarations sought by the ACCC to ensure that they accord with and are sufficiently tied to the factual findings I have made. 231 In the present case, the ACCC sought injunctive relief against the CEPU in extremely wide terms. Effectively, the first order seeks to restrain the CEPU from aiding, abetting, counselling, procuring, inducing or attempting to induce, or being knowingly concerned in or party to Edison making a contract, arrangement or understanding with the CEPU where the contract, arrangement or understanding contains a provision that was included for the purposes described in s 45E(3). The second order goes further and seeks to restrain the CEPU from aiding, abetting, etc any person making a contract, arrangement or understanding with the CEPU that contains a provision contravening s 45E(3). The third order seeks to restrain the CEPU from counselling, procuring, inducing or attempting to induce Edison to give effect to a provision of a contract, arrangement or understanding between Edison and the CEPU where the provision was included for a purpose proscribed by s 45E(3). The fourth order is similar to the third except that it seeks to restrain the CEPU from counselling etc any person to give effect to a provision of a contract, arrangement or understanding between that person and the CEPU which contains a provision included for a proscribed purpose. None of the proposed injunctions are confined to the particular contract, arrangement or understanding which gave rise to Edison's contraventions in this case, and none are limited in time. In my opinion, the injunctions are cast far too widely. 232 The first question is whether the Court should exercise its discretion to grant any injunction against the CEPU or its officers in the circumstances which now prevail. The arrangement between Edison and the CEPU came to an end in late November 2003. DJN resumed work at Loy Yang B in early 2004. There is no suggestion in the evidence that the accessorial conduct on the part of the CEPU has recurred, or that it is likely to recur. On the other hand it is relevant to take into account the deliberate nature of the conduct that the CEPU engaged in during August 2001. 233 The terms of the injunctive orders proposed by the ACCC raise questions as to the appropriateness of granting any injunctive relief. In an attempt to keep the injunctions within proper bounds, the ACCC's proposed orders are replete with definitional provisions that attempt to mirror the requirements of s 45E(1), (3) and (7). Despite these extensive definitions, the ACCC's draft orders do not capture the exception which appears in s 45E(8). The extensive definitional clauses that are attached to the draft orders mean that each order takes on a rather abstract appearance that largely restates the requirements of s 45E(1), (3) and (7) of the TPA. Two of the proposed orders refer specifically to a contract, arrangement or understanding between Edison and the CEPU, but even those orders are not aimed at the August 2001 arrangement because that ended long ago. The other two orders are directed to conduct that, inter alia, procures or induces any person to make, or to give effect to, any arrangement between that person and the CEPU where it contains a provision that would satisfy the requirements of s 45E(1), (3) and (7). As a result, these orders very much have the appearance of orders that attempt to restate the general prohibition that appears in s 45E of the TPA. 234 In my opinion, the terms of the injunctive orders proposed by the ACCC are plainly inappropriate. On the authorities, any injunction must have a clear and sufficient connection with the proven conduct that attracts the jurisdiction of the Court. Any injunction must also be capable of being expressed clearly and in a manner which can be understood by those required to comply with it. I would not contemplate an injunction that operates indefinitely. Where an injunctive order is sought in respect of a class of conduct, similar to proven conduct that has come to an end, I consider that it should only operate for a limited period of time. This is a course commonly taken in the authorities. 235 On balance, I am persuaded that this is a case in which it is appropriate to grant an injunction for a limited period, and in quite specific terms, that will operate by way of deterrence and mark the Court's disapproval of the CEPU's conduct. In my view, the injunction must have a close nexus with the proven conduct that attracts the jurisdiction of the Court. I consider that it should operate for a period of three years and no longer.


case_text: There is utility in making a declaration of the kind sought by the ACCC: see Rural Press at 92 [95]. It will record the consequences of the Court's findings in a legally binding way, and will mark the Court's disapproval of the CEPU's conduct. However, it is essential that the terms of the declaration are tied to the proven facts: see Rural Press at 91 [90]; cf Bass v Permanent Trustee Company Ltd [1999] HCA 9 ; (1999) 198 CLR 334; and Electricity Supply Association of Australia v Australian Competition and Consumer Commission [2001] FCA 1296 ; (2001) 113 FCR 230. I propose to vary the terms of the declarations sought by the ACCC to ensure that they accord with and are sufficiently tied to the factual findings I have made.


case_text: The principles governing the grant of final injunctive relief under s 80 of the TPA, in a case such as this, are not in doubt. Section 80(1) confers a wide power on the Court to grant an injunction where it is satisfied that a person has engaged or is proposing to engage in conduct that constitutes or would constitute conduct of the description in paras (a)-(f). It has been described as a 'widely drawn remedial provision available to restrain conduct which may infringe upon [the] public interest by contraventions of the provisions of the Act in Part IV and Part V': per French J in ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 248 ( 'ICI' ) at 268. The breadth of the Court's discretion is underscored by s 80(4) which permits the Court to grant injunctive relief whether or not the person intends to engage in conduct of the kind restrained, or the person has previously engaged in conduct of that kind, or there is an imminent danger of substantial damage to any person if the conduct is repeated or continued. 228 In ICI, the Full Court at 257-258 and 267-268 rejected a submission that s 80 creates a presumption in favour of a grant of a final injunction where a contravention or proposed contravention of the TPA is made out. Lockhart J said at 256-257 that the public interest character of s 80, and the breadth and flexibility of its statutory provisions, do not mean that traditional equitable doctrines are irrelevant. It remains relevant to consider questions of repetition of conduct, whether it has ever occurred before, or whether imminent substantial damage is likely, although the absence of any one or more of those elements is not fatal to the grant of an injunction. Equally, the public interest character of s 80 means that deterrence is a relevant consideration. French J said that there is room within the statutory framework and its underlying policy for an injunction which is not intended to restrain an apprehended repetition of contravening conduct, but to deter an offender from repeating the offence: ICI at 268. In Trade Practices Commission v Mobil Oil Australia Ltd (1985) 4 FCR 296, Toohey J said that in the case of a particularly flagrant breach and in the absence of any evidence of an intention on the offender's part to continue the conduct, it might nonetheless be appropriate to mark the Court's disapproval by an injunction as well as a monetary penalty: at 300. 229 As to the terms in which a final injunction should be granted, the Court's discretion is as wide as the phrase 'as the Court determines to be appropriate'. On first principles, it is plain that the terms of an injunction should be clear and unambiguous, leaving no room for doubt as to the nature and scope of the future conduct that falls within its boundaries: see, eg, ICI at 259 per Lockhart J. A final injunction should not be granted in terms which simply enjoin the respondent not to breach the Act: see Trade Practices Commission v Walplan Pty Ltd (1985) 7 FCR 495; Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574; ICI per Lockhart J at 259-260; and BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452 ( 'BMW' ) at 465-466 [36]-[39]. 230 The terms of an injunction will not be appropriate if it extends to conduct that does not have an appropriate nexus with the contravening conduct that attracts the operation of s 80: see ICI at 367 per Gummow J. Depending upon the nature of the contravening conduct, it may be legitimate to grant an injunction against a respondent preventing it from engaging in conduct in a similar manner, or to like effect, as the conduct which was the subject of the established contravention: see ICI at 261; and BMW at 465 [36]. The desirability of granting an injunction in this extended form will depend on the circumstances of the case and the existence of a sufficient nexus with the conduct that contravenes the Act.


case_text: There are at least three limitations on the Court's power under s 80. They were summarised by Merkel J in Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 at 203-204 in these terms: 'First, the power is confined by reference to the scope and purpose of the TPA and in particular s 80. It is within the scope and purpose of s 80 to grant injunctive relief which is designed to prevent a repetition of the conduct for which the relief is sought. Secondly there is a contextual limitation within s 80 itself. As the jurisdiction to grant an injunction is enlivened by an alleged or actual contravention of a provision of Pt IV, IVA or V of the TPA, there must be a sufficient nexus or relationship between the contravention and the injunction granted. It is that nexus or relationship that enables determination by the Court of whether the injunction sought is "appropriate". Thirdly, there is the constitutional limitation which requires that the injunction granted be related to the case or controversy the subject of the proceeding.'


case_text: In ICI, the Full Court at 257-258 and 267-268 rejected a submission that s 80 creates a presumption in favour of a grant of a final injunction where a contravention or proposed contravention of the TPA is made out. Lockhart J said at 256-257 that the public interest character of s 80, and the breadth and flexibility of its statutory provisions, do not mean that traditional equitable doctrines are irrelevant. It remains relevant to consider questions of repetition of conduct, whether it has ever occurred before, or whether imminent substantial damage is likely, although the absence of any one or more of those elements is not fatal to the grant of an injunction. Equally, the public interest character of s 80 means that deterrence is a relevant consideration. French J said that there is room within the statutory framework and its underlying policy for an injunction which is not intended to restrain an apprehended repetition of contravening conduct, but to deter an offender from repeating the offence: ICI at 268. In Trade Practices Commission v Mobil Oil Australia Ltd (1985) 4 FCR 296, Toohey J said that in the case of a particularly flagrant breach and in the absence of any evidence of an intention on the offender's part to continue the conduct, it might nonetheless be appropriate to mark the Court's disapproval by an injunction as well as a monetary penalty: at 300.


case_text: As to the terms in which a final injunction should be granted, the Court's discretion is as wide as the phrase 'as the Court determines to be appropriate'. On first principles, it is plain that the terms of an injunction should be clear and unambiguous, leaving no room for doubt as to the nature and scope of the future conduct that falls within its boundaries: see, eg, ICI at 259 per Lockhart J. A final injunction should not be granted in terms which simply enjoin the respondent not to breach the Act: see Trade Practices Commission v Walplan Pty Ltd (1985) 7 FCR 495; Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574; ICI per Lockhart J at 259-260; and BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452 ( 'BMW' ) at 465-466 [36]-[39].


case_title: Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563


case_text: As to the terms in which a final injunction should be granted, the Court's discretion is as wide as the phrase 'as the Court determines to be appropriate'. On first principles, it is plain that the terms of an injunction should be clear and unambiguous, leaving no room for doubt as to the nature and scope of the future conduct that falls within its boundaries: see, eg, ICI at 259 per Lockhart J. A final injunction should not be granted in terms which simply enjoin the respondent not to breach the Act: see Trade Practices Commission v Walplan Pty Ltd (1985) 7 FCR 495; Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574; ICI per Lockhart J at 259-260; and BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452 ( 'BMW' ) at 465-466 [36]-[39]. 230 The terms of an injunction will not be appropriate if it extends to conduct that does not have an appropriate nexus with the contravening conduct that attracts the operation of s 80: see ICI at 367 per Gummow J. Depending upon the nature of the contravening conduct, it may be legitimate to grant an injunction against a respondent preventing it from engaging in conduct in a similar manner, or to like effect, as the conduct which was the subject of the established contravention: see ICI at 261; and BMW at 465 [36]. The desirability of granting an injunction in this extended form will depend on the circumstances of the case and the existence of a sufficient nexus with the conduct that contravenes the Act.


case_text: As to whether facts as found fall within the ordinary meaning of the words used in a statute, the same normally involves an issue of law. Thus for instance in NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation [1955] HCA 23 ; (1956) 94 CLR 509 at 512, Kitto J observed as follows: 'The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words as so determined; and that is a question of law... If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact... .' 5 On 11 December 2000, Mr Milne made application for release of his income taxation liability for the fiscal years ended 30 June 1991 to 30 June 1999 (inclusive). He was examined by the Tribunal and a report of that examination was forwarded to the Taxation Relief Board ('the Board') on 16 October 2001. Subsequently on 25 October 2001, the Board granted Mr Milne partial relief from his then income taxation indebtedness to the Commissioner. There was no evidence that such taxation indebtedness was incurred in consequence of Mr Milne's engagement in taxation avoidance or in any taxation scheme of any kind. The total amount of income tax indebtedness the subject of the Board's consideration was $89,547.10, and the extent of the relief so granted was $37,532.48. The Board's reasons for decision were as follows: 'The Board considered that the applicant could make a genuine attempt to repay a part of the debt by instalments without being deprived of the necessities mentioned above (food, clothing, medical supplies, accommodation, education for children and other basic requirements). In reaching this decision, the Board noted that two separate statements contained in the AAT report pointed to the capacity of the applicant to pay up to $50,000 toward the debt.' 6 Subsequently on 24 October 2003, Mr Milne made a further application for release from his income tax liability, by that time amounting to $96,062.62, relating to the fiscal years 30 June 1993 to 30 June 2002 (inclusive). The context to that further application included the prior service of a bankruptcy notice in February 2003 and of a creditor's petition on 18 June 2003, in each case at the instance of the Commissioner. The application for release was rejected by the Commissioner on 23 February 2004, and Mr Milne applied to the Tribunal, on 25 February 2004 for review of that second decision, pursuant to Part IVC of the Administration Act headed Taxation objections, reviews and appeals. By the time of the hearing by the Tribunal of that review application on 9 May 2005, according to the Commissioner's evidence, the tax debt had increased to $187,430.25, whereof the amount eligible for release amounted to $149,876.68. Moreover the Commissioner indicated to the Tribunal that a further $15,895 would become due for payment on 12 May 2005, and that there might well be future unspecified taxation debts.


case_outcome: referred to

case_text: The Tribunal next referred to the ' two stage process ' identified and discussed by Member Trowse in Re Filsell and Commissioner of Taxation [2004] AATA 1012 in the following context of his consideration of the implications of s 340-5(3) of the Administration Act: 'In the Tribunal's opinion, the language of the legislation requires a two stage approach. First, the decision-maker must decide whether the settlement of the liability will result in serious hardship. If that decision is favourable to the applicant, the discretion offered by sub-section 340-5(3) then falls for consideration. In reaching the decision to release in whole or part, the question to be addressed is whether, in all the circumstances, it is just and proper to provide the requested relief. Matters pertaining to the incidence and consequence of the tax and the effect of its exaction upon the affairs of the person will bear upon the issue of whether the relief is just and proper. Support for the two stage approach is to be found in the decision of the High Court in Rex v Trebilco; ex parte F.S. Falkiner & Sons Ltd [1936] HCA 63 ; (1936) 56 CLR 20 .' I have of course extracted s 340-5(3) of the Administration Act earlier in these reasons. I would respectfully seek to apply that principled approach. 18 As to the notion of serious hardship above addressed in Filsell , the Tribunal below drew attention to Re Wilson and Minister for Territories (1985) 7 ALD 225, where Deputy President Hall discussed (at 229) the meaning of the similar notion of undue hardship, in the context of exercise of the statutory discretion of the Minister to discharge a liability for payment of rates on the ground of undue hardship, being a meaning said by Deputy President Hall to connote something more severe than substantial hardship . The Tribunal below also discussed Deputy President Hall's view that undue hardship means 'hardship that is excessive in the circumstances', and that 'foreseeability and control' constitute 'relevant considerations' to the determination of hardship . Understandably Deputy President Hall further observed that neither expression undue hardship nor substantial hardship is susceptible to 'precise quantification' . The rationalisation of authorities undertaken in Re Wilson has provided assistance to later administrative decisions concerning this and analogous legislative provisions. 54 In reaching that conclusion, I have been unable to accept that the Tribunal was bound to adopt and implement the approach to administrative review advocated by the Commissioner, inclusively by way of appraisal of any comparison of the value of Mr Milne's assets with the amount of his liabilities at any relevant point of time, having regard to the reality of the extent of the financial hardship which would be likely to attend an exaction of the amount required to satisfy Mr Milne's outstanding taxation indebtedness, inclusive of accrued statutory interest changes, which, if not leaving Mr Milne 'destitute without any means of support' , would have constituted nevertheless serious hardship , in accordance with the text of the Commissioner's policy guidelines framed by TR 2440 and in the light of the approach undertaken specifically and by way of practical exemplification in Re Filsell and Re Wilson .


case_text: As to the notion of serious hardship above addressed in Filsell , the Tribunal below drew attention to Re Wilson and Minister for Territories (1985) 7 ALD 225, where Deputy President Hall discussed (at 229) the meaning of the similar notion of undue hardship, in the context of exercise of the statutory discretion of the Minister to discharge a liability for payment of rates on the ground of undue hardship, being a meaning said by Deputy President Hall to connote something more severe than substantial hardship . The Tribunal below also discussed Deputy President Hall's view that undue hardship means 'hardship that is excessive in the circumstances', and that 'foreseeability and control' constitute 'relevant considerations' to the determination of hardship . Understandably Deputy President Hall further observed that neither expression undue hardship nor substantial hardship is susceptible to 'precise quantification' . The rationalisation of authorities undertaken in Re Wilson has provided assistance to later administrative decisions concerning this and analogous legislative provisions. 22 As to the factor of fairness to other taxpayers identified in Re Wilson , being a factor which I would acknowledge to be relevant to the Tribunal's approach in principle to decision-making, the Tribunal recorded also that Mr Milne had earned a high level of income in the past, and was 'still earning income in a higher bracket'. Moreover the Tribunal found that Mr Milne had been '... able to acquire assets and to live reasonably well throughout his adverse business fortunes' , though the notions of high and higher are of course relative concepts, and need to be applied with care having regard to all conceivably relevant circumstances. In any event the Tribunal accepted in favour of the Commissioner the proposition that '... releasing Mr Milne would not be fair in the absence of special factors' , consistently with the previous Tribunal decisions of Ferguson and Commissioner of Taxation [2004] AATA 779 and Spicer and Commissioner of Taxation [2002] AATA 960 , the Tribunal exemplifying Ferguson as a case involving insufficient hardship for the availability of taxation relief. In the present case moreover, the Tribunal emphasised as a so-called 'special factor' in favour of Mr Milne for the grant of serious hardship relief his 'battle to continue work despite his very poor health and the need to support his dependant son until he finishes his schooling and obtains his HSC' . 54 In reaching that conclusion, I have been unable to accept that the Tribunal was bound to adopt and implement the approach to administrative review advocated by the Commissioner, inclusively by way of appraisal of any comparison of the value of Mr Milne's assets with the amount of his liabilities at any relevant point of time, having regard to the reality of the extent of the financial hardship which would be likely to attend an exaction of the amount required to satisfy Mr Milne's outstanding taxation indebtedness, inclusive of accrued statutory interest changes, which, if not leaving Mr Milne 'destitute without any means of support' , would have constituted nevertheless serious hardship , in accordance with the text of the Commissioner's policy guidelines framed by TR 2440 and in the light of the approach undertaken specifically and by way of practical exemplification in Re Filsell and Re Wilson .


case_text: As to the factor of fairness to other taxpayers identified in Re Wilson , being a factor which I would acknowledge to be relevant to the Tribunal's approach in principle to decision-making, the Tribunal recorded also that Mr Milne had earned a high level of income in the past, and was 'still earning income in a higher bracket'. Moreover the Tribunal found that Mr Milne had been '... able to acquire assets and to live reasonably well throughout his adverse business fortunes' , though the notions of high and higher are of course relative concepts, and need to be applied with care having regard to all conceivably relevant circumstances. In any event the Tribunal accepted in favour of the Commissioner the proposition that '... releasing Mr Milne would not be fair in the absence of special factors' , consistently with the previous Tribunal decisions of Ferguson and Commissioner of Taxation [2004] AATA 779 and Spicer and Commissioner of Taxation [2002] AATA 960 , the Tribunal exemplifying Ferguson as a case involving insufficient hardship for the availability of taxation relief. In the present case moreover, the Tribunal emphasised as a so-called 'special factor' in favour of Mr Milne for the grant of serious hardship relief his 'battle to continue work despite his very poor health and the need to support his dependant son until he finishes his schooling and obtains his HSC' .


case_title: Spicer and Commissioner of Taxation [2002] AATA 960


case_title: Powell v Evreniades (1989) 21 FCR 252

case_text: Further to the statutory notion of serious hardship addressed in decisions referrable to the not dissimilarly framed provisions of the precursor s 265 of the Income Tax Assessment Act 1936 (Cth), reliance was placed by the Tribunal upon this Court's decisions in Powell v Evreniades (1989) 21 FCR 252, where Hill J made the following observations at 258-260 in the context of the then Tax Relief Board's statutory discretion to release the trustee of a deceased person's estate wholly or in part from a taxation liability in the case of 'serious hardship': '... The Court will not subject [a statement pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ] to a fine analysis with a view to finding through a microscopic study of it some error of law.... There is no definition in s 265 of what is meant by "serious hardship" nor would one expect there to be. Each of the words in the phrase is an ordinary English word having a well understood meaning... The context in which the words appear makes it clear that the Relief Board is to consider whether the exaction of the full amount of tax would involve the dependants of a deceased taxpayer in financial difficulty which in all the circumstances can be said to be serious... it is obvious enough that what will constitute either will depend upon the circumstances of a given case. It is inappropriate to endeavour in the abstract to state tests of what will and what will not constitute serious hardship within the context of s 265. Clearly there would be severe financial hardship if the dependants of a deceased person were left destitute without any means of support. That is not to say that in any particular case something less than that will not constitute serious hardship. ... it was open to the Board to conclude that the exaction of the full amount of tax would cause serious hardship, just as it was also open to the Board to conclude that exaction of the whole tax would not leave this applicant and her daughter in a situation that could properly be described as one of serious hardship. The circumstances of the present case, while clearly very close to the end of the spectrum representing destitution still come within that range of spectrum in which the decision could not be described as unreasonable in the Wednesbury sense... that is to say unless consideration of some extraneous or irrelevant factor intervened to vitiate the decision.... ... I can see no error of law in the way to which the Board so proceeded.' Understandably counsel for Mr Milne invoked, as largely here applicable, those observations of his Honour. As I have already implied, that precursor s 265 was expressed to require regard to be paid to the serious hardship which might otherwise affect a taxpayer in the event of an absence of intervention by way of release (or partial release) of income tax liability. That precursor provision operated directly in favour of the dependants of a deceased taxpayer as well as a taxpayer, but for present purposes, the dictum of his Honour in Powell nevertheless provides a significant measure of assistance in relation to the operation of the present s 340- 5 . 24 Further in his reasons for judgment in Powell at 263, Hill J referred to the dictum of Windeyer J in Giris Pty Ltd v Commissioner of Taxation [1969] HCA 5 ; (1969) 119 CLR 365 at 384 concerning the need '... to be guided and controlled by the policy and purpose of the enactment, so far as that is manifest in it [and to] exclude from... consideration any matter which it would be unlawful... to take as a criterion... [subject to the qualification where] the statute seems to allow great latitude to the Commissioner in forming his opinion' . Moreover his Honour referred to what was said by Dixon J (as he then was) in R v Trebilco; Ex parte FS Falkiner & Sons Ltd [1936] HCA 63 ; (1936) 56 CLR 20 at 32 as to certain statutory 'considerations by which an exercise of discretion is to be guided... [t] he nature of those considerations [to] be gathered from the scope and object of the provision' . Additionally his Honour referred further to dictum of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40, where his Honour described the statutory discretion there addressed, albeit not related to fiscal exaction, as '... similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard', and where his Honour thereafter proceeded to emphasise that '[b]y analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.' Those factors have aspects of materiality in relation to the issue or issues here falling for consideration. 25 Subsequently in Van Grieken v Veilands (1991) 21 ATR 1639, Gummow J cited the principled approach outlined by Hill J in Powell with at least implicit approval, observing that his Honour had further pointed out (at 626 of Powell ) that the decision-maker was entitled to 'consider not only such matters as go to the issue of serious hardship, but also other matters which, in the discretion of the Board, may be relevant'. 56 In my opinion submissions propounded by the Commissioner, which I have sought to outline in detail discretely or in the aggregate, do not vitiate the conclusions of the Tribunal according to law. The Tribunal's conclusions were reasonably open for adoption, being sufficiently founded upon evidentiary material bearing upon the critical statutory issue of serious hardship , including in particular the fraudulent conduct of Mr Milne's former partner in legal practice and its adverse effect upon Mr Milne financially and probably to at least an intangible extent professionally, and the unsaleable character of the Brindabella property for the time being for the reasons I have earlier indicated. It is of course necessary in that regard that the Commissioner's challenge to the factual findings of the Tribunal should establish a viable footing according to principles of administrative law, and the present appeal does not of course operate by way of a re-hearing. As I have foreshadowed, I am unable to accept that the Commissioner has distilled administrative error in the juridical sense referrable to the reasoning and findings of the Tribunal, being reasoning and findings which were rationally open for adoption in my opinion according to principles of administrative law, and in particular in the light of the relevant evidentiary material placed before the Tribunal. That material was consistent essentially with the conclusion that any enforced exaction of the outstanding income tax indebtedness of Mr Milne would cause serious hardship within the scope of that notion established for instance in Powell and subsequently in Van Grieken , and as continues in operation in the terms of operation of s 340-5 of the Administration Act.


case_text: Further in his reasons for judgment in Powell at 263, Hill J referred to the dictum of Windeyer J in Giris Pty Ltd v Commissioner of Taxation [1969] HCA 5 ; (1969) 119 CLR 365 at 384 concerning the need '... to be guided and controlled by the policy and purpose of the enactment, so far as that is manifest in it [and to] exclude from... consideration any matter which it would be unlawful... to take as a criterion... [subject to the qualification where] the statute seems to allow great latitude to the Commissioner in forming his opinion' . Moreover his Honour referred to what was said by Dixon J (as he then was) in R v Trebilco; Ex parte FS Falkiner & Sons Ltd [1936] HCA 63 ; (1936) 56 CLR 20 at 32 as to certain statutory 'considerations by which an exercise of discretion is to be guided... [t] he nature of those considerations [to] be gathered from the scope and object of the provision' . Additionally his Honour referred further to dictum of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40, where his Honour described the statutory discretion there addressed, albeit not related to fiscal exaction, as '... similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard', and where his Honour thereafter proceeded to emphasise that '[b]y analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.' Those factors have aspects of materiality in relation to the issue or issues here falling for consideration.