FEDERAL COURT OF AUSTRALIA

Seven Network Limited v Australian Competition and Consumer Commission [2004] FCAFC 267

TRADE and COMMERCE – Trade Practices Act 1974 (Cth) s 155(1) – notice to furnish information – whether notice invalid – whether matters identified in the notice capable of constituting a contravention – whether notice discloses the basis for requiring the information – whether s 155 notice can be used to identify witnesses

Trade Practices Act 1974 (Cth) ss 6, 51A, 52, 53, 65A(1), 155, 163A

Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561 distinguished

George v Rockett (1990) 170 CLR 104 cited

SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 followed

WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 followed

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 cited

Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 cited

Bannerman v Mildura Fruit Juices Pty Ltd cited (1994) 2 FCR 581 cited

Panelboard Pty Ltd v Trade Practices Commission (1981) 59 FLR 395 cited

TNT Australia Pty Ltd v Fels [1992] ATPR 41-190 cited

Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450 cited

Hussien v Chong Fook Kam [1970] AC 942 cited

Cassidy v Saatchi & Saatchi Australia Pty Ltd [2004] ATPR 41-980 cited

Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR 453 cited

Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549 cited

Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 cited

Gianni Versace SpA v Monte (2002) 119 FCR 349 cited

Yorke v Lucas (1985) 158 CLR 661 cited

Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 cited

Commissioners of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22 cited

Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211 cited

McGuinness v Attorney-General of Victoria (1940) 63 CLR 73 cited

SEVEN NETWORK LIMITED (ACN 052 816 789) v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

NSD 1174 of 2004

TAMBERLIN, SACKVILLE and EMMETT JJ

SYDNEY

6 OCTOBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1174 of 2004

BETWEEN:	SEVEN NETWORK LIMITED (ACN 052 816 789) APPELLANT
AND:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION RESPONDENT
JUDGES:	TAMBERLIN, SACKVILLE and EMMETT JJ
DATE OF ORDER:	6 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed.
The appellant pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1174 of 2004

BETWEEN:

SEVEN NETWORK LIMITED

(ACN 052 816 789)

APPELLANT

AND:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

RESPONDENT

JUDGES:	TAMBERLIN, SACKVILLE and EMMETT JJ
DATE:	6 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

TAMBERLIN J:

1 I have read the Reasons for Judgment of Sackville and Emmett JJ and I agree with their Honours’ reasons and conclusions. However, there are some matters on which I wish to make additional comment.

approach

2 As the authorities indicate, s 155 of the Trade Practices Act 1974 (Cth) (‘TP Act’) arms the Australian Competition and Consumer Commission (‘ACCC’) and its Chairman with strong investigative powers.

3 As Lockhart J pointed out in WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 188:

“The Commission [ACCC] is given the powers conferred by s 155(1) because Parliament has entrusted to it the task of investigating contraventions or possible contraventions of the Act. Armed with the powers of s 155(1) the Commission will be able to determine whether prosecutions would be likely to succeed or fail. The Commission is part of the Commonwealth’s law enforcement machinery. It is not for it to determine contravention or no; that is for the courts. The belief of the Commission whether there has been or may be a contravention is not necessary for the valid exercise of the powers of the Commission; but it must have a well-founded belief that the recipient of the notice is capable of providing information, producing documents or giving evidence that may assist in determining whether a contravention has occurred or may occur.” (Emphasis added)

4 The subsection is framed in the widest of terms, as is indicated by the use of the expressions “has reason to believe”, “is capable of”, “information”, “relating to”, “a matter”, “may constitute” and “is relevant”. The breadth of each of these terms is compounded by their use in combination. Accordingly, the courts have decided that a notice issued under the section is not to be narrowly construed: Melbourne Home of Ford Pty Ltd v The Trade Practices Commission (No 3) (1980) 47 FLR 163 at 175-176. The expression “reason to believe” imposes a relatively low threshold: see The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [130].

5 The question to be asked in this case by the ACCC or Chairman is whether each or both of the items that were screened on the appellant’s (‘Seven Network’s) television program, Today Tonight, and/or related content published on its website, considered in context, constitute a body of facts, or reasonably suspected facts, which could provide a basis for forming a reasonable belief that the Seven Network could provide information. The ACCC and/or the Chairman must consider whether it is improbable or idly speculative on the basis of facts (comprising known facts and those which may reasonably be suspected to exist) to form a belief that there may have been misleading or deceptive conduct amounting to a breach of the TP Act. The notice may be directed to, and require information from a person, even if that person has not engaged in contravening conduct: Daniels at [130].

6 In the present case, the transcripts of the items on Today Tonight can, in my view, be reasonably regarded as indicating that the compere and reporter held out the principals of the ‘Wildly Wealthy Women’ mentoring program (‘the WWW Program’) on behalf of Channel 7, indicating that participants in the WWW Program could and would become wealthy through investing in property, even if they had no money at present. On one reading of the transcripts, for example, the compere and reporter could be treated as stating as a fact that:

· by sound investment the principals of the WWW Program (Ms Boholt and Ms Forster) have become millionaires;

· the principals will reveal to participants how they can do it;

· participants will be able to achieve wealth if they follow the strategy;

· this will be the subject of an ongoing program of review which will provide information as to the progress of the investments;

· Ms Forster in eight months had brought more than $1 million worth of property with no money whatsoever, and now owns 60 properties all around Australia;

· $3000 is not a lot of money to pay for this nine month program because the principals can turn anybody into a millionaire even if they have no money;

· the principals have made millions of dollars;

· the principals have “secrets” as to how to achieve this financial result and that they will share these secrets;

· there has been a response from more than 5000 women;

· 600 women have paid almost $3000 each for the nine month program; and

· although property developers have a bad name, these developers say that they have a “real deal”.

7 The Today Tonight items and the website are cross-referenced to each other so that for all practical purposes they can be considered together in dealing with the questions raised on this application.

8 The items on Today Tonight are capable of being seen as urging the viewers to tune in and follow future items which will provide the service of informing them as to the progress of investments made by participants in the WWW Program. It is indicated that Today Tonight, in future items, will trace how far they have been successful. This is in effect an exhortation or encouragement to watch further items on Channel 7.

9 In my opinion, it is not idly speculative or fanciful to suggest that a reasonable view might be taken, on the basis of the material in the transcripts and on the website, that the views expressed on Today Tonight by the principals were made with the approval of Channel 7. The determination of the question as to whether in fact there was a contravention of the TP Act need not and cannot be decided at the present stage. However, there is a basis in the material for considering whether an action should be brought, even if, in the final analysis, such action may not ultimately be successful in relation to the representations made on Today Tonight or the website.

10 It may be, when all the circumstances are considered, that the ACCC does not commence any proceedings, or is ultimately unsuccessful in proceedings that it does commence. However, the present question is not whether any proceeding is likely to succeed but whether there is a sufficient nexus between the material in question and the Seven Network to warrant the reasonable formation of a belief that there has been or may be a contravention of s 52 of the TP Act, so that there was a proper basis for issuing the Notice.

section 65A – information provider

11 I agree that the representations are capable of coming within the exception of s 65A(1) of the TP Act because they could be construed as the publication of an advertisement. This is ultimately a matter for consideration by the court on all the material when and if the matter is commenced and heard. Material is sought for the purposes of investigation and not for determination. The latter is for the courts.

12 In addition, I consider that there is sufficient reasonable basis for the investigation into whether the Today Tonight items and/or the website constitute the publication of matter by Channel 7 in, or in connection with, the possible supply or provision of services. This is because the WWW Program items are structured as on ongoing process, indicating that future items to be broadcast on Today Tonight will follow up the progress of the investment program and the performance of the principles and the participants. The suggestion of follow-up could be seen as an incentive for persons to tune in and avail themselves of the broadcast services of Channel 7 to satisfy the curiosity or the appetite wetted by the presentations on Today Tonight. Accordingly, the ACCC would be entitled to investigate the relationship between the principals and Channel 7, with a view to determining whether the material is publication of matter in connection with the possible supply of services, and whether the publication was pursuant to a contract arrangement or understanding between the principals and Channel 7.

Is the notice sufficient with no reference to s 65A?

13 There is no reference in the Notice to s 65A. It is therefore submitted that the Notice is defective, because it does not refer to the availability or deficiency of this section as a possible defence.

14 In my view, the short answer to this question is to be found in the Statement of Principles expressed by Brennan and Lockhart JJ in WA Pines. In that case, at 180, Brennan J said:

“It is not necessary that he [the Chairman] should believe that the information documents or evidence will establish or tend to establish a contravention, but merely that they relate to the matter. Information documents and evidence which tend to negative a suspected contravention or liability to conviction or which tend to exculpate a person suspected to be a party to a contravention or an offence are as much within the ambit of s 155(1) as information documents or evidence which tend in the other direction. Thus, an inquiry under s 155 may relate to a defence or possible defence under s 85.”

15 Lockhart J at 188 said:

“The Commission may seek to exercise its powers under s 155 to obtain information or documents that may be exculpatory rather than inculpatory. Surely this must be a proper exercise of the power conferred by s 155; in which case plainly it is unnecessary for the Commission to have the belief that there has been or may be a contravention of the Act.”

16 Because it is part of the ACCC’s function to be concerned with investigation of contraventions or possible contraventions of the TP Act, and to be concerned with determining whether any proceedings, civil or criminal, should be brought in respect of a contravention, the ACCC will quite properly have a concern to know and investigate whether there is a possible defence under s 85(1). If satisfied that there would be a good defence under that section, presumably the ACCC would not expend public monies on a futile prosecution. The effect of this is to render the ambit of the ACCC’s proper inquiries under s 155(1) wider than they otherwise would be.

17 In my view, it is not necessary for the Chairman to specify and refer to in the notice any possible defence which may be raised by a defendant. In the investigation, and in order to consider whether proceedings can or should be brought, it is clearly relevant to consider possible defences. However, it is not necessary to specifically refer to and identify each possible defence in the notice. The availability of any defence or exemption is part of the matter giving rise to an investigation of a possible contravention of the TP Act. For example, it does not have to be asserted that if a s 65A defence were to be raised then the Chairman would be relying on the exemption, under s 65A, to the protection afforded by that provision. The investigation of such a possible defence is an integral part of the “matter”, which is the subject of the notice.

Nature of the information sought

18 The belief which must be held is that the addressee of the notice is a person with the capacity to provide information. The term “information” is broad and far-reaching. It can include the identification and location of another person who in turn may be considered capable of providing information. There is no reason why details as to the names and addresses of persons involved in the presentation of the Today Tonight items on the WWW Program cannot be regarded as being “information”. The information sought is predicated on the role of such persons in relation to the items and the website. The ordinary and natural meaning of the word “information” would encompass such details. Section 155(1)(a) does not require a belief as to the specific content of the information beyond the fact that it must relate to a possible contravention of the TP Act. The notice is for the purpose of an investigation into whether there exists any such information, and to ascertain its nature and terms. An investigator has to start somewhere. There always must be a commencing point to an investigation and a reasonable view can be formed that as a first step it is necessary to identify a person who has or may be able to give relevant information. The identity and location of the persons who could reasonably be said to be involved may lead to further steps being taken in the investigation, but this does not mean that those details themselves are not an important part of the investigation itself.

19 The Notice in this case goes far beyond nominating possible witnesses. The persons whose identity and location is sought are nominated with reference to the roles played in the production of the WWW Program items and website, namely, the executive producer, the content providers, the compere, and persons responsible for the creation of the related text and its publication on the website.

20 It is not idle speculation to consider that such persons may be considered capable of providing information relating the content, context and mode or presentation and arrangements relating to the production of the Today Tonight items or website. The persons in question are selected by reference to involvement in these items and the website material, and not simply on the basis that there may possibly be such a person in existence and that they may possibly be called as witnesses in the proceeding.

21 The present case bears no analogy to that in Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561, because in that case the notice was speculative in nature, and was directed to determining whether there were any persons in existence who had communicated with the mail order company, in the manner of a fishing exercise. In the present case, on the face of the notice, the persons in respect of whom the information is sought by reason of their functions and roles are persons who, by definition, could reasonably be anticipated to have some knowledge in relation to relevant matters concerning the production of the Today Tonight items and the publication of related content on the website.

22 Accordingly, the application in this case should be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 6 October 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1174 of 2004

BETWEEN:

SEVEN NETWORK LIMITED

(ACN 052 816 789)

APPELLANT

AND:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

RESPONDENT

JUDGES:	TAMBERLIN, SACKVILLE and EMMETT JJ
DATE:	6 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

SACKVILLE and EMMETT JJ:

THE ISSUE

23 The question in this appeal is whether a notice served by the Australian Competition and Consumer Commission (‘ACCC’) on Seven Network Ltd (‘Seven Network’) requiring Seven Network to provide specified information was validly issued pursuant to s 155(1) of the Trade Practices Act 1974 (Cth) (‘TP Act’). Seven Network has appealed against the primary Judge’s dismissal of its challenge to the validity of the notice: Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCA 885. In our view, the primary Judge was correct in rejecting Seven Network’s challenge to the validity of the notice. Accordingly, we dismiss the appeal.

24 Section 155 of the TP Act relevantly provides as follows:

‘(1) …if the Commission, the Chairperson or the Deputy Chairperson has reason to believe that a person is capable of furnishing information … relating to a matter that constitutes, or may constitute, a contravention of this Act … a member of the Commission may, by notice in writing served on that person, require that person:

(a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;

…

(5) A person shall not:

(a) refuse or fail to comply with a notice under this section;

…

(6A) A person who contravenes subsection (5) … is guilty of an offence …’

BACKGROUND

25 On about 24 March 2004, the ACCC served a notice on Seven Network purportedly pursuant to s 155(1)(a) of the TP Act (‘the Notice’). The Notice required Seven Network to provide certain information said to relate to three matters that constituted or might constitute contraventions of s 52 of the TP Act. Two of the three matters related to broadcasts on 31 October 2003 and 30 January 2004, respectively, of items on Channel 7’s Today Tonight television program. The items featured a so-called mentoring program marketed under the name ‘Wildly Wealthy Women’ (the ‘WWW Program’). The third matter related to the publication on the Today Tonight website of material relating to the WWW Program.

26 Seven Network promptly instituted proceedings (on 8 April 2004) in this Court seeking declarations pursuant to s 163A of the TP Act that:

(i) the Notice was unauthorised, invalid and of no effect; and

(ii) Seven Network was not required to furnish to the ACCC the information specified in the Schedule to the Notice.

Seven Network also sought an order in the nature of certiorari in relation to the issue of the Notice.

27 The primary Judge dismissed the application on 9 July 2004: [2004] FCA 885. Seven Network’s appeal was expedited and the hearing of the appeal took place on 31 August 2004.

THE STATUTORY FRAMEWORK

28 Section 52(1) of the TP Act,which is within Div 1 of Part V, provides that:

‘A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.’

Section 51A(1) of the TP Act provides that for the purposes of Div 1 of Part V:

‘… where a corporation makes a representation with the respect to any future matter … and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading’.

Section 51A(2) states that, for the purposes of the application of s 51A(1) in relation to a representation with respect to any future matter,

‘the corporation shall, unless it adduces evidence to the contrary, be deemed not to have reasonable grounds for making the representation’.

29 Section 6(3) of the TP Act extends the application of the provisions of Div 1 of Part V, including s 52. They have the effect they would have if:

‘(a) those provisions … were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct … takes place in a radio or television broadcast; and

(b) a reference in those provisions to a corporation included a reference to a person not being a corporation’.

30 Section 65A of the TP Act limits the operation of certain provisions, including s 52, in their application to the media and others carrying on the business of providing information. Section 65A(1) relevantly provides as follows:

‘(1) Nothing in section 52 … applies to a prescribed publication of matter by a prescribed information provider, other than:

(a) a publication of matter in connection with:

(i) the supply or possible supply of goods or services;

…

(iii) the promotion by any means of the supply or use of goods or services; or

…

where:

…

(vi) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with:

(A) a person who supplies goods or services of that kind …; or

…

(b) a publication of an advertisement.’

31 There was no dispute before the primary Judge nor in this Court that Seven Network and its wholly owned subsidiaries are ‘prescribed information providers’ and that the publications identified in the Notice were ‘prescribed publications’ within the meaning of s 65A(1) of the TP Act.

32 Section 163A of the TP Act authorises a person to seek a declaration from the Court in relation, inter alia, to the validity of anything done or purporting to have been done under the TP Act.

THE NOTICE

33 The Notice recites that the Chairman of the ACCC has reason to believe that Seven Network is capable of furnishing information relating to matters that constitute or may constitute contraventions of s 52 of the TP Act. The Notice identifies three such matters.

34 The first is as follows:

‘On 31 October 2003, Seven Network (or a wholly owned subsidiary of Seven Network) caused the broadcast of an item on Channel 7’s Today Tonight television program featuring a mentoring program marketed under the name ‘Wildly Wealthy Women’ during which television program representations were made by Seven Network (or a wholly owned subsidiary of Seven Network) and/or Dymphna Boholt and Sandy Forster (the principals of the mentoring program) to the following effect:

(a) that participants in the mentoring program would become wealthy through investing in property;

(b) that participants in the mentoring program would become wealthy by investing in property even if they have no money at present;

when in fact Seven Network (or the relevant wholly owned subsidiary of Seven Network) and/or Dymphna Boholt and Sandy Forster had no reasonable grounds for making such representations. A copy of the transcript of the item is attached hereto, at “Attachment A”.’

35 The second matter is identified in the Notice in virtually identical terms, except that the broadcast is said to have taken place on 30 January 2004. The transcript of that broadcast is also attached. The third matter relates to identical representations said to have been made by Seven Network on the Today Tonight website in circumstances where it had no reasonable grounds for making such representations.

36 In the Notice, the Chairman requires Seven Network to furnish to the ACCC the following information specified in the Schedule:

‘1. State the name and address of the person who was the Executive Producer of the Today Tonight television program broadcast on 31 October 2003.

2. State the name and address of the person who was the Executive Producer of the Today Tonight television program broadcast on 30 January 2004.

3. State the name and address of each person responsible for the content of the item broadcast on Channel 7’s Today Tonight television program on 31 October 2003 which featured a mentoring program marketed under the name ‘Wildly Wealthy Women’.

4. State the name and address of each person responsible for the content of the item broadcast on Channel 7’s Today Tonight television program on 30 January 2004 which featured a mentoring program marketed under the name ‘Wildly Wealthy Women’.

5. State the name and address of the compere of the item broadcast on Channel 7’s Today Tonight television program on 31 October 2003 which featured a mentoring program marketed under the name ‘Wildly Wealthy Women’.

6. State the name and address of the compere of the item broadcast on Channel 7’s Today Tonight television program on 30 January 2004 which featured a mentoring program marketed under the name ‘Wildly Wealthy Women’.

7. State the name and address of each person responsible for:

(a) the text; and

(b) the publication;

of the content on the website http://www.todaytonight.com.au in respect of the Wildly Wealthy Women’ mentoring program at any time in the period 1 October 2003 to the date of this Notice’.

THE PRIMARY JUDGMENT

37 The primary Judge first addressed Seven Network’s contention that the matters identified in the Notice were incapable of constituting contraventions of s 52 of the TP Act by reason of the exemption provided by s 65A for prescribed information providers. Her Honour observed that the first two matters identified in the Notice involved assertions that:

(a) Seven Network (or one of its subsidiaries) may have contravened s 52 of the TP Act;

(b) the promoters of the WWW Program may have contravened s 52 of the TP Act; or

38 Her Honour pointed out that s 65A could have no operation in respect of the promoters’ conduct, which came within s 52 because of the extended operation given to that section by s 6(3) of the TP Act. Her Honour accordingly rejected the contention that the promoters’ conduct was incapable of constituting a contravention of s 52.

39 The primary Judge noted the ACCC’s concession that s 65A applied to Seven Network. But that did not mean, in her Honour’s view, that Seven Network was incapable of contravening s 52 by reason of the items broadcast on the Today Tonight program. The protection accorded by s 65A to a prescribed publication by a prescribed information provider did not extend, for example, to the publication of an advertisement (s 65A(1)(b)) or to the publication of matter in connection with the possible supply of services where the publication was made pursuant to a contract, arrangement or understanding with a person who supplies services of the relevant kind (s 65A(1)(a)). It was at least ‘theoretically possible’ that investigations would reveal that publication of the items came within s 65A(1)(a) or (b). It followed that the first two matters were not incapable of constituting contraventions of s 52 by Seven Network. Her Honour considered that the same reasoning applied to the third matter identified in the Notice.

40 Seven Network’s second submission was that it had not made any representations of the kind identified in the Notice. The primary Judge considered that the appropriate test was whether she could be satisfied that it could not be established that Seven Network (or one of the subsidiaries) had made the representations. Her Honour observed that the only evidence before her was constituted by the transcripts of the two Today Tonight programs and a copy of the material that had appeared on the Today Tonight website. She observed that additional evidence might be tendered at any hearing, for example videos of the programs and evidence of other material placed on the Today Tonight website.

41 The primary Judge noted that the promoters had used the television broadcast to promote the WWW Program ‘enthusiastically’. Her Honour considered that the statements made by the compere in both Today Tonight programs were not incapable of supporting a finding that Seven Network (or one of its subsidiaries) had itself made the representations identified in the Notice. While some remarks made in the television programs were capable of conveying scepticism, whether they did or not could not be determined from the transcript of the programs alone.

42 Her Honour was also not satisfied that the material appearing on the Today Tonight website was incapable of supporting a finding that the website conveyed the representations identified in the Notice.

43 Seven Network’s third argument was that s 155 of the TP Act could not legitimately be used to identify possible witnesses in respect of elements of asserted contraventions of the TP Act. This argument was founded on the decision of Bowen CJ in Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561. Her Honour, however, distinguished Riley McKay on the basis that each of the individuals whose name and address were sought in the Notice was more than just a possible witness on the issue of whether the person or persons who made the representations had reasonable grounds to make them. Each of them was a person who might reasonably be expected to have information touching on whether s 65A of the TP Act had the effect of rendering s 52 inapplicable to the publication of the relevant matter by Seven Network (or one of its subsidiaries). Her Honour therefore rejected Seven Network’s third contention.

44 In the result, her Honour dismissed the application with costs.

SEVEN NETWORK’S SUBMISSIONS

45 Seven Network repeated the three arguments that had been put to and rejected by the primary Judge. Mr Rares SC, who appeared with Mr Clarke for Seven Network, submitted that if it could not be established that Seven Network had made the representations identified in the Notice it must follow that the Notice was invalid. This was because the information specified in the Schedule to the Notice had been sought on the basis that Seven Network might have contravened s 52 of the TP Act. It was not consistent with the strict approach to the construction of s 155 of the TP Act required by cases such as George v Rockett (1990) 170 CLR 104, at 111-112, to attempt to sever the valid parts of the Notice from the invalid.

46 In addition, Mr Rares argued that the Notice was invalid because it did not refer to s 65A of the TP Act, in particular, to the possible applicability of the exceptions to s 65A(1). He pointed out that the Notice specifically alleged that neither the Seven Network nor the promoters had reasonable grounds for making the representations identified in the Notice (TP Act, s 51A). Yet the Notice made no reference to s 65A, nor to the need to investigate whether the Today Tonight programs constituted publication of an advertisement (s 65A(1)(b)) or had been broadcast pursuant to an arrangement or understanding with persons who supply good or services of the relevant kind (s 65A(1)(a)(vi)). In the absence of any such reference, it was impossible, so Mr Rares submitted, to determine whether the information sought by the ACCC was sufficiently connected with the alleged conduct.

REASONING

The Construction of s 155(1) of the TP Act

47 The power conferred by s 155(1) of the TP Act is conditioned (relevantly) on:

(i) the Chairperson of the ACCC having reason to believe that a person is capable of providing information

(ii) relating to a matter that constitutes or may constitute a contravention of the TP Act.

If these preconditions are satisfied, subject to any other requirements that may be read into s 155(1), the Chairperson may require the person concerned to furnish that information.

48 Section 155(1) of the TP Act has been said to provide the ACCC (as it is now called) with a ‘powerful investigative tool’: SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357, at 359, per Fisher and French JJ. However, the power conferred on the ACCC and its officers is given for the purpose of enabling the ACCC to perform its functions under the TP Act: Riley McKay Pty Ltd v Bannerman, at 566, per Bowen CJ; WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175, 187, per Lockhart J. This qualification receives support both from the language of s 155(1), considered in its context, and from the principle that statutory provisions are not to be construed as abrogating important common law rights or immunities in the absence of clear words or necessary implication: The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, at 553 [11], per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

49 The authorities have established a number of propositions concerning the interpretation of s 155(1) of the TP Act. They include the following:

(i) In a context where refusal or failure to comply with a s 155 notice is punishable by imprisonment or fine, the notice must:

(a) convey with reasonable clarity to the recipient the information that must be furnished; and

(b) disclose that the ACCC is entitled to require the recipient to furnish the specified information:

Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, at 374, per curiam.

(ii) The second of these requirements will not be satisfied unless it appears from the notice that the information sought is information ‘relating’ to one or more ‘matters’ of a kind described in s 155(1): Pyneboard v TPC, at 375; SABrewing v Baxt, at 369-370; Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581, at 584, per Bowen CJ and Neaves J. However, the question whether a notice discloses the necessary ‘relatedness’ is not to be approached in an ‘over-technical or hypercritical way’: Pyneboard v TPC, at 376. Moreover, the ‘relatedness’ is to a proper inquiry into the suspected offences: Panelboard Pty Ltd v Trade Practices Commission (1981) 59 FLR 395, at 407, per Fox J.

(iii) Section 155(1) does not require the Chairperson of the ACCC to have ‘reason to believe’ that a specified matter constitutes or may constitute a contravention of the TP Act. The Chairperson must, however, have reason to believe that the relevant person is capable of furnishing information relating to the matter specified in the notice: WA Pines v Bannerman, at 179, per Brennan J (with whom Bowen CJ agreed); TNT Australia Pty Ltd v Fels [1992] ATPR 41-190, at 40,598-40,599, per Gummow J. It follows that the Chairperson or other officer must believe that the person to whom the notice is directed is capable of furnishing information relating to the facts known or suspected: WA Pines v Bannerman, at 180. In addition, there must be facts in existence which are sufficient to induce that belief in a reasonable person: George v Rockett, at 112.

(iv) The word ‘matter’ in s 155(1) is to be construed in its ordinary sense of an affair or thing: Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450, at 474, per Franki and Northrop JJ; SA Brewing v Baxt, at 369. It refers to a body of facts which constitutes or may constitute a contravention of the TP Act. Whether or not the relevant body of facts constitutes a contravention is a matter of law and does not turn on the perception or knowledge of the ACCC or its officers: WA Pines v Bannerman, at 179.

(v) When s 155(1) speaks of a matter which may constitute a contravention, it refers to a body of facts not fully known and which may, when fully known, reveal themselves as constituting a contravention: WA Pines v Bannerman, at 179. The words ‘may constitute’ enable a court to judge from the material in the notice whether, if other facts which may or may not have occurred come to light, the whole body of facts would constitute a contravention: SA Brewing v Baxt, at 370. It is not necessary for the court to determine whether a contravention has occurred; but equally it will not ‘idly speculate’ or ‘draw on improbable circumstances’ to uphold a Notice: SA Brewing v Baxt, at 370. An alternative formulation is that the court can take account of facts which may ‘reasonably be suspected’ to have occurred: WA Pines v Bannerman, at 179.

(vi) Where the matter referred to in the notice, after allowing for undiscovered facts, is incapable of amounting to a contravention, the issue of the notice is not a valid exercise of the power conferred by s 155(1): SA Brewing v Baxt, at 371-372.

(vii) In view of the principle that a court should not adopt an ‘over-technical or hypercritical approach’ to the construction of a notice, there is no requirement that the notice ‘plead’ all the facts necessary to constitute a contravention or possible contravention of the TP Act: SA Brewing v Baxt, at 370.

(viii) Information which tends to negative a suspected contravention or liability to conviction or which tends to exculpate a person suspected to be a party to a contravention, is within the ambit of s 155(1). It follows that an inquiry under s 155 may relate to a defence or possible defence available to the suspected person: WA Pines v Bannerman, at 180.

Are the Matters Identified in the Notice Capable of Constituting a Contravention of s 52 of the TP Act?

50 Mr Rares put s 65A(1) of the TP Act at the forefront of his submissions. He did so because of the ACCC’s concession that the two Today Tonight programs and the information on the website were ‘prescribed publications’ by a ‘prescribed information provider’. By reason of that concession, so Mr Rares submitted, Seven Network enjoyed a complete exemption from s 52 in respect of the publications, unless one of the express exceptions to s 65A(1) could be shown to apply. In essence, Mr Rares argued that the elements of a contravention of s 52 of the TP Act were not complete unless and until the ACCC could show that one of the exceptions to s 65A(1), such as that for the publication of an advertisement (s 65A(1)(b)), applied.

51 In our view, however, the correct starting point is to determine whether the matters identified in the Notice, independently of the operation of s 65A(1) of the TP Act, are incapable, after allowing for undiscovered facts, of constituting conduct by Seven Network that contravenes s 52 of the TP Act: SA Brewing v Baxt, at 371-372. If the answer is in the affirmative (that is, the matters are not capable of constituting contravening conduct), there is no occasion to consider whether Seven Network’s conduct is taken out of the reach of s 52 by the operation of s 65A(1). If, however, the matters are capable of constituting contravening conduct, it becomes necessary to consider whether s 65A(1) protects Seven Network by making s 52 inapplicable to its conduct. Given the concession that Seven Network is a prescribed information provider, that question involves determining whether the matters identified in the Notice, allowing for undiscovered facts, are capable of attracting one or more of the exceptions to s 65A(1). If so, Seven Network’s conduct, as a matter of law, is capable of constituting conduct contravening s 52 of the TP Act.

52 As noted in [27(v)] above, two Full Courts have formulated what might seem to be somewhat different tests for determining whether the matters identified in a notice ‘may constitute’ a contravention of the TP Act. The differences are, however, more apparent than real. The judgment of Fisher and French JJ in SA Brewing v Baxt rules out engaging in idle speculation or drawing on improbable circumstances in deciding that question. Brennan J in WA Pines v Bannerman said that the question is to be resolved by reference to facts that might ‘reasonably be suspected’ to have existed. In George v Rockett (at 115) the High Court adopted Lord Devlin’s observation in Hussien v Chong Fook Kam [1970] AC 942, at 948, that suspicion:

‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”.’

The High Court also said (at 115) that:

‘[t]he facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground belief, yet some factual basis for the suspicion must be shown.’

Brennan J’s test would rule out idle speculation or drawing on improbable circumstances. Equally, the comments by Fisher and French JJ in SA Brewing v Baxt implicitly require some factual basis for the suspicion but falling short of material sufficient to ground a positive belief that a contravention has occurred.

53 We recognise that care must be taken not to substitute a judicial formulation for the language used by Parliament. Ultimately the question is whether the matter identified in the Notice ‘may constitute’ a contravention of the TP Act. Bearing that in mind there is, in our view, no significant difference between the formulations in SA Brewing v Baxt and WA Pines v Bannerman.

54 As Moore and Mansfield JJ noted in Cassidy v Saatchi & Saatchi Australia Pty Ltd [2004] ATPR 41-980, at [31], there can be more than one publisher of misleading information. Thus it has been held that both an advertiser and the publisher of a newspaper in which an advertisement appears can contravene s 52 of the TP Act: see for example, Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR 453; Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549, at 586, per Toohey J. Indeed, it was this construction of s 52 of the TP Act that Parliament sought to address by enacting s 65A: see Gianni Versace SpA v Monte (2002) 119 FCR 349, at 383 [121], per Tamberlin J.

55 The application of the TP Act to television advertisements is illustrated by the decision in Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531, which predated the enactment of s 65A(1) of the TP Act. A Full Court of this Court held that a television station ‘makes a false or misleading representation’ within the meaning of s 53(a) of the TP Act if it publishes a misleading advertisement.

56 Section 52 of the TP Act, unlike s 53(a), does not use the word ‘makes’. Nonetheless, it is at least arguable, subject to the operation of s 65A(1), that a television station broadcasting misleading statements in the course of a program which promotes a particular product will be taken to have engaged in misleading or deceptive conduct unless it purports to do no more than pass on information supplied by the promoters of the product and the context makes it apparent that the station is not the source of the information: cf Yorke v Lucas (1985) 158 CLR 661, at 666, per Mason ACJ, Wilson, Deane and Dawson JJ. Be that as it may, it is clear enough that the television station will be taken to have engaged in misleading or deceptive conduct if it is likely that the ‘ordinary’ or ‘reasonable’ members of the class of viewers would understand the representations made on the program as having the endorsement or approval of the television station: see Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45, at 86-87, per curiam; cf Cassidy v Saatchi, at [28].

57 The first of the Today Tonight programs included a number of statements by the promoters of the WWW Program that plainly could be construed as making the three representations identified in the Notice (see [12] above). The transcript indicates that the compere and the reporter made a number of comments that are capable of being construed as endorsements of the promoters’ representations. They also made statements capable of being construed as recommending the WWW Program to relatively unsophisticated investors as a means by which they can become millionaires through investments in property. The comments by the compere and the reporter include the following:

‘Compere: Depna Bohold and Sandy Foster are self-proclaimed wildly wealthy women on a mission to make other women filthy rich too.

…

Reporter: Through shrewd investment in real estate the pair have become millionaires, their secrets to be revealed in a mentoring program called ‘Wildly Wealthy Women’.

…

Reporter: Sandy, a former surf wear designer is now a prosperity coach teaching women how to think like millionaires. In eight months she’s bought more than $1 million worth of property with no money whatsoever.

…

Reporter: Depna is an accountant turned property guru.

…

Reporter: She now owns more than 60 properties all around Australia.

…

Reporter: The knowledgeable pair are now on the hunt for hundreds of aspiring property millionaires to be part of their Wildly Wealthy Women mentoring program. Only the motivated need apply.

…

Reporter: The nine month program costs nearly $3000. If that sounds a lot think again. They say they can turn anyone into a millionaire even those with no money.

…

Reporter: For your chance to learn how to be a property millionaire log on to wildlywealthywomen.com.’

58 The second program contains similar statements, including the following:

‘Compere: The women you’re about to meet have made millions of dollars, and now they want to share their money-making secrets

They believe, with a bit of hard work and their knowledge, any of us can become a millionaire.

….

Dympna Boholt: Isn’t it great?

Sandra Foster: Yes, it’s fabulous.

Reporter: From Thursday Island to Tasmania, the response has been overwhelming. More than 5,000 women who are not surprisingly desperate to make their first million in property.

…

Reporter: About 600 women have paid almost $3000 each to join the nine month Wildly Wealthy Women Mentoring Program. A lucky seven women have been chosen from thousands to get the program for free.

…

Reporter: There’s no doubt property seminars have been given a bad name. Property spruiker, Henry Kaye the biggest offender, accused of causing ordinary Australians to lose millions.

However, these wildly wealthy women say their program is the real deal. Dympna, an accountant, and Sandy, a prosperity coach, say they’ve created their own success and wealth from next to nothing and plan to teach other women to do the same.’

59 Mr Rares correctly pointed out that the material incorporated in the Notice must be capable of establishing that Seven Network made each of the three representations alleged in the Notice. He also correctly pointed out that neither the compere nor the reporter expressly said that participants in the mentoring program would become wealthy through investment in property and that they could do this even if they started with no money. Nonetheless, the statements made by the compere and the reporter are capable of being understood as endorsements of the promoters’ representations and thus constituting representations by Seven Network itself.

60 It is quite true that each of the Today Tonight programs contained comments that might be construed as injecting a note of scepticism concerning the promoters’ claims. For example, the first program concluded with this comment by the compere:

‘Compere: Too good to be true? Well we’ll be following the scheme’s progress to let you know.’

The reporter in the second program concluded with this observation:

‘Reporter: But can these women become property millionaires? Well, over the next 9 months, we’ll be closely watching them to see if they actually become wildly wealthy women. We’ll let you know how they go.’

61 It may be that at a hearing Seven Network could persuade a court that these disclaimers (if that is what they are) justify a finding that Seven Network itself did not make any of the representations identified in the Notice. But it cannot be said that the matters identified in the Notice (which include the transcripts of the programs), taking into account as yet undiscovered facts, are incapable of constituting contraventions by Seven Network of s 52 of the TP Act. As the primary Judge pointed out, video evidence of the programs might well add strength to the case that Seven Network itself engaged in misleading or deceptive conduct. Evidence might also be adduced from viewers indicating that they believed that Seven Network was endorsing the claims made by the promoters about the WWW Program.

62 The material on the Today Tonight website is similar in character and warrants the same conclusion.

63 It follows that Seven Network fails in its contention that the matters identified in the Notice are incapable, independently of s 65A(1), of constituting a contravention of s 52 of the TP Act.

The Exception to s 65A(1): Publication of an Advertisement

64 The next question, bearing in mind the ACCC’s concession ([9] above), is whether the matters identified in the Notice, allowing for undiscovered facts, are capable (or not incapable) of attracting at least one of the exceptions to s 65A(1) of the TP Act. It is necessary only to consider the exception stated in s 65A(1)(b), namely that the Today Tonight programs and the material on the website constituted publication of an advertisement.

65 Mr Rares correctly pointed out the Notice does not expressly claim that the Today Tonight programs and the website constituted the publication of an advertisement. Nor is there any direct evidence that the promoters provided consideration to Seven Network or one of its subsidiaries to promote the WWW Program. Nonetheless, the three matters identified in the Notice, which include the transcripts of the Today Tonight programs and relevant extracts from material on the website, suggest that the hypothesis that the promoters paid money or provided other consideration to Seven Network in return for promotion of the WWW Program is by no means implausible.

66 As we have explained, the language used by the compere and the reporter in both of the Today Tonight programs is capable of being understood as an endorsement of the WWW Program and an encouragement to pay the fee required ‘to learn how to be a property millionaire’. Seven Network’s apparent willingness to endorse or recommend the WWW Program may or may not prove to have been the product of some commercial arrangement between it and the promoters. But at the investigative stage, the hypothesis cannot be described, to adapt the language of Fisher and French JJ in SA Brewing v Baxt, as idle speculation or drawing on improbable circumstances. The material available to the ACCC is not only consistent with the hypothesis, but suggestive of it. To put the matter another way, the material provides an adequate factual basis for a reasonable suspicion that the television programs and the material on the website constituted the publication of an advertisement for the WWW Program. This being so, it could reasonably be suspected that one of the exceptions to s 65A(1) of the TP Act applied to the Today Tonight programs and the material on the website. Accordingly, the primary Judge was correct to conclude that, notwithstanding s 65A(1) of the TP Act the matters identified in the Notice ‘may constitute’ a contravention of s 52 of the TP Act.

The Absence of any Reference to s 65A(1) in the Notice

67 In its most general form, Seven Network’s submission that the Notice was invalid because it made no reference to s 65A(1) of the TP Act comes perilously close to requiring the ACCC to plead a case of contravention of s 52 in the Notice itself. SA Brewing v Baxt makes it clear that a notice under s 155(1) does not have to plead all the facts necessary to establish a contravention of the TP Act. Indeed, it is far from clear that if proceedings were instituted by the ACCC against Seven Network, the ACCC would be bound to plead in its statement of claim the material facts attracting one of the exceptions to s 65A(1). It would seem to be a matter for Seven Network, if it wished in such proceedings to rely on its status as a prescribed information provider, to plead facts in its defence attracting the protection afforded by s 65A(1). The ACCC would then presumably plead facts attracting one or more of the exceptions to s 65A(1) in its reply, although in practice it might perhaps choose to anticipate Seven Network’s defence by pleading such facts in the statement of claim.

68 Be that as it may, s 155(1) of the TP Act does not require a notice issued under that section to incorporate a reference to every factual issue that may be in dispute in legal proceedings that ultimately might be brought in respect of the matters identified in the notice. A notice must fulfil the requirements set out in [27] above, but these requirements do not include the principles of pleading applicable to proceedings under the TP Act. Accordingly, Seven Network’s submission that the absence of any express reference to s 65A(1) invalidates the notice must be rejected.

Does the Notice Disclose the Basis for Requiring the Information?

69 Seven Network’s alternative submission is that the Notice, in the absence of any express reference to s 65A(1) of the TP Act, does not disclose the basis on which the ACCC is entitled to require Seven Network to furnish the information specified in the Schedule.

70 There is no dispute that the information sought in the Notice is stated with sufficient clarity. The information consists simply of the names and addresses of the executive producer and compere of each of the Today Tonight programs and the same details for the persons responsible for the content of the programs and of the website. Nor is there any dispute that the Chairperson could reasonably believe that Seven Network is capable of providing the information sought in the Notice.

71 The question is whether the Notice discloses the basis upon which the Chairperson could reasonably believe that the information sought is information ‘relating’ to the matters identified in the Notice. It has been said that ‘[t]here is no expression more general or far-reaching’ than ‘relating to’ (Commissioners of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22, at 26, per Lord Macnaghten), although the effect of the phrase must be determined by the statutory context and purpose: Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211, at 224-225 [56], per Fitzgerald JA. In this case, it is necessary to bear in mind that s 155(1) of the TP Act confers a power for the purpose of enabling the ACCC to perform its functions. Equally, however, it is necessary to bear in mind that the question of whether the Notice discloses the necessary relatedness between the information and the matters is not to be approached in an over-technical or hypercritical way: Pyneboard v TPC, at 376.

72 In our view, it is clear enough (and would be clear to the recipients of the Notice) that the names and addresses of the persons responsible for the content of the Today Tonight programs, including the website, would assist the ACCC in its investigation of whether Seven Network contravened s 52 of the TP Act. The ‘matters’ identified in the Notice include, in each case, a claim that Seven Network (as well as the promoters) had no reasonable grounds for making the representations in the programs. As we have explained, there is a factual basis for the statements in the Notice that Seven Network itself made the representations and for the claim that the matters identified ‘may constitute’ contraventions by Seven Network of s 52 of the TP Act. At the very least, the persons responsible for the content of the programs, once they are identified, could reasonably be expected to assist the ACCC in determining whether or not Seven Network had reasonable grounds for making the representations. This line of inquiry is squarely within the ACCC’s investigative functions.

73 The executive producer and compere of the Today Tonight programs might also reasonably be expected to assist the ACCC in determining whether there were reasonable grounds for making the representations. Both the executive producer and the compere presumably were involved in discussions concerning the form and content of the programs and thus would be likely to have information as to what was (or was not) disclosed to Seven Network concerning the WWW Program. Such information could reasonably be expected to be material to the ACCC’s investigation.

74 In addition, the persons referred to in the Schedule to the Notice could reasonably be expected to have information concerning the existence (or otherwise) of a commercial arrangement between Seven Network and the promoters to publicise the WWW Program. If the ACCC were able to pursue this line of investigation with the relevant persons, it would be in a better position to ascertain whether the Today Tonight programs could be regarded, for example, as the publication of an advertisement within the meaning of s 65A(1)(b) of the TP Act and thus outside the protection of s 65A.

75 In determining whether a notice sufficiently discloses the relationship between the information sought and the ‘matters’ identified in the notice, it is permissible in our view to take account of the identity of the recipient and the knowledge available to that person. What may be required of a notice directed to a member of the public might be different from what must be included in a notice directed to a large commercial organisation whose officers can be expected to be familiar with the regulatory framework affecting their organisation. It could hardly come as a surprise to Seven Network, as the recipient of the Notice, that an element in any investigation by the ACCC of misleading or deceptive conduct by Seven Network itself in the course of television programs would be likely to involve a consideration of the possible applicability of s 65A(1) of the TP Act. In view of the content of the Today Tonight programs, the transcripts of which were annexed to the Notice, it would also come as no surprise to Seven Network that one line of inquiry the ACCC would be likely to pursue is to determine whether there was a commercial arrangement between Seven Network and the promoters, such as to attract s 65A(1)(b) or, possibly, s 65A(1)(a)(vi) of the TP Act. Each of the persons whose details are sought from Seven Network could be expected to provide the ACCC with information bearing on that question.

76 It follows that the Notice sufficiently disclosed the relationship between the information sought and the identified ‘matters’. This ground of challenge to the validity of the Notice therefore must be rejected.

The Use of s 155 to Identify Possible Witnesses

77 Seven Network’s final submission is that it is not an appropriate use of s 155(1) of the TP Act to identify possible witnesses. Mr Rares contended that the Notice, in effect, sought to do this, since it merely required Seven Network to provide the names and the addresses of certain persons involved in publication of the Today Tonight programs and of the material on the website.

78 Because the submission is based on the judgment of Bowen CJ in Riley McKay v Bannerman, it is important to consider the circumstances of that case. The Trade Practices Commission had issued a notice, purportedly pursuant to s 155 of the TP Act, requiring a company to answer 61 numbered questions, many of which had sub-questions. The company had a mail order business and had published advertisements for several of its products. The company challenged question 40(c) in the notice which asked, in relation to a particular advertised product:

‘whether the company has received any communication from a person to whom the company supplied it in which the person expressed an attitude as to its standard, quality, performance, uses, benefits or suitability for any purpose’.

79 Bowen CJ observed (at 568) that if the question had been confined to communications received by the company before publication of the first of two advertisements, or between the date of the first and second advertisements, the information sought might have been relevant to a possible defence under s 85(1) of the TP Act (which allows a defence of reasonable mistake in certain circumstances). But in his Honour’s view, insofar as the question went further, it did not have ‘sufficient relevance’ to the matters identified in the notice. It was possible that details of communications received by the company after it had published all the advertisements might have led the Commission to particular individuals ‘who might [have been] possible witnesses as to the quality of the goods’. Bowen CJ did not think that seeking information of this kind was an appropriate use of s 155(1) of the TP Act.

80 The circumstances of the present case are different from Riley McKay v Bannerman. The information sought in the present case concerns the names and addresses of particular persons who played specified roles in preparing and publishing the contents of the Today Tonight programs and the website. The Chairperson of the ACCC, for reasons we have given, could reasonably believe that obtaining the information sought by the Notice is an important first step in investigating whether the matters identified in the Notice may contravene the TP Act. In Riley McKay v Bannerman, Bowen CJ considered that the only relevance of the information sought was that it might lead to possible witnesses who could give evidence as to the quality of the goods. In this case, it is reasonable to expect that, once the ACCC has the names and addresses of the persons who prepared and published the relevant material, it could obtain from them information bearing directly on the question of whether the matters identified in the Notice constituted a contravention of the TP Act.

81 The language of s 155(1) of the TP Act is wide enough to authorise the ACCC to seek the names and addresses of persons who have played a particular part in preparing or publishing material that is alleged, on reasonable grounds, to be misleading and deceptive and therefore in contravention of s 52 of the TP Act. If the ACCC has reason to believe that identifying such persons would enable it to investigate whether the particular matters in the Notice constitute contraventions of the TP Act, their names and addresses are capable of being regarded as ‘information … relating to a matter that … may constitute … a contravention of [the TP Act]’.

82 The circumstances of this case have some analogies to those addressed by the High Court in McGuinness v Attorney-General of Victoria (1940) 63 CLR 73. In that case, a Royal Commissioner had been appointed to inquire into allegations of bribery of members of the Victorian Parliament. The editor of the Truth newspaper had published articles suggesting that certain persons were collecting funds for the purpose of bribing members of the Parliament. The Royal Commissioner insisted that the editor answer questions which would have required him to divulge his sources for the information contained in the article. The question was upheld as ‘material to the subject matter of inquiry’. Latham CJ (at 86) pointed out that the Commission was conducting an inquisition, as distinct from determining an issue between parties. He said that:

‘[i]n the course of such an inquiry it would or at least might be a valuable step forward if the identity of the persons giving information to the editor of the newspaper could be discovered so that they could be summoned for the purpose of giving evidence on oath as to their knowledge, or as to the source of their information if they had no direct personal knowledge of the matters in question’.

Similarly, Dixon J observed (at 105) that the ‘tracing of informants and the discovery of sources of knowledge fell … within the scope of the inquiry’.

83 In our view, the information sought by the ACCC can be seen to relate to the matters identified in the Notice. It is not necessary to decide whether a notice that merely sought the names and addresses of possible witnesses would fall outside the scope of s 155(1) of the TP Act. Even if that is the case, the information sought in the present case goes beyond merely seeking to identify the names and addresses of potential witnesses. Seven Network’s final submission therefore fails.

CONCLUSION

84 The appeal must be dismissed. Seven Network must pay the ACCC’s costs.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville and Emmett.

Associate:

Dated: 6 October 2004

Counsel for the Appellant:	SD Rares SC with JR Clarke

Solicitor for the Appellant:	Freehills

Counsel for the Respondent:	ST White

Solicitor for the Respondent:	Slater & Gordon

Date of Hearing:	31 August 2004

Date of Judgment:	6 October 2004

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