Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh J,Gaudron J,Gummow J,Kirby J,Hayne J,Callinan J
• Judgment Date: 09 March 2000
• Neutral Citation: [2000] HCA 11,2000-0309 HCA A
• Court: High Court
• Docket Number: S186/1998
• Date: 09 March 2000

[2000] HCA 11

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S186/1998

Truth About Motorways Pty Limited

Applicant

and

Macquarie Infrastructure Investment Management Limited

Respondent

Representation:

J D Heydon QC with G J Williams and I R Pike for the applicant (instructed by Maurice May & Co)

D F Jackson QC with T D Castle and J R Clarke for the respondent (instructed by Mallesons Stephen Jaques)

Interveners:

H C Burmester QC, Acting Solicitor-General of the Commonwealth with M K Moshinsky intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

D Graham QC, Solicitor-General for the State of Victoria with N D Hopkins intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with P D Quinlan intervening on behalf of the Attorneys-General for the States of Western Australia and South Australia (instructed by Crown Solicitors for Western Australia and South Australia)

The Constitution, Ch III, ss 71, 75–78.

Trade Practices Act 1974 (Cth), ss 51A, 52, 53(aa), 53(c), 80, 163A.

Words and phrases — ‘matter’ — ‘a person’.

Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited

Constitutional law — ‘Matter’ — Validity of law conferring standing to seek injunctive and declaratory relief — Where applicant has no direct or special interest in subject matter of proceedings — Whether reciprocity of right and duty is required.

Trade practices — Misleading and deceptive conduct — Application for injunction and declaration — Standing of applicant.

ORDER

The questions in the Case Stated on 17 August 1999 should be answered as follows:

1. Are sections 80 and 163A of the Trade Practices Act 1974 (Cth) invalid insofar as they purport to confer standing on the applicant to bring the present proceedings?

Answer: No.

2. Does the applicant have standing to bring proceedings in the Federal Court in respect of the subject matter of these proceedings:

(a) for an injunction in reliance upon section 65 of the Fair Trading Act 1987 (NSW) and in purported reliance upon the accrued or pendent jurisdiction of the Federal Court;

(b) for an injunction in reliance upon section 23 of the Federal Court of Australia Act 1976 (Cth);

(c) for a declaration that another person has engaged in misleading and deceptive conduct in contravention of section 52 of the Trade Practices Act or section 42 of the Fair Trading Act?

Answer: Unnecessary to answer.

3. Is section 65 of the Fair Trading Act a law of a State:

(a) for the purposes of section 109 of the Constitution, inconsistent with the Trade Practices Act; or

(b) in conflict with Chapter III of the Constitution in purporting to confer standing on the applicant to bring the proceedings in the Supreme Court of New South Wales against the respondent?

Answer: Unnecessary to answer.

4. If the Federal Court has no jurisdiction in respect of these proceedings, should the proceedings be remitted to a court of a state?

Answer: Unnecessary to answer.

5. By whom should the costs of the proceedings in the Full Court be borne?

Answer: The respondent.

1 Gleeson CJ and McHugh J. The primary issue for determination is whether the Parliament, in legislating with respect to a subject matter specified in s 51 of the Constitution, (in this case, corporations of the kind referred to in s 51(xx)), may provide for the judicial enforcement of the law at the suit of any person.

2 There are reasons why, in the case of many laws, Parliament may not wish to enact such a provision. The common law requirement that a plaintiff who brings an action, not to vindicate a private right, but to prevent the violation of a public right or to enforce the performance of a public duty, must have a special interest to protect 1, is based upon considerations of public policy which the legislature would not lightly disregard 2. Nevertheless, it is not difficult to understand why, in the case of certain laws, it might be considered in the public interest to provide differently. Apart from statute, there are ample precedents for private enforcement of laws. In Phelps v Western Mining Corporation Ltd3, in considering the legislation in question in the present case, Deane J pointed out that such private enforcement has a long history in the administration of the criminal law. He referred to Lord Mansfield's statement 4 that if a certain kind of restrictive trade agreement were made ‘the court would be glad to lay hold of an opportunity, from what quarter soever the complaint came, to shew their sense of the crime’. An application for a writ of prohibition, seeking the exercise of the judicial power of the Commonwealth under s 75(v) of the Constitution, may be made by a ‘stranger’ 5. The same applies to applications for habeas corpus6. The people who sought, and obtained, the release of the slave in Somerset v Stewart7 were regarded by some as officiously interfering with England's trading interests, but their standing was not in dispute.

3 The concern of this Court is not whether a law of the kind in question is a good idea. The issue is whether it is beyond legislative power.

4 At first sight, a provision that a law concerning the conduct of corporations may be enforced by a court at the suit of any person appears to be within the power given by s 51(xx). That power, however, is subject to the Constitution. It is argued that the enactment of such a law is inconsistent with Ch III of the Constitution, and with the arrangements made by Ch III for the exercise of the judicial power of the Commonwealth.

5 The context in which the issue arises may be stated briefly.

6 Section 52 of the Trade Practices Act 1974 (Cth) (‘the Act’) provides that a corporation shall not, in trade or commerce, engage in misleading or deceptive conduct. That section appears in Pt V of the Act. Section 80 of the Act, which is in Pt VI dealing with ‘Enforcement and Remedies’, provides that the Federal Court of Australia may grant injunctive relief where, on the application of the Australian Competition and Consumer Commission (‘the Commission’) ‘or any other person’, it is satisfied that a person was engaged, or is proposing to engage, in conduct in contravention of a provision of Pt V. Section 163A of the Act also provides that ‘a person’ may institute proceedings, in the Federal Court, seeking, in relation to a matter arising under the Act, a declaration in relation to the operation or effect of (amongst others) a provision of Pt V, and that the Federal Court has jurisdiction to hear and determine the proceedings.

7 The applicant commenced proceedings against the respondent in the Federal Court, claiming that the respondent contravened s 52 and two related provisions of Pt V. The applicant sought a declaration that the respondent had contravened s 52, and an order, in the nature of a mandatory injunction, compelling publication of corrective advertising.

8 The alleged misleading and deceptive conduct related to the publication of a prospectus inviting the public to subscribe for units in an investment trust. The investment concerned the construction of a toll road. The applicant complains that information given concerning the volume of traffic on the road was misleading.

9 The applicant claims no special interest in the subject matter of the dispute. It has not suffered any loss or damage by reason of the respondent's conduct. It invokes the jurisdiction conferred on the Federal Court by ss 80 and 163A simply in its capacity as a (corporate) person.

10 The respondent challenges the applicant's standing to bring the proceedings, and has raised a number of questions which have been made the subject of a Case Stated for this Court.

11 The first question asks whether ss 80 and 163A of the Act are invalid, insofar as they purport to confer standing on the applicant to bring the present proceedings.

12 It is agreed that, if that question is answered in the negative, and the validity of the provisions is upheld, it is unnecessary to answer the other questions.

13 It has been established for more than 20 years that s 80 means what it says. In Phelps v Western Mining Corporation Ltd8 the Full Court of the Federal Court rejected an argument that the words ‘any other person’ in s 80 should be read down as meaning that only persons who are affected by a contravention of Pt V could seek relief under s 80. Deane J said 9:

‘As a matter of ordinary language, the phrase “any other person” connotes any other person whatsoever. The context in which the phrase appears in s 80 … does not, upon analysis, suggest, let alone justify, the conclusion that the Legislature intended that the phrase be modified by the engrafting of speculative qualifications such as “who is a consumer” or “who is a competitor” or “who has an interest of a type which would give him standing to institute common law civil proceedings if the conduct complained of were tortious”.’

14 Bowen CJ pointed out 10 that what was at issue was a question of standing, not a question as to the considerations which might, in a particular case, bear upon whether it was appropriate to grant any, and if so what, relief. He adverted to the problems, as to relief, that could arise in the case of a suit commenced by an officious bystander, but declined to accept, in relation to legislation protective of the public interest, that the solution to those problems was to be found in giving a narrow and artificial interpretation to the statutory provisions conferring jurisdiction and standing.

15 The word ‘any’ does not lend itself to a restrictive interpretation.

16 The relevant provisions of Ch III of the Constitution, which are relied upon in aid of the...