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Published online by Cambridge University Press: 24 January 2025
In this article, Mr Rumble examines the 1977 amendments to the Trade Practices Act’s definitions of the words “supply”, “corporation” and “consumer” and their relationship to that part of the Act which gives contractual protection to consumers. The definition sections are tested against the policy goals identified by the Swanson Committee and against the general need for simplicity in consumer protection legislation. The verdict is unfavourable. It is demonstrated that the definition sections have some anomalous results. Mr Rumble argues, further, that the definition sections are a quag of ambiguity and specific areas of uncertainty are discussed to illustrate this argument.
Mr Rumble suggests that contract protection be taken out of the Trade Practices Act and incorporated in its own legislative framework.
1 As amended by Nos 63 and 56, 1975; Nos 88 and 157, 1976; Nos 81, 111 and 151, 1977. For the 1978 amendment seep. 481 infra.
2 Trade Practices Act Review Committee Report to the Minister for Business and Consumer Affairs, August 1976 para. 9.40. The Review Committee consisted of Mr T. B. Swanson (Chairman)—formerly Deputy Chairman of I.C.I. and formerly Chairman, Commission on Advanced Education; Mr J. A. Davidson—Managing Director, C.I.G.; Mr A.G. Hartnell—Senior Assistant Secretary, Department of Business and Consumer Affairs; Professor A. Kerr-Professor of Economics, Murdoch University, Perth, formerly Chairman of the Consumer Affairs Council of Western Australia; Mr H. S. Schreiber-Solicitor, Sydney. Para. 1.3. It is to be noticed that small business was not directly represented on the Committee though representative bodies were of course consulted. Paras 1.6-1.11.
3 Trade Practices Amendment Act (No. 2) 1977. The amendment came into operation on 10 November 1977. It does not seem to protect suppliers against the doctrine of the Harbutt's Plasticine case [1970) 1 Q.B. 447.
4 Palmer, and Rose, , “Implied Terms in Consumer Transactions: The Australian Approach” (1977) 26 International and Comparative Law Quarterly 169, 180CrossRefGoogle Scholar.
5 Op. cit. paras 9.39, 9.40.
6 H.R. Deb. 1976, Vol. 102, 3533.
7 E.g. in New South Wales, Consumer Claims Tribunals Act 1974.
8 Compare Consumer Claims Tribunals Act 1974 (N.S.W.), s. 4(1) with Trade Practices Act 1974, ss. 4, 4A, 4B, 6.
9 E.g. Consumer Claims Tribunals Act 1974 (N.S.W.), s. 26.
10 Trade Practices Amendment Act (No. 1) 1977.
11 For a discussion of the word “supply” in other statutory contexts see Andaloro v. Wyong Co-operative Dairy Society Ltd (1965) 66 S.R. (N.S.W.) 466, especially at 479, and at (1966) 119 C.L.R. 278 in the High Court. Also Commonwealth v. Sterling Nicholas Duty Free Pty Ltd (1972) 126 C.L.R. 297, especially at 309 per Menzies J. and 314 per Windeyer J.
12 Dilworth v. Commissioner of Stamps [1899] A.C. 99, 106; Lamont v. Commissioner for Railways (1963) 80 W.N. (N.S.W.) 1242; Y.Z. Finance Co. Pty Ltd v. Cummings (1964) 109 C.L.R. 395.
13 Sterling Nicholas Duty Free Pty Ltd v. Commonwealth [1971] 1 N.S.W.L.R. 353, 358 per Hope J. interpreting “sell” in the Airports (Business Concessions) Act 1959 (Cth). Does hire purchase have a generally accepted meaning?
14 Trade Practices Amendment Act (No. 1) 1977.
15 Evans, , “The Constitutional Validity and Scope of the Trade Practices Act 1974” (1975) 49 A.L.J. 654.Google Scholar
16 Cf. International Harvester Company Australia Pty Ltd v. Corrigan's Hazeldene Pastoral Co. (1958) 100 C.L.R. 644.
17 Generally, Evans, op. cit.; Goldring, “Consumer Protection and the Trade Practices Act 1974-1975 (Cth)” (1975) 6 F.L. Rev. 287.
18 Trade Practices Amendment Act (No. 1) 1977.
19 Trade Practices Amendment Act (No. 2) 1977.
20 Trade Practices Amendment Act 1976.
21 Hornsby Building Information Centre Pty Ltd v. Sydney Building Information Centre Ltd (1978) 18 A.L.R. 639, 643-644.
22 On “private use” see Harland, , “Consumer Protection, Implied Contractual Terms and Exclusion Clauses” (1976) 14 Law Society Journal 219.Google Scholar
23 For example, a baker's acquisitions of flour and yeast were acquisitions of goods of a kind ordinarily acquired for private use. It might have been argued that the baker was a protected consumer as his purpose was not one of re-supply. His purpose was to sell bread, not flour and yeast.
24 Supra n. 2.
25 Trade Practices Amendment Act (No. 1) 1977; Trade Practices Amendment Act (No. 2) 1977.
26 This is the July 1977 version as amended slightly in November 1977 to take account of the substantial revision of the definition of “price” in s. 4B(2) discussed below.
27 H.R. Deb. 1977, Vol. 107, 3038.
28 Cf. The baker example supra n. 23.
29 Supra p. 467.
30 Discussion of supply/acquire supra pp. 460-461.
31 Grannall v. Marrickville Margarine Pty Ltd (1955) 93 C.L.R. 55.
32 4F.(b): “a person shall be deemed to have engaged or to engage in conduct for a particular purpose or a particular reason if—
(i) the person engaged or engages in the conduct for purposes that included or include that purpose or for reasons that included or include that reason, as the case may be; and
(ii) that purpose or reason was or is a substantial purpose or reason.”
33 Trade Practices Amendment Act (No. 2) 1977.
34 Bank of New South Wales v. Commonwealth (1948) 76 C.L.R. 1, 234 per Latham C.J.; Commonwealth v. Sterling Nicholas Duty Free Pty Ltd (1972) 126 C.L.R. 297, 313-314 per Windeyer J.
35 Cf. Lee v. Butler [1893] 2 Q.B. 318; Helby v. Matthews [1895] A.C. 471.
36 Palmer and Rose, op. cit.
37 74.(3): “In this section, 'services' means services by way of—
(a) the construction, maintenance, repair, treatment, processing, cleaning or alteration of goods or of fixtures on land;
(b) the alteration of the physical state of land; or
(c) the transportation of goods otherwise than for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported.”
“Similarly, when a banker 'deals in credit' he makes loan contracts and does not sell anything.” Bank of New South Wales v. Commonwealth (1948) 76 C.L.R. 1, 234 per Latham C.J.
38 See the undertaking by the Minister at H.R. Deb. 1977, Vol. 107, 2906 to introduce manufacturers' warranty legislation, and the Trade Practices Amendment Bill 1978 discussed infra p. 481.
39 Quaere the effect of s. 4C(a) set out supra p. 461. The Trade Practices Amendment Bill 1978, discussed infra p. 481, modifies the situation to the extent of allowing the consumer to bypass the intermediate suppliers and sue the manufacturer directly. There are strong arguments, however, for saying that either because of the nature of the rights of action given by Division 2A (traditional contractual remedies), or because of the way Division 2 interacts with the definition sections, that only consumers who acquire defective goods by a contract are within Division 2A.
40 Cf. Swanson Committee, op. cit. para. 9.40: “... These inequalities are not necessarily limited either to 'traditional' consumers or to transactions involving what might be termed 'consumer' goods, in a narrow sense. For example, an insurance company purchasing a lounge chair for its reception area could not be expected to have any more expertise, or bargaining power, than a householder. Nor would a small pie manufacturer necessarily have any expertise or bargaining power in relation to the purchase of an office typewriter “
41 Supra n. 38.
42 Supra n. 27.
43 Cl. 74A(2)(a).
44 Financial Review 29.6.78.
45 The Chairman is Mr Russell Scott who has acted previously as “a consultant for a major firm of Sydney solicitors which did a considerable amount of trade practices work”, Financial Review 30.6.78.