68.
St George County Council], was there a generally accepted definition of the expression in the nineteenth century. Essentially it is a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation."
As noted earlier, the correctness of this proposition is not in issue in these matters.
159 Fontana Films concerned the validity of s 45D of the Trade Practices Act 1974 – a provision dealing with secondary boycotts. Taking account of what had been held in the Concrete Pipes Case, provisions of the Trade Practices Act 1974, other than s 45D, took a form which nowadays has become familiar. Whereas the Trade Practices Act 1965 considered in the Concrete Pipes Case took the form "No person shall …"; "This prohibition extends to constitutional corporations", the 1974 Act generally took a form first considered and upheld in R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd[1].
160 Again, at the risk of undue abbreviation, the 1974 Act generally took the form of providing that, in the first instance, the Act is to have direct operation according to its terms, but also providing that, in addition to that operation, the Act should have further operation in accordance with provisions evidently intended to engage particular heads of power – interstate and international trade or commerce, foreign corporations, trading and financial corporations, territories, and so on.
161 Section 45D of the Trade Practices Act 1974, however, took a different form. It prohibited any person, in concert with another, from engaging in conduct that hindered or prevented the supply or acquisition of goods or services by a third person to or from a fourth person (not being an employer of the first person) where the third person is a constitutional corporation and the conduct would have specified purposes or effects. Section 45D specified those purposes and effects differently according to whether the fourth person was or was not a corporation but those purposes and effects could be described generally as the inflicting of substantial loss on, or damage to, the third person's business.
162 The command of s 45D was directed to any person; it imposed no obligation upon a corporation. The section was, however, designed to protect a
- ↑ (1977) 136 CLR 235.
