LS IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Coram: Franki J. 4 July 1979 Sydney FRANKI J. BETWEEN : AND: Cc. No.44 of 1978 Ne TRADE PRACTICES COMMISSION Plaintiff T.N.T. MANAGEMENT PTY. LIMITED First Defendant BRAMBLES HOLDINGS LIMITED Second Defendant MAYNE NICKLESS LIMITED Third Defendant YOUNGS TRANSPORT PTY. LIMITED Fourth Defendant ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED Fifth Defendant EXPRESS FREIGHT PTY. LIMITED Sixth Defendant ASSOCTATED STEAMSHIPS PTY.LTD. Seventh Defendant IPEC HOLDINGS LIMITED Bighth Defendant INTERSTATE PARCEL EXPRESS CO. PTY. LIMITED Ninth Defendant REASONS FOR JUDGMENT In this matter the Trade Practices Commission ("the ~2- plaintiff") seeks pecuniary penalties under ss. 76 and 77 of the Trade Practices Act 1974 ("the Act") and injunctions under s.80 of the Act against nine defendants. The second defendant, Brambles Holdings Limited, ("Brambles"), is seeking to have certain paragraphs of the statement of claim struck out and is supported in this by a number of other defendants. Broadly the statement of claim alleges that, prior to the amendment of s.45 of the Act from 1 July 1977, the defendants, or certain of them, including Brambles, entered into three understandings and/or made three arrangements in breach of s.45(2)(a). It is alleged that the understandings were entered into and/or the arrangements made on 12 February 1976 (par. 21) 20 May 1976 (par.27) and 4 August 1976 (par. 33). The statement of claim also alleges in pars. 26, 32 and 38 that Brambles gave effect to the arrangements and/or understandings alleged in pars. 21, 27 and 33 respectively and in par. 39 a continuation of this conduct is alleged. Brambles sought to have pars. 20(d), 24(2), 25(2), 26, 30(2), 31(2), 32, 36(2), 37(2), 38 and 39 struck out and relied mainly upon Order 20 rule 29 of the High Court Rules and argued that those paragraphs tended to prejudice, embarrass or delay the fair trial of the action. Alternatively Brambles relied upon Order 26 -~3- rule 18 or Order 63 rule 2 and sought a stay if relief by way of striking out was not granted. No argument was addressed to par.20(d) so I need not deal with it. Pars. 24 and 25 set out the provisions of s.45(2)(b)(i) and (ii) of the Act after the amendment from 1 July 1977 and allege that giving effect to the arrangement and/or understanding alleged in par. 21 constitutes a contravention of the Act but no allegation is there made that effect was given to the alleged arrangement and/or understanding by any defendant. Par. 26 alleges that effect was given to the arrangement and/or understanding alleged in par.21 by the first five defendants and to some extent particularises the way in which it is alleged that took place. No date is provided in par. 26 and it is to be read as alleging a contravention both before and after 1 July 1977. Pars. 28, 29, 30 and 31 correspond to pars. 22, 23, 24 and 25 and make similar allegations in relation to the alleged arrangement and/or understanding of 20 May 1976. Par. 32 corresponds with par. 26 but relates to the agreement and/or understanding of 20 May 1976 alleged in par. 27. Pars. 34, 35, 36 and 37 also correspond to pars. 22, 23, 24 and 25 but relate to the arrangement and/or understanding of 4 August 1976 alleged in par. 33. Par. FA RR rr RE EE RE LCRA OREN en ON a -4- 38 corresponds with par. 26 but relates to the agreement and/or understanding of 4 August 1976 alleged in par. 33. In substance the statement of claim alleges: (a) In pars. 22, 28 and 34 breaches of s.45(2)(a) py the making of the arrangements and/or the entering into the understandings alleged in pars. 21, 27 and 33 respectively. (b) In pars. 26, 32 and 38 breaches of s.45(2)(a) before 1 July 1977 by giving effect to the arrangements and/or understandings alleged in pars. 21, 27 and 33 respectively. (c) In pars. 26, 32 and 38 breaches of s.45(2)(a) (i) and (ii) after 1 July 1977 by giving effect to the arrangements and/or understandings alleged in pars. 21, 27 and 33 respectively. Particulars in answer to a request for particulars of pars. 26, 32, 38 and 39 of the statement of claim were given by letter of 11 December 1978. They were that the plaintiff would rely upon two letters from a company referred to in the statement of claim as "Tradestock" to a company called Brambles Limited of 15 June 1976 and 29 June 1976 respectively and upon a telephone conversation between a gentleman said to represent Tradestock and one said to represent Brambles Holdings Limited, the second defendant, of about 27 July 1976. The two letters in effect asked Brambles Limited to meet Tradestock or supply SSE CRISTEA, TEMTENET IT 1 ee eater ie te TE ne ROE peer ee en ~5- certain quotes to it. Brambles did not appear to rely an the present application upon the difference in name between "Brambles Holdings Limited" and "Brambles Limited". The particulars of the conversation were that in it the representative of Brambles had said that "the secondnamed defendant would not deal with agents or brokers and that it wanted to deal with clients, the users of freight forwarding services directly". The basis of Brambles! argument was that no particulars had been given of the allegation that it had given effect to an alleged arrangement and/or understanding after 1 July 1977. Reference was made without objection by both the plaintiff and Brambles to Tradestock Pty. Limited v. T.N.T. (Management) Pty. Ltd. (1978) 17 A.L.R. 257, certain of the transcript therein and a letter from the solicitors for Brambles Industries Limited of 10 February 1978. The particulars given regarding pars. 26, 32 and 38 also included the sentence "Further details are matters of evidence." By letter of 31 May 1979 the plaintiff said it did not rely upon any matters of fact in support of the matters pleaded in pars. 26, 32, 38 or 39 other than those pleaded or specifically referred to in the letter of 11 December 1978 but that it reserved the right to supplement its particulars. Before me the plaintiff relied upon the presumption of continuance and pointed out that the particulars contained an allegation that Brambles said, on or about 27 July 1976, that it would not deal with agents or brokers. re en ee ET te re en et -6- I note that par. 33 alleged a further arrangement and/or understanding of 4 August 1976. For the reasons that I have stated pars. 26, 32 and 38 are all referable to conduct both before and after 1 July 1977 and so I see no reason to strike them out whether or not adequate particulars are given with respect to the period after 1 July 1977. If I struck those paragraphs out no allegation of any breach at any time by giving effect to any of the alleged arrangements and/or understandings would remain. The pleadings relate to claims both to a pecuniary penalty and to an injunction. It may be that pars. 26, 32 and 38 could be clarified, particularly in regard to the date to which they apply, but no argument on this aspect was addressed to me. These proceedings were conducted upon the basis that, even at this stage, I was entitled to read the particulars with the statement of claim and soitdid not become necessary for me to decide whether this is so. TI can see no reason to strike out pars. 24(2), 25(2), 30(2), 31(2), 36(2) or 37(2). These paragraphs only set out matters of law but no objection was raised on that ground. Par. 39 is referable to the application for an ingunction. I was not referred to any authority on the proper approach to the consideration of a paragraph of this nature. However in view of the provisions of s.80(4) of the Act 1t may well be that no allegation in the nature of par. 39 is necessary. No argument was addressed to this -7- question. I see no reason to strike out par. 39. It should be mentioned that the High Court Rules provide in Order 20 rule 8 that particulars of claim shall not be ordered to be delivered before defence unless they are necessary or desirable to enable the plaintiff to plead or ought, for any other special reason, to be so delivered. In fact Brambles commenced proceedings for particulars in March 1979 but although that matter has been mentioned on three occasions, by consent, it has been stood over generally with liberty to either party to restore. I can see no reason why Brambles should not be required to plead to the statement of claim. If it then wishes to pursue its request for particulars it would seem to me to be open for it to do so and that matter could be considered. In addition the plaintiff may wish to amend its particulars or add to them. The function of particulars is to limit the issues to be investigated at the trial and of course the plaintiff will be bound by its particulars at the hearing in the usual way. I dismiss the application. se T certify thet th2s and the sia rvecceding pages are a true copy of the Feasons for Judgment herein of his Honour Mr. Justice Feavnt Pld» Shetane Associate Dated: ¢ daty tay