Practice and procedure - application for leave to bring cross-claim out of time - gross delay on the part of cross- claimant - competing considerations of impact on trial already commenced and injustice to cross-claimant if prevented from bringing cross-claim - claim to restrain Trade Practices Commission from using documents said to have been wrongfully taken by cross-claimant's employee - question of jurisdiction - Federal Court of Australia Act_ 1976, s.32, Judicial Review (administrative Decisions) Trade Practices Commission v. Allied Mills Industries Pty. Limited and ors. V. G.29 of 1979 Sheppard J. 10 November, 1980 Sydney (34180 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY V. G. No. 29 of 1979 GENERAL DIVISION In the matter of THE TRADE PRACTICES ACT 1974 Between _. TRADE PRACTICES COMMISSION Applicant - and - ALLIED MILLS INDUSTRIES PTY. LIMITED an HE Respondents ORDER JUDGE MAKING ORDER: SHEPPARD J. WHERE MADE: Sydney DATE OF ORDER: 13 November, 1980 For orders see short minutes at end of judgment. ne Gdn FEDoa:L CCUKT OF AULTR.LIL. Now SOUT "LES ROGISTRY V. G. No.29 of 1979 NA GoNeRaL DIVILTON TRavs FRACTICES CCMiTosItl applicant aLbosD hI Liv it OTR HS Respondents CCRaut: SHEPP:.RD J. id Noverter, 1930 REACNS FCR JUDGusiT (Judgement on application for leave to bring cross-claim By its notice of motion of 24 October last the respondent, allied !.ills Industries Pty, Limitea (hereinafter referred to H+ as "tne company") seeks leave to file and serve « cross-claim in this matter. The application 1s sunported Ly the affidavit of tne company's solicitor, lir, Huntington, also sworn 24 October last. The proceedings in which it 1s sousht to file the cross-claim are proceedineas brourhnt by the Tr=de Precetices Commission ('tne Commission") pursuant to ss.77 anc 80 of the Trade Fractices Act 1974. The Commission seeks to recover penalties for alleged breaches by the resnondents, of whom the company is one, of s.45 of the Trade Practices 4ct, which are said to have occurred in the latter montns of 1976 and thereafter, The Commission also seeks injunctive relief. The proceedings were commences by applicetion filed on 1 su'ust, 1979. Pursuant to Crder 10 of the rules airections hearings have teen neid on freyuent occasions since the commencement of the proceedings. Since the commencement of this yeer they have been held on : 14 March, 1980 10 April, 1936 ll april, 1980 5 May, 1980 6 June, 1586 28 July, 1°80 10 Septenb:r,198C 18 Sentember, 1930 19 Septemvoer, 1980 29 September,1980, and 3 October, 1960 The hearins of the matter cormmencea on 20 October 12st. The nearinz date had been fixed, at first tentatively, some months earlier. The hearing was to have commenced on 13 October, but on the application of the Coymission its commencement was delayed for one week, The length of tne hearing was estimated to te four to six weeks, In tae wey that the case hes developed since the nearin: began, 1 would think that tae hearing will be considerably longer than six weeks. One of the witnesses to be called in the Commi¢sion's ccse 1s one Anthony Henry Matthews. He was formerly employed vy tne company in a senior executive position, bein7s, 1ts Yictorian manager, He has mage a statenant to the Commission and has provided 1t with a nunber of documents + 1 which the company claims to be its property, and to have peen texen by Wr. Matthews -ithout its autnority aad in breach of oblisations he owed the conpany as its servant. It is likely that 2 number of these docurents will be tendered by the Comission in the course of presen case, and that use may be made of others short of their being tendered. By the cross-claim which it seeks leave to file the company proposes to seek orcers that the Commission be restrzined from making use of or disclosing any infornstisn contained in the documents, and that tne Commission deliver up to tce company the said documents anu ail copies thereof. Consezuential relief :s also sought. T e cross-responcent proposed to Le joined in the cross-claim is the Conmzssion, Tne application 18 not now nS one to join wr. Matthews as well. Originally the primary G3 application whicn was made was to goin both Mr. Matthews and the Commission, but during tie arreument counsel for the company said that he nad been instructed not to pursue an applicution for leave to file a cross-ciain in which Mr, Matthews would be goined as a party. Leave to bring the cross-ciaim is reyuired by reason of the operation of two rules. The first of these is Rule © of Order 5, which provides for lesve where, ss is nere the case, it 1s sought to file a cross-claim out of time. The second rule 15 Rule 9 of Order 5, whicn provides that a cross-claim may not te filed witnout leave once there has been a directions hearing. If the applicetion to goin Mr. Matthews nad been maintained, leave would clso have been reruired pursucnt to Order 5, Rule 8(1). That is because Mr. Matthews 18 not a party to the nroceedin-s as they are vresently constituted, There is, of course, an initiél juestion of the jguris- diction of this Court to entertain the proceedings. Counsel = > for the company submitted that there 1s jurisdiction by reason of the operetion of s.32 of the Federzl Court of Australia Act 1S76, Sub-section (1} of thet section provides: "To the extent that the Constitution permits, curisdiction 1s conferred on tre Court in respect of matters not otherwise witnin its curisdiction tnat are assoczrated with matters in whicn the jurisdiction of the Court is invoked," Counsel for the conpany may well be correct in his submission, but there 1s a question about it, The pesition is not straightforward as ne himself conceded, Jurisdiction aside, there can te no doubt that, if there is to be ¢ claia made for relief of the kird here sought, 1t is the most con- venient course for that claim te be brought here. The questions of the validity and ambit of operstion of s.32 are undetermined, but 1t 1s likely thet those is) questions will be resolved as a result of tne gudsnents to be delivereé by the H2eh Court in Fhilin vorris Ircorvorated ve. dani. Brower Mel= FPeskhions Pty. Lanited and in United States Surgical Corporation v. Hosnital Products Inter- national Fty. Limited (Hicn Court Nos. 31 and 109 of 1950), The Hish Court neard argument in those natters on 14 and 15 October last and reserved its decision. Jucdemeat 15 not expected for some time. +n alternative basis for jurisdiction was seid by counsel for the company to be the Administrative Decisions (Judicial Review) Act 1977 which ceme anto force on 1 Cctober, 1980. after the principal argument on the motion nad concluded, gmendments were made to the form of the cross-claim which the company soucht leave to Tile. Tnese are designed to bring the case within the act gust mentioned, Counsel for the Yommissiorn sutmitte? that for tivo reasons of substance and one of procedure the clternative basis for gurisdiction was without foundation. He sub- mitted that tne nroposition tnat the frec:sion of che Tonmission not to return the cocuments was, within tne neaning of £.5 of the Act, "a decision to wnica this act apnlies", vas plainly untenable. rile also cubritted thet any sucn Ccecision had been mace not later than Muy 1¢2C, many montns before the .ct came into force. In making that submission, he bore in wind a Al ore recent demand for tne return of tne documents but said L et > t any rights vhicn the Commission nad to the return of f o tne "ccuments arcse, by reeson of the non-compliance in ia a] i] May 1930 with san earlier demand, in May r.ther t in Novemter. round upon waich gnion ceaural g the Rules. So the ter ide no reason unless the court 15 e1ven. Sounsel for the comeny clams 4 nis gubnissi0D+ » ° be ai) " = faa en °oO ecf asgons © i But IT zit no for the i does nor 21sc nse1 to § emit trast there failure of ertaer cou from tne t a matter: #0V" nave it. it is myst be gatisfre4- De Tne documents which the anplicant, by 1ts proposed cross-claim, seeks to recover were specified in the affidavit of discovery filed on behalf of the Commissicn, They are referred to in veragraph 7 of the schedule to . * r, Conlan's affidavit of discovery of 14 Decerter, 19795, 'ir, Conlan being a member of the staff of the Conmicsion. Paragreph 5 of Ilr. Huntington's effidavit establishes that tne company was not aware that tne documents referred to in paragraph 7 of the schedule to iir, Conlan's affidavit had been furnished to the Commission ty ftir. Matthews until it had received a cooy of the affidavit of discovery, It wes not aware of the nature and identity of the documents until they were inspected on 21 January, 1960. Mr. Huntington's affidavit also esteblishes that tne docunents weve documents prepared for the purposes of the company's business, either by fir. Matthews's himeel£, or by other employees of tne company, and contained iaformation whicl: was confidential to the company and 1ts employees and which hed seen imparted to Mr. Matthews in confidence. It reletei to prices charged ty the comveny, the manner in which such vrices were errived at, tné manner in which the company dealt with certcin of ite customers, detcils of its sterch division budgeting ena other confidenticl effairs of the company's business. mr. duntingtoa craws the conclusion - it is not cisputed by tne Commissron - that the documents were received ty the Commission from Mr. Tletthews ) aurin, tae month of Novemter 1976. On 74 sieren, 195 au ' oO , Mr. Huntington wrote letters to Mr. matthews ane to the Crown Solicitor in nis capacity as the solicitor on the record for the Tommission. The letters specifier 'as documents said to be the property of the compeny an a demanded their imneciate return. The documents so specified were 211 the documents listed in peragrapn 7 of roas the schedule to Mr. Conlan's affidavit snd come others. Tne company does not, es I understend tne positicn, seek the delivery up of any documents ower then the docu- ments specified in paregrapn 7 of the scnedule te Lr. Conlan's atfidavit. The lecters were enswered by a letter fron the Crown Solicitcr datec 30 szuril, 196. Tne letter included the following paragrarns: "2, Tne Commission Joes not intend to volunturily return the documents to your client regerdless of whether the documents are or are not tne property of your client and are or are not cornfidentizi wnich allegations are not admitted. = am advised tnat a Court is not likely to order their return. moreover any order for return of the acounen would ve futile having regard to the powers to serve notices under Sections 25 oi tne Trade rractices act tefore or sit are returned, 3. Moreover many copies cf these documerts now exist "hica are cleerly tne Comnission's property, anc indeed copies have been furnished to yourselves ena to the solicitors for 12 tre other respondents pursuant to che order for Z1iscovery and inspection an this case." Paragraphs 10 «and 11 of Mr. Huntington's iffricvaict are aS rollows: ar be "10, Cn or about 2nd fry iS30 IT Lought the advice of Counsel taen briefed as to whsther or not tne First Kesponuent Sneuld take acticn to retrieve tne docunents referred to in -rpnexure "BY. Counsel orzliy advised tnat tne First aesrondent shoulc 1oT "take action to recover tie sid documents witnout giving any reesons thit I can recall. li. During tie course of : conference 11th Counsel on 19th Cctoter | 1980 the right of Mr Matthews to furnisn 1e Apyiicant vith doe ments and the ri lnt of jir ietthews ona the applic cant to use those documents referret 12 in péragranh 7 of the Scnesule to tne affiaavit of discovery in connection with these proceedir arose and I sousht advice thereon, following which Senior Counsel forthwith contacted Cenior Counsel for the .ppliccnt and al2rted him to the question." cs Es ha After the letter deted 30 avril, 1$€0, was wr2tten by the own Solicitor, nothing furtner about the matter was said by Lhe company's counsel or solicitors until mention was mace of the matter to senior counsel for tne Cormission fe) m i9 October last. Tue av-plication now made was fore- snadowed to the Court on the day tne neering cormenced, 20 Octoter, 1960. ror the period of elmost six nonths vhich elapsec betweer 2 itey, 1950, ana the cornencement of the a oO » ing, the matter was in the list for directions on at least seven occasions. On one of those occasions, 10 September, 1980 (p.322 of the transcript) counsel fer the cotrany sought leave to inspect one of tne documents 1 'is question, a diary which had been kept by Mr. Ilatthews. Tne aiary hed already reen inspected and and conied by tne compuny's legal advisers, But shay wisnce the diary Lo te insvected by a nrendwritin, expert. The Commission hed ro obsection to tnet teing Jone. rresunably the diary was inspected accordingly. In support of 1ts application, senior counsel for at po.710 to 71l. Fis Lordsnip saad: r btelited spnlication to amend, not to vrosecute o cross "Now, I think 1t 15 a well established principle that tae oogect cf Cuurts ig to decide the rishts of tne verties, end not to punisn them for mistekes taev meke in the conéuct cr tneir cxuses by deciding otherwise tuan 1n accordcance witn their risnts. Speaking fer myself, end in con- fermity with what I have neard laid down by tae other division of the Court of .ppeci enc ty myself as a nember of it, I know of no kind of error or nisteke which, if not frauijulens or intended to overreachk, the Court ournt not to correct, if it cen be done without injustice to tne osher party. Courts do not exist for tha sake of diccipline, but for the saxe of deciding matters in controvers: and I €o not regard such evtendment as a natter of favour or of grace." is Lord Le) Nip tnen referred te tue relevent rule ond co tey "It seeus to me thet ss soon #8 1t appecrs that tne way in wauicn a party hes framed nis case will not lead to » decision of tke real matter in controversy, it ts as micu a matter of ri jnt on his part to nave 1t correct ed, if 1t can te cone without ingustice, as cs r = ; s anytning else in tne case 1s a stt It was said by tir. Berber in his ve speech to us, 'You are taking away <n adv.ntag yy ntrnuesa: e fror th: Plaintiffs who nave sot guugment celow, by making an amendment at tne last moment.' In one sens2 we snoule be taking away en edvantog e from tuem, cut only an advantare wiica tnev heve obtained by a nist3ke of the other side, con- trary to the true dearz:n, of the low on the rizats of the perties." he Those words nave been echoed meny times since they were J Oo ker on 1884, The case ves, however, concerned with 4 Counsel for the Conmission referred to tre ceciszon of Kay J. (as he was) in Grey v. Webb (1882) 2.4.21 Ch.b.202 un which his Lordsnin decided that a defendant ».ould not be permitted te bring a counter-clrim which would unculy geley the triel of ths principal action. That wes a case, nowever, where the matters sou-rt to te reised in the counter-clain did not have the Girect bearing upon the DS ec i) Os uv proceedings brousht by the plaintiff as would ti Claim here sou-ht to be trought ave upon the vrincips tu proceedings in this case. In the end, I think it is a cuestion of givinys effec to wnat the demands of gustice rejulre. In other vardcs I must do my best to decide the application ty reechi: =) iti) that conclusion waich will be most gust as betveen the compeny end the Comission. In opposition to tne applicetion, counsel for the 'y Commission relied »rincipally upon the impact which per- mitting the cross-claim to be brougnt at this stage would nave upon the trial. He submitted thet the probable result of allowing the applicetion would be the adjournment of the Qa oroceadings for a substential period. The Commission would nol seek such an adgournnent unless force of circu stences required it to do so, Fut en adjournment would be the inevitable result of the bringing of the crose-claim, Counsel for the commany saic that if that were the ral Q. ct Situation - ne aispute he cr bat ct x o C G 101) in vyBs jo Li) ! ck p> w et x n ft) not a reacon for refusing the applicetion, srovided tne ll. Commission recovered a proper indemnity as to costs, whicn as I understand it, counsel for tne company cffers. In developing his submissions upon the impact uson the trisl of the cross-claim, if 1t were allowed to ke brougnt, counsel for the Conmnissicn referred to the lengthy preparetion of what is undoubtedly a complex and difficult niece of litigation. He 2lso referred to the fact that there had been marshelled a substanti<c] number of witnesses, many from interstate, and the fact tnat it w i fo as Gesirable thet the evidence be called in cas2 at te lost, Some o2 the witnesses already celled kave vroved not to be young men, There was 3 real risk that evidence might be lost either altogether or in vart, due to many circumstances, not the least of which was the freilty of human recollection. 4 further and independent matter stronziy reliec on by counsel for the Commission in oppesition to the apnlication wes tnis. The documents the sub3ect of tne nrorosed cross- claim nad been in tne Commission's possession vsance tne end of 1976, They had been discovered, Copies hed been made iS avalle-ble to all of the responients, incluain, the comvany. From tne end of 1979 1t was made plain to «ll, including the company, that it was lixely that the decunt.ts, or at leest sone of them, would be relied upon in support of th? Commiscionts cese. Counsel end solicitors for the Commiss:on had been instructed unon tnis basis. Ne Cee? Nod veen prep :rea by them upon the Las*s tnat the docunents worl Le 50 used, If en ingunction restreinin documents were very difficult would, an the event of the tencer the decumrents. That was only one imortant + rae the documents blel tne to only ir. their ninds, tLe given, ccunsei would need to a sranted, position. jocuments to the company in examine with tae Comnission would bo in eo teres Counsel e Commission an order for the delivery un of low eine made, aspect the proSlem. wes counsel's very knowl other circurstances would -ex<amine witnesser, not 1 tue contents of the docunents rs would endeavour mag impocing Was Npos "Hs syt xt oar nlariy in the conte was sk themselves whether there vas any denser of their using informeticn which tney had by reason only of whet was 1n cocurentse which the Commission was forbicden tec use, The reality was that counsel, cond 1 nave taeir assurance for this, were so enmeshed in the preparation of the case, which included substantial reliance on the documents yhicn ere in yuestian, th-t if relief of the kind sousnt in the eros3-cl:in were srinted they wculd have to witadraw fron the c3se, or there was 2 very reel danver.tney m2zsht have to tcks that course, Uthorwise tusre was 2 serious risk of SN the Commission, by their use of the anformitior in the documents, being in conteypt of this Court. Counsel thenselves mi_nt also be guilty of contempt or of unprofessional conduct. Thus, whatever else happened as a result of the prosecution of the cross-clzim, 1% would almost as a necessity lead to =n adjournment because of the need to retain otner counsel una for different members o § of the Crown Solicitor's etaf? to tke ovar the coneuct of the proceedings. That aspect of the matver wes furtner develonec in upent wnich tovx place this morning. Counsel made i cy Yr mention of tne f ey a) re) t that copies of the documents rsd been furnished upon discovery to tne other respondents. what ever happenec as between the company anc tne Comniscicn, counsel for other respondents micsnt use the docuyents Girectly or indirectly in relation to the orosecution of their own cases or in the cross-exaemination of witnesses, Then, incependently of the problems to which I have so far referred, there were said to be otner considerations which made it probable that there would need to be a lengthy adgournrent of tae nroceedings with che risk of the lcss of evidence, un the morning the motion was Tirst argued, Franki uv. delivered his Qudgment in Eramctles Holdings Limited v. Trade Eractices Commission (N.3../. No.G 44 of 1978, 27 October, 198C), His Honour held thut the issus vy the Commission of a notice pursucnt to's.15 a e) Hy Tr i D ie) ct during the course of proceedings was a conterpt of tnis 14. Court. That decision puts paid to the suggestion in the Crown Solicitor's letter of 50 4pril, 198C, that the production of the docunents, in the event of the company bein, entitled to succee: on its crosseclarm, c2.iu ue come wellei by a notice under 8.155 of the act. 4t the time the matter was ersuec, nrowever, ccunsel for the Commission said that the Commission would wish to t consider his donour's decision wi appeal. He alse said that tne Comm2ssion m1lint wisn t concider whether 1t would not te entitled to cptcin the documents by the issue of a subpoena for their production, Tiat was @ course wnich ne contenced was open te tne Comnission, notwithst+encin, that it was not entitled to discovery of documents ageins® the respondents, bed ty f<q D Th two matters moentloned may nov arise directly for consideretion in the nearim, of tne cross-claim if the company be pernitved to prosecute it. They may retner b ci) inatters for consiceration in the event that the Cammisszon' uw Ccefence to it proves umsuccesstul. Furthermore, it vould m seem unlikely that zeny chillenge to the decision of Frankl J. would be successful tefore me, If his decision is to be enellencted, 1% 1S rore lisely thet that chall-nze wlll te made in an appeal from nis cutzrent +n Dreables, or 2n an ippeal in ormceedinzgs between there parties. SUT 10 woula Le possitie for She iatters ralsed to be retred unon ry 2 uke comoans be allowed to Ie Ww ° tring it. It may te nut that it ought not to succeed an the cross-claim becuse the reolicf it sezk ut FS bw =) o v of no advantsge to it if the docunents must te nroduced eltner in answer to 4 notice under s.155 or a subpoena. The significance of th metters I hve gust discussed nes for present purposes is th:t they provide 2 besis for seying that if the cross-claim 15 put on there 3s 4 very real possibility tnat its prosecutica end defence will cause tne postponement 2f this trial. « further matter wnich mey lead to its x2yjournment is that the Commissicn nay wish, so 1ts counsel has sald, to interrogate Lne company and sernios seek d2rscovery of documents. It would not be vrevented from having the benefit of these interlocutory steps, «s 35 the cage in tne prancioal proceedings in wnichn it is suins for senalties. Counsel for the Conmrission submitted that the various considerations to which 1 have referred demonstrated that any adgournrent of the trial would protably be not for a short perzod. It might te for meny months, wnilst, in relution to sone of the matters, the cpnelicte process was exnausted, Tne Comnission's t2ers were that as se result of th>= company Leing allowed to prosecute the cross-clain, evidence mignt be lost, and thet, Lr Lis event at its 'seing - pie) succtesstul, tae Jocmission weovla aiaest serteinly Te Soreec te prostedts 1t case with darifesent solicitors en} out isel Taus, $0 1¢ -&85 suvmittean, ti2 iprideslcocn ousht to te reflsed rsecice of whe substauuticl angustic? it . ould cauce,. In adtition to the watters that 1 nave ventioned going to delay, there were other matters relied on és well. Tne point of sutstance raised by the proposed cross-claim has been the subject of - number of dicta in mnglend,. These dicta do not betr Girectly on the problem, althcugh in one case there are dicta dealing with a situation not dissimiler to this, wne2re documents were teken and there were allegstions of breaches c= the restrictive trade practices legislation in force in th United Kingdon. Counsel for the Conmission entered unon an extensive review of those suthorities. This is not the occosionr, in my opinion, tc come to a conclusion as to the law vhach 4y will ultimately fovern this matter. The c?7se 15 not one ct enonstrated ion wnere it cen be hat the coupzny': case is snoull be refused on that grounc alone, Counsel for tie Commission cid not sutmi but ke did submit cot ct S 'uy ct bP c+ = Dt wa that 'the »renondersnce of autnority wes in his client's favour, Re sougnt te use tne v circumstance in suppor ct of a submitsion thet, assuming that the cross-claim were permitted tc te Lrousht, it .ould not be of use to the company unless it could obtain an interlocutcry ingymetion to restrain the Commission, until the fincl hearins <f the crocs-cleim, fron ~akins use of the Cocuments in juestion. if sucn -A tnjunction were not sb.aine', Tie srineisa. proceedings would proceed, By the time the cross-claim rvs) came on to ke neard, they would be over, There was tnuc no utility in giving leave to tring *he cross-claim. The only retedy really available to the conupany a7 an action £ for damages which tne compan, was free to protecute in an u t appropriate court at any tine, 1a counsel's submission, the st3t4 of tue Law was such as to ceronstrete niet the comneny. an on anclics ction v for interlocutory relief, could not establish © probebLility ule als» ¥ cf success, It. ° " ba) Be il in such an expliicetion tecause cr its delsy, whi y ) . fad - q + sy bane A wes rose in tne o> treme, and because tne belance of cunvenience wou fe fa. loa in] a isiey ™ ki a] 1) + ot Dp @ grant of anterlocutory relict, etter much reflecticn I nave cama to the cencelnsion + valat 2 should regect the submitsion, Ino su not because i think There ig any res] likelzaced th' t the conwrny sould succ>ed in an ¢ plication for anterlocutory relief, but veceuse I do not rezerd its chances of Success In cuch an apjlace*tien as beerins upon the outcome of thic eeplic.tion. My rezsen for th-t comclusion 1¢ turt the criterion waich Qusht to determine vhetner this enpiric+tio1 shoul? te ranted 185 woetner tne impact unon the trea] of -llowain, ts procecute tne cross-ciaim will ccu32 inzgustice to the Conmzrsion out of proportion to the inguctice ocecesloned the company ty feilure to accede t2 14s acpliration. ZBefors proceeding, I snoulu pern- vs take clecr wny I think tast an anplication for interlocutory relief vould fail. Iiy reason 1s the company's delay in seskine to put on the cross-clain. It 15, as counsel for the Commission nes said, of the gravest "ind. Thus, my re-sors Yor ssying th.t the cemeeny voulc to eil in an spolication for interlecutory relief «er2 not based upon the balance or convenzence or upon tne state of the lew. The arsument cn the lew has not procevded cufficirently far for me to come to a concluded view upon the question of whether the company wouic establish that there was a real question to be triec. I do say, however, that the authorities czted by counsel for the Commission do indicate that there is a strong basis for saying that, notwithstenuing the property wnicc the corrsny may nave in the aocumernts, or the treach of faith whica rey be involved on tae port of Hr. Ii-tthe.s end the Cownission, 1% 28 vpen to the Commission te use the documents in a case such ac thic. Considerations of public policy may reuuire thav to be so, The authorities relied umon were numerous, I refer only to Initial Services limited v. Futterill] (1668) 1 wt. 3BC6 at op.4C05-406. Taere Lord Cenning 1:. i. sukmacsion tart an the erployyent of every servant t inplied an oblizetion tnat a serv.int wiJi not Lefore or vice 'lisclose infor,rition or documents wich io ty a rs aite ents received in confidence, Bis Lordéhip continued: "Now I quite agree tnat there 15 cuch en obligation. It is imposed by law. But it is subject to evceptions., TekKe a s1iple instance. Suppose a master telis his cervant: 'I am -oing to falsify these sale notes and deceive the customers, You are not to s#y enytaing atou to anyone.' If tne master therezatte: 2 the sale notes, the servent 1s entitled to say: arv of a man wnio does sucn a tnhing, I will Jeave rim and report it to the customers,' It was co neld un Gartsiae v. Cutrem ((1856) 26 1.0.Cn.113) Iir. fucnael herr suzvected that 'ris exception was confined lo cases where tne nester nes been 'su1lty of a crime or fraud.' But I Jo rot think that 1t is so linrted, it eytenic to any miscon- duct of such a nature that it cur it in the public interest to te disclosed fo others Wood, ¥ec. ° put 1t in a vivid phrase (1b14d.214): 'There is no confidence ¢s to tne disclosure of zniguity.' In un . cteonens ((1S1%) 21 i,t. 320) Benues Liu. rather Sugsestec (p.5°27) that the exception 18 limited to tre proveusec or contiar—- lated commission of a cri or a civil wronc, Sut I should neve tusul,at thet was too Linited, Tha excenticn souls extend te crimes, frauds add misdeeds, vota those actasils committ-3 es well 4s hose in contempiation, provicerm eleays - ro this is essentiel - tnt tre disclosure 2.5 gust _fied in cwne puriic interest, The reacon 1s tecause 'no orivate obli lations cag .icjense with treat universel one whic., lies on every member cf tre society ta discover ev ry Geslsn wnicu vay be formea, contrary to tis Jaws Of tie society, to destrov She public welfare'; see annesley vv. neleses (is ((1747) Leak. 5 a8. 2178) The J2rsclosure must, I should thina, ve wo cre who sas a treper interest to receive the inforneticn, Thus it would ke proper to disclose 4a crime to the police; or a breacn of the Restrictive Trade Practices Act to tae registrir., Tnere mey te cases where tue misdeed is of such a character thet tas public interest ray denand, or at Jeast e@.cuse, publication wm 4 broader field, even to the press." iver beceuse the cese was one in 16) ° tm Hic Lordship's dictun 1 fica the cuestzron was wnetner 4 defence to -n acticn for Lreech of confidence raisin. matters -ssoci_ted wati: the "LU fh) =) public interest should be struck out, It was sufficient to decide that such a defence vas not s> untenable as to Ee one wnicn ourht not to de allowed tc stand. So much is clear from the guézments of Salmon L.d.(2s he was) and Winn L.o. Winn L.d,, however, saie (p."12): quotations from the judgment of tn nppeal. in Weld-Blundell v. Stephen K.8, 520). nad felt that tine woula be thus usefully emoloyed, J would have drawn attention to the tact thet nothin: in any of tnose gudcments touches upon tae precise noint nere; e211 the gudements are certainly onen to the construction that the members of the court would neve been ready enourh to refuse to enforce the agreement had tney thouzht the agreement itself offended against public policy, that weing the essential point in the present anneal." "T do not desire to burden this gudrrent wv My tentative view of the law as revealed oy th authorities, althouvh not relevant to the submission made by tne Commission that tne comoany would fail in any anwolic- ation for an int¢érlocutory injunction, may possibly ..ave ultimate simificance wnen I come to consider later on what the outcome of this epplication should be. It is a matter to wnicn I shall return. Before proceeding further, I shoule say more on the yuestion cf Curisdiction. Toheve clrezdy referre. to tae provisions of s.32 of the Fsaere] Tourt of fustreliz -~ct, .esuming validity, whicn I em preparea to wc, the euesticn Fe 12 whet 18 meant sy the .ords in t te te Section, ""ratters .... ». "hat are associated "ith matters in whicn the ne matter 2aes not been fully ourisdiction u a the Court is invoked", T 21. argued before me, principally for the ressons I have mentioned, but I im preparea to say, tentatively, thet think that the natter whici would e:int 1f the crose- claim were brought is .ithin the wurisdictior cf tals Court. I am not so clear about the metter, hovever, that I am prenerea, in the ev-nt that lesve to trins the cross-claim is grented, to countenance a4 situation under wnic., no notice 1s given vursuent to the provisions 22 8.732 oF the Judiciary act. in my cpinion those rrovi.1ons do apply. In my opinion, the ~uestion of my guriscictioa do2s involve a matter ecrisin., unler the Constitution or involving its internretatzon. One resscn vhy I tuink i) - evert taet I crant leave to trin. ihe cross-clain, I v.11) renuire to te satisfied th.t the no ices vroviles for under 3 nave been served. It would sesm *ha serven on "oe + ttorneys-General for the Tan unvwenaltn ané of Victoria. It may be as well, in tho evert tit tre applic ution 185 .rented, if netice is serve* on the attornev-Ceneral for New South dales. 4 furlner natter to be ventiome, before caonclu-ions cen te reacned ais the stticude cf tie resuondents oto2°r thon the escimmany. Originelly IT cad mot unvate any statement fron the other respondents es to (herr attatute ta che apLtilication, However, «nen I cire te comzpier tae metter more fully, I thought their -ttitule coulda neve <= cearins beth om the outcone of tne enviiecrticon and upon any terms I might cmpose rf 1 decided ta uccede tu it. Two matters were in my "ine, The first wos the question of costs throvn away in the event of Lhere being any lengthy adgournnent of the proceedings. 'The costs I nad in mind were tue costs of the f2cpondeats other than the company. The second mutter wee con- cerned with whet would napnen if there were any lenmthy acgournnent of the trial onc I, for any reason, w2re unable to continue the heerint: of it, I reises thes2 matters on Thursday last, Later in tne acy counsel lor the tnird respondent seid (n.1?5C of the tran-cript): "Ve cdo not wish to say anything b: ts tne applicatien for le=ve to frie the crouse claim. sSecordly, if tnere ig to te an aldgcurr- nent in conse;urnce of tnet leave beings grented, tne third respondent \' e pre Ir resicned to facing the r t occ. Sioned or thrown away s..0uld lie wnere they toes seer Thirdly, we would subrit that no order showld be made at this stage covering the contingency that an adjourned nearins may not tske nic your Gonour, Th:t metter snouli Le 2 in our submission." Since tnen councel for tue second, neve stetea tae positicn of their clients to te broadly th s-me a5 thet ot-..tea ty counsel for the third resooneent. respondent has mentioned anv other considericicn az beins oenrropriste for ne to téeke ints account in reletion to the . suestion of wnether I grant tae application or in relstiion if = nave now ssid enough to enable me to cone to the uuestion of whet the outcome of the spplication should be. an my opinion, as I nave earlior said, the question to te deciced 18 wheat 2s tne gust thing to te done ec Detween tne o immeciate parties to the applic-ition. Tn tre lisnt of the attitude to the applicetior by the other resvonderts, = need not take their interests into accourt. Tf tne anpliceation a not insubstantial delay an tee hecring of the sarincipal fon] proceedings, fithout reaching ¢« final cozmclusion, I *nink the oniy wey of managing the cross-claim, if it is toa be brougnt on, is to near it sevarately ena tefore eny izrect & ' 3 use of the documents 15 sougnt to te "ede. Th-£ means 10 must te finally disvosec cf Ssefore wr. Tkcttiews gives evicernce, and possibly at in eariier stave of the vresentation ' 53 Pa : 2 ? of tne Commissicn's case. Tae cine vnen ir. Lattie.s is to w be called 18 approaching, the Comicsion hevine called, 3s I understand it, tre bulk cf whet nee becunme anion eae? the trooe or consumer evidence in the care, I laink 1t will doourn ert wi1il then need to ce be ineviteble tnat an crented to enable the cross-claim) to be neor-:, at nay well bce needed leceuse the Commission wi]] resuire to son- e1der tie form of ite cefence «nds nether at wosnes these Lo te discovery and/or anterrop. tories. Ti ne wil y F E . necaec +o enacle the re wiseientc o: 8.7GB of tne Jucicisry nct to be met. Zi ois not impossitie that in ens 'er Ly one or move of t that tne neering snould await tne outcome of the nrocead- ings h Court esrlier referred to. Srus £19 eroanting of the applicution wld almost certeiniy "onan that the proceedings will ce net anconsiwerslly deleyed, elay of itself chonld not, nowever, be a reason for refusinz the anslicction, It cur be g-ented upen cen- ditiaen thet costs, serkeps ce retween Soiitcitor and client, thrown eway s.culd 62 pearl ty the ce $ Wy Ce mr Eawws ° a) vel BH < nm i nm + . Se: t Tn evidence so fer led does mut dicelcos tliit ray Lreden of tne law wnaica c-ay save been conmitte? rs continuing. lf senelules ore to ved yorv!ed and en onguiction to restrain repetition of patt conouct erante+, that con as eesily anit¢e sabisftectorily Le acne nevt year or an 1822. Thus, if celay were the only consideration, such ingustice as woul! cesult from it could not outwei_h tue ingustlce occusionee Laz compeny 12 it vere effectivel, srevented fron bringins ite clazm, It is true thet 1. 1s free to compence independent vrocescings an one cf the sunreme Courts, Subject to any juecsilon of the ouster of guris- aiction es the result of the onerctior of s.0 of the ractive secisioms (Juciciai Review) .ct, or perncps an the Hapa Court, but cere 1g 4 reel ouesrion of whetner, is wn . un th: li.nal of the del<ey un 'vo now, 3 uld obtain any effective relief. Tf at filed to obtain inter- locutory relief, it would no deutt apply for tae adgournment of the yrincinal nroceedina PJ before me for en adjournment of the vrincipei proceedings. Tu2 consiteretiuns vould then be "ucn tae s. ere now, But there are two 1atters oF passible inguctice oO + (3 », e Commission which maght not ne able to be overcone en appropriate order of ccats. lon ws 2 2 elerren, < oD a ih) y ws a To i) possible loss of evijence t> "hica i * Hiost oF tae other evicerce will an fact be ain by "ne tine any adjournment 1S necessary. Of course fir. Mutthews' evidence would not ke in. Trere is a question of whetner tie other evidence would be avelleble if another gudge, for any resson, ica to uniertake the adjourned nearing. That was a matter I raised with counsel for the sther respenients, one is prenared at this stege to courmit ais client to a sicuation an whicn it would pe so evailsble. I vas referre? to tne "Forest Lake" 1568 P.27C, but a reifine of The guazrent ., there suggests that the old evidence wes used by censent as incee2 was the cate in CSimonru3s Viscener v, Voit Thes.o.on (unreported, Suorene Court ot B.. . 19 Pee -nber, 1575), as the result ef the unfortunate zllness of the or1cinal trial a co. vO tazrni: that I will not te ive1iable to resane eny csdjourned nearing, bat tae future is difficult for any of us to foresees, it would Ee sravely ungust to the Commission if it :nouid Lose fu evidence Ly reason of whet 15 a very beleted -splicction co tring this cross-clain, ZT shell say more of this matter in a moment. Tne secona metter waich cauces me concern us the fact that, for the reesons advenced by counsel for the Commission, and mentioned earlier in thas cudz.2nt, counsel for the Commission end perhups instructing sclicitors, micht not, if relzef continue, lloreover there 15 a oroblen of cross-examinetion, upon the basis of tne docurents, by counsel for tae other resnondents or otmer use by they ct these aducuuenss. 2 lo not repeat what ccunsel for the Commission sizd in his subnission, Ioheve earlicr set it ont, Ioeceo:pt av unreservedly. Put if there ic to te a delay, the problems to whien the submission sives ris2 cen be overcome, Lte1t with a ereit desl of difficulty. T.sr2 call te tiie for fresh counsel and rolacitcrs te te instructen, 2g7l0. Of course, the lyumissicn in thet event voulg heve to nave «. cr wer indemnity as to costs lost scr tarowr «say, of inguetice tu tre Conmmistioni, sf tne applic-tion is eranted, outweigh tne ingustice tnut right be couse? if T refuse the asplication, The matter has cautea mo grave anxietr, Z Make no epollesy Por tae tise I nuve taken to come to a conclusion. One of the matters i heve taken into accovnt, but discarded, 18 the difficnl' legs] prceblem »nich 1% weuld se 1D m confronts tne comcany. x rerer to the dicta esrlier cited froin Initial services. Sut, upon reflection, I taink it would be wrong to take thet ratter into account as determinative of what I should ao. ~ would vce to pre-cetermine tne matter. Por Similar reaccns 4 «eve Left o.t of account the fact tnat there is 4 guaslisr uf to tne Jurisdiction ef this Court to mtertrinm the cervsct-clain. Having siven the metter the reflecvion to hic! I G@ the corclusion tnat in =] is) > (Db have referred, I have ree tn» circumstances I shouls allow tho cemmeny to put an Lie cross-claiz, but upon terms to which I shell refer, Cne of the m.tters nich nas played some part in my decison woaicn, es I sey, I nave reeched «ith preat difficulty, is the Fact th=t it would neve teen reason: bI2 for the cammany to lve Fousht co brine the cress-clarn in Yay af this veer I go not think, upon tne Zcsis of wait te disclosed in mr, duntingten's affidavit, tust tart could hive teen regourmles ce on unrescorably late time to atcempt to aactitu 1t. If that had occurred, the cross-cleim woulu heve toen mM Q) . netermined first, and 1t 10 ualixely that any evidence L in tae orincipal proceedinrss wovla i2ve oe iD zen led tails a year, Cne cennot soy th-t that 15 ° erteinly tie Situation, but it seems to me th-t it ic not iammroteoly tne situation, Tue terrs i have in mind must provide a nroper iuncemnity for costs Enrown sway, i express tie view, tentatively, tha they snould be ordered fc Le poid cn t tne btesis of costs as between solicitor and client. 1 em anxlous, notwithstanding tnat che risk of my «vearlabil:t for any sqgourned hearin, way seem Pa v to J Comniss1on be rrotected ss to tne evidence whica 'iss t ie waps, to Ty Sayin dene_nour of the various witnerset, fo Lue trainscvipt keang <«vailable for use by another gudee, sncule t29 nee for *hat arise. x am also rrenvared ta consider a term, wnach IT nave not fornuleced even in 2 tentative way, wal would srotect Loth tre Commission and its legal represen tatives in relation to some use of the accuments whicn Mat' be ineviteble, and agzinst use of them «hich mav te made or att=nmpteda to te made by counsel for Ehe other re> ,onzents, I should -iso Sesl at some store with cne costes of the notice cf motzon, writing, out whet is needed is come ferrul:tion of terms ik, HIS KR. I o-m sorry that I cannot give vou tnose ressuis in oe Worst ay -NILEY: I do not taink There af any erberressment yr eregueice 12 we do not cave tie reacons, st least for our part, GYLES: we are in the seme position. We obvrovely want To think ebout it, but the lack of writre:. reasons is no barrier. + HCINCUR: it may te as well ii ve c_uli trv ts formulcte terms fuirly soon, <n¢ 1 do not reen this <fternnon, GYLIs: 1 would ivagine by sume time tomorrow v2 would be in a nus:tion to adéress your Hunour. . Pag oS BY pve arg piogta cre fe itys xo .eavons fer judgment a. ut OTe onourable Mr Justice Sieg parc. <=) th Associate N Dated \¢ Were wnrter ase od © IN THE FEDERAL COURT OF AUSTRALIA ( we 4a - VICTORIA DISTRICT REGISTRY No. VG 29 of 1979 | ele GENERAL DIVISION TRADE PRACTICLS COMMISSION Applicant - ALLIED MILLS INDUSTRIES PTY LTD @ ORS. Respondents ALLIED MILLS INDUSTRIES PTY LIMITLD Cross Claimant TRADE PRACTICES COMMISSION Cross Respondent SHORT MINUTES OF ORDERS 1. Order that leave be granted to the Applicant Allied Mills Industries Pty. Ltd. to file and serve a cross claim against the Trade Practices Commission in terms of the amended draft annexure "B' to the notice of motion herein, 2. Order that such leave he granted subjcoct to the Applicant submitting to the terms and conditions contained herein. 3. Order that the costs of the motion for leave to file the cross claim be costs in the cross claim. 4. Order that the cross claim be separately heard on a final basis prior to the Commission calling Mathews to give evidence 1n the main proceedings, apart from such evidence as 1s specifically provided for herein, such hearing to commence before me on Monday 1st December 1980, the Applicant submitting to all such directions as this Court may see fit to give to enable the final hearing of the cross claim to commence on such date. c- wt Order that the directions hearing of such cross claim be held before me on Friday 14th November 1980 4 s] at 10.15a.m. . The other respondents in the main proceeding also consent- ing, the applicant consents to the Commission calling Mathews to give evidence in the main proceeding prior to? the delivery of reasons for judgment in the cross claim ©- for the purpose only of identifying in chief and having": marked for identification statements and such other documents feferred—te—inthe—eress—clain) as the Commission may be advised which the Commission if free to do so wishes to tender in evidence in the main proceeding. The Applicant further consents to the Commission tendering in evidence in the cross claim all such statements and documents referred to in the cross claim as 1t may be advised. The other respondents in the main proceeding consenting, order that the evidence oral and documentary given in the main proceeding before me may be used in evidence before any other Judge of this Court who may be required to conclude the final hearing of the main proceeding without it being necessary to recall any such witness before such Judge unless such Judge otherwise requires such witness to be recalled. 10. The applicant is ordered to pay the costs of the Commission, as between Solicitor and client, occasioned or thrown away as a result of the main proceedings being adjourned to await the final outcome of the cross claim, including those incurred in preparing again for the resumed hearing of the main proceedings together with any additional costs occasioned by the briefing of new Counsel, should that become necessary for any reason. It is noted that all the other respondents in the main proceedings agree to bear their own costs occasioned or thrown away as a result of the main proceedings being adjourned to await the final outcome of the cross claim, including those incurred in preparing again for the resumed hearing of the main proceedings together with any additional costs occasioned by the briefing of new Counsel, should that become necessary for any reason, and that they will not seek to recover such costs from the Commission and that any general order for costs in favour of such respondents shall not extend to or include such costs and it is ordered that the applicant Allied Mills Industries Pty Ltd shall bear 1ts own costs occasioned or thrown away as aforesaid, and 1n any event shall not be entitled to recover such costs from the Commission.