Cc A T C H W OR ND S Trace Practices ~— Arrangement or understanding - Act of communication - Trade Practices Act, 1974, ss 4D, 45 45a. Practice and Procedure - Statement of Claim - Further ancrdments to already amended Statement of Claim. ROBFRY JAMES PARISH & ORS v ATSPRATTAN BROADCASTING COMMISSTON PBI MARKETING PTY LIMITED & ORS. v. AUSTRATIAN BROADCAS JING COMMISSION ~ No. G73 of 1980 No G74 of 1980 CORAM Bowen C J , Franki and Deane JJ. DAIL 31 October 1980 SYDNEY nN THT FIDFR AT COURT OF AUS PEARLA ND SOUIH WAITS DISTRICT RLGISTRY No GTS of Luna NN eed GUNTRAL DIVIS LOX BLINT rN PBL MARKULING PTY Appellants AND AUSTRALIAN BROALC*STING COUT SSTON : ke spondent JU GTS MAKING ORDER Bowen © J., VPrarki & Deane To DAL OF ORD'R Friday, 3. Ocriober, LOSO WHLRE SVL Sydney LLL CO" RT ORDLRS 1 That the apreal be Climissea u Thal eestss ab alt partres be cost ® IM TN ees Lh TUR MEOEMAn CVINT OF AUSTSAGIA Wh SOUTI WALES DISTRICT REGIS TRY ew , iB) wa GUINEA DIVTSIGI BITWSON : ROBERT GAMES PACTS & DRS. Apoellants AID: AUSTRALIAN BRO D- CASEING CoM: TSSTOY Resrond ent BETWlat: PBL MARKETING Diy. LIMITED x« OTS. AND: ATISTRALCAN BROW — SASTT. G COMMTSETON Responaant CORA Bowen C.J., Franti & Deane JJ. fad Fridiv 31 dctober, 1999. 2resVTS POR MMT IT THT SOUR: Oye gare mts v1 Pneas2e ammeats, whi hava De Mean] tevtobhber, 72 teres censinaty and SS2 rempers Gor 27 sar. pern~ of the Cast roliom leak Pore? ("tae Fear di"). IN 1.0 PrDERAT Cole" OT AUSTRAL 1A NLW SOUTIL WALES DISTRICT RIGLSINY No. G7btL of L9so eR Ve ww CLNTRAL DIVISION BLTWDN ROBERT JMRS PARTEI . Ons Apnellants AND AUSTRALL AN BROADCASTING Respondent O R DL R JURCVS MARTNG ORDFP Bowen C J Frenlii & Deane .d7 D\TL OF ORDER Friday, 37 Outober 1980 WH! uD MADI Sy aney Lt, COULT OKVIRE 1 That tie appeal ov udlsmissed 2 That eeso, oF all nariuies be eousls, in the awe Ther are Da resoondoenkts Lai oraeeslinis browrhb by wie Nuetralian Broadersting comission ("the A.3.c.") tn the oriqinal jures4retiei of Ehe Court an which the A,2.C. secoks certain relief pursnant to the vrovisions of toe Practices Act, 1971 tn relation to facts allece?d to surround the Making of a written aqreenent betveen the Board and the corporake respondents on 30 Muy, 1972 which wis nurnorceily con*irmed and supplemented by ai further agreemenz vt 21 November, 1979 betwen che same narties. The agreements are enocercea Ql A2Sypects vl invernaci1oni.) ani aunterstate evicket matches nlayet* under the contre] of t1¢ Board. Tne actua] herring of the proceedings commenced pefore Brennan J. on 12 February of this yeir. That beariag yas interrunted by anveals to thas Court froe interlocutory decistons of Brannan JJ. on matters of pleacving and on whethar Aa.' erder snould he made restricting or rorbicdine ~ubl ear 14 of certiin parts of the adraenmert of 30 "ay, 19739 (see AUStralian Rro weasting Corniss10n ve. Parish © Ors. (1989) 29 NeL.R. 220). Gecse wert to the delerminrtier of thos? Qype tls, the trrvil of the woreces lings wis Viretead toa cesmr7e before Srenian ¢. on 27? Gapteroer, 193%. An aopbicablon wi shen aie Dw the 4.3.0. for eave Further to rameard ars aleeaty uceadla shat enerr of claazn Me qids1ivant. sone isto} of substrrrove amermoate Ls pavisramis S amd SF and ow seme ar of lavqaly ica. tr.crhinl osc .tceits (eiras. il, 2, 23 : 1350 amd 15) and -2iitions (mari. 1T14, LIRR and Jic). "Tter further specified particulars of the vronosed new piragraph 34 had been proviied, Brennan J. alloved t12e amandments. It was common ground thit, in the result, the dite fixel for the further hearing should? be vacated an? this was done. The present appeals are from Brennan J's order granting the A.B.Cc. leave to amend ani fron an order that the ot costs of the last aay on which the question of the rrepose amenaments was wvefore nia, namely 14 August, 1930, shoul? be costs in the caise. Tne apveals lie to this Conr+ at this stage of the proccelindqs by reason of the fact thir wie Federal Court of Australia Act, 1274 permits, as of right, an appeal to this Court from an interlocutory order of a single Jadye. Paragraph 5 of the A@iended Statement of Clit, nrior £9 the @iasnuted Furtner ameninent, read as follows: "The respondents entered auntO a contract, arrangement or understanding, hereinafter called "the agreement", consisting of an Aaqreement in writing bearing date the 30th Mav, 1979. A cony of the agreement As appears on the public reaister of the Trade Practices Commission of the Commonwealth of Australia 1S attached hereto as Annexure "A"." Tree uey paragraph 35 ecrsists oF A Fwort neweiry rareyrzyz1 ani ferrtean Par ert snp virigroamas rarer Fsllo. iat adi ere !ogoariped 15 "BP ork vralars"™. Swe TrDPaary warszer ip. reads "On or before 30 May 1979, the respondents entered into an arrangement or understanding (hereinafter called "the understanding")". The sub-naragravhs which Ffollew appear to be aintanded to elucidate the nature of the alleged arrangeamant or understanding. Sub-paragraph (1) alleges that varct oF "the unéerstanding" consisted of an instrument made between the respondents bearing date 30 May, 1979. Sub-parayranhs numbered (11) to (x«111) Aetiil other "parts" of the allaced "understanding". Some of these other ""narts" of the "anderstanjina" (sub-paras. (iv), (v111), (x), (xi), («11)) apoear larcely to consist oO. provisions of the written agreement. One other ""part" (sub-para. (xiii)) 1s inconsistent with the supplementary agreement. Other "parts of the "understanding" (suh-paras. (i121), (111), (v), (vi), (vit) ana (ix)) go beyond anything contained in the vrikten agreenant and ire of varyinsz consistency (or i1nconsis- encv) wlth 1b¢s terns. Sun-pira (xiv) alleges tn the alcercnitive that tne "understanding" consisted of tne written agreement elthner alone or with any or2 cr more at thre "noarts" Isseriped un (12) to (iri). The prirctpal arjenent advanced on beiwl1lt of the anomllaits aqniinst Brenuan J's orior granting leave to amend Prrszeees So ovis tani re alleqid "aniasstrrding", im so far a] abe Ms at senk mewond the wopreas and smptre]d tering andot ampladeicarrsn and pecessem yr ocoasayalaees of Wie ary 2emeait, could not, as a matter of law, constitute an arrangement or understantina for the purpeses of the seccions of the Trace 1974 (ss5.45, 4D an? 45%) which provide Lhe matrix OF the reievant alleqed contraventions of the \cl. The authorities denonstrate, it was argued, that some degree of consensus or shared #mectat ron 153 necessary to estriblish an arrangement or understanding and trat tuakh consensus and/or shared expectation must depend on some form of cornunication. The respongent 1.6.C. had clearly inditcite], so it was a24, thrt if nother alleueik, nor orpnunigation between tre Fh Q nlacod reliance upon, any act o ir a fay J Oo a Oo ¢ " a — tuG resvonderts other th cution of the agreamert. That being the case, lt was sald to follow, as a matter of law, that there could he no arrangement or understaniing bhetveen the parties which extendad beyond the express ind banli3d terms, the imnplementatrton and tye necesgears consecuences, of tne wrretan agreement. Tt can de seen that the factual foundation of the aprellants' argument 1s the assartion that the 4.B.C. narther allaged nor nlage?d reliance ron any act Of coamunie it sn ptrier thun the ac.uil exocntseid of fhe wrirkten aadraemanr. Td supyort that assertior, the appellerts rel1lod upon writ was walioby Mr. Sraf® O.0., who apporrs for tie ALB.C., in 714 arur of artrmen before Prannan J. ered unor tha furtaicr avd ano orelacion to ce -6- The rolevant rorarks of tir. Staff O.C. inciaded tne MiIwyTess Stateuenk that the ontry into the agreeient vas "the comuanicetton of t1e understanding ...". at) oniy act o Uiarded by explanation, we shoulda have interpreted his everall submissions befor? Brennan J. in the sare vay as the AnNAllants iaterproted them, namely, as i1niicating Lhat the is A.3.C. netther alleged nor placed reliance uvon any communication hetweer the anveliants other thin the execution Qf *+*he written atreement. Tt would seem from *he reasons which he gave, that 8rennan J. also so internreted them. On -is hearine cf the anneal hnowever, Mr. Stat* oxplaivred tnaat tae disavowal of reliance upon any communication other than the maxina of the written agreenaent was aintendel to rsafer Only to what actually brought the allesed arrancenen > or h +r uplerstanding into operation or effeck. Contrary td the appellants' understanding, the 4.3.C. did realy, as co conbaat o° the alleged arrangeient or umierstanding, upon the various cormvunicatzons which, gb 1s said, mist have taken place potveen meabers of the Borrd ant the corsorate responterts before the actual evecntion of the agreemint in triting. Tn $9 far as tee anvellants! misurd taniine was tip result of the Furiner wend belter parliculivrs of saivagrish 3S ovheeh were suppl1?et by the AL3.2., 12 voald soe tl» eynlap2 iar r2 o2 foun' on aipigiutties resulting frou nF DI WOT Lay Aa ee hae Fursaear andi patter particulars which Brennan J. had indicated should be supplied and oa heading to the further and better partrculars whidy the A.3.C. supplied. H2s Ponour indicated that particulars shonld be sunplrei, to the extent to which the alleqed "understanding" was "to be inferred", of "the facts, matters and circumstances from which the inference is to be dram". I i) the particulars provided by the A.B.Cc., the heading vas: "1£ the understanding 1s wholly or partly inferred, state che facts matters and circumstances from which the anferenc anus. The particulars supplied were stated to be of "the facts, matters and circumstances by reasor of which each such part of the understanding is to he inferred" (omphasis adied aun each case). Tt would seem that the anvellants understood, from the heading which the A.8.Cc. used and which differ-2 fron his Honour's direction, that particulars were being supplied of the facts, matters and circumstances from wiih the A.8.C. alleged that the relevant prirts of the "understanding" ware inferred as between t12 partres vherens the particulars supplied by the A.%.C. were largely of the oO < yaentiary matters by reference to which if vis st1]9 that the Court should draw the inference that the rippellants hai, oy inference, arrived at eb relevant parts of the "understanding" between themselves. In tne result, lt aooears fo us thar rhe nacers fn ss 1: Factual Cnadvietio1 for the apsellarts' arzineat has not b2en sPoOwn 2D 8 ist. TH ts unnecrssiry to eanress Aay eoncladei = R= view on the qies'1an whether, 21£ thrt foundation hal been shown to exist, there could be no andlerstiandinqg wiich extended beyond the content, implementation ani necessary tt effect of the written agreement itself. In deference to the careful argument which has been directed to the point, we have given consideration as to whether ve shoul' cxoress a ro) ~ tentative view o1 that question. We lave concluded that tr is preferable that we refrain from $9) doina at this stage of the pvroceoalings. The next argument alvanced on behalf of the apneljants to witch we would make specific reFereice related to the "parts" of the "understanding" alleged in sub-paragraohs (13), fav), (x) and (x22) of the disputed parigraph 5 of tne further amended statement of claim. When read with the further particulars whith had heen supplied, the "parts" of the "understanding" alleged ain these sub-paragraphs wer: said to amoun*+ to the "necessary consequences" of performance of the written agreement. To Allsv them to be pleatel as "nart" of the alleqed "understinging' was argued to be contrary to what was s2ia in w ae ad " thas Court an Australian Er< ageistina Commission ve. PB ho« Qrs (sunra) 3n ea] from a previous J2t71s1oNn of Prannon J. Peo. leave ta ome nd paragraph 5 The effect. of the nronosed amendment to varacranh 5 of the statement of claim which was under consideralioa in Australian Broadcasting Commissio1 v. Parish & Ors. (sinra) would have been to include all the unspecified 1eCcIssary consequences of the verformance of the respeclive provisions" of an ""agreenent" an the "contract, arrangement or understanding" into which 1t was alleged the respondents had entered "by" the agreement in writing. It was tre unspecified nature of the alleged "necessary conseauencos" and their tunelusionr in what was referrad to as "th wt agreement" which vroviled the paisis of the objection to tne proposed amendment to paragraph 5 tnere under consideration. The position 15 quite different in the present case. Here, the relevant pronosed additions comorise allrtgations that particular specific matters ecoanstitute ware oF BY uiderstanding extendiag beyord the ambit of the wr t-er agreement. These additions are of the type contemolaten when 1t was expressly stated in the Australian Rroricastin~ Commission v. Parish & Ors. (suprn, at p. 250) 'tnat the dec1s291 on the proposed amendment to paragriuoh 5 woulda not preclid2 the A.B.C. froa inoiviig to the trral qnige for E . J Dag leave to amer]d paragriva 5 12° 2 marnor which will ensure that tie paragraph ercesnoasses any specsifie allegation waren lt is des tred ta make" (emenasris ieded). -]fe- It was furtner argued on behalf of the apnellant members of the Board that, in view of the fact that at vas Ww allegeli by the 4.8.c. that (Tt a) Oo nq Lhten agreement of 3) "Iny, 1979 had bean made and was subsisting, 14 was not onen to the A.B.C. to allege the eryistence of an understanling bet cen the same parties which was ineonsistent witri the terms of tre written agreement. Wo do not accent this sunmission. Tn our view, the existence of a vritten agreement may mike rhe task of him wno asserts an unconsisteénk undoratundeuy betveen the same parties a more than usually heavy one. It does not however preclud2 him from embarking on that task. In Austrilzrain Broadcasting Commission v. Parish * Ors. (supra at p. 218), reference was made to the fact than tre decision of a trial judges on the question of allowing an amendgmert t9 2 pleading anvolves An exercise aE qutici.l a:seretion on a question relatwi to practic? and proetuare and to tye2 principles which ire aprrcpriite to be anplied by an appellate court on an apperl from suc qeo1s1on. i) Nertber the general arqunaents +o which sneelficd refered? has been made anov> nor other more nurticular arguments to the effect that certain of tne sub-paragrinns 'iid no nore thin pleai part of tis written agresment or vere othor.15" endaurcvaseie? Vrich were ethan odo en bebalf oF the anneal ante establish, an oir vies, anv cromeds ware) yould gustety this > ' Courl pao 1 tarforiie wttn ats Ponor's toLston to aller wa ade ert bo neraqmanh 5 cf 142 arenided stitenen oof claim. -tl- Paragraph 6 of the anonind stafemoent of cloin real as follows: "By agreement in writing dated 2lst November, 1979 the respondents amended the agreement in terms, particulars of which are annexed hereto and marked with the letter "B". The agreement as so amended is hereinafter referred to as "the amended agreement"". The amendment to paragrann 46 was to suosittan> for ithe E previous paragraph the following nev pexragraph: "By anstrument in writing bearing date 21st November, 1979, hereinafter called "the second instrument", the respondents purported to amend the first instrument. The applicant charges, and the fact is, that Clause 1 of the second instrument was not intended by the parties thereto to have effect according to its terms, and 15 and was a sham". It can reallly be seen that there is basic contlict between the new paragraph 6 and its predecessor ani that 21t ls arquable that strictly sneaking, the marters alleqel in the nev paragraph 6 ought not nroperly Lo be pleaded as vart of the A.8.C.'sS primary case. We are, NOwever, quite 'ungersaaded that any vroper grovr3 'Nas Seen mate ont For Interfering wita his Honour's Geeision, in tae exercise of his liseretion, to allow the unmemiment. Mur vi2gw in what regard? as confiried by the Fact fiat amoarcntly the arqau |nts advance? omfore tris Courk ata 1nst yurentwan 7'3 Tecrti3aa io qQlloy Vie amenweeesih £9 partaravs 68 werl nat wivaia ad bafore y Heo Morour. Tk was conceded by the annallants that ihe remaining amendments to the anended statement of clair - wirneh wero allowed by Brennan J. were consequential aivon pis allowance of the ameniments to ptragranvhs 5 and 6. Consequently, the apnellants'' attack unon his HYonour's decision wn relation to those further amendments fails wit the failure to make good the attacs upon his Honoir's decision 21n relation to paragraph 5 and paragraph 3%. The other matter raised by the apneals concerns his Honour''s order that the costs of the last day on whoch the question of the proposed amenaments was before him, namely 14 August, 1985, should be costs in th? cause. \O argument was addressed to the Court on this asnect of the apneil an2 no ground has been shown for interfering with the order 'for costs which his Honour made. kd adi that, an the light of the 4.3.7.'s Aoproach to the case which emerged on the apnea $90.1 TVesiraole that the A.B.C. furnish Lhe best nartroalars which rt 2s capanle of furnishing of any Facts, withers ait mr 4 Direumstineess from whith 1h is alleged thrat so much of pot veean the aprellanbts was, Thee bs A cw ther wit Ls, novyever, mnegt Llefre tro orb- Llerarn2dic 1 yadrea to detevriuie in TAS Liget OF nat oars Ree sari en 924 1 oF tis 3' 3.0. or -13- the hearing of Lhe anpeals. Tn this regard, it 1s relevant to mention that Brennan J. expressly stated that his ordar did not prejudice the rights of any party to avonly for further or better particalars 1f they should anrear to be necessiry in the preparation of the case for trial. Fanally, there remains for consideration the question of the costs of the appeals. 17 x he 4.8.C. haz largely been successful. On the other hana, the appeals arose largely from misaporenension, on the nart of the app2llants, fe as to what the 4.B.C.'s approach to its case was. The 4.3.C. WAS, to no saill extent, resnonsivle for tpr1c mMisapprenension. Doing the best that we can, we consider that the appropriate order as to the costs of eich appeal is that such costs, as between the respective parties, be costs in the cause. Y ers en Oe re =n we Ce vel Sus > otruzcony of the re sot fi oe 1.che herem of the Court lifes ee J4S5 rh