EREL COURT OF AUSTRALIA ) ) JISTRTCT RECTSTRY \ VG No. 2G of 1977 ) ) VISTOM Between: TRADESTOCK PTY. LTD. Farst Plaintiff WILLIAM GAMES FREVEN and NOEL EDUARID STOCK Second Plaintifis And: TNT (MANAGEMENT) PTY. LTD. First Defendant TNTERETATH PAPCFL FXPRESS COMPriy PPY. LIMITED Second Nefendant IPEC TNSURANCE LIMUTED Third Defendant TPEC CAUST) LIMITED Fourth Defendant ANSETT TRANSPORT TNDUSTRIES {OPERATYONS) PTY. LTD. Fifth Defendant BRAMBIUES INDUSTRILS LIMtTED Sixth Defendant MAYNE NICKLESS LIMITED Seventh Defendant YOUNG'S TRANSPORT PTY. LTD. Eighth Defendant UNTTED TRANSPORT HOLDINGS PTY. LTD. Nanth Defendant EXPRESS FREIGHT PTY. L™. Tenth Defendant A.U.T. MOLDINGS PTY. LTD. Blieventh Defendant PRADEX TRANSPORT PTY. LTD. Tvelfth Defendant CORRTGENDA SMITUERS J.: Amendment to be made as follows to his Honour's reasons for judgment of 8 February 1983 The word "T.N.T." in line three (3) of page eight (8) should read "Brambles" AC ae myn tf LY YP ASSOCIATE je "2-42 Dap Nm ene memes eae re ee me ee ar? = nee . -- ~ - CATCHVORDS Dismissal of action for wank of prosecution - princinies - whether delay inordinate and inexcusable - Piaaintiff company an tiquidation - Order for securiry for costs - Concurrent proceedings involving simiiar facts hy Trae@e Practices Commission against Defendants - whether delay caused prejudice to Defendants. Trade Practices Act 1977 TRADESTOCK & ORS. v. T.N.T. (MANAGEMENT) pry. ETD. & ORS. VG No. 26 of 1977 Smithers J. Melbourne. 8 February 1983. Tu? mM VICTORTA WAR AL, DISTR COURT OF — MWISTT 21? ct REGTSTRY VG GENER AL PpIVviISToON ws ew Judge Making Order: Between: And: Date of Order: Where Made: THE COURT 1. So far as 1t 1s sought in the summo firstnamed defendant, ORDERS TRADESTOCK PTY. LTD. WILLIAM JANES FPERTN NOBL EDWARD STOCK and THT (MANAGEMENT) DOTY. LTD. TNTERSTATE PERCE Riv RESS CONPANY PTY. LTMs TED Tene TNSURANCH LIMIT) TPEC (AUST) hIMTTHD ANSHTT TRANSPORT TXDUSTRLES (OPHRATTONS) PTY. LTD. BRAMBLES INDUSTRIES LIMITED MAYYE WICFLESS LIMTTRD YOUNG'S TRANSPOPT PTY. LTD. UNITED TRIVSPORT HOLDINGS PIY. LTD. EXPRESS FREIGItY PTY. LTD. R.U.T. HOLDInNGS PTY. FD. TRADEN TRAPS AORT PTY. TTS. Smithers J. 8 February 1983 Melbourne. THAT: the filthnamed defendant, First Piainleeét Second Plaintiffs First Defendant Second Nefendant Third Defendant Fourth Nefendant Fifth Defendant Sixth Nefendant Seventh Defendant Fighth Nefendaut Ninth Defendant Tenth Defendant Eieventh Defendant Twelfth Defendant ses issued by the the sixth- amed @efeudant and the seventhnamed defendant that the action the said the To. ahovenamed VG 26 of 1977 be dismissed, summonses are dismissed. iota defendarts pry Lhe plaantitis' the applicatsaous in cone of and incidental to the applicstions in the said summonses. 3. There be liberty to apply upon seven days notice to all parties in the action. 1 = Ch ' " 4 ' eo " 4 4 : r nes "oe ety ' . - Bee, Ses ay a ' "4 naa 7, IS THE FRODRAT COURT OF AUSTRALLA VICTORIA DISTRICT PUGISTRY GENDRAT, DIVISLOCN TRADESTOCK PTY. LYTD. WILLTAM JAMES FREWEN NOEL EDWARD STOCK Between: and TNT (MANAGEMENT) PTY. LTD. INTERSTATE PARCKL EXPRESS COMPANY PTY. LIMTPTED [PEC INSURANCE LIMITED TPEC (AUST) LIMTTED ANSETT TRANSPORT TNDUSTRIES (OPERATIONS) PTY. LTD. BRAMBLES INDUSTRIES LIMITED MAYNR NUCKLESS LIMTTED YOUNG'S TRANSPORT PTY. LTD. UNITED TRANSPORT HOLDINGS PTY. LTD. EXPRESS FREIGHT PTY. LTD. A.U.T. HOLDINGS PTY. LTD. TRADEY TRANSPORT PTY. LTD. Coram: Smithers J. 8 February 1983 REASONS FOR JUDGMENT In December 1976 Tradestock Pty. commenced an action (B No.194 of 1976) Industrial Court against the ahovenamed business of each of whom it was to provide of various kinds throughout Australia. VG 26 of 1977. That action 15 VG No. 26 of 1977 First Plaintiff Second Plaintiffs First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant Sixth Defendant Seventh Defendant Eighth Defendant Nunth Defendant Tenth Defendant Fleventh Nefendant Twelfth Defendant Ltd. (Tradestock) in the Australian Aefendants, the transport services now Wo. The action aruse out of sleps taken hy Tradesloc'. to ack as a consultant and a broker for companies requiring transport services whereby Tradestock would advise as to the most appropriate services for particular projects and negotiate with comparies offering such services with a view to arranging for the suppiy of those services at the cheapest rates obtainable. This was a form of brokerage not previstusiy ium operation in relation to companies such as the defendants at ail or at least for a very iong time. Tradestock alleged that those companies had engaged in conduct in contravention of s.45 of the Trade Practices Act 1974 (the Act) in that in contravention of thal provision as amended by the Trade Practices Amendment Act 1977 (No. 81 of 1972) they had agrecd amongst themselves that, inter alia, they would not deal with or accept any interstate or other carrying husiness offered to them through brokers uncluding Tradestock in its capacity as broker for companies requiring transport scivices. On 13 Apri: 1977 the first, second, third, fourth, sixth, seventh and twelfth named defendants sought an order thet Tradeslock's action be stayed pending the provision hy it of security for costs. On 2 May 1977 an order was made that so far as the action related Lo the first, second, third, fourth, sixth, seventh and twelfth defendants it be stayed unt2z] certain security was provided in the sum of $2,000 for each defendant or group of defendants with the same interort. The T.U.T. reasons for theo order appear in TreAcstock Phy. ite. ve (Management) Pty. Ttd. & Ors (1977) 14 A.L.P. 52. On 24 Octoher 1977 Tradesrock applied for @ischarde of the order staying its action. In then appearing that there were good prospects that the plarntiff's action would succecd, g : F by order dated 27 January 1978 1 lifted the stay. The reasons appear more fusly in Pradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. (No.2?) (1978) 17 A.U.R« 257. However, when lifting the stay T intimated at v.279 that:- As a "Waving regard to the circumstances of this case and to what was said to the court by parties in these proceedings the court would enterlain an appizcation by any detendant to reimpose the stay on that defendant giving to the court through counsel an assurance that 1t 1s not a party to any contract arrangement or understanding the Lerms of which restrict it in any way from doing business with or through the plaintiff, and will consider and deal with any business proposals put forward by the plaintiff on their comercial merits and give quotations as requested by the piaintiff for the carriage of fJreight for the plaantilfF or freight users for whom 1t may he acting where such carriage 1S within the scope of business ordinarily undertaken by the defendant in question. The nature of the assurance in contemplation would not be that it was an undertaking with legaL consequences. tts observance would be voluntary, but of course if 1t were not observed the stay of proceedings would he subject to review." consequence on 4 August 1978 che first and Fr Fth defendants qave the assurance and undertaking specified in this anLimation and the stay of proceedings pending provision of security was re-.imposed. the On 25 May 1978 proceedings No. G.44 of 1975 were instituted an the Federal Court of Australia by the Trade Practices Commission (TPC) against the first, second, fifth, seventh, eighth and tenth defendants in action No. VG 26 of 1977 and against Brambies Holdings Lid, Associated Steamships Pty. Ltd. and Ipec Holdings Limited. In those proceedings the claim, made pursuant to s.77 of the Trade Practices Act 1974 against the defendant T.N.T. (Manadement) Pty. Limited, Bramhles Holdings Ltd., Mayne Nickless Ltd. Youngs Transport Pty. Ltd., Ansett Transport Industries (Operations) Pty. Ltd., Associratead Steanmships Pty. Ltd., Tpec Holdings iltd., and Interstate Parcel Express Pty. Ltd. is that in 1976 they entered into an agreement or arrangement with each other that they would not negotiate or deal with Tradestock in respect of the carrying or forwarding of freight or the arranging therefor as proposed by Tradestock or any other broker for or on behalf of persons sceking the services of such defendants and gave effect to such agreement or arrangement contrary to s.45 of the Act. Tt 18 to he noted that should proceeding No. G 44 of L978 proceed to judgment and the defendants be found to have contravened or to have been involved in a contravention oF a provision of Part IV of the Act a finding of any fact made in the proceedings wouid be prima facie evidence of that fact in Action No. VS 26 of 1977. This Follows from $.83 of the Act. Thal section authorises the Federat Court to certify to the maktng of any such fanding of fact. If this were done the certificate relating thereto would he prima facie evidence of the fact stated therein to have been found by the Tederyl Courl. It would seem that hy 31 May 1978 the financial position of Tradestock wis such that 1t was unable to continue trading. It went into voluntary Liquidation and Mr. Andrew Ian Sinclair was appointed liquidator. He has in hand some $6,000. There are a number of creditors whose claims amount to a substantial sum. Accordingly the financial interest of the shareholders in action VG 26 of 1977 is somewhat remote. The laquidator and his solicitor havea taken the view that it 1s their duty to refrain from taking steps with a view to pressing on with that action untii proceedings by the TPC, No. G 44 of 1978 have been heard. The view expressed by the solicitor was that i1t was inappropriate to take such steps because "it was anticipated that the Commission action woutd be dealing with the same subject matter, that the defendarts in that action would be arguing the matter in very great detail and thar the result of the Commission's action would be determinative in a practical sense, of what the piaintiff would do an this action. He said it was his view, and J believe 16 was his vicw, that "1b woutd have been an abuse of t the process of this Court for the plaintiffs to have continued with near action ab a time when 1t was obvicus that the san? 6. 1ssue would be adjudicated npon in che Commissron action." i do not share that view, but that he took it 15 a relevent fact. The substance behind 1t reflects, T think, reasonable Minking. Thus it appears thac since January 197R no slens Wave been taken in action No. VG 26 of 1977. Since May 1978 the defendants in proceedings in the Federal Court, No. G 44 of 1978 have been much concerned with anterlocutory matters. There has been a long list of applications, some by the TPC hut mostly by the respondents herein for various orders concerning vroduction of documents and other procedural matters and appeals therefrom. Those proceedings involved, inter alia, an application hy Brambies Holdings Limited on 22 June 1979 to strike out certain paragraphs of the statement of claim, an appeat from the dismissal of that applicalton, an application on 13 February 1980 by Brambles JIoldings Utd., Mayne Wickless Limited and Youngs Transport Pty. Ltd. for separate trials which was dismissed on 3 April 1980, numerous applications concerning the validity of notices given by the TPC under s.155 of the Act, an application on 7 May 1981 by Brambles Holdings LUtd., to bring the Commission's action under the Federal Court rules, an application on 8 May 198l by Brambles Holdings LU. on 8 May 1°81 for wroduction of documents, a similar application on 27 May 1981, an application on 14 September 198l by T.N.T. Management Pty. Ltd., Ansetrc Transport Industries (Operations) Pty. Ltd. and Associated Steamships I Pty. Ltd., tc s@t aside cerlain sSunpuenas, and an eppreal therefrom in November 1°€1 to che Fedserait Court ant later to the High Court which dismissed tne appeal on 18 November 19A2. There was also an applicatton on 25 June 1998L by varios defendants for an order that certain documents were covered by legal professional privilege and an application on 2 october L98l hy T.N.T. Management Pty. Ltd. for further and better particulars under the Commission's scatement of claim. During the period covered by these various applications and appeals tentative dates for hearing were fixed but all haa to be varied because interlocutory issues had not been resolved. However. 31t now appears probable that a hearing date in the fFarst half of 1983 will be obtained. But 1t 1s amportant that a @are for trial 1s now weli within sight, and havilg regard to the passaqe of time in the proceedings, may almost be described as imminent. No suggestion is made by any partly that there is now any difficulty in the date being fixed according to the convenience of this Court. In July 1982 Brambles Industries limited, a defendant in action VG No.26 of 1977 initiated proceedings seeking to have that action struck out for want of prosecution but discontinued that enplication on 27 July 1982. However, on 26 October 1982 and 22 November 1982 summonses were issued seeking dismissal of action VG No.26 of 1977 for want of prosecution. The applicants are '.N.T. (Management) Pty. Lkda., Ansetb Transpor Lndretriss (Operrtions) Ply. Lid., ios] Brambiecs lndusiries Lamiced and Mayne Wictkiess Ltd. These are Four of the tweive defendants in action VG No. 26 of 1977. Mr. Sweeney for 'T.W.T. contended that the reievance principie was to be found in the remarks of Diplock L.J. an Ailen v. Sar Alfred McAlpine & Sons Ltd. (1968) 2 G.B. 246 at p.255. His Lordship said:- "And where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past, memories aqrov din, witnesses may dic or disappear. Tne chances of the court's peing able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard. If the triai is allowed to proceed, this 1s more likely to operate to the prejudice of the plaintiff on whom the onus of satisfying the courc as to what happencd generally lies. But there may come a time when the interval between the events alleged to constitute the cause of action and the trias of the action ts so prolonded that there 1s a substanlial risk that a fair trial of the issues will be no longer possibie. When this stage has been reached, the public interest in the administration of Justice demands that the action should not be allowed to proceed." Reference was made to Regqgentin v. Beechholme Bakeries Ltd. (1968) 2 9.B. 276 and Janov v. Morris (1981) W.L.R. 1389 and Muto v. Faul (1980) V.R. 26 at pp.30 and 31. Tn the last mentioned case the Full Court of Victoria stated the relevant principles as fotiows, namely, that the defendant must show:- "(1) thac there has been sznordinate delay. Tt yould be haghly undestrable and indeed impossible to attemnt to lay Gown a tariff - so many years or more on one side of the Line and a Lesser periad on the other. What 39 or 218 not inordinate delay must depend upon the facrs of each particular The A.C. a case. These vary wiliniceiv from case to case, but inordinate delay should not be too difficuit to recoynize when iL occurs. (2) that this sanordinate delay 1s inexcusable. As &® rules, until a credihic excuse is made out, the natural inference would be that it 415s Lnexcusabic. (3) that the defendants are likely to he seriously prejudiced by the delay. This may be prejudice at the trial of the issue between themselves and the plainitwiff, or hetween each other, or between themscives and the third parcies. In addition to any inference that may properly be drawn From the delay 1tself, prejudice can sometimes be directly proved. As a rule, thea delay itself, prejudice can sometimes be directly proved. As a rule, the lonyer the delay, the greater the likeizrhood of serious prejudice at the trial." 297 was also called ain aid. In the speech of Dipiock at p,318 the following observations anpear:- "Te power [to dismiss] should be exerciscd only where the court 1s satisfied either (1) that the default has been aintentionai and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his Lawyers, and (b) that such delay will give rise to a substantial risk that it 1s not possible to have a fair trial of the ilssues un the action or 1s such as is likely to cause or to have caused serious prejudice to the defendants either as botween themselves and Lhe plainti1fE& or between each other or becwoon them and a third party." decision of the House of Lords in Barkett v. James [1978] Lord To my mind the issue in this apolication has to he loored at un the laght, particularly of two circumstances, First, that certain of the cefendants sought and obkained an order staying 19, the action pending the peovision of security for costs, and secondly, and more imporctantiy, that in Mav 1978 the TPC commenced the proceedings No. 26 of 1978. Tt would be clenr to the defendants when they sought and obtained the orders staying the proceedings that the plaintiff company would have very great and perhaps ansurmountable difficulty in proceeding with the accion. That there would be some delay and probably a long delay before the plaintiff company could proceed was obvious. However, 1t 1s not to be thought that an impecunious plaintiff compeny may, an a sense, shelter behind an order for security for costs, and simply do nothing but allow time to pass. The frustration of an impecunious plainlifF company who has a aood cause of action may work injustice. As Moffitt J. said in Pacific Acceptance Corporation Ltd. v. Forsyth & Ors. (1967) 85 W.N. (N.S.W.) 715 at 721:~ +s. the Court in considering whether it ought to make an order between two parties to an action ought prima Facile to leave to the plaintiff to determine how it can best overcome any problems arising froin 1ts own improvemenc ..." I am unabie to conclude that in assessing the relevance of delay by a plaintifF 1n such a position the existence of the stay and his Impecuniosity 1s to be entirely ignored. Ihr may be sn some circumstances that a defengjant un an action brought by a plaintiff so circumstanced shouid seek an order reguiring the piatntiftf to proceed with the action within a specified . 11. time. Indeed such a step might have been aprropriate in Fhes case. In this case no such step was taken. TL 38 uite possible, and 1 believe, that the defendants were pirepired to atlow the situation to remain static. After May 1978 the resources of the plaintiff company to continue the action changed. If the plaintiff company's action against the defendants 18 a good one, as 1l concluded in 1978 that 1t probably 1s, then the creditors have an incentive to which they may respond. They have not yet been consulted in the matter because the liquidator took the same view as his solicitor, as to the advisability and propriety of pressing on with Action No. VG26 cf 1977 while the proceeding No. G44 of 1978 was on foot. Thus 1s raised a question of considerable importance in this matter. His decision goes to the question of whether the delay of the plaintiff company ought to be regarded as inexcusable. His opinion that 1t would not have been proper to proceed pending the disposai of proceeding No. G44 of 1978 is probably erroneous. But from a practical point of view, and so far as the tiquidator 1s shown to have known, the situation has been, at aii relevant times since he hecame ltrquidator, that proceedings Wo. G4+ of 1978 have been wnoised to come to trial. Tr1al was delayed in 1979 largely by an application of Brambles Holdings Ltd. to strike oul certain paragraphs of the TPC's Statement of Claim and the appeal in that matter. But, an January 1980 thsre vas a suygesled hearing dale, nameiy, June 1980, but the hearing to fix the date was stood over unti)- February 19980. Buc then came an appitcation for separate trials and contemplL proceedings against the Trc. As a result applications to f1x the date of hearing were mide on 10 December 1980 and 9 February 1981. On that last mentioned date the hearing was fixed for 6 October 1°81. Then came applications by certain of the defendants concerning production of documents and appeals in relation thereto. On 6 October 1981 the hearing was adjourned because of ontstanding interlocutory matters. The action was mentioned and adjourned aundefinitely pending the decision of the High Court concerning subpoenas served on one, Mr. Rochfort, a representative of certain of the defendants. That appeal was disposed of on 18 November 1982. During a}l this time the defendants in Action VG 26 of 1977 took no ackion. In my opinion whatever may be said of the propriety of a liquidator activating that action during that period, his position was that he could have called the creditors together and ascertained the extent to which they were prepared to finance the proceeding. But he would have told the credicors that he thought the action should not be activated pending the currency of action No. G4i of 1978. Tn the evenr the creditors would no doubt have agreed with him, especially in the light of s.83 of the Act. Also 1h would be quite reasonable for him to think, and it 1s my view, that even 1f the acrion wre re etavated. tle delondanis heairg eraarG busily with the TPC probably would have resisted a nearing mn Action No. VG 26 of 1977. Te would heve embarrassed the defendants to have their witnesses examined and cross-examined an Action No. VG 26 of 1977 with proceedings No. G44 of 1978 to be heard shortly thereafter. There ts no statement tun evidence as to the actnal attitude of the defendants on this Matter, but it 3s a very reasonable view that the defendants would desire to preserve all positions before facing the fire of the TPC. In addition, it 1s to my mind most likely that if at this stage action No. VG 26 of 1977 were activated 1t would be reasonable for the plaintiff company to scek an adjournment of the hearing unt1i the issues in No. G44 of 1978 had heen decided. As at present advised I would expect such an application to succeed. On such an applricalion it wouid be urged that Parliament intended that a plaintiff in an action pursuant to s.82 of the Act should have the benefit of s.83 of the Act and that such a benefit ought not to be eroded by the circumstance that in the protess of jitigation the one case falls to be decided before the other. 'To secure the benefit for an individual plaintiff the Court might well be moved by the view that in circumstances where 1t 1s not oppressive so to do, it should postpone the hearing of the individual's action pending the decision in the action of the TPC under s.77 of the Act. It would he oppressive to both parties ta force them to a hearing in the individual's action whore he i1. would not have the benefit of s.83 ard the defendant would be forced to go through the whole Factual analysis in the andividual's care and again in resisting the TPC. Tt 1s clear therefore, that aithough the Jiquidator has refrained from consutting the creditors under the belief that there would he some impropriety in proceeding with action No. VG 26 of 1377 while proceeding No. G44 of 1978 was still on foot, there was a substratum of reasonableness in the view taken. It would not be surprising that to such a person it would seem ancengruous that the hearing of the Comvoany's action should precede the hearing of the proceedings of the TPC. And there was an inherent reasonablenese of the view that as a matter of practicality there were good reasons 'rom the point of view of both parties why No. G44 of 1978 should proceed to judgment before No. VG 26 of 1977 was heard. From the point of view of the plaintiff the possible avaijability of evidence by the operation of s.83 was of the utmost importance. If the TPC succeeded in 1ts proceedings tho hearing in No. VG 26 of 1977 1s likely to be greativ shortened. If the TPC faried in No. G44 of 1978 to prove the contraventicons alleged there must be a likelihood that action No. VG 26 of 1977 would be discontinued. From the point of view of the defendants there «ou]4 be much embarrassment af action No. VG 256 of 1977 were heerd ra before No. C44 of 1978, Even in the anterileentory sisusg invoiving discovery and answering anterrogatories the disclosure of information involved therein might well expose the etendants to greater risk in the TPC's action for penalizes. I[t 1s to be rewembered that at all material times, whenever the question of the liquidator approaching the creditors might have arisen the TPC was endeavouring to achieve an eariy date for hearing and generally speaking, at any such time, an early hearing would have seemed probable. So far as the defendants are concerned, the present application 1s, of course, not concerned with dates for hearing. Jt is designed to achieve the final disposal of the plaintiff company's claim as effectively as 1f judgment were given against it. That would be a very big step to take and would aunvolve dangers of denrat of Justice. In such a situation the validity of the claim and the degree of probability of success thereon are material considerations going to the exercise of discretion. Accordingly, in the circumstances I am not satisfied that the delay in prosecuting action No. VG 26 of 1977 has been aznordinate or inexcusable within the meaning of those terms in relation to the subject matter of this application. T come then to the guestion of prejudice caused by the delay. Mere delay can of course result in critical prejudice to a defendant. Thus witnesses miy die or depart the reaim or their memorzes may becouse dim. Tn cartkaia 16. classes of case» such considerations might be critical. In this case the appiricants do not provide any evidence of prequdice along these lines or at all. And the circumstances of this case are in sharp contrast to those of, for instance, running down cases where witnesses would be dealing wath events of a momentary duration tn which they had no personal interest and no reason to remember. In this case the issues concern a matter of business policy, the serious concern of the top management of certain large organisations, and central, in a centinuing sense, to the conduct of the businesses of those organisations. The subject matter of the conduct alleged against the defendants has been continually before the defendants in a special way since May 1978, and obviously top management must have been much concerned in the aunterlocutory proceedings designed to protect the defendants from the TPC. In addition those concerned to give evidence have the assistance of written minutes of meetings where the arrangements chalienged by the TPC are alleged to have been made. I am satisfied therefore, that the defendants have suffered no prejudice by the failure of the plaintiff company to press on with action No. VG 26 of 1976. Tt was urged that the defendants could be prejudiced, particuiarly on the issue of damages. Certainly it wiil be necessary to look back at trade conditions in and prior to 1976. HNovever, in all prohabiiaity, in my opinion, the Sefendanrs will not lack the resources e1ther of manpower 17. or records to grapple wilh this issue. Prejudice, for current purposcs wovld need to be of such a nature and degree as vO outweigh the other considerations invoived. Tt 15 reasonable to infer that if the plaintiff company had pressed on with action No. VG 26 of 1977, and a hearing in that action before that an No. G.44 of 1978 had appeared imminent, the defendants would have folt that such a hearing would he prejudiciaj) to them and would have sought directions postponing such a hearing. I should think a Court might look favourably on such an application. Accordingly, I am not satisfied that the delay in prosecuting the plaintiff company's case has been inordinate, ianexcusible or has caused prejudice to the four of the twelve defendants who are the applicants in these proceedings. Ik 1s to be observed that hy order of 25 January 1978 Wiilzram Jumes Frewin and Noel Edward Stock vere joined as plaintiffs 1n action No. VG 26 of 1977. It is sought in this application to dismiss that action so far as they are concerned. But their act1ron is but an indirect attempt to achieve the relief sought by the company without an obligation to provide security. Tt appears to me that most of the considerations of substance discussed in relation to the plaistrfF£ company's action are applicable to the action by Frewin and Stock and do not cajJl for the exercise of the Court's discretson to dismiss that action. 18. Mr. Sweensy sudmitccd that the statement of claim was nok in proper form in that 1t alleqed only a conclusion of law rather than facts. But the statement of claim is certainly not misleading and gives notice of all material matters. I do not regard this matter as significant in relation to this application. It was not supported by counse} appearing for the other defendants appearing before me 1n this application. It was aiso submitted by Mr. Sweeney that the amended statement of claim had never been filed in accordance with the rules. {ft appears, however, that the amended statement of claim was delivered to the other parties in the face of the Court at the hearing of 24 October 1977 and has since becn in the court file. Of more significance so far as Brambles Industries Limited 1S concerned was the submission that that company 1s not a party to 'the proceedings No. G44 of 1978. But Brambles Noldings Limited 1s such a party and ut is conceded that Brambles Holdings Limited 1s a subsidiary company of Brambles Tndustries Limited. The applicant Brambles Industries Limited has sought to show 1ts lack of connection with action No. VG 26 of 1977 by an affidavit of one Leo Hunt, Manager, dated 20 October 1979 asserting that no person by the name of Linfort, who is the person alleged to have represented Brambies Tndustries Limited at conversations relevant to the making of the alleged arrangements contravening the Act, "holds an executive position with Brambles TIndustires Limited, and no 19. person by that nae hed an executive position with Prambies Industries Limited on 27 July 1976". Rut this does not touch the question of the possible authority of the person concerned to represent both companies at the relevant conversations. Having regard to the relationship between the two companies one would have expected something a i1ttle more germane to the real point rather than the cryptic words of the affidavit wn question. On the question of the significance of the difference of identity of the Companies in the two proceedings I think that I should have regard to the circumstances that findings of fact in No. G44 of 1978 directed to the participation of Brambies Holdings Limited in the aileged contravention of the Act in conjunction with the other defendants may weil include findings as to the part played therein by Brambles Tndustries Limited. Also findings of fact made 3n No. G44 of 1978 concerning the aqreement or arrangement made by the defendants other than Brambies Holdings Limited with other parties may well involve findings as to the part played by Brambles Industries Limited in the total situation. There is another consiferattion. At present the plaintiff company cannot re-activate the action without providing security in the sum, I am told, of $14,N00. On ?7 January 1978 the order for security wis discharged Larqoiv on TOT ee ret nw es re ee me eae ee me se ee - see ¥ fy awit ' 20. the ground that the plaintiff company's prospects of success appeared to me to be good. But apparently in anticipation that good business was to be preferred to litigation I gave the intimation referred to above. As a result assurances were given and the stay was reimposed in respect of certa;n defendants. But the hope that business could be conducted in future was a vain one. The plaintiff company was unable, because of its financial difficulties, to test, in the course of business, the bona fides of the assurances given. It would seem therefore that the stay was reimposed by reference to a false assumption of fact, namely, that the plaintiff company's business could proceed in the future. Accordingiy, 1f and when directions are sought for the future conduct of action No. VG 26 of 1977 1t would be proper for consideration to be given to the removal of the stay. Having regard to the foregoing, I consider the relief |sought in the summonses before me should be refused with costs. J reserve leave to the parties to: apply for such directions at such time as they may be advised upon seven days notice to the other parties to action No. VG 26 of 1977. NT eorivy that tus and the Nene eer d pierecacg pay" are a tece copy of the Levees for Tuigeont hercin of the ilonoureble Ti. Justice Sri Vat Associate Aéhrarcit 5 SL fo Prey oS > 1 SN bY) ' Sy aw