With tee Complements ae JUDGES' CHAMBERS FEDERAL COURT OF AUSTRALIA QUEENS SQUARE SYDNEY 2000 - 7 Tr Po SN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY } GENERAL DIVISION ) BETWEEN : TRADE PRACTICES COMMISSION AND: T.N.T. MANAGEMENT PTY. LIMITED First Defendant BRAMBLES HOLDINGS LIMITED Second Defendant No. G44 of 1978 Plaintiff MAYNE NICKLESS LIMITED YOUNGS TRANSPORT PTY. LIMITED Fourth Defendant ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. EXPRESS FREIGHT PTY. ASSOCIATED STEAMSHIPS PTY. LIMITED Seventh Defendant Third Defendant IPEC HOLDINGS LIMITED INTERSTATE PARCEL EXPRESS Eighth Defendant co. PTY. 31 March 1983 REASONS FOR JUDGMENT LIMITED FRANKI J. The matter in which this notice of motion was taken out was last before me on 18 February 1983 and 25 February 1983 when I delivered judgment dealing with the question of the inspection of certain documents which had been produced in answer to a subpoena issued to a Mr Rochfort. Ninth Defendant LIMITED Fifth Defendant LIMITED Sixth Defendant NT A short history of these proceedings is to be found in judgments of mine, in relation to interlocutory proceedings, delivered on 23 October 1981, 19 November 1981 and 18 February 1983. The matter G No. 44 of 1978 was commenced in May 1978. Appeals and interlocutory matters have been before the Full Court of this court on three occasions and before the High Court by special leave on one occasion. On 9 February 1981 I fixed 6 October 1981 as the date for the hearing to commence. However, because of the application for special leave to appeal to the High Court, that date was vacated.. Subsequently on 11 December 1981, by consent, the matter was stood out of the list pending the determination of the appeal to the High Court. After judgment had been given by the High Court, the matter was again before me on 12 December 1982 to fix a date for hearing. I fixed 17 May 1983 as the date when the hearing was to commence. I did this after being addressed on behalf of the parties and after receiving a number of submissions, and I considered that date to be the most appropriate. The estimates of the hearing time by counsel then ranged from three or four weeks at least to as much as fourteen weeks, and they now range - and these are to be treated only as very rough estimates ~- from about five weeks to about fourteen weeks. | seater es ian. ee eat The notice of motion before me today is an application by the solicitors for the first, fifth and seventh defendants that the hearing date be vacated because senior counsel who has been briefed for these defendants is engaged in a long case, and, because of somewhat unexpected events which occurred only last week, he will now not be available until about the end of June. Mr James Rodon King, a partner from the firm of solicitors for the three defendants who are the applicants in this motion, has sworn two affidavits. In the first of these, sworn on 25 March 1983, he says in paragraph 27 that: "I place before the Court the circumstances that Senior Counsel represents three separate Defendants; that the case involves unique questions of law and fact; and that I have advised my client of the extreme difficulty in which the present circumstances place me in ensuring adequate representation for it." Then in paragraphs 28 and 29: "I fully realise and greatly regret the inconvenience to all other parties and to the Court, both of this application and, should it succeed, of the fixing of a new date. I am cognizant of my duty to the Court and its officers and the overriding needs of justice. I nevertheless humbly submit that foremost in those needs is that each Defendant have its case fully and adequately placed before the court at the trial of the matter. <I further submit that in all the circumstances of the case, no prejudice will be caused to any party by a short adjournment of the matter, but the contrary will place my three clients in a totally disadvantageous position." I was asked to fix a new date for trial. — I gave leave this morning to file in court a further affidavit by Mr King, in which he says that yesterday he endeavoured to obtain the services of three alternative Queen's Counsel for his clients, but that he has been unable to obtain the services of any of them. He also draws attention to the fourth defendant's position, and set out in paragraph 3 of his affidavit that a petition for its winding up is listed to be heard today before the Supreme Court of Victoria. He also mentions that he has received a letter from the Senior Assistant Crown Solicitor, the solicitor for the plaintiff, which is annexed to the affidavit, and that letter points out that some further discoverable material has come into the possession of the plaintiff since the affidavit of discovery of Wynne Patricia Hannan was sworn on 27 January 1981, and that the plaintiff is preparing a further affidavit of discovery which will be filed and served shortly. Mr Priestley Q.C., who appears for the Trade Practices Commission, indicated that whatever is done in relation to any further discovery will be done next Tuesday, and he also pointed out that there is some doubt, he feels, about whether there is any obligation to discover that material at all, but that a communication would be directed to relevant persons on Tuesday. The position with regard to discovery does not seem to me to be of great relevance, The position in regard to Youngs Transport Pty. Ltd. also, so far as I can see, is not a matter of any significance at this stage in relation to a hearing date fixed as far ahead as 17 May. The other parties to the proceedings have all either opposed, or not consented to, the application to vacate the hearing date. Counsel for the second and sixth defendants, in particular, have indicated that legal representation for their clients is likely to be affected if this hearing date is vacated and, indeed, if it were vacated I would anticipate, bearing in mind the difficulties that emerged in December last year when I fixed a date for May of this year, that it would be extremely difficult to find any suitable hearing date for many months ahead. I have in mind that this case commenced almost five years ago, and the hearing date was fixed six months ahead. It is still six weeks to the hearing date. Although Mr Cole Q.C. has drawn attention to what he regards as the somewhat special nature of these proceedings, and the need to obtain suitable senior counsel to represent the defendants which he represents, it seems to me that six weeks should be quite long enough to obtain suitable senior counsel from one or other of the bars to which access can be had, to ensure that the three applicants in this notice of motion would be properly represented at the trial, In addition, one knows the difficulty of getting together counsel in a matter of this sort, and everybody has been working, F I imagine, to be ready for this trial which, as I have said, is still some six weeks away. I think that this application might fairly be described at least as somewhat optimistic, and I refuse to vacate the hearing date, and I dismiss the motion. The orders I make are as follows: 1. The motion is dismissed and the hearing is to remain fixed, to commence on 17 May 1983. 2. The applicants are to pay the costs of the plaintiff and the second, sixth, eighth and ninth defendants in the action, insofar as those costs are occasioned by this notice of motion. I certify that this and the fie cs) preceding pages are a true copy of the M o Neasons for Judgment herein of his Honour >=. Justice Arantic Datea: /3 Bont SPES