IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY )} No. G.44 of 1978 GENERAL DIVISION ) Between: ' TRADE PRACTICES COMMISSION Plaintiff -and- T.N.T. MANAGEMENT PTY. LIMITED First Defendant BRAMBLES HOLDINGS LIMITED Second Defendant MAYNE NICKLESS LIMITED Third Defendant YOUNGS TRANSPORT PTY. LIMITED Fourth Defendant ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED Fifth Defendant EXPRESS FREIGHT PTY. LIMITED Sixth Defendant ASSOCIATED STEAMSHIPS PTY. LIMITED Seventh Defendant - IPEC HOLDINGS LIMITED Eighth Defendant INTERSTATE PARCEL EXPRESS CO. PTY. LIMITED Ninth Defendant ORDER JUDGE MAKING ORDER: Franki J. DATE OF ORDER: 24 June 1983 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. All these applications are dismissed except in so far as they relate to the question of interrogatories, All parties have liberty to apply in relation to interrogatories. The costs of the Trade Practices Commission in these applications be paid by the applicants in the following proportions: first, fifth and seventh defendants, between them - ten-fourteenths third defendant - two fourteenths; sixth defendant - one~fourteent eighth and ninth defendants, between them - one-fourteenth. IN THE FEDERAL COURT OF AUS'TTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Between: TRADE PRACTICES COMMISSION -and- T.N.T. MANAGEMENT PTY. LIMITED BRAMBLES HOLDINGS LIMITED MAYNE NICKLESS LIMITED YOUNGS TRANSPORT PTY. LIMITED ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED EXPRESS FREIGHT PTY. LIMITED ASSOCIATED STEAMSHIPS PTY. LIMITED IPEC HOLDINGS LIMITED INTERSTATE PARCEL EXPRESS CO. PTY. LIMITED Sydney 24 June 1983 REASONS FOR JUDGMENT FRANKI J. ) ) ) No. G.44 of 1978 Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant Sixth Defendant Seventh Defendant Bighth Defendant Ninth Defendant This is yet another judgment in matter G.44 of 1978 wherein the Trade Practices Commission ("the Commission") 1s plaintiff. I consider that it is more important to deliver my judgment orally today than to reserve it until I have prepared a longer and more detailed judgment. The first, fifth and seventh defendants in that action are seeking orders which are, in substance, that: (1) the proceedings brought by the Commission against the first, fifth and seventh defendants be dismissed for want of prosecution pursuant to order 32 rule 20(2)(a) of the High Court Rules; (2) the proceedings against those defendants be struck out upon general principles of law; (3) alternatively, that the proceedings against those defendants be permanently stayed. The application is supported by a short affidavit of Mr J.R. King, a partner in the firm of solicitors acting for those three applicants, and another affidavit by him of one hundred pages with a great number of annexures. Similar applications have been made by the sixth defendant in the main proceedings, Express Freight Pty. Limited, and by the eighth and ninth defendants, Ipec Holdings Limited and Interstate Parcel Express Co. Pty. Limited. In general, the sixth, eighth and ninth defendants sought to rely largely on the affidavits of Mr King. The third defendant, Mayne Nickless Limited, supported an application by an affidavit sworn by Mr H. Keller, a partner in the firm of solicitors acting for that defendant. It sought similar orders Or, alternatively, an order that certain additional interrogatories be answered. The eighth and ninth defendants also sought orders in relation to certain additional interrogatories. On 20 June 1983 I gave judgment in an application by the first, fifth and seventh defendants concerning discovery and I refused that application which sought orders that further affidavits of discovery be filed and for inspection of documents. On 8 June 1983 the Full Court of this Court gave judgment in two appeals, one by the first, fifth and seventh defendants and the other by Brambles Holdings Limited, the second defendant, which did not take part in the proceedings now before me. The Full Court's judgment was in an appeal from judgments I had delivered on 18 and 27 April 1983. The first appeal by the first, fifth and seventh defendants was, in effect, settled by an agreement that the hearing date of the trial should be postponed from 17 May to 15 June 1983 and the Commission was ordered to pay the appellants' costs of the appeal. In that appeal the question of discovery had been an issue. Seventeen volumes of additional material had been discovered in 1983 and they were dealt with in a further affidavit of discovery of Ms W.P. Hannon of 31 March 1983. This additional material was dealt with in the appeal on the basis that it was agreed that the appeal in respect to it would not proceed but the rights of the appellants to approach the Court would be reserved. The second defendant had appealed also against my judgments of 18 and 27 April 1983. It was not a party to the agreement reached by the first, fifth and seventh defendants and the Commission, but it pursued its appeal on the question of discovery and to have the proceedings dismissed or stayed on grounds associated with failure to make proper discovery. It was unsuccessful in this regard and it was ordered to pay two-thirds of the costs of the Commission of the appeal. In that appeal the second defendant argued that the action against it should be struck out, inter alia, under order 32 rule 20 (Xa). In the proceedings before me in which I gave judgment on 18 and 27 April 1983 the second defendant sought to have the proceedings struck out on grounds which included delay in discovery. All the defendants now before me were allowed to make such submissions as they wished. Junior counsel then appeared for the first, fifth and seventh defendants and I recorded in my judgment of 27 April 1983 that no defendant, other than the second, had sought to make any submissions on the question of striking out the proceedings. In the Full Court McGregor and Sheppard JJ. delivered separate judgments and Smithers J. agreed with the reasons for judgment of each of the other members of the Court and with the orders proposed by Sheppard J. in relation to costs. I direct attention to what Sheppard J., with whom as I have said Smithers J. agreed, said at pp.27-29. It is clear that the view taken by the Full Court was that, although the conduct of the Commission was open to criticism, it was not of a kind which would have justified the dismissal of the action and it seems clear that the Full Court was of the view that the Commission had not engaged in any wilful misconduct in regard to discovery. It is important to bear in mind that, so far as the evidence goes, it is clear that all discovery was made equally to each of the defendants now before me. In the judgment I gave on 20 June 1983, one day before I commenced this matter, I held that no further order for discovery or inspection was warranted. The first, fifth and seventh defendants sought to get a hearing date of 21 June 1983 for the application now before me about 14 June 1983 but the 100 page affidavit was not filed until 17 June 1983. The matter was mentioned when I was hearing the application by the same defendants in which I gave judgment on 20 June 1983. I consider that it was better to hear this application after I had reached a conclusion whether or not there should be any further discovery or inspection. I therefore commenced the consideration of these applications against the background that on 8 June 1983 the Full Court had held that as at 3 May 1983, when the appeal commenced before it, or, at least when the application was before me in April 1983, the conduct of the Commission in relation to discovery, whilst open to criticism, was not such as to warrant dismissal and that I had decided on 20 June 1983 that no further discovery or inspection had been shown to be justified at that later date. I have approached this application upon the basis that I was not prepared to have re-argued matters that had already been determined. The main allegations advanced by the first, fifth and seventh defendants are: (a) There had been a deliberate and inordinate delay in relation to answering interrogatories and giving discovery but that this delay was not caused by any ulterior motive. (b) Notices under section 155 of the Trade Practices Act 1974 ("the Act") had been deliberately given knowing that this would cause delay. (c) There had been a deliberate withholding of documents in relation to discovery because of an error in deciding what documents had to be discovered but not for any ulterior motive. (dad) There had been a misuse of confidential transcript. Since 4 May 1983 relevant matters which have occurred are the discovery on 27 May 1983 of a further 173 pages of material, the discovery of a further 40 pages on 2 June 1983, the proceedings before the Full Court and before me, and in particular those in which I gave judgment on 20 June 1983. After senior counsel for the first, fifth and seventh defendants had completed his submissions in chief, senior counsel for the third defendant submitted that the Court had power to dismiss the matter against a defendant and ought so to do conditionally upon a defendant giving a suitable undertaking to the Court. He also said that the third defendant was prepared to bear its own costs to date and to give an undertaking on a final basis. A suggested form of undertaking was "not to refuse to deal with brokers simply because they are brokers, and not to deal with any proposal whether it comes from a broker or not, otherwise than on its commercial merits". Subsequently to this offer being made, all other defendants before me, which did not include the second defendant, offered similar undertakings and to bear their own costs to date. The Commission did not accept these proposals but presented detailed arguments on the relevant law. It submitted that order 32 rule 20(2)(a) was not available as a punishment for delay in answering interrogatories or in giving discovery but provided the machinery whereby answers could be obtained or discovery given, and in default, the action could be dismissed. I was referred to Husband's of Marchwood Ltd. v. Drummond Walker Developments Ltd. (1975) 2 A.E.R. 30 at p.32. In my opinion that case is authority for the proposition that the rule under consideration is designed to secure compliance with the rules relating to discovery and not to punish a party for past failure to comply. Senior counsel for the first, fifth and seventh defendants referred me to Danvillier v. Myers [1883] English W.N. 58. However, I consider that case only deals with a situation where there is a wilful withholding of documents at the time of the hearing of the initial application to strike out. Because of my findings of fact, I do not think it is necessary to reach a firm conclusion on this question but, if it were necessary so to do, I would accept the arguments of the Commission. I am not satisfied that there has been any deliberate and inordinate delay in relation to answering interrogatories and giving discovery. In my opinion the way the Trade Practices Commission has conducted discovery in this matter justifies it being described now as having been conducted in a way which was not only open to criticism, as was said by Sheppard J. in the Full Court upon the facts then available. Because of the discovery of further documents after those under consideration by the Full Court, I consider the Commission's conduct in relation to discovery is little short of very reprehensible. However, it was not, in my opinion, deliberate and ultimately it is perfectly clear that the Commission took extreme steps to ensure, as best it could, that no documents, which should have been discovered, remained undiscovered. In considering the question of delay, it is necessary to consider not only the length of the period which has elapsed since the alleged course of action accrued but a number of other factors. I am not attracted by the submission that one should balance the interests of the Commission against the interests of the defendants. The Commission is a public body charged with particular functions under the Act, which is an Act intended by Parliament to provide advantages for members of the public. In addition, it is seeking a penalty and the question of the Commission's costs of the proceedings to date arises. It was submitted by the first, fifth and seventh defendants that the delay was substantially the fault of the Commission and that the tests provided in Birkett v. James (1978) A.C. 297 at p.318 had been satisfied. It was submitted that the delay of some two years from the time of the alleged agreements upon which the action was based until the date when the statement 10. of claim was filed was the fault of the Commission. This delay, in my opinion, was due to an investigation of the matter during that period when, for much of that time, litigation was proceeding between Tradestock Pty. Ltd. and defendants, who were broadly the same as the defendants in this action. Thereafter, the only two factors of any significance in relation to delay which could be said to have been caused by the Commission arose out of the issue of notices under s.155 of the Act and its conduct in relation to the providing of discovery. Apart from these factors, the delay was almost entirely caused by the resolute determination of the defendants, or one or other of them, to make various interlocutory applications which were, almost without exception, singularly unsuccessful. In addition, one appeal by special leave to the High Court was made by a person upon whom a subpoena had been served and who was closely associated with the defendants. Another application for special leave to appeal was unsuccessful. The notices which were issued under s.155 were the subject of a judgment by me on 27 October 1980. I found that the evidence given by the Chairman of the Commission established that the notices were issued upon the suggestion and the advice of senior counsel then briefed by the Commission and which were settled by senior counsel. Some delay and certainly some embarrassment to the defendants has been caused by the very unsatisfactory way in which the Commission conducted discovery. However, the actual il. delay occasioned by this conduct has been comparatively short. I was referred to the tests which I have mentioned in Birkett v. James and also to several other cases which, it was suggested, might qualify the views expressed in that case. I have examined these cases, in particular Stollznow v. Calvert (1980) 2 N.S.W.L.R. 749 and the judgment of the trial Judge in that case reported as No. 11.033 in the Practice Decisions to be found in Ritchie Supreme Court Procedure N.S.W. I consider that any delay caused by the Commission has been clearly insufficient to be a significant factor in this application. This is particularly so when it is compared with the time lost through the desire of various defendants to have determined interlocutory applications both at the level of a trial Judge and also on appeal. It is thus unnecessary for me to further examine Birkett v. James, supra, and any later cases of a similar nature. An attempt was also made to establish that the Commission had wrongly made use of certain evidence given in the case of Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. (1978) 1 A.T.P.R. No. 40-056, which was said to be subject to orders under ss.17 and 52 of the Federal Court of Australia Act. It was not suggested that the Commission had received this material in a way which involved "a deliberate course of contemptuous conduct" on its part but that it had used this material in an unfair way and this was an abuse of process. There is insufficient evidence before me to enable me to consider whether whatever might have taken place in relation to this 12. allegation is relevant to these current applications now before me. In my opinion it is clear that a litigant is entitled to have his case determined by a Court if he so wishes. The Commission is opposing these applications. I consider that there is no evidence which would justify my striking out the action or staying it because of the undertakings which have now been publicly offered. So far as the evidence before me shows, they were not offered in any formal manner in this matter, if at all, until the second day of the hearing of these applications which are now before me. I consider that the applications to dismiss the proceedings under what might be called the general principles of law also fail. I also see no reason why the proceedings, fixed to commence on Tuesday, 28 June 1983, should be stayed. The Commission has agreed to answer in a reasonable time such of the interrogatories as are proper and arise out of discovery since 1981. Provided all proper interrogatories are answered within a reasonable time all the applicants who have sought to administer further interrogatories accept that this factor would not prevent the hearing commencing on 28 June 1983. It does not seem desirable to finally determine what interrogatories are proper today. 13. I dismiss all applications now before me except in so far as they relate to the question of interrogatories. I will permit submissions on the question of costs and on the procedure to deal with the answers to the further interrogatories which have been sought. I certify that this and the Giclue(/2) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Frank1. Assdéiate pated: Xf ene "EF