Trade Practices Commission v CC (New South Wales) Pty Ltd & Ors [1995] FCA 625

NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 574 of 1994 GENERAL DIVISION ) BETWEEN: TRADE PRACTICES COMMISSION Applicant AND: CC (NEW SOUTH WALES) PTY LIMITED formerly known as CONCRETE CONSTRUCTIONS (NSW) PTY LIMITED First Respondent PETER WOOLLARD Second Respondent HOLLAND STOLTE PTY LIMITED Third Respondent GRAHAM RONALD DUFF Fourth Respondent MULTIPLEX CONSTRUCTIONS PTY LIMITED Fifth Respondent GEOFFREY THOMAS PALMER Sixth Respondent LEIGHTON CONTRACTORS PTY LIMITED Seventh Respondent LEONARD DIXON Eighth Respondent THE AUSTRALIAN FEDERATION OF CONSTRUCTION CONTRACTORS Ninth Respondent RUSSELL NORMAN RICHMOND Tenth Respondent

CORAM: Lindgren J PLACE: Sydney DATE: 10 August 1995

REASONS FOR JUDGMENT (No 5)

On 2 August 1995 I published reasons for judgment relating to the Commission's motion for discovery brought by notice of motion filed on 24 February 1995. Those reasons had implications for two other motions brought by the seventh respondent ("Leightons") and the eighth respondent ("Mr Dixon") by notices of motion both filed on 29 March 1995. All three motions were stood over to 10 August 1995 for the making of orders including orders as to costs. The parties have now agreed on the form of orders to be made subject to one matter. There is an issue between the Commission and the first respondent ("Concretes") in relation to costs. That is the only matter which has to be decided by me this morning. Mr Reynolds of counsel for Concretes submits that there should be an order that the Commission's costs on its motion for discovery be its costs of the proceedings, rather than an order that Concretes should pay those costs. Mr Reynolds refers to two matters in support of his position. The first is that the result of the hearing of the Commission's motion is that the Commission has not obtained discovery in the terms sought by it in its motion and, in particular, has not obtained discovery in relation to documents produced by Concretes pursuant to a notice given to it under s 155 of the Trade Practices Act 1974 (Cth) (see my reasons for judgment dated 2 August 1995). The second point raised by Mr Reynolds is that when the motion was heard the Commission narrowed the range of documents sought to categories of documents referred to in the short minutes of orders. I am not persuaded that these matters should displace the usual result that costs follow the event. So far as the s 155 notice is concerned, the background to that is that at a fairly early stage during the hearing senior counsel for the Commission indicated that the Commission would not wish to press for discovery again, as it were, of documents already produced by a respondent pursuant to a notice given to it under s 155. This was put as a matter of practicality and cost saving, not as a concession that the Commission was not entitled to discovery of those documents. In excluding them from the order for discovery which I proposed in my reasons for judgment I was doing no more than taking up the position which the Commission had offered to take, without, in effect, deciding that discovery of those documents would not in any event, have been ordered. But the important point is that the issues between the parties on the hearing of the motion, namely, whether the Court had power to order discovery in the circumstances and whether, as a matter of discretion, discovery should be ordered at all, and the course of the hearing were not altered at all by the "concession" by the Commission. It did not, for example, evoke from Concretes an offer to consent to an order for discovery of documents excluding those already produced by it pursuant to the s 155 notice. I do not think that any different order should be made because of the stance taken by the Commission. In relation to the second matter raised, namely, the narrowing of the range of documents sought, as I understand the position, the supplying of particulars of categories of documents which had occurred pursuant to an earlier direction of the Court and prior to the hearing is now reflected in the range of documents in respect of which discovery is to be ordered. It is true that literally the Commission's motion for discovery was not confined to those categories and was expressed in general terms. But it seems right to view the matter in the context of the fact that pursuant to a direction given earlier the categories had been stated by the Commission, and the hearing took place against that background. I see no reason, therefore, to make any order other than an order that the respondents to the Commission's motion for discovery pay its costs of that motion. As I said earlier, the important point to me is that on the issues which occupied all the time at the hearing the Commission was wholly successful. Accordingly, I would not accede to the submission made by Concretes that there should be an order that the Commission's costs of the motion merely be its cost of the proceedings. It follows that I can now make orders in accordance with the form of short minutes handed up. There will be an order in terms of paras 1-8 of short minutes of orders handed up initialled by me dated today and placed with the papers with the addition of following words to paras 2 and 3: "and excepting the documents referred to in category number 12 in the annexure." Next, I note that in relation to documents which have passed from a respondent to either the New South Wales Crimes Commission or the Royal Commission into Productivity in the Building Industry, the applicant will accept as satisfactory an affidavit conforming to the discussion which has taken place today and which will be revealed by the transcript of this morning's proceedings. I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren. Associate: Dated: 16 August 1995 Heard: 10 August 1995 Place: Sydney Decision: 10 August 1995 Appearances: Mr C A Sweeney QC with Mr P Clay of counsel instructed by the Australian Government Solicitor appeared for the applicant. Mr G O'L Reynolds of counsel instructed by Corrs Chambers Westgarth, solicitors appeared for the 1st respondent.