Australian Competition & Consumer Commission v Pioneer Concrete (Qld) Pty Ltd & Ors [1995] FCA 1032

IN THE FEDERAL COURT OF AUSTRALIA)No. QG 143 of 1992 QUEENSLAND DISTRICT REGISTRY ) GENERAL DIVISION ) BETWEEN: AUSTRALIAN COMPETITION & CONSUMER COMMISSION Applicant AND: PIONEER CONCRETE (QLD) PTY. LIMITED First Respondent AND: PAUL ALOYSIUS CASEY Second Respondent AND: NICHOLAS MAURO MARINELLI Third Respondent AND: MICHAEL HUTCHINSON Fourth Respondent MINUTES OF ORDERS JUDGE MAKING ORDER: Drummond J DATE OF ORDER: 15 December, 1995 WHERE MADE: Brisbane THE COURT ORDERS THAT: 1. By consent leave be granted to the applicant to amend its statement of claim by inserting the following paragraph: "20A.Hutchinson acted as set out in paragraph 20 hereof for the purpose, or for the purposes which include a substantial purpose, of: (a) preventing the entry of Brian Roche, or alternatively Brian Roche and Gail Roche, or alternatively Warwick Ready-mixed Concrete, into the Warwick concrete market; and further or alternatively; (b) deterring or preventing Brian Roche, or alternatively Brian Roche and Gail Roche, or alternatively Warwick Ready-mixed Concrete, from engaging in competitive conduct in the Warwick concrete market. PARTICULARS The Applicant relies upon the inference to be drawn from the conduct of Hutchinson as alleged in the Statement of Claim and the particulars given." 2. The respondents file and serve any amended defences by 5 January, 1996. 3. Any notices to admit, by either party, be filed and served by 12 January, 1996. 4. Any replies to the notices to admit be filed and served by 26 January, 1996. 5. Subject to direction 7, the applicant file and serve affidavits of any evidence it intends to rely on by 9 February, 1996. 6. Subject to direction 7, each respondent file and serve affidavits of any evidence it intends to rely on by 1 April, 1996. 7. UPON the applicant undertaking with respect to each respondent not to make any use of that respondent's evidence in dealing with any "no case" submission that that respondent may make at the close of the applicant's case against it or him and which the Court is prepared to entertain AND UPON the applicant further undertaking with respect to each respondent not to make any use of that respondent's affidavits of evidence in the applicant's case against the respondent, if that respondent does not go into evidence: (a) Subject to the exception in paragraph (b), the applicant and respondents shall adduce the evidence-in-chief of all the witnesses upon whom each intends to rely at the trial by affidavit; (b) The exception referred to in paragraph (a) is that the evidence-in-chief of each of the persons present at or participating in the meetings and conversations referred to in paragraphs 18, 20, 23, 25 and 30 of the statement of claim shall be adduced in oral form as to the following matters: (i) as to what took place and as to what was said at each meeting and during each conversation, and (ii)any evidence that any respondent wishes to adduce with respect to each of the second to fourth respondents' and the first respondent's other employees' reasons, motives, intentions and state of mind for participating in each such meeting and conversation and for making any statement therein. (c) The intent of the direction in paragraph (b)(ii) is that each of the second to fourth respondents and the first respondent's other employees on whom any of the four respondents intends to rely at the trial who gives evidence relevant to the issues in paragraphs 19, 20A, 21, 22, 24, 26 and 31 will be entitled to give that evidence orally. 8. The matter be listed for further directions at 9.30 a.m. on 12 April, 1996. 9. The costs of the directions hearing be costs in the proceedings. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.