Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd [1999] FCA 1170

FEDERAL COURT OF AUSTRALIA

ACCC v Australian Safeway Stores Pty Ltd [1999] FCA 1170 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AUSTRALIAN SAFEWAY STORES PTY LTD & ORS VG 762 of 1996 GOLDBERG J MELBOURNE 18 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 762 of 1996

BETWEEN: AUSTRALIANCOMPETITIONANDCONSUMERCOMMISSION

Applicant

AND: AUSTRALIAN SAFEWAY STORES PTY LTD

(ACN 004 319 939)

First Respondent

GEORGE WESTON FOODS

(ACN 008 429 623)

Second Respondent

MARK JONES

Third Respondent

BERNIE BROOKES

Fourth Respondent

JUDGE: GOLDBERG J

DATE: 18 MAY 1999

PLACE: MELBOURNE

RULING HIS HONOUR: 1 I am satisfied that the application for leave to amend the defences of the first and the third respondents should be allowed. Consistently with established authority such as State of Queensland v JL Holdings Ltd (1997) 189 CLR 146, it is desirable that I adhere to the interests of justice and ensure that the merits of the matter are dealt with. What is sought to be amended is the withdrawal of words in the earlier defence which, in substance, admitted that in four cases deletions of Buttercup products were at the direction of the third respondent, Mr Jones. Mr Glick, who appears on behalf of Mr Jones, points to a potential ambiguity in relation to the admissions in relation to two of these incidents – Lalor and Frankston and it seems to me that the amendments to those paragraphs are such that the matter is made clear, in the sense that the evidence which apparently is intended to be led from Mr Jones makes it clear what his involvement is. 2 Mr Fajgenbaum QC, who appears with Messrs Brett QC, Ginnane and Star for the applicant, does not suggest that there is any question of estoppel, but he does submit there is prejudice to the applicant by virtue of the operation of s 84 of the Trade Practices Act 1974 (Cth). It seems to me that, having regard to the fact that both Mr Brookes and Mr Jones are going to give evidence of their involvement, the relevant prejudice to which I should have regard is not in existence at this point of time because Mr Fajgenbaum will have the opportunity to investigate with both witnesses their relevant involvement in both matters. The position might be different if this application was made in closing submissions, but at the moment the respondents are yet to open their case. The main basis of Mr Fajgenbaum's opposition to the amendment is that there is no evidence of a solid or substantial character as to how the need for the amendment came about. The matter is deposed to by Mr Andrew John Christopher, a solicitor for Mr Jones, who has not been cross‑examined, and I accept his evidence. In short he says that in preparing the amended defence to the fourth further amended statement of claim he took instructions from Mr Jones. Mr Jones said that in relation to the earlier defence, which contained the statements which are sought to be excised from the defence he had not given his full attention to, or fully appreciated the effects of, the relevant paragraphs. 3 On one view it may be said that the evidence before me is sparse or limited in the sense that I have had no detailed explanation of what happened at the time of obtaining the instructions for the delivery of the earlier defences. However, I am satisfied on the material before me that an error was made. Mr Jones is said by Mr Christopher to have not given either his full attention to the matter or fully appreciated it and I am satisfied that that evidence is sufficient in these circumstances to establish the necessary basis which enables me to exercise my discretion to allow the amendments. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.