Seven Cable Pty Ltd v Telstra Corp Ltd [2000] FCA 378

FEDERAL COURT OF AUSTRALIA Seven Cable Pty Ltd v Telstra Corporation Ltd [2000] FCA 378

SEVEN CABLE TELEVISION PTY LIMITED v TELSTRA CORPORATION LIMITED, TELSTRA MULTIMEDIA PTY LIMITED, TELSTRA MEDIA PTY LIMITED, THE NEWS CORPORATION LIMITED, NEWS LIMITED, SKY CABLE PTY LIMITED, FOXTEL MANAGEMENT PTY LIMITED and AUSTRALIAN COMPETITION AND CONSUMER COMMISSION N1095 of 1999 WILCOX J SYDNEY 14 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1095 of 1999

BETWEEN: SEVEN CABLE TELEVISION PTY LIMITED

Applicant

AND: TELSTRA CORPORATION LIMITED

First Respondent

TELSTRA MULTIMEDIA PTY LIMITED

Second Respondent

TELSTRA MEDIA PTY LIMITED

Third Respondent

THE NEWS CORPORATION LIMITED

Fourth Respondent

NEWS LIMITED

Fifth Respondent

SKY CABLE PTY LIMITED

Sixth Respondent

FOXTEL MANAGEMENT PTY LIMITED

Seventh Respondent

And

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Eighth Respondent

JUDGE: WILCOX J

DATE: 14 MARCH 2000

PLACE: SYDNEY

EXTEMPORE REASONS FOR DECISION 1 WILCOX J: Application has been made by Telstra to amend its defence and cross claim in N1095 of 1999. The purpose of the proposed amendments is to enable Telstra to take an additional point concerning the alleged invalidity of the deeming statement issued under the name of the Australian Competition and Consumer Commission ("the Commission") on or about 30 June 1997. 2 The additional point turns on the fact that documents of the Commission indicate that the description of "broadcast access service", that was considered by a meeting of the Commission on 25 June 1997, differs from the description contained in the statement finally issued. 3 Documents produced today show there was debate within the Commission about the appropriate definition of "broadcasting access service". This subject was discussed at a full Commission meeting on 25 June 1997. The Commission resolved, according to the minutes of that meeting, to refer the matter to the Telecommunications Committee meeting to be held on 27 June 1997. 4 The documents further reveal that a submission was prepared, apparently by staff, for the Telecommunications Committee meeting. This submission was distributed to five members of the Commission, including the Chairman and Deputy Chairman. The documents do not include any minute of the meeting of the Telecommunications Committee. So I am therefore unable to say how many Commissioners attended that meeting, assuming it was held, or what decisions were made at it. 5 The point Telstra seeks to take arises out of the fact that s39 of the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997 gives a power to make a deeming statement to the Commission. The contention is that this is a non-delegable power and that the documents before the Court show that the specification of "broadcasting access service", which is said to be "a key element" in the making of the deeming statement, was a task carried out by a committee rather than the full Commission. 6 Apparently the Commission's documents were provided to the solicitors acting for Telstra progressively during February, the hearing of this matter having been fixed to commence yesterday, 13 March 2000. Last Friday afternoon, 10 March, the solicitors for Telstra wrote a letter to the solicitors for all other parties, including the Australian Government Solicitor, who is acting on behalf of the Commission. That letter enclosed the proposed amended defence and further amended cross-claim and intimated that Telstra would seek leave to file these documents on Monday (that is, yesterday, the commencement of the hearing). The letter went on: "We note that the proposed amendments raise no new factual issues. The relevant documents are already exhibited to the affidavit of Mr Christos Pattas sworn 27 October 1999 served by the Australian Competition & Consumer Commission. The amendment raises a short issue of law. Would you kindly advise whether your respective clients consent to the proposed amendments." 7 The Commission objects to the amendments. 8 I was informed by Mr A Robertson SC, senior counsel for the Commission, that the solicitors for Telstra enclosed, with the letter of 10 March, a notice to produce certain documents, these being documents apparently considered relevant to the proposed amended defence and further amended cross-claim. I was further informed that some documents were produced yesterday in response to this notice to produce, and this gave rise to a further notice to produce in respect of another document. 9 Mr Robertson says that, if the amendments are allowed, it will be necessary for him to obtain instructions with a view to calling evidence about the events of 25 to 27 June 1997 and, in particular, the participation of Commissioners in the ultimate decision. 10 Mr M Pembroke SC, senior counsel for Telstra, claims the new issues raise matters of law only, it is sufficient to look at documents already before the court. He reminds me of the decision of the High Court in Queensland v J.L. Holdings Pty Limited (1997) 189 CLR 146. 11 I bear in mind the principles laid down by the High Court in J L Holdings. That decision, of course, related to a determination by a primary judge, prior to the commencement of a hearing, refusing an application for an adjournment. The application for adjournment was put on the basis that it would afford the respondent an opportunity of adducing evidence that would provide a total answer to the claim. 12 The most obvious distinction between J L Holdings and the present case is that in the present case the hearing has already commenced. The first intimation of the proposed amendment was given only on the Friday before the Monday on which the case was due to commence. 13 The amendments are adumbrated by Telstra on the basis that they raise no new factual issues. However, it is far from clear that this is so. If the amendments raise no new factual issues, it is difficult to understand the reason for the issue of the recent notices to produce. The assertion is that the substituted definition of "broadcast access service" was not ratified by the full Commission, or at least a quorum of the Commission, or a duly authorised delegate of the Commission. But it is not possible to evaluate that assertion without having evidence concerning the internal workings of the Commission, including relevant events during the period 25 to 27 June 1997. It cannot be assumed that all relevant documents are presently before the Court or that no oral evidence would be admissible and relevant in determining the matter. 14 I make no bones about the fact that I find Telstra's proposed point unattractive. A presumption of regularity attaches to official acts, for the good reason that a citizen affected by an apparent official act has no access to information concerning the official organisation's internal workings. It is most unfortunate if an action is held invalid for such a reason, some years after the event and after citizens have acted in good faith on the strength of its validity. It appears this has happened in the present case. However, this is not the basis upon which I refuse the present application. 15 The question whether to permit an amendment of pleadings after the commencement of a trial is one left to the discretion of the Court. It is necessary to balance competing factors. On the one hand, as a general principle, it is desirable to allow parties to obtain a ruling of the Court on issues of importance to them. On the other hand, the raising of a new issue at a late stage may be so disruptive to the orderly progress of the trial as to be unfair to other parties. That is so in this case. At the special request of the parties, and for reasons important to them, an early trial date was fixed. The available trial time is limited and is likely to be fully utilised. I think it would be wrong to risk upsetting these arrangements by permitting this last minute amendment of the pleadings. 16 I further point out that this case has been subject to detailed directions requiring the filing of evidence by stipulated pre-trial dates. Not only is Telstra unable to bring itself within those directions, in relation to any new material; it has not even acted promptly in notifying the proposed amendments. There was a delay of some weeks, at least, between the time when the Commission's documents were made available to Telstra and the time that the proposed point was notified to other parties. If the position is, as stated in the letter of 10 March, that the relevant documents are already exhibited to Mr Pattas' affidavit of 27 October 1999 (which Telstra has had for some months), the delay in even more reprehensible. 17 In the circumstances, I propose to refuse the application for amendment. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.