FEDERAL COURT OF AUSTRALIA Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [2001] FCA 478 MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED v TNT AUSTRALIA PTY LIMITED, ANSETT AUSTRALIA LIMITED, MAYNE NICKLESS LIMITED and J McPHEE & SON (AUSTRALIA) PTY LIMITED NG 786 OF 1995 GYLES J SYDNEY 20 APRIL 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 786 OF 1995 BETWEEN: MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED ACN 001 227 890 APPLICANT AND: TNT AUSTRALIA PTY LIMITED ACN 000 495 269 FIRST RESPONDENT ANSETT AUSTRALIA LIMITED ACN 004 209 410 SECOND RESPONDENT MAYNE NICKLESS LIMITED ACN 004 073 410 THIRD RESPONDENT J McPHEE & SON (AUSTRALIA) PTY LIMITED ACN 001 856 111 FOURTH RESPONDENT JUDGE: GYLES J DATE OF ORDER: 20 APRIL 2001 WHERE MADE: SYDNEY Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 786 OF 1995 BETWEEN: MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED ACN 001 227 890 APPLICANT AND: TNT AUSTRALIA PTY LIMITED ACN 000 495 269 FIRST RESPONDENT ANSETT AUSTRALIA LIMITED ACN 004 209 410 SECOND RESPONDENT MAYNE NICKLESS LIMITED ACN 004 073 410 THIRD RESPONDENT J McPHEE & SON (AUSTRALIA) PTY LIMITED ACN 001 856 111 FOURTH RESPONDENT JUDGE: GYLES J DATE: 20 APRIL 2001 PLACE: SYDNEY REASONS FOR JUDGMENT (EX TEMPORE) 1 I will state briefly what I conceive to be the meaning and effect of the orders that were made by Burchett J which I think will solve, at least for the time being, a number of issues debated. It seems to me that Order 2 made by Burchett J on 7 March 1997 ("Order 2") on its proper construction obliged the applicant to file on or before 31 July 1997 all written statements on which it intended to rely for proof of its case other than those described in the words in parenthesis, namely other than those arising out of the inspection of discovered and subpoenaed documents and/or continued inquiries or those not otherwise reasonably capable of being filed and served before 31 July 1997. 2 Secondly, it seems to me that the filing of those statements was intended to be in lieu of particulars. In other words, the case which the applicant was making was to be defined, or its metes and bounds were to be defined, by those witness statements. 3 The words "for the time being" in Order 2 have the effect that, after the witness statements were produced, it would be possible for the respondents to see the further particulars, that being a matter ultimately for the court to determine. 4 It follows from that reading of Order 2 that the witness statements which might be filed without leave, or at least ultimately relied upon in the case, are those which, if filed after 31 July 1997 otherwise than by leave, would be as described in parenthesis in Order 2. Of course, the existing orders of the court give the applicant until 30 June 2001 (leaving aside expert reports) for that process to be complete. When I say "that process" I mean inspection, inquiries and so forth leading to potential further statements. 5 It also follows that, so far as particularisation of the pleaded case is concerned, that is contained within the statements filed as provided for in Order 2. It does not follow that further witness statements by themselves have the effect of increasing the scope of the particulars. If there are any significant alterations to the particularisation of the case by virtue of the filing of witness statements then that must be regularised by the granting of leave. I am not suggesting that that will or will not be a difficult task. That will depend on the circumstances, but it will need to be done. 6 The consequence is, in my view, that the respondents to the case (I have used respondent and applicant as per the delineations in the case rather than on the motion) are premature in some of the complaints they have made about the particularisation problems caused by the statements which are emerging. The time to consider that will be when those statements are complete and when the need for regularisation arises. It is true that it could happen progressively but the practicalities of the court calendar are such that it cannot be done progressively. If, at the end of the day, witness statements are filed which go beyond the particularised incidents then they simply will not be admitted into evidence unless there has been regularisation of the matter. 7 On the other hand, the problem which is created by the reference to what are called "the lost customer reports" in the statement of Gregory John Poche of 28 March 2001 does, in my opinion, give rise to an issue which needs to be determined, because that topic does not arise out of the inspection of the discovered subpoenaed documents and/or continuing inquiries and was reasonably capable of being filed and served on or before 31 July 1997. 8 Counsel for the applicant submits that this is not correct because he would be able to tender the documents as business records without the necessity for the filing of a witness statement on or before 31 July 1997. Secondly, he suggests that the course of correspondence between the solicitors indicates that it was tacitly or expressly conceded by the respondent's solicitors that witness statements of substance, not necessarily limited to the words in parenthesis, could be filed later than 31 July 1997, at least provided that they did not extend the particulars. 9 As to the first matter, the customer reports do not prove themselves and to get them into evidence would require proof of the necessary qualifications and, as the statement of Mr Poche makes clear, there is a need, in any event, for some explanation as to the documents for them to have any real evidentiary value. As to the second point, there may be some debate as to the meaning and effect of the correspondence which passed between the solicitors on this point. I have looked, I think, at most of it, but it does not seem to me to be clear one way or the other on the issue. What I am clear about is that none of the correspondence, nor anything that has happened at any directions hearing, has led to any amendment to Order 2, and it is my view that that order requires that leave be granted before the relevant part of Mr Poche's witness statement can be regarded as regularly provided. In one sense this could be left till later and the matter fought out at that stage. However, that would not be a sensible result in a "case-managed" matter of these proportions. There is much substance in the submissions for the respondents that to enable the admission of these documents and the explanation of these documents at this stage of the case is likely to have a significant effect upon the preparation for and hearing of the case. 10 I should say that counsel for the applicant has made it clear that he will rely upon the statements in his case on liability, that is, he will rely upon the lost customer statements as part of what he called the "matrix of facts" from which the disputed allegations as to the existence of the cartel will be proved. In addition he makes it clear that it will be a significant part of the case for damages. The net result of that is, in my view, that the applicant should be afforded the opportunity of seeking leave to introduce this material. This will involve, I think, the widening of the particulars and the opportunity of leading evidence relevant to the seeking of that leave. That opportunity was opposed by the respondents by saying that the applicant has committed itself now for months, if not years, to the particulars which it gave in 1997. In my opinion, the duty of the Court to do justice between the parties obliges me to give the opportunity to the applicant to rely upon this material, and a date will be fixed for that to be done. 11 There is a remaining issue of particularisation of the applicant's case in relation to damages. I am not persuaded that Order 5(c) of the Short Minutes handed up by counsel for the third respondent is necessary. I think compliance with par 20(6) of the applicant's written submissions will be sufficient in this respect. There was, I think, some amendment of that but that can be picked up in due course. I am not persuaded that there should be guillotine-type orders made at the present stage of the case. This is a case-managed matter dealing with case by directions. The directions are orders of the Court and should be so regarded. 12 So far as the documents to be relied upon by the applicant are in issue, I think that, in all of the circumstances, what should be done is that by no later than 30 June 2001 the applicant should give notice of all documents it proposes to tender, other than documents which have been disclosed by the statements which have been served. That is not to deny the necessity for a consolidated listing in due course, but the important thing is to have the list of extra documents, if I can put it that way, which I imagine will be fairly well identified by the time the last statement is received, so that the respondents can then know the precise nature of the case made against them. 13 Short minutes should be brought in to give effect to these reasons. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 27 April 2001 Counsel for the Applicant: RC McDougall QC with G Brandis Solicitor for the Applicant: Phillips Fox Counsel for the First, Second and Fourth Respondents: MR Speakman Solicitor for the First, Second and Fourth Respondents: Clayton Utz Counsel for the Third Respondent: AC Archibald QC with RJ Wright Solicitor for the Third Respondent: Blake Dawson Waldron