FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited [2001] FCA 1190 PRACTICE AND PROCEDURE – transfer of proceedings – several respondents - case concluded against some – no agreement reached on facts with relevant respondents – balance of convenience – potential for inconsistent and conflicting findings – parity principle – whether judge should hear remainder of cases Federal Court of Australia Act 1976 (Cth) s 48 Federal Court Rules O 10 r 1(2)(f), 0 30 r 6 Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] FCA 383; (2001) ATPR 41-815 referred to Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (unreported, 5 April 2001) referred to Australian Competition and Consumer Commission v SIP Australia Pty Ltd [2000] FCA 1258; (2000) ATPR 41-786 considered Cultivaust Pty Ltd v Grain Pool of WA [2000] FCA 974 referred to Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277 discussed National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 applied Postiglione v The Queen (1997) 189 CLR 295 discussed AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ABB TRANSMISSION AND DISTRIBUTION LIMITED and ORS V 553 of 1999 AUSTRALIAN COMPETITION AND CONSUMER COMMSSION v ABB TRANSMISSION AND DISTRIBUTION LIMITED and ORS V 868 of 2000 FINKELSTEIN J MELBOURNE 28 AUGUST 2001 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 553 of 1999 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: ABB TRANSMISSION AND DISTRIBUTION LIMITED, ALSTOM AUSTRALIA LTD, WILSON TRANSFORMER COMPANY PTY LTD, DAVID TOOGOOD, CHRIS TAPE, PAUL GRABHAM, R G ELLIOT, COLIN JAMES, ROBERT WILSON, DAVID PECK, DOUGLAS PITT and ABB POWER TRANSMISSION PTY LTD (in liquidation) Respondents JUDGE: FINKELSTEIN J DATE OF ORDER: 28 AUGUST 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The proceeding, in so far as it relates to the 5th, 11th and 12th respondents be transferred to the New South Wales Registry. 2. The matter be adjourned for further directions to the judge to whom the matter is docketed in New South Wales. 3. The costs of the application be in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 868 of 2000 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: ABB TRANSMISSION AND DISTRIBUTION LIMITED, ABB POWER TRANSMISSION PTY LTD (in liquidation), WILSON TRANSFORMER COMPANY PTY LTD, SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD, AW TYREE TRANSFORMERS PTY LTD, ALSTOM AUSTRALIA LTD, DOUGLAS PITT, GRAHAM JONES, RUSSELL ELLEN, ROBERT WILSON, RUSSELL STOCKER, ASHLEY SMOUT, WENDY MINNE, RAYMOND BOYCE, PAUL GRABHAM and COLIN JAMES Respondents JUDGE: FINKELSTEIN J DATE OF ORDER: 28 AUGUST 2001 WHERE MADE: MELBOURNE 1. The proceeding, in so far as it relates to the 1st, 2nd, 7th, 8th and 9th respondents, be transferred to the New South Wales Registry. 2. The matter be adjourned for further directions to the judge to whom the matter is docketed in New South Wales. 3. The costs of the application be in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 553 of 1999 V 868 of 2000 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: ABB TRANSMISSION AND DISTRIBUTION LIMITED & ORS Respondents JUDGE: FINKELSTEIN J DATE: 28 AUGUST 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The Australian Competition and Consumer Commission has begun these two proceedings in the Victoria District Registry, alleging contraventions of Pt IV of the Trade Practices Act 1974 (Cth) and seeking penalties and other relief. In the first proceeding (V553 of 1999), the Commission alleges that in breach of s 45(2)(a)(i) and (ii) and s 45A the corporate respondents, each a manufacturer of power transformers, entered into an unlawful combination to allocate between them the purchasers of that product and, in breach of s 45(2)(b)(i) and (ii), gave effect to this arrangement for a number of years. The individual respondents, each an officer of one or other corporate respondent, are said to have induced those contraventions. In the second proceeding (V868 of 2000) the corporate respondents, some of whom are also respondents in the first proceeding, are manufacturers of transmission transformers. The Commission alleges that, in breach of s 45(2)(a)(i) and (ii), these respondents entered into a market sharing arrangement and that this arrangement was given effect contrary to s 45(2)(b)(i) and (ii). The individual respondents, officers of the corporate respondents, are said to have induced the contraventions. 2 There has been considerable progress in each proceeding. Most respondents have reached agreement with the Commission on the facts upon which the cases are to proceed. Some reached "agreement" on the penalty that should be imposed. In those cases their "agreement" has been given effect: see Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] FCA 383; (2001) ATPR 41-815 and Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (unreported, 5 April 2001). Recently, I heard detailed submissions on the appropriate penalties that should be imposed on the other respondents, and have reserved my decision. 3 However, the Commission has not reached any agreement with the respondents referred to as the ABB parties. These respondents have admitted many of the allegations made against them, but the Commission wishes to prove those which have been denied. Thus a trial will be necessary. The parties say that the trial will take between 7 and 10 days. They will be in a position to commence the trial in about 4 months. 4 It is necessary to decide where the trial should take place. The Commission says that it should be in Melbourne, where the proceedings have been dealt with to date. The ABB parties, supported by Mr Tape, contend that Sydney is the appropriate venue. 5 I have power to order that the trial should take place in Sydney, though the action has been commenced in the Victoria Registry: see Federal Court of Australia Act 1976 (Cth) s 48; Federal Court Rules O 10, r 1(2)(f) and O 30, r 6. The parties are in agreement as to the principles to be applied in determining the appropriate venue. They were conveniently stated by the Full Court in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155. There the Full Court said that the discretion to change venue should be exercised flexibly, having regard to the particular circumstances of the case. In particular, the Full Court said (at 162) that the proper inquiry was as follows: "[W]here can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely." It is in the application of these principles that the parties are in dispute. 6 The ABB parties put forward what amount to two reasons why the case should be tried in Sydney. The first is that it would be more convenient and less costly for the parties if that were the venue. In this connection, the ABB parties point to the following matters. There are two corporate ABB respondents, one has its head office, and the other its liquidator, in Sydney. Of the individual ABB respondents, one lives in Sydney, and none live in Melbourne. The ABB respondents have retained Sydney solicitors and junior counsel from the Sydney Bar. A number of witnesses who will be called to give evidence live in or near Sydney, though at least three are in Melbourne. Many documents will be tendered. The ABB respondents have their documents in Sydney. If documents are required from other respondents, most, but not all, will be found in Sydney. The ABB respondents also draw attention to the fact that the Commission is located in Canberra, as are its solicitors, and that its counsel are from the Sydney Bar. 7 I accept that it would be less expensive, and cause fewer disruptions for the parties and their witnesses, if the trial were conducted in Sydney. All things being equal, that is the appropriate place where the trial should be conducted. 8 The second matter relied upon is only indirectly concerned with venue. Primarily it is a submission that it would be inappropriate for me to retain the conduct of the cases, notwithstanding that, as the docket judge, I have already dealt with those aspects of the cases that have come to court. The argument is derived from the possibility that, dependent upon the facts that will be found after a contested hearing, when it comes to determining the penalties that should be imposed on the ABB respondents, I may be required to deal with them on a basis that is inconsistent with how the other respondents have been dealt with. This is said to be "manifestly inappropriate". 9 I observe that the ABB respondents do not contend that because I have dealt with some respondents on the basis of agreed facts, there is a reasonable apprehension that I will not decide the case against the ABB respondents impartially or without prejudice. Put simply, the ABB respondents do not say that I should disqualify myself for apprehended bias. Such a submission would not be accepted in the light of what was said on the point by Goldberg J in Australian Competition and Consumer Commission v SIP Australia Pty Ltd [2000] FCA 1258; (2000) ATPR 41-786. In that case, Goldberg J found that there could not be any possible perception of bias in circumstances such as the present. He explained (at 41,360): "… I consider that those authorities were dealing with contested hearings where the judge had to decide facts which were contested and where the judge had to decide which witness to accept. I do not regard those authorities as requiring a judge to disqualify himself or herself in circumstances where, such as here, the judge has simply adopted, by consent, an agreed statement of facts. More particularly is this so where the judge has expressly noted that the party in the subsequent proceeding has not accepted the agreed facts and that the proceeding against that party must go to trial in the ordinary course." 10 Recognising the difficulty that confronts them, the ABB respondents say that as a matter of "case management" I should allow another judge to determine the cases against them, it being "appropriate" to take that course "where it is possible that conflicting and inconsistent findings may be made". 11 Once the ABB respondents accept that I am not disqualified from continuing with the proceedings, their submission amounts to a request that I decline to perform my duty. In Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277, Gleeson CJ, McHugh, Gummow and Hayne JJ said (at 281): "Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case." This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection was sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable." 12 Not only would it be inappropriate for me to refuse to hear the cases for the reasons mentioned by the High Court, the principles of proper "case management" suggest that, prima facie at least, I should retain control of the case. 13 The issue identified by the ABB parties (dealing with parties on the basis of conflicting, even inconsistent, facts) could arise in various circumstances. For example, the Commission may be prepared to forgo a trial and proceed to a hearing on penalties where respondents make different and inconsistent admissions. The same situation can occur at the end of a trial. It would not be unusual if the Commission were able to establish the existence of certain facts against one respondent, but not against another. This may be because of out of court admissions made by one respondent, or simply because the evidence is not sufficiently cogent against all respondents. 14 In those circumstances, it could hardly be supposed that the docket judge, if there be no trial of facts, or the trial judge after a trial, should do anything other than take the case to its conclusion. Any other approach would produce so much disruption, delay and additional cost to the parties as to make it untenable. 15 There is, in any event, a positive reason why the ABB respondents' submission should be rejected. There is a well established principle of sentencing known as the parity principle. All things being equal, the same crime should receive the same punishment. The principle applies to the imposition of penalties for a contravention of the Trade Practices Act. If a judge fails to give effect to this principle, he or she will commit an appellable error. One way to enhance the likelihood that the parity principle will be observed is for the judge to deal with all parties. In Postiglione v The Queen (1997) 189 CLR 295, Kirby J said (at 338): "The risks of disparity in the sentencing of co-offenders may be reduced by the adoption, wherever possible, of arrangements within a court which ensure that co-offenders, or those with relevant connecting factors, appear for sentence before the same judicial officer." 16 The reason is obvious. It will be much easier for one judicial officer to determine whether the circumstances of co-offenders are comparable so that they receive comparable sentences, or whether they are disparate so that they receive disparate sentences. 17 It seems to me that the factors relevant to the choice of the appropriate venue are now finely balanced. There is, on the one hand, the saving of expense and the parties' convenience if the cases go to Sydney and, on the other hand, the desirability of each case being decided by one judge for the reasons explained by Kirby J. In this connection I have considered whether there is a risk of disruption to the efficient management of the case if it is placed in the docket of another judge: compare Cultivaust Pty Ltd v Grain Pool of WA [2000] FCA 974. I do not think there is much in the point. If another judge takes over the conduct of the litigation he or she will become familiar with the issues easily enough. The burden will fall on the judge, not the parties. 18 In the end I do think that the cases should go to Sydney. That is by far the more convenient venue for the respondents, and will cause no difficulty for the Commission. True it is that there will be the potential for inconsistency in approach by the sentencing judge. But the problem is more apparent than real. The parties to this litigation are well equipped to place all relevant material on penalties before the trial judge. There is, therefore, only a remote possibility that any appellable error will result from the fact that penalties will be imposed by different judges. 19 Accordingly, I propose to order that the two proceedings be transferred to the New South Wales Registry. The costs of this application shall be part of the costs of the proceedings, which means they will be borne by the ABB respondents and Mr Tape in due course. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 28 August 2001 Counsel for the Applicant: Mr S White Solicitor for the Applicant in V553 of 1999: Australian Government Solicitor Solicitor for the Applicant in V868 of 2000: Deacons Counsel for the 11th and 12th respondent in V553 of 1999 and 1st, 2nd, 7th, 8th and 9th respondents in V 868 of 2000: Mr N J Young QC Mr R J Wright Solicitor for the 11th and 12th respondent in V553 of 1999 and 1st, 2nd, 7th, 8th and 9th respondents in V 868 of 2000: Blake Dawson Waldron Counsel for the 5th respondent in V553 of 1999: Mr C M Caleo Solicitor for the 5th respondent in V553 of 1999 Price Waterhouse Coopers Legal Date of Hearing: 3 August 2001 Date of Judgment: 28 August 2001