FEDERAL COURT OF AUSTRALIA Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCA 286 PRACTICE AND PROCEDURE – pre-trial directions – whether leave to appeal from an interlocutory judgment should be granted – where the question on appeal in a proceedings for a civil penalty is whether the Court should direct pre-trial service of statements of witnesses to be called by natural person respondents Trade Practices Act 1974 (Cth) s 155 Corporations Act 2001 (Cth) Sidebottom v Commissioner of Taxation (2003) VSCA 2 followed Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 cited AUSTRALIAN COMPETITION & CONSUMER COMMISSION v FFE BUILDING SERVICES LTD & ORS N 509 OF 2002 HELY J 3 APRIL 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 509 OF 2002 BETWEEN: AUSTRALIAN COMPETITION & CONSUMER COMMISSION APPLICANT AND: FFE BUILDING SERVICES LTD (formerly Chubb Building Services Ltd) (formerly James Hardie Building Services Pty Ltd) T/as Fire Fighting Enterprises ACN 000 067 541 FIRST RESPONDENT TYCO AUSTRALIA PTY LTD (formerly Wormald Australia Pty Ltd) T/as Wormald Fire Systems ACN 008 399 004 and T/as Mercury Engineering SECOND RESPONDENT PREMIER FIRE PROTECTION (NSW) PTY LTD ACN 067 652 895 THIRD RESPONDENT METROPOLITAN FIRE SYSTEMS PTY LTD ACN 061 519 471 FOURTH RESPONDENT ALLEN EDWARD SMITH FIFTH RESPONDENT COLIN SIMPSON SIXTH RESPONDENT VITO FODERA SEVENTH RESPONDENT JAMES BELL EIGHTH RESPONDENT ALLAN CARR NINTH RESPONDENT MITCHELL GRICE TENTH RESPONDENT BILL LAWSON ELEVENTH RESPONDENT JUDGE: HELY J DATE OF ORDER: 3 APRIL 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave granted to the applicant to appeal from the decision of Wilcox J given on 7 March 2003. 2. A Notice of Appeal from that decision be filed and served within 7 days. 3. Subject to such a Notice of Appeal being filed, the hearing of the appeal be expedited. 4. The applicant make arrangements with the registry forthwith for the settlement of an index for the appeal books. 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 N 509 OF 2002 BETWEEN: AUSTRALIAN COMPETITION & CONSUMER COMMISSION APPLICANT AND: FFE BUILDING SERVICES LTD (formerly Chubb Building Services Ltd) (formerly James Hardie Building Services Pty Ltd) T/as Fire Fighting Enterprises ACN 000 067 541 FIRST RESPONDENT TYCO AUSTRALIA PTY LTD (formerly Wormald Australia Pty Ltd) T/as Wormald Fire Systems ACN 008 399 004 and T/as Mercury Engineering SECOND RESPONDENT PREMIER FIRE PROTECTION (NSW) PTY LTD ACN 067 652 895 THIRD RESPONDENT METROPOLITAN FIRE SYSTEMS PTY LTD ACN 061 519 471 FOURTH RESPONDENT ALLEN EDWARD SMITH FIFTH RESPONDENT COLIN SIMPSON SIXTH RESPONDENT VITO FODERA SEVENTH RESPONDENT JAMES BELL EIGHTH RESPONDENT ALLAN CARR NINTH RESPONDENT MITCHELL GRICE TENTH RESPONDENT BILL LAWSON ELEVENTH RESPONDENT JUDGE: HELY J DATE: 3 APRIL 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for leave to appeal from an interlocutory judgment of Wilcox J given on 7 March 2003. If leave is granted, the question for determination in the appeal is whether, in proceedings for a civil penalty, a direction that statements of evidence proposed to be led on behalf of individual respondents be filed and served prior to the commencement of the trial would infringe the privilege against exposure to a civil penalty. 2 The judgment was given on a matter of practice and procedure, and the authorities establish that a "tight rein" should be kept on appeals from interlocutory decisions which do not determine substantive rights. Nonetheless, the judgment does raise a question of general application in civil penalty proceedings which are regularly brought under the Trade Practices Act 1974 (Cth) ("the TPA") and under the Corporations Act 2001 (Cth). The issue raised by the application is one which, by its very nature, is unlikely to arise except by way of appeal from an interlocutory judgment. 3 Wilcox J was confronted with conflicting authorities on the point. In particular, he was confronted with a conflict between the decision of the Victorian Court of Appeal in Sidebottom v Commissioner of Taxation (2003) VSCA 2 and earlier decisions of single judges of this Court. Whilst expressing a personal preference for the approach adopted by the Victorian Court of appeal, his Honour followed the earlier decisions of single judges of this Court upon the basis that it was important that there be consistency of approach within the Court in relation to matters of practice and procedure. His Honour noted that if that result is undesirable, the situation may be corrected by the Full Court. His Honour made it clear that, other than for reasons of comity, he would have exercised his discretion to order the individual respondents to file and serve their evidence prior to the commencement of the trial. 4 The question of injustice to the applicant flowing from the order is a relevant and necessary consideration to take into account in deciding whether or not to grant leave: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. Counsel for Mr Fodera submits that no injustice will flow from the decision because the case against Mr Fodera is narrow, he has already been the subject of a s 155 of the TPA examination and because the primary judge has already indicated that he proposes to order the provision of witness statements of the individual respondents within a short period after closure of the applicant's case. Mr Fodera has offered an undertaking to the Court that he will not object to any application for a brief adjournment of the hearing so as to enable the applicant to properly consider any witness statement filed and served on his behalf. 5 Whether the applicant will suffer substantial injustice as a result of the order in question is to some extent an exercise in speculation because the trial has not commenced, and it is not known whether witness statements will be filed on behalf of individual respondents or what the matters covered in those statements might be. The matters relied upon by the respondent indicate that the extent of any injustice accruing to the applicant may be less than might otherwise have been the case, but they fall short of negativing any injustice. 6 The trial will be conducted in accordance with procedures which are a departure from those ordinarily adopted by the Court in civil cases. If the applicant is correct in its submissions, that departure arises by reason of an error in principle on the part of the primary judge, rather than by reason of a miscarriage in the exercise of a discretion. The grant of leave to appeal will not prejudice the orderly conduct of the trial. In those circumstances the applicants have demonstrated sufficient prejudice to warrant a grant of leave to appeal. It is not appropriate to make the grant of leave conditional on the applicant agreeing to pay the costs of the appeal in any event. 7 I give leave to the applicant to appeal from the decision of Wilcox J given on 7 March 2003. 8 I direct that a Notice of Appeal from that decision be filed and served within 7 days. Subject to such a Notice of Appeal being filed, I order that the hearing of the appeal be expedited. I direct the applicant to make arrangements with the registry forthwith for the settlement of an index for the appeal books. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 3 April 2003 Counsel for the Applicant: Mr N J Williams SC, Mr D H Godwin Solicitor for the Applicant: Australian Government Solicitor Counsel for the First Respondent: Ms D Yates Solicitor for the First Respondent: Deacons Counsel for the Seventh Respondent: Mr D R Stack Solicitor for the Seventh Respondent: Carbon Legal Counsel for the Eighth Respondent: Ms Pearman Solicitor for the Eighth Respondent: Storey and Gough Date of Hearing: 31 March 2003 Date of Judgment: 3 April 2003