Australian Competition and Consumer Commission v Qantas Airways Ltd [2003] FCA 907

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Qantas Airways Ltd [2003] FCA 907 PRACTICE AND PROCEDURE – application for discovery and interrogatories in a complex case

Federal Court Rules O 15 r 3 and r 15 Federal Court Practice Note 14 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v QANTAS AIRWAYS LIMITED (ACN 009 661 901) N 408 OF 2002 GYLES J SYDNEY 29 AUGUST 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 408 OF 2002

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 29 AUGUST 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicant bring in short minutes of order to give effect to these reasons on a date to be fixed. 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 408 OF 2002

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901)

RESPONDENT

JUDGE: GYLES J

DATE: 29 AUGUST 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The principal proceeding is by Australian Competition and Consumer Commission ("ACCC") against Qantas Airways Limited ("Qantas") for contravention of s 46 of the Trade Practices Act 1974 (Cth) ("the Act"), and was commenced on 7 May 2002. After various preliminary skirmishes, a second amended statement of claim was filed on 13 February 2003, and a defence was filed on 14 March 2003. A substantial amount of ACCC's evidence has been filed. The first motion is by ACCC for discovery by Qantas of documents under twenty categories, a number of which have sub-categories. It is supported by evidence and by a very useful schedule which cross-references the categories of documents with the relevant pleading and with the evidence given on behalf of Qantas as to the time and resources required to discover particular categories of document. 2 Early in the development of the argument, attention was drawn to O 15 r 3 and r 15 of the Federal Court Rules, to certain authorities relating to those rules (Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426; Index Group of Companies Pty Ltd v Nolan (2002) FCA 608; and Gray v Associated Book Publishers (Australia) Pty Ltd(in liq)(2002) FCA 1045) and to Federal Court Practice Note 14. The latter, in particular, seems to have been lost sight of over recent years. Counsel for ACCC then took further instructions, and limited the categories of documents to be sought. 3 ACCC then sought leave to serve twenty-one interrogatories for the answer of Qantas, most of which included more than one question, pursuant to O 16 of the Federal Court Rules. This was opposed, and a further hearing ensued. The argument as to interrogatories substantially overlapped with and arose out of the argument relating to discovery. Whilst Practice Note 14 does not in terms relate to interrogatories, they have been regarded as a form of discovery, and that note at least gives guidance as to the approach to be taken to the exercise of discretion pursuant to O 16. 4 The practice of the Court over many years has been to actively manage cases, and the introduction of the docket system has emphasised that approach. Naturally, the degree of supervision varies from case to case. This case is of a size and complexity which demands relatively close management if it is to be brought on for hearing in a timely fashion and then completed in an efficient manner. This involves, amongst other things, the filing of evidence in advance of the hearing. The evidence of witnesses to be called by ACCC has now been filed, and Qantas should be well on the way towards producing its evidence. Experience has shown that this process will bring to the surface most of the documents which are relevant, and will deal with most issues which need to be addressed. In my opinion, the time to take stock of what orders for discovery or interrogatories should be made is generally after the respondent has filed its evidence. There are, however, good reasons to consider these applications now. In the first place, this is not an inter partes dispute arising out of a bilateral transaction, where each party has knowledge of relevant facts. ACCC needs to have access to information in the hands of Qantas. The fact that information has been obtained by ACCC pursuant to s 155 of the Act does not, of itself, necessarily deny the right to discovery or interrogatories although possession of the information which has been so obtained is relevant. In the second place, there is not a long period between the service of the evidence by Qantas and the commencement of the hearing. 5 I propose to approach the applications on the basis that I will order only that discovery or those interrogatories which I am reasonably satisfied would be required in any event, and where I can perceive a substantial likelihood of real benefit to the preparation and presentation of the case without undue duplication or unnecessary diversion of resources by Qantas. I bear in mind that I have indicated that I am prepared to revisit issues of discovery and interrogatories as preparation of the case unfolds. My decisions in relation to these applications will not be based upon any view as to ultimate relevance at the hearing one way or another. 6 This approach involves a balancing exercise which, because of the stage which the case is at, necessarily involves some fairly arbitrary judgments. I have now had the benefit of a substantial argument as to whether the proceeding should be struck out or summarily dismissed (Australian Competition & Consumer Commission v Qantas Airlines Ltd [2003] FCA 125) and two occasions of detailed argument as to discovery and interrogatories, including consideration of a body of affidavit material. Having explained the approach I have adopted, I do not propose to give lengthy reasons for the conclusions to which I have come. To do so is unnecessary and would unreasonably delay delivery of this judgment, taking account of my other commitments.