FEDERAL COURT OF AUSTRALIA Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd (No 2) [2020] FCA 745 File number: NSD 862 of 2019 Judge: JAGOT J Date of judgment: 22 May 2020 Catchwords: PRACTICE AND PROCEDURE – application for discovery by non-parties – application made despite stay order made due to civil penalty proceedings – consideration of s 83 of the Competition and Consumer Act 2010 (Cth) – application made prior to filing of defence – application for discovery by non-parties dismissed Legislation: Competition and Consumer Act 2010 (Cth) Federal Court Rules 2011 (Cth) Cases cited: Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 260 Date of hearing: 22 May 2020 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Economic Regulator, Competition and Access Category: Catchwords Number of paragraphs: 7 Counsel for the Applicant: Mr K Petitt QC Solicitor for the Applicant: ERA Legal Counsel for the Respondents: Dr RCA Higgins SC with Mr B Lim Solicitor for the Respondents: Gilbert + Tobin Counsel for Interested Person (Australian Competition and Consumer Commission): Mr RA Yezerski Solicitor for Interested Person (Australian Competition and Consumer Commission) Australian Government Solicitor Counsel for Interested Person (Port of Newcastle) Mr G Rich SC Solicitor for Interested Person (Port of Newcastle) Allens Linklaters Counsel for Interested Person (State of New South Wales) Ms K Morgan SC Solicitor for Interested Person (State of New South Wales) MinterEllison ORDERS NSD 862 of 2019 BETWEEN: MAYFIELD DEVELOPMENT CORPORATION PTY LTD ACN 154 495 048 Appellant AND: NSW PORT OPERATIONS HOLD CO PTY LTD ACN 163 262 351 First Respondent PORT BOTANY OPERATIONS PTY LTD ACN 161 204 342 Second Respondent PORT KEMBLA OPERATIONS PTY LTD ACN 161 246 582 Third Respondent AUSTRALIAN COMPETITION & CONSUMER COMMISSION Interested Person PORT OF NEWCASTLE OPERATIONS PTY LIMITED ACN 165 332 990 Interested Person PORT OF NEWCASTLE INVESTMENTS (PROPERTY) PTY LIMITED ACN 169 286 024 Interested Person PORT OF NEWCASTLE INVESTMENTS PTY LIMITED ACN 169 132 441 Interested Person STATE OF NEW SOUTH WALES Interested Person JUDGE: JAGOT J DATE OF ORDER: 22 MAY 2020 THE COURT ORDERS THAT: 1. The stay of the proceeding be varied such that: (a) the Applicant be permitted to file and serve the Amended Originating Application in the form annexed to its Interlocutory Application filed on 18 May 2020 and the Amended Statement of Claim in the form annexed to these orders; and (b) for avoidance of doubt, the Respondents not be obliged until further order to take any step in relation to the Amended Originating Application or Amended Statement of Claim, including without limitation any application to strike out, disallow, or otherwise oppose the Applicant being permitted to rely upon the Amended Originating Application or Amended Statement of Claim, and the Respondents have liberty to take any such steps a reasonable time after the stay is lifted. 2. The Applicant's interlocutory application filed on 18 May 2020 otherwise be dismissed. 3. The Applicant pay the costs of the Respondents and Interested Persons forthwith, which may be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JAGOT J: 1 I am persuaded that the application for discovery against the non-parties is premature. In short, I accept the submissions put by the respondents to the application, in particular, the Port of Newcastle Operations Pty Limited and two related corporations (Newcastle Respondents). 2 I decline to lift the stay ordered by this Court in March 2020, having regard to, amongst other things, s 83 of the Competition and Consumer Act 2010 (Cth) (CCA) (see Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 260 at [23]), because the evident purpose of that statutory provision is ensure that damages claims which are essentially parasitic on civil penalty proceedings may be heard and determined after the civil penalty proceedings. 3 First, I accept the submission for the Newcastle Respondents that the just, quick and cheap way of disposing of the current proceeding once the stay expires is for the parties to rely on as many as possible of the factual findings made in the civil penalty proceedings. However, the current application for discovery by non-parties assumes that all of the issues raised by the applicant's pleading will remain in dispute and will need to be proved by documentary or testimonial evidence at the trial, even after judgment has been delivered in the civil penalty proceedings. For this reason, I consider the present application inconsistent with the statutory purpose which is evident from s 83 of the CCA. 4 Secondly, but equally importantly, given the stay of these proceedings, no defence has yet been filed in this proceeding. Accordingly, issue has not been joined. It necessarily follows that the application for discovery by non-parties cannot meet the objective of r 20.11 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) that an order for discovery will only be made to "facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible". In the absence of a defence, and having regard to the context set by s 83 of the CCA, it cannot be said that any of the parties to the present proceeding are in a position to know which issues are or are not in dispute, so as to evaluate the appropriateness of the documents sought to be discovered. 5 Thirdly, I accept also the submission for the Newcastle Respondents that this application does not meet the requirements of r 20.23 of the Federal Court Rules which provides that an application may only be made for documents that are "directly relevant to an issue raised on the pleadings or affidavits". As has been submitted, in circumstances where no defence has been filed, there has been no joinder of any issue on the pleadings, and, accordingly, there is no circumstance against which the criterion of direct relevance can be assessed. 6 These considerations lead me to the view that this application for discovery by third parties is profoundly premature and should be dismissed. 7 There was no objection by any party of which I am aware to that part of the interlocutory application which would have the effect of granting the applicant leave to serve an amended originating application and amended statement of claim, subject to the respondents reserving their position as to whether or not to apply to strike out any part of those documents. Orders will be made accordingly. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 29 May 2020