Application by Co-Operative Bulk Handling Limited - [2012] ACompT 9

AUSTRALIAN COMPETITION TRIBUNAL
Application by Co-operative Bulk Handling Limited (No 2) [2012] ACompT 9

Citation: Application by Co-Operative Bulk Handling Limited [2012] ACompT 9

Parties: APPLICATION BY CO-OPERATIVE BULK HANDLING LIMITED FOR A REVIEW OF THE GIVING OF A NOTICE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION UNDER SECTION 93(3) OF THE COMPETITION AND CONSUMER ACT 2010 TO REVOKE NOTIFICATION N93439

File number: ACT 8 of 2011

Tribunal: JUSTICE MANSFIELD (PRESIDENT)
MR GF LATTA (MEMBER)
MR R STEINWALL (MEMBER)

Date of judgment: 20 March 2012

Date of hearing: 20 March 2012

Place: Melbourne

Category: No catchwords

Number of paragraphs: 36

Counsel for Co-Operative Bulk Handling Limited: Mr P Brereton SC and Mr JA Arnott

Solicitor for the Co-Operative Bulk Handling Limited: Corrs Chambers Wesgarth

Counsel for the Australian Competition and Consumer Commission: Mr M Moshinsky SC, Mr M Borsky and Mr T Glover

Solicitor for the Australian Competition and Consumer Commission: DLA Piper

IN THE AUSTRALIAN COMPETITION TRIBUNAL

ACT 8 of 2011

RE:
APPLICATION BY CO-OPERATIVE BULK HANDLING LIMITED FOR A REVIEW OF THE GIVING OF A NOTICE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION UNDER SECTION 93(3) OF THE COMPETITION AND CONSUMER ACT 2010 TO REVOKE NOTIFICATION N93439
Applicant

TRIBUNAL:

JUSTICE MANSFIELD (PRESIDENT)
MR GF LATTA (MEMBER)
MR R STEINWALL (MEMBER)

DATE:

20 MARCH 2012

PLACE:

MELBOURNE

REASONS FOR RULING

The applicant, Co-Operative Bulk Handling Limited (CBH) on 6 March 2012, at the commencement of the hearing, applied for leave to adduce evidence from Mr Euan Morton, Economist, in accordance with his report of 17 February 2012. His evidence was said to be evidence in reply to the proposed evidence to be given by Dr Brian Fisher, whose report was filed by the Australian Competition and Consumer Commission (ACCC) on 19 December 2011. The application was opposed by the ACCC. For reasons which have been provided, the Tribunal determined to give the CBH leave to call Mr Morton to give evidence in reply to the evidence proposed to be led from Dr Fisher.
At that time, there was no suggestion that Dr Fisher’s evidence was objectionable in form. There had been no objection either then or at an earlier time. There was also at the time no suggestion that counsel for CBH had difficulty in understanding Dr Fisher’s report, or would have difficulty in cross-examining him, and his proposed evidence was built into the evidence timetable presented in the course of opening. Dr Fisher also provided a supplementary report of 16 March 2012 to respond to Mr Morton’s report.
The expert evidence in this matter was listed for hearing in the week commencing 19 March 2012, with the first proposed evidence to be that to be adduced from Mr Morton, and then Dr Fisher. On Sunday, 18 March 2012, CBH provided notice of objection to the proposed evidence of Dr Fisher. The notice of objection ran to 31 pages. The objections to Dr Fisher’s proposed evidence would, of course, have been relevant to how much of Mr Morton’s proposed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] ACompT 9
Decision Date: 20 March 2012

CaseChat Overview and Summary

Co-Operative Bulk Handling Limited (CBH) sought review of a notice given by the Australian Competition and Consumer Commission (ACCC) under section 93(3) of the Competition and Consumer Act 2010 to revoke notification N93439. The Australian Competition Tribunal considered the application and expert evidence, including reports from Dr Brian Fisher, an economist engaged by the ACCC, and Mr Euan Morton, an economist engaged by CBH. CBH raised objections to Dr Fisher’s evidence, contending that he lacked the necessary expertise, that his evidence amounted to submissions and argument, and that it was unfair to allow his evidence without adequate cross-examination. The Tribunal found that the objections were largely raised too late in the proceedings and that the evidence was within Dr Fisher's expertise. The Tribunal decided to admit Dr Fisher's evidence, subject to certain exclusions to ensure fairness in the cross-examination process. The Tribunal's ruling aimed to balance the interests of both parties and the efficient administration of justice.

Orders