Attorney-General of the Commonwealth v Davids Holdings & anor QIW Retailers v Davids Holdings & ors

[1992] FCA 831

NO DISTRIBUTION 8 -

JUDGMENT No. ...2.% ;

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY	I
GENERAL DIVISION	No. G575 of 1992
BETWEEN?

ATTORNEY-GENERAL OF THE COMMONWEALTH I

ADDlicant

i

m:  DAVIDS HOLDINGS PTY. LIMITED

First Respondent i'

m:  QIW RETAILERS LIMITED i !

Second Respondent	i
i
No. G3012 of 1992	, ~
..
8 .

BETWEEN:

nIw RETAILERS LIMITED AcN 010 610 018 i-

Applicant L

m:	DAVIDS HOLDINGS PTY. LIMITED ACN 000 031 569
& ORS.

MINUTES OF ORDER

JUDGE MAKING ORDER:  Cooper J.

RECEI\fcr)

WHERE MADE:  Brisbane

16 NOV 1992

DATE OF ORDER:  4 November, FEDERAL COURT OF

AUSTRAW REGISTRY

Note:	Settlement and entry of ordere is dealt with iri "'-
Order 36 of the Federal Court Rules.

THE COURT ORDERS:

1. The the application for joinder is refused.

1. That the first respondent pay the costs of the Trade Practices Commission of and incidental to the motion for joinder, to be taxed.

. W . '& .

'	I
, c

IN THE FEDERAL COURT OF AUSTRALIA	i
QUEENSLAND DISTRICT REGISTRY	l

GENERAL DIVISION	No. G575 of 1992	:
BETWEEN:

ATTORNEY-GENERAL OF THE COMMONWEALTH

m:  DAVIDS HOLDINGS PTY. LIMITED

First Res~ondent '

m:  QIW RETAILERS LIMITED

No. G3012 of 1992

BETWEEN:  I

QIW RETAILERS LIMITED ACN 010 610 018

m:	DAVIDS HOLDINGS PTY. LIMITED ACN 000 031 569
5LmL
CORAM:	Cooper J.
PLACE :	Brisbane
DATE:	4 November, 1992

EXTEMPORE REASONS FOR JUDGMENT

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This is an application by the first respondent to Commission. The joinder is opposed by the Trade Practices	I
join as a respondent to these proceedings the Trade Practices
Commission and by all other parties to the proceedings.

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The grounds put forward on behalf of the apblica&

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for joinder are twofold. The first is that the applic$it f ~ % .. . L .

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joinder wishes to be protected against any proceedings instituted by the Trade Practices Commission subsequent to these proceedings in the event that the applicant for joinder is successful in its defence of the action; that is, the applicant for joinder wishes to obtain the benefit of either a res judicata or issues estoppel in relation to particular issues that are raised in these proceedings.

The second basis of the joinder is that there has been tendered for consideration of the Attorney General as	! ,
applicant in proceedings G575 of 1992 an open offer to execute	I.
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a deed of compromise in relation to the matters in issue,
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which deed in draft form includes provision for the Trade	I I
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Practices Commission becoming a party to that deed and	1-
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undertaking supervision of compliance with it.

It is submitted that the deed will be offered at the ! ,

commencement of the trial and it is necessary, or at least	I .
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appropriate, that the Trade Practices Commission be a party at
the time so that it can, if the court is otherwise satisfied
with the offer, execute the deed in addition to the Attorney	, .

General.	I
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The submissions in opposition to the joinder are essentially that the preconditions contained in Order 6, Rule	i
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8, l(a) and (b) have not been met and that in any event, as a
matter of discretion, I should not allow joinder. On behalf	1:  i

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of the Commission it is submitted that it has a statutory duty	; - ,
to enforce the provisions of the Trade Practices Act and it	.

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cannot be bound by estoppel or res judicata in relation to the discharge of its functions as to circumstances which occur after the delivery of any judgment in this action.

TO the extent that the submission is limited or, in my view, ought to be limited to future events occurring after judgment, I agree with that submission. The position is, however, different in relation to circumstances which exist and issues which exist in relation to the state of the market, if there be a market, at the date of trial in my view.

The desirability of joining the Commission is not the appropriate test. The appropriate test is whether or not the Commission ought to have been joined as a party or whether it is a necessary party to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.

There is no material to satisfy me that the Trade
Practices Commission ought, at some prior time, to have been

joined as a party, and I am not altogether convinced that it

party simply because it has a statutory right to commence	can necessarily be said that the Commission is a necessary
proceedings identical in kind to those which have been instituted by the Attorney-General of the Commonwealth.
But even assuming, for the purpose of this application, that the threshold test has been made out, the question of discretion arises. In my view, the Commission having been, in a sense, invited to join the proceedings and having declined, and having declined to give an undertaking to be bound by the outcome of the proceedings, it would not be reasonably open to the Commission in a practical way at the conclusion of these proceedings to institute proceedings itself in relation to facts or circumstances that existed at the time of judgment in these proceedings or anterior to judgment. :. ',

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If such a course was adopted, then in my view, without binding myself or any other judge of this court, there	i
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would be reasonable grounds for holding that the institution of such proceedings was oppressive, unreasonable and an abuse
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of process. That, however, is not to be taken to mean that if after judgment in this action there are circumstances which operate in the market, if there be a market, which then entitled proceedings to be brought, proceedings could not be brought at that future time.	i
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So far as the question of the deed is concerned I am 1

not satisfied that the Trade Practices Commission needs to be	i !
made a party for the purpose of the deed. If the Attorney- General and the Trade Practices Commission are satisfied that
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the deed proffered is a proper offer to discharge the
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interests of the Commission and the Attorney in these	i

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proceedings, then, in my view, those parties will make that	I
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decision independently of whether or not the Commission is a party and will give effect to it by the execution of the deed.

5.   I

To the extent that the Commission is not a party and the deed is tendered and is acceptable to the court, then one of two situations will arise. The Trade Practices Commission can accept the view of the court, even though not a party that the deed as tendered is an appropriate outcome in the circumstances, and enter the deed along with the Attorney. Alternatively, if the Commission and the Attorney General are not of the view that they are prepared to enter the deed, notwithstanding the view of the court, then of course it remains open to the court to consider whether or not undertakings in those terms satisfy the respective interests and whether or not such undertakings are acceptable to the court in lieu of the injunctive relief which is sought. That is a matter for the trial judge, and I express no view on it. However, it does not seem to me that it is necessary to join the Trade Practices Commission at this time in order to allow those matters to be considered by the trial judge.

There is one further matter. This trial is set down

and will commence next Wednesday, 11 November 1992. There has

that the trial proceeds on that date for reasons that I	been great pressure on the court and the parties to ensure
mentioned on the last occasion the matter was before me for directions. To join the Trade Practices Commission at this time runs the real risk of the trial dates not being able to be met and the trial going off. Should that occur it is unlikely that there would be any trial this year and the court would not have time available to hear the matter until some

time early into the next year. The interests of the parties are not advanced by such a course and the interest of the shareholders of the relevant company are not advanced. This matter has to be resolved in order that the market, in relation to the shares in the company, be freed up one way or the other and that commercial life goes on.

In the circumstances, I refuse the application for

joinder.

THE COURT ORDE-:

1. The the application for joinder is refused.

2.        The first respondent pay the costs of the Trade Practices Commission of and incidental to the motion for joinder, to be taxed.

I certify that this and the five ( 5 )

preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Cooper.

Date: 11 November, 1992

Associate

Counsel for the Applicant:	G.A. Thompson Q.C.
Solicitors for the Applicant:	Clarke & Kann
Counsel for the Respondent:	C.A. Sweeney Q.C., P. Morrison Q.C. and P. O'Shea
Solicitors for the Resopndent:	Allen Allen L Hemsley
Hearing Date:	4 November, 1992, Brisbane.