Australian Competition and Consumer Commission v Cabcharge Australia Ltd

[2010] FCA 731

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Cabcharge Australia Ltd
[2010] FCA 731

Citation:		Australian Competition and Consumer Commission v Cabcharge Australia Ltd [2010] FCA 731
Parties:		AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v CABCHARGE AUSTRALIA LTD
File number:		VID 467 of 2009
Judges:		FINKELSTEIN J
Date of judgment:		14 July 2010
Catchwords:		PRACTICE AND PROCEDURE –transfer of proceedings – whether transfer appropriate
Legislation:		Federal Court of Australia Act 1976 (Cth) s 48 Federal Court Rules O 10 r 1(2)(f)
Date of hearing:	28 May 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	23
Counsel for the Applicant:	Mr D I Star
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr I S Wylie
Solicitor for the Respondent	Pigott Stinson

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 467 of 2009

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	CABCHARGE AUSTRALIA LTD Respondent

JUDGE:	FINKELSTEIN J
DATE OF ORDER:	14 JULY 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The respondent’s motion filed on 16 July 2009 be dismissed.

2.        The respondent pay the applicant’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 467 of 2009

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	CABCHARGE AUSTRALIA LTD Respondent

JUDGE:	FINKELSTEIN J
DATE:	14 JULY 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This action was commenced on 24 June 2009. The applicant, the Australian Competition and Consumer Commission (ACCC), contends that the respondent, Cabcharge Australia Ltd, a publicly listed company, has contravened ss 45 and 46 of the Trade Practices Act 1974 (Cth). It asks for appropriate declaratory relief, the imposition of penalties and a probation order.

2. By motion filed on 16 July 2009, and made returnable at a directions hearing fixed for 25 September 2009, the respondent sought an order that the action be transferred to the New South Wales registry in order for the trial to be held in Sydney. The jurisdiction to make an order of that kind is found in both the s 48 of the Federal Court of Australia Act 1976 (Cth) and O 10 r 1(2)(f) of the Federal Court Rules. The cases which describe how the discretion is exercised under these provisions are so well known they need no recitation and, in any event, the leading cases were referred to in the parties’ submissions.

3. When the venue motion was called on it was not pursued, as appears from the following exchange between myself and counsel who then appeared for the respondent: 

   COUNSEL:                 It is outstanding. It may not be proceeded with.
   HIS HONOUR:  Well, you had better tell me about that sooner rather than later …
   COUNSEL:                I see.  I think probably it won’t be proceeded with but - - -
   HIS HONOUR:  Can you get some instructions about that?
   COUNSEL:                 Yes … I will get back to your Honour as soon as I can.
   HIS HONOUR:  Okay. As long as you don’t forget it.
   COUNSEL:               No, I won’t.

4. Following the hearing neither counsel for the respondent nor its solicitors informed my staff that the respondent wished to proceed with the change of venue application.  It may be assumed (and the ACCC certainly assumed) that the respondent was content for the trial to take place in Melbourne.

5. At the directions hearing the trial was fixed to commence on 4 October 2010 on the basis it would run for four to five weeks.  Other directions of a timetabling nature were made to ensure that the parties would be ready to begin on 4 October. 

6. In the course of preparing its case, the ACCC obtained proofs from over 50 witnesses that it proposes to call to give evidence.  Affidavits have been filed in respect of almost all of them.  The witnesses live in various States.  Nineteen are from New South Wales, 15 from Victoria and the balance, 17, from other states and New Zealand.  The ACCC has gone to a lot of trouble to arrange for its interstate witnesses to be in Melbourne for the hearing.  This involved arranging suitable days for witnesses to be called (ie suitable to both the ACCC and the witnesses), making travel arrangements for the interstate witnesses and organising hotel bookings for them.  As anyone with even a passing familiarity with organising a large trial will appreciate, it is not a simple task to organise such a large body of witnesses.

7. Recently, that is around 21 May 2010, the respondent decided to renew its change of venue application.  What led to the change of mind is not explained.  The decision does coincide with a change of counsel retained to represent the respondent.

8. Whatever the reason, a change of venue will at this late stage involve significant disruption to the ACCC’s trial preparation.  Among other things, the ACCC would be required to cancel the existing travel arrangements for interstate witnesses and make new arrangements for those witnesses that would need to travel to New South Wales.  Not only will this take up valuable time but the ACCC will incur significant costs, many of which could not be recovered by a costs order (such as the cost of management staff).  A change of venue could also cause problems for some of the Victorian witnesses, who would be required to travel interstate.

9. On what basis, then, does the respondent seek to justify this quite significant imposition on the ACCC and, potentially, on witnesses?  Except in one respect, it relies on the usual factors for a change in venue application.  Conveniently those factors can, broadly speaking, be broken into two categories, namely:  (1) those which will save the respondent costs; and (2) those that can be described as factors which connect the dispute to New South Wales. 

10. As to category (1), the most significant factor is that the respondent will call 25 witnesses, 16 of whom live in New South Wales.  Of the other witnesses the respondent proposes to call, 2 are from Victoria and 7 are from other States.  I accept that it will put the respondent to some additional cost to arrange for its Sydney witnesses to travel to Melbourne.  I am also prepared to accept that the costs will be significant.  But the quantum of the costs must be looked at in its context.  That context is:  (a) this is a large piece of litigation in which the parties’ costs are likely to be in the millions of dollars wherever the trial takes place; (b) the stakes are high; (c) the respondent is an ASX listed company operating throughout Australia; (d) the marginal cost of bringing witnesses to Victoria rather than New South Wales will be a relatively small proportion of the overall costs of the trial and an insignificant proportion of the respondent’s operating expenses.  The respondent’s costs must be balanced against the costs that could be incurred by the ACCC if required to reorganise the travel plans of its witnesses.

11. The next factor also concerns witnesses.  Several of them, particularly three or four of the respondent’s senior officers, will be required to give evidence that will take some time and will keep them away from their normal duties.  This problem, it is said, will be exacerbated if the witnesses must add to their time away from work whilst giving evidence, the time it takes to travel to and from Melbourne.

12. Once again this factor has to be considered in its proper context.  First, the key witnesses will be away from their work for some time whether the trial takes place in Melbourne or Sydney.  Second, it is always possible, and often done, for the court to accommodate a witness’  travelling arrangements so that an important witness, or a witness who has limited time available, is not kept waiting.  Witnesses can, and often are, interposed.  Thus, the time away from work is kept to a minimum.  Third, there is a touch of exaggeration as regards the extent to which the additional time key personnel must travel will affect the respondent’s business operations.  Modern technology means that the officers will be accessible by phone and email for all but the short time they will be in the air.  Further, these senior officers are likely to be accustomed to doing business while travelling, especially since Cabcharge has chosen to operate nationally and internationally while not establishing offices outside of Sydney.

13. There is, I accept, a problem with one particular witness.  For personal reasons of a nature which would not be appropriate for me to go into, it would be very difficult, if not impossible, for this witness to leave Sydney, even for a short period.  If the case is to remain in Melbourne I could take her evidence in Sydney at a time that is convenient to the witness.  The respondent makes another point about this witness, which is that given her role in the organisation, it might be desirable for her to be present during the whole of the trial.  That will not be possible in Melbourne or Sydney.  This case is, as should by now be apparent, a heavily contested case where many of the facts are in dispute.  The witness, a key witness for the respondent, is one whose evidence will not go unchallenged.  In the ordinary course she would not be permitted to remain in court until her evidence is completed.  That will occur relatively late in the trial, certainly after the ACCC has closed its case.

14. If the case is heard in Melbourne and if the respondent shows that it would be in the interests of justice to hear other witnesses in Sydney at the time I would travel to Sydney to hear this particular witness, then those other witnesses can be accommodated as well.

15. The next factor, which is one I propose to give little weight to, is that as the respondent is based in Sydney, that is where all its documents are located.  I appreciate that this is a factor mentioned as a relevant one in a number of cases.  In my view, however, it is a factor that is of little or no modern relevance.  First, most if not all documents that will be relied upon have already been exchanged.  Second, on the rare occasion a new document needs to be located during the course of the hearing, appropriate arrangements can be put in place with little or no difficulty.  Most trading organisations, large and small, store their business documents electronically.  With appropriate technology (eg email), it takes only a few seconds to send a document from one location to another, whether that other location is interstate or overseas. 

16. The next factor is the location of the respondent’s solicitors.  They are Sydney based and do not have a Melbourne office.  I accept that this will cause the respondent to pay more by way of legal fees (eg for travelling) than would be the situation if the case were run out of Sydney.  This must be balanced against the location of the applicant’s solicitors.  Although the applicant’s solicitors are a national firm, they are unlikely to transfer the conduct of such a significant piece of litigation from one office to another so close to the trial.  Thus, the respondent’s gain could be the ACCC’s loss.  In any event the additional costs to either party are insignificant in the general scheme of things.

17. As to category (2), there are the following factors.  First, the complaint which gave rise to the ACCC’s initial investigation was made by a Sydney based company, albeit with the knowledge and acceptance of two Victoria based companies.  Second, the relevant decisions of the respondent about which complaint is made were taken in Sydney.  I can put these factors to one side.  Again, notwithstanding the authorities, I regard them as largely irrelevant to the present proceedings.  None make one registry a more suitable or just venue for dealing with this case than another. 

18. The respondent contends that, taking all the factors into account, the interests of justice require a transfer.  In my opinion the opposite is true.  The respondent made a decision not to move for a venue change.  The ACCC acted on that basis and made its arrangements accordingly.  Then the respondent changed its mind.  It puts forward no good explanation for that change.  Whatever the explanation is, it would, in my opinion, impose unreasonable hardship on the ACCC if it were required now to prepare itself for a trial in Sydney.

19. There is one additional point that I should mention.  Under the rubric of its venue application, the respondent raises the spectre of an apprehended bias complaint.  The point comes about in this way.  One of the witnesses that the ACCC will call is Mr Jools, the President of the New South Wales Taxi Drivers Association.  The respondent describes Mr Jools as a “significant witness for the ACCC … whose credit is likely to be in issue”.  I do not accept that Mr Jools is such an important witness.  His affidavit indicates that he will give some general evidence about the taxi industry, most of which is likely to be uncontroversial.  But, for present purposes, I will proceed on the assumption that what the respondent says about Mr Jools is correct.

20. What is the significance of Mr Jools to an apprehended bias complaint?  It comes about because Mr Jools was successful in seeking a review by the Australian Competition Tribunal (a review over which I presided) of a decision by the ACCC refusing to revoke authorisations granted to certain taxi networks to penalise drivers for failing to display credit systems approved by the networks: Jools, President of the New South Wales Taxi Drivers Association (2006) 233 ALR 115. Most networks insisted that the cab drivers display the credit services provided by Cabcharge, being services of the kind the subject of this proceeding.

21. Mr Jools did not give evidence before the Tribunal.  His submissions, however, were accepted.  In addition, in the course of its ruling the Tribunal made certain observations about Cabcharge and its role in the market for the provision of credit processing services to taxicab passengers.  Those observations were made substantially on uncontested facts and related to markets whose dimensions were not in issue.

22. The cases say that for a judge to be disqualified from hearing a particular case, a fair-minded lay observer must reasonably apprehend that the judge might not bring an impartial mind to bear to resolve the issues which the judge is required to resolve.  In this case both parties will lead a considerable amount of evidence from a large body of witnesses on each of the issues which must be resolved.  This is in stark contrast to the proceeding before the Tribunal where none of the facts were substantially in dispute, if they were in dispute at all.  It cannot be said that a fair-minded observer would apprehend that I might not keep an open mind when weighing that evidence because the Tribunal, of which I was a member, made observations based on uncontested evidence and uncontested market analysis.  With great respect to those who press the view, it is I think far fetched.  In this regard I do not lose sight of the fact that where reference is made to the Jools decision, it was only when the respondent (whose counsel made submissions at the Tribunal hearing) filed it skeleton submission on the venue application (ie a year after the case commenced) that it was suggested there might be a problem.

23. The application for a venue change will be dismissed with costs. 

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated:       19 July 2010