Australian Competition and Consumer Commission v Cathay Pacific Airways Ltd (No 1)

[2012] FCA 784

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Cathay Pacific Airways Ltd (No 1) [2012] FCA 784

Citation:

Australian Competition and Consumer Commission v Cathay Pacific Airways Ltd (No 1) [2012] FCA 784

Parties:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v CATHAY PACIFIC AIRWAYS LTD

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v EMIRATES

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v THAI AIRWAYS INTERNATIONAL PUBLIC COMPANY LIMITED

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AIR NEW ZEALAND LIMITED

File numbers:

NSD 363 of 2009
NSD 876 of 2009

NSD 1213 of 2009
NSD 534 of 2010

Judge:

PERRAM J

Date of judgment:

23 July 2012

Catchwords:

PRACTICE AND PROCEDURE – Discovery – whether discovery of disputed categories should be granted

Date of hearing:

23 July 2012

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

6

Counsel for the Australian Competition and Consumer Commission:

E Collins SC, J Clarke, C Arnott

Solicitor for the Australian Competition and Consumer Commission:

Australian Government Solicitor

Counsel for Cathay Pacific:

A Coleman SC, C Withers

Solicitor for Cathay Pacific:

DLA Piper

Counsel for Emirates:

D Bampton

Solicitor for Emirates:

Allens

Counsel for Thai Airways:

KC Morgan

Solicitor for Thai Airways:

Gilbert + Tobin

Counsel for Air New Zealand:

NJ Owens, RA Yezerski

Solicitor for Air New Zealand:

Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 363 OF 2009

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	CATHAY PACIFIC AIRWAYS LTD Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 876 OF 2009

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	EMIRATES Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1213 OF 2009

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	THAI AIRWAYS INTERNATIONAL PUBLIC COMPANY LIMITED Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 534 OF 2010

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	AIR NEW ZEALAND LIMITED Respondent

JUDGE:	PERRAM J
DATE:	23 JULY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Ruling on Discovery Categories

1. There is an issue in these proceedings as to whether the Hong Kong Civil Aviation Department (‘HKCAD’) mandated and required that airlines levy specifically the surcharge which had been approved by it.  The respondents have already given discovery of documents recording any application to the HKCAD by an airline on its own behalf for approval of a surcharge on the carriage of airfreight from Hong Kong, together with any approval thereof.  The applicant now seeks similar discovery in relation, this time, not to surcharges but instead to tariffs – it being understood, in that context, that surcharges are a subset of tariffs under the Air Services Agreement between Hong Kong and Australia.  There is no direct issue in the present proceeding that tariffs, not being surcharges, are not in issue.  What is also in issue, however, is whether the carriers were obliged to make application collectively through the Board of Airline Representatives, Cargo Cubcommittee on behalf of all members and whether the HKCAD could or was required to fix a specific surcharge. 

2. Mr Huggins QC SC has sworn an affidavit which has been filed in these proceedings in which he articulates the question of his consideration in terms, in part, of tariffs.  For example, Question 1 asked of him was as follows:

   Under the law of Hong Kong, were carriers designated under Air Service Agreements relating to scheduled flights to, from, and through Hong Kong obliged to seek approval from the [HK]CAD for all tariffs (including surcharges)?

   (Emphasis in original.)

   He deals with that matter at [37], and there he said this:

   Hong Kong law required, not only the carrier seek and obtain approval from the [HK]CAD for the levy of tariffs, including surcharges, but that they did so for specific levels of tariffs (including surcharges).

   (Emphasis in original.)

3. Plainly enough, that opinion is couched at the level of tariffs and not merely that of surcharges.  The applicant now wishes to challenge the underlying correctness of Mr Huggins’ report and seeks to do that by reference not only to surcharges but more generally by reference to tariffs.  In that regard, it draws attention to two letters which have been written by the HKCAD respectively to Australia and to the European Community.  These letters are expressed in terms of surcharges and appear to express a clear view that these matters are dealt with in a way which is inconsistent with the applicant’s case.  Ms Collins SC puts that this will be the only or substantially the only material coming forth from the HKCAD in relation to this issue and that she should be entitled to challenge it.

4. Having regard to the breadth with which Mr Huggins’ report is expressed, I think that submission should be accepted, and accordingly, I will permit category 1(a).

5. There are two other categories – categories 5(c) and 5(d).  These also relate directly to the letter to the Australian Government of 28 July 2008 and the letter to the European Commission of 3 September 2009.  It has been made plain by the applicant that, at the trial, the admissibility of those two letters will be in issue, principally because it is said that they may not be business records on account of their having been made in contemplation of litigation.  It is also said against them that being dated in 2008 and 2009 respectively, they come after the period with which the present proceedings are concerned, and to the extent that they do contain clear statements as to what the position of the CAD had been at an earlier time, they are to be seen as being after the event.

6. As an alternative, it is now put by the applicant that if that be not correct, then they – that is, the applicant – should be entitled to explore the circumstances surrounding the two letters, that is, to see whether there may not be in existence documents internal to Cathay Pacific or passing between Cathay Pacific and HKCAD perhaps putting a different light on these matters.  It is far from obvious to me that a great deal is to be gained from either of those letters and less obvious still that the circumstances surrounding those letters up to a month on either side will throw very much more light on it either.  That is not to say that they may not be in some sense relevant.  It just seems to me that the extent of that relevance does not justify the provision of further discovery in respect of it.  So I reject categories 5(a) and 5(d).

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       23 July 2012