Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (formerly known as Concrete Constructions (NSW) Pty Ltd)

[1998] FCA 923

FEDERAL COURT OF AUSTRALIA

EVIDENCE – hearsay – notices of intention to adduce evidence of previous representation – whether it would cause undue expense or undue delay or would not be reasonably practicable to call makers of previous representations to give evidence – notices attached lengthy transcripts of evidence given to a Royal Commission and in examinations under s 155 of Trade Practices Act 1974 (Cth) and, in one case, lengthy statements, without identifying any particular representations – whether notices sufficiently stated substance of evidence of previous representations sought to be adduced – whether notices sufficiently stated substance of all other relevant representations made by the persons who made those previous representations, so far as they were known to the notifying party.

Evidence Act 1995 (Cth) ss 64, 67
Evidence Regulations (Cth) reg 5

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v CC (NEW SOUTH WALES) PTY LTD (FORMERLY KNOWN AS CONCRETE CONSTRUCTIONS (NSW) PTY LTD)

NG 574 of 1994

LINDGREN J
SYDNEY
29 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 574 of 1994

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	CC (NEW SOUTH WALES) PTY LTD (FORMERLY KNOWN AS CONCRETE CONSTRUCTIONS (NSW) PTY LTD) FIRST RESPONDENT
PETER WOOLLARD SECOND RESPONDENT
HOLLAND STOLTE PTY LIMITED THIRD RESPONDENT
GRAHAM RONALD DUFF FOURTH RESPONDENT
MULTIPLEX CONSTRUCTIONS PTY LIMITED FIFTH RESPONDENT
GEOFFREY THOMAS PALMER SIXTH RESPONDENT
LEIGHTON CONTRACTORS PTY LIMITED SEVENTH RESPONDENT
LEONARD DIXON EIGHTH RESPONDENT
THE AUSTRALIAN FEDERATION OF CONSTRUCTION CONTRACTORS NINTH RESPONDENT
RUSSELL NORMAN RICHMOND TENTH RESPONDENT

JUDGE:	LINDGREN J
DATE:	29 JULY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

I am called upon to give a ruling in relation to certain notices purportedly given under s 67 of the Evidence Act 1995 (Cth) (“the Evidence Act”).

The case as pleaded

The nature of the case brought by the then Trade Practices Commission (I will use the abbreviations “TPC” and “ACCC”) appears in an amended statement of claim filed on 17 November 1994. 

There are 10 respondents: five are bodies corporate and the other five are natural persons.  The natural person whose name follows the name of a corporate respondent in the title to the proceeding above is a person who is said to have represented that corporate respondent in the course of the events which gave rise to the proceeding.  If and where necessary, I will refer to the respective corporate respondents as “Concretes”, “Hollands”, “Multiplex”, “Leightons” and “the AFCC”, and to their respective representatives as “Woollard”, “Duff”, “Palmer”, “Dixon” and “Richmond”.

The following is an account of the background events as pleaded and therefore includes no finding of fact.

Concretes, Hollands, Multiplex and Leightons were in competition in the market for the supply of construction services for major construction projects.  The AFCC was an association of such construction contractors.  At all material times, Concretes, Hollands, Multiplex and Leightons were members of the AFCC. The case relates to a particular project for the construction of Commonwealth Offices at Haymarket, Sydney (“the Haymarket project”).

On or about 11 August 1988, Australian Construction Services (“the ACS”), a part of the Commonwealth Department of Administrative Services, invited Concretes, Hollands, Multiplex and Leightons to submit tenders for the Haymarket project.  In or about September or October 1988, a Mr John Cunningham (“Cunningham”), Director of Special Projects with the AFCC, for and on behalf of the AFCC, and pursuant to a direction of Richmond, contacted the four intending tenderers and convened a meeting of them.

The meeting took place at the office of the AFCC at St Leonards and was attended by Cunningham of the AFCC, Woollard of Concretes, Duff of Hollands, Palmer of Multiplex and Dixon of Leightons.  The meeting was divided into two parts.  Cunningham was present only for the first part.  In the first part, an arrangement was made pursuant to which the successful tenderer was to pay a “Special Fee” to the AFCC and all four tenderers would take this arrangement into account in arriving at the amounts of their respective tenders.

After Cunningham left the meeting, Woollard, Duff, Palmer and Dixon agreed that Concretes, Hollands, Multiplex and Leightons would also include in their respective tenders an allowance for payment of an “Unsuccessful Tenderer’s Fee”of $750,000 to each of the three unsuccessful tenderers.  The case seems to be, therefore, that as a result of the arrangement, each of the four tender amounts would be $3,250,000 greater than it would otherwise have been.

The ACCC seeks pecuniary penalties under s 76 of the Trade Practices Act 1974 (“the TP Act”) for contraventions of s 45 of that Act. I need not discuss the ways in which the contraventions are pleaded. The contraventions can be conveniently conceived of as “collusive tendering”.

The only respondent remaining is Concretes. The ACCC’s case against Concretes is fixed for hearing for four days commencing on Monday, 31 August. At a recent directions hearing when the course of the hearing and the likely time to be occupied by it were under discussion, the question arose whether in accordance with certain notices given by the ACCC purportedly pursuant to s 67 of the Evidence Act, the hearsay rule would not apply to certain representations to be found in documents annexed to those notices. It was suggested, depending upon the answer to that question, that the time to be occupied by the hearing would be longer or shorter, and that the four days set aside might or might not be adequate. Accordingly, it seemed desirable that a ruling on this question be given without delay.

Background

Before coming to the notices and the submissions in relation to them, I should say a little more about the history of the litigation and earlier events. In May to June, 1991, evidence was given by various people to the Royal Commission into Productivity in the Building Industry in New South Wales (“the Royal Commission”). One such person was Woollard. Woollard’s evidence was transcribed. That transcript is annexed to one of the s 67 notices.

In June and July 1993, the TPC examined Woollard, one Robert Arthur Rogan (“Rogan”) of Multiplex and one Arthur Harry Shead (“Shead”) of Hollands, pursuant to s 155 of the TP Act. In each case, what was said was transcribed. The transcripts are annexed to the s 67 notices.

In June and August 1994, the TPC interviewed Woollard and obtained a signed statement from him about the Haymarket project in return to an undertaking not to proceed against him.  This arrangement was the subject of a judgment of Hill J in Trade Practices Commission v CC (NSW) Pty Limited (1994) 125 ALR 94.

On 30 August 1994, the present proceeding was commenced by the filing of an application and statement of claim.

Hill J stayed the proceeding as against Woollard.  As a result of agreements reached, penalties have been imposed on all other respondents except Concretes.

On 16 October 1997, I gave directions for the filing of affidavits by the ACCC.  By 5 February 1998, it had filed and served three affidavits.  On that day, the proceeding as against Concretes was fixed for hearing.

The three notices purportedly under s 67 of the Evidence Act

The three notices are not dated but were given by the ACCC on 10 July 1998. One notice relates to Woollard. Attachment One to that notice comprises 68 pages and annexures, and records the TPC’s examination of Woollard pursuant to s 155 of the TP Act. Attachment Two comprises 231 pages of transcript of the evidence given by Woollard to the Royal Commission. Attachment Three comprises a 66 page statement dated 24 May 1991 signed by Woollard. Attachment Four is a supplementary statement by Woollard dated 4 June 1991 of 31 pages plus annexures.

The s 67 notice relating to Rogan attaches 13 pages of the transcript of his examination under s 155 of the TP Act. The s 67 notice relating to Shead attaches 54 pages of the transcript of his examination under s 155 plus annexures.

Although the three notices differ in certain respects, they are broadly similar in respects relevant to the present ruling. In each case the notice is said to be given pursuant to par 64 (2) (b) of the Evidence Act. In summary, the representations as to asserted facts which the ACCC will wish to have admitted into evidence comprise representations made by Woollard, Rogan and Shead recorded in the transcripts or statements, as the case may be, annexed to the notices. Importantly, however, the notices do not identify the particular representations.

The notices claim that it would cause undue expense or undue delay or, in the case of Woollard, would not be reasonably practicable to call the witness in question (Woollard, Rogan or Shead) to give evidence and the notices purport to set out reasons for this.  The notice relating to Woollard gives the following facts in support:

“(i)he is a Respondent to the proceedings;

(ii)the solicitors on record as representing Mr Woollard are the solicitors on record as representing the First Respondent [Concretes];

(iii)he is a former director of the First Respondent who was at the relevant times responsible for the costs estimating activities of the First Respondent; and

(iv)the evidence which would be sought to be adduced by calling Mr Woollard has already been adduced and transcribed in written form.”

(In the course of the hearing, it was stated that, following the judgment of Hill J referred to earlier, Woollard and Concretes ceased to be represented by the same solicitor.)

In the case of Rogan and Shead, it is not, of course, claimed that either of them is a respondent, and accordingly facts (i) and (ii) referred to in the Woollard notice do not have counterparts in the notices relating to them.  However, the facts stated are broadly similar to facts (iii) and (iv) of the Woollard notice.

The legislation

Division 1 (ss 59 – 61) headed “The Hearsay Rule” and Division 2 (ss 62 – 68) headed “‘First-hand’ Hearsay” of Part 3.2 of the Evidence Act and that Act’s Dictionary (adopted by s 3 of the Act) are of present importance. Section 59 provides, relevantly, that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation and that such a fact is referred to in Part 3.2 as an “asserted fact”. The rule of non-admissibility to which I have just referred is the “hearsay rule” according to the Act’s Dictionary. Section 62 provides that a reference in Division 2 to a “previous representation” is a reference to a previous representation that was made by a person who had “personal knowledge of an asserted fact”. Relevantly, for present purposes, we are to consider facts which Messrs Woollard, Rogan and Shead respectively, intended to assert by their words recorded in the documents annexed to the s 67 notices, of which they had personal knowledge.

Sections 64 and 67 of the Evidence Act are central to the present issue. Subsections 64 (1) and (2) are as follows:

“64  (1)          This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2)         The hearsay rule does not apply to:

(a)        oral evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b)        a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;

if it would cause undue expense or undue delay, or would not be reasonably
practicable, to call the person who made the representation to give evidence.”

Subsections 67 (1) to (4) are as follows:

“67 (1)           Subsection … 64(2) … do[es] not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.

(2)       Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.

(3)       The notice must state:

(a)       the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and

(b)       if subsection 64(2) is such a provision - the grounds, specified in that provision, on which the party intends to rely.

(4)       Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.”

Section 68 provides that in a civil proceeding, if a notice under s 67 discloses that it is not intended to call the person who made the previous representation concerned because it would cause undue expense or delay or would not be reasonably practicable, a party may, not later than 21 days after notice has been given, object to the tender of the evidence or a specified part of the evidence, and the objection is to be made by giving to each other party a written notice setting out the grounds on which the objection is made. It is provided that the court may, on the application of a party, determine the objection at or before the hearing.

Since the notices were served as recently as 10 July, the period of 21 days has not yet expired.  The hearing has proceeded on the basis, common to the parties, that Concretes’ objections have been sufficiently notified for the purposes of this hearing. 

It remains to note the provisions of reg 5 of the Evidence Regulations (Cth) and O 33 r 16 of the Federal Court Rules. It will be recalled that subs 67 (2) provides that notices given under subs 67 (1) are to be given in accordance with any regulations or rules of court made for the purposes of s 67. Sub-regulations 5 (1), (2) (a) and (b), (4) and (6) provide as follows:

“5 (1)  This regulation is made for the purpose of section 67 of the Act.

(2)A notice of previous representation must state:

(a)       subject to subregulation (6), the substance of evidence of a previous representation that the notifying party intends to adduce; and

(b)       the substance of all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party; and

.…

(4)If a notifying party intends to rely on paragraph 64 (2) (a) or (b) of the Act, the party's notice of previous representation must state particulars of the facts that the party will rely on to establish the grounds specified in subsection 64 (2) of the Act.

….

(6)Where a copy of a document, or of a portion of a document, is attached to a notice it is a sufficient compliance for the purposes of paragraph (2)(a) to specify in the notice, or in the copy of a document or portion of a document attached to the notice, the representation evidence of which the notifying party intends to adduce.”

Although O 33 r 16 was not the subject of submissions, I note that it provides that a notice of intention to adduce evidence of a previous representation must be in accordance with Federal Court Form 144.  At the risk of some inaccuracy, it can be said that Form 144 is designed to provide in specific terms for notification of the matters referred to in Evidence Regulation 5.

There is power in subs 67 (4), even where a notice has not been given in accordance with subs 67 (1), to direct that, relevantly, subs 64 (2) is to apply, that is, that subs 64 (2)’s exclusion of the hearsay rule is to apply. Similarly, the Court can dispense with compliance with O 33 r 16.

Ruling and reasons

I will not attempt to summarise the helpful submissions which have been made but will proceed immediately to give my ruling and the reasons for it. Subsection 64 (2) operates of its own force in the circumstances described: the hearsay rule does not apply to a document of the kind described in subs 64 (2), so far as it contains the relevant representation:

“..... if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.”

Notwithstanding the statements in the notices that it would not be reasonably practicable to call them to give evidence, the ACCC does intend to call Messrs Woollard, Rogan and Shead so that they will be available for cross-examination on behalf of Concretes. The ACCC’s case is that, having regard to the lengthy detailed records of what those persons have previously said, in the case of the s 155 and Royal Commission transcripts, under oath, it would cause undue expense or delay to require them, in effect, to give their evidence afresh in the ordinary way.

I do not think that it would. In fact, the content of the documents annexed to the s 67 notices is so voluminous and multifarious, that the course proposed would itself, in my view, cause “undue expense” and “undue delay”.

On any reckoning, there is a considerable amount of material in the documents annexed to the s 67 notices that is not, quite apart from the hearsay question, in proper form, or is irrelevant or otherwise objectionable. In this regard, and by way of explanatory background, it is noteworthy that the rules of evidence were not attracted by the circumstances in which the utterances recorded in any of those documents were made. The documents contain very much that is not in the nature of a representation by Woollard, Rogan or Shead of facts (a) which they intended to assert by the representation; (b) of which they had personal knowledge; and (c) which are relevant to an issue in the present proceeding.

A very considerable amount of time on the hearing would be occupied with rulings on objections in relation to the contents of the documents annexed to the s 67 notices. No doubt, ultimately representations properly admissible as exceptions to the hearsay rule would be identified. This process would unduly delay the hearing and would be unduly expensive for the parties.

It is resonably practicable to call the three witnesses. The lengthy and detailed transcripts and statements provide the ACCC with a basis for the adducing of relevant evidence from them in proper form.

Because it would not, in my view, cause undue expense or undue delay to require them to give their evidence in the ordinary way, subs 64 (2) is not activated.

In addition, the “formal” requirements of Evidence Regulation 5 (I need not refer to O 33 r 16 of this Court’s Rules) are not complied with, and I would not make a direction under subs 67 (4) for the purpose of overcoming the non-compliance. There are two respects in which, in my view, Regulation 5 is not complied with. First, the notices do not identify the substance of the evidence of the previous representations on which the ACCC intends to rely or which it intends to adduce: it does not satisfy this requirement to identify a lengthy document within which the representation may be found, without identifying the representation and the relevant part of the document. Second, the notices of previous representation do not state the substance of all other relevant representations made by the person who made the previous representation, so far as those other relevant representations are known to the notifying party. Mr Heydon QC, senior counsel for Concretes, also submitted that the notices do not comply with subreg 5 (4) as they do not state particulars of the facts that the ACCC will rely on to establish the grounds specified in subs 64 (2) of the Evidence Act. However, I do not find it necessary to deal with this submission.

The reasons which I have now given relate to the three notices which are before me.  Towards the end of the hearing, senior counsel for the ACCC indicated that, if necessary, his client would identify those representations to be found in the attachments to the three notices which it seeks to have admitted into evidence. 

What I am about to say should not be treated as a ruling on a prospective notice:  I can rule only in relation to a notice that has been given.  I venture the opinion, however, that it may be difficult for the ACCC, even with the identification of particular representations, to demonstrate that it would cause undue expense or undue delay to call the person who made the representations to give the evidence in question.

A question would arise as to the significance of the asserted facts. I presume that they would be necessary to proof of the collusive tendering alleged. There might have to be some debate as to the meaning of “undue” in subs 67 (2) having regard to the nature of the proceeding as one in which a pecuniary penalty, no doubt of a substantial nature, is sought against Concretes. My present impression is that even if only a relatively small number of representations were identified, it would perhaps be difficult to say that the alternative course of requiring the evidence to be given in the usual way would cause “undue” expense or “undue” delay.

Conclusion

I rule that the exclusion to the hearsay rule provided for in par 64 (2) (b) of the Evidence Act 1995 (Cth) does not apply in respect of the three notices given by the applicant to the first respondent on 10 July 1998, purportedly pursuant to s 67 of that Act.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated:             5 August 1998

Counsel for the Applicant:	Mr FM Douglas QC with Mr PR Clay
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr JD Heydon QC with Mr GO’L Reynolds
Solicitor for the Respondent:	Corrs Chambers Westgarth
Date of Hearing:	27, 28 July 1998
Date of Judgment:	29 July 1998