Australian Competition and Consumer Commission v J McPhee and Son (Australia) Pty Ltd (No. 4)

[1998] FCA 231

FEDERAL COURT OF AUSTRALIA

TRADE PRACTICES - Part IV Trade Practices Act 1974 (Cth) - finding after two week trial that contraventions occurred - hearing of penalty phase adjourned - application for trial judge to disqualify himself on the ground of misunderstanding of respondents’ case - alternatively on ground of apparent bias - application for rehearing before another judge - alternatively application for adjournment of hearing on penalty hearing pending appeal

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 mentioned

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v J MCPHEE & SONS PTY LTD & ORS (NO 4)
VG 948 of 1995

JUDGE:         HEEREY J
DATE:           13 MARCH 1998
PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 948   of   1995

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

J MCPHEE & SON (AUSTRALIA) PTY LTD
(ACN 001 856 113)
FIRST RESPONDENT

RICHARD FORDE
SECOND RESPONDENT

DOUG MORTON
THIRD RESPONDENT

DAVID CLARKE
FOURTH RESPONDENT

CRAIG HOLLAND
FIFTH RESPONDENT

GUY WEBB
SIXTH RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

13 MARCH 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The respondents’ motion by notice dated 13 March 1998 is dismissed. 

2. The respondents pay the applicants’ costs of the motion. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 948  of 1995

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

J MCPHEE & SON (AUSTRALIA) PTY LTD
(ACN 001 856 113)
FIRST RESPONDENT

RICHARD FORDE
SECOND RESPONDENT

DOUG MORTON
THIRD RESPONDENT

DAVID CLARKE
FOURTH RESPONDENT

CRAIG HOLLAND
FIFTH RESPONDENT

GUY WEBB
SIXTH RESPONDENT

JUDGE:	HEEREY J
DATE:	13 MARCH 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

HEEREY J:
On 26 February 1998, after a two week trial earlier that month, I gave judgment in this matter.  I found that the respondents had committed the contraventions of the Trade Practices Act 1974 (Cth) alleged by the Commission. I adjourned the penalty hearing to a date to be fixed. I directed that within seven days the Commission file and serve submissions and that the respondents file and serve written submission within seven days thereafter. Not long after 26 February, probably within about a week, the penalty hearing was fixed for next Monday, 16 March.

Yesterday afternoon the respondents advised my chambers that they would be bringing this present application.  They have filed today a notice of motion seeking orders that I reopen my judgment and grant a rehearing of the proceeding; that I disqualify myself from taking any further part in the hearing and determination of the proceeding; that (presumably as an alternative) the further hearing and determination of the proceeding on the question of  penalties, costs and other relief be adjourned to a date to be fixed not before the hearing and determination of a notice of motion filed on 5 March, by which the respondents seek leave to appeal from what is described as the interlocutory judgment of 26 February 1998; it is sought that the time for service of the notice of motion be abridged. 

In support of the motion counsel relied on written submissions and affidavits, which I have read. In essence the argument was that my judgment proceeded on a fundamental misunderstanding of the respondents' case.  It was also said that I failed to give natural justice, and there was complaint in particular of the findings in relation to Mr Forde's diary.  It was not suggested that there was actual bias, but rather an appearance of bias.  It was said that, I having made findings of fact adverse to the respondents, should there be any dispute of fact under the penalty phase, there would be an apprehension of bias or a fear that the respondents would not get a fair hearing at that phase.

I will accept, for the purposes of this argument, that there is jurisdiction to make the orders sought (see Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300). However, as counsel properly conceded, it would be an extremely exceptional case were such an order to be made. I do not think this is such an exceptional case.

What counsel for the respondents has argued would provide grounds for appeal, in the event  of an appeal being brought.  It is perhaps an obtrusion of the obvious to say that such matters are properly for an appeal court and not for the trial judge.  Similarly, if there is a trial and a penalty hearing following at a later stage, it is at least highly likely that there will only be occasion to fix penalties if the judge has found, at the earlier liability stage, adversely to the respondents. 

There is no doubt that I did make adverse findings of fact against the respondents and I disbelieved their evidence in large degree.  But given the nature of this case, where there was a stark conflict of fact, it is hard  to see that a trial judge could do other than conclude one way or the other.  The suggestion that the respondents, having lost the issue on the disputed questions of fact, should then have the penalty phase of the hearing put off until they can challenge the findings of fact on appeal would be, to put it mildly, disruptive of the ordinary trial process.  Odder still is the proposal that I order a new trial before another judge.  This would amount to the assumption of appellate jurisdiction by a single judge. 

The notice of motion is dismissed.

There will be an order that the respondents pay the applicants’ costs. 

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:             13 March 1998

Counsel for the Applicant:	J Beach
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for all Respondents:	P R Hayes QC and I D Martindale
Solicitor for all Respondents:	Clayton Utz
Date of Hearing	13 March 1998
Date of Judgment:	13 March 1998