Australian Competition and Consumer Commission v Westfield Shopping Centre Management Co (Qld) Pty Limited

[2003] FCA 744

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Westfield Shopping Centre Management Co (Qld) Pty Limited [2003] FCA 744

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v WESTFIELD SHOPPING CENTRE MANAGEMENT CO (QLD) PTY LIMITED (ACN 010 310 059), WESTFIELD MANAGEMENT LTD (ACN 001 670 579), WESTFIELD DESIGN AND CONSTRUCTION PTY LTD (ACN 000 265 267), JUDY HALL and LUBO BARANOVIC
Q228 OF 2001

KIEFEL J
30 JULY 2003
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q228 OF 2001

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

WESTFIELD SHOPPING CENTRE MANAGEMENT CO (QLD) PTY LIMITED (ACN 010 310 059)
FIRST RESPONDENT

WESTFIELD MANAGEMENT LTD (ACN 001 670 579)
SECOND RESPONDENT

WESTFIELD DESIGN AND CONSTRUCTION PTY LTD (ACN 000 265 267)
THIRD RESPONDENT

JUDY HALL
FOURTH RESPONDENT

LUBO BARANOVIC
FIFTH RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

30 JULY 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The parties attend for the purpose of mediation of all issues in the proceedings and report to the Court forthwith of the outcome of the mediation. 

THE COURT FURTHER ORDERS THAT:

2.Each party’s accounting experts discuss the question of the extent of the dispute between them prior to the mediation.

3.By consent, the time for compliance with Order 3 of the orders made on 29 October 2002 be extended until 8 August 2003.

4.The costs of the motion be the parties costs in the proceedings

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q228 OF 2001

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

WESTFIELD SHOPPING CENTRE MANAGEMENT CO (QLD) PTY LIMITED (ACN 010 310 059)
FIRST RESPONDENT

WESTFIELD MANAGEMENT LTD (ACN 001 670 579)
SECOND RESPONDENT

WESTFIELD DESIGN AND CONSTRUCTION PTY LTD (ACN 000 265 267)
THIRD RESPONDENT

JUDY HALL
FOURTH RESPONDENT

LUBO BARANOVIC
FIFTH RESPONDENT

JUDGE:	KIEFEL J
DATE:	30 JULY 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Some of my reasoning will be apparent from discussion with counsel, but perhaps it is not clear. 

2. The issue of quantum in these proceedings is part of the proceedings, in my view, for the purposes of s 53A of the Federal Court of Australia Act1976 (Cth). On the respondent’s case, the quantum of their offer with respect to the release and arrears of debt goes to the very question as to whether their conduct was, in the circumstances, unconscionable. I would add that even if it were relevant only to the foreshadowed s 87(1B) (Trade Practices Act 1974 (Cth)) claim, in my view, it is part of the proceedings or sufficiently connected with them, for the purposes of s 53A.

3. The words ‘the proceedings’ in that section are likely to have been intended to have a wide meaning given the subject and purpose of the section.  It is not likely that ‘the proceedings’ is to be limited to existing causes of action.  It would extend to those which a party would be entitled to bring upon particular findings being made in ‘the proceedings’. 

4. It is noteworthy that, in these proceedings, it is not the case of a mere possibility of such a claim being raised. It forms part of the application and the orders sought and the ACCC confirms that it will not resile from this course so long as it achieves a finding of contravention. The discretion given under s 53A should therefore not be exercised against the making of such an order on the basis that it is speculative which is, I think, how some cases which invoke s 87(1B) might be viewed.

5. This case calls out for mediation on all issues.  The ACCC is clearly determined to pursue findings and orders concerning the conduct of the respondents.  Whilst I would apprehend that the respondents’ principal concern may be the unconscionability case, it is not the only basis for compromise.  There are alternative causes of action to which the parties might address themselves.  In any event, it seems to me that in what seems to be a relatively unusual claim for unconscionability, that very fact should require the parties to come to the table. 

6. The respondents have to date focused principally, if not solely, on quantum as the basis for the mediation, but appear to be desirous of achieving a resolution of the proceedings.  As I have said, I am not satisfied that there is no prospect for some accommodation which might be achieved through mediation.  Even if it were effective only to remove the issue of quantum, which of its nature is more likely to be the subject of a compromise in mediation, it will save some not insignificant costs.  But as I have said the principle reason for ordering mediation is the strong impression I have gained that both parties need to be placed in a position where all issues are discussed.  In these circumstances, I propose to make a general order for mediation.

7. Having regard to the wider order that I have made, I would propose making no order as to costs leaving each party to bear their own or alternatively to make them each parties’ costs in the proceedings, but I will hear counsel as to the form of order and as to costs.

8. My orders will be that the parties attend for the purpose of mediation of all issues in the proceedings and report to the Court forthwith of the outcome of the mediation.  I further order that each party’s accounting experts discuss the question of the extent of the dispute between them prior to the mediation, and order that the costs of this motion be the parties’ costs in the proceedings.

9. The parties are agreed that the time for compliance with Order 3 of the orders made on 29 October 2002 be extended until 8 August 2003.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:            14 August 2003

Counsel for the Applicant:	Mr P O’Shea SC
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr I Jackman SC
Solicitor for the Respondent:	Speed & Stracey
Date of Hearing:	30 July 2003
Date of Judgment:	30 July 2003