Australian Competition & Consumer Commission v Smartcom Telecommunications Pty Ltd Australian Competition & Consumer Commission v Nationwide News Pty Ltd

[1996] FCA 169

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    Nos. NG 708 & 709  GENERAL DIVISION                  )        of 1995

BETWEEN:     AUSTRALIAN COMPETITION AND
  CONSUMER COMMISSION
  Applicant

and

SMARTCOM TELECOMMUNICATIONS
  PTY LIMITED
  (Matter No NG 708 of 1995
  Respondent

AND          AUSTRALIAN COMPETITION AND
  CONSUMER COMMISSION
  Applicant

and          NATIONWIDE NEWS PTY LIMITED
  (Matter No NG 709 of 1995)
  Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       4 MARCH 1996

REASONS FOR JUDGMENT

TAMBERLIN J

In this matter the Australian Competition and Consumer Commission (the "ACCC") has commenced two sets of separate proceedings for criminal offences pursuant to the Trade Practices Act, ss 53 and 54. The proceedings concern an alleged misrepresentation in respect of an advertisement and a promotion campaign for free mobile phones in the Telegraph Mirror and other media.  An interlocutory application is made at this stage of the proceedings by the ACCC to have the two separately commenced prosecutions heard together.  This application is resisted both by the respondents, Nationwide News Pty Limited ("News") and  Smartcom Telecommunications Pty Limited ("Smartcom"). 

The two proceedings in question are NG 708 and 709 of 1995. 

The relevant principles concerning the holding of joint or separate trials were referred to by Priestley J in R v Oliver, (1984), 57 ALR 543 at 547. His Honour there said:

"Counsel for the appellant submitted that the discretionary factors to be taken into account when deciding whether separate or joint trials should be held are, on the one hand, prejudice to the accused and, on the other hand, the question of the public interest in the efficient dispatch of trials, the conserving of costs and the avoidance of any inconvenience to witnesses by having to attend a number of trials. I myself would add to these matters the desirability of having the various people allegedly concerned in the one crime being all dealt with by the one litigation unless positive injustice would be caused by it." (Emphasis added)

In the present case there are a number of grounds advanced, as to why there should not be a joint hearing of the two matters. The first of these is that in the proceedings against News there are substantially more charges than in the proceedings against Smartcom.   Thus as a matter of practicality  the proceedings against News will be longer as a result of the greater number of charges than in the proceedings against Smartcom.  The difficulty which Smartcom therefore envisages is that it will have to sit through the entire proceedings which will involve many matters in which it is not directly concerned.  This would result in additional costs and administrative problems. 

I do not think that this consideration alone ought to negate the making of an order for a joint hearing.  Multi-party litigation is common in this Court and arrangements can be made between counsel and with the Court for parties to appear at specific stages in the course of the proceeding in order to properly present their case.  It seems to me there is no substance in the argument that as a matter of practicality undue burden will be caused if the matters are heard together.

The second ground raised was that there could be an injustice or at least a perception of injustice as the proceedings against Smartcom might be coloured by the surrounding context and evidence given in relation to the proceedings against News.  It should be borne in mind that the proceedings concern Smartcom only in respect of advertisements published in the Telegraph Mirror on 1 and 2 August whereas the proceedings in relation to Nationwide involve a broader period ranging from 28 July 1994 through to 8 August 1994.

The matter will be heard by a judge and not a jury.  Accordingly, I do not see that there is likely to be any inability to separate the evidence and the issues concerning each of the parties if the matters are heard together.  These cases involving as they do, allegations of misleading conduct or misrepresentation involve a consideration not merely of isolated discrete statements or conduct but of the overall context in which the representations are made or the conduct takes place.  It seems to me from the evidence of which I am presently aware that it may be necessary to look at events beyond the narrow constraints of 1 and 2 August 1995 and to consider the course of the overall promotion campaign.  The time span in both matters is relatively short, involving less than 2 weeks so far as the charges are concerned. There will clearly be a number of common questions of law and a largely common background or context which makes it appropriate for the two matters to be heard together. 

Accordingly, I am of the view that the two proceedings should be consolidated and heard together.  I propose to reserve liberty to apply to the parties in case any further evidence should be filed because at the present stage not all the evidence is in.  If circumstances change to such an extent, as a result of further evidence, that it is appropriate at some future time to consider a further application for a separate trial then the appropriate application may be made.  Accordingly, I order that the two matters be heard together.

With respect to costs I think the appropriate order is that the costs should be reserved.

I certify that this and
the preceding four (4) pages
are a true copy of the
Reasons for Judgment herein
of his Honour Justice Tamberlin.

Associate:

Date:  4 March 1996

Prosecutor:  Mr B Doherty

Solicitor for Applicant:              Director of Public Prosecutions

Counsel for Respondent in
Matter No NG 708/95             Mr M Cashion

Solicitors for Respondent in
Matter No NG 708/95             Richmond & Bennison

Counsel for Respondent in
Matter No NG 709/95             Mr J S Wheelhouse

Solicitors for Respondent in
Matter No NG 709/95             Gallagher De Reszke

Date of Hearing:               4 March 1996

Date Judgment Delivered:              4 March 1996