Benchmark Certification Pty Ltd v Standards Australia International Ltd - [2004] FCA 1489

FEDERAL COURT OF AUSTRALIA
Benchmark Certification Pty Ltd v Standards Australia International Ltd
[2004] FCA 1489
PRACTICE AND PROCEDURE –Preliminary discovery – O 15A r 6 of Federal Court Rules – application in relation to possible cause of action for misuse of market power – uncertainty as to essential element of cause of action arising from insufficient evidence of possible relevant market – failure to satisfy O 15A r 6 (a)
TRADE AND COMMERCE – Restrictive Trade Practices – Trade Practices Act 1974 (Cth) – Misuse of market power – allegation of statutory monopoly for certification of plumbing standards market – application for preliminary discovery under O 15A r 6 - insufficient evidence to establish relevant market
Federal Court Rules, O 15A r 6
Trade Practices Act 1974 (Cth), ss 4E, 46(2)(a), 45, 45(2)(b)(ii), 45(8), 46, 46(1)(c), 46(2)(a), 46(7), 51(1)(b)(ii), 75B, 80, 82
Trade Marks Act 1995 (Cth), Part 16, ss 170, 173
Sydney Water Act 1994 (NSW), regs 5, 15(2)
Sydney Water Regulation 2000 (NSW), reg 6(2)
Local Government (Approvals) Regulation 1999 (NSW)
Plumbing Regulations 1998 (Vic)
Building Act 1993 (Vic)
Waterworks Regulations 1996 (SA)
Metropolitan Water Supply, Sewerage and Drainage By Laws 1981 (WA), reg 28.6.2(e)
Standard Plumbing and Drainage Regulation 2003 (QLD), reg 30(1)
Water and Sewerage Regulations 2001(ACT), reg 6(2), 18(2)
Water and Sewerage Act 2000 (ACT), s 15(1B)
Report of the Committee of Inquiry into Australia’s Standards and Conformance Infrastructure, March 1995
Alphapharm Pty Ltd v Ely Lilly Australia Pty Ltd [1996] FCA 391 applied
Glowatzki v Insultech Group Pty Ltd & Anor (1998) 39 IPR 215 cited
Mark Lyons Pty Ltd v Bursill Sports Gear Pty Ltd (1987) 76 ALR 581 cited
Regents Pty Ltd v Subaru (Aust) Pty Ltd (1998) 84 FCR 218 cited
Re Queensland Cooperative Milling Association Ltd; Re Defiance Holdings Limited (1976) 25 FLR 169 cited
Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177 cited
Warman International v Envirotech Australia Pty Ltd (1986) 11 FCR 478 cited
Fencott v Muller (1983) 152 CLR 570 applied
Yorke v Lucas (1985) 158 CLR 661 applied
BENCHMARK CERTIFICATION PTY LIMITED v STANDARDS AUSTRALIA INTERNATIONAL LIMITED & ANOR
N297 OF 2004
EMMETT J
17 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N297 OF 2004

BETWEEN:

BENCHMARK CERTIFICATION PTY LIMITED
APPLICANT

AND:

STANDARDS AUSTRALIA INTERNATIONAL LIMITED
FIRST RESPONDENT

SAI GLOBAL LIMITED
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

17 NOVEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.        The application be dismissed.
2.        The applicant pay the respondents’ costs of the application.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N297 OF 2004

BETWEEN:

BENCHMARK CERTIFICATION PTY LIMITED
APPLICANT

AND:

STANDARDS AUSTRALIA INTERNATIONAL LIMITED
FIRST RESPONDENT

SAI GLOBAL LIMITED
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE:

17 NOVEMBER 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

In this proceeding, the applicant, Benchmark…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 1489
Decision Date: 17 NOVEMBER 2004

CaseChat Overview and Summary

Benchmark Certification Pty Ltd was the plaintiff in a case against Standards Australia International Ltd, seeking discovery of documents and relief under the Trade Practices Act. The dispute centred around Benchmark's allegations that Standards Australia had abused its dominant position in the plumbing certification market by not approving Benchmark as a Certifying Body or granting it rights equivalent to those of Global, a current Certifying Body. The Federal Court was tasked with determining whether there was reasonable cause to believe that Standards Australia had contravened section 46 of the Trade Practices Act, and if so, whether an order for discovery should be granted against Global.

The legal issues before the Court were whether there was reasonable cause to believe that Standards Australia had contravened section 46 of the Trade Practices Act and if an order for discovery should be made against Global. The Court had to assess whether Benchmark had a right to relief under the Act, considering the uncertainty around the existence of the relevant market, the nature of the power allegedly abused, and the purpose for which it was exercised. The Court also had to exercise its discretion on whether to make an order for discovery, given the uncertainties surrounding the case.

The Court found that there was considerable uncertainty regarding the existence of the relevant market, the nature of the power that could be abused, and the purpose for which it was exercised. The Court held that there was no certainty as to any of the elements necessary to establish the putative causes of action relied on by Benchmark. Consequently, the Court was not persuaded that there was reasonable cause to believe that Benchmark had a right to relief. Given the uncertainty and the exercise of discretion, the Court concluded that it was not appropriate to make an order for discovery. The application was dismissed with costs.

ORDERS:
1. The application be dismissed.
2. The applicant pay the respondents’ costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondents’ costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EMMETT J

I do not consider that there is reasonable cause to believe that Global has been involved in any conduct on the part of Standards Australia that may have contravened s 46 of the Trade Practices Act. Since there is no reasonable cause to believe that there has been a contravention of s 45, no order for discovery should be made against Global.CONCLUSION It may be that there is some basis for a belief that one of the relevant markets exists, although that question has not been demonstrated with any degree of certainty. It may also be arguable that, in declining to approve Benchmark as a Certifying Body or to grant it rights equivalent to those of Global, Standards Australia is taking advantage of a power in such a market. That is to say, it may be arguable that, in some circumstances, the failure to grant a licence to use intellectual property is a taking advantage of a power that is derived from the existence of that intellectual property. It is the regulatory regimes promulgated pursuant to the NCPDP Scheme that create the advantage enjoyed by Global in the Plumbing Certification Market, assuming such a market exists. Even so, assuming that the failure to approve Benchmark or to grant rights to it is a taking of advantage of a power, there is a real question as to whether there is any basis for believing that the failure to do so was for a purpose prescribed by s 46(1)(c). For the reasons I have indicated above, I consider that there is considerable uncertainty as to each of the elements necessary to establish the putative causes of action relied on by Benchmark as giving rise to a possible right to relief. There is no certainty as to any of the elements. In all the circumstances, I am not persuaded that there is reasonable cause to believe that Benchmark has a right to relief in the Court. Even if there were some basis for conjecturing as to the possibility of a right to relief, I do not consider, in the exercise of discretion, that it is appropriate to make an order for discovery having regard to the uncertainty as to all of the relevant elements on the material presently before the Court. The application should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N297 OF 2004

BETWEEN:	BENCHMARK CERTIFICATION PTY LIMITED APPLICANT
AND:	STANDARDS AUSTRALIA INTERNATIONAL LIMITED FIRST RESPONDENT SAI GLOBAL LIMITED SECOND RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	17 NOVEMBER 2004
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	17 NOVEMBER 2004
PLACE:	SYDNEY