Burgess v Neilsen Television Audience Measurement Pty Ltd
[2013] FCA 271
FEDERAL COURT OF AUSTRALIA
Burgess v Neilsen Television Audience Measurement Pty Ltd [2013] FCA 271
Citation: Burgess v Neilsen Television Audience Measurement Pty Ltd [2013] FCA 271 Parties: CHRISTOPHER IAN BURGESS v NEILSEN TELEVISION AUDIENCE MEASUREMENT PTY LTD ACN 089 686 500 File number(s): NSD 1247 of 2011 Judge: JAGOT J Date of judgment: 22 March 2013 Catchwords: PRACTICE AND PROCEDURE – leave to file expert report – weighing of discretionary factors - prejudice Date of hearing: 22 March 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Solicitor for the Applicant: Capital Lawyers Solicitor for the Respondent: Banki Haddock Fiora Counsel for the Applicant: A G Martin Counsel for the Respondent: M Hall
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1247 of 2011
BETWEEN: CHRISTOPHER IAN BURGESS
ApplicantAND: NEILSEN TELEVISION AUDIENCE MEASUREMENT PTY LTD ACN 089 686 500
Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
22 MARCH 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant be granted leave to file and serve the expert report of Mr Jeremy Tuston, dated February 2013.
2.The applicant be granted leave to file and serve the third amended statement of claim as annexed to the interlocutory application dated 14 March 2013.
3.The applicant pay the respondent’s costs thrown away by reason of the grant of leave to the application to file and serve the third amended statement of claim as agree or taxed.
4.The applicant pay the respondent’s costs of the interlocutory application filed on 14 March 2013 payable forthwith as agreed or taxed and such costs may be taxed forthwith if not agreed.
5.The applicant pay the respondent’s costs as additionally incurred by reason of the delay in the filing and service of the report of my Jeremy Tusten.
6.The directions hearing on 28 March 2013 be vacated.
7.The matter be listed for directions at 9:30am on 2 April 2013.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1247 of 2011
BETWEEN: CHRISTOPHER IAN BURGESS
ApplicantAND: NEILSEN TELEVISION AUDIENCE MEASUREMENT PTY LTD ACN 089 686 500
Respondent
JUDGE:
JAGOT J
DATE:
22 MARCH 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This is an interlocutory application filed on 14 March 2013 to the effect that the applicant be granted leave to file and serve the expert report of Mr Jeremy Tuston, dated February 2013. In addition, another order is sought that the applicant be granted leave to file and serve the third amended statement of claim, as annexed to the interlocutory application. It appears that the resolution of any issue about the third amended statement of claim depends upon the question whether leave is granted to the applicant to file and serve the expert report of Mr Tuston and, accordingly, I invited the parties to address me first on that issue.
Mr Tuston’s report was provided to the respondent on 1 February 2013. The report provides what is said to be an expert opinion by Mr Tuston in relation to the issues of the relevant market, the basis and extent of the respondent’s power in that market, and the competition in that market, including between the applicant and the respondent. Its purpose is to support allegations which have been part of the applicant’s case from the outset in relation to alleged misuse of market power.
Consideration of the procedural history
The resolution of this interlocutory application is not an easy discretionary exercise. The reason for this is that these proceedings were commenced in 2011. I first made directions for the applicant to file and serve expert evidence on 14 February 2012 and this required any such expert evidence to be filed and served by 28 March 2012. However, no expert evidence was served by the applicant.
As the respondent submitted, I repeatedly extended the time for the filing of both lay and expert affidavits by the applicant until August 2012. On 14 August 2012, I granted leave to the applicant to rely upon certain affidavits. I otherwise made orders that any expert report be filed and served by 31 August 2012. What occurred is that by the time the applicant purportedly completed his evidence, no expert report had been filed and served capable of supporting the alleged misuse of market power claims. As a result, on 18 September 2012, the solicitors for the respondent wrote to the solicitors for the applicant, noting that fact and stating that, accordingly, this cause of action had to fail. The respondent’s solicitors invited the applicant to file an amended statement of claim that excised the paragraphs alleging misuse of market power from the statement of claim.
On 1 October 2012, the solicitor for the applicant notified the solicitor for the respondent that he had been instructed to obtain an expert economic report dealing with the alleged misuse of market power. However, the solicitor for the applicant expressed the view that it was appropriate that neither party obtain such expert evidence until all lay evidence which would provide the basis for the expert’s consideration of the issues was filed and served. On 2 October 2012, the solicitor for the respondent replied and, relevantly, said that the proposal for the filing and service of the respondent’s lay evidence before the applicant obtained an expert economic report relating to the alleged misuse of market power would be opposed.
The matter came before me first on 5 October 2012, at which time orders were made listing the matter for a further hearing on 17, which later changed to 18 October 2012, to deal with a number of issues, including the applicant’s application for leave to rely upon three further affidavits and a different expert report and the question of what timetable should be imposed for the expert economic report that the applicant had foreshadowed. On 18 October 2012 I did not make any order as sought by the applicant. Instead, it was left to the applicant to file and serve any interlocutory application seeking leave to rely upon any further expert report.
I did, however, grant leave to the applicant to rely upon two affidavits and an expert report, all subject to any later objection as to admissibility. At the same time, on 18 October 2012, I made the first direction for the respondent to file and serve its affidavit evidence by 19 December 2012. The respondent was not able to comply with that order and on 25 January 2013, I extended the time for the respondent to file and serve its evidence until 25 February 2013 and then, on 6 March 2013, I granted the respondent a further extension of time in relation to some remaining affidavits, requiring them to be filed and served by 28 March 2012. At the same time as this was occurring, I also, on 25 January 2013, granted the applicant yet further leave to file an affidavit of a Mr Hutchinson, which was sworn on 30 October 2012.
Discretionary considerations
Accordingly, leaving aside the expert report which is before me today, the applicant’s evidence in this matter, all of which was required to be filed and served by 28 March 2012, has come in dribs and drabs over many months, with the final affidavit not having arrived until about 30 October 2012, followed, of course, by this report, which was served on 1 February 2013. In other words, from beginning to end, the applicant’s evidence has taken about 11 months over and above the original timetable to be completed.
The respondent, however, has also engaged in delay. Its delay is of much less order than that of the applicant, the delay from 19 December to 28 March being more in the order of three months, in contrast to the 11 months which the applicant has taken. There is no doubt that the applicant’s delay in this case has been extraordinary and has prevented the matter progressing and being fixed for hearing. Equally, there is no doubt that if I give leave to rely upon this further expert report, there will be yet further delay which, based on the history of this matter, is likely to be not insignificant, measured in the order of months rather than weeks.
Against that, I have to weigh the fact that without expert evidence in relation to the misuse of market power claims, the claims must be doomed to fail, as set out in the initial letter, triggering the events outlined by the respondent’s solicitor on 18 September 2012. I should say, in case it be thought otherwise, that I consider it entirely appropriate for the respondent’s solicitor to have written the letter of 18 September 2012.
What I am told today is that the applicant’s failure to file and serve any expert evidence relating to its claims of misuse of market power involved an oversight. It is difficult to understand how such an oversight might have occurred but I am not in a position, on the evidence, to do other than accept that it was an oversight. If so, it was an extremely large oversight and, as I have said, is difficult to understand.
The applicant effectively relies upon the importance of the report to his case as the reason why yet a further indulgence should be granted to him, as sought. For its part, the respondent opposes the application for leave, both because of the extraordinary length of the delay but also for three other reasons, which I should briefly consider.
The first of those reasons is that the lay evidence that the respondent has prepared and is continuing to prepare, due within the next few days, does not address the factual assumptions that underpin Mr Tuston’s report. Accordingly, the respondent anticipates and I accept that further lay evidence from them will be required and it appears that such additional evidence will also be required from some of the same witnesses who have already sworn affidavits.
In this sense, the respondent will be likely to incur additional costs that it would not otherwise have incurred had the applicant acted in a timely manner, because the respondent will have to revisit the same witnesses to take further affidavits from them when, had the applicant acted more quickly, the same evidence could have been obtained in relation to all issues in one session. There will be a costs prejudice to the respondent in this regard and indeed, it is difficult to know whether any order could even be meaningfully formulated which would enable such additional costs to be identified and paid by the applicant to the respondent. That additional cost, accordingly, may well be a form of irremediable prejudice that the respondent will suffer by the grant of leave.
Otherwise, I accept that, as a general principle, the additional costs which would come from obtaining any expert report and any affidavits from lay witnesses who have not otherwise given evidence is not a cost occasioned by reason of the delay because even if Mr Tuston’s report had been filed and served in a more timely manner, the respondent would still have incurred those costs. Accordingly, subject to the second matter to which I will refer, the incurring of those costs does not weigh in the balance as to the exercise of this discretion.
However, in the present case, the second matter which the respondent raises, somewhat unusually, is that there is a question over the capacity of the applicant to meet any ultimate costs order. In circumstances where the respondent will be put to significant expense by the grant of leave, consideration should be had to the fact that any order of costs thrown away by reason of the grant of leave or indeed, for the ultimate costs of trial should the respondent succeed and the applicant fail, may well not be able to be met by the applicant. This is said to be based upon correspondence in which the parties engaged when there was an issue about possible application for security for costs, in which it appeared to the solicitors for the respondent that the applicant was unlikely to have sufficient assets to meet a costs order against him. The difficulty with this submission, assuming I accept that the applicant may not have the financial wherewithal to meet any substantial costs order, is two-fold. The first aspect of the difficulty is that if the evidence had been filed and served in a timely manner, then this issue could not have been relevant to the capacity of the applicant to rely upon it; in other words, it is difficult to accept that this is an issue bearing upon the respondent by reason of the real issue of the applicant’s delay.
The second aspect that makes it difficult to give weight to this consideration is that it is a matter for the respondent to determine what application it makes, if any, for orders for security for costs. The respondent is not excluded from seeking any such further order, particularly not if circumstances change and it may be that the grant of leave will constitute such a relevant change of circumstances.
The third issue on which the applicant relies, again somewhat unusually, is that the respondent says that I can be satisfied, without entering into factual issues that will have to be resolved at trial, that Mr Tuston’s report is likely not to have substantial probative value in the proceedings. This is said to be apparent from the fact that Mr Tuston, in his report, treats as one and the same or interchangeable, the respondent and the company known as RTAM, which was constituted by the regional television providers. This is also said to be apparent from the fact or example that Mr Tuston refers to the respondent having given an undertaking to the Australian Competition and Consumer Commission about the provision of data when exhibit 2, which was tendered on the interlocutory application, makes plain that the undertaking which was provided was by a party called Austam Pty Ltd, whom I understand has no connection, at least in a corporate sense, to the respondent.
The difficulty with trying to give weight to this issue is my current lack of understanding of not only Mr Tuston’s report but the industry in question. I am simply not in a position to work out whether the factual assumptions that Mr Tuston makes are incorrect or unable to be supported, ultimately, at trial and thus I do not feel I can give this factor any weight.
This leaves me with the situation that, while I can make an order for costs thrown away by reason of the late service, such costs may well be difficult, if not impossible, to quantify and if that is so, there will be irremediable prejudice to that extent to the respondent. There will also be irremediable prejudice to the respondent by reason of further delay of these proceedings, which, as I have said, I suspect will be measured in months and not weeks. Against that, I have to weigh the fact that if this evidence is not permitted to be relied on at all, then on an issue of practice and procedure, I will have denied the applicant any possibility of succeeding on this part of the claim with the inevitable result that this part of the claim will not be able to be prosecuted at all by the applicant. Furthermore, although there has been extraordinary delay by the applicant, there has also been delay by the respondent which, itself, is measured in terms of months rather than weeks, albeit as I have said, only three months as compared to the applicant’s delay of 11 months.
Conclusion
Weighing up the result that should occur as a discretionary exercise, in the circumstances of this case, is not which one which I find easy to resolve. Ultimately, however, I consider that the prejudice to the applicant will so substantially outweigh the prejudice to the respondent that it would be contrary to interests of justice to deny the applicant the leave which is sought. However, it seems to me that in the extraordinary circumstances of this application, the applicant would have had to persuade me, irrespective of any consent or indifference by the respondent, to grant the application.
This is significant because I certainly do not think that there should be any order for costs in favour of the applicant and indeed, my present inclination would be to the contrary; that is, to order the applicant to pay the costs of the respondent of the interlocutory application and of costs thrown away or additional costs incurred by reason of the delay in filing and serving the report of Mr Tuston. I would be minded to consider an application that such costs be taxed and payable forthwith.
I make the following orders:
1.The applicant be granted leave to file and serve the expert report of Mr Jeremy Tuston, dated February 2013.
2.The applicant be granted leave to file and serve the third amended statement of claim as annexed to the interlocutory application dated 14 March 2013.
3.The applicant pay the respondent’s costs thrown away by reason of the grant of leave to the application to file and serve the third amended statement of claim as agree or taxed.
4.The applicant pay the respondent’s costs of the interlocutory application filed on 14 March 2013 payable forthwith as agreed or taxed and such costs may be taxed forthwith if not agreed.
5.The applicant pay the respondent’s costs as additionally incurred by reason of the delay in the filing and service of the report of my Jeremy Tusten.
6.The directions hearing on 28 March 2013 be vacated.
7.The matter be listed for directions at 9:30am on 2 April 2013.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 22 March 2013
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