Collector of Customs v Pressure Tanker Pty Ltd and Pazzolanic Enterprises Pty Ltd

[1993] FCA 322

JUDGh4ENT No. ........ ........ .. ........ .... 3aa I I Y ~ ~

IN TFiE FEDERAL COURT OF AUSTRALIA )

1         No. VG 377 of 1992

VICTORI?iN DISTRICT REGISTRY	1 1
GENE= DIVISION	1
B E T W E E N :

TRADE PRACTICES COMMISSION

Applicant

SANTOS LIMITED

First	Respondent	I I
.:'

SAGASCO HOLDINGS LIMITED

Second Respondent

JUDGE :  Heerey J

RECEIVED

m:  12 May 1993

2 0 MAY 1993

PLACE :  Melbourne FEDERAL COURT OF

AUSTRALIA PRINCIPAL REGlSTRY

MINUTES OF ORDERS

THE COURT DIRECTS THAT:	C
. ,

1.	Paragraphs 5,7,8,9 and 10 of the orders made by Ryan J on	I .
26 February 1993 be vacated;	,
i
2.	The first respondent file and serve its answers to the
applicant's request for further particulars of its
amended defence dated 19 April 1993 on or before 5 pm 24	, %
L -
May;	I

I

3. Any party be at liberty to issue subpoenas for the	I.
I

production of documents as that party may be advised, and	i
I
1 ,
i
such subpoenas be returned at the election of the parties	i
issuing same on 15 June;	l

1. Each of the applicant and the second respondents file and

serve statements of the evidence proposed to be educed by 1 !

i
' .,
8 .

witnesses on their behalf on or before 5 pm on 21 July; , i

5 .    The first respondent file and serve statements of the evidence proposed to be adduced by witnesses on its behalf on or before 4 August.

6.  Each of the applicant and second respondents file and serve statements in reply on or before 18 August.

7.  Subject to any order of Ryan J, the trial of the proceeding herein be fixed for hearing on 1 September.

8.   Time for discovery by the applicant is extended to 14 Hay.

9.   The directions hearing is adjourned to 9 July.

10. Costs are reserved.

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

IN THE FEDERAL COURT OF AUSTRATnTA )

1

VICTORIAN DISTRICT REGISTRY	1	No. VG 377 of 1992
)
GENERAL DIVISION	1
B E T W E E N :

TRADE PRACTICES COMHISSION

Applicant

SANTOS LIMITED

First Respondent

SAGASCO HOLDINGS LIMITED

Second Respondent

m:	Heerey J
DATE :	12 May 1993
PLACE :	Melbourne

REASONS FOR JUDGMENT

The Applicant Trade Practices Commission and the second respondent (Sagasco), whose interests are essentially the same, seek directions which will move the trial date from 5 July to some time not yet precisely suggested, but in about early September. The present trial date was fixed, namely 26

April and 1 March.

The reason this further extension is sought is that it is said that the Commission and Sagasco will not be ready to conduct a trial properly if it were to commence on 5 July. The grounds of that assertion are described in considerable detail in an affidavit of Howard Hollow, sworn on behalf of the Commission and Mr Mark Bielecki, sworn on behalf of Sagasco. In substance, these affidavits deal with the very substantial

problems that have arisen over discovery. The total number of documents discovered to date by the parties is approximately 100,000. These have to be listed, discovered, inspected and copied. Numerous contentious issues have arisen over questions of confidentiality and legal professional privilege. Recent events have necessitated further discovery about new issues and particularly the acquisition of assets from AGL. There was also the order that I made recently for continuing discovery. The delay in discovery has, in turn, had its effect on the preparation of witness statements and, in this respect, the Commission says that it faces particular practical problems because the witnesses it seeks are not persons within its control and it has to suit their convenience.

The first respondent (Santos) opposes this application. It points out that the issue has, in reality, been before the Commission since July last year when Santos indicated its desire to purchase the South Australian Government's

shares. Although the Commission initially gave qualified	shareholding in Sagasco and make a bid for the remaining
approval, by October it had changed its mind. Santos says it must then have been appraised of substantial information which led it to form an opinion that a bid would contravene the Trade Practices Act.
Santos also says that experience shows that parties often complain of not being ready to conduct litigation but when faced with a fixed date have to in fact get themselves ready and that if some absolute finality is not adhered to with respect to a trial date the same problem will inevitably rise if a trial date is fixed in the future. Santos also says that it suffers prejudice because it is being hamstrung in regard to any future bid it may wish to make for Sagasco. The underlying reality of this case, of course, is that Santos is very keen to make a bid for Sagasco if it legally can.
To my mind, the major factor affecting this decision is the consideration that it would be wrong to force a party on to trial if the Court were satisfied that the practitioners for that party could not adequately conduct its case. Of course, very often claims by plaintiffs or defendants to put off trials are made when there has been insufficient application to the task of preparation and, indeed, sometimes for more sinister reasons, to seek some improper or collateral advantage. The Court will always be astute to avoid such a
consequence if at all possible. However, in the present case, I am quite satisfied, in the light of the very detailed information provided to me in the affidavits, that the
practitioners for all parties, both the Commission and the two respondents, have applied themselves conscientiously to the enormous task posed by getting this case ready for trial.
As might be expected, there are complaints flying back and forth about issues which have arisen in the course of discovery and it may be that none of the parties are entirely blameless. However it would be pointless to engage in an exercise of trying to apportion fault in respect of the numerous matters which have arisen between the parties. I am satisfied that those parties which seek this alteration of the trial date have not been guilty of any unreasonable dilatoriness or lack of enthusiasm for their task. Still less is there any ground for suspecting any parties are seeking to drag matters out for some tactical advantage.
As to the position of Santos, I accept that it has a legitimate commercial reason for wishing to have this litigation resolved as soon as possible. However, the position is that it is not subject to any interlocutory restraint pending the determination of these proceedings, for the simple reason that it successfully opposed the Commission's application for an interlocutory injunction last year. It is true Santos is subject to undertakings which it gave in lieu of an injunction, but those would nevertheless entitle it to proceed to make a bid if it wished.
that the uncertainty involved in the litigation is such that The position is that Santos has made a commercial judgment
it could not responsibly bid subject to the undertakings it has given to the Court and face the possibility of divestiture.
There was mention also made of the changing position of Sagasco itself. That, of course, is inevitable. Any company

must act in the best interests of its shareholders and obviously circumstances will change. But I do not see that in itself as any significant detriment of which Santos can complain. If the fortunes of Sagasco improve by the time this litigation is resolved, that no doubt may be reflected in the price of any bid which Santos is to make. In the meantime, Santos has two nominees on the Sagasco board, and has moved to a 19.9 per cent shareholding.

The varying estimates of the length of the trial now are, on the part of Sagasco, 14 weeks, and on the part of the Commission, 10 to 14 weeks. It may be that, doing the best one can at the moment, one should err towards the upper end of that scale.

For the purpose of the record I will direct that:

l. Paragraphs 5,7,8,9 and 10 of the orders made by Ryan J on 26 February 1993 be vacated;

2.    The first respondent file and serve its answers to the

amended defence dated 19 April 1993 on or before 5 pm 24 applicant's request for further particulars of its

May;

3.   Any party be at liberty to issue subpoenas for the production of documents as that party may be advised, and such subpoenas be returned at the election of the parties issuing same on 15 June;

1. Each of the applicant and the second respondents file and serve statements of the evidence proposed to be educed by by witnesses on their behalf on or before 5 pm on 21 July.

5 .    The first respondent file and serve statements of the evidence proposed to be adduced by witnesses on its behalf on or before 4 August.

6.   Each of the applicant and second respondents file and serve statements in reply on or before 18 August.

7.  Subject to any order of Ryan J, the trial of the proceeding herein be fixed for hearing on 1 September.

8.  Time for discovery by the applicant is extended to 14 May.

9.   The directions hearing is adjourned to 9 July.

10. Costs are reserved.

I certify that this and the preceding (5) five pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Associate

Counsel for the applicant:  R Finkelstein QC with P
Jopling and M Goldblatt

Solicitor for the applicant: Australian Government

Solicitor

Counsel for the first	A C Archibald QC with D Shavin
respondent:
Solicitor for the first	Freehill Hollingdale & Page
respondent:
Counsel for the second	N Young QC with J Beach
respondent
Solicitor for the second	Finlaysons
respondent:
Date of hearing:	12 May 1993