In The Application Of John Dee (Export) Pty Limited And Ors

[1988] ATPT 2

2' 6f

JUDGMENT No. ....e.e ........ . ../ ........ .-

NOT FOR CIRCULATION

COMMONWEALTH OF AUSTRALIA

TRADE PRACTICES ACT 1974

IN THE TRADE PRACTICES TRIBUNAL No. NSW 5 of 1987

IN THE APPLICATION OF JOHN DEE (EXPORT) PTY. LIMITED

& ORS.

Applicants

ORDER MADE BY	LOCKHART J, (President)
WPERE ORDER MADE:	SYDNEY
DATE ORDER MADE:	17 AUGUST 1988

MINUTE OF ORDERS

The Tribunal directs that:

1. Elders Dalgetys and Primac file and serve on or before Friday, 19 August 1988 the motion for interim authorisation which has been foreshadowed in proceedings today.

2.   John Dee file and serve statements of witnesses including experts whom it proposes to call in respect of the application for interim authorisation on or before 29 August 1988.

3.   The existing orders for discovery and inspection of documents be vacated.

4.   Leave is given to any party to issue and serve returnable on 1 September 1988 at 9.30 am summonses to persons to produce documents.

5. The matter is adjourned for that purpose to 1 September 1988 at 9.30 am. The fixture of 5 September 1988 to stand for the purpose of dealing with a motion for interim authorisation.

NOT FOR CIRCULATION

COMMONWEALTH OF AUSTRALIA

TRADE PRACTICES ACT 1974

IN THE TRADE PRACTICES TRIBUNAL NO. NSW 5 of 1987

IN THE APPLICATION OF JOHN DEE (EXPORT) PTY. LIMITED

& ORS.

Applicants

17 August 1988

REASONS FOR DECISION

LOCKHART J.

This matter has been before the Trade Practices Tribunal for some time, and has been the subject of a number of directions hearings. The issue that has received most substantial consideration is the question of the discovery and inspection of documents, in particular the discovery sought by John Dee (Export) Pty. Limited ("John Dee") against Elders IXL Limited ("Elders"), Dalgety Farmers Limited

("Dalgetys") and Primac Association Limited ("Primac"). Orders for discovery previously made by the Tribunal and presently in force have recently been challenged in the Federal Court of Australia under the Administrative Decisions (~udicial Review) Act 1977 (Cth). I have been informed that the grounds of challenge include the absence of jurisdiction, the absence of power, and unreasonable exercise of discretion.

The matter has been mentioned today because of the imminent hearing of the matter, which is fixed to commence on 5 September and to take some weeks thereafter. Since the matter is to be heard by the Full Tribunal, the hearing will involve me as the President of the Tribunal and also the two non-presidential members of the Tribunal, one of whom comes from interstate. It is difficult to obtain sittings of the ~ u l l Tribunal of any length because of these considerations. Accordingly, it appeared to me that the sensible course to follow was to see if the time which had been allotted to the hearing could be devoted to this matter in some way which would not prejudice the parties and would allow the Tribunal to become properly seized of a complex matter.

As the discussion has proceeded in the Tribunal today, it has emerged that Elders, Dalgetys and Primac intend to initiate proceedings in the Tribunal within the present matter for the purpose of seeking interim authorisation of the practices under challenge. John Dee has not opposed that course provided its position is not prejudiced.

It is not for the Tribunal to in any way interfere with the proceedings which have been commenced in the Federal Court. Those proceedings are entirely a matter for the judge or judges of the Federal Court before whom the matter should come or may already have come.

I am concerned, however, that the time which has been allotted to this matter should not be thrown away unless that result is unavoidable. In my view, the course of converting the hearing commencing on 5 September into the hearing of the motion for interim authorisation is the sensible and practical course to take in the interest of the parties. Although counsel have adverted to several problems which may flow from such a course, in my view such problems would arise in any case if the matter were to proceed on the basis of a final hearing on that date. The matter will therefore proceed on 5 September, not on a final hearing basis, but for the purpose of dealing with a motion for interim authorisation.

Two classes of directions have previously been given by the Tribunal: firstly, that there be discovery by Elders Dalgetys and Primac; and secondly, that John Dee file and serve its statements of witnesses including any statements of experts on or before 29 August 1988. Those two classes of directions were given on the basis that the hearing would proceed on 5 September as the final hearing of the matter. In all the circumstances, doing the best I can in the

interests of justice, of the parties, and in furtherance of the matter before the Tribunal, I have concluded that the direction to John Dee to file and serve its statements of witnesses including expert statements should stand, but should be limited to evidence relating to a motion for interim authorisation. I have concluded also that, in the interests of justice and in furtherance of the matter before the Tribunal, the existing orders for discovery and inspection of documents should be vacated. This is not to say that those orders cannot be renewed at some future date once the Tribunal has become seized of the matter, and assuming that such orders are within power.

Mr. Sweeney of Queens Counsel has stressed that there should be recognised the right of John Dee to have issued and served summons to Elders, Dalgetys and Primac, and indeed to any other persons or third parties, returnable at some date before 5 September for the purpose of obtaining the production of documents which may be necessary to deal with application for interim authorisation. In my view, that request is a reasonable request.

Accordingly, the orders that I make are as follows:

1. I direct Elders Dalgetys and Primac to file and serve on or before Friday, 19 August 1988 the motion for interim authorisation which has been foreshadowed in proceedings today.

2.   I direct John Dee to file and serve statements of witnesses including experts whom it proposes to call in respect of the application for interim authorisation on or before 29 August 1988.

3.    I vacate the existing orders for discovery and

inspection of documents.

4. I give leave to any party to issue and serve returnable on 1 September 1988 at 9.30 am summonses to persons to produce documents.

5. The matter is accordingly adjourned for that purpose to

1 September 1988 at 9.30 am. The fixture-of 5 September

1988 will stand for the purpose of dealing with a motion

for interim authorisation.

I certify that this and the preceding

four ( 4 ) pages are a true copy of the reasons for dec i . s i cn herein of the Honourable Mr. Justice Lockhart.

Associate AIR&/

Date: 17 August 1988

Counsel for John Dee (Exports)	Mr. C.A. Sweeney Q.C. with
Pty. ~imited:	Mr. M. Cashion

Solicitors for John Dee (Exports) Messrs. Allen Allen & Hemsley

Pty. Limited

Counsel for Elders IXL Limited,

Dalgety Farmers Limited and	Mr. R.V. Gyles Q.C. with
Primac Association Limited:	Mr. N. Cotman
Solicitors for Elders IXL Limited,
Dalgety Farmers Limited and	Messrs. Sly & Russell
Primac Association Limited:
Counsel for the Trade Practices
Commission:	Mr. P. Roberts
Solicitors for the Trade	Australian Government
Practices Commission:	Solicitor
Date of Hearing:	17 August 1988
Date of Decision :	17 August 1988