Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd - [2001] FCA 669

FEDERAL COURT OF AUSTRALIA
Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd
[2001] FCA 669
Trade Practices Act 1974 (Cth)
Trade Practices Commission v TNT Australia Pty Ltd & Ors (1995) ATPR 41-375 referred to Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd& Ors (1996) ATPR 41-522 referred to
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 considered
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 referred to
MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED v TNT AUSTRALIA PTY LIMITED, ANSETT AUSTRALIA LIMITED, MAYNE NICKLESS LIMITED and J McPHEE & SON (AUSTRALIA) PTY LIMITED
NG 786 OF 1995
GYLES J
SYDNEY
4 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 786 OF 1995

BETWEEN:

MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED ACN 001 227 890
APPLICANT

AND:

TNT AUSTRALIA PTY LIMITED
ACN 000 495 269
FIRST RESPONDENT

ANSETT AUSTRALIA LIMITED
ACN 004 209 410
SECOND RESPONDENT

MAYNE NICKLESS LIMITED
ACN 004 073 410
THIRD RESPONDENT

J McPHEE & SON (AUSTRALIA) PTY LIMITED
ACN 001 856 111
FOURTH RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

4 JUNE 2001

WHERE MADE:

SYDNEY

ORDERS:
The proceeding stand over to enable the parties to bring in short minutes to give effect to these reasons.
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

NG 786 OF 1995

BETWEEN:

MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED ACN 001 227 890
APPLICANT

AND:

TNT AUSTRALIA PTY LIMITED
ACN 000 495 269
FIRST RESPONDENT

ANSETT AUSTRALIA LIMITED
ACN 004 209 410
SECOND RESPONDENT

MAYNE NICKLESS LIMITED
ACN 004 073 410
THIRD RESPONDENT

J McPHEE & SON (AUSTRALIA) PTY LIMITED
ACN 001 856 111
FOURTH RESPONDENT

JUDGE:

GYLES J

DATE:

4 JUNE 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE)

This is an application by the applicant in the proceedings for leave to use part of a statement filed by the applicant of Gregory John Poche, a potential witness, which, in turn, involves use by the applicant of a number of reports known as lost customer reports (“LCRs”) of the applicant. A decision on this point has major implications for preparation of the case which is fixed for hearing to commence in February 2002 and is expected to continue for some months thereafter. It is important that a decision be given promptly. In order for that to be done, I will need to give my decision in an abbreviated form and without the revision that I would prefer. I will endeavour to expose my reasoning, although without undue elaboration. I will assume a detailed knowledge of the proceedings and not explain aspects of the proceedings or the evidence on this application which are not essential to my reasoning. I will not reproduce all of the comprehensive arguments which have been put on behalf of the parties. To a large extent, they are contained in written submissions which…

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: [2001] FCA 669
Decision Date: 4 JUNE 2001

CaseChat Overview and Summary

Multigroup Distribution Services Pty Ltd applied to the Federal Court of Australia for leave to use part of a statement from its CEO, Gregory John Poche, which included details of lost customer reports (LCRs). The respondents, TNT Australia Pty Ltd, Ansett Australia Limited, Mayne Nickless Limited, and J McPhee & Son (Australia) Pty Limited, opposed the application. The court had to decide whether the applicant could use the LCRs in its case. The applicant argued that the LCRs were relevant to proving its lost customers due to the respondents' unlawful conduct and to quantifying its damages. The respondents argued that allowing the use of the LCRs would cause significant prejudice, as it would require them to conduct extensive investigations and potentially delay the trial. The court found that permitting the use of the LCRs for liability purposes would cause significant prejudice to the respondents, as it would require them to conduct extensive investigations and potentially delay the trial. However, the court decided that the LCRs could be used for proving damages, as long as the use was limited to the "macro level" and individual customers were not used as samples. The court also imposed restrictions on the use of the LCRs for damages, such as prohibiting further discovery and limiting the use to the methodology outlined in the applicant's case summary. The proceeding was stood over to enable the parties to bring in short minutes to give effect to these reasons.

Orders