National Mutual Holdings Pty Ltd v The Sentry Corporation

[1990] FCA 510

IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	1 No VG 173 of 1987
1
GENERAL DIVISION	1

BETWEEN: NATIONAL MUTUAL HOLDINGS PTY

LTD: ACC HOLDINGS LTD: ACC
FINANCIAL MANAGEMENT LTD: ACC
LIFE LTD: ACC GENERAL INSURANCE

LTD: AUSTRALIAN CASUALTY CO LTD

(Applicants)

and :	THE SENTRY CORPORATION: PEAT MARWICK MITCHELL & CO (a firm1
(Respondents)
AND :	THE SENTRY CORPORATION (Cross-Applicant)
and :	ACC HOLDINGS LTD: ACC FINANCIAL MANAGEMENT LTD: ACC LIFE LTD; ACC GENERAL INSURANCE LTD: AUSTRALIAN CASUALTY CO LTD; SENTRY ASSURANCE INTERNATIONAL
(a firm): NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LTD: STEPHEN JAOUES STONE JAMES
(Cross-Respondents)
m:	PEAT MARWICK MITCHELL & CO (Cross-Applicant)
and :

AUSTRALIA PRINCIPAL REglSTFW (Cross-Respondents)

R'CEIVED

18 SEP 1990

FEDERAL COURT OF

m:	SENTRY ASSURANCE INTERNATIONAL LTD
(Cross-Applicant)
and :
-	THE SENTRY CORPORATION: PEAT MARWICK MITCHELL & CO fa firm1
(Cross-Respondents)
m:	ACC HOLDINGS LTD: ACC FINANCIAL MANAGEMENT LTD: ACC LIFE LTDt ACC GENERAL INSURANCE LTD: AUSTRALIAN CASUALTY CO LTD
(Cross-Applicants)
and:	PEAT MARWICK MITCHELL & CO fa
m
(Cross-Respondent)
g:	WILLIAM CLARXE O'KANE (Cross-Applicant)
and:	AMERICAN HOME ASSURANCE LTD (Cross-Respondent)

Corm: Ryan J.
Date: 6 September 1990

Place: Melbourne

EX TEMPORE REASONS FOR JUDGMENT

By a motion on notice dated 30 August 1990, the applicants

("National Mutual") seek an order that the first respondent

I

I	("Sentry") provide particulars of certain paragraphs of Sentry's
i	I
I	amended defence which raised, what has been called for the sake
I	I	of convenience, "Sentry's trade practices case".
!
By paragraphs 79 , 80 and 81 of that amended defence, the existence of a market for, respectively, life insurance, property insurance, casualty or disability insurance, in:

"(a) Australra;

(b) alternatively, New South Wales;

(c) alternatively, New South Wales and the Australian Capital Territory;

(d) alternatively, Victoria;

(e) alternatively, the Eastern States of Australia;

(f) alternatively, the Eastern States of Australia and the Australian Capital Territory."

There is then set out in paragraph 85 of the amended defence, clause 12 of the sale agreement pursuant to which National Mutual agreed to purchase from Sentry, all the issued shares in a company then called Sentry Holdings Ltd which was the beneficial owner of the issued capital of four other companies incorporated in Australia, one of which was Australian Casualty CO Ltd.

Clause 12, as pleaded, was in these terms:

of seven years thereafter nerther it nor any related or associated	"Sentry agrees that from the date of completion and for a period
company or corporation will in the Commonwealth of Australra carry on or be engaged in whether directly or indirectly any life property or casualty insurance business provided that the provisions of this clause shall not in any way restrict Sentry or any related or associated company or corporation from carrying on or engaging in any reinsurance business and provided further that no company corporation or other entity in which Sentry or any related or associated company or corporation has an interest that in the aggregate does not exceed ten percent of the voting or controlling interests therein shall be deemed to be a related or associated company or corporation."
It is then pleaded by paragraph 88 of the amended defence

that :

"Clause 12 of the sale agreement has the purpose, or has or is likely to have the effect, contrary to sec. 45(2)(a)(ri) of the Trade Practices Act 1974, of substantially lessening competition in one or more of the markets referred to in paragraph 81 hereof."

Sentry was requested by National Mutual by way of providing particulars of that allegation to:

"Specify each act, fact, matter or circumstance by reason of which it is alleged that Clause 12 of the sale agreement has the purpose or effect or is llkely to have the effect alleged in any, and if so which, market."

On 20 July 1989, Sentry responded to that request by saying:

"The purpose and effect is the consequence of the terms of clause
12."

Expanded particulars of paragraph 88 of the amended defence were then given on 29 September 1989, in these terms:

"Sentry repeats the particulars already given. In addition, as to purpose, Mr. Mayer in his letter of 25 June 1986 insisted upon the restrarnt in and to the effect of the terms pleaded, obviously for the purpose of preventing and substantially lessening competition and for no other purpose. Mr. Hoskins knew of the content of Mr. Mayer's letter. Mr. Hoskins signed the agreement containing this clause, intending to effectuate the purpose of restraining competition and did so effectuate it and thus carried out Mr. Mayer's purpose earlier referred to. The clause is likely to have the effect designed by Mr. Mayer and Mr. Hoskins and sought to be

prevent competition by Sentry and the companies mentioned in the

achieved by them as, were it not illegal, it would be likely to

clause in the activities mentioned in the clause contrary to the section referred to in the pleadings, to a substantial extent. Sentry also relies upon the following facts and circumstances:-

(a)	Prior to entry into the sale agreement NMLA and/or its related corporations had a premium income representing over 50% of the life company disability market in Australia.
(b)	Prior to entry into the sale agreement ACC had a premium income representing over 25% of each of the markets referred to in paragraph 81.
(c)	Had Sentry or a related or associated company or corporation been free to operate in the markets referred to in paragraph 81 after the entry into the sale agreement, it would have had a substantial impact upon competition in the said markets.
(d)	Clause 12 of the sale agreement was inserted for the purpose of preventrng Sentry from engagang m competitive conduct in the markets referred to in paragraph 81, and foz the purpose of eliminating Sentry or a related or associated company or corporation as a competitor in those markets.
(e)	The effect, or likely effect, of clause 12, if valid, is to give National Mutual and/or NMLA the power to control to an appreciable extent, independently of their competitors or consumers, the level of premiums charged for disability and casualty policies and the benefits accruing under such policies in each of the markets referred to in paragraph 81.
(f)	Further, the combaned effect of clause 12 in preventing Sentry and related or associated companies or corporations to compete in the said markets with the consequence referred to in sub-paragraph (e), with or without the dominant position of National Mutual and/or NMLA in the said markets resulting from rts acquisition of the Sentry Holding group, is to make it substantially more difficult for other firms or companies to enter and compete in the said markets.
(g)	Further, Sentry will say that the fact National Mutual insasted upon the inclusron of clause 12 in the Agreement shows that National Mutual intended to prevent a substantial competitor from competing in the markets referred to in the clause, includrng the markets described in paragraph 81.
(h)	Further particulars will be provided after discovery and interrogation."

The letter from Mr Mayer was dated 25 June 1986 and was addressed to Mr Hoth, a director of Sentry, apparently resident in the United States of America and, after an introductory paragraph referring to a letter from Mr Hoth thanking Mr Mayer for the opportunity to tender, it was stipulated amongst other

things, that: 

"5.	The transfer would be effected pursuant to a purchase agreement which would provide the usual adequate safeguards for both vendor and purchaser in the sale and transfer of such a busrness, rncludrng provrsions that -
(i)	Sentry and its affrliates would not re-enter the Australian ansurance market, eather directly or andirectly;
(ii)	it would be possible to have the use of the Sentry name for a mutually acceptable period and that there be no requarement to change the name of the Australian Casualty Company;
(iii)	there is not a materral change in the relationship between the Australian and US dollar;
(iv)	the regulatory authorities give such consents as may be necessary; and
(V)	permission be obtained to expatriate US$, if necessary."

Mr Hayes Q.C. who appears with Mr Scerri for National Mutual has pressed for further and better particulars of paragraph 88 of the amended defence. On the other hand M r Dermot Ryan of Counsel for Sentry has contended that the particulars already supplied are adequate and that what is now sought are not particulars in the sense of an outline of the trade practices case which National Mutual has to meet, but the evidence which may be

.. . .

adduced by Sentry in support of that case.

I take the introductory sentence of the expanded further particulars of paragraph 88, that "Sentry repeats the particulars already given" to be a reference to the terse particulars previously supplied on 20 July 1989, namely:

"The purpose and effect is the consequence of the terms of clause

12."

The expanded particulars supplied on 29 September 1989 are, in my view, prolix, tendentious and, in part, not responsive to National Mutual's request. Reduced to a statement in summary of facts on which Sentry relies on, which was all that Sentry was required or could be obliged to supply, it amounts to a statement that:

"Sentry relies on the terms of clause 12 itself, Mr Mayer's letter of 25 June 1986 and the fact that by reason of the sale agreement, National Mutual would have significantly enlarged presence in the relevant markets."

Much of the expanded particulars of paragraph 88 of its amended defence which Sentry has supplied is mere formulary derived from the language of ~.45(2)(a)(ii) itself. To make out a contravention of that section it would be necessary to establish not only that National Mutual intended to exclude Sentry and its related or associated companies from the relevant markets, but that, but for clause 12, Sentry would have intended or desired to participate in those markets and by reason of its personnel, financial or other resources was, or would be, in a position to do so, after the sale agreement, in a substantial way. thus, Sentry should have provided particula;s of facts tending to the conclusion stated in sub-paragraph ( c ) of its expanded particulars that, "it would have had a substantial impact upon competition in the said markets".

Similarly, there is no factual basis provided for the conclusion asserted in sub-paragraph (e) of the expanded particulars that:

"The e f f e c t , or l i k e l y e f f e c t , of clause 12, i f val id , i s t o g ive

Nat~onal Mutual and/or NMLA the power t o control t o an appreciable

extent, independently of t h e i r competitors or consumers, the l e v e l of premiums charged for disabi laty and casualty polacies and the benefits accruing under such p o l i c i e s i n each of the markets referred t o i n paragraph 81."

It is far from clear why the exclusion of Sentry, after the sale agreement, from the relevant market should give National Mutual the power to control, independently of its competitors, the level of premiums and benefits under disability and casualty policies in the relevant markets. Without further information the ordinary inference is that, even assuming Sentry's absence from

I.
h ,

those markets, if National Mutual were to inflate its premiums or	! -
L
reduce its benefits to a level which would make it economically	l
8 '
desirable for its other actual or potential competitors to offer	I . ,
I '
insurance on more attractive terms, they would do so.
l- t
Nor does it follow from the facts already particularised as suggested in sub-paragraph (f) of the expanded particulars, that	I
i
, .
the absence of Sentry, in its post-sale agreement condition, from	L :
the markets would make it more difficult for other fins or
: ,
companies to enter and compete in those markets. It is common	c ,

- -

ground that further particulars have not been provided after discovery and interrogation as sub-paragraph (h) of the expanded particulars indicated they would be.

I would therefore order that Sentry provide further and better particulars of paragraph 88 of its amended defence in accordance with these reasons.

By paragraphs 90 and 91 of the amended defence Sentry has

pleaded:

"90. At all material times up to 22 July 1986, National Mutual, in concert with NMLA, NMC, Hoskins and Kent, caused the inclusion in the agreement for the sale of the shares proposed to be entered into by National Mutual and Sentry of a provision being clause 12 (to the full terms of which Sentry refers) which obliged Sentry and any corporation which was related to or associated with Sentry not to carry on or be engaged in (whether directly or indirectly) any life, property and casualty or disability insurance business within the Commonwealth of Australia, for a period of seven years from the date of the agreement.

91.  By reason of the matters set out in paragraph 90 hereof, National Mutual, in concert with NMLA, NMC, Hoskins and Kent, engaged in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering Sentry from engaging in trade or commerce -

(a) between Australia and places outside Australia;

(b) among the States; or

(c) within a Territory, between a State and a territory or between two territories, contrary to sec. 45D(lA) of the Trade Practices Act 1974, and in the premises, the sale agreement was and is illegal, and National Mutual is not entitled to prove or rely upon, or to sue or maintain an action upon, the same."

National Mutual seeks particulars of those paragraphs although it concedes that it has made no prior request of Sentry for those particulars. In the course of discussion, it emerged that the particulars which National Mutual really seeks of paragraphs 90 and 91 are of the acts, facts, matters and circumstances which constitute NMLA, NMC, Mr Hoskins and Mr Kent or one or other of them, another person in relation to National Mutual as the first person within the meaning of s.45D(lA) of the Trade Practices Act.

Mr Ryan, for Sentry, has indicated, also in the course of
argument that, understood in that way, there is no objection to

providing the particulars which have been sought. Accordingly, I

need say no more about them.

Although they are not referred to in its notice of motion, National Mutual seeks also an order for further and better particulars of paragraphs 98 to 100 of Sentry's amended defence.

Those paragraphs are in the following terms:

"98. As a result of the acquisition referred to in paragraph 93 hereof, National Mutual together with a body corporate and bodies corporate that are related to or associated with National Mutual within the meaning of sec.4A and sec.50(2A)

of t h e Trade Prac t i ces A c t 1974, a r e i n a pos i t ion t o o r

l i k e l y t o be	i n a pos i t ion t o dominate one o r more of	t h e
markets	f o r insurance r e f e r r e d t o i n paragraph	81 hereof.

99. I n t h e premiees, t h e en t ry i n t o of t h e s a l e agreement

c o n s t i t u t e d a contraventron of sec.50 of t h e Trade Prac t i ces

A c t 1974,	whereby t h e s a l e agreement was	and is i l l e g a l ,	and
-

National Mutual i s not en tx t l ed t o prove o r r e l y upon, o r t o

sue o r maintain an a c t i o n upon, t h e same.

100.      Al te rna t ive ly t o paragraph 98 hereof -

(a ) National Mutual together with one o r more bodies co rpora te r e l a t e d t o o r associa ted wrth it, and i n

p a r t i c u l a r NNLA, were immediately p r i o r t o t h e

a c q u i s i t i o n	r e f e r r e d	t o i n paragraph	93	hereof	i n a
p o s i t i o n	t o dominate	one	o r more	of	t h e market6

r e f e r r e d t o i n paragraph 81 hereof.

( b ) A t t h e t i m e of t h e acqu i s i t ion each of s u b s i d i a r i e s of

Sent ry Holdings,	being	a	body	corpora te r e l a t e d	t o
Sentry	Holdings,	was	respect ive ly ,	o r	toge the r w e r e

l i k e l y t o be a competitor, o r competitors, of National

Mutual,	o r t h e sa id body,	o r bodies,	corpora te r e l a t e d
the re to .

(c) The proposed acquisr tron under t h e s a l e agreement

would, o r would be l i k e l y t o , s u b s t a n t i a l l y s trengthen

t h e power of National Mutual t o c o n t r o l o r dominate

one o r more of	t h e markets r e fe r red t o i n paraaraoh 81
hereof.

( d ) Thereupon National Mutual entered i n t o t h e s a l e

agreement cont rary t o t h e p roh ib i t ion contained i n sec.50 of t h e Trade Pract ices Act 1974, whereby t h e s a l e agreement was and i s i l l e g a l , and National Mutual

is not e n t i t l e d t o prove o r r e l y upon, o r t o sue or

maintain an ac t ion upon, t h e same."

In respect of paragraph 98, Sentry was requested to:

"Specify -

(a ) each a c t , f a c t , matter o r circumstance by reason of which it

is a l l eged t h a t Natronal	Mutual toqether wrth	anv r e l a t e d o r
associa ted body	corporate a r e i n a -pos i t ion t o dbminate	any,

and i f s o which, market; and

(b) each of t h e bodies corporate r e fe r red t o the re in . "

On 29 September 1989, in what I take again to be a final consolidated response overtaking an earlier response to that request given on 20 July 1989, Sentry has said:

"Sentry relres upon t h e following f a c t s and circumstances:-

(L)

Prior to National Mutual acquiring the shares in Sentry Holdmgs, National Mutual, NMLA and/or its related corporations had a premium income representing over 50% of the life company disability market in Australia.

(ii)

Prior to the said acqursitron Sentry Holdings and its subsidiaries had a premium income representing over 25% of each of the markets referred to in paragraph 81.

(iii)

As a result of the said acquisition National Mutual together with NMLA and/or its related companies had a premium income representing well over 50% of each of the markets referred to in paragraph 81.

(iv)

As a result of the market share referred to an sub- paragraph (c) and the economlc strength enjoyed by the National Mutual, NMLA and/or its subsidiaries, National Mutual and its related companies became in a position to prevent effective competrtion in the markets referred to in paragraph 81 by -

(aa)	being able to control to an appreciable extent, independently of their competitors or consumers, the level of premlums charged for disabllrty and casualty polrcles 'and the benefits accruing under such policies in each of the markets referred to m paragraph 81;
(bb)	being able to prevent the entry into the said markets of new competitors and thus pre-empting competition in the said markets.

(V) One of the matters that prompted Mr. Andrzejewski to Limited was that ACC was strategically amportant and there was value in pre-emptlng any competition and the major attraction was the comb~nataon of National Mutual's disabality business wlth Sentry's giving a dominant market share in that business and, accordrng to National Mutual's document of 24 June 1986 (NM Last 3098, page 201) would give a combined market share of well over 50% of the life company disability market. Another reason for the acquasition was to prevent another, for example Westpac, acquirang an insurance licence, knowledge and market share

recommend to the Board that it acquire Sentry Holdlngs

and the acquisrtion would increase National Mutual's

number of clients (3083, page 482). The acquisition was seen as clearly establishing National Mutual and its associated or related companies as the industry leader in disability ansurance and the acquasation also made it, with ACC clearly the market leader m the area of group disability. Natronal Mutual saw the major part of Sentry's operations as involving the specialast disabrlity insurance business of ACC (3083, page 447). The acquisition was seen as benefiting National Mutual's agents who had exclusive rights to National Mutual's product by giving them access to the ACC product as well. ACC was seen as a major insurer specialising in the disability insurance market (3094, page 27) and as a major attraction to National Mutual in the purchase and it was intended over time to combine Nataonal Mutual's disability business with Sentry's (3094, page 31). ACC was seen by National Mutual as the market leader in disability insurance (3094, page 31). National Mutual had a policy of agents selling exclusrvely National Mutual policies and saw the acquisitron of ACC as enabling its agents to write business through ACC where that business might otherwise by lost to National Mutual (326, page 241). In the year to 30 September 1986 Nataonal Mutual Group increased its business in Australia by 62% which included an increase in disability busaness. The disability market and that part of the lafe market where disability insurance is coupled with life insurance are the markets referred to. In the answer to this question Natronal Mutual includes NKLA.

(vi)

NMLA, NMC, National Mutual, ACC, Sentry Life and other subsidiary companies or associated companies of NMLA whlch deal in these markets details of which must await adequate discovery from third parties and the applicants."

In many respects those particulars suffer from the vices which I have already identified in the particulars given of paragraph 88 of the amended defence. In addition, the identification of the market by invoking a "life company disability market", "the area of group disability",- "the disability market" and "that part of the life market where disability insurance is coupled with life insurance" involves a departure from the markets referred to in paragraph 81, which are those identified in paragraphs 98 and 100 of the substantive pleading.

Matters going to National Mutual's purpose or motive in was, or was likely to be, in a position to dominate the relevant	entering into the sale agreement do not of themselves tend to	establish that as a result of the acquisition National Mutual
market. Nor do the conclusions suggested in sub-paragraphs (aa) and (bb) of sub-paragraph (iv) of the particulars given of paragraph 98 of the amended defence. An actual or perceived position as a market leader is not equivalent of itself to being, or being likely to be, in a position to dominate that market.
As I have already indicated, the markets in which leadership is predicated in the particulars are not identical with those pleaded in paragraphs 98 or 100 of the amended defence. The further detail of the markets, which it was said by paragraph (vi) of the further particulars provided in paragraph 98 must await adequate discovery from third parties and the applicants, has not yet been supplied.
Under paragraph 100, Sentry was requested on behalf of National Mutual to:

"Specify each act, fact, matter or circumstance by reason of which it is alleged that National Mutual together with any related or associated body corporate were immediately prior to the acquisition referred to in paragraph 93 thereof in a position to dominate any, and if so which, market."

In what I again take to be its latest consolidated response to that request, Sentry has said on 29 September 1989:

"Sentry relies upon the follow~ng	facts and matters:-
(a)	Prior to National Mutual acquiring the shares in Sentry Holdings, National Mutual, NMLA and/or its related corporations had a premium income representing over 50% of
the life company disabilrty market in Australia.
(b)	By reason of the market share referred to in sub-paragraph (a) and the economic strength enjoyed by National Mutual, NMLA and/or it subsidiaries, National Mutual and its related

companies were, immediately urior to the said acauisition. - - ~-

in a positron to preven't -effective cornpetitro~ in thh
markets referred to in paragraph 81 by -

(L) being able to control to an apprecrable extent, independently of their competitors or consumers, the level of premiums charged for disability and casualty policies and the benefits accruing under such policies in each of the markets referred to in paragraph 81;

(li) being able to prevent the entry into the said markets of new competitors and thus pre-empting competition in the said markets.
(c)	Accordrng to a paper prepared for a Board Meetrng on 24 June 1986 (List 3093, page 377) National Mutual had a premium income representing over 50% of the life company disabrlity market in Australia and thus was in a posrtion to dominate that disability market. At the time of the acquisition the Sentry companies mentioned in this paragraph were competitors or likely to be competa.tors of National Mutual or NHLA. National Mutual, together with =A, by reason of its tied agents and by reason of its advertrsing campaigns and perceived size had the capacity to determrne prices for its policies without being consistently inhibited in its determinatron by others. It was drffrcult for other or new rnsurers to enter the field because of the need for an agency force. Much time, money and effort was expended by NMLA in sales promotion and product differentiation. NMLA's market share had been growing in recent years. National Mutual is virtually run as a department of NMLA for the benefit of NMLA.
(d)	The markets referred to are the disability market and the life policy coupled with disab~lity cover market and the market forseparate drsability cover represented by existing
life policy holders." -.

Criticisms which I have already made of the particulars
given of paragraph 98 apply with equal force t o those

particulars. Sentry was also asked i n respect of paragraph 100 of

i t s amended defence, to :

"Specify each act, fact, matter or circumstance by reason of which it is alleged that the proposed acqursrtion under the sale agreement would, or would be lrkely to, substantially strengthen the power of National Mutual to control or dominate any, and if so which market. "

and to: 

"Specify -

(a) each act, fact, matter or circumstance by reason of which it is alleged that National Mutual together wrth any related or associated body corporate are m a position to dominate any, and if so which, market; and

(b) each of the bodies corporate referred to therein."

In response t o those requests, Sentry chose t o repeat the
particulars already given of paragraphs 98 and 100 of the amended

defence. Accordingly, further and better particulars must be
given in response to those requests as well.

In the result I would order that Sentry provide further and better particulars of paragraphs 88, 98 and 100 of its amended defence, in conformity with these reasons.

By paragraphs 2, 3 and 4 of its motion on notice, National Mutual has sought:

"2. An order that on or before 28 September 1990 the first

respondent give discovery of the documents referred to in

paragraph 19 of the aff~davat of Mr R.H. Peters sworn 30

August 1990, in default of whlch the trade practices case be struck out with costs.

3.    An order that at the trial of this proceeding the first respondent adduce its ev~dence before the applicants m relation to the trade practices case.

4.    An order that, subject to any order of the traal judge, the evidence of the applicants and the first respondent in relation to the trade practices case be by affidavit."

I consider that the question of further discovery should
await the provision of the further and better particulars, which

I have just indicated that I propose to order. I also feel that

Mutual should be permitted to split its case to reply to evidence	the order of proceeding and the question of whether National
in support of Sentry's trade practices case should be determined by the trial judge, with the benefit of any illumination which may be afforded by the further and better particulars which I propose to order. Similar considerations lead me to defer to resolution by the trial judge the question of whether any, and, if so, what part of the evidence in relation to the trade practices case, should be by affidavit.
There are before the Court two remaining motions on notice, one on behalf of National Mutual, dated 21 August 1990, seeking further and better answers by Sentry to interrogatories administered for its examination; the other by notice, dated 3 September 1990, embodying an application by Sentry for further discovery from National Mutual.
I propose to adjourn those two motions to 17 September 1990, before myself. Otherwise, I adjourn any directions hearing, or
any remaining interlocutory proceedings in this matter, to- be'
heard by Sheppard J. at a place and on a date to be fixed by him.
Because National Mutual has succeeded only in respect of part of the relief which it sought by the motion with which I have dealt today, and, because in respect of some of the further and better particulars which I have been persuaded to order no prior request was made, I consider the appropriate order as to
costs is to reserve the costs of both parties of this day.

The orders of the Court are: 

1.   That Sentry file and serve by 5.00 p.m. on 19 September further and better particulars of paragraphs 88, 90 and 100 of its amended defence.

2.   That any subpoena to any person seeking the production of documents in relation to the trade practices case be served on or before 28 September 1990, and be returnable on 15 October 1990.

3.    That the motion on notice dated 30 August 1990 be otherwise adjourned to be heard by Sheppard J. at a place and on a date to be fixed by him.

4.   That the motions on notice dated 21 August 1990 and 3 September 1990 be adjourned to 17 September 1990 before Ryan J. at 10.15 a.m. in Melbourne.

5.   That the directions hearing herein and any further or outstanding applications for interlocutory orders be adjourned to be heard by Sheppard J. at a place and on a date to be fixed by him.

6.    That the costs of both parties of this day be reserved for further argument before Ryan J. on 17 September 1990.

7.    That liberty be reserved to each party to apply.

pages are a true copy of the Reasons for Judgment	I certify that this and the preceding sixteen (16)
of His Honour Mr Justice Ryan.
Associate: d e
Date:  6 * & d 1490,

Counsel for Applicants:	MI P.R. Hayes, QC
and Mr C.M. Scerri
Solicitors for Applicants:	Mallesons Stephen Jaques
Counsel for Respondent:	Mr D. Ryan
Solicitors for Respondent:	Phillips Fox
Date of Hearing:	6 September 1990
Date of Judgment:	6 September 1990