NT Power Generation Pty Ltd v Power & Water Authority
[1999] FCA 996
•01 JULY 1999
NT Power Generation Pty Limited v Power & Water Authority and Gasgo Pty Limited
No. D5 of 1999
Australian Competition and Consumer Commission v Gasgo Pty Limited
No. D8 of 1999
[1999] FCA 996
NT Power Generation Pty Ltd v Power & Water Authority [1999] FCA 996
NT POWER GENERATION PTY LIMITED (ACN 061 314 921) v POWER AND WATER AUTHORITY and GASGO PTY LIMITED (ACN 009 627 801)
D5 OF 1999
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v GASGO PTY LIMITED (ACN 009 627 801)
D8 OF 1999
MANSFIELD J
ADELAIDE
1 JULY 1999
IN THE FEDERAL COURT OF AUSTRALIA D5 OF 1999 NORTHERN TERRITORY DISTRICT REGISTRY D8 OF 1999
D5 OF 1999
BETWEEN: NT POWER GENERATION PTY LIMITED (ACN 061 314 921)
Applicant
AND: POWER AND WATER AUTHORITY First Respondent
GASGO PTY LIMITED
(ACN 009 627 801)
Second Respondent
D8 OF 1999
BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMPETITION Applicant
AND: GASGO PTY LIMITED (ACN 009 627 801)
Respondent
JUDGE: MANSFIELD J DATE: 1 JULY 1999 PLACE: ADELAIDE
REASONS FOR DECISION
HIS HONOUR:
1 I will deal firstly with the notice of motion in matter D5 for leave to withdraw the admissions in pars 2(b) and 26(e) of the defence. I have considered the affidavit and the submissions made. It is necessary for the leave of the Court to be granted if an admission is to be withdrawn, and I have had regard to the reasons proffered in the letter of Mr Noonan annexed to his affidavit of 25 June 1999 in considering the application.
2 I propose to grant the application for the following brief reasons.
3 Firstly, the proposed amended pleading, although in a sense constituting a withdrawal of an admission, is a subtle one in the sense that it does not directly controvert that which has previously been admitted in either subparagraph. It really seeks to make clearer the position of the respondents in response to the allegation albeit, as it seems to me, in a more cautious way to a general allegation that, at the time of the initial pleading. The significance of the allegations in the statement of claim might have been not fully appreciated. That flows into the second of the reasons, namely, that in my view the explanation which has been proffered is consistent with the nature of the proposed amended defence and the reason why it has now emerged that it is desirable to amend the defence in that way. Thirdly, there is nothing put, and nothing apparent to me, which indicates that the applicant would in any significant way be prejudiced by the leave which is sought. It may need to address in an evidentiary way things which it might not otherwise have had to address. I do not think that the proposed amendment will disadvantage the applicant in any significant way, given the terms in which the proposed amended defence is to be expressed.
4 Accordingly, on that motion I give leave to the respondents to withdraw the admissions made in pars 2(b) and 26(e) of the defence filed on 25 June 1999. I give leave to the respondents to file on or before 8 July 1999 an amended defence in terms of the proposed amended defence, being annexure JN2 to the affidavit of James Noonan sworn on 25 June 1999. Thirdly, I will order that the applicant have leave to file and serve any amended reply, in response to the amendments effected by the proposed amended defence, on or before 30 July 1999.
5 The more significant matter before me today is the notices of motion of the respondents in each of matter D5 of 1999 and in matter D8 of 1999 that those two proceedings be heard at the same time with the evidence in one to be, so far as is relevant, evidence in the other. The practical consequence of that order, if granted, will be that the directions given in matter D5 of 1999 will have to be vacated and the trial date fixed for 3 August 1999 will have to be vacated.
6 I say that is the practical consequence because, in matter D8 of 1999, instituted by the Australian Competition and Consumer Commission, it says that it is not in a position to proceed to trial as an applicant on that date. It has not had discovery yet from the respondent. It is generally accepted, I think by all counsel, that that is an appropriate attitude on its part. I propose to give reasons for the ruling on those motions in the light of that circumstance.
7 In ruling on those two motions I have had regard to the history of the proceedings in matter D5 of 1999. There is no dispute about them. When the proceedings were instituted, interlocutory relief was sought on the part of the applicant for mandatory injunctive relief, and orders were sought on the part of the respondents for the preliminary trial of an issue as to crown immunity. The parties together compromised their respective claims for that relief by agreeing to an expedited hearing. They agreed that that was an appropriate process for the best resolution of the matter. The applicant in matter D5 of 1999 is most anxious to adhere to that arrangement.
8 On 20 April 1999, that expedited hearing was fixed to commence on 2 August 1999 and a timetable with directions was set to enable that to take place. It became apparent in May that the respondent, and to an extent the applicant, had not adhered completely to that timetable. More specifically, it became apparent that the respondent regarded the issues concerning crown immunity as involving an obligation on their part for extensive discovery in a way which simply could not be done within the timetable set.
9 I accept that the respondents and their advisers have endeavoured assiduously and properly to fulfil their obligations to give discovery and have not been lacking in effort in any respect in so doing. I do not accept the submission put on behalf of the applicant, although it is an understandable submission in the circumstances, that there is any attempt by the respondents to prevent the applicants from getting on with their case.
10 Be that as it may, the practical consequence of the order sought is that that hearing date will have to be vacated. The respondents say that it will not be practicable to commence the hearing before about mid-October 1999. The applicant in matter D8 of 1999 suggests even later. But the consequence is that there is a serious risk that the matter, if the orders sought are granted in matter D5 of 1999, will not be completed in its hearing during 1999 and certainly there will not be a judgment until sometime into the next year. As a matter of fact it is accepted, I think by all parties, that that is not a fulfilment of the commonly expressed desire of the parties for an expedited hearing.
11 Nevertheless there are significant disadvantages if the order sought is not made. I am told that there is a substantial overlap in the issues in the two proceedings, perhaps to the extent of about two-thirds of the evidence. That overlap relates largely, but I am not sure exclusively, to two issues. One is the crown immunity issue, upon which the nature of the evidence is in large measure in the hands of the respondents. The other area of overlap is upon the issue as to the relevant market or markets for the purposes of s 46 of the Trade Practices Act 1974 (Cth), on which evidence is likely to be led by the applicants in both proceedings as well as by the respondents. It would be undesirable for obvious reasons for the evidence to have to be traversed twice.
12 There is on the other hand, at least in respect of the crown immunity issue, an order which I think it is appropriate to make and which would enable that evidence to be heard at the same time in each proceeding, so that to that extent the proceedings can be heard together. It may also be possible, although I do not express a view one way or another, that the evidence given by the applicant in its case in matter D5 of 1999 may be evidence which the applicant in matter D8 of 1999 may later agree to be received as part of the evidence on its application to the extent that it is relevant, and subject to the representation of any witnesses if that is necessary for further cross-examination. I do not presently have a view as to whether or not that would be appropriate, but it is at least an option which might minimise the consequences otherwise of separate hearings of the two proceedings.
13 That observation foreshadows what I presently have in mind. That is that the applicant's case in matter D5 of 1999 proceed before further consideration of the two notices of motion. It is necessary however to consider whether it will proceed on 3 August 1999 in fairness to the parties. At least, that action will be able to proceed at a time earlier than the applicant in matter D8 of 1999 can fairly be expected to commence its case. At the completion of the applicant's case in matter D5 of 1999, I would then propose to adjourn the hearing to a later time, more in accord with the timetable which the respondents have in mind for the respondents' cases. That will coincide more with the time when the applicant in matter D8 of 1999 should be in a position to commence its case. At that point I would expect that, subject to further submissions of significance, an order might appropriately be made that the evidence thereafter be taken as evidence in both matters together and, to the extent that it is relevant, be evidence in each of those matters. I think that would largely minimise the risk of unnecessary duplication of evidence and unnecessary recalling of witnesses. It is not presently clear to me the extent to which evidence which the applicant in matter D5 of 1999 might lead would otherwise be directly relevant to the matter in D8 of 1999, but as I have said, there may be available procedures to avoid full duplication of that part of the evidence even if there is some overlap of relevant evidence.
14 Accordingly, I propose on the notices of motion presently not to make the order sought in par 1. I will stand over those notices of motion to a date to be fixed, when I will hear the parties further for the purpose of considering the sort of orders which I have referred to above.
15 There remains, it seems to me, the question of what should be done with the principal proceedings. I use that description only because they are the first proceedings and seem largely to have been those upon which the parties have focused. As I have said, I accept that the respondents and the applicant have, both themselves and through their solicitors, been conscientious in endeavouring to prepare the matter for trial. Despite that, it is also apparent that the timetable has not been adhered to. I am now told that discovery has been given by the applicants, although not in a verified form, and that the respondents will be in a position to provide a list of discoverable documents, almost completely, by 9 July but perhaps continuing up to 23 July 1999.
16 That presents a disadvantage to the applicant. To adhere to the hearing date, they are prepared to take whatever disadvantages may flow from the respondents' failure or inability up to now to adhere to the timetable. They are also prepared to take the disadvantages which may flow from them not receiving copies of the respondents' statements until either just before or during the course of the hearing of their case. In a practical sense they want to start, come what may. Therefore, to the extent to which a commencement on 3 August 1999 might cause unfairness to the applicant, it is prepared to take that risk. In my view, I ought not in those circumstances to defer the commencement of the hearing to protect its interests.
17 There remains to consider the interests of the respondents. They will have completed discovery. They have had informal discovery from the applicants since (subject to correction) late May of 1999. It seems to be the common position that at a practical level a verified list of documents is not necessary and that the parties should be content with the conscientious endeavours of each to give discovery informally. That seems to me to be a sensible position. I am also told that the applicant in matter D5 of 1998 will be in a position to make its statements of evidence available to the respondents within two weeks, that is by 15 or 16 July 1999.
18 There may be some refinement as a result of review of the respondents' discovery, but it does give the respondents in effect a further two weeks within which to consider those proposed statements for the purposes of cross-examination. The context of course is that the pleadings have identified the nature of the applicant's case. The statement of claim was filed with the application on 12 March 1999, so the respondents are not being faced with unknown allegations but only with matters of detail. I also bear in mind that, subject to evidence as to the nature of the market that is likely to be expert evidence, much of the evidence of the applicant will involve communications between it and the respondents which the respondents no doubt have been addressing in a general way up to now, in the light of those pleadings.
19 I do not consider that, on the balancing of those considerations, it is necessary or appropriate to vacate the hearing date, although I will adjourn the hearing at the end of the applicant's case. I propose therefore to commence the hearing on 3 August 1999 in Darwin. I direct that the evidence proceed only to the close of the applicant's case. In that way I am endeavouring to minimise the unfairness to the respondents, if there be any, by the commencement of the hearing at that time. As I have said, the respondents will have had some opportunity, although not an ideal opportunity, to have got on top of all the documents. They will have had for a time the applicant's statements. The real focus of their endeavours will be limited to cross-examining and testing of the applicant's material.
20 If the applicant in matter D8 of 1999 wishes to be present during that hearing, of course it may be present. It may be that it is desirable that it be present, but I will not expect it to participate. It may seek to do so. At the completion of the applicant's case, or on Thursday, 19 August 1999, whichever shall be earlier, I will adjourn the matter to a date to be fixed. It may be that the parties may then be in a position to resume the hearing somewhat earlier than has presently been anticipated, but in any event I tentatively indicate that I will adjourn it to 11 October 1999 for the further hearing of the matter. I will, at the completion of the August dates, fix the venue for that further hearing, and give any further directions as necessary.
21 I will not presently fix a time for those directions to be addressed because it seems to me that, at the same time as those issues are addressed, it would be appropriate to call on the motions again, including the motion in D8 of 1999, to address the matters to which I have referred. That will involve counsel for the ACCC. Notice of that further date will be given.
22 I do not consider that it is necessary to give further directions to the respondents other than to direct the respondents to continue to use their best endeavours to give discovery informally and progressively, and in light of the orders which the respondents propose today, to direct that they complete that discovery by no later than 23 July 1999. I also direct that the applicants file and serve their statements of proposed evidence by 16 July 1999. I will not direct it, but it seems it would be very sensible for that material also to be served on the ACCC. Also, I will not direct that the respondents file and serve statements of proposed evidence prior to 2 August 1999, although I exhort them to do so, if they are in a position to do so. I am satisfied with the efforts the respondents have made to be ready for trial. I do not propose to impose any additional obligations upon them beyond those they have proposed. But consistent with those efforts, they will no doubt be mindful of the desirability, in fairness to the applicant, of providing such statements progressively and as soon as possible. If those statements have not been provided to the applicant by the close of the applicant's case, I will not require the applicant formally to close its case in case matters arise out of them. I will give directions then setting a timetable for the respondents to file and serve their statements of witnesses.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.
Associate:
Dated: 26 July 1999
DATE OF HEARING: 1 July 1999
DATE OF DECISION: 1 July 1999
PLACE: ADELAIDE
#DATE 01:07:1999
Appearances
Counsel for the Applicant in D5 of 1999: Mr I M Barker QC with him
Mr A A Henskens
Solicitors for the Applicant in D5 of 1999: Colin Biggers & Paisley
Counsel for the Applicant in D8 of 1999: Mr S J Rushton
Solicitors for the Applicant in D8 of 1999: Australian Government Solicitor
Counsel for the Respondents in D5 and D8 of 1999: Mr A I Tonking
Solicitors for the Respondents in D5 and D8 of 1999: James Noonan
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