Parish, Robert James v Australian Broadcasting Commission

[1980] FCA 153

Re: ROBERT JAMES PARISH & ORS.; PBL MARKETING PTY. LTD. & ORS.
And: AUSTRALIAN BROADCASTING COMMISSION
Nos. G73 and 74 of 1980
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Franki J.
Deane J.

CATCHWORDS

Trade Practices - Arrangement or understanding - Act of communication - Trade Practices Act, 1974; ss. 4D, 45 45A.

Practice and Procedure - Statement of Claim - Further amendments to already amended Statement of Claim.

HEARING

SYDNEY

#DATE 31:10:1980

ORDER

1. That the appeal be dismissed.

2. That costs of all parties be costs in the cause.

JUDGE1

The appellants in these appeals, which have been heard together, are three companies and the members for the time being of the Australian Cricket Board ("the Board"). They are the respondents in proceedings brought by the Australian Broadcasting Commission ("the A.B.C.") in the original jurisdiction of the Court in which the A.B.C. seeks certain relief pursuant to the provisions of the Trade Practices Act, 1974 in relation to facts alleged to surround the making of a written agreement between the Board and the corporate respondents on 30 May, 1979 which was purportedly confirmed and supplemented by a further agreement of 21 November, 1979 between the same parties. The agreements are concerned with televising and other aspects of international and interstate cricket matches played under the control of the Board.

The actual hearing of the proceedings commenced before Brennan J. on 12 February of this year. That hearing was interrupted by appeals to this Court from interlocutory decisions of Brennan J. on matters of pleading and on whether an order should be made restricting or forbidding publication of certain parts of the agreement of 30 May, 1979 (see Australian Broadcasting Commission v. Parish & Ors. (1980) 29 A.L.R. 228). Subsequent to the determination of those appeals, the trial of the proceedings was listed to resume before Brennan J. on 22 September, 1980. An application was then made by the A.B.C. for leave further to amend its already amended statement of claim. The amendments consisted of substantive amendments to paragraphs 5 and 6 and a number of largely consequential amendments (paras. 11, 12, 13, 14, 15 and 16) and additions (para. 11A, 11B and 11C). After further specified particulars of the proposed new paragraph 5 had been provided, Brennan J. allowed the amendments. It was common ground that, in the result, the date fixed for the further hearing should be vacated and this was done.

The present appeals are from Brennan J's order granting the A.B.C. leave to amend and from an order that the costs of the last day on which the question of the proposed amendments was before him, namely 14 August, 1980, should be costs in the cause. The appeals lie to this Court at this stage of the proceedings by reason of the fact that the Federal Court of Australia Act, 1974 permits, as of right, an appeal to this Court from an interlocutory order of a single judge.

Paragraph 5 of the amended Statement of Claim, prior to the disputed further amendment, read as follows:

"The respondents entered into a contract, arrangement or understanding, hereinafter called "the agreement", consisting of an agreement in writing bearing date the 30th May, 1979. A copy of the agreement as appears on the public register of the Trade Practices Commission of the Commonwealth of Australia is attached hereto as Annexure "A"."

The new paragraph 5 consists of a short primary paragraph and fourteen numbered sub-paragraphs which follow it and are described as "Particulars". The primary paragraph reads:

"On or before 30 May 1979, the respondents entered into an arrangement or understanding (hereinafter called "the understanding")".

The sub-paragraphs which follow appear to be intended to elucidate the nature of the alleged arrangement or understanding. Sub-paragraph (i) alleges that part of "the understanding" consisted of an instrument made between the respondents bearing date 30 May, 1979. Sub-paragraphs numbered (ii) to (xiii) detail other "parts" of the alleged "understanding". Some of these other "parts" of the "understanding" (sub-paras. (iv), (viii), (x), (xi), (xii)) appear largely to consist of provisions of the written agreement. One other "part" (sub-para. (xiii)) is inconsistent with the supplementary agreement. Other "parts" of the "understanding" (sub-paras. (ii), (iii), (v), (vi), (vii) and (ix)) go beyond anything contained in the written agreement and are of varying consistency (or inconsistency) with its terms. Sub-para (xiv) alleges in the alternative that the "understanding" consisted of the written agreement either alone or with any one or more of the "parts" described in (ii) to (xiii).

The principal argument advanced on behalf of the appellants against Brennan J's order granting leave to amend paragraph 5 was that the alleged "understanding", in so far as it went beyond the express and implied terms and the implementation and necessary consequences of the agreement, could not, as a matter of law, constitute an arrangement or understanding for the purposes of the sections of the Trade Practices Act, 1974 (ss.45, 4D and 45A) which provide the statutory matrix of the relevant alleged contraventions of the Act. The authorities demonstrate, it was argued, that some degree of consensus or shared expectation is necessary to establish an arrangement or understanding and that that consensus and/or shared expectation must depend on some form of communication. The respondent A.B.C. had clearly indicated, so it was said, that it neither alleged, nor placed reliance upon, any act of communication between the respondents other than the actual execution of the agreement. That being the case, it was said to follow, as a matter of law, that there could be no arrangement or understanding between the parties which extended beyond the express and implied terms, the implementation and the necessary consequences, of the written agreement.

It can be seen that the factual foundation of the appellants' argument is the assertion that the A.B.C. neither alleged nor placed reliance upon any act of communication other than the actual execution of the written agreement. To support that assertion, the appellants relied upon what was said by Mr. Staff Q.C., who appears for the A.B.C., in the course of argument before Brennan J. and upon the further and better particulars which had been supplied in relation to the new paragraph 5.

The relevant remarks of Mr. Staff Q.C. included the express statement that the entry into the agreement was "the only act of communication of the understanding . . .". Unaided by explanation, we should have interpreted his overall submissions before Brennan J. in the same way as the appellants interpreted them, namely, as indicating that the A.B.C. neither alleged nor placed reliance upon any communication between the appellants other than the execution of the written agreement. It would seem, from the reasons which he gave, that Brennan J. also so interpreted them. On the hearing of the appeal however, Mr. Staff explained that the disavowal of reliance upon any communication other than the making of the written agreement was intended to refer only to what actually brought the alleged arrangement or understanding into operation or effect. Contrary to the appellants' understanding, the A.B.C. did rely, as to content of the alleged arrangement or understanding, upon the various communications which, it is said, must have taken place between members of the Board and the corporate respondents before the actual execution of the agreement in writing.

In so far as the appellants' misunderstanding was the result of the further and better particulars of paragraph 5 which were supplied by the A.B.C., it would seem the explanation may be found in ambiguities resulting from differences in wording between the further and better particulars which Brennan J. had indicated should be supplied and a heading to the further and better particulars which the A.B.C. supplied. His Honour indicated that particulars should be supplied, to the extent to which the alleged "understanding" was "to be inferred", of "the facts, matters and circumstances from which the inference is to be drawn". In the particulars provided by the A.B.C., the heading was: "if the understanding is wholly or partly inferred, state the facts matters and circumstances from which the inference arose". The particulars supplied were stated to be of "the facts, matters and circumstances by reason of which each such part of the understanding is to be inferred" (emphasis added in each case). It would seem that the appellants understood, from the heading which the A.B.C. used and which differed from his Honour's direction, that particulars were being supplied of the facts, matters and circumstances from which the A.B.C. alleged that the relevant parts of the "understanding" were inferred as between the parties whereas the particulars supplied by the A.B.C. were largely of the evidentiary matters by reference to which it was said that the Court should draw the inference that the appellants had, by inference, arrived at the relevant parts of the "understanding" between themselves.

In the result, it appears to us that the necessary factual foundation for the appellants' argument has not been shown to exist. It is unnecessary to express any concluded view on the question whether, if that foundation had been shown to exist, there could be no understanding which extended beyond the content, implementation and necessary effect of the written agreement itself. In deference to the careful argument which has been directed to the point, we have given consideration as to whether we should express any tentative view on that question. We have concluded that it is preferable that we refrain from so doing at this stage of the proceedings.

The next argument advanced on behalf of the appellants to which we would make specific reference related to the "parts" of the "understanding" alleged in sub-paragraphs (ii), (iv), (x) and (xii) of the disputed paragraph 5 of the further amended statement of claim. When read with the further particulars which had been supplied, the "parts" of the "understanding" alleged in these sub-paragraphs were said to amount to the "necessary consequences" of performance of the written agreement. To allow them to be pleaded as "part" of the alleged "understanding" was argued to be contrary to what was said in this Court in Australian Broadcasting Commission v. Parish & Ors (supra) in dismissing an appeal from a previous decision of Brennan J. refusing the A.B.C. leave to amend paragraph 5 of its statement of claim.

The effect of the proposed amendment to paragraph 5 of the statement of claim which was under consideration in Australian Broadcasting Commission v. Parish & Ors. (supra) would have been to include all the unspecified "necessary consequences of the performance of the respective provisions" of an "agreement" in the "contract, arrangement or understanding" into which it was alleged the respondents had entered "by" the agreement in writing. It was the unspecified nature of the alleged "necessary consequences" and their inclusion in what was referred to as "the agreement" which provided the basis of the objection to the proposed amendment to paragraph 5 there under consideration. The position is quite different in the present case. Here, the relevant proposed additions comprise allegations that particular specific matters constitute part of an understanding extending beyond the ambit of the written agreement. These additions are of the type contemplated when it was expressly stated in the Australian Broadcasting Commission v. Parish & Ors. (supra, at p. 250) that the decision on the proposed amendment to paragraph 5 would not preclude the A.B.C. from applying to the trial judge for leave to amend paragraph 5 "in a manner which will ensure that the paragraph encompasses any specific allegation which it is desired to make" (emphasis added).

It was further argued on behalf of the appellant members of the Board that, in view of the fact that it was alleged by the A.B.C. that the written agreement of 30 May, 1979 had been made and was subsisting, it was not open to the A.B.C. to allege the existence of an understanding between the same parties which was inconsistent with the terms of the written agreement. We do not accept this submission. In our view, the existence of a written agreement may make the task of him who asserts an inconsistent understanding between the same parties a more than usually heavy one. It does not however preclude him from embarking on that task.

In Australian Broadcasting Commission v. Parish & Ors. (supra at p. 248), reference was made to the fact that the decision of a trial judge on the question of allowing an amendment to a pleading involves an exercise of judicial discretion on a question related to practice and procedure and to the principles which are appropriate to be applied by an appellate court on an appeal from such a decision. Neither the general arguments to which specific reference has been made above nor other more particular arguments to the effect that certain of the sub-paragraphs did no more than plead part of the written agreement or were otherwise embarrassing which were advanced on behalf of the appellants establish, in our view, any grounds which would justify this Court in interfering with his Honour's decision to allow the amendment to paragraph 5 of the amended statement of claim.

Paragraph 6 of the amended statement of claim read as follows:

"By agreement in writing dated 21st November, 1979 the respondents amended the agreement in terms, particulars of which are annexed hereto and marked with the letter "B". The agreement as so amended is hereinafter referred to as "the amended agreement"".

The amendment to paragraph 6 was to substitute for the previous paragraph the following new paragraph:

"By instrument in writing bearing date 21st November, 1979, hereinafter called "the second instrument", the respondents purported to amend the first instrument. The applicant charges, and the fact is, that Clause 1 of the second instrument was not intended by the parties thereto to have effect according to its terms, and is and was a sham".

It can readily be seen that there is basic conflict between the new paragraph 6 and its predecessor and that it is arguable that strictly speaking, the matters alleged in the new paragraph 6 ought not properly to be pleaded as part of the A.B.C.'s primary case. We are, however, quite unpersuaded that any proper ground has been made out for interfering with his Honour's decision, in the exercise of his discretion, to allow the amendment. Our view in that regard is confirmed by the fact that apparently the arguments advanced before this Court against Brennan J's decision to allow the amendment to paragraph 6 were not advanced before his Honour.

It was conceded by the appellants that the remaining amendments to the amended statement of claim which were allowed by Brennan J. were consequential upon his allowance of the amendments to paragraphs 5 and 6. Consequently, the appellants' attack upon his Honour's decision in relation to those further amendments fails with the failure to make good the attack upon his Honour's decision in relation to paragraph 5 and paragraph 6.

The other matter raised by the appeals concerns his Honour's order that the costs of the last day on which the question of the proposed amendments was before him, namely 14 August, 1980, should be costs in the cause. No argument was addressed to the Court on this aspect of the appeal and no ground has been shown for interfering with the order for costs which his Honour made.

We would add that, in the light of the A.B.C.'s approach to the case which emerged on the appeals, it would seem desirable that the A.B.C. furnish the best particulars which it is capable of furnishing of any facts, matters and circumstances from which it is alleged that so much of the "understanding" as was inferred between the appellants was, as between them, so inferred. That is a matter which is, however, best left to the learned trial judge to determine in the light of what has been said on behalf of the A.B.C. on the hearing of the appeals. In this regard, it is relevant to mention that Brennan J. expressly stated that his order did not prejudice the rights of any party to apply for further or better particulars if they should appear to be necessary in the preparation of the case for trial.

Finally, there remains for consideration the question of the costs of the appeals. The A.B.C. has largely been successful. On the other hand, the appeals arose largely from misapprehension, on the part of the appellants, as to what the A.B.C.'s approach to its case was. The A.B.C. was, to no small extent, responsible for that misapprehension. Doing the best that we can, we consider that the appropriate order as to the costs of each appeal is that such costs, as between the respective parties, be costs in the cause.