Phillip Morris Limited & Ors v Commissioner of Business Franchises

[1988] HCATrans 92

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M87 of 1987

B e t w e e n -

PHILLIP MORRIS LIMITED,

STATEWIDE TOBACCO SERVICES

LIMITED and G.P.M. CIGARETTE
DISTRIBUTORS (AUSTRALIA)

LIMITED

Plaintiffs

and

COMMISSIONER OF BUSINESS

FRANCHISES and the STATE

OF. VICTORIA

Defendants

Sunnnons for directions

Phillip Morris

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MAY 1988, AT 9.03 AM

Copyright in the High Court of Australia

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MR A.M. GLEESON, QC:  May it please Your Honour, I appear with

my learned friends, MR S.P. CHARLES, QC, and

MR N. YOUNG, for the plaintiffs.(instructed by

Arthur Robinson & Hedderwicks)

MR B.J. SHAW, QC:  If Your Honour pleases, I appear with my

learned friend, MR H.C. BERKELEY, QC, the Solicitor-General

for Victoria and MRS. CRENNAN, for the defendants.

(instructed by F.N. Brody, Solicitor to the Comptroller

of Stamps and Commissioner of Business)

HIS HONOUR:	Yes, Mr Gleeson?
MR GLEESON:	Your Honour, this is a summons for directions.

I notice that rule 3 of Order 31 requires or says:

An affidavit shall not be used on the hearing ..... except by leave of the Court

or a Justice -

on a summons for directions. We seek such leave in

relation to an affidavit that we have filed.

HIS HONOUR:  Yes. Any objection to that, Mr Shaw?

MR SHAW:	No, Your Honour.
HIS HONOUR:	Leave is granted, Mr Gleeson.

MR GLEESON: If Your Honour pleases. And the affidavit to which I referred antl on which I move is that of Trevor Collin Moore which was sworn 19 April 1988 and to which there

are some exhibits that have been filed in Court.

HIS HONOUR:	Yes.
MR GLEESON:	Your Honour, this is an action in which three

plaintiffs, all of whom - - -

HIS HONOUR:  Yes, I have read the papers, Mr Gleeson. Perhaps

I might ask Mr Shaw - Mr Shaw, why should not this

matter proceed in accordance with order 1 sought in

the applicant's summons?

MR SHAW: Because, Your Honour, of the provisions - well,

first of all, there is a question about where the

matter will be heard.

HIS HONOUR: Yes.

MR SHAW:  In view of some remarks of the former Chief Justice

it seemed unlikely that if facts were to be determined

this Court would regard itself as the most appropriate

place to determine them. It might, of course, but we

understood the Court, generally speaking, had set its

face against that course.

HIS HONOUR: It does.but, of course, the Court sets its face

against that when it appears that it is going to be

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difficult to resolve the issues of fact that arise.

At the moment, it does not seem that there is likely

to be much difficulty in this case.

MR SHAW: Well, in that case, Your Honour, the matter would

have to be heard - to have the matters of fact

determined by a single Justice, I assume.

HIS HONOUR:  Yes. But why should'we not, in the first instance,

ascertain what are the issues of fact? And we could readily do that by receiving affidavit evidence from

the parties.

MR SHAW:  Your Honour, the matter would appear to be regulated

by the terms of section 77H of the JUDICIARY ACT

which would seem to require that except in respect of

certain kinds of matters the action would be determined

on evidence given orally. Section 77H(1) is not

relevant; 77H(2) says:

proof may be given by affidavit of the service of a document in or incidental to the proceedings -

and so on; that sort of thing which is not relevant.

Section 77H(3) deals with the particular facts and
then there is a provision for cross-examination.

Section 77H(5) deals with agreement which is not

relevant and 77H(6) seems to provide that otherwise

the matter is to be determined orally, and since none

of those provisions seem to apply the result seems

to be that the matter ought to proceed on oral evidence

and the Court is, really, in a position where it cannot

do anything differently.

HIS HONOUR:  In the first instance it will be possible for me

to direct that affidavits be filed with a view to the

parties demonstrating, by affidavit, what are the issues

of fact in the case.

MR SHAW: Well, Your Honour, it is - - -

HIS HONOUR:  I ought to make it plain, Mr Shaw, t!hat I do not intend

to allow the defendant, in this case, to engage in

procedures which will unduly protract the determination

of what are the real issues in this case.

MR SHAW:  Indeed not, Your Honour, but a defendant is entitled

to have the plaintiffs prove what the facts are and is entitled to require that proof to be strict. In

this particular case many of the facts are peculiarly

within the knowledge of the plaintiffs and we ought to

be permitted, it is submitted, to ensure that the use

of ~ffidavits, designed most favourably to present the

facts to the Court, does not give a slant to the facts

which they are not entitled to have.

HIS HONOUR:  Yes.

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MR SHAW:  And it is because we are anxious, in view of the

situation of the defendants and the plaintiffs, vis-a-vis

one another, that we submit that the matter is one which

ought to proceed in the ordinary way. The matter,

of course, can be brought on to be heard before a

single Justice whenever one is available and the

relief which is sought depends on all sorts of facts

which are pleaded in the statement of claim, the

precise relevance of which is not - - -

HIS HONOUR:  Yes, some of the matters recited in the statenEnt of

claim, the relevance of them is not apparent to me

at this stage.

MR SHAW:	No, but one is worried that some argument is going to be mounted in relation to some facts and we want
to protect ourselves.

HIS HONOUR:  Yes, I can follow that. But it seems to me that

if the plaintiff in the first instance states on

affidavit what are the matters of fact that it seeks

to prove and endeavours by its affidavits to establish,

by evidence, those facts, the defendant and the Court

will then be in a position to see what is the nature

of the challenge that the defendant wishes to make to

those facts and the evidence by which the facts are

sought to be demonstrated.

MR SHAW:  Your Honour, the difficulty about affidavits is that

they present, like pleadings, an opportunity for the

draftsman of the affidavitsto present the case in a

way in which witnesses are not always able to do

without that assistance.

HIS HONOUR: Yes, but generally, Mr Shaw, judges are inunune

from that kind of seduction.

MR SHAW:  The generality may not necessarily prevail in every

single instance, Your Honour.

HIS HONOUR:

No, it may not but I think, in the particular

instance, the inununity is going to be very strong.

MR SHAW:  ~y learned friend point out to me that Your Honour

is suggesting, perhaps not trial on affidavit but,

rather, affidavits as a first step.

HIS HONOUR: That is right, that is as a first step. I do not

disown or disaffirm the notion of trial on affidavit

subsequently but as a first - - -

MR SHAW:  Your Honour was not affirming it either.

HIS HONOUR:  Yes. You will have another opportunity to resist

trial by affidavit. · It is not as dangerous as trial by

newspaper, Mr Shaw.

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MR SHAW:  If Your Honour was suggesting that and Your Honour

was suggesting that the affidavits should be

affidavits which would be admissible in the sense

that they are not hearsay and all that sort of

thing - - -

HIS HONOUR: Yes. In the first instance - well, I have in

mind affidavits that would be filed with a view to
providing a foundation of admissible evidence; not

merely pleading affidavits but affidavits which

should be drawn with a view to establishing the

facts in an acceptable and admissible form. And that

will enable us then to determine whether it would be

necessary to proceed further and have a trial on

oral evidence as well.

MR SHAW:  Yes. We do not demur from that, if Your Honour

pleases.

HIS HONOUR:  Very well. Now, do you wish to make any comment

in the light of that discussion, Mr Gleeson?

MR GLEESON:  No, Your Honour.

HIS HONOUR: In those circumstances I shall make orders in

terms of paragraphs 1 (a), (b), . (c) and (d) of the

applicants' summons, if that time span is acceptable

to you, Mr Shaw?

MR SHAW:  I am sorry, I did not catch Your Honour's - - -?

HIS HONOUR: Are the time limits in paragraph 1 of the

applicants' summons suitable to you?~

MR SHAW:  Your Honour, the time limits in relation to

paragraph l(b) are, of course, suitable. The time

limits in relation to paragraph (c) are not.

HIS HONOUR:	How much more time do you want? Another week?
MR SHAW: Three weeks we ask for, Your Honour.
HIS HONOUR:	Very well. You have no objection to that, do you,

Mr Gleeson?

MR GLEESON:  No, Your Honour.

HIS HONOUR: Well, that would be 10 June, I think, would it not?

That would give you 3 weeks, from 20 May?

MR SHAW:	Yes, it would, Your Honour.
MR GLEESON:	And could Your Honour say 17 June for paragraph (c)?

HIS HONOUR: Yes, I will. Well, I shall make orders in terms

of paragraph 1 of the applicants' summons of 19 April

substituting for "27 May 1988" in subparagraph (c)

"10 June 1988" and substituting for "3 June" in

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subparagraph (d) "17 June 1988". And for more

abundant caution, Mr Shaw, I shall say that the

order in paragraph l(a) is not to be understood
as an order that the trial of the action will take

place on affidavit evidence.

MR SHAW: If Your Honour pleases.

HIS HONOUR: That is a matter which I leave for subsequent

determination.

MR GLEESON:  Could we ask Your Honour to adjourn the sUimI1ons

for directions until - I am not sure what the next -

HIS HONOUR: Well, a date to be fixed?

MR GLEESON:  The next motion day after 17 June. I am not

sure when motion days happen. I have -

HIS HONOUR:  No, but why do you ask for that instead of a date

to be fixed, Mr Gleeson?

MR GLEESON:  We could fix the date then with the Registrar,

Your Honour, it would have the same result.

HIS HONOUR:  Yes, I think that is the best thing to do: a

date can be fixed convenient to the parties and to

the Court.

MR GLEESON:  If Your Honour pleases. And could we ask Your Honour

to order that costs of the application be costs in the

cause?

HIS HONOUR:  Yes. You have no objection to that, do you,

Mr Shaw?

MR SHAW:	No, Your Honour.
HIS HONOUR:	Costs of the applications will be costs in the

cause. And, in the circumstances, at this stage

there is no need for me to make an order on the
respondents' sUimI1ons.	The Court will now adjourn.

MR GLEESON:	Could I ask Your Honour to certify.
HIS HONOUR:	Yes, I will certify for senior counsel.

AT 9.17 AM THE MATTER WAS ADJOURNED SINE DIE

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