Re John Dee (Export) Pty Limited And Ors

[1989] ATPT 1

JUDGMENT No. ........ ........ .. ........ .... ,BYP

COMMONWEALTH OF AUSTRALIA TRADE PRACTICES ACT 1974

IN THE TRADE PRACTICES TRIBUNAL NO. NSW 5 of 1987

IN THE APPLICATION OF JOHN DEE

(EXPORT) PTY. LIMITED & ORS.

Applicants

RE! Annlication for a Review of - - - -. - - - - - - - - - - . - . - - - -

a Determination made by the Trade Practices Commission dated

1 n r t n h ~ r 1987

Lockhart J., (President)

16 March 1989

MINUTES OF ORDER

THE TRIBUNAL ORDERS THAT:

1. That John Dee (Export) Pty. Limited pay to the Victorian Stock Agents Association a sum which is sufficient to compensate it for the expense and loss which it reasonably incurred or lost in responding to and complying with the various summonses to witness served upon it by John Dee (Export) Pty. Limited from on or about 22 July 1988 to on or about 20 September 1988;

such expenses to include the class or classes of costs and expenses set forth in paragraph 4 of the affidavit of George Douglas Raitt sworn 31 January 1989; such expenses are also to include the costs of the appearances before the Tribunal on 8 December 1988 and today.

2.   Insofar as the costs mentioned in 1 above include professional costs and disbursements of the solicitors for the Victorian Stock Agents Association they should be taxed on a solicitor and client basis.

4. I direct the Registrar of the Tribunal to tax the said costs and expenses of the Victorian Stock Agents Association and to certify the sum payable by John Dee (Export) Pty. Limited to the Victorian Stock Agents Association and to restore the matter to the list before me for further order.

LIMITED DISTRIBUTION

COMMONWEALTH OF AUSTRALIA TRADE PRACTICES ACT 1974

IN THE TRADE PRACTICES TRIBUNAL No. NSW 5 of 1987

IN THE APPLICATION OF JOHN DEE

(EXPORT) PTY. LIMITED & ORS.

Applicants

RE: Application for a Review of a Determination made by the Trade Practices Commission dated 1 October 1987

16 March 1989

REASONS FOR DECISION

LOCKHART J. (President)

On 23 ~ecember 1988 I delivered written reasons for decision on the question whether the Trade Practices Tribunal has power to order payment of costs and expenses of a person upon whom a summons to appear or a summons to produce documents has been served. The question arose in the course of the hearing by the Tribunal of an application by John Dee (Export) Pty. Limited ("John Dee") for a review of a determination made by the Trade Practices Commission.

On that occasion I decided that the Tribunal had power to make orders entitling the Victorian Stock and Station Agents Association ("VSAA") to reimbursement of the costs and expenses which it incurred in complying with the summonses issued to it. The matter was then stood over to a date to be fixed for the purpose of determining the question of the class or classes of costs and expenses to which the VSAA is entitled. I have heard argument on that question today together with evidence on the anterior question of whether as a matter of discretion the Tribunal should make any order for reimbursement of the VSAArs costs and expenses. I turn first to that question.

It was submitted on behalf of John Dee that as a matter of discretion the Tribunal should make no order for payment of any of the costs and expenses which may have been incurred by the VSAA in complying with the summons served upon it. This argument was put on two independent bases.

First, it was submitted that the VSAA is not an independent third party but is in truth to be regarded as if it were a party. This submission relied upon what was said to be the direct interest of the VSAA in the result or outcome of the substantive matter which is still reserved before the Tribunal. The VSAA has a distinct, be it direct or indirect, interest in the result of the application for review before the Tribunal. That circumstance does not however lead me to conclude that the VSAA is to be regarded as if it were in truth a party to the proceeding. I therefore do not accept that submission.

Secondly, it was submitted that the VSAA adopted the stance of a party rather than of a third party. In short this submission was that in relation to summonses to produce documents the VSAA pursued a course of conduct which was designed to obstruct John Dee in the proper conduct of its case. In my view this submission has no foundation. Nothing that occurred before the Tribunal in my view could be said to have constituted obstructive conduct by the VSAA in relation to the summons. Indeed, the contrary was the case.

It was then put in the alternative that some portion of the costs and expenses other than the whole of the costs and expenses of the VSAA in complying with the summonses should be awarded. I see no reason to accept that submission so I reject it.

The other matter that arises for consideration is whether the costs and expenses of the VSAA in relation to the appearance before the Tribunal on 8 December, when the issue was originally argued, and today should be awarded.

In my opinion the costs of the VSAA associated with the appearances of 8 December and today were for the purpose of determining its entitlement to reimbursement. They are thus reasonably referrable to the Tribunal's power to order reimbursement to the VSAA of the costs and expenses incurred by complying with the summonses issued to it. In my view they too should be included in the costs and expenses to be awarded to the VSAA.

There is considerable difficulty in defining with any precision the classes of costs and expenses to be included in the order for reimbursement. The VSAA looks to paragraph 4 of the affidavit of George Douglas Raitt of 31 January 1989 as sufficiently defining or identifying those classes of costs and expenses. Counsel for John Dee points to certain of the subparagraphs as being not entirely exact or clear.

Although I think the delineation of the classes in subparagraphs (a) to (e) of paragraph 4 of Mr. Raitt's affidavit is somewhat general, there does not appear to be any better way of defining them.

Taxing officers are often, I am afraid, confronted by difficulties of this kind and no doubt they do the best they can. I think it is appropriate that the further questions in relation to costs and expenses should be dealt with by the Registrar of the Tribunal in Sydney by delegation from the Tribunal. When the Registrar has examined the question of entitlements of the VSAA to reimbursement he should so certify and the matter should then be restored to the list before the Tribunal which, as it is a matter of procedure, can be dealt with by myself. A final determination as to whether the order should be made for payment of the costs and expenses can then be made.

If any challenge is sought to be made to the findings of

the Registrar the time to make those challenges is when they

come back before me so that the whole queestion can be dealt with in one hearing. One hopes however that the hearing will be but a formality on that occasion.

The orders which the Tribunal makes are:

1. That John Dee (Export) Pty. Limited pay to the Victorian Stock Agents Association a sum which is sufficient to compensate it for the expense and loss which it reasonably incurred or lost in responding to and complying with the various summonses to witness served upon it by John Dee (Export) Pty. Limited from on or about 22 July 1988 to on or about 20 September 1988; such expenses to include the class or classes of costs and expenses set forth in paragraph 4 of the affidavit of George Douglas Raitt sworn 31 January 1989; such expenses are also to include the costs of the appearances before the Tribunal on 8 December 1988 and today.

2.   Insofar as the costs mentioned in 1 above include professional costs and disbursements of the solicitors for the Victorian Stock Agents Association they should be taxed on a solicitor and client basis.

3. I direct the Registrar of the Tribunal to tax the said costs and expenses of the Victorian Stock Aqents Association and to certify the sum payable by John Dee (Export) Pty. Limited to the Victorian Stock Aqents

Association and to restore the matter to the list before me for further order.

I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment herein of the

Honourable Mr. Justice Lockhart. n

v

Associate

- Date: 16 March 1989

Counsel for the Victorian Stock

& Station Agents:	Mr. P. Dowdy
Solicitors for Victorian Stock
& Station Agents:	Blake Dawson Waldron
counsel for John Dee (Exports)

~ t y . Ltd.: Mr. M. Cashion

Solicitors for John Dee (Exports)

~ t y . Ltd.: Allen Allen & Hemsley

Date of Hearing:	16 March 1989
Date of Judgment:	16 March 1989