Re John Dee (Export) Pty Limited And Ors

[1990] ATPT 2

NOT FOR DISTRIBUTION

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COMMONWEALTH OF AUSTRALIA TRADE PRACTICES ACT. 1974

IN THE TRADE PRACTICES TRIBUNAIc NSW 5 of 1987

Applicants

RE: Ao~lication for a Review of a Determination made bv the Trade Practices Commission dated 1 Qctober 1987

6 December 1990

U R

THE TRIBUNAL ORDERS THAT:

1. The Commission and its officers be granted leave to use and refer to the documents produced to the Tribunal by the Victorian Stock Agents' Association ("VSAA") and comprising exhibit 22 in these proceedings, together with the information contained in or derived from such documents, for the purposes of considering and deciding whether the Commission should make a determination pursuant to s. 91(4) of the Trade Practices Act 1974 revoking the authorisation granted to the VSAA in respect of its Rules on 20 May 1983 and/or the authorisation granted by the Commission to the New South Wales Stock and Station Agents Association ("the SSAA") in respect of its Rules on 11 September 1984.

2. The Commission and its officers be granted leave to use and refer to the documents produced to the Tribunal by the SSAA

and comprising exhibit 18 in these proceedings, together with the information contained in or derived from such documents, for the purposes of considering and deciding whether the Commission should make a determination pursuant to s. 91(4) of the Trade Practices Act 1974 revoking the authorisation granted to the VSAA in respect of its Rules on 20 May 1983 and/or the authorisation granted by the Commission to the SSAA in respect of its Rules on 11 September 1984.

3. The Commission and its officers be granted leave to use, disclose to the VSAA, and refer to, the documents tendered in evidence before the Tribunal by John Dee (Export) Pty Limited and comprising exhibits 23, 24 and 25 in these proceedings, together with the information contained in or derived from such documents, for the purposes of considering and deciding whether the Commission should make a determination pursuant to s. 91(4) of the Trade Practices Act 1974 revoking the authorisation granted to the VSAA in respect of its Rules on 20 May 1983 and/or the authorisation granted by the Commission to the SSAA in respect of its Rules on 11 September 1984.

4. The Tribunal grants leave to the Victorian Stock Agents Association to inspect exhibits 23, 24 and 25, and in addition to inspect exhibit 18, but until further order limits inspection of exhibit 18 to counsel and solicitors for the Association, and the information contained in the

exhibit and the exhibit itself are to remain confidential

to the counsel and solicitors for the Association.

5 . The Tribunal also grants leave to the Stock and Station Agents Association of New South Wales to inspect exhibit 22 but until further order the inspection should be limited to counsel and solicitors for the Association and the exhibit and its contents are to be kept confidential to them and not be disclosed to other persons.

-- NOT FOR DISTRIBUTION

COMMONWEALTH OF AUSTRAL14 TRADE PRACTICES ACT. 1974

IN THE TRADE PRACTICES TRIBUNAL NSW 5 of 1987

RE : JOHN DEE (EXPORT) PTY.

Applicants

RE: A~~lication for a Review of

a Determination made bv the Trade P r act'ces 1 Commission dated 1 Qctober 1987

6 December 1990

LOCKHART J. (PresidentL

The matter of John Dee (Export) Pty. Limited was before the Tribunal some time ago. In the course of that hearing the Tribunal made (on 1 September 1988) certain confidentiality orders with respect to documents that were produced and tendered in the proceedings. They included documents which became

exhibits 18, 22 , 2 3 , 24 and 2 5 .

The Trade Practices Commission now applies to the Tribunal for orders in effect varying those confidentiality orders by permitting the Commission and its officers to have a wider use of the documents included in the exhibits to which I have referred than that use which it says is covered by the confidentiality orders.

I have, I must confess, some doubt as to whether the orders made on 1 September 1988 bind the Commission at all, but if that be so, then the Commission applies for more abundant caution and that is an understandable application. It is right that in cases of doubt the Commission seeks to resolve it by an application of this kind.

There is no objection taken by any of the persons interested in the documents who are represented today to the substance of the orders sought by the Commission, but certain protection is sought by the interested bodies; in particular, the Stock and Station Agents Association of New South Wales and its Victorian counterpart.

In effect, what is sought to be done is to limit the access of the Commission to the documents to prospective use of the information contained in them in such a way as to hamper the Commission using the information in relation to any steps it might already have initiated pursuant to its powers under the Trade Practices Act 1974. It is further sought to limit the Commission's access to certain of the documents to inspection by solicitors and counsel.

The Commission's orders as framed in the application filed on 19 November 1990 make it clear that the Commission wishes to use exhibit 22, and the information contained in it, to consider and decide whether it should make a determination pursuant to s.

9 l(4) of the Trade Practices Act 1974 revoking the authorisation already granted to the Victorian Stock Agents Association and the authorisation granted by it to the New South Wales Stock and Station Agents Association, in respect of their rules on 11 September 1984. Similar orders are sought in relation to exhibit 18 and orders of a slightly different character are sought in relation to exhibits 23, 24 and 25.

In my opinion the application is a proper one and should be acceded to. I think there is sufficient protection for any interested party built into the framework of the orders as formulated by the Commission in the application. Accordingly, the Court makes orders 1, 2 and 3 as asked in the application of the Commission filed on 19 November 1990.

The Court makes by consent of John Dee (Export) Pty. Limited and the Stock and Station Agents Association of New South Wales, the two orders set out in the minute of order signed by me, dated today and placed with the papers.

In addition to the order previously made granting the Commission access to certain exhibits, the Tribunal grants leave to the Victorian Stock Agents Association to inspect exhibits 23, 24 and 25, and in addition to inspect exhibit 18, but in the case of that exhibit such inspection being limited to counsel and solicitors for the Association, and the information gained from inspection of exhibit 18 and exhibit 18 itself are to remain

confidential to the counsel and solicitors for the Association

until further order.

The Tribunal also grants leave to the Stock and Station Agents Association of New South Wales to inspect exhibit 22.

Also in the case of exhibit 22, I further direct that the inspection by the Stock and Station Agents Association of New South Wales should be limited to the counsel and solicitors for that Association, and the exhibit and its contents are to be kept confidential to them and not be disclosed to other persons.

I decline to make order 1 as asked in the notice of motion of the Victorian Stock Agents Association as, in my opinion, it would not be a proper limitation to impose on the Commission. If the Commission should seek to use any of the exhibits, to which reference has been made, for the purpose of furthering its case in any action or proceedings it may previously have taken, then the extent to which it can do so is a matter to be appropriately determined, I think, by the Tribunal or Court before whom that matter should arise.

I certify that this and the

preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate & G

/*

Q&&: 6 December 1990

Counsel for John Dee

(Exports) Pty Limited	Mr Campion
Solicitors for John Dee

(Exports) Pty Limited	:	Allen Allen & Hemsley
Counsel for Trade Practices Commission
Solicitors for Trade
Practices Commission	Australian Government Solicitor
Counsel for the Victorian
Stock Agents Association	Miss C L Sinclair
Solicitors for the Victorian
Stock Agents Association	Blake Dawson Waldron
Date of Hearing	6 December 1990
Date of Decision	:	6 December 1990