Robert Hicks Pty Ltd (T/As Auto Fashions Australia) v Melway Publishing Pty Ltd

[1997] FCA 210

IN THE FEDERAL COURT
OF AUSTRALIA
VICTORIA DISTRICT
REGISTRY
GENERAL DIVISION  NO. VG 192 of 1995

BETWEEN

ROBERT HICKS PTY LTD (trading as
  AUTO FASHIONS AUSTRALIA)
  (ACN 005 072 775)

Applicant

and

MELWAY PUBLISHING PTY LTD
  (ACN 004 640 420)

Respondent

COURT:MERKEL J

PLACE:MELBOURNE

DATE:14 FEBRUARY 1997

EX TEMPORE REASONS FOR JUDGMENT

In this matter I have before me two applications.  The first is an application to strike out the amended statement of claim.  The second is an application that the respondent answer certain interrogatories.  The problem that has arisen is a common one in relation to cases arising under Part IV of the Trade Practices Act.  It relates to the definition of the market, for the purposes of the contravention of Part IV that has been alleged.  In the present matter it is contended that the refusal to supply Melway directories in trade and
commerce, to the applicant, constitutes a breach of section 46 of the Trade Practices Act.

An associated problem, as far as the pleading is concerned, is the challenge by the applicant to the interrogatories by the respondent. Essentially it is said that the interrogatories are fishing. 

Both problems are closely linked, mainly as a result of the lack of precision in the statement of claim as to the bases upon which it is said that section 46 has been breached.  It seems to me that there are four separate issues that need to be precisely pleaded and defined.  The first is the definition of the relevant market and the provision of proper particulars to support the existence of the alleged market for the purposes of the Trade Practices Act.

The second issue is whether or not the respondent has a substantial degree of power in the relevant market. 

The third issue is whether, in refusing to supply the applicant as alleged, the respondent has taken advantage of the substantial degree of power it is alleged to have in the relevant market.

The fourth issue is whether the conduct said to constitute the taking advantage of the power, was for a proscribed purpose. In that regard the purposes set out in section 46(1)(b) and 46(1)(c) are relied upon.  It seems to me that, at this stage, these issues have not been clarified by the provision of particulars
that are sufficient or adequate for the fair trial of the matter.

By way of example, the pleadings appear to merge the third and fourth issues in paragraph 14 of the statement of claim in which the taking advantage of market power for a proscribed purpose is alleged in the one paragraph, without any particulars. 

What I propose to do is to grant the applicant leave to deliver further particulars setting out exhaustively and with precision the proper particulars said to support each of the four issues. In doing so I expect paragraph 14 to be amended to ensure that the questions of taking advantage of the power and the allegedly proscribed purpose, are separately pleaded and separately particularised.

It seems to me that once this is achieved, the interrogatories which the applicant wishes to deliver can be redrawn with a precision that will identify, by reference to the particulars relied upon, the issues that the interrogatories are directed towards. This means that the interrogatories which I would expect to flow from the amendments will not be interrogatories that are fishing, but rather will be closely related to the particulars which will be delivered as a result of the orders I propose to make.  The formal orders I will make are:

1. the applicant deliver particulars of the matters alleged in paragraphs 3, 13 and 14 being a full statement of all the particulars upon which it wishes to rely in support of the allegations in those paragraphs;

1. the applicant have leave to amend paragraph 14 for the purpose of separately pleading the taking advantage of market power and the proscribed purpose relied upon;

1. the respondent shall deliver an amended defence on or before 2 April;

1. adjourn the directions hearing before me to, 18 April at which time I will deal with any applications by the parties to deliver interrogatories;

1. I further order that the respondent's taxed costs of and incidental to the applications in relation to the statement of claim and interrogatories shall be the respondent's costs in the cause. I also order that the applicant pay any of the respondent's costs thrown away by reason of the amendments which have been the subject of the leave granted in these orders;

1. I adjourn the matter for further directions on 18 April.

I certify that this and the preceding 3 pages are a true copy of the revised Reasons for Judgment of the Honourable Justice Merkel

Associate:

Date:

Heard:14 February 1997

Place:Melbourne

Date:14 February 1997

Appearances:  Mr. R. Garrett instructed by Freehill Hollingdale & Page appeared for the applicant.

Mr. C. Golvan instructed by Marshalls & Dent appeared for the respondents.