T.N.T. Management Pty Ltd v Trade Practices Commission

[1983] FCA 120

193: 3	I N THE FEDERW COURT OF PNSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	) No. G . 4 4 of 1 9 7 8

GENERAL D I V I S I O N )

BETWEEN :

Applicants

AND :

-	TRADE PRACTICES
COMMISSION

Respondent

JUDGE MAKING	ORDER:	F r a n k i J.
DATE OF ORDER:	20 June 1983
WHERE MADE:	Sydney

THE COURT ORDERS THAT:

No o r d e r 1 s made upon the a p p l i c a t i o n o t h e r t h a n t h a t the

respondent , Trade Practices Commiss ion , pay* th ree qua r t e r s of

t h e costs of t h e a p p l i c a n t s , T.N.T. Management P ty . L imi ted ,

Ansett Transpor t Indus t r i e s (Opera t ions ) P ty . L imi t ed and

Assoc ia ted S teamshlps P ty . Limlted i n t h i s motion.

I N THE FEDERAL COURT OF AUSTRALIA )

NE\$ SOUTH WALES D I S T R I C T R E G I S T R Y ) No. G.44 0 2 1978

GENERF-L D I V I S I 0 1 3 1

BETHEEN :

Applicants

AND :	TRADE	PRACTICES
_.

COMMISSION

Respondent

20 June 1983

Sydney

REASONS FOR JUDGMENT

FRANK1 J .

I glve judgment In this application, In whlck! I reserved

judyment, but I have not been able to 92t the ~udqment into a form whlch can be glven to the parties, Fartlcularly because of the position of thls later affldavit of Miss Eannon, whlch I allowed to be read in court this m0rnir.g. I will have to read what I have got to say. I am qlving it orally hscause of what was perhaps untll the lxst few Inmutes the urgency of +.he natter.

Before me is an applicztlon flled on 23 May 1983 by

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T.N.T. Management Pty. Limlted, Ansett Transport Industries

(Operations) Pty. Llmited and Rssociated Sreamshlps

Pty. Llmlted

("the appllcants"), who are the first, fifth

and seventh

defendants, in an actxon brought by the Trade Practices

Commission under the Trade Practices Act 1974.

The action was commenced in May 1978 and there have been

approximately 25 ~udgments on interlocutory matters, four of which have been given in appeals to the Full Court of this Court

and one by the High Court which had granted speclal leave	to
appeal.

The history of the matter can be ascertained from

varlous judgments I have delivered and to which I referred in my judgment of 18 April 1983. Subsequent developments are to be found in my judgments of 27 April 1983 and 2 June 1983 and the ludgment of the Full Court of this Court of 8 June 1983.

Thls ludgment is In a notice of motion origlnally flled on 23 May 1983 and twlce emended by consent during the hearlng.

The amended notlce of motion sought orders whlch broadly fell

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into five categories. The flrst sought that the' Comisslon

"make, file and serve wlthin 14 days an affldavit maklng further

and better discovery", the second souqht certain orders under

S .l57 of the Trade Practices Act, the third sought that the

Commisslon "supply and/or 2lscover" certain records relating to a

company, Tradestock Pty. LiniLed. The fourth category sought

3 .

t h a t t h e Commlssion "supply ane/or dlscover" . . . " a l l flies and

r e c o r d s r e l a t l q g t o a p p l i c a t l o n s f o r a u t h o r l s a t l n n s a n d t o

s eek lngs of c l e a r a n c e s u n d e r t h e T r a d e P r a c t l c e s A c t Involving

any of the d e f e n d a n t s u n t l l 26 June 1978" . In each ca se t he

words "and/or d l scover" were added by the f i r s t amendment. T h e

f i f t h ca t egory , added by t he s econd amendmen t , sough t t ha t t he

Commission s t a t e hy a f€ idav i t whe the r a l l o r any o f t he 2ocurnen t s

r e f e r r e d t o i n t h e t h l r d a n d f o u r t h c a t e g o r i e s a r e o r h a d b e e n a t

any time i n i t s posses s lon , cus tody or power and, i f any such

documents were no longer i n such posses s lon , cus tody o r power,

whether or n o t t h e Commlssion had parted with any such document

' and what had become of tha t document .

The p r o c e e d i n g s a r e s t i l l u n d e r t h e r u l e s of t h e High

Cour t , see my ludgment of 8 May 1981. A f l r m h e a r m g d a t e of l 7

May 1 9 8 3 f o r t h e commencement of the a c t l o n was vacated by an

o r d e r o f 8 June 1983 of the Ful l Cour t o f th l s C o u r t made by

consent and a new h e a r l n g d a t e was f l x e d f o r i 5 .June 1983. 1

w i l l r e f e r t o this o r d e r l a t e r . F o w e v e r , b e c a u s e o f t h e n e e d t o

d e a l w i t h this a p p l l c a t i o n , I p o s t p o n e d t h e h e a r i n g d a t e o f t h e

a c t i o n Lint11 2 1 June 1983. I a m delivering t h i s judgmer?t o r a l l y

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because It is now 20 J u n e 1983. ' On 16 June l983 L heard and

r e f u s e d a n a p p l i c a t l o n made by the second e fendant , Brambles

Ho ld lngs L lml t ed , t o ad lou rn t he comnencement o f che hea r ing

u n t l l e a r l y I n J u l y . T h a t d e f e n d a n t w l a h e s t o s e e k s p e c x a l l e a v e

f rom the High Cour t CO S p p e a l s g a i n s t h e Zudgment o f the F u l l

Court of th l s Cour t c l e l lve red on 8 June 1983 In a m a t t e r which

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also Involved the questior: of discovery and in partlcular whether 6 party had an obllgatlon to dlscover, as it were, 13 d serial

form, relevant documents comng Into Its possesslon from tine to

tlme after the origlnal affldavlt of dlscovery was sworn.

Previoas applicatlocs In relatlon to discovery have been

flled by the flrst, flfth and seventh and the second defendants. On 1 2 Aprll 1983, the flrst, fifth and seventh defendants filed the norlce of motlon In which I gave judgmenr dlsmisslng the

appllcation on 18 and 2 7 April 1983 and from which the first,

fifth and seventh defendants appealed to the Fuil Court. It gave

, judgment on 8 June 1983 and dismissed the appeal so far as

related to discovery. The second defendant filed a notice of motion on 19 April 1963 seeking "a further and better affidavlt of discovery In relation to Its clalm for legal professlonal prlvilege". Thls I refused OR 2 7 April 1983 and an appeal Sy the second defendant was dismissed so far as it related to discovery by the Fcll Court on 8 June 1983. It will therefore be seen that, sub~ect t3 the intlmatlon by counsel for the second defendant that It proposes~to seek speclel leave to eppeal to the High Court on the question of dlscovery, the issue of dlscovery

as at about 18 April 1983 has been'determineda

-lowever, the Commission apparently decided to make a further examlnatlon of the doc-mcnts in Its posseeslon and, as a result 05 this, provlded a further 1 7 3 pages of material to the solicltors for the first, flfrh and seventh defepdsnts on 27 May

5 . r .

19d3 and a further 40 pages of material on 2 June 1983.

The hcarlng cf thls motion 3 2 s cccupled more than two full days and after lunch on the second day senior counsel for the flrst, fifth and seventh defendants abandoned the claims under s . 1 5 7 of the Trade Practices Act. It is necessary at this stage to examine agaln the nbllgation to glve discovery and allow

inspection. As I sald in my judgment of 2 7 April 1983 at p.3 :

“I consider it important to Sear in mind that

dlscovery 1 s 2nly for the purpose of

facilltatinq the proper trl.al of an actlon and

~t 1 s lmportant that satisfylng the

requlrements of discovery should not Involve a task qf such magnitude that the determinatlon of the real Issues In an actlon may be delayed

and, lndeed in an extreme case, the

determlnatlon of these issues could

conceivably become almost impossible”.

The materlal before me In this appllcatlon conslsts of certain letters whlch passed between the solicitors, a copy of the documents whlch were made avallable for inspection by the Commission on 2 7 May and 2 June 1983, affidavits by Mr J.R. Klng, a partner in the firm of kollcltors acting for the flrst, fifth and seventh defendants, of 23 May, 2 6 May, 30 May and 1 6 June 1 9 8 3 , an affidavit of Xr R.C. Wheeler, a sollcltor in the employ

of the same solic~.tors, of 26 May 1983, affidavlts of V s . W.P. Hannon, a member of the staff of the Ccmonwealth of Australia asslstmg the nlaintiff, of 9 June 1983 and 1 7 June 1933, and of Mr G.G. Roberts, a Prlnclpal Legal Offlcer In the sub-office (Trade Practices) of the CQmnonwealth Crown Solicltor, of 10 June

i

i983.

The main thrust of the applicants' czse 13 this mctlon may be broadly stated as that there must be other documents whlch ought to have been <Iscovered as being relevant If for no other reason than because there 1s a reference In a document discovered CO some other docurent. The flrst a2fidavit of dlscovery filed

by the Commisslon on 2 7 January 1381 was of 571 pages. The notice Of motion now before me, whilst dealing with dlscovery, appears to me EO be really dlrected to ensurlng inspection of

documents which it was alleged were likely to be I n the

' possesslon of the Commisslon and likely to be relevant. The

request for discovery appears to have no practical purpose other than to found a claim for inspection. Mr Roberts, in hls affldavit, deposed to a request on 19 !4ay 1983 by counsel for the Cormlsslon for the production for his examination of all files held by the Commlssion whlch mlght contain any documents relevant to any issues In these proceedings so that a further check could be nade for the purpose of flllng a supplementary affldavit of dlscovery. He then sald that Mr Rayment Q.C. and he had examlned a number of flles tc which he referred. The Commlsslon ccnducted the case before me on the basis thAt there were no other relevant documents which ought to have been dlccovered end whlch had not been dlscovered. Attention was dlrecred by the applicants to paragraph 4 of Ms. Sannon's a€fldavlt of 0 June 1983, and to the fact that the words "possess~on, custody or power" dld not ap9ear thereln. I gave leave today for an affidavit to be read by Miss

7 .

Hannon whlch c l a r l f i e d t ? l a t p o s i t i o n . The Commission adopted the

a t t l t u d e t h r o u g h c u t c h a t t h a t was msre!y an omiss ion wl thout

be lng made o t h e r t h a n by Inadve r t ence .

My a t t e n t l o n was d l r e c t e d t o v a r i c u s c a s e s including

Mulley v. Manifold ( 1 9 5 9 ) 103 C . L . R . 331 where Meczies J. d e a l t

w l t h r u l e s 1 3 aEd 18 o f o r d e r 3 2 . A t p .343 3 1 s Honour r e f e r r e d

t o t h e a f f l d a v l t of d l s c o v e r y b e l n g c o n c l u s i v e x c e p t I n t h e

circumstances set o u t a t t h a t page and a t p .345 h l s Honour s a i d

t h a t d i s c o v e r y was n o t t o w a r d s a s s i s t l n q a p a r t y upon a f i s h l n g

expedi t lon and cont inued:

"Only a document which r e l a t e s i n some way t o

a matter l n i s s u e 1s d l s c o v e r a b l e , b u t it i s

sufficient i-F It would, or would lead t o a

t r a i n of enqulry which would, e l ther advance a

p a r t y ' S own c a s e o r Zamage t h a t o f h l s

a d v e r s a r y " .

That case does n o t d e a l wlth t h e q u e s t i o n of l n s p e c t l o n . lu?lere

a n o r d e r f o r l n s p e c t l o n 1s sought, o r d e r 32 r u l e 16 a p p e a r s t o be

the r u l e t h a t i s applicable a n 6 t h e t c s c there a p p e a r s t o bs t b a t

a J u d g e s h a l l n o t "make an o rde r Gn les s In h i s o p i n l o n t h a t 1 s

necessa ry ei-Eher f o r dlSposiEg	f a i r l y of	the proceedings or	f o r
s a v i n g c o s t s " .

My a t t e n t l o n was a l s o d l r e c t e d t o t h e r a c e n t : u d g n e n t 0."

t h e House of Lords ill .3lr Canada v . Secret?.ry of S t a t f fo r Trade

(1983) 2 W.L.R. 494. "hat ~ 3 . ~ 3 dezllt rnajnly w;-h t h e q u e s t l o n o f

p u b l l c I n t e r e s t imrnunlt-y f rom iq spec t lon of ce r t a in documen t s .

8.

Lord Edmund-Davies at p.531 said in relatlon to discovery:

"It follows, that at every stage of

lnrerlccutory proceedings for dlscovery, the

test to be applled 1 s : W111 the materlal socght be such as is likely to advance the

seeker's case, elther afflrmatively or

indlrectly by weakening the case of his

opponent?"

Mr Roberts explained that some documents whlch had been

dellvered by the plalntiff's solicltors to the defendants'

sollcltors had not been llsted In the affidavit of discovery of 9 June 1983 because, on reflectlon, they were not considered relevant or were already formally discovered in earller

affidavits of dlscovery. At least since the affidavlt of 1 7 June

1993 was flled and read this mornlng the applicants, in my

oplnlon, have not succeeded In establishing facts which would

entitle them to any further affidavlt of discovery. I was asked by the applicants to inspect the documents which were provided by the solicitors for the Commlssion on 27 Xay 1983 and 2 June 1983. Eo opposltlon was raised to my adopting thls course and I have carried out such an lnspectlon. It is clear that Elr Klng belleves some relevant documents have nct been dlscovered.

I am of the oplnion that if, contrary to the views I have expressed, the applicants ha3 established that there were some documents relatmg to a matter in questlon which ought to !-.ave been dlscovered, the questlon of whether I would order inspection would then arise cni: I would have to conslder whether

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an oreer for lnspectior. was necessary elt?ler fcr dlsposing fairly

of the proceedlngs or for savlng caqts. It 1 s not Irrelevant to

note that many of the documents which it 1 s slleged the

Commisslon oEght to hax-e discovered are documents emanating from

the defendants, for example.	from the flrst defendant, an
appllcant In thls matt-lr.

I dlrect my attentlon to the request for orders that the plalntiff "supply or dlscover". The case was con3ucted upon the basis that the appllcation extended, if not to an obligatlon to supply, certainly to an obllgation to allow Inspection. MO materlal was specifically put before me In relation to whether any Inspection, even if all other requirements had been

established, was necessary for fairly dlsposing of the

procsedlngs or necessary for savlng costs. I would not be prepared to conclude that it would be necessary for saving costs. If there should be an odd document or two which had not been discovered In the thousands of pages of material dlscovered and If there mlghC Se some grounds for argulng that an order for lnspection should be made, I would be greatly surprlsed lf any such document (lf it existed) would be necessary for fairly disposlng of the proceedlngs.

Senlor counsel for the appllcants submltted that It 1 s

posslb1.e that there is relevant materlal still EO= dlscovered

belng, in partlcular, determlnations of the Commlsslon ln

appllcations by one or other defendants ~nvol.~ing questions of

the relevant market and quostlons of conpetltinn end these cou:d

"lead to a traln of enqmry relating to rrarket". I am by no

means satisfied of this.

In so far as any order de2ends on the exerclse of my discretion I note that a number of the documents which appear to be promlnent In the minds of the applicants are documents whlch emanated from the flrst defendant. In addition, there is no real evidence before me whether or not copies of these documents are stlll In the possession of the applicants. Also, the existence of files relatlng to applications for authorisatlon and notlces

,seeking documents under the Trade Practices Act must have been

known to each of the applicants for many years.

It 1 s of course clear that the Commisslon ought not to have failed to make previous dlscovery of any of the documents made available on 2 7 May and 2 June 1983, if they were properly dlscoverable. And para. 4 of MS Hannon's affidavit of 9 June 1983 should have been in proper form. I was also lnformed this morning by senlor counsel for the Commlssion thar paragraph 3 of Mlss Hannon's affidavlt of 9 June 1983 was also, I think it is falr to say, inadvertently incorrect, but I do,no more than state that the transcript records preclsel-y what was said about that paragraph this morning.

I acid that becacse of thls informatlon I asked for

submlsslons on whether I shou!d dellver ludgment in t h l s matter

11.

this mornlng or whether 1 should FostFone It so t h a t some f u r t h e r .

a f f i d a v i t c o u l d S e f l l e d . S u b m l s s l o n s w e r e made by t h e

Commlssion and by a number of defend2nts I n the a c t i o n , 1 n c l u d l n - j

t h a applicants 13 t h l s m a t t e r , t h a t I should e l iver ]udgment

f o r t h w l t h . I have adop ted t ha t cou r se . KO o p p o s i t l o n was r a i s e d

by snybody t o my so do lng .

I t may b e t h a t h e d o c u m e n t s made a v a i l 2 b l e o n 2 7 May

and 2 J u n e o n l y a t t r s c t e d a t t e n t i o n a f t e r the a c t i v i t y o f t h e

a p p l l c s n t s p r i o r t o t h e p r e s e n t n o t l c e o f m o t i o n b e l n g f l l e d .

The a f f l d a v l t s of 9 and 10 J u n e 1 9 0 3 c o u l d f a i r l y b e d e s c r i b e d a s

, f u r t h e r affidavits of d l scove ry . I t was f o r t h i s r e a s o n t h a t I

r e f u s e d t o allow c ross examina t ion o f Mr Rober t s . Apar t f rom the

q u e s t i o n of c o s t s , I r e f u s e t o make a n y o r d e r s i n t h e amended

no t l ce o f mot lon o f 2 3 May 1983.

I cer t l iy that t h l s and the &Qo)

preced1P.o ?ages are a true copy of the

Reasons For .iudqment herer! OB hls Honour

Xr Zustlce EYcnkl.