Technology Leasing Limited v Bergia 2 Pty Ltd T/as a and a Smash Repairs
[2011] FCA 284
•29 March 2011
FEDERAL COURT OF AUSTRALIA
Technology Leasing Limited v Bergia 2 Pty Ltd T/as A & A Smash Repairs [2011] FCA 284
Citation: Technology Leasing Limited v Bergia 2 Pty Ltd T/as A & A Smash Repairs [2011] FCA 284 Parties: TECHNOLOGY LEASING LIMITED (ACN 071 702 264) and THOMAS DAVID FORD v BERGIA 2 PTY LIMITED TRADING AS A & A SMASH REPAIRS (ACN 125 908 107), CHRISTOPHER BOZIC and AUSTRALIAN COMPETITION AND CONSUMER COMMISSION File number: NSD 1392 of 2010 Judge: COWDROY J Date of judgment: 29 March 2011 Catchwords: PRACTICE AND PROCEDURE – Intervention by ACCC - application by ACCC to intervene in private proceedings under s 87CA of the Trade Practices Act 1974 (Cth) – whether ACCC should be restricted in its access to discovered documents and affidavits – no restriction applied Legislation: Trade Practices Act 1974 (Cth) ss 52, 73, 82, 87CA
Trade Practices Amendment Act (No 1) 2001 (Cth)Case cited: Henville & Another v Walker & Another (2001) 206 CLR 459 Date of hearing: 24 March 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: Mr J C Giles Solicitor for the Applicant: Horton Rhodes Lawyers Counsel for the First Cross-Respondent First Cross-Respondent appeared in person Counsel for the Respondents Mr A D Crossland Solicitor for the Respondents Atwood Marshall Lawyers Counsel for the Intervener Mr R J Wright SC and Mr R A Yezerski Solicitor for the Intervener Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1392 of 2010
BETWEEN: TECHNOLOGY LEASING LIMITED (ACN 071 702 264)
Applicant/Second Cross-RespondentTHOMAS DAVID FORD
First Cross-RespondentAND: BERGIA 2 PTY LIMITED T/AS A & A SMASH REPAIRS (ACN 125 908 107)
First Respondent/First Cross-ClaimantCHRISTOPHER BOZIC
Second Respondent/Second Cross-ClaimantAUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Intervener
JUDGE:
COWDROY J
DATE OF ORDER:
29 MARCH 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Orders made by this Court on 24 March 2011 be confirmed.
2.The ACCC be granted access as a party to the proceedings to all documents made available on discovery by all parties.
3.The ACCC be granted access to all affidavits prepared and served by any party in the proceedings.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1392 of 2010
BETWEEN: TECHNOLOGY LEASING LIMITED (ACN 071 702 264)
Applicant/Second Cross-RespondentTHOMAS DAVID FORD
First Cross-RespondentAND: BERGIA 2 PTY LIMITED T/AS A & A SMASH REPAIRS (ACN 125 908 107)
First Respondent/First Cross-ClaimantCHRISTOPHER BOZIC
Second Respondent/Second Cross-ClaimantAUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Intervener
JUDGE:
COWDROY J
DATE:
29 MARCH 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By notice of motion dated 11 March 2011 the Australian Competition and Consumer Commission (‘the ACCC’) sought leave to intervene in proceedings NSD 1392 of 2010 pursuant to s 87CA of the Trade Practices Act 1974 (Cth) (“the Act”).
Section 87CA of the Act provides:
87CA Intervention by Commission
(1)The Commission may, with the leave of the Court and subject to any conditions imposed by the Court, intervene in any proceedings instituted under this Act.
(2)If the Commission intervenes in a proceeding, the Commission is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.
On 24 March 2011 the Court granted leave to the ACCC to intervene subject to two conditions, namely that the ACCC’s intervention be limited to the making of written and oral submissions in relation to the Cross-Claimants’ claims under s 73 of the Act and that the ACCC bear its own costs in relation to the intervention. Section 73 of the Act makes provision for a supplier and a financier to be rendered liable if a consumer establishes loss or damage in respect of goods or services acquired from the supplier as a result of finance being provided by the financier.
On the basis of having been made a party to the proceedings, pursuant to s 87CA(2) of the Act the ACCC seeks access to the documents made available by each party through discovery and also to all parties’ affidavits.
The applicant in the proceedings namely Technology Leasing Limited (‘TLL’) who is also the second Cross-Respondent, opposes such access and maintains that the ACCC’s intervention be restricted to affidavits and documents which are tendered into evidence.
TLL submits that if the ACCC intends to only make submissions, material which is not tendered into evidence is irrelevant for this purpose. TLL further submits that the intervention of the ACCC is restricted in the sense that it does not seek to become liable for any costs in the proceedings and can only present submissions in respect of s 73 of the Act. Accordingly, TLL asserts that there is no reason for the ACCC being given the right to examine all documents provided by the parties in discovery, which may include for example an internal TLL document which may not be tendered into evidence, nor used for cross-examination by the ACCC and in respect of which no evidence will be led by the ACCC.
As to the affidavits filed in the proceedings TLL submits that the ACCC should not be given an unfettered right and that access should only be granted to affidavits or portions thereof which are admitted into evidence. In support of such submission, TLL points out that the ACCC does not seek to cross-examine witnesses nor to support any party in the proceedings.
The Court notes that the ACCC will bear its own costs in relation to the intervention as required by the condition of the intervention order and acknowledges that it may be subject to further costs orders that the Court deems appropriate.
Consideration
Section 87CA was inserted into the Act by the Trade Practices Amendment Act (No 1) 2001 (Cth) which came into operation on 26 July 2001. Item 33 of the Explanatory Memorandum for the Trade Practices Amendment Bill (No 1) 2000 (‘the EM’) is entitled ‘Intervention by the Commission’ (i.e. the ACCC) and refers to s 87CA which allows the ACCC to intervene in private proceedings instituted under the Act. The EM records that the ACCC may only intervene with leave of the Court and that upon intervention the ACCC will become a party to the proceedings.
Significantly, paragraphs 76 and 77 of the EM provide:
76. The right to intervene, subject to the Court’s leave, will allow the ACCC to intervene in matters where the case raises issues of public interest which have not been fully addressed by the parties. In particular, the ACCC may seek the Court’s determination of untested areas of the TPA, to clarify the operation of the Act. Intervention by the ACCC will also allow the Court to make a more balanced judgement in cases which have a significant impact on the community at large.
77. The ACCC will develop guidelines which will outline when it may intervene in private proceedings.
Guidelines have been prepared by the ACCC relating to intervention in private proceedings. The Guidelines relevantly provide:
Item 33 of Schedule 1 to the Trade Practices Amendment Act (No. 1) 2001 came into operation on 26 July 2001. It enacted a new s. 87CA, which states that the ACCC may, with the Federal Court’s leave and subject to any conditions imposed by the court, intervene in any proceedings instituted under the Act (subsection (1)). If the ACCC intervenes it becomes a party to the proceedings and has all the rights, duties and liabilities of such a party (subsection (2)).
In amending the Act, Parliament clearly intended to permit the ACCC to intervene in a broader range of cases than previously contemplated under s. 163A and expects that the ACCC will use its increased power accordingly. The ACCC now has an express statutory right to apply to intervene in a wide range of private actions under the Act without having to rely on the court’s inherent jurisdiction.
The amendment forms part of a broader spectrum of changes to the Act aimed at enhancing the ACCC’s ability to protect consumers and small business.
The explanatory memorandum for the amending Act stated that the ACCC would develop guidelines to outline when it may intervene in private proceedings. This publication sets out those guidelines. The ACCC will review them in light of its experience in using s. 87CA.
Findings
A party to proceedings is entitled to inspect any party’s documents made available through discovery regardless of whether they are tendered into evidence. Further, a party is entitled to see any other party’s affidavit evidence before such affidavits are read in Court. To seek to restrict the ACCC in the manner suggested by TLL would impose an artificial and unwarranted fetter upon the rights of the ACCC granted under s 87CA of the Act. Further, such a restriction may operate to severely inhibit the ability of the ACCC to assist the Court in private proceedings with respect to ‘untested areas of the TPA to clarify the operation of the Act’.
As the Act is a statute designed for consumer protection, its provisions are to be interpreted broadly. In Henville & Another v Walker & Another (2001) 206 CLR 459, McHugh J, having referred to the manner in which s 52 of the TPA is to be applied, said of the approach to s 82 of the Act:
The width of the potential application of s 82 and the objects of the Act tell against a narrow, inflexible construction of the section. [Footnotes omitted].
By analogy, there is no reason nor justification to read down the provisions of s 87CA of the Act, the very purpose of which is to enable the ACCC to provide, as a disinterested third party, assistance to the Court with respect to a novel subject matter of the Act. Accordingly the Court is satisfied that there is no basis to apply restrictions upon the ACCC’s intervention in the manner proposed by TLL.
The Court has ordered that the ACCC be joined as a party to the proceedings pursuant to section 87CA of the Act and as such should be entitled to all of the rights of any party to these proceedings. Such rights include the same degree of access to discovered documents and affidavits as is the right of any other party in this litigation.
Orders
For the reasons outlined above, the ACCC is entitled to inspect the documents of all parties made available on discovery and to have access to all of the affidavits prepared in the litigation.
Accordingly, the Court orders that:
1.The ACCC be granted access as a party to the proceedings to all documents made available on discovery by all parties.
2.The ACCC be granted access to all affidavits prepared and served by any party in the proceedings.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 29 March 2011
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