The Trade Practices Commission v Milreis Pty Ltd

JUDGMENT No. ........ ........ ..

I ........ ....

.....

____ .

...... -

......

.- - . . -

...

- - _.

- /

BETI.TEICT? : ........ ........ ........ ........

THE TRADE PRACTICES

’

....	CDrnISSLQN.. ........ ......

........ ........ ...

F . h W J f L . .

NiD

. . . . .

PZT49FJS. RPTY,. m!ITF?.

.e, .PS.

........ ........ ........ ........

Defendants

........ ........ ........ ........

APPLICATION BY THOMSON PUBLICATIONS (AUSTRALIA) PTY. LIMITED

1 !

O R D E R	i
!
i
c

1m COLTT 03ZZS Tii4T:

1. The applicant be added as a defendant

2. The questlon of costs be reserved.

Dai e Enter& :

..... .......

........ ......

- - .-

.....

CATCHWORDS

Trade Practices Act

- Adding party as

defe'ndant who is

directly affected - Hlgh Court Rule Order

16 rule 4 -

Rules of the Federal

Court of Australia.

The Trade Practices Commlsslon

v. Milreis Pty. Limited

Application by Thomson Publications (Australia)

Pty. Limited

G306, of 1975

Before Franki J.

16 February 1978

SYDNEY.

IN THE FEDERAL COURT

OF AUSTRALIA )

No. G. 306 of 1975

GENERAL DIVISION

Between

THE TRADE PRACTICES CON”IMSSION

Plaintiff

And

MILREIS PTY. LIMITED & ORS.

Defendants

APPLICATION BY THOMSON PUBLICATIONS (AUSTRALIA) PTY.

LIMITED

FRANK1

JUDGMENT:

FOR

REASONS

DELIVERED:

16 February 1978.

Thomson Publicatlons (Australia)

Pty. Limited

(%he

applicanf) seeks leave to be added as

a party, or to inter-

vene, or to make submisslons as amicus curiae

in proceedings

under the Trade Practices Act

1974 (‘the Act’) brought by the

Trade Practices Commission against

109 de€endants seeking

pecuniary penalties, lnjunctions and costs. The statement

claim alleged that

107 of the defendants were trading corporations

retailing liquor from premises described as hotel premises.

Broadly it was alleged that the corporation defendants were parties

to an arrangement whereby from time to time they recommended

each other prices at which liquor may be sold to the public from

licensed hotel premises operated by

or on behalf of the parties

to the alleged arrangement. Alternatively, it was alleged that the corporation defendants were parties to an understanding of the

same nature and

for the same purpose as the arrangement alleged.

, .

I .

The.section of the Act dealing with arrangements

o r understandings

in restraint of trade was s.45 whlch was repealed and new sections

45, 45A, 45B and 45C were introduced, operafive from

1 July 1977.

Certain defendants unsuccessfully attacked the validity

of s.45

in proceedings before the	Full Court	of the Federal Court	of
Australia (14 A.L.R. 623).

Subsequently consent orders were made

In respect of

the

lOlst defendant, Travelcare

Pty. Limited.

The matter then came into my list and

I was informed.

that

four other defendants had signed terms of settlement and

I was

requested to make orders and accept undertakings

in terms of the

settlements signed. The four defendants were, the 16th, Cadea

(No. 5) Pty. Limited; the 17th, Harbeck Holdings Pty. Limited;

the 18th,

D. Ryan Hotels

Pty. Limited; and the 19th, Slgla

Holdings Pty. Limited.

Because the Act had been amended

I considered that I

should have the benefit of some argument directed to the

pxsible

effect of the change in the legislation upon the terms

of the

orders sought from the court pursuant to the terms of settlement,

so that the court would be able to assess whether it was

appropriate to make the orders sought and accept the undertaklngs

offered. (See generally, Apdlcation des Gaz S.A. v. Falks

Veritas Limited 1975 R.P.C. 421.)

Wnen the matter was next before me

I was Informed that the

104th defendant, Qantas Wentworth Holdings Limited, had agreed

to similar terms of settlement as had the	16th, 17th, 18th and
19th defendants.

Senior counsel

for the applicant then made an application

for leave to intervene in the proceedings. I stood the matter

ovei. and gave leave to the applicant to serve

an appropriate

application and affidavits in support. The applicant filed

a notice of motion and affidavits

in support seeking leave to

intervene, o r alternatively that the applicant be joined

as a

party, o r alternatively that the applicant be granted leave	to
be heard and call evidence to assist the court.

The terms of settlement which had been reached with the

16th,17th,l8th9 19th and 104th defendants and which the court was

asked to implement by making the appropriate orders and

accepting the appropriate undertakings were,	so far as is relevant,
in the following terms:-

"The 16th Defendant, Cadea (No.

5) Pty. Limited,

HEREBY CONSENTS to give

an undertaking to this

Honourable Court in the following terms:-

'Cadea (No. 5) Pty. Limited,.. hereby undertakes

to the Court that it wlll promptly

(a) ...

(b)

notify the publishers of Thomson's Liquor Guide in wrlting that the 16th Defendant,

its servants

and agents, do

not w s h to

receive any further issues

of Thomson's

Liquor Guide and request the publishers

Thomson's Liquor Guide

in writing not to

send any further issues of Thomson's Liquor

Guide to

the 16th Defendant, its servants,

o r agents.'

AND I-EREBY FURTHER CONSENTS to the making of

an order

by thls Honourable Court in the following terms:-

THIS COUFrT DOTH BY CONSENT ORDER that the 16th

Defendant, by itself, its servants	and agents, be
restrained from -

(c)

receiving price lists or guides containing prices or recommended prices for liquor

(other than price lists

or guides received

directly from a supplier of liquor containing

prices or recommended prices in respect only

of liquor supplied by that supplier),

acting on such price lists

or guides;

(d) engaging in conduct of a like kind

to, o r

conduct to the like effect

of, the conduct

described in paragraphs (a) , (b) or (c) above,

o r being a party

to such conduct.

PROVIDED THAT

in the event that the

16th Defendant

receives an unsolicited price list

or guide falling

within paragraph (c) above, the receipt

of such

price list or guide shall not be a breach of this

' injhction provided that the

16th Defendant -

(i) forthwith notifles the Trade Practices Commission ir, writlng of the receipt

of the price list

or guide; and

(ii) takes all reasonable steps to prevent

the receipt of further price lists

guides from the same source.

I t

The evidence before

me on this application indicates that

since 1961 the applicant has published

in Australia business and

trade press magazines, including directories

and price guides

and that since March

1976 it has published "Thornson's Liquor Guide"

and supplied it to subscribers

who-pay an annual subscription of

sixty dollars. This publication lists suggested retail prices

for a very extensive range

of alcoholic drinks. I admitted

certain'evidence SUbJeCt to objection, and although the objection

was-pressed, I propose to have regard to the evidence admitted

on this basis for the purpose of determining this application.

Certain communications and discussions

took place between the

applicant and the plaintiff before the applicant published the

first issue of its liquor gulde. The evidence

in this applicatlon

shows that

on 17 November 1977 there were 2,795 subscribers to

the applicant's liquor guide

in New Sough Wales and

in the

Queensland and Victorian border areas. No copies of the Guide can be purchased other than by subscription. The applicantls

evidence was that at least	20 of the subscribers are defendants
to this action.

The evldence before me includes a letter said to have come

from the 18th Defendant

in the following terms-

"As requested by the Trade

Practices Commission

I am writing to direct

you to cease forwarding

to my Company any further copies

of your

publication '!Liquor Guide" o r any similar price

recommendation.

The evidence also included letters

in varying terms said

to have cone from the

41st, 58th, 68th, 69th,

and 87th defendants.

Four of these letters asked

for what was in effect a cancellation

of the subscriptlon

to the applicant's publication.

It seems a reasonable inference

on the present state of

the evidence before me that

if, in respect of any defendant, the

court makes the orders proposed, the applicant would be at risk

of contempt proceedmgs if it supplied any further copies

of its

journal to any defendant

in respect of whom the order was made.

See Acrow (Automation) Ltd.

v. Rex Chainbelt Inc.

& Anor. 1971

1 M.L.R.

1676, Marengo v. Daily Sketch 2nd Sunday GraDhic Ltd.

65 R.P.C. 242 at pp. 252-3.

rm-

.	Although the existing position between the defendants and

the applicant is not before me in any detail, I consider that

for

the purpose

only of this application

I shouxd proceed on the basis

that the 18th defendant has in effect cancelled its subscription

to the applicant's publication. Any

view I have expressed upon

the evidence before me

in this application is

not, of course, a

final findlng,

nor is it for

any purpose other than to enable me

to decide this appllcatlon.

The major part of the argument was directed to the

question of whether the applicant could be added as a party under

Order l 6 rule 4 of the High Court Rules.

Section 38 of the Federal Court

of Australia Act 1976

provides:-

"(1)

Subject to any provision made by

o r under this

o r any other Act with respect to practlce and

procedure, the practice and procedure of the Court

shall be in accordance with Rules	of Court made
under this Act.

(2) In so far as the provisions

for the time bemg

applicable In accordance with sub-section

(1) are

insufficient, the Rules of the High Court, as

force for the time being, apply, mutatis mutandis,

so far as they are capable

of application and

subject to any directions of the Court

o r a Judge,

to the practice and procedure

of the Court.

(3)

In this section, 'practice and procedure'

includes all matters m relation to which

Rules of Court may

be made under this Act."

Order 2, rule 1 of the Rules of Court (Statutory Rules

1 No. 20 of 1977) provides:-

. *-...--

- 3

- - -

---------_-I_---..~-_..--.____.___.__

-___.

. F-;

7 .

"1.

In relatlon to proceedings arislng under the Acts

set out in the Schedule to this Order, the practice

and procedure of the Court shall'be

in accordance with

the Conciliation and Arbitration Regulations as

force for the time being, which shall apply mutatis

mutandis, so far as they are capable of application

and subject to any directions of the Court or a Judge."

The Trade Practices Act

1974 is an Act referred

to in the

Schedule to Order

No specific rule of the Rules of the Federal Court of

Australia deals with adding parties

or intervention. I do not

consider any Conciliation and Arbltration Regulation is

applicable under the provisions of Order

2 rule 1, or if it is,

I consider that It should not

be applied to the question

under

consideration.	I have noted in partlcular, regulations 46 and
785-78~.

Applying the provisions

of s .38 (2 ) of the Federal Court

of Australia

Act, I proceed to consider the application

In the

light of Order

16 rule 4 of the High Court Rules.

The relevant part of Order

16 rule 4 reads:-

11(2) The Court or a Justice may -

(a) at any stage of the proceedings;

(b) either y m or without the appllcation

of a

party; and

or a

Justice to

be just,

order that the names of parties improperly joined,

whether as plaintiffs

or as defendants, be struck out

and that the names

of parties, whether plaintlffs

defendants, who ought to have been joined,

or whose

presence before the Court

or Justice may be necessary

--. . . -

--_-

-_-_.__-_-_I

.--LA

in order to enable the Court or Justice effectually

and completely to adjudlcate upon

and settle all

the questions arising, be added." -

The corresponding rule in the United Kingdom is Order

15,

rule 6 (2)(b)(i).

This rule is dealt with

in the Supreme Court

Practice 1976, Volume 1 at p.181 (White Book) as follows:-

"Para. (2) (b) (i), supra, repeats verbatim the terms

of the former part para.

(2) (b), so that it would

seem that the decisions under the former rule remain

unaffected under which

a person may be added as

party who is directly affected, either legally

financially, by any order which may

be made in the

action (see U.

Gurtner v. Circuit 1968 2 Q.B. 587,

which the Privy Council

in Penang(sic)Mining Company

v. Choong Sam (1969) 2 Malay Law Journal

52, P.C.,

treated as having rightly overruled	Amon v. Raphael Tuck
& Sons Ltd. 1956 1 Q.B. 357)."

_.	i
I

The rule which the Privy Council was considering in Pegangls

case was, I consider, substantially identlcal to the High Court

rule under consideration. The relevant part

of the rule

considered in Pegang's case was I1..who ought to have

been joined,

o r whose presence before the court may

be necessary in order to

enable the court effectually

and completely to adjudicate upon

and settle all thecpestlons involved in the cause

or matter.!!

I do not consider that there is any significant difference

betwew

the words "all the questions arising" whlch are used in the

High Court rule

and the words Ifall questions involved" which are

used in the rule under consideration

in Pcgang's case. The

Privy Council after referring to

the cases of Amon v. Raphael

Tuck & Sons Ltd. 1956 1 Q. B. 357 and Byrne v. Brown (1889)

. .

._I.-._

:"LLI*&J

-_I_-_-_

. .

. ---- L

22 Q.B.D. 657 said at pp.55-56 of the Malay

Law Journal:-

"Devlin J. himself accordingly propounded

in Amon's

case a much narrower interpretation

of the rule which

it is unnecessary to repeat here

for it was overruled,

in their Lordships' view rightly, by the Court of Appeal

in Gurtner v. Clrcuit 1968 2 Q.B. 587, a case decided

after the date of the judgment

of the Federal Court of

Malaysia in the present case.

The cases illustrate the great variety

of circumstances

in which

it may be sought to join

an additional party to

an existing action.

In their Lordships' view one of the

principal objects of the rule is to enable the court to

prevent injustice being done to

a person whose rights

will be affected by its Judgment by proceeding to adJudicate

upon the matter

in dispute in the action without his

being given an opportunity of being heard. To achieve

this object calls

for a flexibility of approach which

makes it undesirable in the present case,

in which the

facts are unique, to attempt to lay down any general

proposition which could be appllcable to all cases.

It has been sometimes said as

in Moser v. Marsden

1892 1 Ch. 487 and in In re I . G . Farbenindustrie A.G.

1944 1 Ch.41 that a party may be added if his legal

interests will be affected by the Judgment in the action but not if his commercial interests only would be affected. While their Lordships agree that the mere fact

that a person is likely to be better

off financially if

a case is declded

one way rather

than another is

not a

sufficient ground to entitle him to be added as

a party,

they do not find the dichotomy between 'legal' and

'commercial1 interests helpful. A better way of

expressing the test

1s:

will his rights agalnst

o r

I *

U ’ .

--L-

..I_

- - -.

- -. __

. .M-. . .._..

10.

liabilitles to any party to the action

in respect of

the subject matter of the action be directly affected

by a q order which may be made

in the -action?

In the present case as already pointed out if the

appeal is withdrawn

o r fails the contractor will have

no right to enter

upon and win the minerals on the

disputed parcels. If it succeeds he will have such a

right.

l	Ltd. v. White & Ors. 1971 A.C. 912 affects the authority of
i
Pegang’s case.

[1978] FCA 3

16 Feb 1978