Trade Practices Commission v Leslievale Pty Ltd
[1986] FCA 70
•11 MARCH 1986
Re: TRADE PRACTICES COMMISSION
And: LESLIEVALE PTY. LIMITED; BOWSTROM PTY. LIMITED; AXPRESS PTY. LIMITED;
MOBIL OIL AUSTRALIA LIMITED; THOMAS HENRY LITTLE; VINCENT JOHN SMITH; KEITH
LESLIE SCHULTE and DAVID FRAKLIN NEWMAN
No. QLD G93 of 1985
Practice
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.
CATCHWORDS
PRACTICE - claim by Trade Practices Commission for penalties under Act - particulars of defence - respondents admitted the conversations alleged took place - denial of applicants case as to their content - whether respondents should give particulars of content - particulars refused.
Trade Practices Act 1974, s. 45(2)
Federal Court Rules
HEARING
BRISBANE
#DATE 11:3:1986
ORDER
The fourth respondent pay to the applicant one-half of the applicant's taxed costs of this notice of motion.
The applicant's request for particulars be refused.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
I have before me two applications for further and better particulars. The relief sought in the principal application is a pecuniary penalty in respect of certain alleged contraventions of the Trade Practices Act 1974, and injunctions restraining such contraventions. The case for the applicant is that the respondents have contravened, or attempted to contravene, or been involved in contraventions of, s. 45(2) of the Act, relating to the making of contracts or arrangements, or the arriving at of understandings of the sort therein mentioned. The respondents fall into two groups: the first, second, third, fifth, sixth, seventh, and eighth respondents are petrol retailers at Gladstone, Queensland, or persons associated with such retailers. The fourth respondent, Mobil Oil Australia Limited, is, of course, a supplier of petrol to retailers.
The case for the applicant, as pleaded, depends upon the events which occurred at a meeting, which certain of the respondents are said to have attended, on 3 February 1984. The fourth respondent was not represented at the meeting, but the applicant says that it was informed of the fact that an arrangement or understanding was arrived at during the meeting, and that it subsequently so acted as to make itself liable, in particular, by attempting to give effect to the arrangement or understanding.
The respondents have filed defences. The fourth respondent has, generally speaking, not put forward a positive case, but put the applicant to proof; it has, however, made some admissions. The other respondents, in their separate defence, have made certain admissions which become important in the case before me. In particular, they have admitted the occurrence of the meeting in question, and have admitted that certain events took place at it.
With one or two exceptions, the requests, insofar as they have not been answered, raise one central point, and that is, to what extent, if at all, is the applicant entitled to be told about conversations during and events at the meeting, and immediately consequent upon it, by way of particulars.
Of the exceptions, the only one that needs to be mentioned in a particular way, is that answer 1(a) of the particulars supplied by the multiple respondents is unsatisfactory in that it reads:
"The best particulars of the substance of what was said by Andrew Carr was the price at which super
grade petrol was sold as at the date of the meeting by wholesalers in Gladstone."
As counsel for the applicant says, it is unhelpfully expressed. However, the explanation given by counsel for the multiple respondents during the hearing of what was intended has been recorded, and seems to me to make it unnecessary to order further particulars on the ground of the obscurity of the answer. Insofar as other points of detail have been raised, I do not think that any of them are of sufficient moment to warrant particular attention, or to justify the making of an order in favour of the applicant.
The main point is whether the applicant is entitled to be told what the respondents' case is, in detail, concerning the meeting and its immediate sequel. To make the general point more specific, it is desirable to take an example, and that is from the particulars supplied by the fourth respondent. The fourth respondent has been asked, by request No. 2, delivered on 13 February 1986 to:
State the substance of all that was said by each of Schweppes and Zelinski in their conversation at the Mobil Big Wheel Service Station on the morning of 3 February 1984 and state the time at which such
conversation occurred.
The justification for that request is said to be that, in the defence of the fourth respondent, paragraph 9, it is admitted that the two men mentioned had a conversation at the place mentioned but denied that the conversation had the content alleged by the applicant. What is sought by the applicant, in requiring further particulars is, as was said by counsel for the fourth respondent, "You deny that the meeting had the content we allege. What is it about?"
Another example is that, in the same request, the applicant seeks the substance:
of all that was said by each of the sixth
respondents, Vincent John Smith and Schweppes in
their telephone conversation which commenced at
about 10.30 am on 3 February 1984 and . . . the
whereabouts of Schweppes at the time that such
conversation occurred.
That is said to be justified by an admission in the defence of the fourth respondent that a conversation between the two men occurred at a certain time and a denial that the conversation had such content as has been alleged by the applicant.
It was said during the course of argument, and I think rightly, that the point is a general one, not especially depending upon facts of this case. It could be expressed generally by asking whether or not, in a case depending on proof by the applicant of conversations at meetings, where the occurrence of the conversations and meetings is not denied, may the applicant obtain particulars from the respondents of the content of what was said at such meetings and other details about them?
It seems clear enough that, if an allegation that a conversation took place is met with a denial or a specific non-admission, under o. 11 r. 13, the applicant cannot obtain particulars of the content of the meeting. What is urged upon me, however, by counsel for the applicant is that, if there is an admission of a conversation, then prima facie the applicant is entitled to have its detail.
I think the proper general answer to the question posed is that no further particulars need be supplied. I propose to refuse the request for particulars, except in certain respects to be mentioned below.
The principal reason is that it would seem to be unfortunate that the practice of the court with respect to particulars in cases of this sort should arrive at the result that the applicant gains a significant tactical advantage, as it would seem to be, by the respondents' making an admission that a meeting took place or that a conversation occurred. O. 11, r. 13 is framed in such a way as to encourage specificity in pleadings and the multiple respondents, at least, have pleaded not only in accordance with the letter but in accordance with the spirit of the rule.
Although I appreciate the force of what counsel for the applicant says, that one must take account of what the respondents have done in their pleading and not what they might have done, I am obliged to look at the matter more broadly and not deal with the point raised in such a way as to discourage respondents in such cases from pleading in a responsive manner.
There are other reasons for refusal of the request for particulars. One of them is that, as was pointed out by counsel for the multiple respondents, the onus is on the applicant to prove its case and, although it appears that in some such circumstances the respondent may be ordered to give particulars even though it does not bear any onus, such an order should be unusual. Secondly, I am influenced by the fact that, although the proceedings are not of a criminal nature, the principal purpose of them is the imposition of penalties which may be substantial. Next, I take into account the circumstance that the events, the details of which are sought, occurred in early 1984, and the proceedings were not instituted until September 1985. Although I have been informed that some inquiries were made by the applicant about the matter earlier in 1985, it is unlikely that all the respondents would now have a clear recollection of the conversations in question. The applicant may well, if it obtains the particulars sought, use them, quite properly, by way of assisting in proof of its case that illegalities occurred during the conversations I have mentioned, and I consider that as material also to the exercise of my discretion.
The matters in which particulars have to be given, as is conceded, arise out of the defence of the fourth respondent.
The applicant has now intimated, however, that he is content with the statement made in court by counsel for the fourth respondent that particulars of these residual points will be supplied.
It will be ordered that the fourth respondent pay to the applicant one-half of the applicant's taxed costs of this notice of motion. Otherwise the applications for particulars are dismissed.
0
0