Trade Practices Commission v Optus Communications Pty Ltd

[1995] FCA 649

CATCHWORDS

PRACTICE AND PROCEDURE - Contempt application - whether contempt proceedings should be heard before final hearing of main proceedings - Court should adjourn contempt hearing where it would require determination of major question in main proceedings - departure from ordinary course only where special circumstances exist

Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 - cons.

TRADE PRACTICES COMMISSION v. OPTUS COMMUNICATIONS PTY. LTD. & ANOR.

No. NG 459 of 1995

BEAUMONT J.

SYDNEY

9 AUGUST 1995

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No.  NG 459 of 1995
  )
GENERAL DIVISION                  )

BETWEEN:             TRADE PRACTICES COMMISSION

Applicant

AND:             OPTUS COMMUNICATIONS PTY. LTD.

First respondent

OPTUS MOBILE PTY LTD

Second respondent

CORAM:    BEAUMONT J.

DATE:     9 AUGUST 1995

PLACE:    SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The final hearing of the civil proceedings take place on 26 September 1995 and continue for the duration of that week.

1. Hearing of the contempt application will be at a later date.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No.  NG 459 of 1995
  )
GENERAL DIVISION                  )

BETWEEN:             TRADE PRACTICES COMMISSION

Applicant

AND:             OPTUS COMMUNICATIONS PTY. LTD.

First respondent

OPTUS MOBILE PTY LTD

Second respondent

CORAM:    BEAUMONT J.

DATE:     9 AUGUST 1995

REASONS FOR JUDGMENT

This matter comes before the court in an adjourned directions hearing, having been before Whitlam J. as duty Judge last week, at which time it was adjourned until to-day.  Previously, on 20 July, Davies J. had, by consent of the parties, ordered that the final hearing of the proceedings be expedited.  Other directions were then given which need not be mentioned, save to note that the respondents were directed to file and serve affidavits, on which they wished to rely, on or before 25 August.  The matter was stood over for further directions on 1 September.       

Shortly thereafter, the applicant commenced proceedings for contempt, and it is the institution of that collateral proceeding which has given rise to the present difficulty.  The applicant seeks to have the contempt issue
determined at an early date, certainly before the final hearing of the principal proceedings. The respondents strenuously resist this proposal and rely, in this connection, upon the observations made by Barwick CJ in Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 at 489. In so doing they submit that, in the absence of some special circumstance - and they say none is demonstrated here - it is not appropriate to hear and determine, before the hearing of a suit, a motion for an order for committal, or sequestration, for contempt by breach of an order or of an undertaking where it is necessary, in order to determine the matter, to decide one or more of the major issues arising in the suit.

In Morgan, Barwick CJ said (at 489-490):

"In the ordinary course, the Court ought not ... to attempt to resolve in the proceedings for contempt the question or questions which is or are to be litigated before it ... at the hearing of the suit.  The proper course except in special circumstances ... is for the Court to adjourn the contempt proceedings which cannot be determined without resolving a major question in the suit until the hearing of the suit itself."

From the material presently available, it seems likely that it would be necessary, in any contempt application in this case, to determine one or other of the major issues arising in the principal proceedings. 

It is true that in Morgan, Barwick CJ also said (at 489):

"Circumstances may arise [which justify departure from the ordinary course] if the plaintiff's rights, or the public interest and the maintenance of the Court's own prestige, are to be safeguarded."

The applicant contends that there is indeed a particular public interest in having the question of the alleged contempt dealt with at the earliest possible date. However, as I have already indicated in the course of argument, it appears that the proposal now advanced raises quite a number of aspects of the public interest which include, but are not confined to, the particular aspect relied upon by the applicant. 

Acknowledging, as I do, the importance of the public interest factors in this matter, I propose to ensure that the final hearing of the principal proceedings take place as soon as practicable, thereby achieving fairness for both parties involved.    Expedition of that hearing is, in my view, necessary, not only by reason of the nature of the issues that will arise in the principal proceedings, but also because of the obvious interest of the consumers in knowing, but with the benefit of a final determination, what the true position is.
A further aspect of the public interest, which cannot be discounted, is the allocation of the public resource of court time to matters in the general list of the Court.  It is simply not feasible, at present, to allocate, at short notice, two blocks of time of reasonably substantial proportions.  Thus, only one of these matters can effectively be earmarked for an expedited hearing.  In my view, given that a choice must be made, it is preferable that the final hearing of the civil proceedings take place first.  To this end, I propose to direct that the hearing of the main proceedings commence on 26 September and continue thereafter for the duration of that week.

It will follow necessarily that the application for contempt cannot be dealt with in the foreseeable future, and in any event, having canvassed other possibilities with the parties, I am of the view that it is preferable that a Judge other than the trial Judge in the principal proceedings hear that application.  As I have said, that will necessarily be at a later date, and I will so direct.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont.

Associate

Dated:     9 August 1995

Counsel and Solicitors      Mr. A. Bellanto, Q.C. with

for Applicant:              Ms. H. Coonan instructed by

Australian Government Solicitor

Counsel and Solicitors      Mr. T. Hughes Q.C. with     

for Respondents:            Mr. B. McClintock instructed

by Minter Ellison

Date of hearing:            9 August 1995

Date Judgment delivered:         9 August 1995