Trade Practices Commission v Santos Limited

[1992] HCATrans 326

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IN THE HIGH COURT OF AUSTRALIA

Registry No C23 of 1992

B e t w e e n -

TRADE PRACTICES COMMISSION

Applicant

amd

SANTOS LIMITED

First Respondent

SAGASCO HOLDINGS LIMITED

Second Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

MCHUGH J

Santos(2) 1 6/11/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 NOVEMBER 1992, AT 10.02 AM

Copyright in the High Court of Australia

MR R.V. GYLES, OC:  If Your Honours please, I appear with my

learned friend, MR B.R. McCLINTOCK, for the

applicant. (instructed by the Australian

Government Solicitor)

MR C.A. SWEENEY, OC:  May it please Your Honours, I appear

with MR D. SHAVIN, for the first respondent.

(instructed by Freehill Hollingdale & Page)

MR M. BIELECKI: If the Court pleases, I appear for the

second respondent, Sagasco Holdings Ltd.

(instructed by Finlaysons)

DEANE J: Yes, Mr Gyles.

MR GYLES:	If Your Honours please, given the time limit, may I assume that Your Honours are familiar with the
judgments below.

DEANE J: Yes, we have all read them.

MR GYLES:	Your Honours, my first submission is that the issue itself, that is, the underlying case, is of
public importance in the sense that word is used in
the Judiciary Act.

First of all, the case involves the interests

of those millions of people who use natural gas or
purchase products from those who do use it.

Secondly, it involves a substantial parcel of

shares owned by the South Australian Government.

Thirdly, it involves the other public shareholding

in Sagasco; and fourthly, it involves the other

public shareholders in Santos.

Secondly, we submit that in the circumstances

matter of practice and procedure as it was accepted, I think, by all of the members of the	of this case what is being dealt with is no mere stage decided the fate of the remedy itself, and
indeed, that failure to grant an injunction
rendered the section 80 remedy nugatory.
Thirdly, we submit that the case is of general application although, of course, ultimately turning
upon its own facts, because in the course of
arriving at the decision which has been arrived at
in a combination of the trial judge and the
Full Court's review, bearing in mind that at the end of the day they did not grant leave, is to
apply principles which are incorrect and of general application.

DAWSON J: Such as?

Santos(2) 2 6/11/92

MR GYLES: Turning, Your Honours, to those: the first and

perhaps most basic flaw is that none of the

judgments below recognize or take into account the

interests of the consumers of natural gas and the

customers of those consumers. Your Honours will read the judgments from beginning to end without

any reference to those interests. The approval by

the Full Court of Mr Justice Smithers in APM, to

which I will take Your Honours in a moment,

underlines that fact.

If Your Honours go to the book,

Mr Justice Heerey at page 10 refers to what was

said by Mr Justice Smithers and

Mr Justice Fitzgerald in APM Investments Pty Ltd v

Trade Practices Commission on the one hand, and

Mr Justice Sheppard in SCI Operations Pty Ltd v

Trade Practices Commission on the other.

Those passages are more extensively set out in the judgment of Mr Justice Hill, so I will take

Your Honours through to that. On the way through -

notice Mr Justice Davies at pages 33 to 35 of the

book. It is true that His Honour, principally at

those passages, was talking about the undertaking

for damages, but it was not limited to that point -

and Mr Justice Hill at 51 to 55.

If I could take Your Honours straight to

page 52, which is part of a citation from

Mr Justice Smithers in APM Investments, which was a section 50 case - and it was dicta because no

application for injunction had been made - but His

Honour was considering what may have happened if

there had been an application for injunction.

Without troubling Your Honours by reading the lot,

may I go down to the last part of page 52, where

His Honour said:

It has to be observed also that an infringement of s 50 does not do immediate

harm to any person.	It results merely in a
disturbance of what is considered the

desirable state of national economic

organization which s 50 is designed to

protect.

Your Honours, that, we submit, is a fundamental

misunderstanding as to the position. It is very
well put in words which I will read from a US
decision:

The public interest in enforcing the anti- trust laws is in the main the sum of the

private interest of consumers ..... buy goods

and serves at a competitive price.

Santos(2) 3 6/11/92

I interpose, Your Honours, of course it is not the

whole story because the nation has an interest in

the same thing, but:

rather than talking of a mystical as it is
said, or transcended public interest, there is

another set of interests, those of the

consumers who might be hurt by the challenge

to transaction.

DEANE J: Except is that quite fair to Justice Smithers in

that his comments really have to be understood in

the context of what follows? I mean it would be

quite unfair, I would have thought, to suggest His

Honour was not conscious of the ultimate effects of a contravention in breach of the section.

MR GYLES: Well, Your Honour, what he said is what he said

and it is now being picked up, and we submit, used

in much the same way, because it is a very curious

thing - I mean whilst at one level one would say

when you talk about the public interest in

enforcing this statute, of course it relates to the

interest of consumers. But it is a very odd thing

that in all of these judgments that has never

weighed in the scales.

McHUGH J: Is that correct? The question that was posed was

whether the balance of convenience required the

grant of an injunction to protect the public

interest against the contravention of the Act.

Surely the interest of consumers was subsumed under the phrase "public interest".

MR GYLES:  Your Honour, it ought to have been, because that

is one of the public interests which the Act is

designed to protect. But the way it is put, it is

almost, as the Americans said, a transcendant

appeal to a public interest, the public interest in

enforcement of a statute, that is, statutes should

be enforced. Rather than asking the question, "We

have the interests of the State Government, we have

the interests of the shareholders and so on";

nowhere do they say, against that, "We have the

interest in having a competition between these

companies for the benefit of consumers".

McHUGH J: Was this point that you now specifically put, put

to the trial judge, put to the Full Court?

MR GYLES:  I have not read the transcripts, Your Honours,

but the point was certainly put that the overriding

concern here was the maintenance of competition and

I believe it was put, but I was not there and I

have not read the transcript. Your Honours,

perhaps it would not matter in any event, because

it is not a matter which evidence would cure.

Santos(2) 4 6/11/92

McHUGH J: Having regard to the undertakings that were given

and ultimately accepted by the courts below, how

are the interests of consumers affected?

MR GYLES:  Your Honour, they are affected in a number of

ways. First of all, at the moment there are two

companies separate from each other who are

competing in a market. As soon as there is an

acquisition of shares that is, of necessity,

altered. The undertakings - - -

McHUGH J:  You say "of necessity", but the board is going to

remain the same, is it not, subject to two persons

who are not employees or associated with Santos?

MR GYLES:  Yes, Your Honour, but I will come back to that.

The point is that the two companies now are

competing as distinct entities. Once the takeover

takes place - and we must assume 100 per cent

takeover, 100 percent subsidiary - it is, with

respect, naive - to pick up a word from the

Full Court's own decision - to believe that the

situation is the same as it now is. The

undertakings do not inhibit the way in which the

company carries on its business at all. There are

indeed - Your Honours can imagine and the evidence

showed below that there are current negotiations

between the joint venturers in a number of crucial

joint ventures for the exploitation of gas which

are being negotiated.

DAWSON J:  If what you say is right, that would only be a

temporary situation because you would ultimately be

successful and there would be -

MR GYLES:  No, but you cannot unwind it.

DAWSON J: But that is your point, is it not?

MR GYLES: That is the point; that if in the intervening period commercial arrangements are made and all

manner of them could be made, which are in the

interests -

DAWSON J: So really that is what you are saying, that there

cannot be the divestiture, and therefore the

balance of convenience lies otherwise than where

the courts saw it.

MR GYLES:	The divestiture of shares does not unwind business arrangements which are made in the intervening period which may not be in the
interests of the consumers. They may be in the interest of Sagasco; they may be in the interest of Santos; they are not in the interests of consumers
and indeed, the whole focus of the Full Court's
decision, Your Honours, when Your Honours look at
Santos(2)	6/11/92

it, is in assuming, Mr Justice Heerey below too, that the companies should be able to act as they see fit.

The question of the board of directors to

which His Honour Mr Justice McHugh referred. There

are two additional directors to be appointed, the

existing directors will continue, but knowing that

they have a 100 per cent shareholding. Not

inhibited in the way they attend to their duties, except that they will ultimately have to believe

what they are doing is in the best interest of

Sagasco, but Mr Justice Heerey, Your Honours, at pages 13 and 14, seems to be suggesting that nominee directors may not have regard to the

interests of the company nominating them, and we

submit this is one of the special leave points

which arises in the case. That is, in our
respectful submission, incorrect; Your Honours will

recall - - -

MCHUGH J: It is Radio 2GB.

MR GYLES: - - - Radio 2GB.

MCHUGH J: Yes.

MR GYLES:  Recently referred to by Chief Justice Bowen in

News Corporation. It is a very much a misunderstanding of company law, in our respectful submission, to do as Mr Justice Heerey does. Those

directors, first of all, will learn all about

Sagasco. Secondly, they will pass it on to their

nominating body, to Santos. Now that cannot be

rubbed out by the divestiture. Thus we have, if we

win, a situation where a principal competitor is

fully alive to all the commercial plans of the

other competitor.

Your Honours, indeed, one other effect which

might occur is that the attitude of Sagasco to this

litigation might be altered if, in the meantime,

So there are all manner of practical considerations	they have a 100 per cent shareholding in Santos.
which will arise in the intervening period, which
are not cured by the undertaking which are given in
this case, in our respectful submission.

Your Honours, I have pointed to what we submit

is a misunderstanding in Mr Justice Smithers'

judgment and I have not, of course, in the time

available, got the opportunity of taking

Your Honours through to show that we are not being

unfair to His Honour in so seizing upon it.

Clearly, the Full Court below and Mr Justice Heerey

perceived a real difference between

Mr Justice Smithers; Mr Justice Fitzgerald, on the

Santos(2) 6 6/11/92

one hand, and Mr Justice Sheppard on the other.

Mr Justice Sheppard's passage is at page 54 of the

book.

In my respectful submission, any reading of the two passages together reveals a real, not an

imagined, difference between them. The essential

difference lies in the view of Mr Justice Sheppard

that the Act assumes it to be against the public

interest that there be takeovers or merges of the proscribed kind and that when one is dealing with enforcement of the Trade Practices Act that is what

the court is concerned with.

DAWSON J: Various judgments do not result in any final

preference for either view, do they?

MR GYLES:  I would submit they do because they result in a

situation where there can be no injunctive relief

granted under section 80. In so doing, they are

accepting, in my respectful submission,

Mr Justice Smithers rather than

Mr Justice Sheppard - - -

DAWSON J:  Mr Justice Davies did not accept what was said by

Mr Justice Smithers, did he?

MR GYLES:  But he would have granted leave, and he is a

minority.

DAWSON J: But it is left in a state of flux, is it not?

MR GYLES:  Not, with respect, on the majority judgment or

Mr Justice Heerey's judgment from which leave was

not granted.

DAWSON J: But you are treating this as other than an

interlocutory proceeding. In this situation the

question remains open, surely.

MR GYLES:	But what are other primary judges to do? They must surely follow the Full Court here. Then every
time we try and get up here, Your Honours will say
the same thing, but it is just another instance.
So it is a catch-22.

DAWSON J: Not if it were a final judgment. This is only an

interlocutory - - -

MR GYLES:  It can never be a final judgment, Your Honour.

DAWSON J: Yes, there can on this point.

MR GYLES:  Not on this point, because this is an

interlocutory application, with respect.	The Full
Court recognized that that interlocutory

application will decide the final relief because

Santos(2) 7 6/11/92

once the transaction takes place, there is no place for section 80, so it is a sort of check checkmate.

You cannot in our position ever get beyond

Mr Justice Smithers. That is why, we submit, that

in an unusual set of circumstances it is an

appropriate case for leave.

DAWSON J:  If the injunction were granted and the case went

ahead, you would get a final judgment.

MR GYLES:  If the injunction were granted, then section 80

would fall for determination ultimately.

DAWSON J: Yes.

MR GYLES:  But not section 80(2) which we are concerned

with. That brings me, Your Honours, to the

second-last point, but by no means am I ranking the

points because of the order of them. In our

submission, all of the judges misled themselves by

applying equitable principles. Indeed,

Mr Justice Hill expressly said at page 57 point 2 -

or adopted what was said by Mr Justice Gummow,

that:

" ..• in many practical respects it is not,

however, fundamentally distinct from the

equitable remedy."

Your Honours, that is from the decision of the

Full Court in ICI Australia Operations Pty Ltd v

Trade Practices Commission of 23 September 1992, which is a decision of the Full Court and on a

final hearing, and therefore was to be applied by
this Full Court, perhaps in some very special

circumstances.

In that case, Your Honours,

Mr Justice Lockhart and Mr Justice Gummow quite

extensively examined the nature of the section 80

jurisdiction. It would take longer than I have to

analyse that, but the understanding, at least of

this court in this case, was that they were really

saying, "It's near enough to the equitable

principles for practical purposes."

Indeed, if Your Honours read those judgments,

what Their Honours did, rather than say, "Here we

have a section of the Trade Practices Act which we

will construe according to that Act", they said,

"How does this differ from the equitable

principles?" and examined the six or seven or

whatever it is respects it differs from equitable

principles. That process is, in our submission,

almost certain to mislead and is an appropriate

special leave point.

Santos(2) 6/11/92

This Court in Thomson Australian Holdings v Trade Practices Commission, 148 CLR 150, said that

section 80 was an exclusive code for the grant of

injunctions under this Act. And we submit that the

Full Court in ICI have misunderstood section 80;

they have misapplied section 80. The appeal to

equitable principles is beside the point. If you

end up with the same result it is coincidental.

The court should be looking at section 80 and

saying, "Now, what part does this play in this Act?

Our discretion should be governed by the four

corners of this Act and not other considerations."

That is not to say, of course, that other considerations may not be taken into account, and

we submit that that also is a special leave point.

Your Honours, the last point to which I would

refer is the issue of prima facie case or serious

question to be tried. As Your Honours know, this
Court has not ever resolved the proper approach to

that question. There has been dicta in various

cases, or it has not been the subject of argument.

Various Judges of this Court have expressed views,

but not in any detailed fashion. I would

respectfully submit Mr Justice Heerey, at pages 3

and 4, Mr Justice Davies at page 30 and Mr

Justice Hill at pages 46 and 47, refer to the

"serious question to be tried" issue.

In circumstances where counsel for the present

respondent, in the middle of counsel for the Trade

Practices Commission dealing with the nature and strength of a case of the Commission, intervened

and said, "There is no issue about serious question

to be tried. Please pass go to balance of

convenience." Counsel for the Trade Practices

Commission said, "You can't as neatly as that

separate them, because they do roll one into the

other, but none the less, that is what happened".

Now, Your Honours, Mr Justice Heerey thought

and said at pages 3 and 4 that that involved no

concession of a prima facie case. He said it was

really quite neutral. It could be a winning case;

it might not be a winning case.

If that is the way he approached it, of course, then we would submit, he would not be doing

his job, because whichever view is taken about the

correct test, it does involve an assessment of the

strength of the case, not as on a final hearing,
but on the materials primarily presented by the

applicant.

Now, Your Honours, it is difficult to see how

an applicant could ever achieve a serious question to be tried unless its material, unanswered, would

Santos(2) 9 6/11/92

give rise to a prima facie case. And in my

respectful submission, if leave is granted, then it

would be an excellent opportunity for this Court to

rationalize the conflicting and confusing dicta

which exists in all the courts of all of the States

and in the Federal Court on this important topic.

Now, Your Honours, it is my submission that

the differences in the end are more apparent than real, but none the less they have bedevilled this field for years and the American cases give a good

guide as to how to approach these matters, as do

the other authorities, and we submit it is

incumbent upon a trial judge to not just say, "Well

look there is a case here which might or might not

be a good case", he must at least be satisfied that

the applicant's case, if it went ahead at trial

without having regard to issues which arise upon

that case, he must be satisfied that that would

give rise to a probability of success within the

meaning of the authorities.

Now once that is granted, in the present case,

once it is said that the Trade Practice's

Commission's material, if unanswered, would give

rise to a claim for relief under section 80, then

it follows, does it not, that there is a prima

facie case, in that sense, that consumers will be

affected, or may well be affected, by what is going

on. And so, in our submission again, it is a

special leave point and it is an appropriate point

to be raised and dealt with in the present case.

McHUGH J:  You told us what happened in front of the trial

judge but what happened in relation to this point

in the Full Court?

MR GYLES: Well, Your Honours will see that - again I have

not read the transcript myself, but looking at

the - - -

McHUGH J: Well, Mr Justice Hill for one, certainly did not

think that they were separate and discrete issues.

He said expressly that they run into each other.

MR GYLES:  Yes, but he did not then turn to look at it,

because he did not grant leave - - -

McHUGH J: Well I appreciate that, that is why I am asking

you about what the counsel's attitude was and what

is the submission.

MR GYLES:  As I understand it, counsel's attitude in both

places was that the concession of serious question

to be tried by the respondent was not simply a sort

of neutral circumstance, but had the significance

that I am placing upon it. So, Your Honours, for

Santos(2) 10 6/11/92

those various reasons, we submit that the case,

first of all is - - -

DEANE J:  Mr Gyles, you say that Justice Hill did not grant

leave.

MR GYLES:  No.

DEANE J: But is it not fair to say that his decision not to

grant leave reflected a conclusion that if leave

were granted the appeal would fail?

MR GYLES:  Yes, I would accept that, Your Honour.

DEANE J: Because it is really that aspect of his reasoning

which removes a great deal of the force of the argument, "This is an application for leave to

appeal from a refusal of leave.".

MR GYLES: Yes, I accept that immediately, Your Honour.

DEANE J: Having interrupted you, there were time

constraints put on you but in view of the amount of

discussion, if you feel that you are being

prevented from putting anything you want to put,

you may disregard the time constraint.

MR GYLES:  Your Honour, I think the only thing which would

require any greater elucidation might possibly be

the ICI case which Your Honours might not be

familiar with. But I think the other points that I

have endeavoured to raise are ones which - - -

McHUGH J:	I am not familiar· with the ICI case.
MR GYLES:	No, I was not either until yesterday. I think

the other point I hope at least are points with

which - Your Honours could follow what I am

endeavouring to submit about it.

DEANE J: we would be proposing to adjourn to discuss the

future course of the application. Is there

anything, in particular, in the ICI case that you

would like to refer to?

MR GYLES:  No, I think probably for present purposes the

part that Mr Justice Hill quoted is probably the

high point of my argument, really, on the issue.

It sums it up, I should say.

McHUGH J: And ICI was concerned with - - -?

MR GYLES:  It was concerned with the resale price - it was

not a section 80.

McHUGH J: It was a final injunction.

Santos(2)	6/11/92
MR GYLES:	Your Honours, perhaps the last thing I should say

is this: it is correct that the conclusion for my

submissions is that in many section 80 cases,

properly understood, if the Trade Practices have a

prima facie case, then an injunction will go. That

is the conclusion from my submission. We do not

shrink from that at all, provided we have got a

proper case, because section 80, as I have

endeavoured to put, should be seen as a Trade

Practices Act special remedy and, indeed, this

Court has said, an exclusive Code for injunctions.

That. has a consequence I have already referred to, namely, that you do not encrust it with

equitable principles. Secondly, it has this

consequence, that it covers all of the various

types of conduct which might breach the Act and

they will range from trifling to important.

It is my respectful submission that when one

is looking at this Act, breaches of section 50 of

the type we are dealing with this here, which deals

with a basic form of energy, dealing with a great

number of consumers, must rate on a scale of 10 -

very close to 10. Therefore it is not surprise

that in these particular circumstances the

existence of a prima facie case would mandate an

injunction in most cases and we submit that. - - -

McHUGH J: Well, except that in this particular case the

fact is that if the interim injunction was granted,

it seems to be common ground that the offer would

be dead in the market.

MR GYLES:  It would be dead in the market for the time being

but, Your Honour, that·assumes that a status quo -

McHUGH J:  I mean, it is dead in the market, dead.

MR GYLES: Well, let that be so.

McHUGH J: You would not revive it in the particular form.
MR GYLES:	Let that be so; that is something to be taken

into account, certainly, but -

MCHUGH J: Well I would have thought it was a very

significant fact and that as a matter of discretion

you had to push the barrow up hill, having regard

to what would happen if the injunction was granted,

and that seems to have been the approach of the

judges below.

MR GYLES: Well, Your Honour, we would like the opportunity

if leave were granted to try and persuade you to a

contrary view, because that really is to assume

Santos(2) 12 6/11/92

that the private interests of those concerned in

that transaction - and after all corporations wish

to do all sorts of things, takeovers are one of

them; there is nothing sacrosanct about it. This

Act, which is a special Act with a special subject,

says, as Mr Justice Sheppard said, "If the result

of this Act is that people cannot do what they want

to do, when they want to do it, so be it".

DAWSON J: Mr Gyles, I am not sure - are you saying that

balance of convenience has nothing to do with it

under section 80, or if it does, the balance of

convenience will almost always be with the

Trade Practices Act.

MR GYLES:  In cases of this type, Your Honour, where we have

a prima facie case and where there is a basic

commodity involved, with a wide number of - I mean,

I am really facing up to the consequence, rather than contending for it.

DAWSON J:  Yes. Do you say that is an equitable principle;

that is not the way you approach it?

MR GYLES: That is right.

DAWSON J: Yes.

MR GYLES:  We say under section 80, so far as the court asks

itself, "Is it desirable to do it?", having in mind

the purposes of this Act. Now, that does not mean

you do not take into account other things, because
the Court in deciding whether it is desirable will,

of course, have regard to other interests, but it

must steadily bear in mind that its task under this

Act is to guard competition for the benefit of consumers.

I think I am really facing up to that

consequence, rather than contending for it,

Your Honour. If Your Honours please.

DEANE J:

Thank you, Mr Gyles. The Court will adjourn for a

few minutes to consider the future course of this

application.

AT 10.35 AM SHORT ADJOURNMENT

Santos(2) 13 6/11/92

UPON RESUMING AT 10.44 AM:

DEANE J:  The Court need not trouble you, Mr Sweeney and

Mr Bielecki. This is an application for special leave to appeal from a decision of the Full Court

of the Federal Court refusing leave to appeal to

that court from a refusal by a single judge to

grant an interlocutory injunction in proceedings

brought by the present applicant, the Trade

Practices Commission, to restrain Santos Limited

from proceeding with a takeover bid for the issued

shares in Sagasco Holdings Limited. The basis of

the action by the Trade Practices Commission in the
Federal Court is a claim that the acquisition of
the shares in pursuance of the bid would constitute
a contravention of section 50 of Trade Practices

Act 1974 (Cth).

It is well settled that this Court will only

be justified in granting special leave to appeal in

an interlocutory matter in exceptional

circumstances. That prima facie position is

reinforced in a case such as the present where the

proposed appeal would be from a refusal to grant

leave to appeal. On the other hand, there are two countervailing considerations in the present case.

The first is that the refusal of interlocutory

relief in the present case could well, for the reasons explained in the judgments in the Full

Court of the Federal Court, effectively dispose of

the Trade Practices Commission's application for

final injunctive relief, as distinct from a

subsequent order for divestiture. The second is

that, while the decision of the majority of the

Full Court of the Federal Court (Sweeney and

Hill JJ.) refusing special leave to appeal was

given in the exercise of a discretionary judgment,

it is clear that the basis of the refusal was a

conclusion that, if leave were granted, an appeal

would fail. The third member of the Full Court

(Davies J.) would have granted leave but would have

dismissed the appeal.

In these circumstances, we have given careful

consideration to the nature of the case and the

issues which would be involved in an appeal if

special leave were granted. The case is clearly

one of general importance. Nonetheless, we do not

think that special leave to appeal should be

granted. For one thing, we do not think that the

decision of the Full Court on balance of

convenience really turned on questions of principle

Santos(2) 14 6/11/92

or was vitiated by any misapprehension of the
appropriate approach to be adopted on an
application for an interlocutory injunction. In
that regard, we do not think that the passage in

the judgment of Smithers J. in APM Investments Pty

Ltd v Trade Practices Commission, (1983) 49 ALR

475, to which Mr Gyles, QC drew particular

attention, can properly be seen as a statement of

legal principle rather than as a generalization,

perhaps a questionable generalization, about

factual matters. For another, we do not think

that, having regard to the discretionary nature of
the judgments in the lower courts, an appeal would

enjoy sufficient prospect of success to warrant a

grant of special leave to appeal.

Accordingly, the application for special leave

to appeal is refused.

MR SWEENEY: Costs, Your Honour.

DEANE J: There is nothing you can say, Mr Gyles?

MR GYLES:	No, Your Honour.
DEANE J:	The application for special leave to appeal is

refused with costs.

AT 10.49 AM THE MATTER WAS ADJOURNED SINE DIE

Santos(2) 15 6/11/92