Trade Practices Commission v Santos Ltd

[1993] FCA 749

7* 193

JUDGMENT NO. ..,.,.m.m.en.mw. m o a * m o e s n ~ .

IN TIE FEDERAL COURT OF AUSTRALIA	)
j
VICTORIA DISTRICT REGISTRY	1 No. VG 377 of 1992
1
GENERAL DIVISION	1
B E T W E E N :

TRADE PRACTICES COMMISSION

Applicant

SANTOS LIMITED

First Respondent

2 0 0121 1993

SAGASCO HOLDINGS LIMITED

Second Respondent

JUDGE :	Heerey J
m:	7 October 1993
PLACE :	Melbourne

RULING

The hearing of this case commenced on Monday 4 October. The opening address of Senior Counsel for the applicant proceeded in the usual way until halfway through yesterday morning when counsel commenced to read aloud one of approximately 130 witness statements which have been filed in the court. By the time the court adjourned yesterday afternoon counsel had read some 66 out of a total 188 pages of that statement (not including annexures).

that no time would be lost as all statements would have to be	by all parties will be read in this fashion. Counsel said
read in court sooner or later. Proceeding on this basis, the opening is likely to take some weeks.
Yesterday I had a discussion with counsel in which I indicated my reservations about this way of doing things.
Having considered the matter further, I am satisfied that the procedure so far adopted will lengthen the proceedings to an unacceptable and unnecessary extent. Moreover, there seems little point in reading lengthy and complex statements in court, in effect as evidence in chief, when the witness making the statement will not be giving evidence until weeks have passed.
I have decided that the trial will now proceed in the following way. Counsel for the applicant will be invited to continue his opening by identifying the issues which are said to arise and summarising the case which the applicant seeks to
make out on those issues - and, where considered appropriate, counsel's understanding of the opposing case. Evidence may be
referred to, and passages from witness statements read, if considered necessary for the purpose of an opening. However the reading of witness statements in toto, as in evidence in chief, will not be permitted.

I was told by counsel for the applicant that all counsel had agreed that this was the appropriate course to take. It appears a substantial number of the witness statements filed

-

Counsel should indicate the sequence in which witnesses are to be called and I will read out of court those statements before the witness is cross-examined. My intention is that such reading should take place as close as reasonably possible to the time the witness gives evidence.

Turning to a different issue which has also been discussed with counsel, it appears to me of fundamental importance to establish whether s.21(1) of the T r a d e P r a c t i c e s L e g i s l a t i o n

Amendment A c t 1992 has the effect that this case is governed

by s.50 as it stood before or after the amendments made by

that Act to the T r a d e P r a c t i c e s A c t 1974.

The old and new forms of s.50 are quite different. They represent a major change in legislative policy governing anti- competitive acquisitions. Only one can apply to this case. There will only be one judgment. I will not be providing alternative conclusions. As the case proceeds, the evidence will have to be considered and tested (and questions of admissibility ruled on) against the criterion of either the old or the new s.50 - not both.

On reflection, I cannot accept the suggestion of counsel that	the resolution of this critical legal issue can be put off to
some indefinite future time much later in the hearing.
It is said that there is some evidence which will bear on this
issue. As at present advised, it seems to me unlikely that

-

such evidence would be very extensive. The history of the bid which Santos made for Sagasco last year is a matter of public record. To the extent that the present intent of Santos to acquire Sagasco if permitted by law is relevant, the existence of that intent would, I suspect, not be seriously disputed.

In any event, whatever evidence and argument are necessary, the issue should be resolved at an early stage.

I will stand the matter down for a short time to enable counsel to formulate submissions as to the future conduct of this hearing consistent with the foregoing ruling.

JUDGES CHAMBERS,
FEDERAL COURT OF AUSTRALIA.

450 LI?TLE BOURKE STREET,

I	4, AUSTRALIA '
---~>>>>\&<<<:CC~- MELBOURNE. 3000

1 9 October 1993

Sonia Cornale

Federal Court of Aus t ra l i a

Pr inc ipa l Registry

Law Courts Building

Queens Square

SYDNEY NSW 2000

Dear Sonia,

Re:  Trade Prac t i ces Commission v Santos Limited and

Sasasco Holdinas Limited

No. VG 377 of 1992

I enclose a copy of t h e two ru l i ngs del ivered by h i s Honour M r

J u s t i c e Heerey i n t h e above matter on 7 and 11 October 1993.

The ru l i ngs a r e not f o r general d i s t r i b u t i o n .

Reqards ,

David Brennan

Associate t o Heerey J

ADDearances

Counsel for the applicant:	Mr R Finkelstein QC with
Miss M Warren and Itc M Goldblatt
Solicitor for the applicant:	Australian Government Solicitor
Counsel for the first respondent:	Mr A Archibald QC with Mr
P Buchanan QC and Mr D OfCallaghan
Solicitor for the first	Freehill  Hollingdale &
respondent:	Page
Counsel for the second	Mr N Young QC with Mr J
respondent:	Beach
Solicitor for the second	Finlaysons
respondent: