Trade Practices Commission v T.N.T. Management Pty Ltd

[1983] FCA 59

FEDERAL COURT OF AUSTRALIA

QUEeNS SQUARE

SYDNEY 2000

.J . 7' I N THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY No. G44 of 1 9 7 8

GENERAL DIVISION 1

BETWEEN: TRADE PRACTICES COMMISSION

P l a i n t i f f

AND : T .N. T . NANAGEMENT PTY . LIMITED

First Defendant

BRAMBLES HOLDINGS LIMITED

S e c o n d Defendant

MAYNE NICKLESS LIMITED

T h i r d Defendant

YOUNGS TRANSPORT PTY. LIMITED

Fourth Defendant

ANSETT RANSPORT INDUSTRIES .

(OPERATIONS) PTY. LIMITED

F i f t h Defendant

EXPRESS FREIGHT PTY. LIMITED

S i x t h Defendant

ASSOCIATED STEAMSHIPS PTY. LIMITED

Seventh Defendant

IPEC HOLDINGS LIMITED

E i g h t h Defendant

INTERSTATE PARCEL EXPRESS

CO. PTY. LIMITED

Ninth Defendant

31 March 1 9 8 3

REASONS FOR JUDGMENT

F R A N K 1 J.

T h e matter i n which t h i s notice of motion was t a k e n ou t

w a s last before m e on 18 February 1 9 8 3 and 25 February 1 9 8 3 when I

delivered judgment dealing w i t h the question of t h e inspection of

certain documents which had been produced i n answer t o a subpoena

issued to a N r Rochfort.

2.

A short history of these proceedings is to be found in

judgments of mine, in relation to interlocutory proceedings,

delivered on	23 October 1981, 19 November 1981 and 18 February
1983.

The matter G No. 4 4 of 1978 was commenced in May 1978.

Appeals and interlocutory matters have been before the Full Court

of this court on three occasions and before the High Court by special

leave on one occasion.

On 9 February 1981 I fixed 6 October 1981 as the date

for the hearing to commence. However, because of the application

for special leave to appeal to the High Court, that date was

vacated: Subsequently on 11 December 1981, by consent, the matter

was stood out of the list pending the determination of the appeal

to the High Court.

After judgment had been given by the High Court, the

matter was again before me on	12 December 1982 to fix	a date for
hearing.

I fixed 17 May 1983 as the date when the hearing was

to commence. I did this after being addressed on behalf of the

parties and after receiving a number of submissions, and I

considered that date to be the most appropriate. The estimates

of the hearing time by counsel then ranged from three or four

weeks at least to as much as fourteen weeks, and they now range -

and these are to be treated only as very rough estimates	- from
about five weeks to about fourteen weeks.

3 .

The notice of motion before me today is an application

by the solicitors for the first, fifth and seventh defendants

that the hearing date be vacated because senior counsel who has

been briefed for these defendants is engaged in a long case, and,

because of somewhat unexpected events which occurred only last

week, he will now t be available until about the end of June.

Mr James Rodon King, a partner from the firm of solicitors

for the three defendants who are the applicants in thi motion, has

sworn two affidavits. In the first of these, sworn on 25 March

1983, he says in paragraph 27 that:

"I place before the Court the circumstances

that Senior Counsel represents three separate

Defendants; that the case involves unique

questions of law and fact; and that I have

advised my client of the extreme difficulty

in which the present circumstances place m

in ensuring adequate representation for it."

Then in paragraphs 28 and 29:

-	"I fully realise and greatly regret the
inconvenience to all other parties and to the Court, both of this application and,
should it succeed, of the fixing of a new
date. I am cognizant of my duty to the Court
and its officers and the overriding needs of
justice. I nevertheless humbly submit that
foremost in those needs is that each Defendant have its case fully and adequately placed before the court at the trial of the matter.
L further submit that in all the circumstances
of the case, no prejudice will be caused to any
party by a short adjournment of the matter, but
the contrary will place my three clients in a
totally disadvantageous position."

I was asked to fix a new date for trial.

I gave leave this morning to file in court a further

affidavit by Mr King, in which he says that yesterday he

endeavoured to obtain the services of three alternative Queen's

Counsel for his clients, but that he has been unable	to obtain
the services of any of them.

He also draws attention to the fourth defendant's

position, and set out in paragraph 3 of his affidavit that a

petition for its winding up is listed to be heard today before

the Supreme Court of Victoria.

He also mentions that he has received a letter from the

Senior Assistant Crown Solicitor, the solicitor for the plaintiff,

which is annexed to the affidavit, and that letter points out

that some further discoverable material has come into the possession

of the plaintiff since the affidavit of discovery of Wynne

Patricia Hannan was sworn on 27 January 1981, and that the plaintiff

is preparing a further affidavit of discovery which will be filed

and served shortly.

Mr Priestley Q.C., who appears for the Trade Practices

Commission, indicated that whatever is done in relation to any

further discovery will be done next Tuesday, and he also pointed

out that there is some doubt, he feels, about whether there is

any obligation to discover that material at all, but that a

communication would be directed to relevant persons on Tuesday.

The position with regard to discovery does not seem to

me to be of great relevance. The position in regard to Youngs

i

5.

Transport Pty. Ltd. also, so far as I can see, is not a matter

of any significance at this stage in relation to hearing date

fixed as far ahead as 17 May.

The other parties to the proceedings have all either

opposed, or not consented to, the application to vacate the

hearing date. Counsel for the second and sixth defendants, i

particular, have indicated that legal representation for their

clients is likely to be affected if this hearing date is vacated

and, indeed, if it were vacated I would anticipate, bearing in

mind the difficulties that emerged in December last year when I fixed a date €or May of this year, that it would be extremely difficult to find any suitable hearing date for many months ahead.

6

I have in mind that this case commenced almost five years

ago, and the hearing date was fixed six months ahead.	It is
still six weeks to the hearing date.

Although Mr Cole Q.C. has drawn attention to what he

regards as the somewhat special nature of these proceedings, and

the need to obtain suitable senior counsel to represent the

defendants which he represents, it Seems to me that six weeks

should be quite long enough to obtain suitable senior counsel

from one or other of the bars to which access can be had, to

ensure that the three applicants in this notice of motion would

be properly represented at the trial.

In addition, one knows the difficulty of getting together

counsel in a matter of this sort, and everybody has been working,

6.

I imagine, to be ready for this trial which, as I ave said, is

still some six weeks away. I think that this application might

fairly be described at least as somewhat optimistic, and I refuse

to vacate the hearing date, and I dismiss the motion.

The orders I make are as follows:

1. The motion is dismissed and the hearing is to remain fixed,

to commence on 17 May 1983.

2 . The applicants are to pay the costs of the plaintiff and

the second, sixth, eighth and ninth defendants in the action,

insofar as those costs are occasioned by this notice of motion.

e