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

[1981] FCA 222

IN THE FEDERAL COURT OF AUSTRALIA)

1

NEW SOUTH WALES DISTRICT REGISTRY) No. G44 of	1978
GENERAL DIVISION

BETWEEN:

TRADE PRACTICES COMMISSION

Plarntiff

T .N .T. MANAGEMENT PTY. LIMITED

First Defendant

BRAMBLES HOLDINGS LIMITED

Second Defendant

MAYNE NICKLESS LIMITED

Third Defendant

YOUNGS TRANSPORT PTY. LIMITED

Fourth Defendant

ANSETT TRANSPORT INDUSTRIES

(OPERATIONS) PTY. LIMITED

Fifth Defendant

EXPRESS FREIGHT PTY. LIMITED

S i x t h Defendant

ASSOCIATED STEAMSHIPS PTY.

LIMITED

Seventh Defendant

IPEC HOLDINGS LIMITED

Eighth Defendant

INTERSTATE PARCEL EXPRESS	CO.
PTY. LIMITED

Ninth Defendant

CORAM: Bowen C . J .

20 October 1981.

- 2 -

REASONS FOR JUDGMENT

BOWEN C . J . On 31 August 1981 a notice of motion was f i l e d by

the f irst , f i f t h and seventh defendants in proceedings No. G44

of 1978 s e e k i n g o r d e r s p u r s u a n t t o s.157 o f t h e T r a d e

P rac t i ces A c t 1974 t h a t the Trade Practices Commission ( t h e

Commission) f u r n i s h t r u e c o p i e s o f c e r t a i n documents. The

documents i n ques t ion were l i s ted under headings (ii) and

(iil) in Exh ib i t Y t o an a f f ldav i t o f Wynn P a t r i c i a Hannon

sworn on 11 June 1981 and f i l e d i n the proceedings.

When the matter first came before m e I was asked t o r u l e

on those documents w l t h which Miss Hannon w a s assoc la ted .

Evidence was g iven d i r ec t ed t o p rov ing t ha t she was an o f f i c e r

of the Commission and t h a t she had been responsible for

b r i n g l n g the p a r t i c u l a r d o c u m e n t s i n t o e x i s t e n c e . The

documents, which were not in evidence, w e r e handed t o m e . I

was asked t o r u l e on two ques t ions : f i r s t , whether the

documents in quest ion had been "prepared by an officer of the

Commission", and, secondly, whether each document "tended t o

establlsh the case" of any of the three defendants. My

decislon given on 9 October 1981 w a s t ha t each of t h e

documents i n quest ion had been prepared by Miss Hannon who w a s

an o f f i ce r o f the Commisslon a t t h e time and t h a t none of the

documents tended to es tab l i sh the case o f any of the three

defendants. In my reasons I set f o r t h the in t e rp re t a t ion

which I placed on the re levant words i n s.157.

- 3 -

The th ree de fendan t s t hen app l i ed fo r l eave t o amend the

notice of motion by adding a reques t for an o rder that the

Commission supply them with copies of statements of the

following persons : M s . W. Hannon, M r . W. Lev i t t , M r . E .

S p l t e r i , M r . D. McDonald, M r . T . G i l l e sp ie , M r . H. Thomas, M r .

J. Hayman, M r . N. Stock, M r . W. Frewen, M r . A. Oxley, M r . T.F.

Henderson, M r . L. Whelan, M r . H. Beasley, M r . E. Edels and M r .

P . Jones . These statements were r e f e r r e d t o i n t h e a f f i d a v i t

of discovery sworn by Miss Hannon on 27 January 1981 and filed

i n the proceedings b u t a claim of pr lvl lege had been made and

they had not been made ava i l ab le fo r i n spec t ion .

The par t ies then asked m e t o r u l e on the remaining

documents l i s t e d under the headings (ii) and (iii) in Exhib i t

Y and on the s t a t emen t s l i s t ed above. Evidence w a s given by

a f f i d a v i t s sworn respectively by Colin John Dennett , Glen

Catherine Smith and Edwina Alice Barton on 5, 8 and 9 October

1981 and f i l e d i n the proceedings d i rec ted to p rovlng tha t

they w e r e the persons responsible for br inglng the documents

l ls ted under headlngs (ii) and (ill) In E x h i b i t Y i n t o

ex is tence and t h a t t h e y were o f f i c e r s o f t h e Commission a t the

re levant times. No evidence w a s given t o prove who prepared

the statements. None of the documents o r the s ta tements was

i n ev idence bu t a l l were handed t o m e t o enab le m e t o make a

determination whether any of them tended t o s u p p o r t t he case

of any of the three defendants.

I have carefully read the documents and the statements and

have considered them i n r e l a t i o n t o the issues r a i sed i n t h e

- 4 -

proceedings. I have come to t he conc lus ion t ha t w i th one

exception none of them t ends t o e s t ab l l sh t he ca se o f any o f

the three defendants . The exception is a statement of M r . W.

Levi t t inc luded in the documents covered by t h e amendment t o

the notice of motion. This statement contains a good dea l of

material supporting the p l a i n t i f f ‘ s c a s e i n r e l a t i o n t o t h e

three meetings of the National Freight Forwarders‘ Association

r e fe r r ed t o i n t he s t a t emen t o f c l a im. It conta ins a l so some

mater ia l which might be r e g a r d e d a s c u t t i n g down t h e

p l a i n t i f f ‘ S case in respec t o f them. I t i s f o r th is reason

t h a t I have taken the view that It t ends t o e s t ab l i sh t he ca se

of the defendants within the meaning of s.157.

No ev idence has been g lven on t he ques t ion of t h e

preparat ion of the s ta tement . In the absence of such evldence

the re w i l l be an obl iga t ion upon t h e Commlssion t o f u r n i s h a

copy of It t o each of the three defendants.

1 1