Trade Practices Commisssion v TNT Management Pty Ltd

[1980] FCA 41

Re: TRADE PRACTICES COMMISSION
And: T.N.T. MANAGEMENT PTY. LIMITED; BRAMBLES HOLDINGS LIMITED; MAYNE NICKLESS
LIMITED; YOUNGS TRANSPORT PTY. LIMITED; ANSETT TRANSPORT INDUSTRIES
(OPERATIONS) PTY. LIMITED; EXPRESS FREIGHT PTY. LIMITED; ASSOCIATED STEAMSHIPS
PTY. LTD.; IPEC HOLDINGS LIMITED; INTERSTATE PARCEL EXPRESS CO. PTY. LIMITED
No. G44 of 1978
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.

CATCHWORDS

Trade Practices - Proceedings for penalties - Application for separate trials.

HEARING

SYDNEY

#DATE 3:4:1980

ORDER

1. That the summons of the third defendant and the summons of the fourth defendant are dismissed.

2. That costs are reserved.

JUDGE1

In this matter the Trade Practices Commission ("the plaintiff") seeks pecuniary penalties under ss. 76 and 77 of the Trade Practices Act 1974 ("the Act") and injunctions under s.80 of the Act against nine defendants. On 4 July 1979 I dismissed an application in which the second defendant sought to have certain paragraphs of the statement of claim struck out. On 21 November 1979 the Full Court of this Court dismissed an appeal from my judgment.

The proceedings now before me were commenced by way of three chamber summonses. The first was brought by the second defendant Brambles Holdings Limited, the second by the third defendant Mayne Nickless Limited, and the third by the fourth defendant Youngs Transport Pty. Limited. Each summons sought that the action against the defendant taking out the summons should be tried separately from and before the plaintiff's alleged causes of action against other defendants and that the writ of summons and the statement of claim be amended accordingly.

The second defendant, Brambles Holdings Limited, indicated that it did not wish to pursue the application and asked me to dismiss its application. I dismissed it with no order as to costs.

The two applications by the third and fourth defendants were heard together. The applications were opposed by senior counsel for the plaintiff and by senior counsel for the first and seventh defendants. The second, fifth, sixth, eighth and ninth defendants adopted a neutral attitude to both applications.

Broadly, the statement of claim alleges that, prior to the amendment of s.45 of the Act from 1 July 1977, the defendants, or certain of them, including in each case the third and fourth defendants, entered into three understandings or made three arrangements in breach of s.45(2)(a). It is alleged that the understandings were entered into and/or the arrangements made on 12 February 1976 (par.21), 20 May 1976 (par 27) and 4 August 1976 (par.33). The statement of claim also alleges in pars. 26, 32 and 38 that various defendants, including in each case the third and fourth defendant, gave effect to the arrangements and/or understandings alleged in pars 21, 27 and 33 respectively and in par.39 a continuation of this conduct is alleged.

The summonses before me proceeded on the basis that I was entitled to have regard to the judgment of Smithers J. in Tradestock Pty. Limited v. T.N.T. (Management) Pty. Limited (1978) 17 A.L.R. 357. It was common ground that I could assume that the evidence which would be tendered before me at the trial would include evidence somewhat along the same lines as that before Smithers J, and my attention was directed to pp.262-264 of the judgment, wherein conversations with a gentleman from the first defendant, another from the second defendant, another from the fourth defendant, another from the fifth defendant and one from the eighth defendant are set out. It was submitted that no conversation with any person from the third defendant was mentioned in that judgment. It was submitted on behalf of the third and fourth defendants that the trial judge was likely to have before him these conversations and that certain of them might be put forward as admissions. It was then submitted that it was probable that an effort would be made to use these conversations as evidence against defendants other than the company of which the speaker was an officer as being statements of co-defendants in furtherance of concerted action, or as evidence or pre-concert. Reference was made to Tropodi v. the Queen (1961) 104 C.L.R. 1. Reference was made to the following passage in the joint judgment of the court at p.6:

"For upon a charge of conspiracy the proof of the crime may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment."

It was submitted for the third defendant that the plaintiff would allege that at least one or more of these conversations could be treated as a "verbal act".

Counsel for the fourth defendant also relied upon evidence in an affidavit sworn by the Managing Director of the fourth defendant that it ceased operations in the field of interstate freight forwarding in February 1977. It was then submitted that since part of the conduct alleged occurred after the Act was amended as from July 1977, questions of law and matters of fact would arise in the proceedings which would not affect the fourth defendant. The fourth defendant also submitted that the market of rail transport was a different market to that of road transport and that it had not operated an independent interstate road transport service. It also alleged that it was a Victorian company and that it would be much more convenient to have the proceedings heard in Melbourne than in Sydney.

Both applicants considered that the matter was one for my discretion.

In my opinion, both applications should be dismissed. The proceedings are based upon allegations that the third and fourth defendants were both parties to any relevant arrangement or understanding and each of the breaches alleged includes allegations of breaches by both the third and fourth defendant. In my opinion, if I granted separate trials, it is probable that efforts would be made to produce substantially the same evidentiary matter against the third and fourth defendants as would be presented in one trial against all defendants. In my opinion, this would be an entirely inconvenient result and would be likely to add significantly to the cost and inconvenience of having issues raised by the statement of claim determined. In addition, it seems not unlikely that if separate trials were granted in respect of the allegations of either the third or fourth defendants, some of the other defendants might be prejudiced by their officers being required to give evidence when not represented by counsel.

In general, I see no reason for approaching the problem in a way significantly different from that which should be made in an application for separate trials where one indictment has been filed against a number of persons for conspiracy.

In my opinion a trial judge should not suffer any embarrassment if the proceedings continue against all defendants. Indeed, it would surely be easier for the trial judge to deal with any problem of evidence being admissible against certain only of the defendants when he himself is hearing the case than if he has to direct the jury in a criminal action.

The proceedings in both summonses were conducted upon the assumption that I had jurisdiction to order separate trials. Reference was made to order 19 rule 1 of the High Court Rules, which rules are applicable since the action was commenced in 1978.

I do not find it necessary to examine in detail the extent of any power which I have to order separate trials because I am satisfied that separate trials would not be appropriate in this case.

I dismiss the summons of both the third and fourth defendant. I reserve the question of costs.