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WA Pines Pty Ltd v Bannerman

WA Pines Pty Ltd v Bannerman

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Case Copied 27 June 1980 35 min read

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Re: W.A. PINES PTY. LTD.
And: RONALD MOORE BANNERMAN (1980) 41 FLR 175
No. W.A. 3 and 4 of 1980
Trade Practices - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Brennan(2) and Lockhart(3) JJ.

CATCHWORDS

Trade Practices - notice pursuant to s. 155 of the Act - Commission's "reason to believe" that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes or may constitute a contravention of the Act."

Practice and Procedure - discovery and interrogatories - "fishing expedition".

Trade Practices Act 1974 (Cth.) s. 155

Trade Practices - Section 155 notice - Whether Chairman had reason to believe referred to therein - Whether in proceedings party challenging validity of notice entitled to discovery and interrogatories as to Chairman's reason to believe - Trade Practices Act 1974 (Cth), ss. 155, 163A.

Practice - Procedure - Discovery and interrogatories - Applicant having no evidence - Fishing.

HEADNOTE

The respondent Chairman of the Trade Practices Commission issued a notice pursuant to s. 155 of the Trade Practices Act 1974 directed to the applicant requiring it to furnish information and produce documents. In the notice the respondent recited, in accordance with the terms of s. 155, that he had reason to believe that the applicant was capable of furnishing information and producing documents relating to a matter "that constitutes or may constitute a contravention" of the Act. By application pursuant to s. 163A of the Act, the applicant sought declarations that the notice was ineffective. Its statement of claim contained an allegation that the respondent did not have the requisite reason to believe the matters referred to in s. 155 and recited in the notice. It also alleged that the lack of definition of the respondent's belief as recited in the notice was inconsistent with the belief required by s. 155. Toohey J. ordered that this last allegation be struck out as disclosing no reasonable cause of action, but refused to order that the allegation of non-existence of the Chairman's reason to believe be struck out. The appellant had sought disovery and leave to interrogate as to this issue. Toohey J. refused to make such orders. On appeal,

Held: dismissing the appeal, and allowing the cross appeal - (1) The allegation in the statement of claim that the Chairman did not have the requisite reason to believe should be struck out as an abuse of the process of the court as an unsubstantiated assertion that could not be substantiated.

(2) No order for discovery should be made in respect of the issue of whether the Chairman had reason to believe because there was no evidence to support the assertion and discovery would have constituted a fishing expedition.

Norwest Holst Ltd. v. Secretary of State for Trade, (1978) 1 Ch 201; Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission and Bannerman (1979), 36 FLR 450, followed.

HEARING

Sydney, 1980, May 6-7; June 27.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1980] FCA 94
Decision Date: 27 JUNE 1980

CaseChat Overview and Summary

WA Pines Pty Ltd appealed against an order of Toohey J. requiring them to provide certain documents to the Australian Competition and Consumer Commission (ACCC). The ACCC cross-appealed, challenging the costs orders made against it. The Federal Court of Australia was tasked with resolving these appeals and cross-appeals. The central legal issue was whether the Federal Court had the jurisdiction to review the ACCC's decision to issue a notice under s. 155 of the Trade Practices Act, which empowers the Commission to request information or documents from parties believed to be relevant to a potential contravention of the Act. Additionally, the court needed to determine the appropriateness of the costs orders made in the initial proceedings.

The Court concluded that it did have the jurisdiction to review the ACCC's decision, as it was not an exercise of the Commission's investigative powers but rather a judicial function to ensure the legality of the notice. The Court found that the ACCC's decision to issue the notice was not flawed, as it was based on a reasonable belief that the documents could provide evidence of a contravention. However, the Court found that the costs orders in the initial proceedings were not properly justified, leading to the substitution of new orders regarding costs.

The appeals were dismissed, meaning that the initial order compelling document production stood. The cross-appeal was allowed, leading to modifications of the costs orders. Specifically, the Court struck out a paragraph from the applicant's Statement of Claim and varied the costs orders to ensure the applicant would pay the respondent's costs for the applications, while the appellant would cover the respondent's costs for the appeals and cross-appeal. This decision resulted in a comprehensive recalibration of the financial responsibilities among the parties involved in the litigation.

Orders

Orders of the court

1. The appeals be dismissed.

2. The cross-appeal be allowed, and that the Order of Toohey J. be varied by deleting orders 2 and 3 of his Order and substituting in lieu thereof:

"2. Paragraph 6 of the applicant's Statement of Claim be struck out.

3. The applicant pay to the respondent his costs of the applications by the applicant and by the respondent."

3. The appellant pay to the respondent his costs of the appeals and his costs of the cross-appeal.

Appeal dismissed. Cross appeal allowed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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