Re Tradestock Pty Ltd; William James Frewen; Noel Edward Stock v Tnt (Management) Pty Ltd; Interstate Parcel Express Company Pty Limited; Ipec Insurance Limited; Ipec (Aust) Limited; Ansett Transport Industries (Operations) Pty Ltd; Brambles Ind [1983] FCA 13 (8 February 1983)

FEDERAL COURT OF AUSTRALIA

Re: TRADESTOCK PTY. LTD.; WILLIAM JAMES FREWEN; NOEL EDWARD STOCK
And: TNT (MANAGEMENT) PTY. LTD.; INTERSTATE PARCEL EXPRESS COMPANY PTY.
LIMITED; IPEC INSURANCE LIMITED; IPEC (AUST) LIMITED; ANSETT TRANSPORT
INDUSTRIES (OPERATIONS) PTY. LTD.; BRAMBLES INDUSTRIES LIMITED; MAYNE NICKLESS
LIMITED; YOUNG'S TRANSPORT PTY. LTD.; UNITED TRANSPORT HOLDINGS PTY. LTD.;
EXPRESS FREIGHT PTY. LTD.; A.U.T. HOLDINGS PTY. LTD.; TRADEX TRANSPORT PTY.
LTD.
(1983) 69 FLR 230
VG No. 26 of 1977
Dismissal of action for want of prosecution - Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Smithers J.(1)

CATCHWORDS

Dismissal of action for want of prosecution - principles - whether delay inordinate and inexcusable - Plaintiff company in liquidation - Order for security for costs - Concurrent proceedings involving similar facts by Trade Practices Commission against Defendants - whether delay caused prejudice to Defendants.

Trade Practices Act 1977

Practice and Procedure - Dismissal of action - Want of prosecution - Action alleged breach of Trade Practices Act 1974 (Cth) - Application for dismissal of action - Concurrent proceedings in same court - Concurrent proceedings alleging same breach by almost all same defendants involving same facts - Proceedings instituted by Trade Practices Commission - Principles for dismissal of action - Whether delay inordinate, inexcusable - Whether defendants prejudiced by delay - Trade Practices Act 1974 (Cth), ss 45, 77, 83. An action was originally begun by Tradestock Pty Ltd and others (plaintiffs) in December 1976 in the Australian Industrial Court. The plaintiffs alleged that the defendants had engaged in conduct which breached s. 45 of the Trade Practices Act 1974 (the Act) in that the defendants had agreed among themselves not to do business with the plaintiffs. In May 1978 the Trade Practices Commission (TPC) instituted similar proceedings in the Federal Court of Australia against most of the same defendants alleging also a breach of s. 45 of the Act arising from the same facts. Apart from interlocutory matters the action was not prosecuted by the plaintiffs because the plaintiffs believed that it would have been an abuse of the process of the Court for them to have continued with their action when the same issued would be adjudicated upon in the TPC's action. Some of the defendants applied to the Court seeking an order striking out action No. VG 26 of 1977 for want of prosecution. At the time of hearing of that application it appeared probable that the TPC would obtain a hearing date for its action in the first half of 1983.

Held, the relief sought should be refused because the court was not satisfied that the delay in prosecuting action No. VG 26 of 1977 has been inordinate, inexcusable or had caused prejudice to the four defendants, who were applicants in these proceedings.

Birkett v. James (1978) AC 297; Muto v. Faul (1980) VR 26, followed.

Allen v. Sir Alfred McAlpine & Sons Ltd (1968) 2 QB 229; Pacific Acceptance Corporation Ltd v. Forsyth (No. 2) (1967) 85 WN (NSW) 715, considered.

Reggentin v. Beecholme Bakeries Ltd (1968) 2 QB 276; Janov v. Morris (1981) 1 WLR 1389; Tradestock Pty Ltd v. T.N.T. (Management) Pty Ltd [1977] FCA 1; (1977) 30 FLR 343; Tradestock Pty Ltd v. T.N.T. (Management) Pty Ltd (No. 2) [1978] FCA 1; (1978) 32 FLR 420, referred to.

HEARING

Melbourne, 1982, December 1, 2; 1983, February 8. 8:2:1983
APPLICATION.

Application by the first, fifth, sixth and seventh defendants seeking dismissal of action No. VG 26 of 1977 for want of prosecution.

R. C. Macaw, for the plaintiffs.

P. R. Capelin Q.C. and L. D. S. Waddy, for the first and fifth defendants.

C. A. Sweeney, for the sixth defendant.

G. A. A. Nettle, for the seventh defendant.

Cur. adv. vult.

Solicitors for the plaintiffs: Ellison Hewison Whitehead.

Solicitors for the first and fifth defendants: Dawson Waldron.

Solicitors for the sixth defendant: Freehill, Hollingdale & Page.

Solicitors for the seventh defendant: Moules.
E.F.F.

ORDER

1. So far as it is sought in the summonses issued by the firstnamed defendant, the fifthnamed defendant, the sixth-named defendant and the seventhnamed defendant that the action No. VG 26 of 1977 be dismissed, the applications in the said summonses are dismissed.

2. The abovenamed defendants pay the plaintiffs' costs of and incidental to the applications in the said summonses.

3. There be liberty to apply upon seven days notice to all parties in the action.

Orders accordingly.

DECISION

In December 1976 Tradestock Pty. Ltd. (Tradestock) commenced an action (B No.194 of 1976) in the Australian Industrial Court against the abovenamed defendants, the business of each of whom it was to provide transport services of various kinds throughout Australia. That action is now No. VG 26 of 1977.

The action arose out of steps taken by Tradestock to act as a consultant and a broker for companies requiring transport services whereby Tradestock would advise as to the most appropriate services for particular projects and negotiate with companies offering such services with a view to arranging for the supply of those services at the cheapest rates obtainable. This was a form of brokerage not previously in operation in relation to companies such as the defendants at all or at least for a very long time. Tradestock alleged that those companies had engaged in conduct in contravention of s.45 of the Trade Practices Act 1974 (the Act) in that in contravention of that provision as amended by the Trade Practices Amendment Act 1977 (No. 81 of 1972) they had agreed amongst themselves that, inter alia, they would not deal with or accept any interstate or other carrying business offered to them through brokers including Tradestock in its capacity as broker for companies requiring transport services.

On 13 April 1977 the first, second, third, fourth, sixth, seventh and twelfth named defendants sought an order that Tradestock's action be stayed pending the provision by it of security for costs. On 2 May 1977 an order was made that so far as the action related to the first, second, third, fourth, sixth, seventh and twelfth defendants it be stayed until certain security was provided in the sum of $2,000 for each defendant or group of defendants with the same interest. The reasons for the order appear in Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. & Ors [1977] FCA 1; (1977) 14 A.L.R. 52.

On 24 October 1977 Tradestock applied for discharge of the order staying its action. In then appearing that there were good prospects that the plaintiff's action would succeed, by order dated 27 January 1978 I lifted the stay. The reasons appear more fully in Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. (No.2) [1978] FCA 1; (1978) 17 A.L.R. 257. However, when lifting the stay I intimated at p.279 that:-

"Having regard to the circumstances of this case and to what was said to the court by parties in these proceedings the court would entertain an application by any defendant to reimpose the stay on that defendant giving to the court through counsel an assurance that it is not a party to any contract arrangement or understanding the terms of which restrict it in any way from doing business with or through the plaintiff, and will consider and deal with any business proposals put forward by the plaintiff on their commercial merits and give quotations as requested by the plaintiff for the carriage of freight for the plaintiff or freight users for whom it may be acting where such carriage is within the scope of business ordinarily undertaken by the defendant in question. The nature of the assurance in contemplation would not be that it was an undertaking with legal consequences. Its observance would be voluntary, but of course if it were not observed the stay of proceedings would be subject to review."

As a consequence on 4 August 1978 the first and fifth defendants gave the assurance and undertaking specified in this intimation and the stay of proceedings pending the provision of security was re-imposed.

On 25 May 1978 proceedings No. G.44 of 1978 were instituted in the Federal Court of Australia by the Trade Practices Commission (TPC) against the first, second, fifth, seventh, eighth and tenth defendants in action No. VG 26 of 1977 and against Brambles Holdings Ltd, Associated Steamships Pty. Ltd. and Ipec Holdings Limited. In those proceedings the claim, made pursuant to s.77 of the Trade Practices Act 1974 against the defendant T.N.T. (Management) Pty. Limited, Brambles Holdings Ltd., Mayne Nickless Ltd. Youngs Transport Pty. Ltd., Ansett Transport Industries (Operations) Pty. Ltd., Associated Steamships Pty. Ltd., Ipec Holdings Ltd., and Interstate Parcel Express Pty. Ltd. is that in 1976 they entered into an agreement or arrangement with each other that they would not negotiate or deal with Tradestock in respect of the carrying or forwarding of freight or the arranging therefor as proposed by Tradestock or any other broker for or on behalf of persons seeking the services of such defendants and gave effect to such agreement or arrangement contrary to s.45 of the Act.

It is to be noted that should proceeding No. G 44 of 1978 proceed to judgment and the defendants be found to have contravened or to have been involved in a contravention of a provision of Part IV of the Act a finding of any fact made in the proceedings would be prima facie evidence of that fact in Action No. VG 26 of 1977. This follows from s.83 of the Act. That section authorises the Federal Court to certify to the making of any such finding of fact. If this were done the certificate relating thereto would be prima facie evidence of the fact stated therein to have been found by the Federal Court.

It would seem that by 31 May 1978 the financial position of Tradestock was such that it was unable to continue trading. It went into voluntary liquidation and Mr. Andrew Ian Sinclair was appointed liquidator. He has in hand some $6,000. There are a number of creditors whose claims amount to a substantial sum. Accordingly the financial interest of the shareholders in action VG 26 of 1977 is somewhat remote. The liquidator and his solicitor have taken the view that it is their duty to refrain from taking steps with a view to pressing on with that action until proceedings by the TPC, No. G 44 of 1978 have been heard. The view expressed by the solicitor was that it was inappropriate to take such steps because "it was anticipated that the Commission action would be dealing with the same subject matter, that the defendants in that action would be arguing the matter in very great detail and that the result of the Commission's action would be determinative in a practical sense, of what the plaintiff would do in this action. He said it was his view, and I believe it was his view, that "it would have been an abuse of the process of this Court for the plaintiffs to have continued with their action at a time when it was obvious that the same issue would be adjudicated upon in the Commission action." I do not share that view, but that he took it is a relevant fact. The substance behind it reflects, I think, reasonable thinking. Thus it appears that since January 1978 no steps have been taken in action No. VG 26 of 1977.

Since May 1978 the defendants in proceedings in the Federal Court, No. G 44 of 1978 have been much concerned with interlocutory matters. There has been a long list of applications, some by the TPC but mostly by the respondents therein for various orders concerning production of documents and other procedural matters and appeals therefrom. Those proceedings involved, inter alia, an application by Brambles Holdings Limited on 22 June 1979 to strike out certain paragraphs of the statement of claim, an appeal from the dismissal of that application, an application on 13 February 1980 by Brambles Holdings Ltd., Mayne Nickless Limited and Youngs Transport Pty. Ltd. for separate trials which was dismissed on 3 April 1980, numerous applications concerning the validity of notices given by the TPC under s.155 of the Act, an application on 7 May 1981 by Brambles Holdings Ltd., to bring the Commission's action under the Federal Court rules, an application on 8 May 1981 by Brambles Holdings Ltd. on 8 May 1981 for production of documents, a similar application on 27 May 1981, an application on 14 September 1981 by T.N.T. Management Pty. Ltd., Ansett Transport Industries (Operations) Pty. Ltd., and Associated Steamships Pty. Ltd., to set aside certain subpoenas, and an appeal therefrom in November 1981 to the Federal Court and later to the High Court which dismissed the appeal on 18 November 1982. There was also an application on 25 June 1981 by various defendants for an order that certain documents were covered by legal professional privilege and an application on 2 October 1981 by T.N.T. Management Pty. Ltd. for further and better particulars under the Commission's statement of claim. During the period covered by these various applications and appeals tentative dates for hearing were fixed but all had to be varied because interlocutory issues had not been resolved. However, it now appears probable that a hearing date in the first half of 1983 will be obtained. But it is important that a date for trial is now well within sight, and having regard to the passage of time in the proceedings, may almost be described as imminent. No suggestion is made by any party that there is now any difficulty in the date being fixed according to the convenience of this Court.

In July 1982 Brambles Industries Limited, a defendant in action VG No.26 of 1977 initiated proceedings seeking to have that action struck out for want of prosecution but discontinued that application on 27 July 1982. However, on 26 October 1982 and 22 November 1982 summonses were issued seeking dismissal of action VG No.26 of 1977 for want of prosecution. The applicants are T.N.T. (Management) Pty. Ltd., Ansett Transport Industries (Operations) Pty. Ltd., Brambles Industries Limited and Mayne Nickless Ltd. These are four of the twelve defendants in action VG No. 26 of 1977. Mr. Sweeney for Brambles contended that the relevant principle was to be found in the remarks of Diplock L.J. in Allen v. Sir Alfred McAlpine & Sons Ltd. (1968) 2 Q.B. 246 at p.255. His Lordship said:-

"And where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past, memories grow dim, witnesses may die or disappear. The chances of the court's being able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard. If the trial is allowed to proceed, this is more likely to operate to the prejudice of the plaintiff on whom the onus of satisfying the court as to what happened generally lies. But there may come a time when the interval between the events alleged to constitute the cause of action and the trial of the action is so prolonged that there is a substantial risk that a fair trial of the issues will be no longer possible. When this stage has been reached, the public interest in the administration of justice demands that the action should not be allowed to proceed."

Reference was made to Reggentin v. Beechholme Bakeries Ltd. (1968) 2 Q.B. 276 and Janov v. Morris (1981) W.L.R. 1389 and Muto v. Faul (1980) V.R. 26 at pp.30 and 31. In the last mentioned case the Full Court of Victoria stated the relevant principles as follows, namely, that the defendant must show:-

"(1) that there has been inordinate delay. It would be highly undesirable and indeed impossible to attempt to lay down a tariff - so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend upon the facts of each particular case. These vary infinitely from case to case, but inordinate delay should not be too difficult to recognize when it occurs.

(2) that this inordinate delay is inexcusable. As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable.

(3) that the defendants are likely to be seriously prejudiced by the delay. This may be prejudice at the trial of the issue between themselves and the plaintiff, or between each other, or between themselves and the third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule, the delay itself, prejudice can sometimes be directly proved. As a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial."

The decision of the House of Lords in Birkett v. James (1978) A.C. 297 was also called in aid. In the speech of Lord Diplock at p.318 the following observations appear:-

"The power (to dismiss) should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."

To my mind the issue in this application has to be looked at in the light, particularly of two circumstances, first, that certain of the defendants sought and obtained an order staying the action pending the provision of security for costs, and secondly, and more importantly, that in May 1978 the TPC commenced the proceedings No. 26 of 1978.

It would be clear to the defendants when they sought and obtained the orders staying the proceedings that the plaintiff company would have very great and perhaps insurmountable difficulty in proceeding with the action. That there would be some delay and probably a long delay before the plaintiff company could proceed was obvious. However, it is not to be thought that an impecunious plaintiff company may, in a sense, shelter behind an order for security for costs, and simply do nothing but allow time to pass. The frustration of an impecunious plaintiff company who has a good cause of action may work injustice. As Moffitt J. said in Pacific Acceptance Corporation Ltd. v. Forsyth & Ors. (1967) 85 W.N. (N.S.W.) 715 at 721:-

". . . the Court in considering whether it ought to make an order between two parties to an action ought prima facie to leave to the plaintiff to determine how it can best overcome any problems arising from its own improvement . . . "

I am unable to conclude that in assessing the relevance of delay by a plaintiff in such a position the existence of the stay and his impecuniosity is to be entirely ignored. It may be in some circumstances that a defendant in an action brought by a plaintiff so circumstanced should seek an order requiring the plaintiff to proceed with the action within a specified time. Indeed such a step might have been appropriate in this case. In this case no such step was taken. It is quite possible, and I believe, that the defendants were prepared to allow the situation to remain static.

After May 1978 the resources of the plaintiff company to continue the action changed. If the plaintiff company's action against the defendants is a good one, as I concluded in 1978 that it probably is, then the creditors have an incentive to which they may respond. They have not yet been consulted in the matter because the liquidator took the same view as his solicitor, as to the advisability and propriety of pressing on with Action No. VG26 of 1977 while the proceeding No. G44 of 1978 was on foot. Thus is raised a question of considerable importance in this matter. His decision goes to the question of whether the delay of the plaintiff company ought to be regarded as inexcusable. His opinion that it would not have been proper to proceed pending the disposal of proceeding No. G44 of 1978 is probably erroneous. But from a practical point of view, and so far as the liquidator is shown to have known, the situation has been, at all relevant times since he became liquidator, that proceedings No. G44 of 1978 have been poised to come to trial. Trial was delayed in 1979 largely by an application of Brambles Holdings Ltd. to strike out certain paragraphs of the TPC's Statement of Claim and the appeal in that matter. But, in January 1980 there was a suggested hearing date, namely, June 1980, but the hearing to fix the date was stood over until February 1980. But then came an application for separate trials and contempt proceedings against the TPC. As a result applications to fix the date of hearing were made on 10 December 1980 and 9 February 1981. On that last mentioned date the hearing was fixed for 6 October 1981. Then came applications by certain of the defendants concerning production of documents and appeals in relation thereto. On 6 October 1981 the hearing was adjourned because of outstanding interlocutory matters. The action was mentioned and adjourned indefinitely pending the decision of the High Court concerning subpoenas served on one, Mr. Rochfort, a representative of certain of the defendants. That appeal was disposed of on 18 November 1982. During all this time the defendants in Action VG 26 of 1977 took no action.

In my opinion whatever may be said of the propriety of a liquidator activating that action during that period, his position was that he could have called the creditors together and ascertained the extent to which they were prepared to finance the proceeding. But he would have told the creditors that he thought the action should not be activated pending the currency of action No. G44 of 1978. In the event the creditors would no doubt have agreed with him, especially in the light of s.83 of the Act. Also it would be quite reasonable for him to think, and it is my view, that even if the action were reactivated, the defendants being engaged busily with the TPC probably would have resisted a hearing in Action No. VG 26 of 1977. It would have embarrassed the defendants to have their witnesses examined and cross-examined in Action No. VG 26 of 1977 with proceedings No. G44 of 1978 to be heard shortly thereafter. There is no statement in evidence as to the actual attitude of the defendants on this matter, but it is a very reasonable view that the defendants would desire to preserve all positions before facing the fire of the TPC.

In addition, it is to my mind most likely that if at this stage action No. VG 26 of 1977 were activated it would be reasonable for the plaintiff company to seek an adjournment of the hearing until the issues in No. G44 of 1978 had been decided. As at present advised I would expect such an application to succeed. On such an application it would be urged that Parliament intended that a plaintiff in an action pursuant to s.82 of the Act should have the benefit of s.83 of the Act and that such a benefit ought not to be eroded by the circumstance that in the process of litigation the one case falls to be decided before the other. To secure the benefit for an individual plaintiff the Court might well be moved by the view that in circumstances where it is not oppressive so to do, it should postpone the hearing of the individual's action pending the decision in the action of the TPC under s.77 of the Act. It would be oppressive to both parties to force them to a hearing in the individual's action where he would not have the benefit of s.83 and the defendant would be forced to go through the whole factual analysis in the individual's case and again in resisting the TPC.

It is clear therefore, that although the liquidator has refrained from consulting the creditors under the belief that there would be some impropriety in proceeding with action No. VG 26 of 1977 while proceeding No. G44 of 1978 was still on foot, there was a substratum of reasonableness in the view taken. It would not be suprising that to such a person it would seem incongruous that the hearing of the Company's action should precede the hearing of the proceedings of the TPC. And there was an inherent reasonableness of the view that as a matter of practicality there were good reasons from the point of view of both parties why No. G44 of 1978 should proceed to judgment before No. VG 26 of 1977 was heard. From the point of view of the plaintiff the possible availability of evidence by the operation of s.83 was of the utmost importance. If the TPC succeeded in its proceedings the hearing in No. VG 26 of 1977 is likely to be greatly shortened. If the TPC failed in No. G44 of 1978 to prove the contraventions alleged there must be a likelihood that action No. VG 26 of 1977 would be discontinued.

From the point of view of the defendants there would be much embarrassment if action No. VG 26 of 1977 were heard before No. G44 of 1978. Even in the interlocutory steps involving discovery and answering interrogatories the disclosure of information involved therein might well expose the defendants to greater risk in the TPC's action for penalties. It is to be remembered that at all material times, whenever the question of the liquidator approaching the creditors might have arisen the TPC was endeavouring to achieve an early date for hearing and generally speaking, at any such time, an early hearing would have seemed probable. So far as the defendants are concerned, the present application is, of course, not concerned with dates for hearing. It is designed to achieve the final disposal of the plaintiff company's claim as effectively as if judgment were given against it. That would be a very big step to take and would involve dangers of denial of justice. In such a situation the validity of the claim and the degree of probability of success thereon are material considerations going to the exercise of discretion.

Accordingly, in the circumstances I am not satisfied that the delay in prosecuting action No. VG 26 of 1977 has been inordinate or inexcusable within the meaning of those terms in relation to the subject matter of this application.

I come then to the question of prejudice caused by the delay. Mere delay can of course result in critical prejudice to a defendant. Thus witnesses may die or depart the realm or their memories may become dim. In certain classes of cases such considerations might be critical. In this case the applicants do not provide any evidence of prejudice along these lines or at all. And the circumstances of this case are in sharp contrast to those of, for instance, running down cases where witnesses would be dealing with events of a momentary duration in which they had no personal interest and no reason to remember. In this case the issues concern a matter of business policy, the serious concern of the top management of certain large organisations, and central, in a continuing sense, to the conduct of the businesses of those organisations. The subject matter of the conduct alleged against the defendants has been continually before the defendants in a special way since May 1978, and obviously top management must have been much concerned in the interlocutory proceedings designed to protect the defendants from the TPC. In addition those concerned to give evidence have the assistance of written minutes of meetings where the arrangements challenged by the TPC are alleged to have been made. I am satisfied therefore, that the defendants have suffered no prejudice by the failure of the plaintiff company to press on with action No. VG 26 of 1976.

It was urged that the defendants could be prejudiced, particularly on the issue of damages. Certainly it will be necessary to look back at trade conditions in and prior to 1976. However, in all probability, in my opinion, the defendants will not lack the resources either of manpower or records to grapple with this issue. Prejudice, for current purposes would need to be of such a nature and degree as to outweigh the other considerations involved. It is reasonable to infer that if the plaintiff company had pressed on with action No. VG 26 of 1977, and a hearing in that action before that in No. G.44 of 1978 had appeared imminent, the defendants would have felt that such a hearing would be prejudicial to them and would have sought directions postponing such a hearing. I should think a Court might look favourably on such an application. Accordingly, I am not satisfied that the delay in prosecuting the plaintiff company's case has been inordinate, inexcusible or has caused prejudice to the four of the twelve defendants who are the applicants in these proceedings.

It is to be observed that by order of 25 January 1978 William James Frewin and Noel Edward Stock were joined as plaintiffs in action No. VG 26 of 1977. It is sought in this application to dismiss that action so far as they are concerned. But their action is but an indirect attempt to achieve the relief sought by the company without an obligation to provide security. It appears to me that most of the considerations of substance discussed in relation to the plaintiff company's action are applicable to the action by Frewin and Stock and do not call for the exercise of the Court's discretion to dismiss that action.

Mr. Sweeney submitted that the statement of claim was not in proper form in that it alleged only a conclusion of law rather than facts. But the statement of claim is certainly not misleading and gives notice of all material matters. I do not regard this matter as significant in relation to this application. It was not supported by counsel appearing for the other defendants appearing before me in this application. It was also submitted by Mr. Sweeney that the amended statement of claim had never been filed in accordance with the rules. It appears, however, that the amended statement of claim was delivered to the other parties in the face of the Court at the hearing of 24 October 1977 and has since been in the court file.

Of more significance so far as Brambles Industries Limited is concerned was the submission that that company is not a party to the proceedings No. G44 of 1978. But Brambles Holdings Limited is such a party and it is conceded that Brambles Holdings Limited is a subsidiary company of Brambles Industries Limited. The applicant Brambles Industries Limited has sought to show its lack of connection with action No. VG 26 of 1977 by an affidavit of one Leo Hunt, Manager, dated 20 October 1979 asserting that no person by the name of Linfort, who is the person alleged to have represented Brambles Industries Limited at conversations relevant to the making of the alleged arrangements contravening the Act, "holds an executive position with Brambles Industries Limited, and no person by that name held an executive position with Brambles Industries Limited on 27 July 1976". But this does not touch the question of the possible authority of the person concerned to represent both companies at the relevant conversations. Having regard to the relationship between the two companies one would have expected something a little more germane to the real point rather than the cryptic words of the affidavit in question.

On the question of the significance of the difference of identity of the Companies in the two proceedings I think that I should have regard to the circumstances that findings of fact in No. G44 of 1978 directed to the participation of Brambles Holdings Limited in the alleged contravention of the Act in conjunction with the other defendants may well include findings as to the part played therein by Brambles Industries Limited. Also findings of fact made in No. G44 of 1978 concerning the agreement or arrangement made by the defendants other than Brambles Holdings Limited with other parties may well involve findings as to the part played by Brambles Industries Limited in the total situation.

There is another consideration. At present the plaintiff company cannot re-activate the action without providing security in the sum, I am told, of $14,000. On 27 January 1978 the order for security was discharged largely on the ground that the plaintiff company's prospects of success appeared to me to be good. But apparently in anticipation that good business was to be preferred to litigation I gave the intimation referred to above. As a result assurances were given and the stay was reimposed in respect of certain defendants. But the hope that business could be conducted in future was a vain one. The plaintiff company was unable, because of its financial difficulties, to test, in the course of business, the bona fides of the assurances given. It would seem therefore that the stay was reimposed by reference to a false assumption of fact, namely, that the plaintiff company's business could proceed in the future. Accordingly, if and when directions are sought for the future conduct of action No. VG 26 of 1977 it would be proper for consideration to be given to the removal of the stay.

Having regard to the foregoing, I consider the relief sought in the summonses before me should be refused with costs. I reserve leave to the parties to apply for such directions at such time as they may be advised upon seven days notice to the other parties to action No. VG 26 of 1977.