Australian Competition & Consumer Commission v National Australia Bank Limited [2001] FCA 112 (15 February 2001)

Last Updated: 28 March 2001

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v National Australia Bank Limited [2001] FCA 112

Federal Court Rules O 5 r 12, O 6 r 8

Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, considered

News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410, cited

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v NATIONAL AUSTRALIA BANK LIMITED

N 948 of 2000

BRANSON J

SYDNEY

15 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 948 of 2000

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	NATIONAL AUSTRALIA BANK LIMITED RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	15 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. No order be made on the notice of motion today.

2. Further consideration of the notice of motion be adjourned to a date to be fixed.

3. Visa International Service Association Inc has leave to bring the notice of motion on upon 48 hours notice being given to the parties to the proceeding.

4. Visa International Service Association Inc pay the costs of the applicant in the proceedings of today's hearing on the notice of motion.

5. Subject to paragraph 4, the costs of the notice of motion be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 948 of 2000

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	NATIONAL AUSTRALIA BANK LIMITED RESPONDENT

JUDGE:	BRANSON J
DATE:	15 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR DECISION

1 Visa International Service Association Inc ("Visa") has moved pursuant to a notice of motion filed 6 February 2001 for an order that it be joined as a respondent to this proceeding. National Australia Bank Limited ("NAB") has indicated that it does not oppose the making of the order sought by Visa. The Australian Competition and Consumer Commission ("ACCC") has opposed the making of the order sought by Visa. In the alternative ACCC has argued that the order ought not to be made now.

2 I have not reached a concluded view as to whether Visa has made out a case for joinder under O 6 r 8 of the Federal Court Rules. However, I am satisfied that, whether or not it has made out such a case, I have a discretion as to the timing of any joinder that might be ordered. Indeed no party contended to the contrary.

3 I am of the view that it would not be an appropriate exercise of my discretion to order the joinder of an additional party to this proceeding now.

4 The factors that cause me to hold this view are first that the applicant currently holds leave to file and serve cross-claims against a number of entities including Visa. If Visa becomes a party to a cross-claim the Court will have wide powers to make directions under O 5 r 12 of the Federal Court Rules, including the power to give Visa leave to defend the claim on the originating process or any other cross-claim in the proceeding, either alone or in addition to any other party. The Court will also have power to give directions determining the extent to which NAB and Visa shall be bound as between themselves by a judgment (including a judgment by consent or by default) or decision (including a decision by consent) on the claim on the originating process or any other cross-claim in the proceeding. It seems to me that it would be appropriate to wait to see whether Visa becomes a respondent to a cross-claim so that the present application can be considered in the light of any directions that might be made under O 5 r 12.

5 Secondly, I have taken into account the fact that the current parties to the proceeding are presently in negotiation and that those negotiations might not only lead to amendments being made to the pleadings should the matter continue, but might even result in the proceeding being discontinued or otherwise resolved. I do not think it appropriate at this stage to disturb the negotiations by joining Visa, either alone or with the other entities which, it seems to me, may equally have a case to be joined if Visa's application on this notice of motion were to succeed. The proceeding is presently in the early stages of its pre-trial management. Immediate joinder of Visa is not necessary to ensure that, without Visa being joined as a party, no order is made in the proceeding which directly affects any rights or liabilities of Visa to a party to the proceeding in respect of the subject matter of the proceeding (Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 per Lord Diplock at 55-56 cited in News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 at 524).

6 I therefore indicate that there will no order made on the notice of motion today, but the motion will not be dismissed. Visa will have leave to bring the motion on again on 48 hours notice to the parties. If proposed consent orders should be offered to the Court by the parties (as it appears that Visa fears may happen) it might prove to be the case that the terms of those proposed orders require that Visa be joined as a party to the proceeding before a determination is reached as to whether the proposed orders should be made. There may, of course, be other circumstances which would make it appropriate for the notice of motion to be brought back on for further consideration. If any such circumstances should arise, Visa will be at liberty to exercise its leave to bring the motion on again.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Branson.

Associate:

Dated: 21 February 2001

Counsel for the Applicant:	Mr AI Tonking
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr C Jose
Solicitor for the Respondent:	Arthur Robinson & Hedderwicks
Counsel for Visa:	Mr Karkar QC, Mr Moore
Solicitor for Visa:	Freehills
Date of Hearing:	15 February 2001
Date of Judgment:	15 February 2001