Australian Competition & Consumer Commission v Eurong Beach Resort Ltd [2004] FCA 68 (6 February 2004)

Last Updated: 16 February 2004

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Eurong Beach Resort Ltd [2004] FCA 68

Trade Practices Act 1974 (Cth) s 155
Federal Court of Australia Act 1976 (Cth) s 23






Norton v Hoare [No 2] [1913] HCA 58; (1913) 17 CLR 348
Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612
Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Co (1993) 46 FCR 428
Australian Securities and Investment Commission v United Investment Funds Pty Ltd [2003] FCA 674
Microsoft Corporation & Ors v CX Computer Pty Ltd & Ors [2002] FCA 3, 187 ALR 362





AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v EURONG BEACH RESORT LTD, JAIGEAR PTY LTD, OSER PTY LTD, SIDNEY ALBERT MELKSHAM and ANGELA KAY BURGER
Q147 of 2002





KIEFEL J
BRISBANE
6 FEBRUARY 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q147 OF 2002

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	EURONG BEACH RESORT LTD ACN 084 540 858 FIRST RESPONDENT JAIGEAR PTY LTD ACN 010 400 503 SECOND RESPONDENT OSER PTY LTD ACN 010 946 719 THIRD RESPONDENT SIDNEY ALBERT MELKSHAM FOURTH RESPONDENT ANGELA KAY BURGER FIFTH RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	6 FEBRUARY 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. Within seven days the applicant provide the court and the first, second and third respondents with draft interrogatories as to the information in the lost documents, as referred to in the reasons for judgment of 6 February 2004.

2. Subject to the first, second and third respondents having leave to bring an application with respect to the terms of those interrogatories within fourteen days from receipt of the drafts, the applicant is to have leave to administer them to the first, second and third respondents.

3. Those respondents are to file and serve their answers or objections to those interrogatories by an appropriate officer or by an agent appointed for that purpose within twenty-eight days.

4. The applicant is at liberty to file a further application for leave to administer interrogatories directed to the identity of those persons who have provided the information to enable the answers to be given.

5. Costs reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q147 OF 2002

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	EURONG BEACH RESORT LTD ACN 084 540 858 FIRST RESPONDENT JAIGEAR PTY LTD ACN 010 400 503 SECOND RESPONDENT OSER PTY LTD ACN 010 946 719 THIRD RESPONDENT SIDNEY ALBERT MELKSHAM FOURTH RESPONDENT ANGELA KAY BURGER FIFTH RESPONDENT

JUDGE:	KIEFEL J
DATE:	6 FEBRUARY 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 These proceedings concern the prices charged by the respondents for vehicle barge services between Inskip and Hook Points. This application relates, in part, to documents of the first, second and third respondents which showed the prices charged to, and other arrangements made with their customers and the number of customers to whom the services were sold in the period 14 August 2002 to 8 September 2002 inclusive. The documents may also have disclosed the names of persons who might be called as witnesses as to prices. The documents in this category comprise ticket stubs which showed the date the ticket for barge services was sold, the price charged and the registration number of the vehicle in question; and what is called a carbon book or an invoice and statement book which recorded from the stubs the number of tickets sold at different prices. Both those sets of documents have been destroyed. How that came to occur is not gone into. It may at the least be inferred that the first, second and third respondents took no steps to preserve those documents when they were obliged to do so.

2 Additionally, the affidavit evidence discloses that of the contracts with customers for the supply of barge services between 2 December 1986 and 9 September 2002, which were originally listed by way of discovery, some 140 are not now produced and are also apparently missing.

3 The applicant seeks orders which will ameliorate the prejudice it now suffers by the loss of the information contained in the documents. It is not disputed that the documents are relevant and that they may assume some importance in the applicant’s case.

4 The Amended Notice of Motion seeks orders in these terms.

‘1. The first, second and third respondents file and serve within two weeks of the date of this order affidavits, by a responsible officer, servant, agent, appointee or such other person as the Court may order, attesting to those respondents’ knowledge information and belief as to the following matters:

1.1 for the period from 14 April 2002 to 8 September 2002 (inclusive) :

1.1.1 the number or approximate number of return tickets sold or provided by the respondents to customers each day for the transportation of vehicles and vehicles plus trailers between Inskip Point and Hook Point:

1.1.1.1. at the price of $20;

1.1.1 .2. at the price of $15;

1.1.1.3. at the price of $10;

1.1.1.4. without charge;

1.1.1.5. at any other price (specifying the price);

1.1.2 all accompanying benefits of such tickets, including discounts on other products or services supplied by one or more of the respondents.

1.2 the number or approximate number of customer contracts (whether oral or written) that were in force, from time to time in the period from 21 December 1986 to 9 September 2002, for the supply of barge services between Inskip Point and Hook Point;

1.3 the names of the persons or companies to whom the contracts referred to in paragraph 1.2 were given, the duration of their contracts and the conditions of the contracts, including the prices specified in the contracts;

1 .4 the systems by which employees, servants and agents of the respondents, including Cafstar Pty Ltd, skippers and deckhands, were instructed as to the prices to charge from time to time, whether such instructions were written or oral, the person or persons who gave these instructions and to whom those instructions were given, and the system in place to ensure or verify the instructions were carried out;

1.5 the record and account keeping systems employed by the respondents, including their employees, servants and agents, as to the prices charged, discounts offered, the fares received, ticketing, use of or access to any discount or benefit included in the ticket price, and the system or policy according to which such records and accounts were to be retained or disposed of.

2. In complying with the preceding order, the first, second and third respondent shall make all proper and reasonable enquiry of their respective officers, employees and agents, including former officers, employees and agents, and shall set out the enquiries made and the responses thereto in their affidavits.’

5 I do not accept the respondents’ submission that the applicant is prevented from bringing this application because of its powers under s 155 of the Trade Practices Act 1974 (Cth), which it exercised prior to the institution of these proceedings. It is not an abuse of process that it now seeks the Court’s orders in aid of discovery, in the circumstances which have occurred. It could not be said to be appropriate for it to attempt to use its powers to overcome the problem which has arisen.

6 The Court has jurisdiction to grant the relief sought in the principal proceedings and has powers to that end which include discovery. Pursuant to that power a party may be obliged to answer questions. A proper area for interrogation is with respect to the contents of lost documents see: Norton v Hoare [No 2] [1913] HCA 58; (1913) 17 CLR 348 at 354. .

7 The applicant seeks to have the respondents answer some questions. The principal questions sought to be put are as to the information which could have been obtained from the documents, namely the prices charged or not charged in the period in question and the approximate number of tickets sold at each price. So far as concerns the missing contracts, the number of customer contracts entered into and the names of customers who were parties to them are sought. The sources of the firstmentioned class of documents are likely to be the persons to whom the ticket butts were taken and who entered a summary of them in the carbon book. They might be said to be agents of the companies. Additionally information might be obtained from persons employed by the first, second and third respondents on the barges and whose task it was to sell the tickets and record the information on the stubs. The fourth and fifth respondents themselves may have knowledge of these matters. I take it that the same persons are thought to be the possible sources of information with respect to the missing customer contracts.

8 I do not accept the applicant’s submission that the power to make orders requiring enquiries and answer on these matters arises under the default provisions of O 15 r 16 and O 10 r 7. Further, it would not seem to me that the respondents are not in default of an order of the court, but rather of their obligations with respect to discoverable documents.

9 The applicant submits that s 23 of the Federal Court of Australia Act 1976 (Cth) provides the power to make the kind of orders sought. The respondents contend that the section cannot be utilised to create rights or extend jurisdiction beyond that which is vested in the Court: Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 619. The Court’s discretion under the section does not extend beyond the grant of remedies appropriate to the protection and enforcement of the right or subject matter in issue (at 620-621). In the case of mareva injunctions it enables a court to protect its process from abuse in relation to the enforcement of orders and prevents the remedies it might ultimately be given being frustrated (at 617 and 619). The Court also has an implied power in this regard (at 618).

10 I do not think it is necessary to refer, by way of analogy, to the Court’s powers to grant mareva injunctions. The orders sought here concern an interlocutory process and the applicant’s right to access the respondent’s documents. The Court has power with respect to those processes and that would extend, in my view, to ensuring their integrity and dealing with problems which might arise in a party’s fulfilment of their obligations with respect to discovery. One example is the allowance of interrogatories as to the contents of a document when it has been lost, although generally speaking such an interrogatory is not permissible. Nevertheless I accept that, if it were necessary, s 23 might be used in aid of these powers. In Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Co (1993) 46 FCR 428 at 431-2, s 23 was seen to provide the power to direct a party to take steps to obtain access to documents in the possession of a third party where there was a real likelihood that they would be provided. Here information is sought rather than the documents themselves and the persons who might provide it are likely to be the servants or agents of the respondents. Interrogatories would appear appropriate. In any event it is sufficient to observe that the Court has power to allow interrogatories as to the documents lost and the information contained in them. I did not understand the respondents to contend to the contrary. Their point was that interrogatories should be pursued rather than the more general questions suggested by the applicant.

11 I appreciate that the applicant says that interrogatories are not appropriate to what it seeks to achieve. When analysed however it seems to me that the permissible questions as to the information lost fall within a relatively narrow compass. Once that is appreciated it is more a question of form than substance. There seems to me good reason why the questions should be drafted with precision, as interrogatories are, not the least because they are more likely to result in the provision of the information sought. As presently drawn they would in part be incapable of answer, for example if the assumptions about prices were not correct. I appreciate that that leaves the question as to whether questions about the identity of informants can be obliged. Requiring them to be framed as interrogatories will not prevent argument on this question.

12 I do not accept the respondents’ submission that no answers can be provided because the fourth and fifth respondents would claim privilege against self-incrimination. Accepting for present purposes that they would, and that the claim was one proper to make, it does not seem to me an insurmountable hurdle. The fourth and fifth respondents might be the only corporate officers with knowledge of the relevant facts, but there seems to be no reason why a person cannot be appointed an agent for that purpose: see eg Australian Securities and Investment Commission v United Investment Funds Pty Ltd [2003] FCA 674 [11]; Microsoft Corporation & Ors v CX Computer Pty Ltd & Ors [2002] FCA 3, 187 ALR 362 at [35]. It does not seem to be necessary that the person making the answer themselves have knowledge in a case such as this. They will be making enquiries, assisted by the fourth and fifth respondents.

13 As to the content of those questions, I would be disposed at this point to grant leave with respect to the information which was contained in the documents which had been lost. If the Applicant seeks additional information, which goes beyond that description, it can bring an application to deliver those interrogatories on other grounds. I refer in this regard to the questions in the pars 1.1.2, 1.4 and 1.5 of the motion.

14 The more difficult question which arises, it seems to me, is as to whether the respondents should be obliged to provide the names of those persons who have provided the information contained in the answers. The applicant says that without this information it could not verify the accuracy of the answers.

15 Historically the objection to such a question would be that a party is not required to identify their witnesses, although there have been some exceptions to this rule such as where persons were present when a critical communication was made. In any event it is not at all obvious that the respondents here would be calling those persons as witnesses. Moreover there would not seem to be any real prejudice to the respondents in requiring them to answer the further question as to who provided that information, given the applicant could ask such a question at trial, if the deponent were called for cross-examination. Interrogatories could, it seems to me, be delivered as to the identity of the respondents’ employees, servants or agents involved in the activities in question, which would at least identify the persons to whom the applicant should direct its enquiries. On the other hand if the fourth and fifth respondents are the suppliers of information they might be reluctant to provide it if their identity was then to be exposed.

16 There may be advantages to the applicant in requiring the further answers, but there may be other problems created by it. These are matters for the applicant’s consideration. I think it fair to say however that the submissions to this point have not focussed upon the Court’s power to oblige answers identifying the persons who have provided the information, and, more particularly, by reference to some extension of the court’s powers with respect to discovery and interrogatories or by analogy with it. I do not intend to prevent the applicant maintaining reliance upon s 23, but would benefit from submissions upon how it is seen to operate in connexion with those powers.

17 In these circumstances I propose to order that the applicant file and serve draft interrogatories directed to the information lost and interrogatories which go to the sources of that information. I leave it to the applicant as to whether it seeks the further orders. Further consideration of the Court’s powers with respect to those interrogatories may be deferred.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 6 February 2004

Counsel for the Applicant:	Mr D Rangiah
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr P J Davies
Solicitor for the Respondent:	Carswell & Co
Date of Hearing:	6 February 2004
Date of Judgment:	6 February 2004