Australian Competition & Consumer Commission v. Pioneer Concrete (Qld) Pty Ltd

BC 9501995

---

(Judgment by: Drummond J)

Australian Competition & Consumer Commission  
v Pioneer Concrete (QLD) Pty Ltd & Others

Court:

Judge:
Drummond J

Judgment date: 15 December 1995

Brisbane

---

Judgment by:
Drummond J

REASONS FOR JUDGMENT

I have before me applications for directions as to the future conduct of this action. The case is one in which the Australian Competition and Consumer Commission ("the Commission") seeks a civil penalty and injunctive relief under the Trade Practices Act 1974 (Cth). The maximum penalty to which the first respondent is exposed under the law in force at the relevant time is $500,000. Maximum penalties now applicable to infringements of the kind alleged against the respondents are much greater. The point in issue concerns whether I should direct that the evidence of each party is to be presented in written form and exchanged before the hearing starts or whether the evidence should be presented orally.

The respondents say that the case turns on vital issues of the credibility of a number of witnesses on each side and that factor, coupled with the penal nature of the proceedings, requires the trial to take place on oral rather than written evidence-in-chief if it is to be, in effect, fair. Reference is made to the fact that certain critical meetings and conversations took place over five years ago. The applicant relies on the fact that the first respondent has no entitlement to claim privilege from self-incrimination, on the need for the trial to be completed as expeditiously as possible and on the undertakings it is prepared to offer not to tender any of the witness statements on which the first, second, third or fourth respondents intend to rely against any of those respondents, if the particular respondent does not go into evidence.

I have been referred to general statements as to the desirability of a case dependent on determinations as to state of mind, recollection and credibility being heard on oral evidence of the relevant witnesses. One such case was Greghan Investments Pty. Ltd. v Commissioner of Taxation (1986) 83 F.L.R. 41 . On the other hand, the general practice of this Court under its directions power is to hear cases on the basis that evidence-in-chief of all witnesses, including witnesses whose credibility is in issue to a greater or lesser extent, is given in written form and exchanged between the parties before trial. In this context, I was referred to a decision of Morling J, which raised a similar question to that which is before me, in Trade Practices Commission v Tepeda Pty. Limited, an unreported ex tempore judgment given by his Honour on 11 December 1992. His Honour said:

"In the first place, Mr Bannon [i.e., counsel for the Commission] has undertaken that he will not tender the affidavits against the respondents [who comprised one corporate respondent and one natural person respondent] should they decide not to go into evidence. It seems to me that if there were any prejudice, that largely dissipates that. More importantly, I think the orderly conduct of these proceedings (which are not criminal but are civil proceedings for the recovery of penalty) can only be achieved if the respondents file affidavits denying the allegations of fact contained in the applicant's affidavits. If it were otherwise, the applicant would be taken by surprise and this could lead to an adjournment of the proceedings. I think most judges would give an applicant a reasonable opportunity of answering a respondent's case when it (ie the applicant) has put its case in writing well before the hearing, and the other side has not done so."

That was, of course, a case where it was only the respondents who sought a revocation of a direction that they, as respondents, present their evidence-in-chief in written form. I note, however, that Morling J went on to observe:

"I would only put this caveat on the order which I make, which is that the application to rescind order 3 is refused. If there is any particular matter which the respondents, for some reason which does not appear to me at the moment, do not want to put on affidavit, they can seek to persuade the judge at the trial that they should be allowed to lead oral evidence of that matter."

I have also been reminded by the applicant of the opportunity the Court will have under the usual trial regime adopted in this Court to observe the demeanour of the witnesses whose credibility is in issue and to make a full assessment of that matter.

One key issue in the case turns on the conduct it is alleged that the first respondent and the second to fourth respondents (who were its employees at the relevant time) engaged in, in the Warwick area, with certain other employees of the first respondent who are not parties to the proceedings. This conduct is said to have been directed at deterring a Mr. and Mrs. Roach from competing with the first respondent in supplying pre-mix concrete into the Warwick area and at harming them in their ability to compete with the first respondent and the only other organisation supplying pre-mix concrete into that same area, Sellars Holdings Limited, with whom it is alleged the first respondent had an anti- competitive arrangement. This conduct is said to infringe, among other things, s. 46 the Trade Practices Act 1974 (Cth).

Given that the key meetings took place over five years ago and that the credibility of the participants on either side at those meetings is very much an issue, I think that each participant on either side who gives evidence should give evidence orally as to what there took place. Given that a penalty is sought, I also think that it is inappropriate that any respondent should be deprived of the opportunity to put a "no case" submission at the close of the applicant's case by being required to expose before trial its own evidence in full, without any restraint on the use the applicant may make at trial of that respondent's evidence.

There are, however, a range of other issues which do not depend on the resolution of conflicting testimony of the participants in meetings and conversations. I see no reason with respect to these other issues to depart from the Court's usual practice of requiring the parties to adduce all their evidence-in-chief in written form, save only for the qualification I have referred to that arises from the penal nature of the proceedings and the need, as I see it, not to deprive a respondent of an opportunity that might otherwise be open to that respondent of persuading the Court to entertain a "no case" submission at the close of the applicant's case.

If the applicant is prepared to undertake with respect to each respondent not to make any use of that respondent's evidence in dealing with any "no case" submission that that respondent may make at the close of the applicant's case against it or him and which the Court in its discretion is prepared to entertain, in addition to what the applicant is prepared to offer with respect to each respondent in the way of undertaking not to make any use of that respondent's affidavits of evidence in the applicant's case against the respondent, if that respondent does not go into evidence, I will make the following direction as direction number 7. Direction 7(a) will be as follows:

(a)

Subject to the exception in paragraph (b), the applicant and respondents shall adduce the evidence-in-chief of all the witnesses upon whom each intends to rely at the trial by affidavit.

(b)

The exception referred to in paragraph (a) is that the evidence-in-chief of each of the persons present at or participating in the meetings and conversations referred to in paragraphs 18, 20, 23, 25 and 30 of the statement of claim shall be adduced in oral form as to the following matters:

(i)

as to what took place and as to what was said at each meeting and during each conversation, and

(ii)

any evidence that any respondent wishes to adduce with respect to each of the second to fourth respondents' and the first respondent's other employees' reasons, motives, intentions and state of mind for participating in each such meeting and conversation and for making any statement therein.

(c)

The intent of the direction in paragraph 7(b)(ii) is that each of the second to fourth respondents and the first respondent's other employees on whom any of the four respondents intends to rely at the trial who gives evidence relevant to the issues in paragraphs 19, 21, 22, 24, 26 and 31 will be entitled to give that evidence orally.

I certify that this and the preceding six pages are a true copy of the reasons for judgment herein of the Honourable Justice Drummond.

Associate:

Date: 15 December, 1995