FEDERAL COURT OF AUSTRALIA

Auskay International Manufacturing and Trade Pty Ltd v Qantas Airways Limited [2010] FCAFC 96

THE COURT ORDERS THAT:

1.                  The application for leave to appeal against Order 1 and Order 2 made by the primary Judge on 11 December 2009 be granted.

2.                  The appeal against the making of the said orders be allowed.

3.                  The said orders be set aside.

4.                  The application for leave to appeal against Order 3 made by the primary Judge on 11 December 2009 be dismissed.

5.                  Any application for an order –

(a)        in place of Order 2 made by the primary Judge on 11 December 2009; and/or

(b)        as to the costs of the application for leave and of the appeal;

be made by memorandum filed and served within 14 days.

6.                  Any party upon whom such a memorandum is served have leave, within 14 days thereafter, to file and serve a memorandum in response thereto.

7.                  Any party, being a party who filed and served a memorandum under Order 5 above and upon whom a memorandum in response was served, have leave, within 14 days after the service of that memorandum in response, to file and serve a memorandum in reply thereto.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Moore J

1                     I have had the benefit of reading the reasons for judgment of Jessup J in a draft form. Subject to what follows, I generally agree with his Honour's reasons and I agree with the orders his Honour proposes.

2                     I agree that we should grant leave to appeal against the judgment striking out the applicant's statement of claim.  In another appeal recently decided by this Full Court I made some observations about delay: Wright Rubber Products Pty Ltd v Bayer AG [2010] FCAFC 85 at [41] – [46] in the context of discussing whether leave to appeal should be granted.  In the present matter, having regard to a chronology filed by the eighth respondent, some considerable time was spent by the parties and the Court at the outset of these proceedings endeavouring to resolve issues about the formulation of the applicant's claim which had been filed on 11 January 2007.  Matters came to a head later that year when in late October and November 2007, the primary judge heard motions to strike out the applicant's pleadings.  Ten months later the primary judge gave judgment striking out what was then the Second Amended Statement of Claim.

3                     A further statement of claim was filed on 28 November 2008 though it was not, as a pleading, free from controversy.  As a result of further activity involving the parties and the Court, a fourth but draft version of the Statement of Claim was produced by the applicant in late February 2009.  It did not quell the controversy about the applicant's pleading.  In late April 2009 the primary judge heard argument in support of a further application to strike out the applicant's pleadings.  Almost seven and a half months later the primary judge gave judgment striking out the pleadings (the judgment from which this application for leave to appeal is brought).  In all, almost a year and a half of the three and a half years these proceedings have been on foot can be accounted for as a time between hearing and judgment on pleading disputes.

4                     As with a similar delay in Wright Rubber Products Pty Ltd v Bayer AG, there may be, as I noted at [45] in my reasons in that matter, a compelling explanation for the time it has taken.  However, as I also noted, the objective fact is that the time taken has been considerable and exceeds what litigants might reasonably expect in the case management of a matter of this type.  In my opinion this history provides a reason additional to those identified by Jessup J for granting leave to appeal from the order striking out the applicant's most recently formulated statement of claim.  To refuse leave and thus to defer to the views of the primary judge about the adequacy of the pleadings would potentially add considerable further delay.

Associate:

Dated:         12 August 2010

REASONS FOR JUDGMENT

Jessup J

5                     Before the court are two applications for leave to appeal, directed to be heard and determined by a Full Court pursuant to s 25(2)(e) of the Federal Court of Australia Act 1976 (Cth).  They relate to separate judgments given on 11 December 2009 in the same proceeding – a representative one under Part IVA of that Act.  In the first judgment, the primary Judge struck out the Fourth Amended Statement of Claim, pursuant to O 11 r 16 of the Federal Court Rules,and refused a motion by the applicant to amend the definition of the represented group: Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (No 5) [2009] FCA 1464.  In the second judgment, the primary Judge refused the applicant’s application for a transfer of the proceeding to the New South Wales District Registry of the court: Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (No 6) [2009] FCA 1465.  Each application for leave was argued on the basis that, if leave should be granted, we would proceed to hear the appeal. 

6                     In the proceeding before the primary Judge, the applicant, Auskay International Manufacturing and Trade Pty Ltd, alleged that the respondents, seven international airlines (two of which were sued by way of two companies, making nine respondents in all) had made, and given effect to, agreements, arrangements or understandings to fix, control or maintain the price of international airfreight services, contrary to s 45(2)(a)(ii), and (b)(ii), of the Trade Practices Act 1974 (Cth).  By a judgment given on 29 September 2008, an earlier iteration of the Statement of Claim had been struck out under O 11 r 16 on account (amongst other things) of its failure to identify the market in which the respondents were alleged to be in competition with other: Auskay International Manufacturing and Trade Pty Ltd v Qantas Airways Ltd (2008) 251 ALR 166.  After that judgement, the applicant made substantial modifications to its pleading, the result of which was that the Fourth Amended Statement of Claim made copious provision on the question of the relevant market or markets.  Notwithstanding those amendments, the primary Judge took the view that the pleading was deficient in failing to allege the facts necessary to sustain the conclusion that there was a relevant market in Australia, as required by s 4E of the Trade Practices Act.  This conclusion was significant in his Honour’s ultimate decision to strike out the applicant’s pleading, and it is, therefore, convenient to commence with a consideration of how the pleading dealt with the subject of market. 

7                     That subject was of central importance because the applicant alleged that the respondents made, and gave effect to, agreements and arrangements which satisfied the description in s 45A(1) of the Trade Practices Act:

Without limiting the generality of section 45, a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the effect, of substantially lessening competition if the provision has the purpose, or has or is likely to have the effect, as the case may be, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired or to be supplied or acquired by the parties to the contract, arrangement or understanding or the proposed parties to the proposed contract, arrangement or understanding, or by any of them, or by any bodies corporate that are related to any of them, in competition with each other.

The closing words – “in competition with each other” – are crucial.  They attract the operation of s 45(3) of the Trade Practices Act:

For the purposes of this section and section 45A, competition, in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, means competition in any market in which a corporation that is a party to the contract, arrangement or understanding or would be a party to the proposed contract, arrangement or understanding, or any body corporate related to such a corporation, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services.

By s 4E of the Trade Practices Act, the market to which s 45(3) refers must be “a market in Australia”.

8                     When the presently relevant provisions of ss 45(2)(a)(ii), 45(3), 45A and 4E of the Trade Practices Act are put together, the first prohibition upon which the applicant relies may be expressed as follows:

A corporation shall not make a contract or arrangement, or arrive at an understanding, if a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired or to be supplied or acquired by the proposed parties to the proposed contract, arrangement or understanding, or by any of them, or by any bodies corporate that are related to any of them, in competition with each other in any market in Australia (including a market in Australia for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first-mentioned goods or services) in which a corporation that would be a party to the proposed contract, arrangement or understanding, or any body corporate related to such a corporation, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services.

The second prohibition upon which the applicant relies – that which invokes para (b)(ii) of s 45(2) – might be similarly expressed, mutatis mutandis. 

9                     The market upon which the applicant is obliged to rely, therefore, is one which has the following characteristics:

·                    It must be a market in which the respondents (or related bodies corporate) supply or acquire, or are likely to supply or acquire, goods or services, or would, but for the provision complained of, supply or acquire, or be likely to supply or acquire, goods or services;

·                    It must be a market in which the respondents (or related bodies corporate) are in competition with each other;

·                    It must be a market in Australia.

10                  The Fourth Amended Statement of Claim commences with five pages of definitions, and proceeds to make the necessary, and conventional, allegations as to the identity, and roles, of various parties.  Paragraphs 13-93 of the pleading come under the subheading “Competition in relation to international airfreight services”.  It is within these paragraphs that one finds the applicant’s identification of the market, or markets, in which the relevant competition was said to have occurred.

11                  Paragraph 15 of the Fourth Amended Statement of Claim reads as follows:

During the Period,  there was demand for international airfreight services by persons (“customers”):

(a)        wishing to transport international airfreight from a point of origin in one     country to a destination in another country; and

(b)        who would become obliged to pay for those international airfreight services          if provided.

The expression “international airfreight services” is defined as “the carriage of international airfreight by air transport”; and the expression “international airfreight” is defined as “goods transported from one country to another by air transport”.  As so understood, it will be seen that there is a degree of circularity in the terms of para 15, but the sense is clear: there was demand for goods to be transported from a point of origin in one country to a destination in another country by persons who would be obliged to pay for that transport. 

12                  In para 16 of the pleading, it is alleged that carriers (by definition, airlines which carried airfreight) supplied international airfreight services in order to meet the demand alleged in para 15.  Those carriers included, but were not limited to, the respondents.  This short paragraph is important in the present context because it makes it clear that the market with which the applicant is concerned is one in which the respondents supplied services.  The case is not about a market in which goods or services are acquired. 

13                  There follows a series of allegations which are concerned with the means by which airfreight services might be organised.  It is alleged that speed of delivery is a more important consideration for customers than the particular route of carriage.  As it was explained to us on the application for leave, this meant, for example, that a customer would regard it as important that his or her parcel reached its destination within a specified time, but would be unlikely to have any concern about the particular route that was used.  It is alleged that routing of international airfreight on any one air waybill (defined as “a non-negotiable instrument of air transport for goods that serves as a receipt for the customer, indicating that the carrier has accepted the goods listed therein and obligates itself to carry the goods to the destination according to specified conditions”) may occur directly between origin and destination, or via intermediate points.  It is alleged that airfreight is routed by reference to the convenience of the carrier at the relevant time, rather than via a fixed route between origin and destination. 

14                  The pleader next turns to what are described as “modes of carriage”.  It is alleged that carriage of international airfreight may occur by the one carrier utilising its own aircraft; by a carrier utilising one or more other carriers’ aircraft by means of interlining, freight alliances, codeshare agreements, marketing alliances, or integrated alliances; or by a carrier utilising its own and one or more other carriers’ aircraft by one or more of those means; and that the airfreight may also utilise road or rail transport segments.  It is alleged that speed of delivery of international airfreight is a more important consideration for customers than the particular mode of carriage, and that the mode of carriage, or combination of modes, chosen is a matter of convenience for the carrier at the relevant time. 

15                  The next nine paragraphs of the Fourth Amended Statement of Claim (paras 23-31) are concerned with “hubs”.  There are said to be multiple hubs in each of the nine regions identified in these paragraphs, respectively.  For example, each of Bangkok, Denpasar, Ho Chi Minh City, Hong Kong, Jakarta, Kuala Lumpur, Manila and Singapore is described as a “South East Asian hub”.  It is alleged that, for each of these cities, there were at least daily international flights to or from Australia by carriers carrying international airfreight.  It is said that, at each such place, there were facilities for the transfer of airfreight between aircraft, and between aircraft and road or rail transport.  These circumstances are said to have permitted the “convenient carriage of international airfreight between any point of origin or destination in Australia and any point of origin or destination in South East Asia”. 

16                  Allegations in substantially the same terms are made with respect to the other eight regions, namely, North Asia (with nine hubs), Europe (with six hubs), New Zealand and Oceania (with five hubs), the Indian sub-continent and the Middle East (with three hubs), North and South America (with seven hubs) and Africa (with three hubs).  It is also alleged that each of Sydney, Brisbane, Melbourne and Perth was an “ Australian hub”, at which there were at least bi-weekly international flights by one or more of the carriers carrying international airfreight, and at which there were facilities for the transfer of airfreight between aircraft and between aircraft and road or rail transport, which permitted the convenient carriage of international airfreight throughout Australia. 

17                  The remaining paragraphs in this section of the Fourth Amended Statement of Claim (paras 32-93) deal with the subjects of markets, and competition in markets.  The initial group of paragraphs (paras 32-39) is significant in an understanding of the decision of the primary Judge to strike out the Fourth Amended Statement of Claim.  Omitting the particulars, those paragraphs read as follows:

32.  By reason of the matters alleged in paragraphs 15 to 31, during the Period, there were various routes of carriage for international airfreight between:

(a)        any hub and any other hub; further or alternatively

(b)        any point of origin and any destination in the regions.

providing effectively equivalent speed of delivery for the purposes of customers for international airfreight services.

33.  By reason of the matters alleged in paragraphs 15 to 31, during the Period, there were various modes of carriage for international airfreight between:

(a)        any hub and any other hub; further or alternatively

(b)        any point of origin and any destination in the regions.

providing effectively equivalent speed of delivery for the purposes of customers for international airfreight services.

34.  By reason of the matters alleged in paragraphs 15 to 33, during the Period, each of the carriers could:

(a)        supply international airfreight services between any hub to any other hub;             further or alternatively

(b)        substitute any route of carriage for international airfreight between any hub to       any other hub for another route of carriage between those two hubs; further           or alternatively

(c)        substitute any mode of carriage for international airfreight between any hub          to any other hub for another mode of carriage between those two hubs;         further or alternatively

(d)        supply international airfreight services between any point of origin and any            destination in the regions; further or alternatively

(e)        substitute any route of carriage for international airfreight between any point         of origin and any destination in the regions for another route of carriage     between those two places; further or alternatively

(f)        substitute any mode of carriage for international airfreight between any point        of origin and any destination in the regions for another mode of carriage     between those two places.

35.  By reason of the matters alleged in paragraphs 15, 16 and 32 to 34, further, the matters alleged in paragraphs 94 to 121, during the Period, there was a global market for the supply of international airfreight services (the “Global Market”).

36.  The Global Market was a market within the meaning of section 4E of the TPA.

37.  Further or alternatively to the preceding paragraph, during the Period, that part of the Global Market in which at least part of the negotiation for purchase of, or entry into a contract for, the supply of international airfreight services comprised a communication directed to or originating from Australia, was a market within the meaning of section 4E of the TPA (the “Transactional Global Market”).

38.  Further or alternatively, that part of the Global Market which comprised Australian international airfreight services (the “Australian Global Market”) was a market within the meaning of section 4E of the TPA.

39.  Further or alternatively to the preceding paragraph, during the Period, that part of the Australian Global Market in which at least part of the negotiation for purchase of, or entry into a contract for, the supply of Australian international airfreight services comprised a communication directed to or originating from Australia, was a market within the meaning of section 4E of the TPA (the “Transactional Australian Global Market”).

It will be necessary to return to these parts of the applicant’s pleading, but I shall refer first to the other markets the existence of which is alleged therein. 

18                  It is alleged that there was a market for international airfreight services in each of the regions by reference to which hubs were previously identified.  The allegations are essentially the same in each market, and it will again be convenient to refer in detail only to the South East Asia market. 

19                  It is alleged that there were various routes of carriage, and various modes of carriage, for international airfreight between any Australian hub and any South East Asian hub, and between any point of origin or destination in Australia and any point of origin or destination in South East Asia.  It is said that these various routes, and modes, of carriage provided “effectively equivalent speed of delivery for the purposes of customers for international airfreight services”.  There follows a series of allegations which correspond to those set out in paras 34-39 of the pleading, as mentioned above.  However, unlike the allegations made with respect to the global market, those made with respect to the South East Asia market are confined to the provision of airfreight services between hubs, and points of origin or destination, in Australia and South East Asia respectively.  By reason of the matters so alleged, it is said that there was a market for the supply of international airfreight services between Australia and South East Asia.  That was said to be a market within the meaning of s 4E of the Trade Practices Act.  It was also (and correspondingly with para 37) said that the part of the South East Asian market in which at least part of the negotiation for the purchase of, or entry into a contract for, the supply of international airfreight services between Australia and South East Asia comprised communications directed to or originating from Australia, was a market within the meaning of s 4E. 

20                  The Fourth Amended Statement of Claim proceeds to make similar allegations with respect to the North Asia market, the Europe market, the New Zealand and Oceania market, the Indian sub-continent and Middle East market, the North and South America market, and the Africa market. 

21                  The next group of paragraphs in the Fourth Amended Statement of Claim (still under the broad heading “competition in relation to international airfreight services”) is headed “Competition in the Market”.  It is alleged that two or more of the respondents supplied, offered to supply or were willing and able to treat to supply international airfreight services between Australia and at least those points of origin or destination set out in a schedule to the pleading (being an extensive list of international cities).  A like allegation is made with respect to services between Australia and each of the regional hubs earlier referred to.  It is alleged that such services might be provided by the respondents “either on their own aircraft or by interlining, airfreight alliances, codeshare agreements, marketing alliances or integrated alliances”, and that such services might be supplied between Australia and each of the other regions referred to. 

22                  Paragraphs 85 and 86 of the pleading are as follows:

85.  By reason of the matters alleged in paragraphs 83, further, paragraph 84, at all times during the Period, each of the Respondents by themselves or bodies corporate related to them:

(a)        supplied; or

(b)        were likely to have supplied; or

(c)        but for the arrangements or understandings referred to below, would have:

            (i)         supplied; or

            (ii)        been likely to have supplied;

international airfreight services in competition with:

(d)        one or more; further or alternatively

(e)        each,

of the other Respondents or bodies corporate related to each of them in the Global Market.

86.  Further or alternatively, by reason of the matters alleged in paragraphs 83, further, paragraph 84, at all times during the Period, each of the Respondents by themselves or bodies corporate related to them:

(a)        supplied; or

(b)        were likely to have supplied; or

(c)        but for the arrangements or understandings referred to below, would have:

            (i)         supplied; or

            (ii)        been likely to have supplied:

Australian international airfreight services in competition with:

(d)        one or more; further or alternatively

(e)        each,

of the other Respondents or bodies corporate related to each of them in the Australian Global Market, further or alternatively, each of the SE Asia Market, North Asia Market, Europe Market, New Zealand and Oceania Market, the Indian subcontinent and Middle East Market, North and South America Market and Africa Market.

23                  There follows a series of allegations with respect to the supply of international airfreight services between any hub and any other hub, between any place in a region and any other place in a region, and between Australia and each of the regions, “where at least part of the negotiation for purchase of, or entry into a contract for, the services comprised a communication directed to or originating from Australia”.  Like allegations are made where part of the offer for purchase of (and where part of the purchase of), or entry into a contract for, the services in question comprised a communication directed to or originating from Australia.  Then paras 90 and 91 of the pleading make allegations along lines similar to paras 85 and 86, set out above, but this time with respect to the various “transactional” global and regional markets earlier referred to. 

24                  Finally, it is said that, by reason of the matters set out in paras 85 and 91, each respondent was in competition with one or more, or with all, of the other respondents in “each or any of the Markets”. 

25                  In his reasons published on 11 December 2009, the primary Judge held that the Fourth Amended Statement of Claim was bad because it did not allege facts which, if proved, would establish the existence of a “market in Australia”.  It is important to recognise that his Honour was not purporting to rule on the question of what constitutes a “market in Australia” for the purposes of s 4E of the Trade Practices Act.  His Honour noted that that question was “far from settled”.  Nonetheless, he referred to authority for the proposition that a global market which extends into the geographic boundaries of Australia may include a “market in Australia”.  His Honour said that there could be “no objection to the applicant pleading … that there is a global market for air freight services and that part of that market is a ‘market in Australia’.”  His Honour’s concern, rather, was that the applicant had not alleged the material facts that would be necessary to justify such a conclusion. 

26                  There could be no suggestion that the primary Judge misdirected himself as to what constituted a “market”.  Referring to Re Queensland Co-operative Milling Association Ltd (1976) 8 ALR 481 (“Re QCM”) and to Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 26 ALR 609, the primary Judge said:

The “market”, then, is an area within which close competition occurs between the same firms to enter into business transactions with buyers of their products or services, and where the competitors provide or seek to provide their goods or services.

On the present application, it was not suggested that his Honour was wrong to have described a “market” in these terms. 

27                  His Honour’s next observation was, however, the subject of criticism in the submissions made in the Full Court.  He said that “a market for services will exist only if there is strong substitutability between those services on both the demand and supply sides”.  We were referred, particularly by counsel for the Australian Competition and Consumer Commission (“the ACCC”) (intervening), to passages in the authorities which put this proposition in doubt, and which suggest that it will be sufficient if there is strong substitutability on either the supply side or the demand side.  I shall consider those authorities presently. 

28                  His Honour next adverted to hypothetical examples which had been put before him in the submissions of one of the respondents.  The first example to which his Honour referred related to two services, one from Hong Kong to Sydney and the other from Hong Kong to Melbourne.  His Honour recognised that these services could be regarded as being part of the same market, in the sense that, if freight charges rose on the Sydney service, customers would tend to ship their freight through Melbourne; and also in the sense that, if there were reduced demand for the service into Sydney, the airlines concerned could shift their resources to the Melbourne service.  The second, and contrasting, example to which his Honour referred related to two other hypothetical services, one from Hong Kong to Moscow and the other from Dubai to Sydney.  His Honour opined that it would be “far more difficult, if not impossible, to establish the existence of cross-elasticity of demand or supply for international air freight services” on those routes.  In these respects, his Honour was criticised in the present application for having upheld a challenge to the applicant’s pleading by reference to assumed factual scenarios which were not the subject of the pleading, and as to which there was no evidence.  Although his Honour was using these hypothetical examples only for the purposes of demonstrating how demand and supply side substitutability (or, if it be preferred, demand or supply side substitutability) might give rise to a market, I agree with the applicant that for his Honour to have taken this approach to test the sufficiency of its pleading was problematic in some respects.  I shall return to these matters presently.

29                  The next four paragraphs of the reasons of the primary Judge were central to his Honour’s conclusion that the Fourth Amended Statement of Claim was bad.  His Honour said:

29.  As has been noted, the material facts relied on by the applicant to establish the existence of a “global market” include the possibility that carriers are able to substitute routes and modes of carriage between hubs and ports when providing services.  In some cases this will be suggestive of cross-elasticity of supply.  It would not matter to the customer, assuming no material variation in charges or delivery time, whether goods sent from London to Melbourne were routed through Hong Kong or Singapore.  That may be accepted and the two routes may be found to form part of the same market.  That example, however, deals with but one of a myriad of routes comprehended by the substitutability pleading in paragraph 34.  Not all of these routes could possibly be said to form part of the same market. It could not, realistically, be asserted that close competition and strong substitution could be found for the supply of international air freight services between one particular route and every other route in the world.    Rather, there are potentially thousands of discrete markets, the existence of which will depend on the type of economic analysis referred to in the authorities.

30.  It follows that the matters pleaded in paragraph 34 do not assist in establishing the existence of a global market or a market in Australia.  Rather they are suggestive of the presence of multiple markets for international air freight services throughout the world and in Australia.

31.  In the absence of any other material facts which establish a field or fields of rivalry between the respondents (or some of them) in Australia, in which competition between particular respondents occurs for the provision of international air freight services and negotiations take place between respondents and customers or potential customers, the FASC fails to identify (other than in a conclusionary manner) any “market”, be it a global market or a market in Australia.  The pleadings in relation to the transactional markets and the regional markets suffer from the same deficiency.  The existence of transactional markets cannot, for example, be established on the simple basis that communications passed to or from Australia. The pleadings are confusing in that, rather than supporting the existence of the conclusionary global market for international air freight services which includes a market in Australia, they suggest the existence of multiple markets scattered throughout the world.

32.  This is not a deficiency which can be dismissed as peripheral.  As I pointed out in my previous reasons, there are multiple routes into and out of Australia on which air freight is carried.  Not all respondents operate on all of these routes.  Some of the routes may fall within the same market because two or more respondents compete on the routes and there is cross-elasticity of demand and supply on those routes.  On other routes into and out of Australia some of the respondents will not be in competition with other respondents and those routes will constitute separate markets.  Even in respect of routes which commence or end in Australia, there may not be a market in Australia if all or most of the competitive activities in which the parties engage, and the negotiations between respondents and customers, take place outside Australia.  Each respondent is entitled to know in which market or markets in Australia it is alleged to have engaged in anti-competitive conduct with one or more of the other respondents contrary to the TPA.  The FASC does not provide them with this information.  It cannot be assumed that, simply because the alleged cartel arrangements were expressed to be operative throughout the world, that this necessarily led to anti-competitive conduct taking place in all markets for the provision of international air freight services.  It is possible, for example, that the respondents would not have applied surcharges on routes on which they were competing with other airlines who were not cartel members and who were not inflating prices.

30                  His Honour’s reasoning was criticised by the applicant as proceeding from a misunderstanding of what should have been clear from its pleading, namely, that the service in the supply of which the respondents were alleged to be competitive with each other was the international transportation of air cargo, not the provision of air transport over particular routes.  It was, it was submitted, not to the point that one of the respondents may not have been in competition with another of the respondents in the provision of the physical means of air transport between, say, Sydney and Singapore.  What mattered was the question whether those respondents competed with each other for the business of a customer who desired to move freight between Sydney and Singapore.  It was submitted that this was a question which was squarely raised on the applicant’s pleading. 

31                  The primary Judge next turned to the question of the significance of the place where negotiations for the supply of a particular service, and of the place where relevant contracts were entered into, to the geographical location of the market being alleged.  Referring to an observation which he had made in his reasons of 29 September 2008 that the location of the market would depend on where negotiations took place, and where contracts were entered into, his Honour continued:

40.  On reflection, I should have used the word “may” instead of “will” in the second sentence of the quoted passage.  It was not my intention to rule, on a pleading summons, that the place or places where the international carriers negotiated and entered into contracts with those who wished to use their services, were or would be determinative of the geographic location of the relevant markets.  These were relevant but not decisive considerations.  If the only substantial competitive activity which occurred between particular carriers on routes into and out of Australia took place overseas this may have suggested that the relevant market was not “in Australia” even if contracts were signed here.  On the other hand, if vigorous competition and negotiations in Australia culminated in contracts being signed overseas the opposite conclusion would be likely.  These matters were, therefore, material in determining the geographic parameters of the relevant market and, in particular, whether that market was “in Australia”.  Those parameters differed between the respondent carriers, because they did not all provide services to and from the same ports or along the same routes.

41. For present purposes, the applicant’s failure to identify where relevant negotiations took place, and where contracts were entered into and signed between the respondents and their customers, does not lead to the conclusion that it has thereby also failed to plead facts which would be determinative of the geographic boundaries of the market.  The failure does, however, mean that material facts which must be provided in order to identify the global market and the part of it which constitutes a “market in Australia” have not been supplied.

I do not understand these parts of the reasons of the primary Judge to be the subject of any criticism by the applicant. 

32                  From paras 29 and 30 of the reasons of the primary Judge, set out above, it is apparent that his Honour saw para 34 of the pleading as central to the way the applicant sought to identify the relevant markets.  He perceived that paragraph as proposing the substitutability of “a myriad of routes” in an attempt to define a single global market.  His Honour regarded this as altogether too unrealistic an allegation with which to confront the respondents, and therefore as embarrassing within the meaning of O 11 r 16. 

33                  Any consideration of the sufficiency of the applicant’s market allegations must necessarily be based firmly on an understanding of what constitutes a market.  So much at least was common ground, and was accepted by the primary Judge: indeed, it was fundamental to his Honour’s decision. The classical exposition of the concept of a market was that given by the Trade Practices Tribunal in Re QCM (8 ALR at 517):

Before giving our reasons we should explain our understanding of the market concept, and of the relationship between “markets” and “sub-markets”. We take the concept of a market to be basically a very simple idea. A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them (if there is no close competition there is of course a monopolistic market). Within the bounds of a market there is substitution — substitution between one product and another, and between one source of supply and another, in response to changing prices. So a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive. Let us suppose that the price of one supplier goes up. Then on the demand side buyers may switch their patronage from this firm's product to another, or from this geographic source of supply to another. As well, on the supply side, sellers can adjust their production plans, substituting one product for another in their output mix, or substituting one geographic source of supply for another. Whether such substitution is feasible or likely depends ultimately on customer attitudes, technology, distance, and cost and price incentives.

It is the possibilities of such substitution which set the limits upon a firm's ability to “give less and charge more”. Accordingly, in determining the outer boundaries of the market we ask a quite simple but fundamental question: If the firm were to “give less and charge more” would there be, to put the matter colloquially, much of a reaction? And if so, from whom? In the language of economics the question is this: From which products and which activities could we expect a relatively high demand or supply response to price change, ie a relatively high cross-elasticity of demand or cross-elasticity of supply?

34                  The relevant principles were also summarised by the Tribunal in Re Tooth & Co Ltd and Tooheys Ltd (1979) 39 FLR 1, 38-39:

First, and most generally, we seek to identify the area or areas of close competition of relevance for the applications.

Second, such competition may proceed not just through the substitution of one product for another in use (substitution in demand) but also through the substitution of one source of supply for another in production or distribution (substitution in supply). The market should comprehend the maximum range of business activities and the widest geographic area within which, if given a sufficient economic incentive, buyers can switch to a substantial extent from one source of supply to another and sellers can switch to a substantial extent from one production plan to another. In an economist's language, both cross-elasticity of demand and cross-elasticity of supply are relevant.

Third, there is the matter of time perspective. It is plain that the longer the period allowed for likely customer and supplier adjustments to economic incentives, the wider the market delineated. In our judgment, given the policy objectives of the legislation, it serves no useful purpose to focus attention upon a short-run, transitory situation. We consider we should be basically concerned with substitution possibilities in the longer run. This does not mean we seek to prophesy the shape of the future – to speculate upon how community tastes, or institutions, or technology might change. Rather, we ask of the evidence what is likely to happen to patterns of consumption and production were existing suppliers to raise price or, more generally, offer a poorer deal. For the market is the field of actual or potential rivalry between firms.

Fourth, all competition or substitution does not cease at the outer boundaries of the market; the economy as a whole is a network of substitution possibilities in consumption and production; competition is a matter of degree. Rather, at the extremities of the market, there is such a break in substitution possibilities that firms within its boundaries would collectively possess substantial market power: were they to join forces as a cartel they would be able to raise prices or offer a poorer deal without their market being substantially undermined by the incursions of rivals.

Fifth, within the bounds of the market, substitution possibilities may be more or less intense, and more or less immediate: the field of substitution is not necessarily homogeneous but may contain within it sub-markets wherein competition is especially close or especially immediate. There may be, too, certain key sub-markets such that their competitive relationships have a wider effect upon the functioning of the market as a whole. In these matters we have found that the identification of relevant sub-markets may be rather helpful in clarifying how competition works.

Finally, as is commonly recognized, the market is a multi-dimensional concept – with dimensions of product, functional level, space, and time. Taking (as just explained) the longer run time perspective as given, we have found it helpful in our market identification task to proceed in step by step fashion dealing with each of these questions: What is the relevant product? What are the appropriate functional levels? What is the geographic scope of the market?

35                  The subject was also dealt with to an extent by the High Court in Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177.  It will be sufficient for present purposes, to advert to what was then said by Dawson J (at 199):

In setting the limits of a market the emphasis has historically been placed upon what is referred to as the "demand side", but more recently the "supply side" has also come to be regarded as significant. The basic test involves the ascertainment of the cross-elasticities of both supply and demand, that is to say, the extent to which the supply of or demand for a product responds to a change in the price of another product. Cross-elasticities of supply and demand reveal the degree to which one product may be substituted for another, an important consideration in any definition of a market.

This passage was referred to by McHugh J in Boral Besser Masonry Ltd v ACCC (2002) 215 CLR 374, 455 [251], after which his Honour continued (at 455-456 [252]):

Thus, the market is the area of actual and potential, and not purely theoretical, interaction between producers and consumers where given the right incentive -- a change in price or terms of sale -- substitution will occur. That is to say, either producers will produce another similar product or consumers will purchase an alternative but similar product.

36                  In these authorities, there is some justification for the opinion of the primary Judge that “a market for services will exist only if there is strong substitutability between those services on both the demand and supply sides.”  However, the terms in which the substitutability requirement has been expressed have tended to be exegetical rather than strictly definitional.  I do not find in those authorities any ruling that, for a market in the statutory sense to exist, either there must be, or there need not be, strong substitutability on the demand and the supply sides.  What the decisions and judgments referred to have tended to do, rather, is to lay out the features by reference to which the existence of a market, as a matter of fact, may be recognised.  This is reflected in the observation of McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90, 117 [68] that the expression “market” in the Trade Practices Act is not “precise or formally exact”.  Thus I would not accept the proposition that a market must inevitably be held to exist where there is strong substitutability only on one of the demand side or the supply side; but neither would I accept that there must be strong substitutability on both the demand and the supply sides. 

37                  I do, however, consider that it was an error for the primary Judge to have tested the sufficiency of the Fourth Amended Statement of Claim by reference to empirical notions of the route that “could possibly be said to form part of the same market” and associated concepts of what could “realistically” be asserted.  Neither do I agree with his Honour that those parts of the pleading which seek to set up a “global market” are in truth alleging “potentially thousands of discrete markets”. 

38                  I consider, with respect, that there is justification for the applicant’s complaint that the primary Judge did not, in his reasons, consistently observe the distinction between a service provided to the customer and a route followed by an aircraft.  That distinction is important in the context of para 34 of the Fourth Amended Statement of Claim.  Subparagraphs (a) and (d) are concerned with the service provided to the customer – in economic terms, the product which the carriers sold.  This is the service with which s 45 of the Trade Practices Act is concerned.  Subparagraphs (b) and (e) are concerned with routes of carriage.  They, and subparas (c) and (f) (which are concerned with “modes of carriage”), make allegations only about factor inputs, that is, about the way in which carriers may organise their resources in the provision of the services with which subparas (a) and (d) are concerned. 

39                  I agree with his Honour that para 34 comprehends “a myriad of routes”, but I consider, with respect, that his Honour’s next proposition – that all of those routes could not “possibly be said to form part of the same market” – answers the wrong question.  The question was not whether different routes could form part of the same market, but whether different carriers might supply, or seek to supply, any one service.  The way it is put in para 34(a) of the Fourth Amended Statement of Claim is that the different carriers could supply the service of transporting airfreight between any one hub and any other hub.  It is as clear as may be from the pleading that their ability to do so does not depend on them operating aircraft over the route which runs directly between those hubs.  When understood in this sense, what his Honour described as a “myriad of routes” is no more than an operational circumstance by which any two or more carriers might compete to provide the same service.  It does not, with respect, imply the existence of “thousands of discrete markets”. 

40                  At this point, it is convenient to return to the question whether, for two or more services to be regarded as part of the same market, substitutability on both the demand and the supply sides is necessary.  In his reasons, the primary Judge referred to both, and, while not making it clear categorically that both were required, relied to no small extent upon the inherent unlikelihood of a customer regarding various conspicuously different routes as reasonable substitutes.  His Honour accepted that a customer may be unconcerned whether his or her consignment from London to Melbourne was taken via Hong Kong or Singapore, but implied that the same thinking could not be applied to all the many routes which, as his Honour perceived it, were alleged in para 34 of the Fourth Amended Statement of Claim.  As indicated above, I consider that his Honour was here confusing services with routes, but there is a further basis upon which I consider that his Honour was in error to have required at least a degree of substitutability on the demand side.  For reasons which follow, I am of the view that it was open to the applicant to allege that the service for the transport of a piece of cargo between any one pair of places in the world was in the same market as the service for the transport of any other (similar) piece of cargo between any other pair of places in the world. 

41                  Taking the widest of the applicant’s market allegations (that in para 35 of the pleading), the product is identified as “international airfreight services”, defined as “the carriage of international airfreight by air transport”;  and “international airfreight” is defined as “goods transported from one country to another by air transport”.   It was submitted on behalf of the respondents that there could not possibly be a single international market for such a product.  When a customer wants to have goods transported from a point of origin in one country to a point of destination in another country, there will be no choice about the matter:  moving goods from Melbourne to Tokyo, for example, could not be regarded as a substitute for moving goods from Melbourne to Boston.  Thus it was said that there had to be as many different markets as there were points of origin and destination (or generally so, such that, for example, where goods were to be moved into Australia from some overseas point of origin, in some cases Sydney would be an alternative destination to, and thus a substitute for, Melbourne).

42                  I consider that the respondents’ submission seeks to reduce the product which it is alleged they supply to the circumstances of a particular purchase by an individual customer.  With respect to those involved, the submission graphically demonstrates the unwisdom of insisting on strong substitutability on the supply side and the demand side as the sine qua non of every market.  It is often said that there are four dimensions by reference to which a market may be recognised – product, geography, function and time:  see Seven Network Ltd v News Ltd (2009) 182 FCR 160, 290 [612].  The geographical dimension provides the context in which we surmise, for example, that a person in Perth seeking to buy a new refrigerator for his or her kitchen would not obviously regard a unit on a showroom floor in Brisbane as a substitute.  However, a Brisbane retailer with access to nationally-organised distribution may well regard the Perth customer’s business as worth pursuing.  Notwithstanding the absence of any demand side substitutability, there is a sense in which the perception of a market for refrigerators which includes both Brisbane and Perth is an obvious one. 

43                  When the product is services rather than goods, geography has the potential to raise special issues in market definition, particularly if one focuses only on the demand side.  It might be said that the repair of a burst water main in Wodonga, for example, would not be a substitute for the repair of a burst water main in Albury.  But this looks at the matter wholly from the perspective of the customer whose main has burst.  From the perspective of the supplier, it is easy to see that a plumber based in Albury would regard repairing the main in Wodonga as a substitute for repairing the main in Albury.  If the burst main were in Wangaratta, such a plumber might still, given a sufficient price signal, devote his or her time and resources to repairing it rather than attending to the closer business opportunity in Albury.  In doing so, the plumber might find himself or herself in competition with a plumber based in Benalla.  If these two plumbers made an arrangement to fix the price of repairing burst water mains generally, they would be doing so in the same market.  It would be beside the point that one was based in Albury, and the other in Benalla.  It would also be beside the point that the customer in Albury would not regard the repair of the main in Wangaratta as a substitute for the repair of his or her main in Albury.

44                  The same reasoning may be applied to the transport of goods by air.  A customer would never accept the transport of his or her goods from Melbourne to Tokyo as a substitute for transporting them from Melbourne to Boston.  But, if there were suppliers who would, given a sufficient price signal, devote their resources to the former in preference to the latter, those suppliers should be regarded as doing business in the same market.  From the supply side perspective, the Melbourne-Tokyo service should be regarded as a substitute for the Melbourne-Boston service.  And the same conclusion would apply with respect to the example given by the primary Judge, namely, the potential for a Hong Kong to Moscow service to be a substitute for a Dubai to Sydney service.  By “service” here I use, of course, the economic rather than the operational sense of the word:  the service is the product supplied by the carrier, not merely the identification of the route followed by a particular aircraft. 

45                  For the above reasons, I consider that his Honour was in error in two related respects in the approach he took to the applicant’s allegation that there was a global market.  His Honour ought not to have treated the routes followed by aircraft as effectively defining the service which was supplied by the respondents; and he ought to have recognised that the applicant’s factual case was that there was global supply-side substitutability for the provision of airfreight services, however improbable that circumstance may appear at this interlocutory stage of the proceeding.

46                  It was also argued on behalf of the respondents that, as a factual matter vital to the existence and definition of a market, it was not sufficient for the applicant to have alleged, as it does in para 34, namely that the various carriers “could” supply the services, and make the substitutions, there referred to.  For two products to be in the same market, it was said that the allegation had to be – if, as here, supply-side substitution is the aspect of interest – that the carriers would, if presented with a sufficiently strong price incentive, make those substitutions.  While I originally thought that there might be something in the point, on reflection I do not consider it to be an objection of the substance, quality or conspicuous merit required to justify a strike-out order under O 11 r 16.  I note that it was not a factor relied on by the primary Judge.  When viewed in the context of the pleading as a whole, I do not consider that subparas (a) and (d) of para 34 (which are the only subparagraphs concerned with services in the economic sense) are embarrassing by reason of the use of the word “could” in the paragraph.  The facts by reference to which the applicant will contend that there was a global market are, in my view, sufficiently set out. 

47                  Neither do I consider that the pleading as a whole should have been regarded as embarrassing for its failure to make allegations of fact which would, if established, justify the conclusion that the market with which the applicant was concerned was located “in Australia” as required by s 4E of the Trade Practices Act.  With respect to the global market, it seems that the only primary fact alleged by reference to which it will be said that the market existed in Australia is that it existed everywhere.  Whether such a fact would justify such a conclusion will be a matter of argument.  As his Honour recognised, an interlocutory strike-out application is not the occasion to test the outer limits of the requirement arising under s 4E.  As it happens, in the particulars to para 36 of the Fourth Amended Statement of Claim (not set out above), the applicant says that “the Global Market includes the supply of international airfreight services to and from Australia”, thereby making it clear how the case will be put. 

48                  In other respects, the pleading alleges that the provision of international airfreight services between Australia and some other place or places was the service, or a service, supplied in the relevant market.  Each of the regional markets alleged is structured by reference to services so defined.  Alternatively, the “transactional” markets are based upon the carrying out of some aspect of the relevant commercial transaction in Australia.  It may be that, ultimately, the applicant will fail to make good its case that facts consistent with these allegations gave rise to a market, or to markets, “in Australia”.  However, it is clear to the reader of the Fourth Amended Statement of Claim that the applicant bases its case under s 4E upon those allegations.  It cannot be said at this early stage that a case expressed in this way could not succeed, or was embarrassing. 

49                  For the above reasons, I take the view that the strike-out judgment of the primary Judge was attended by sufficient doubt to warrant reconsideration by the Full Court.  I also consider that substantial injustice would be occasioned to the applicant if his Honour’s decision were allowed to stand: see Wright Rubber Products Pty Ltd v Bayer AG [2010] FCAFC 85 at [83].  Leave to appeal should be granted, the appeal should be upheld, and his Honour’s orders striking out the Fourth Amended Statement of Claim should be set aside.

50                  The other substantive order contained in the first judgment of the primary Judge given on 11 December 2009 was, as indicated above, to refuse the applicant’s motion to change the definition of the group which it claimed to represent under Part IVA of the Federal Court Act.  The definition, set out in para 2 of the Second Amended Application, was as follows:

The group members to whom this proceeding relates (“the Group Members”) are all those persons currently residing in Australia who during the period 1 January 2000 to 11 January 2007 (“the Period”) paid more than twenty thousand dollars (AUD $20,000.00) for the carriage of goods to or from Australia by air and who are not related parties of the Respondents or any of them within the meaning of the Corporations Act 2001 (Cth).

51                  In his earlier judgment of 29 September 2008, the primary Judge was critical of this definition, in the following terms (251 ALR at 176 [33]):

As defined, the group in the present proceeding includes persons who have dealt directly with one or more of the respondents in relation to the provision of international airfreight services. It also includes persons who have had no such direct dealing but who have “paid” more than $20,000 for such services during the relevant period. The pleadings in paras 85 and 86 suggest that, within the defined group, there are two further sub-groups: those members who have both paid for and acquired international airfreight services and those who have merely paid for those services. As will be seen these are not mere semantic objections. They give rise to the potential for confusion and, in turn, to embarrassment and prejudice.

52                  In order to address the problem identified by the primary Judge, on 4 March 2009 the applicant gave notice of a motion to include the words “identified amounts totalling” before the words “more than twenty thousand Australian dollars” in the group definition.  In his reasons which are the subject of the present application for leave, the primary Judge adverted to the possibility that sums paid for the carriage of goods to or from Australia by air might include a component for land transport.  His Honour said:

It would, in my opinion, not be clear to a potential group member that the “identified amounts” referred to in the definition included land transport costs paid to one of the respondents.  It is not immediately obvious why such a person would be aware that air freight charges included a land transport component.  Invoices which referred to “freight charges” rather than “air-freight charges” and stipulated a monetary figure would not, on their face, entitle the recipient to claim the full amount of the charge for the purpose of determining whether the $20,000 minimum had been exceeded.

Indeed, there were competing contentions before his Honour as to whether the applicant itself had paid more than $20,000 in the relevant period for air transport as such. 

53                  On the present application for leave, the applicant did not embark upon any serious criticism of the way in which his Honour had dealt with its Notice of Motion.  Rather, it took the pragmatic course of placing before us the terms of a group definition which would incorporate the amendment for which it had moved before the primary Judge, and which would also include a further amendment, to address the concerns expressed by his Honour on 11 December 2009.  It was proposed that the words “including in each instance a component” be inserted after “Australia” in the definition.  As so amended, the definition would read as follows:

The group members to whom this proceeding relates (“the Group Members”) are all those persons currently resident in Australia who during the period 1 January 2000 to 11 January 2007 (“the Period”) paid identified amounts totalling more than twenty thousand Australian dollars (AUD$20,000.00) for the carriage of goods to or from Australia including in each instance a component by air and who are not related parties of the Respondents or any of them within the meaning of the Corporations Act.

While I understand the reason for the applicant taking the pragmatic approach which it has, nonetheless this is a matter of practice and procedure upon which it seeks leave to appeal from the primary Judge.  Its submissions have not persuaded me that the way in which his Honour disposed of the motion to amend the group definition was attended by sufficient doubt to warrant reconsideration on appeal.  Indeed, the approach taken by the applicant in the proceedings before the Full Court seems to imply that his Honour’s reservation as to the sufficiency of the definition, even were it to be amended as proposed in the applicant’s motion, was justified.  We should not, in my view, involve ourselves in the fine tuning of the group definition by the introduction of terms which have not had the attention of the primary Judge.  In the circumstances, leave to appeal from this order should be refused. 

54                  That leaves the applicant’s application for leave to appeal from the second judgment given by the primary Judge on 11 December 2009, that in which his Honour refused its application for a transfer of the proceeding to the New South Wales District Registry of the court.  The transfer application sought to invoke the jurisdiction of the court under s 48(1) of the Federal Court Act and O 10 r 1(2)(f) of the Federal Court Rules.  On the present application, it was accepted by the applicant that his Honour’s decision to refuse its motion was a discretionary one, and was made in a matter of practice and procedure.  It was submitted, however, that, since a significant consideration upon which his Honour relied was the absence of a viable Statement of Claim, if we were to reinstate the applicant’s Statement of Claim, it would follow that his Honour’s discretion had been exercised by reference to an irrelevant consideration, and that the matter should now be dealt with by the Full Court. 

55                  The applicant’s submission calls for a brief rehearsal of the reasons given by the primary Judge for refusing the transfer motion.  His Honour recognised (as had been pressed upon him by the applicant) that there were, in Sydney, a number of proceedings brought by the ACCC against certain airlines (only two of which are respondents in the proceeding before the primary Judge) in relation to the same cartel as is alleged by the applicant.  His Honour noted the applicant’s submission that there were likely to be many common issues as between the proceedings in Sydney and the present proceeding.  Nonetheless, his Honour took the view that the transfer application confronted “some insuperable difficulties”.  The first was that there was “still no viable statement of claim”.  As such, it was not possible to make any meaningful comparison between the issues in the various proceedings.  But his Honour did observe that damages would not be an issue in the Sydney proceedings, and that not all of the respondents in the proceeding before him were being “pursued by the ACCC” in the Sydney proceedings. 

56                  His Honour noted that, so far as it appeared to him, the Sydney proceedings had advanced procedurally, a good deal further than the Melbourne proceedings.  He observed that “significant discovery issues” had been foreshadowed in the proceeding before him, and that further time would be occupied while opt-out procedures and notifications were dealt with.  His Honour expressed the view that it was “highly unlikely” that, if the present proceeding were transferred to Sydney, there could be any confidence that it would be ready for hearing immediately after any of the matters presently proceeding in the New South Wales District Registry.  His Honour noted that it was impossible to identify the witnesses who may be called at trial, much less where they reside, and where it would be most convenient for them to give evidence.  Most counsel and solicitors currently retained by the parties were said to be resident in Melbourne.  On the present application for leave, none of these discretionary considerations to which the primary Judge adverted was gainsaid by the applicant. 

57                  The primary Judge also referred to a consideration of substance – and potentially of considerable importance to at least some of the respondents – which arose on the transfer application.  It related to the ability of one of the respondents to recover contribution from another, or from a third party, in the event that the former became liable to pay damages to the applicant, or to other group members, as a result of the present proceeding.  His Honour discerned that s 23B(1) of the Wrongs Act 1958 (Vic) might operate differently, in relevant respects, from s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).  The latter provided only for the recovery of contribution as between joint tortfeasors, while the former allowed for recovery of contribution from another person who was “liable in respect of the same damage”.  His Honour adverted to the view expressed in Bialkower v Acohs Pty Ltd (1998) 83 FCR 1,11 that a proceeding under s 82 of the Trade Practices Act is not in the nature of an action in tort.  His Honour expressed no conclusion about these matters, and, indeed, opined that there may nonetheless be scope for contribution claims to be brought in equity.  However, because of the operation of s 79 of the Judiciary Act 1903 (Cth), his Honour noted that it was sufficient to observe “that a respondent who wished to seek contribution from a fellow respondent following a trial in Sydney would confront far more legal difficulties than would the same respondent in a proceeding which was tried in Melbourne”.  He expressed the view that there was “a sound basis for the concerns” which some respondents had expressed about the prejudice which would be visited upon them if the transfer application were upheld. 

58                  Save for a very high-level submission made only in its written outline in reply, no attempt was made on behalf of the applicant to take issue with any of the reasoning of the primary Judge to which I have most recently referred.  The only submission which the applicant made was that, were we to reinstate the Fourth Amended Statement of Claim, the primary Judge’s discretionary decision would have to be set aside, and we should re-exercise that discretion for ourselves.  With respect to those involved, I consider this to be an unsatisfactory place to leave the subject.  It is true that an important consideration by reference to which his Honour refused the transfer application will, as a result of the judgment to be given by the Full Court, be shown to have been irrelevant.  However, it is as clear as may be that the primary Judge had a number of other reasons for refusing the applicant’s motion, none of which was, or, so far as I can see, could be, the subject of any valid criticism.  In my view, these other considerations to which His Honour adverted are conventional and appropriate ones, and lead naturally to the conclusion that the proceedings should not be transferred. 

59                  Because of those considerations, and because of what I perceive to be, with respect, a conventional and well-balanced approach to the motion taken by his Honour – notwithstanding that it might now be said that he took into account a consideration which ought not have been regarded as relevant – I take the view that leave to appeal should be refused on this matter of practice and procedure.  Such a conclusion does not, of course, foreclose the possibility that the applicant may renew its application, either by reference to changed circumstances, or in the light of the reinstatement of the Fourth Amended Statement of Claim.  However, I do not consider that the circumstances are such as would warrant the intervention of the Full Court. 

Associate:

Dated:         12 August 2010

REASONS FOR JUDGMENT

dodds-streeton j

60                  I have had the advantage of reading in draft the reasons for judgment prepared by Jessup J.  I agree with his Honour’s reasons and the disposition he proposes.

Associate:

Dated:         12 August 2010