FEDERAL COURT OF AUSTRALIA

Multigroup Distribution Services Pty Limited v TNT Australia Pty Limited

[2001] FCA 1721

PRACTICE AND PROCEDURE – Appeal – application for extension of time for leave to appeal from interlocutory orders on matter of practice and procedure – whether applicant had provided proper explanation for delay in applying for leave to appeal – whether grounds existed for granting leave to appeal if extension of time granted – whether extension of time for leave to appeal should be granted.

PRACTICE AND PROCEDURE – Appeal – application for leave to appeal from interlocutory orders on matters of practice and procedure – whether error of principle in considering proposed amendment to particulars of claim – whether “pre-eminent” consideration given to preserving trial date – whether proper consideration of factors relevant to exercise of discretion – whether to permit extension of particulars of claim – whether proper weight given to case management considerations – whether leave to appeal should be granted.

Federal Court Rules O 52 r 10(2)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 considered

In re the Will of FB Gilbert (decd) (1946) 46 SR (NSW) 318 considered

Décor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397 considered

Niemann v Electronic Industries Ltd [1978] VR 431 referred to

Bomanite Pty Ltd v Slatex Corp. Australia Pty Ltd (1991) 32 FCR 379 considered

Deighton v Telstra Corp. [1997] FCA 1568 referred to

Croker v Phillips Electronics Australia Ltd [2000] FCA 1731 referred to

State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 considered

Cropper v Smith (1884) 26 Ch D 700 considered

MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED v TNT AUSTRALIA PTY LIMITED, ANSETT AUSTRALIA LIMITED, MAYNE NICKLESS LIMITED & J McPHEE & SON (AUSTRALIA) PTY LIMITED

NG 786 of 1995

BRANSON, MANSFIELD & KATZ JJ

11 DECEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The application by Multigroup Distribution Services Pty Limited by notice of motion dated 26 September 2001 and amended on 19 October 2001 (The Multigroup Notice of Motion) for an extension of time within which to seek leave to appeal from Orders 1 and 2 made on 12 June 2001 be refused.

2.                  The application by Multigroup Distribution Services Pty Limited by The Multigroup Notice of Motion for leave to appeal from Orders 1 and 2 made on 26 September 2001 and Order 13 made on 26 September 2001 be refused.

3.                  The application by Multigroup Distribution Services Pty Limited by The Multigroup Notice of Motion for leave to appeal from Orders 1, 2 and 3 made on 15 October 2001 insofar as those orders limit the further documents to be discovered by TNT Australia Pty Limited, Mayne Nickless Limited and J McPhee & Son (Australia) Pty Limited to “documents at Business Entity level and above” and from Order 9 made on 15 October 2001 insofar as that order dismissed pars 4 and 6A of Multigroup Distribution Services Pty Limited’s Amended Notice of Motion of 28 June 2001 and from Order 10 made on 15 October 2001 be refused.

4.                  The notice of motion of TNT Australia Pty Limited and J McPhee & Son (Australia) Pty Limited of 22 October 2001 for leave to appeal from Orders 1, 3 and 4 - 8 made on 15 October 2001 be dismissed.

5.                  The notice of motion of Mayne Nickless Limited of 25 October 2001 for leave to appeal from Orders 1 and 4 - 8 made on 15 October 2001 be dismissed.

6.                  Multigroup Distribution Services Pty Limited pay to TNT Australia Pty Limited, Mayne Nickless Limited and J McPhee & Son (Australia) Pty Limited their costs of and incidental to the applications referred to in pars 1, 2 and 3 of this order.

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

REASONS FOR JUDGMENT

1                     The applicant seeks leave to appeal from certain interlocutory orders made by Gyles J on 12 June 2001, 26 September 2001 and 15 October 2001.  The motion seeking leave to appeal from the interlocutory orders made on 12 June 2001 was not made either to Gyles J at the time or within seven days of the making of those orders as required by O 52 r 10(2) of the Federal Court Rules (the Rules).  It was brought only by amending the application for leave to appeal, first made following the interlocutory orders of 26 September 2001, on 19 October 2001.  Consequently, the applicant also seeks an extension of time under O 52 r 10(2)(b) of the Rules within which to file and serve its application for leave to appeal from the orders made on 12 June 2001.

2                     To understand the nature of the issues now before the Court, it is desirable to refer to the nature and history of the proceeding.

THE PROCEEDING

3                     The proceeding was commenced on 21 July 1995.  The applicant’s claim is expressed in the further amended statement of claim filed by leave on 3 March 1997 (the FASC).  A second further amended statement of claim was filed by leave on 23 March 2001, but for present purposes the amendments it effected are not material.

4                     The applicant alleges in the FASC that at material times the applicant and each of the respondents were competitors in the market for express freight transportation within Australia.  It is claimed that the respondents enjoyed some 90% of that freight market.  It further alleges that from 1987 (and, as the applicant’s Summary of Applicant’s Case on Loss and Damage filed on 25 May 2001 and its submissions indicate, to 30 June 1995) each of the respondents entered into an arrangement, and gave effect to an arrangement, to the general effect that as between themselves they would not compete for customers on price or service, and further to the effect that they would share information and engage in strategies for the purpose of securing collectively a greater share of that market by driving out participants in the market who were independent of the respondents.  The applicant was, and is, one of those independent participants in the market.  The applicant alleges further that the respondents entered into, and gave effect to, the arrangement in circumstances in which the respondents’ purpose, and the effect of the arrangement, were proscribed by the Trade Practices Act 1974 (Cth) (the TPA) so that each contravened s 45(2)(a)(ii) and s 45(2)(b)(ii) of the TPA.

5                     Paragraph 9 of the FASC concerning the arrangement under the heading “Particulars” pleads:

“(a)     The existence of the arrangement or understanding is to be inferred from the facts, matters and circumstances set out in the Schedule of Incidents annexed and marked ‘A’.

(b)               To the extent relevant, the Applicant will rely on section 83 of the Act in respect of the findings made by His Honour Justice Burchett in His Honour’s Reasons for Judgment dated 31 January 1995 in Trade Practices Commission v TNT Australia Pty Limited & Ors (1995) ATPR 41 – 375, being proceedings G807 of 1992 in the Federal Court of Australia, Sydney Registry (‘the TPC proceedings’).

(c)        The Applicant will provide full particulars following discovery and interrogatories in these proceedings.

Paragraph 17 of the FASC, concerning the respondents’ giving effect to the alleged arrangement, contains particulars in the same terms.

6                     In the proceeding referred to in par 9(b) of the FASC, which the Trade Practices Commission (the TPC) had commenced on 30 October 1992, it was alleged that the first, second and third respondents had contravened s 45(2)(a)(ii) and s 45(2)(b)(ii) of the TPA.  The allegations made by the TPC in general terms are mirrored by the applicant’s allegations in that regard in the FASC.  On 31 January 1995, the first second and third respondents withdrew their defences in the proceeding commenced by the TPC.  Burchett J then gave judgment against those respondents imposing penalties and making orders in terms agreed between the TPC and the first second and third respondents.  The material before the Court indicates that the applicant then was able to secure access to the material available to the TPC for the purpose of its use in this proceeding.

7                     The FASC makes allegations beyond those alleged by the TPC.  The fourth respondent is a “new” party, that is it was not a respondent to the proceeding brought by the TPC.  The FASC of course makes allegations against that respondent.  In addition, the FASC extends the causes of action beyond contraventions of s 45 of the TPA.  It also alleges that the respondents contravened s 46 of the TPA by taking advantage of their substantial power in the market by entering into and giving effect to the alleged arrangement to the detriment of the applicant.  It further alleges that the respondents unlawfully conspired together to injure the applicant by unlawful means and acted together in pursuance of that conspiracy.  Again, the conduct relied on is that of entering into and giving effect to the arrangement alleged.

8                     The FASC then alleges that the conduct of the respondents caused the applicant loss and damage.  It does not contain particulars of that loss and damage.  The “Particulars” assert an inability at the time to quantify that loss and damage, except to describe it as resulting in a reduced level of profitability of its business.  It gives the illustration that its level of profitability in the year ended 30 June 1995 was 13.2% of sales compared to 6.5% in the year ended 30 June 1988.  It concludes:

“The Applicant’s loss and damage will be quantified in a report or reports of an expert firm of accountants which will be filed in due course.”

9                     The FASC is a complex document of 49 pages and the annexed Schedule of Incidents runs to 51 pages. The Schedule of Incidents annexed to the FASC is a substantial document providing a description of each of 181 incidents, referred to particular subparagraphs of the FASC.  It is apparent from the brief summary above that all three pleaded causes of action are based largely upon the conduct alleged against the respondents of entering into and giving effect to the alleged arrangement.

10                  The FASC was the third version of the applicant’s statement of claim.  It was filed pursuant to leave given on 3 March 1997.  The initial version of the statement of claim was struck out on 4 September 1996.  The second version of the statement of claim was withdrawn by the filing of the FASC in the light of further objections of the respondents to the second version.

11                  It is also apparent that the respondents maintained complaints about the adequacy of the FASC.  On 7 March 1997 Burchett J ordered, inter alia, in the following terms:

“1.       Grants leave to the applicant to file a Further Amended Statement of Claim in the form of the draft Further Amended Statement of claim filed on 3 February 1997 pursuant to the Court’s direction of 18 December 1996, on condition that if any relevant period of limitation unexpired at 21 July 1995 has expired prior to 3 February 1997 any new claim for relief or foundation in law for a claim for relief not arising out of the same facts or substantially the same facts as those pleaded in the Statement of Claim dated 21 July 1995 to support claims for relief made in that Statement of Claim take effect only from 3 February 1997 to the end that the respondents may rely on defences that may arise as a result of the expiration of any relevant limitation periods as if the proceedings in relation to the said new matters had commenced on 3 February 1997.  Nothing herein is intended to prevent the respondents from contending at the hearing of this matter that the Further Amended Statement of Claim introduces new causes of action and/or material facts and the amendments introducing those new causes of action and/or material facts take effect only from 3 February 1997 (including on the basis that the Court has no power to permit such amendments and that the amendments fall outside Order 13 Rule 2).

1.A      The fourth respondent is not hereby precluded from making an application to strike out or seek summary dismissal of the Further Amended Statement of Claim against it.

2.                  Directs the applicant to file and serve, in lieu of particulars for the time being of the Further Amended Statement of Claim and the Schedule of Incidents annexed thereto and marked ‘A’, the witness statements on which it intends to rely on or before 31 July1997 (other than those arising out of the inspection of discovered and subpoenaed documents and/or continuing inquiries or those not otherwise reasonably capable of being filed and served on or before 31 July 1997).

3.                  Directs the applicant to file and serve on or before 14 August 1997 a document identifying, in relation to:

(a)               each incident set out in the Schedule of Incidents; and

(b)               each paragraph of the Further Amended Statement of Claim not particularised in the Schedule of Incidents.

which paragraphs of the said witness statements are relevant to that incident or paragraph.

…”

That order is the genesis of the subsequent orders made by Gyles J which are now sought to be appealed from.  The time then specified in Order 2 of those orders, namely 31 July 1997, was subsequently extended to 3 October 1997.  It is convenient hereafter to refer to Order 2 of 7 March 1997 as “the 7 March 1997 Order”.

12                  By 3 October 1997, the applicant had filed and served in excess of 200 statements, many of which (the Court was told on the hearing of the present application), were statements provided to the applicant by the TPC.  Those statements did not include any statement from Gregory John Poche (Mr Poche), the Chief Executive Officer of the applicant.

13                  In accordance with Order 3 of the orders made on 7 March 1997, and reflecting the endeavour to relate the applicant’s witness statements to the FASC, the applicant filed and served an Amended Index to Pleading and Statements (AIPS) on 2 January 1998.  The AIPS linked paragraphs of the witness statements to incidents in the Schedule of Incidents annexed to the FASC and to the FASC itself.  It too is a long and complex document, running to 258 pages.  It is broken into seven sections:  National, New South Wales and A.C.T., Northern Territory, Queensland, South Australia, Victoria and Tasmania, and Western Australia.  The “National” section is then broken into three parts as follows:

“NATIONAL

1.1       Principal national meetings between participating express freight carriers at which the arrangements or understandings described in the Further Amended Statement of Claim were made and arrived at, or affirmed.

1.2              Implementation at the national level within and among participating express freight carriers of arrangements or understandings.

1.3              Conduct by participating express freight carriers giving effect to (or attempting to give effect to) arrangements or understandings:

1.3.1        engaged in on a nationwide basis; or

1.3.2        engaged in within Australia, at a locality or localities which the Applicant is not presently able to specify.”

and each other section is broken into two parts as follows:

“2.1     Implementation within and among participating express freight carriers of arrangements or understandings.

2.2        Conduct engaged in by participating express freight carriers giving effect to (or attempting to give effect to) arrangements or understandings.”

The details for each part are then provided in columns describing the incident, identifying the statement or statements referring to the incident and the paragraphs of the statement or statements, and the paragraphs of the FASC to which the described incident relates.  At the end of each of the parts of each section referring to the incidents involving conduct by a respondent giving effect to the alleged arrangement there appears the reservation:

“Other incidents, of which the Applicant is presently unable to provide particulars, inferred from the foregoing conduct and other circumstances alleged.”

Counsel in the course of submissions said, without demur, that the AIPS referred to in excess of 800 incidents.  A perusal of the AIPS shows that some incidents involve communications between a number of persons representing one or more of the various entities through which the respondents severally carried on their businesses. 

14                  It is obvious that the FASC as “particularised” by the witness statements then filed, and as explained by the AIPS, gave rise to very extensive allegations involving communications between a significant number of persons, and transactions involving a significant number of persons, extending over several years.

15                  Defences to the FASC were filed on behalf of all the respondents by 25 February 1998.

16                  Thereafter, there appear to have been lengthy negotiations concerning the documents or categories of documents in respect of which each party required discovery.  On 25 June 1998, Burchett J made orders for discovery in accordance with a ‘Discovery Regime’.  The discovery was to be given in stages.  It has proved to be a lengthy process.  Stage 1 of the discovery process was completed in March 1999.  The final stage, Stage 7, was not completed until September 2001.  That is, on the issues as discernible from the FASC including the annexed Schedule of Incidents, and as discernible from the applicant’s witness statements (as explained by the AIPS), the giving of proper discovery took some 3 ¼ years.  There are still ongoing issues as to discovery, notwithstanding the completion of that staged process, as the present application itself illustrates.

17                  On 30 June 2000 Gyles J, who was by then the Judge charged with responsibility of overseeing the progress of the matter generally to hearing, ordered that the applicant file and serve any further witness statements it proposed to rely upon, including any expert evidence as to its damages, by 31 October 2000.  His Honour excluded from that direction any expert evidence from economists on the issue of liability.  On 8 September 2000 that date was extended to 28 February 2001.

18                  On 8 September 2000, Gyles J also indicated to the parties provisionally that the hearing of the matter would commence in February 2002.  His Honour referred to that proposed commencement date for the hearing at subsequent interlocutory hearings.  On 26 September 2001, his Honour ordered that the trial commence on 11 March 2002.  That order fixing the commencement of the hearing is one of the orders in respect of which leave to appeal is now sought.  It is Order 13 of the orders made on 26 September 2001, and we shall call it hereafter “the Trial Date Order”.

19                  We revert to the chronological narrative of the interlocutory proceeding, so far as it is directly relevant to the present application.

20                  Following the filing and service of further witness statements by the applicant, including one by Mr Poche, the issue arose as to whether the applicant could without leave, or should be given leave to, adduce at the hearing certain of the evidence contained in the further witness statements.  That issue was the subject of detailed submissions on 20 April 2001. It was argued by the applicant that such witness statements filed after 3 October 1997 which fell within the reservations contained within the parentheses in the 7 March 1997 Order, namely statements arising out of inspection of discovered or subpoenaed documents, or from continuing inquiries, or which were not otherwise reasonably capable of being filed and served by 3 October 1997, could by their content effectively extend the scope of the particulars of the applicant’s case and could be used without leave at the hearing.  The resolution of that issue depended in part upon the effect of the 7 March 1997 Order set out in [11] above.

21                  On 20 April 2001 Gyles J gave reasons for decision regarding the issue.  Although there is no application to extend time within which leave to appeal from the judgment of 20 April 2001 is sought, nor is there any application for leave to appeal from that judgment, its reasoning and conclusions have been attacked on this application.  It is necessary, therefore, to identify what Gyles J decided on 20 April 2001 (as relevant to this application), and his Honour’s reasons for that decision.

22                  His Honour considered the 7 March 1997 Order, expressed as being “in lieu of particulars”, meant that the metes and bounds of the applicant’s case would be defined by the statements filed up to 3 October 1997.  The use of the words “for the time being” in that order were to preserve to the respondents the opportunity to seek an order for further particulars, notwithstanding the provision of particulars of the claim through the applicant’s witness statements as then filed.  He considered that the 7 March 1997 Order contemplated that the applicant could file further witness statements after October 1997, and rely upon them at the hearing without requiring leave of the Court if they fell within the words in parentheses in the 7 March 1997 Order, and if they were relevant to the case as pleaded.  As his Honour then noted, at that time, i.e. 20 April 2001, the ongoing process of inspection and making inquiries meant that the period at which the practical operation of the parenthetical proviso would cease to operate was on 30 June 2001.  His Honour concluded:

“…

so far as particularisation of the pleaded case is concerned, that is contained within the statements filed as provided for in Order 2 [up to 3 October 1997].  It does not follow that further witness statements by themselves have the effect of increasing the scope of the particulars.  If there are any significant alterations to the particularisation of the case by virtue of the filing of witness statements then that must be regularised by the granting of leave.  I am not suggesting that that will or will not be a difficult task.  That will depend on the circumstances, but it will need to be done.”

His Honour contemplated that, when the applicant had filed all its witness statements, it would be appropriate to address the question whether it should be permitted to extend the particulars of its claim.  It was then clear that the applicant did wish to do so.

23                  At that point, in addition, part of the statement of Mr Poche dated 28 March 2001 concerning Lost Customer Reports (LCRs) was seen as presenting a discrete question concerning the scope of the particulars of the applicant’s case.  His Honour regarded that part of the statement as not falling within the parenthetical reservation in the 7 March 1997 Order.  Consequently, the applicant required leave to file and rely upon that material.  Because that material was seen as being likely to have a significant effect upon the preparation for and hearing of the case, the applicant was given the opportunity at that point to seek leave to introduce that material.  The applicant wished to do so, as material relevant to its case on liability because it was part of the “matrix of facts” from which the alleged arrangement was to be proved, and also as relating to its case of damages.  The question of the extent to which that part of the statement of Mr Poche that refers to the LCRs could be relied upon at the hearing was fixed for hearing.

24                  On 24 April 2001 Gyles J also ordered that the applicant file and serve a document particularising how it put its case in relation to causation of loss and damage, and how it proposed to prove its alleged loss and damage.  On 25 May 2001 the applicant duly filed a document entitled “Summary of Applicant’s Case on Loss and Damage”.

25                  On 4 June 2001, Gyles J decided that that part of the statement of Mr Poche dealing with the LCRs could be used in the proceeding only for limited purposes.  That decision is reflected in the orders then made on 12 June 2001 which, relevantly, are in the following terms:

“1.       The Applicant not be permitted a trial to rely upon paragraphs 68 to 71 (both inclusive), 79 and 145 to 163 (both inclusive) of the statement of Gregory John Poche dated 28 March 2001 and filed 30 March 2001 and any annexure or exhibit referred to in any such paragraph, and in particular the documents described as ‘Lost Customer Reports’ whenever made (‘the Relevant Evidence’) on any issue going to liability except insofar as the Relevant Evidence relates to an incident identified in the Amended Index of Pleadings and Statements filed by the Applicant on 2 January 1998 (‘the AIPS’) referring to the loss of a named customer.

2.                  The Applicant have leave to rely upon the Relevant Evidence at trial on all issues relating to the proof of loss or damage provided that the use of the Relevant Evidence will be limited to that described in the Summary of the Applicant’s Case on Loss or Damage dated and filed on 25 May 2001 and further provided that any use to prove loss of individual customers will be limited to loss of customers named in an incident identified in the AIPS.”

In these reasons, hereafter, it is convenient to call those orders Orders 1 and 2 of 12 June 2001.

26                  His Honour’s reasons for those orders will need to be addressed when considering the present application, as they are the subject of the application for an extension of time within which leave to appeal therefrom may be sought, and for leave to appeal.

27                  In the face of his Honour’s judgment of 20 April 2001 and that ruling, the applicant then sought leave to extend the particulars of its claim beyond those identified in the FASC and in the witness statements filed by 3 October 1997, as explained in the AIPS. To facilitate the identification of the witness statements or parts of the witness statements filed and served after 3 October 1997 and up to 2 July 2001 which arguably referred to material beyond the applicant’s case as pleaded and particularised by 3 October 1997, Gyles J directed the respondents to provide a list of those statements or parts of them in respect of which the respondents contended that the applicant required leave in order to be entitled to rely upon that evidence at the hearing.  The respondents duly filed what was called the “Leave List” on 17 July 2001.  It identified all or parts of 68 statements.  The applicant had also filed a further 18 statements after the period to which the leave list related.  By motion filed on 25 July 2001, the applicant then sought orders that it have leave to rely upon all statements filed after 3 October 1997 if leave to do so was required, and that the 68 statements in the Leave List and the further 18 statements “stand as further particulars for the time being” of the FASC (as further amended).

28                  On 17 August 2001, following extensive argument, his Honour gave judgment on those issues.  He ruled that the applicant should not be permitted to extend the particulars of its claim by reference to any customer incidents referred to for the first time in statements filed and served only after 3 October 1997 (in fact, such statements had all been served in 2001).  The new allegations concerning lost customer incidents in those statements were matters which were likely to involve considerable time and expense in their investigation by the respondents.  In respect of other matters referred to in those statements, his Honour did not undertake detailed analysis of each statement to determine whether it fell within the parenthetical reservation of the 7 March 1997 Order, nor whether leave should be given to call that evidence at the trial if it did not.  He observed, entirely sensibly in our view, that such matters are generally best left to the trial.  However, Gyles J did reserve liberty to the respondents to apply to raise any such matter with respect to any statement which caused a real and serious issue in the preparation of the case.  As noted earlier, counsel for the respondents in argument on these applications acknowledged that such statements, provided they were relevant to the applicant’s case as pleaded and particularised, even if they fell outside that parenthetical reservation, would be likely to be received as evidence unless the respondents could demonstrate particular prejudice by their reception.

29                  The effect of that part of his Honour’s judgment is reflected in orders formally made on 26 September 2001 in the following terms:

“1.       Refuse leave to the Applicant to widen the particulars of its case by reference to any individual customer incident that is not referred to in the statements filed for the Applicant prior to 4 October 1997 or the Amended Index to Pleadings and Statements filed on 2 January 1998.

2.                  Otherwise reserve to the hearing the question of whether the Applicant requires and should have leave to rely on any statement of evidence filed by it after 18 November 1997 up until and including 14 August 2001.”

Those two orders are subject of the present application for leave to appeal.  It is convenient hereafter to refer to them as Orders 1 and 2 of 26 September 2001.

30                  As noted in par [18] above, Gyles J by those orders, inter alia, also fixed the hearing to commence on 11 March 2002 by the Trial Date Order.  The present application seeks leave to appeal from that order also.  On 26 September 2001, orders were also made concerning the means by which the respondents should give discovery of confidential documents, and for third party discovery.  His Honour also fixed the timetable for the exchange of experts’ reports on damages following completion of discovery.

31                  The discovery process was proceeding in tandem with the issues concerning the impact upon the applicant’s case of the witness statements filed after 3 October 1997 and whether such evidence could be adduced at the hearing.  It is necessary to retrace events a little to identify the issues now falling for consideration.

32                  By notice of motion dated 13 March 2001, the applicant sought (inter alia) specific discovery from the respondents of information separately concerning each of their ‘Business Entities’.  It defined that term to include any incorporated entities or reporting divisions (i.e. those which produce financial results) owned or operated by any of the respondents and which are or were involved in the provision of express freight services within Australia.  The material before the Court claims that that information was necessary for the expert accountant engaged by the applicant to provide an opinion about the applicant’s loss and damage recoverable in this proceeding.  On 18 June 2001, the applicant by notice of motion sought (inter alia) further information concerning relevant ‘Business Entities’.  It also sought discovery of other documents belonging to classes of documents described in a letter from the accountants providing an expert report on damages to the applicant including attached spreadsheets, and of documents disclosing any information in relation to pricing and costs of about 150 specified customers of one or other of the respondents.

33                  On 28 June 2001, yet another notice of motion was issued by the applicant.  It is one which gave rise to the rulings and orders of Gyles J which are the subject of the present application.  It sought (inter alia) a schedule of the respondents’ relevant ‘Business Entities’, further discovery of other documents, and directions for the experts for the parties to confer on the issues of the market and on damages.  Pars 4 and 6A of the notice of motion sought orders that:

“4.       On or before 27 July 2001, each of the Respondents provide discovery of any documents that disclose any information in relation to pricing and costs relating to each of the customers identified in the attached Schedules A and B, organised by customer and by Relevant Business Entity as described in the Schedules.”

6A       On or before 27 July 2001, each of the Respondents discover any documents relating to, or alternatively produce by way of printout or report from a computer database or other form of electronic storage or archive:

6.1A    any manual or manuals describing the financial management, cost, price, quotation and/or customer management computer system operated by that Respondent or any of its Relevant Business Entities during the period 1987 to 1994 (‘the System’) including any instructions about the use or operation of the System and any information about the reports that could be generated by the System;

6.2A    all guidelines or policies regarding costs, prices or other quotation and/or customer management procedures contained in or relating to the System that were applicable to the production and/or approval of quotations issued using the System by or the management of customers by that Respondent or any of its Relevant Business Entities;

6.3A    all reports or information about quotations issued by that Respondent or any of its Relevant Business Entities during the period 1987 to 1994 that were issued outside the guidelines or policies referred to above, or which required specific approval from a state manager, state sales manager or some other officer in accordance with the relevant guidelines or policies;

6.4A    all quotations issued by that Respondent or any of its Relevant Business Entities re referred to in 6.3A above, issued using the System, which related to customers of the Applicant in these proceedings; and

6.5A    all reports or information about customers entered onto the System to whom quotations referred to in 6.3A or 6.4A were issued by that Respondent or any of its Relevant Business Entities.”

Schedules A and B of the notice of motion identified 137 customers of the first, second and fourth respondents and (with some overlap) 125 customers of the third respondent.

34                  On 15 October 2001, Gyles J made orders for further discovery by the respondents.  Order 1 of those orders was in the following terms:

“By 30 November 2001, the First Respondent give discovery, in the first instance, for each Relevant Business Entity of all documents at Business Entity level and above including all computer databases and other forms of electronic storage or archive records listed in Annexure ‘X’, relating to the freight business of the relevant business entities excepting any document which does not bear upon the quantification of the loss and damage alleged by the Applicant as particularised in the Applicant’s Summary of Loss and Damage filed on 25 May 2001 presently held at:

(a)               the First Respondent’s Corporate Central Management Office (Head Office) including off-site storage facilities for Head Office documentation;

(b)               the national or other head office of each of those business entities or divisions including off-site storage facilities for national or head office documentation.”

Orders 2 and 3 were effectively in the same terms in relation to the third and fourth respondents.  In addition, by Order 9 then made, the notice of motion of 28 June 2001 was dismissed.  That meant that, apart from the orders for further discovery which had been made, the application by the applicant for discovery from the respondents in terms of pars 4 and 6A of that motion was dismissed.

35                  The applicant seeks leave to appeal from Orders 1, 2 3 and 9 made on 15 October 2001, and from Order 10 then made dealing with costs.  The complaint about Orders 1, 2 and 3 is only to the extent that those orders limit the documents to be discovered to “documents at Business Entity level and above”.  The application for leave to appeal from Order 10 is consequential and dependent upon leave being given to appeal from Orders 1, 2, 3 and 9 made 15 October 2001.  As it is our view, for reasons set out below, that that application for leave to appeal should be refused, it is not necessary to further address order 10 made on 15 October 2001.  Again, it is convenient hereafter to refer to those orders as Orders 1, 2, 3 and 9 of 15 October 2001.

36                  Each of the first, third and fourth respondents has also sought leave to appeal from the orders made on 15 October 2001 so far as they relate to those respondents severally.  Counsel for those respondents indicated that those applications were not pursued if the application of the applicant in relation to the orders made on 15 October 2001 were unsuccessful.  It is, in the circumstances, not necessary to address those applications further.  The appropriate orders are that the notice of motion of the first and fourth respondents of 22 October 2001, and the amended notice of motion of the third respondent of 25 October 2001, each seeking leave to appeal from orders made on 15 October 2001, be dismissed.  In our view, having regard to the brief period of the hearing occupied on those motions, there should be no order for costs on either of these notices of motion.

37                  The second respondent appeared at the hearing only to submit to such orders as the Court might make.

CONSIDERATION OF APPLICATION

(a)                The Principles

38                  There is no dispute about the principles to which the Court should have regard in considering the application.  The orders under consideration concern rulings made on matters of procedure.  Gibbs CJ, Aickin, Wilson and Brennan JJ said in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177:

“ … appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure.”

Whilst their Honours eschewed as unnecessary and unwise laying down rigid and exhaustive criteria to be applied by appellate courts in considering such applications, as the “circumstances of different cases are infinitely various”, they cited with approval the following statement of Sir Frederick Jordan in In re the Will of FB Gilbert (decd) (1946) 46 SR (NSW) 318 at 323:

“… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights.  In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice.  The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”

In this Court, that approach has of course been followed:  see e.g. Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor). 

39                  The Court (Sheppard, Burchett and Heerey JJ) in Décor  at 398 – 400 pointed out that “an appropriate litmus test for the general run of cases” in which leave to appeal from an interlocutory decision is sought includes whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by a Full Court, as well as whether substantial injustice would result if leave were refused and if the decision from which leave to appeal is sought was erroneous:  see Niemann v Electronic Industries Ltd [1978] VR 431.  Their Honours pointed out that no rigid rules could or should be laid down, and that such considerations provide “general guidance” only.  They also recognised the “important distinction” between the exercise of the discretion to grant leave to appeal from an interlocutory decision on a point of practice and procedure from one which involves determining a substantive right.

40                  Each application for leave to appeal must be considered in the light of its individual circumstances, guided of course by consideration of the sort of factors referred to above.  It is not of benefit, in our view, in this matter to review the authorities to endeavour to refine or limit the relevant considerations.  The approach of all parties was consistent with the observations of French J in Bomanite Pty Ltd v Slatex Corp. Australia Pty Ltd (1991) 32 FCR 379 at 391 that the Court will not:

“ … interfere with the exercise of judicial discretion [in the making of interlocutory decisions] unless it is satisfied that there has been some error of law or logic or some unfairness which is either apparent on the face of the reasons or implicit in an unreasonable result.”

41                  The likelihood of leave to appeal being granted is usually a consideration relevant to whether to extend time within which to seek leave to appeal:  Deighton v Telstra Corp. [1997] FCA 1568.  (Full Court, Lee, Heerey, and RD Nicholson JJ).  The reasons for the delay will also generally be a relevant consideration:  Croker v Phillips Electronics Australia Ltd [2000] FCA 1731, Stone J

42                  In relation to this application the applicant has sought to establish both an error of principle in each of the orders from which leave to appeal is sought, as well as substantial injustice to it flowing from the making of each of those orders.  It also contends that, in respect of the orders made on 15 October 2001 covering discovery, the learned judge at first instance failed to consider the unchallenged evidence about the discovery necessary to do justice in the particular case.

43                  The error of principle is said to be the failure to appreciate or to apply the case management principles explained by the High Court in State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 (J L Holdings).  It is contended that the learned judge at first instance erred in treating the trial date as the primary consideration for each of the orders now sought to be reviewed, and “subordinated all other case management considerations to the maintenance of the trial date”.  Thus, so the argument ran, the judge had given “presumptive weight” to the trial date and had failed to balance all relevant considerations in deciding to make the orders complained of.  It was further contended that J L Holdings required the interests of justice to be the “pre-eminent” consideration in considering whether to make the orders complained of.

44                  The applicant’s contention in support of its application for an extension of time within which to seek leave to appeal from Orders 1 and 2 of 12 June 2001 is somewhat circuitous.  It is that such leave should be given, because its proposed attack on Orders 1 and 2 of 26 September 2001 necessarily involves an attack on the foundation of Orders 1 and 2 made on 12 June 2001.  It therefore submits that it should be granted the extension of time sought to avoid the risk of inconsistency in those orders.

45                  It is necessary to address those general submissions severally in relation to the orders now sought to be challenged.  It must, however, be pointed out that the joint judgment of Dawson, Gaudron and McHugh JJ in J L Holdings does not support the proposition in the applicant's contentions that the Court, when confronted with interlocutory issues such as those which arise in complex litigation such as this, must acquiesce in any application by an applicant to amend its pleadings, even if that be at the price of a prolonged delay in the proposed trial date.  It was put that “an amendment is a matter of right ‘for the sake of deciding matters in controversy’ and not ‘a matter of grace and favour’”, based upon comments of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 711, a decision cited with approval in J L Holdings.  However, his Lordship did not say that a party should, as a matter of right, be entitled to amend its pleadings, irrespective of the circumstances including any prejudice to the other party which might be occasioned thereby.  At 711, Bowen LJ said:

“It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.

…

The question seems to me to be this, Can you by the imposition of any terms place the other side in as good a position for the purpose of having the question of right determined as they were in at the time when the mistake of judgment was committed?

…”

Indeed, as his Lordship’s subsequent observations at 711 reveal, in his judgment the party opposing the amendment would not have incurred any additional costs had the amendment been allowed as the case had been fought in exactly the same way as it would have been fought had the amendment been allowed.  In J L Holdings their Honours said at 154:

“Case management is not an end in itself.  It is an important and useful aid for ensuring the prompt and efficient disposal of litigation.  But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

As the discussion at 154 following those observations reveals, their Honours had regard to the facts that the application for leave to amend was made before a date was fixed for hearing, that it did not appear to give rise to any complex issues of fact, and even if it did that those issues should be able to be accommodated in the lengthy hearing time allowed, that the issue raised by the proposed amended defence might not be avoided at the trial in any event, and that the respondent in the action ought not be prevented from putting forward an arguable defence which would present a complete answer to the claim.  Their Honours then concluded at 155:

“Justice is the paramount consideration in determining an application such as the one in question. … Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration.  But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.”

There was, in that case, no basis for considering that an award of costs would not be an adequate remedy for any prejudice caused by allowing the proposed amendment to the defence.

46                  Moreover, as appears from the consideration of the reasons for decision in relation to the orders made on 12 June 2001 and 26 September 2001, Gyles J did not attach to the hearing date (formally fixed only on 26 September 2001 but foreshadowed from 8 September 2000) the pre-eminence attributed to him by the applicant.  For instance, in the course of the reasons of Gyles J of 4 June 2001 for allowing the use of certain documents relating to damages, his Honour recognised that the respondents might wish to explore each or a number of the incidents to which those documents referred.  Gyles J remarked:

“If, as a result of this, the hearing date needs to be abandoned, then so be it.”

That does not demonstrate the pre-eminent commitment to preserving the hearing date which the applicant alleges.  In our view, his Honour had regard to a range of relevant considerations, including the nature of the prejudice to the respondents and to the applicant in the making of the orders now complained of.  It is necessary to address those orders to indicate why that is so.

(b)               Orders 1 and 2 of 12 June 2001

47                  In the course of hearing this application, the Court ruled that it refused to extend time to enable the applicant to seek leave to appeal from these orders.  The following section of this judgment explains our reasons for that ruling.

48                  As noted above, it is an important step in the applicant’s attack on these orders that the decision of Gyles J of 20 April 2001 as to the meaning and effect of the 7 March 1997 Order is in error.

49                  Although it was put by senior counsel for the applicant that no complaint was made about the decision of 20 April 2001 at the time (or indeed after the Orders 1 and 2 of 12 June 2001 were made and until 19 October 2001) because the reasons did not culminate in the making of orders from which leave to appeal could be sought, it is unsatisfactory that a reasoned decision of the judge charged with the management of such complex litigation as the present should be permitted to be the subject of collateral but fundamental attack some six months after it was made, and after the parties had apparently conducted the ongoing preparations of the matter for trial on the basis of the decision during that period.

50                  What is apparent is that the applicant at the time accepted that decision, and proceeded to seek orders enabling it to rely upon those parts of Mr Poche’s statement which concerned the LCRs and the LCRs themselves (and which concerned customer incidents not referred to in the FASC or in the witness statements filed by 3 October 1997 as illuminated by the AIPS).  When Gyles J, on 12 June 2001, refused to permit that extended use of Mr Poche’s statement and the LCRs, again the applicant initially and until 19 October 2001 appears to have accepted that ruling.  It did not then seek leave to appeal from Orders 1 and 2 of 12 June 2001.  It proceeded to seek an order which would have the effect of extending its pleadings and particulars, that is by treating its witness statements filed after 3 October 1997 as setting fresh boundaries for those pleadings.  It was only when it was refused that leave on 26 September 2001 that it sought to challenge directly Orders 1 and 2 of 12 June 2001, and indirectly the decision of 20 April 2001.

51                  No real explanation for the applicant’s delay in seeking leave to appeal from Orders 1 and 2 of 12 June 2001 has been proffered.  Its conduct of the proceeding indicates that initially it accepted the rulings then made.  It sought to avoid the consequences of those orders by its application for leave to extend the particulars of its claim, by having the witness statements filed after 3 October 1997 treated as resetting the scope of those particulars.  It was only when that application was refused, by Orders 1 and 2 made on 26 September 2001 that it sought to challenge the earlier orders.  The absence of any satisfactory explanation for that change of attitude, particularly in circumstances where the parties have proceeded upon the basis of an acceptance of those earlier orders, might itself constitute a sufficient reason to decline to extend the time within which leave to appeal from Orders 1 and 2 of 12 June 2001 might be sought.

52                  To that consideration might be added the further factor that the applicant’s desire to attack Orders 1 and 2 of 12 June 2001 is but a different route to secure its ultimate objective on this application.  That objective is to be able to have its witness statements filed after 3 October 1997 reset the boundaries of the particulars of its claim.  In a practical sense, particularly having regard to the elapse of nearly four years between the time when those particulars were fixed by the witness statements filed up to 3 October 1997, and to the very extensive preparation for trial over that period in relation to the case as so particularised, the appropriate course was to consider whether to grant leave to amend the particulars of claim in the way the applicant seeks.  The result of that consideration was Orders 1 and 2 of 26 September 2001.  The applicant now seeks leave to appeal from those orders.  The alleged error of principle asserted on behalf of the applicant, and the balancing of discretionary considerations, arises for consideration on that part of the present application.  If that application were to be successful, there would be little need to revisit Orders 1 and 2 of 12 June 2001.  If it were to be unsuccessful, there would be little justification in revisiting Orders 1 and 2 of 12 June 2001 as the contentions regarding those orders are much the same as the contentions regarding Orders 1 and 2 of 26 September 2001.  Those considerations also provide a reason why the applicant should not now be given an extension of time within which to seek leave to appeal from Orders 1 and 2 of 12 June 2001.

53                  However, we prefer to base our decision to refuse that extension of time upon the ground that the applicant has not demonstrated that the decision of 4 June 2001, which matured into Orders 1 and 2 of 12 June 2001, is attended with sufficient doubt.  Indeed, we agree with the reasons for decision of Gyles J delivered on 20 April 2001 and 4 June 2001.

54                  The ruling on 20 April 2001 was that the applicant was bound by the case it had pleaded in the FASC and as particularised through its witness statements filed by 3 October 1997.  The AIPS provides a resource from which the detailed nature of the claim and its particulars can be discerned.  It further meant that (putting aside experts’ reports, which Gyles J regarded as outside the operation of his ruling) any witness statements of the applicants filed after that date would fall into three categories:

1.                  statements which fell within the parenthetical reservation in the 7 March 1997 Order and which contained material relevant to the case as pleaded and particularised:  they could be filed without leave and relied on at the hearing;

2.                  statements which fell within the parenthetical reservation in the 7 March 1997 Order but which were not relevant to the case as pleaded and particularised:  they could not be relied upon at the hearing unless the pleadings or particulars were widened, so that they then became relevant to the case as then pleaded; and

3.                  statements which did not fall within the parenthetical reservation in the 7 March 1997 Order:  whether or not they were relevant to the case as then pleaded and particularised, leave was required to rely upon them.  Counsel for the respondents acknowledged on the hearing of this application that, provided such witness statements are relevant to the case as pleaded and particularised, it would be a proper exercise of the Court’s discretion to permit such evidence to be given at the hearing unless the time of their filing was such as to cause unfair prejudice to the respondents.

55                  The applicant contends that that ruling as to the effect of the 7 March 1997 Order was wrong.  It submits that the 7 March 1997 Order entitles it, after 3 October 1997 and indeed up to the present time, to file and rely on any witness statements which fall within the parenthetical reservation in the 7 March 1997 Order whether or not they relate to the case as then pleaded and particularised, as reflected in the AIPS of 2 January 1998.  It further contends that such statements, once filed, have the effect of resetting and extending the particulars of its case.  Thus, it is submitted, the applicant might effectively extend or vary the nature of the particulars by the filing of such statements, even in an extensive way.  It places particular reliance on the words “for the time being” and on the parenthetical reservation itself in the 7 March 1997 Order as well as the context in which that was made.

56                  The context in which the 7 March 1997 Order was made is enlightening.  The proceeding had then been on foot for some 28 months.  The applicant had yet to file and serve a statement of claim in satisfactory form.  The FASC was the third version of the statement of claim, and the respondents had substantial concerns about its particularity.  The applicant’s outline of contention on this application acknowledged an “evident lack of particularity” in the FASC.  The context in which the 7 March 1997 Order was made was also that the issues the proceeding raised related back to conduct from 1987, and to conduct in respect of which, to a significant degree, the TPC had already commenced and completed separate proceeding.  Those matters point to the need to have the applicant’s pleadings and particulars closed at a finite point, rather than to be left open ended.  They justify the imposition of a deadline (as it happened, 3 October 1997) for the close of the applicant’s pleadings.  We consider that, in that context, the 7 March 1997 Order was “in lieu of particulars for the time being of the FASC” and its annexed Schedule of Incidents, as Gyles J observed in his reasons of 20 April 2001, to short-circuit further prolonged pleading disputes by having the applicant’s witness statements serve as identifying the metes and bounds of the applicant’s case.  We also agree with Gyles J that the expression “for the time being” was intended to preserve to the respondents the opportunity to seek those particulars in a more structured or formal way if that proved necessary.  In the event, no such application was made.  It appears that the AIPS served as a suitable document to identify the pleaded facts and particulars by reference to the FASC including its annexed Schedule of Incidents, and the witness statements filed to 3 October 1997.

57                  The purpose of the reservation in parentheses in the 7 March 1997 Order was so that the applicant was not disentitled from relying upon information acquired through discovery or inspection, or by investigations made after its first tranche of witness statements were filed.  It does not follow, as the applicant contends, that information gleaned after 3 October 1997 would automatically entitle it effectively to amend and extend the particulars of its claim by the filing of further witness statements.  The orderly conduct of litigation does not normally work in that way.  Pleadings are closed; discovery and inspection are given by reference to the pleading; and the matter prepared for trial.  Amendment of the pleading after the close of pleadings is by leave, whether the basis of the application for leave to amend is information acquired after the close of pleadings, or for some other reason.  There is no reason to think that Burchett J contemplated a different regime in this matter.  Indeed, as the parameters of discovery and inspection would be fixed by the pleadings and particulars, in this case his Honour had reason to consider that the extent of discovery and inspection and would not throw up material for new factual claims.  It is contrary to common sense to think that his Honour intended to leave the applicant’s case open for expansion at the unfettered option of the applicant, which option could be exercised perhaps many years later.  The focus of the management of the proceeding since the AIPS has been to advance towards trial by reference to the issues as so delineated by the pleadings and particulars.  Of course, as Gyles J recognised, an application for leave to amend the pleadings or particulars can be made at any time.  But that does not support the applicant’s contention about the effect of the 7 March 1997 Order.  Accordingly, we agree with the reasons for decision of Gyles J given on 20 April 2001 as to the effect of the 7 March 1997 Order.

58                  Gyles J held on 20 April 2001 that the topic of the use of the LCRs did not arise out of the parenthetical reservation in the 7 March 1997 Order.  Mr Poche’s statement was that LCRs had been maintained for many years, including customer statements of the reason why the applicant’s services were no longer being used.  The LCRs had been discovered by the applicant prior to 3 October 1997, certainly those up to 30 June 1995 to which time the applicant now alleges loss and damage.

59                  The application for leave to rely at the hearing upon the challenged parts of the statement of Mr Poche and the LCRs was the subject of the reasons for decision given on 4 June 2001 and Orders 1 and 2 of 12 June 2001.  If that leave were to have been given, its effect would have been very significantly to extend the applicant’s particulars.  In the course of arguments, the Court was told that the particular events referred to in the AIPS (in excess of 800) would be increased by about 1000.

60                  In considering that application, Gyles J referred to Mr Poche’s proposed evidence the subject of objection.  He referred also to the Applicant’s Summary of its Case on Loss and Damage, filed on 25 May 2001, and to the annexed “methodology report” of the applicant’s proposed expert.  His Honour, it is accepted, properly appreciated the purpose of the challenged evidence of Mr Poche and the LCRs, as going both to the applicant’s case on liability, as part of the proof that the applicant lost customers to the respondents by reason of the alleged unlawful “predatory” conduct, and to its case on damages.

61                  His Honour then found, again a matter not disputed by the applicant, that the proposed use of that further material on the issue of liability would have “massive consequences” for the future hearing of the proceeding.  He observed that further investigation which would be prompted would be likely to involve statements “from probably hundreds of witnesses” and the discovery process (which, as noted above, had taken in excess of three years) would “need to effectively commence again”.  In considering whether to grant the leave sought, his Honour said:

“In my opinion, there is no doubt that the respondents will suffer irredeemable prejudice if the applicant is permitted to use this material in the way it seeks.  It is more than three and a half years since the expiry of the time limited by Burchett J for particularising a case which had by then been on foot for two years, and which relates, for the most part, to the period between 1987 and 1994.  The loss of documents, the loss of relevant personnel and the fading of memories cannot be remedied by any order the Court can make.”

He was satisfied on the evidence “together with commonsense” that, in relation to the LCRs now sought to be relied upon (in excess of 2500), there would be customers to whom the LCRs relate who the respondents could not now locate, or who have ceased to exist since 3 October 1997, or whose relevant officers either will no longer be able to be traced or whose memory will have significantly faded.  In addition, the respondents themselves will have “severe difficulty” in obtaining instructions as to their dealings with those customers because of the loss or destruction of records and the turnover in personnel which has occurred since 3 October 1997.  The applicant through counsel contended that, to some degree, those findings may overstate the effect of the evidence adduced by the respondents on those matters.  We do not think that that contention (even if correct, a matter which it is not necessary to pursue) demonstrates that the conclusion that to allow the use of the proposed evidence on the issue of liability would seriously prejudice the respondent was erroneous.  The material relied upon by the respondents, particularly having regard to the passage of time extending over some 13 years, was a sound basis for his Honour’s finding on the score of prejudice to the respondents.

62                  His Honour also addressed the reasons advanced by the applicant as to why the material in issue had not been put forward earlier.  He concluded that Mr Poche’s disputed evidence, including his reference to and reliance upon the LCRs, could have been filed by 3 October 1997.  Thus, in accordance with his ruling given in the reasons for decision published on 20 April 2001, it was necessary for the applicant to seek leave to rely upon that proposed evidence.  The potential effect upon the applicant’s case on liability by refusing the leave sought was also considered.  It was not that the applicant would be shut out from pursuing any case which it wished to pursue.  It was that the applicant would be unable to rely upon some evidence which it alleges would support its case.  But its case was, in essence, one which had been the subject of the TPC proceeding and was sought to be proved by establishing the extensive factual allegations contained in the FASC and its annexed Schedule of Incidents and in the witness statements filed by 3 October 1997, as explained in the AIPS.  That process identified the material relied on, including against the fourth respondent and in relation to the causes of action based upon contravention of s 46 of the TPA and for conspiracy.  As his Honour said:

“The case which it set out to make is still available to it.  The applicant was not, of course, and still is not, limited to the Trade Practices Commission’s evidence.  The AIPS is far reaching.  It must be borne in mind that the applicant was a participant in the relevant industry at the relevant time, and between the time that the TPC proceeding was commenced and October 1997 the applicant had ample time to consider evidence available from its own resources, including, as we now know from Mr Poche’s statement, the LCRs.”

63                  His Honour then addressed the use to which the applicant sought to put the challenged evidence on the issue of damages.  On that topic, his Honour regarded the use of the LCRs on a “macro level”, i.e. as part of the proof of the applicant’s overall rate of customer loss at a relevant period and not as individual instances of predation by one or other of the respondents, as important to the applicant’s case.  At the level of individual instances of alleged customer loss by predatory conduct, such evidence was not necessary as there were many such examples already identified in the AIPS.  On the other side of the scales, the intended use of the LCRs would not, his Honour concluded, have such serious consequences for the respondents as he considered that the respondents would not need to investigate each of the customer losses identified in the LCRs as they would necessarily have done if those LCRs were received as evidence going to liability. 

64                  Hence Orders 1 and 2 made on 12 June 2001 treated differently the reception of the disputed evidence of Mr Poche and the LCRs in relation to the issues of liability and damages.

65                  Those reasons for decision given on 4 June 2001 do not indicate that his Honour treated the proposed trial date as pre-eminent, so that the balancing of relevant considerations was inappropriately distorted.  His Honour is not shown to have erred by failing to take into account relevant considerations, or by taking into account irrelevant considerations, in the exercise of his discretion on that issue.  He addressed the issues of injustice to the applicant and to the respondent by refusing or granting the leave sought.  It is correct, as senior counsel for the applicant contended, that the evidence of the respondents as to the prejudice they might suffer if the leave sought were to have been granted is not overwhelmingly strong.  But, that does not demonstrate error on his Honour’s part in accepting that such prejudice would exist.  Indeed, certain of his Honour’s observations in his reasons for decision of 17 August 2001 referred to below indicate that he had not unthinkingly accepted that evidence.  The prejudice to which his Honour adverted was, as he said, also a matter of commonsense having regard to the elapse of time and to the consideration that the prolonged process of discovery would have to be undertaken anew with yet further extensive delays in the matter coming to trial.  It is not a matter for adverse criticism, but of obvious common sense, to observe (as his Honour did) that the admission on the issue of liability of the disputed parts of Mr Poche’s statement and the LCRs generally was “likely to have a significant effect upon the preparation for and hearing of” the case (reasons of 20 April 2001) and would have “massive consequences for the future hearing of” the case (reasons of 4 June 2001).

66                  We accordingly do not consider that Orders 1 and 2 of 12 June 2001 are orders which were made through some error of principle or by some failure to have regard to the prejudice to the applicant by the terms of those orders or by some other error which would warrant leave to appeal, even if the application for leave to appeal had been made within time.  It also follows that, in the light of the principles to be applied in considering whether to extend the time within which leave to appeal from Orders 1 and 2 of 12 June 2001, we are firmly of the view that such an extension of time should be refused.

(c)                Orders 1 and 2 of 26 September 2001

67                  These orders concern the refusal of Gyles J to permit the applicant to expand the particulars of its claim.  They were made in relation to material contained in witness statements filed after 3 October 1997, other than that material in the statements of Mr Poche and the LCRs with which his Honour had dealt in Orders 1 and 2 of 12 June 2001.  As Orders 1 and 2 of 26 September 2001 indicate, his Honour ruled only on the reception as particulars of those parts of the witness statements referred to in the Leave List and the 18 subsequent statements which referred to individual lost customer incidents going beyond those particularised by 3 October 1997.  Any other issues concerning the reception into evidence of those statements, to the extent to which the respondents objected to them, were deferred to the hearing.

68                  His Honour’s reasons for Orders 1 and 2 of 26 September 2001 are contained in the judgment given on 17 August 2001.

69                  Consistently with his ruling in respect to the disputed parts of Mr Poche’s statement and the LCRs generally, he considered that from the respondents’ point of view there could not be a fair trial of lost customer incidents first raised in the witness statements filed by the applicants in 2001 but relating to incidents extending back many years.  For reasons we have already given, we do not consider that his Honour is shown to have erred in taking that view.  Once that view was taken, it clearly was an important factor to which his Honour should have had regard, and did have regard, in the exercise of his discretion whether to grant the leave sought.

70                  His Honour also had regard to the absence of any “satisfactory or adequate explanation” from the applicant as to why the particular lost customer incidents were not brought forward as part of its allegations at a much earlier stage.  It is not contended by the applicant that this factor was one to which his Honour ought not to have had regard, or that it was not open to him to find that no satisfactory or adequate explanation for the delay had been given. 

71                  The third and fourth considerations to which his Honour had regard are to a degree interrelated.  They concern the consequences to the parties of allowing the additional lost customer incidents to form part of the applicant’s particulars of its claim, and then in turn the consequence to the proposed hearing date for the trial.  As noted above, his Honour accepted that the respondent would need to investigate in detail, and give discovery and inspection in relation to, each further individual customer incident particularised.  Whilst being somewhat cautious about accepting the respondents’ assessment of the amount of work so required, it is clear that he accepted that the additional work would be extensive.  He also regarded that work as necessarily diverting attention and resources from work towards preparation for the trial, which had from September 2000 been proposed to commence in early 2002.  The reasons why such additional work would be necessary are explained in greater detail in the reasons for decision given on 4 June 2001.  It was also explained then by his Honour why the undertaking of that additional work would imperil the trial date then proposed.  His Honour regarded the proposed widening of the case, with that consequence of delay, as being “an affront to justice” having regard to the facts that the events to which it relates occur from the late 1980s and that the proceeding had been on foot since 1995.

72                  It was appropriate, in our view, for his Honour to have had regard to those considerations.  His Honour was aware of the need to do justice between the parties.  He said:

“I am well aware that in many quarters the pendulum has swung against taking case management into account when considering discretionary interlocutory decisions and stress is laid upon the primary duty of the Court to do justice.  On occasion, this seems to be translated into doing justice to the party which is seeking the procedural interlocutory indulgence without regard to the many facets of justice, including the interests of the other parties to the litigation, of other litigants and of the public.”

His reasons for decision given on 4 June 2001 illustrate also that his Honour was of the view that the proposed widening of the applicant’s claim by reference to lost customer incidents did not give rise to a claim which it could not otherwise pursue but merely involved further evidence to support its existing claim, and further that its existing claim was already proposed to be made out in part by many lost customer incidents referred to in the AIPS.

73                  In our view, these are matters to which his Honour was entitled to have regard in considering the application to extend the particulars.  It is not the case that the Court must acquiesce in any application to amend a claim, however belatedly it is made.  The litigants and the community are entitled to expect that disputes brought before the Court will be dealt with fairly and efficiently.  The resources of the Court are not unlimited.  They must be made available to all litigants, so as to ensure as far as is reasonably possible that justice is delivered in as speedy a manner as the particular circumstances of the case warrant.  His Honour did not, as contended, treat the proposed hearing date as “sacrosanct”.  Rather, as we read his Honour’s reasons, he was conscious of the desirability of this complex litigation coming to trial in the near future.  That was entirely appropriate having regard to its history, and the period of years to which the events the subject of the proceeding relate.  The applicant accepted that, by allowing the proposed extension of its particulars by giving leave to rely upon the witness statements filed after 3 October 1997 to the extent that they deal with lost customer incidents, there would have been a very significant delay before the matter would again approach readiness for trial.

74                  We are not persuaded that, in deciding to make Orders 1 and 2 of 26 September 2001,  his Honour in fact gave pre-eminence to the need to preserve the trial date.  The desirability of the matter coming to trial in the relatively near future, having regard to the time when the events the subject of the action first occurred and to the extent and complexity of the detailed allegations, was a matter proper for his consideration.  But his Honour’s reasons disclose that that was but one of the factors to which he had regard, and he did not subordinate those other factors to the adherence to the proposed trial date.  In reaching his conclusion, we do not consider that his Honour failed to have regard to the nature and the extent of the prejudice to which the applicant might be exposed if it were not permitted to rely on the statements filed after 3 October 1997 referring to lost customer incidents not previously referred to in its particulars.  Nor do we consider that his Honour was in error in his perception of the nature and extent of that prejudice.  Indeed, we did not understand that the applicant’s counsel ultimately contended that he was.  Moreover, as we have also indicated above, we are not persuaded that his Honour regarded the trial date as immutable, irrespective of the circumstances.  When giving the applicant leave to rely on that part of Mr Poche’s statement which referred to previously unparticularised lost customer incidents and the LCRs referring to them, relating to the quantification of its damages, his Honour specifically recognised that one consequence might be that the trial could not proceed at the time then contemplated if the respondents were unable fairly to investigate and respond to those new allegations and otherwise to be ready for trial at the time proposed.

75                  For these reasons, we do not consider that the exercise of his Honour’s discretion miscarried in refusing to allow reliance upon those statements as specified in Orders 1 and 2 of 26 September 2001.

76                  We are also of the view that there is no error in his Honour’s deciding that, apart from refusing to permit the proposed extension of the applicant’s particulars by giving leave to prove individual customer incidents not referred to in the AIPS, the question of whether the applicant should have leave to rely on any statement of evidence filed after 3 October 1997 should be left to the trial.  At that time, his Honour will address whether that material is relevant having regard to the applicant’s case as pleaded and particularised.  If it is relevant, he will consider whether leave is necessary in the light of the reservation in parentheses in the 7 March 1997 Order.  If leave is necessary, the respondents’ counsel acknowledged that his Honour will largely be guided by whether the respondents are prejudiced in any real and material way by being served with the particular witness statement after 3 October 1997.

77                  In all the circumstances, including his Honour’s consideration of the interests of justice to the applicant, and the respondents, and generally, his Honour is not shown to have fallen into error.  We therefore refuse leave to appeal from Orders 1 and 2 of 26 September 2001.

78                  It should also be observed that his Honour has made no order which finally precludes the applicant from seeking to add to its pleading and particulars any further specific allegations at any time.  His Honour’s rulings relate to the proposed extension of the applicant’s particulars by adding new lost customer incidents in an endeavour to further establish its primary allegations as already particularised, including by a number of lost customer incidents referred to in the statements filed to 3 October 1997 and in the AIPS.  If there are particular and significant facts which the applicant wishes to prove at the hearing, not presently covered by its pleading and particulars as identified from the FASC with its attached Schedule of Incidents, and from the statements filed by 3 October 1997, as referenced in the AIPS, the applicant may still formulate any proposed amendment and apply for leave to amend its particulars in that respect.

(d)               The Trial Date Order

79                  The applicant accepts that it was appropriate for Gyles J, in September 2000, to fix a provisional commencement date for the trial and that that date should have been early 2002.  It complains, however, that the formal fixing on 26 September 2001 of 11 March 2002 as the date upon which the hearing would commence involved reviewable error.

80                  The basis of its contention is that it was or should have been apparent to his Honour on 26 September 2001 that the matter would not be ready for trial by that date.  The applicant refers to the ongoing process of discovery, including the orders made subsequently on 15 October 2001 which would result in further discovery by the respondents up to 14 December 2001, and to the further order made on 26 September 2001 which would result in discovery by a third party related to the first respondent by 31 December 2001.  That discovery was aimed principally at procuring access to documents sought by the expert accountant engaged by the applicant for the purposes of a proposed expert report on the applicant’s damages.  The timetable fixed for that report by an order made on 26 September 2001, in the light of the subsequent discovery orders, was the end of January 2002.  The timetable then for the respondents’ expert reports in response extended virtually to the eve of the trial date.  The applicant also points to its claims that it is entitled to considerable further discovery, and that those claims will yet further extend the time needed to prepare its case for trial properly.

81                  We do not consider that it has been shown that Gyles J erred in principle in making the Trial Date Order by allowing case management considerations to prevail at the expense of other considerations, including the need to provide to the parties a fair trial.  His Honour proposed that trial date in September 2000, and it is clear that subsequent interlocutory directions were aimed at ensuring that the parties would be ready for trial at that time.  In our view, that is a proper and sensible approach to the management of complex litigation.  It is common now, in the case of complex litigation, to fix a trial date tentatively and then to work backwards by giving directions from time to time aimed at securing the preparedness of the parties for that trial date.  It is also a common experience that in cases of urgency, even in complex litigation, the parties can prepare for trial in a relatively brief period of time and conduct the trial in a fair and satisfactory manner.  It is also a not uncommon experience, especially in cases of complex litigation where the trial might be expected to last many months, that the parties commence the trial even though their preparation has not been fully completed.  Judges, in such circumstances, have demonstrated a capacity to secure a fair trial for the parties by steps such as allowing a break after the opening, or a break in the course of the evidence from time to time, by allowing the opening to be given in stages (for example, separate openings on liability and damages) and by other procedures.

82                  There is no reason to think that Gyles J would not consider and, if appropriate, be responsive to any request by the applicant to adopt one or more of such procedures if he were satisfied that it was necessary or desirable in the interests of justice.  It should not be assumed that his Honour’s fixing of the trial date to commence on 11 March 2002 involved the applicant being required fully to open its case, irrespective (for example) of whether the respondents had then complied with orders for further discovery by them; and to proceed without any respite to adduce all of its evidence and then the respondents also presenting their openings and evidence without any interruption.  Nor should it be assumed that his Honour, in the light of further matters which might come to light hereafter, might not later entertain the deferral of the commencement of the hearing.  He has already set back the hearing by one month from the commencement date he first proposed in September 2000.

83                  It is important to recognise that the issue now to be addressed is whether the Trial Date Order was made in circumstances which would justify this Court in granting leave to appeal from that order.  For the reasons given, we are not persuaded that the Trial Date Order is attended with sufficient doubt as to its correctness through some error of law or that that order would work substantial injustice upon the applicant if leave to appeal from that order were refused.

84                  Accordingly leave to appeal from the Trial Date Order should be refused.

(e)                Orders 1 to 3 of 15 October 2001

Order 9 of 15 October 2001

Order 10 of 15 October 2001

85                  In our view, these aspects of the current application can be dealt with relatively shortly.

86                  The applicant contends that the evidence is undisputed that its independent expert accountant requires greater discovery from the first, third and fourth respondents than that for which Orders 1 to 3 of 15 October 2001 provide.  It draws attention to comments of Gyles J in his reasons for decision of 17 August 2001 to the following effect:

“1.       Discovery on an urgent basis should be given of all records at the macro level (if any) which are essential for the completion of the applicant’s expert report as to damages on the primary basis advanced by the applicant’s expert; discovery of records at the macro level which relate to the alternative check method should be made promptly;  there is to be no further discovery based on the evidence of Mr Jansen without further specific application.”

It also points out that, at his Honour’s direction, the accounting experts for the parties had conferred and that there was disagreement between those experts, reported to his Honour, as to whether or not it was necessary for the first, third and fourth respondents’ discovery of the documents the subject of those orders should be “at Business Entity level and above”.

87                  It is only that limitation upon the discovery made by the first third and fourth respondents by Orders 1, 2 and 3 of 15 October 2001 respectively in respect of which the applicant complains.

88                  In our view, leave to appeal from those orders should be refused.  The terms of each of those orders included that the further discovery so ordered be “in the first instance”.  That expression indicates that his Honour was not foreclosing an application for discovery of the categories of documents referred to below the level of the Business Entities as defined.  His Honour may well grant such an application if made.  He has decided only that, in the first place, further discovery at that level should be given.  He may expect that once such discovery has been given, and the discovered documents inspected, that will suffice for the preparation of the expert’s report by the expert accountant engaged by the applicant.  But the orders from which leave to appeal is sought do not preclude a further application for more extensive discovery of material if that expert then still considers it necessary.

89                  In approaching that issue in that way, we do not consider that Gyles J has been shown to have fallen into some arguable error of principle or has made orders which produce substantial injustice to the applicant so as to warrant the consideration of those orders by the Full Court.  Accordingly, leave to appeal from Orders 1 to 3 of 15 October 2001 should be refused.

90                  The dismissal of pars 4 and 6A of the applicant’s motion of 28 June 2001 by Order 9 of 15 October 2001 also does not foreclose the applicant from renewing an application for further discovery, if that proves necessary, in the future.  In our view, his Honour’s orders of 15 October 2001 were directed to “clearing the decks” of the outstanding motions for discovery.  His Honour’s orders of 15 October 2001 imposed upon the respondents the obligation to give further discovery “in the first instance” in relation to outstanding discovery issues.

91                  In that context, in our view, Order 9 of 15 October 2001 is not shown to give rise to any matter of principle which the applicant has shown might be erroneous or to work injustice to the applicant so as to warrant the attention of the Full Court.  We consider that the application for leave to appeal from Order 9 of 15 October 2001 should also be refused.

92                  It also follows that the application for leave to appeal from Order 10 of 15 October 2001, the costs order, should also be refused.

Orders

93                  In our judgment, the following orders should be made:

1.                  The application for an extension of time within which to seek leave to appeal from Orders 1 and 2 of 12 June 2001 be refused.

2.                  The application for leave to appeal from Orders 1 and 2 of 26 September 2001 and from the Trial Date Order be refused.

3.                  The application for leave to appeal from Orders 1, 2 and 3 of 15 October 2001 insofar as those orders limit the further documents to be discovered by the first, third and fourth respondents to “documents at Business Entity level and above” and from Order 9 of 15 October 2001 insofar as that order dismissed pars 4 and 6A of the applicant’s Amended Notice of Motion of 28 June 2001 and from Order 10 of 15 October 2001 be refused.

4.                  The notice of motion of the first and fourth respondents of 22 October 2001 be dismissed.

5.                  The notice of motion of the third respondent of 25 October 2001 be dismissed.

6.                  The applicant pay to the first, third and fourth respondents their costs of and incidental to the above applications.

Associate:

Dated:              7 December 2001