FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Dataline.net.au Pty Ltd

[2003] FCA 1027

Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v DATALINE.NET.AU PTY LTD, AUSTRALIS INTERNET PTY LTD, WORLD PUBLISHING SYSTEMS PTY LTD, JOHN LYNDEN RUSSELL, NEALE FRANCIS BANKS, JEFFERSON LITCHFIELD, SARA MARY MOORE

Q277 OF 2001

KIEFEL J

25 SEPTEMBER 2003

BRISBANE

THE COURT ORDERS THAT:

1. The first, second, third, fourth and seventh respondents (‘the respondents’) provide to the applicant within twenty-eight days:

(a) the list referred to in paragraph 2 of the orders made in these proceedings on 9 May 2003; and

(b) the documents referred to in paragraph 3 of the orders made in these proceedings on 9 May 2003;

failing which the respondents’ defence filed and served on 3 May 2002 be struck out.

2. Upon the applicant filing an affidavit in the registry deposing to any failure of the respondents to comply with paragraph 1, the matter be listed for trial on a date not less than three months thereafter and subject to leave of the Court:

(a) the trial proceed by way of affidavit evidence only;

(b) the applicant’s affidavit evidence for the trial be filed on or before a date seven days prior to the commencement of the trial;

(c) on or before 4.00 pm on the day before the commencement of the trial the applicant provide to the Court:

(i) a succinct summary of the relevant facts;

(ii) a chronology of relevant events;

(iii) an outline of submissions;

(iv) a draft order;

(v) a list of authorities and copies of the authorities with the relevant passages highlighted.

3. The respondents to pay the applicant’s costs on the motion.

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

REASONS FOR JUDGMENT

1                     On 10 December 2002, Drummond J ordered by consent that the first, second, third, fourth and seventh respondents (‘the respondents’) discover documents by way of list by 10 February 2003. The list was not provided until 12 March 2003 and it was, as is now conceded, incomplete. Correspondence followed in which the respondents’ solicitors asserted that these were the only documents their clients had. The ACCC did not accept that. In subsequent correspondence, the respondents’ solicitors asserted not that they had no such documents but that discovery was limited to particular records. They later wrote and insisted that regardless of what orders were made, discovery be so limited.

2                     On 9 May 2003, I made further orders as to discovery by consent. I ordered the respondents file and serve a list of documents that complied with his Honour’s order by 23 May 2003. More specifically, I ordered the respondents to discover all the documents in the categories which were supposedly contentious; that order was not complied with. It is to be observed that the consent order followed correspondence between the parties where the time frame for compliance had been discussed and agreed. The ACCC’s solicitors wrote in June and August 2003 regarding the non-compliance but received no response.

3                     No affidavit explaining it has been filed. Rather the respondents submit simply that the first to fourth respondents in whose possession, custody or power, the documents are said to be have ‘inadvertently failed to comply and the documents are numerous’. The latter fact would have been apparent on the last two occasions when the matter was before the Court.

4                     The ACCC’s motion was filed on 10 September 2003. On 19 September 2003, the respondents’ solicitors offered to consent to orders that the respondents would comply within 28 days. In the event of default, they proposed a different sanction; namely that the documents taken during execution of the Anton Pillar orders on 25 January 2002 and held by the Court be made available to ACCC. The respondents said that they are the documents (computer records) which would be discovered in any event. Costs were also offered.

5                     I am not told that there has been any step taken towards compliance since 10 September. The ACCC however pursues its application for orders which would be self-executing. They seek an order that failing compliance with this order, the respondents not be permitted to defend in accordance with their defence filed on 3 May 2003 and the matter proceed to judgment.

6                     The respondents submit that this sanction is not appropriate and what they have offered is sufficient. The respondents’ non-compliance is not limited to the occasions referred to above. As the ACCC points out, there have been 29 orders made since the proceedings were commenced in December 2001 and 28 occasions of non-compliance by the respondents. The action should have proceeded much more quickly than this and to have been ready for a hearing. The delays are serious and the Court’s authority has apparently not been taken seriously. The respondents’ history of non-compliance and their evident attitude to compliance with orders for discovery satisfy me that they are unwilling to co-operate with the Court and the applicant to bring the matter to trial. The discretion conferred by O 10, r 7, is therefore enlivened: see Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388. The question is whether it should not be exercised, in light of the respondents’ offer.

7                     It is not obvious to me that the records in Court are all that would be made available by way of discovery. I regrettably have some doubt about the reliability of the respondents’ assertion. In these circumstances, I do not consider that the respondent should dictate to the Court what is sufficient for their purposes. Seen in its true light, the offer is high handed. It is consistent with the respondents’ attitude to the orders of the Court. Indeed, the offer of it makes me wonder whether the respondents intend to comply with the order.

8                     I have taken into account the fact that some discovery has taken place and this is the balance of it. It is not, however, insignificant. It does not alter the serious defaults of the respondents. The respondents should, however, be given a sufficient period of time for compliance if a self-executing order is made as I intend to do. I have discussed this with their representative. The period in which it is said they are able to comply is twenty-eight days. There will be orders in terms of pars 1 and 2 of the notice of motion save that the time for compliance in each case will be twenty-eight days. I further order the respondents to pay the applicant’s costs on the motion.

Associate:

Dated: 9 October 2003