Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd

REASONS FOR JUDGMENT (EX TEMPORE) 1 This is yet another keenly contested interlocutory hearing, continuing the trench warfare which has characterised this case. I will assume a detailed knowledge of the case in these reasons and use the vernacular of the case. I shall deal first with the issues in the applicant's amended notice of motion filed in Court on 15 August 2001, which deals with the statements which have been filed by the applicant since October 1997. 2 The issue arises because of orders (by consent) made by Burchett J when the case was in his docket in 1997. I discussed the effect of those orders in judgments of 20 April 2001 and 4 June 2001. The short position may be summarised as follows: 1. Statements might be filed and relied upon without any leave if they are within the case pleaded and particularised and fall within the words in parenthesis in the 1997 orders. 2. Statements, or parts of statements, which cover matters not within the case pleaded and particularised cannot be relied upon unless leave is granted to widen the pleadings and particulars. 3. Statements which deal with matters within the case pleaded and particularised require leave if they do not fall within the words in parenthesis in the 1997 orders. 3 For reasons which sufficiently appear from the two earlier interlocutory judgments to which I have referred, my view is that the case for the applicant is presently limited to individual customer incidents which are dealt with in statements filed by 3 October 1997 and which are included in the AIPS. The statements which have been filed since 3 October 1997 include customer incidents going beyond those particularised in 1997 and to that extent require leave. In my view, the applicant should not be permitted to widen the particulars by reference to any customer incident referred to for the first time in statements served this year. My reasons for this (not necessarily in order of priority) are as follows: 1. For the reasons which I endeavoured to explain in my judgment of 4 June 2001, there cannot be a fair trial of customer incidents brought to attention in the case for the first time in 2001 which relate to matters occurring many years before. 2. The applicant has given no satisfactory or adequate explanation as to why there has been such gross delay in bringing these customer incidents forward. The applicant has not disclosed when it first became aware of the customer incidents in question, nor has it sought to explain in relation to any of them what difficulty there was in putting the evidence on in accordance with the order of Burchett J. So far as I know, the applicant may have known of each of them in 1997 but, for its own reasons, did not disclose them or follow them up until much later. 3. Widening the case in this way would necessarily involve the respondents in a diversion of attention and resources when their full attention is required to preparation of this already massive case for trial. In coming to this view, I accept that there is some substance to the submissions by counsel for the applicant as to the exaggeration by the respondents of the difficulties they face in dealing with these matters. There has been some crying wolf by the respondents. Nonetheless, the respondents are entitled to a fair opportunity of properly investigating any new case which is particularised. 4. Any widening of the case will have the tendency to imperil the proposed commencement of the trial in February 2002 or soon thereafter. The trial has been fixed for that time for very many months. I sketched the history of this matter in my judgment of 4 June 2001. It would be an affront to justice if the case, which, to a very large extent, will depend upon facts occurring in the late 1980s, and which has been managed in this Court since 1995, cannot be heard in 2002. 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. In addition to these concepts of justice, there are some legitimate case management considerations in this instance. There can be no reliable estimate of the length of the hearing of this matter. It will plainly occupy many months of hearing and it is not out of the question that it might take a year. Once the hearing is complete, I will then be faced with the task of writing a judgment, which, with the best will in the world, will obviously take some months. This kind of case cannot simply be slotted in for hearing at will. At the present time, I am scheduled to hear a significant interstate native title claim commencing in early 2003, which take some months to hear and decide, and which should not be disturbed. If the present case is not heard next year, it will probably have to be heard in 2005. 4 Turning to the other issues as to statements, I do not propose to go through them, ruling upon whether they, in whole or part, are within or without the words in parenthesis of the 1997 order and then decide whether, if not, leave should be given to call the evidence at trial. To do this in a reasoned fashion would take days of work on my part, which I do not have available. These decisions would normally be made at trial, where the real consequences of the evidence can best be judged. That is what will be done. It should not be assumed that an adjournment will be granted in order to deal with such of the statements as are admitted. If any particular statement or statements cause a real and serious, as opposed to an hypothetical, problem, it or they can be isolated and I will consider any application which is in relation to it or them, backed up by evidence going beyond solicitors' hypotheses. In saying this, I should not be taken to approve the approach on the part of the applicant to the production of this evidence. My concern about that was made evident enough during the course of argument. However, as counsel for the applicant reminded me on more than one occasion, I am not here to administer discipline to recalcitrant lawyers. 5 The respondents reserved their position in relation to some statements which were filed too late for their consideration. It seems to me that my ruling on those which have been argued should also dispose of the issues which arise on those statements, but if there is a need to examine any one or more of them for particular reasons that can be brought before me separately. 6 The remaining issues which have occupied argument are those arising on the applicant's amended notice of motion filed in Court on 29 June 2001, which primarily relate to discovery and the assessment of damages. The volume of material which has been read and the written submissions relating to these issues creates the danger of my becoming bogged down in detail in forming and expressing a judgment, requiring time which I do not have. The only practical course is to indicate my view in principle as to the disputed issues and it will then be for the parties to work out a regime for dealing with them which accommodates a hearing next year. A Registrar of the Court will be made available to assist if required. 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 methods should be made promptly; there is to be no further discovery based upon the evidence of Mr Jansen without further specific application. 2. The applicant is to file an expert's report as to the assessment of damages on the primary basis outlined by Mr Jansen within a period to be fixed which should not exceed six weeks or four weeks after the related urgent discovery (if any). Any revision of this in the light of his check methods can be filed in due course. 3. Any expert evidence which the respondents wish to tender as to the assessment of damages is to be filed no later than eight weeks after receipt of the first report from the applicant's expert. It also may be revised in the light of later information. 4. There will be no expansion of the categories of discovery, but it is to be understood that discovery must be made taking account of computer databases and other forms of electronic storage or archive, and the parties and their solicitors are responsible for ensuring that this is or has been done. 5. TNT Australia Pty Limited ("TNT") should give discovery as if it is a party, on the undertaking to pay costs which has been tendered, but a timeframe is to be fixed which is reasonable for TNT, and no adjournment will be granted due to any delay in production of documents from that source. 6. The question of conferences between experts may be revisited on further application. 7 In coming to these conclusions I have endeavoured to balance the legitimate interests of the applicant in obtaining material relevant to damages, with the necessity of having the matter ready for trial. I have taken into account the length of time that the expert has been retained and the failure of the applicant to satisfactorily explain the dilatory approach to the preparation of a basic element of a case which was commenced in 1995. 8 The proceeding will stand over to a date in the week commencing 27 August 2001 for short minutes to be brought in to give effect to this judgment. I will hear any argument as to costs then, but my disposition is to treat costs of these motions as costs in the proceeding.