VISY BOARD PTY LTD v THE HONOURABLE GARETH EVANS THE ATTORNEY

Federal Court of Australia|1984-03-15|Before: Sheppard JJ

een! hae eer ereee - _ renee eases mtn nate mo - te nee ee ne

Administrative Law - judicial review - appeal from the

dismissal of an application for an order of review - whether Minister abdicated 'responsibility to consider taking proceedings for alleged breach of s-50 of the Trade Practices Act - whether appeal court should interfere with exercise of

discretion by primary judge not to make the order sought.

Trade Practices Act 1974 ss. 29, 50, 77, 80, and 81

Administrative Decisions (Judicial Review) Act 1977 ss. 5 and

VISY BOARD PTY LTD v THE HONOURABLE GARETH EVANS THE ATTORNEY

GENERAL OF THE COMMONWEALTH "OF AUSTRALIA and ANOR.

Administrative Law - judicial review - appeal from the

dismissal of an application for an order of review of

decision of Trade Practices Commission to discontinue its

proceedings - whether decision amounted to an unlawful fetter or abdication by the Commission of its duty under the Trade

Trade Practices Act 1974 ss. 80 and 81 Administrative Decisions (Judicial Review) Act 1977: ss. 5 and 16

VISY BOARD PTY LTD v TRADE PRACTICES COMMISSION and ORS

Practice and Procedure - whether court as _ presently constituted should hear appeal - whether a fair-minded

observer might entertain a reasonable apprehension of bias by

Practice and Procedure - principles to be taken into account

in an appeal against the exercise of a discretion by primary

Federal Court Rules: Order 22 Rule 2(1){d); Order 35 Rule

A.P.M. INVESTMENTS PTY LTD v TRADE PRACTICES COMMISSION and ors

Practice and Procedure - appeal against refusal of primary judge to release undertakings - third such application for release - whether circumstances had arisen to justify the

fresh exercise of a discretion by the primary judge.

On appeal from a single judge of the Federal Court of

to Ninth Respondents as Trustees for Leigh-Mardon Pty. Ltd.) and Third to Tenth

On appeal from a single judge of the Federal Court of Australia.

On appeal from a single judge of the Federal Court of

) ) VICTORIA DISTRICT REGISTRY ) No. VG 308 of 1983 ) )

On appeal from a single judge of the Federal Court of

Australia. Between: A.P.M. INVESTMENTS PTY. LIMITED Appellant and 5 TRADE PRACTICES COMMISSION First Respondent ° and _

FRANCIS ELFVERSON (Fifth to Eighth Respondents as Trustees for Leigh- Mardon Pty. Ltd.) and ARTHUR KEVIN Second to Ninth

Coram: Sweeney, Lockhart & Sheppard JJ. Place: Melbourne

There are four appeals presently before the Court and it will be helpful to a separate consideration of each of them

to set out the history of the events which have given rise

Fibre Containers Ltd (FCL) is the target company for two competing takeover bids made in May 1983, the first by SCI Packaging Pty Ltd (SCI) and the second by APM Investments Pty. Ltd. (APM). The APM bid gave rise to two applications

to the court pursuant to s. 50 of the Trade Practices Act

1974 (the Act), one of which, application VG84 of 1983 was commenced by the Trade Practices Commission (the TPC) on 20 May 1983, seeking injunctions to prevent the takeover of FCL by APM, alleging that it would represent a breach of s. 50 of

the Act because of the addition it would make to the

substantial power already enjoyed by APM in the relevant markets in which APM, SCI and FCL are alleged to operate. In the second such application (VG82 of 1983) issued on 19 May

1983, SCI sought declarations that the acquisition by APM of

the FCL shares would constitute a contravention of s. 50 and that the pricing policy adopted by APM constitutes a contravention of s. 46 of the Act, and other consequential

Before commencing application VG84 of 1983, the TPC obtained undertakings to it by SCI and from APM to produce

the effect of maintaining the status quo until the matter

In an affidavit sworn on 20 May 1983 Mr Krascum, an officer of the TPC, said that enquiries on behalf of the TPC indicated that FCL was seriously considering each of the proposed offers, so that there was a serious prospect of a take-over of FCL by either SCI or APM. On 17 May 1983 the TPC had decided that APM should be notified that it considered APM's proposed acquisition of FCL would breach s.50 of the Act. There have been fluctuations in the

attitudes of the parties from time. to time but that opinion

When the application came on for directions on 23 May

1983, before Mr Justice Northrop, undertakings were given to

the Court on behalf of APM, SCI, SCI Operations Pty Ltd, and FCL, and also on behalf of: Leigh-Mardon Pty Ltd; Associate Nominees Pty Ltd; Francis James Burke, Peter Becker, and

William Gibson (as trustees for Leigh-Mardon Pty Ltd); and

Arthur Kevin Smith; all of whom are substantial shareholders in FCL and all but the last of whom are closely connected with Amatil Ltd. I will follow the course adopted by Mr Justice Woodward in referring to these substantial

shareholders in FCL, who are closely connected with Amatil

The recital to the corrected order of 23 May 1983 was in

"Upon the following undertakings being given by the First Respondent, S.C.I. Operations Pty. Ltd. and S.C.I. Packaging Pty. Ltd.:-

A.P.M. Investments Pty. Ltd., S.C.I. Operations Pty. Ltd. and S.C.I. Packaging Pty. Ltd. each by their respective Counsel undertake to the Court that they and any related corporations will not, prior to the hearing or determination of Application No. VG84 of 1983 or until further order, acquire or take any further

steps to acquire any shares in the capital of Fibre Containers Ltd.

AND upon the following undertakings being given by the Second to Ninth Respondents:- +

that until the determination of these proceedings or further order -

The Third to Ninth Respondents will not sell to or accept any offer from A.P.M. INVESTMENTS PTY. LTD. (A.P.M.) (or any related corporation of A.P.M.) or S.C.I. PACKAGING PTY. LTD. (S.C.I.) or any related corporation of S.C.I.) to purchase any shares held by them or

The Second to Ninth Respondents will not aid, abet, counsel or procure A.P.M. (or any related corporation of A.P.M.) or S.C.I. (or any related corporation of S.C.I.) to acquire directly or indirectly any shares in FIBRE CONTAINERS LTD. or in any way be knowingly concerned in or a party to any = such acquisitions.

AND subject to the making of an appropriate Declaration by the National Companies and Securities Commission to enable effect to be given to the undertakings herein pursuant to the Companies (Acquisition of Shares) (New South Wales) Code."

The order then set out the directions which were given.

(The first respondent was APM, the second respondent was FCL, and the third to eighth respondents were Amatil. The

The directions given on 23 May 1983 were designed to enable the trial of the application to commence on 18 July 1983. Various other directions hearings and interlocutory applications took place, and appeals were instituted, with

In its amended statement of claim the TPC gave particulars of the markets which it said were involved and

on en gn en ee a ne re ee cree rn nee ee fe rere ee ee wee oe oe

APM owns 40% of the issued capital of James Hardie Containers Limited, a consumer of approximately 25%

APM owns the whole of the issued capital of Containers Limited, a consumer of approximately 2.2%

APM owns 6 of the 8 mills which produce paperboard in Australia, which 6 mills represent approximately 72% of the paperboard manufacturing capacity in

Detailed particulars of these allegations were set out under the headings, "Distribution", "Pricing Policies" and "Acquisitions". APM is in a position to control or dominate the

APM proposes to acquire all of the issued shares in

That acquisition would, or would be likely to substantially strengthen the power of APM to control or dominate the paperboard market in contravention of s. 50(1)(b) of the Act and/or result in APM being, or being likely to be in a position to control or dominate the paperboard

Further or in the alternative, the acquisition of the FCL shares would result in APM being, or being likely to be in a position to control or dominate

Amatil own approximately 71% of the issued capital

otherwise amended, APM admitted that it proposed to make : : offers to the shareholders of FCL to acquire their shares,

and this intention on its part has never wavered. It is

unnecessary for present purposes to give details of its

stated willingness to increase the amount offered for each

In their amended defence dated 29 July 1983, Amatil stated that if and when APM made offers to acquire all of the issued capital of FCL they would consider whether or not they would accept those offers in respect of the shares in FCL which they owned or held, which amounted to 74% of its 1ssued

capital. By leave, given by consent on 31 January 1984,

"The AMATIL Respondents admit that the Firstnamed Respondent... [A.P.M.] . . . has made an offer to purchase all the issued shares in the capital of Fibre Containers, but neither they nor any one of them intend to accept such offer or any other offer by the Firstnamed Respondent to purchase the said shares or by any other means to permit the Firstnamed Respondent to acquire all or any of the said shares held or beneficially owned by any of the AMATIL shareholders."

This amendment reflected the changed attitude of Amatil to the APM offer, of which more anon. The change in turn

led, as we shall see, to the TPC indicating 1ts abandonment ef its allegation that FCL threatened and intended to

recommend to its shareholders that they accept APM's offer.

On 20° July 1983 Woodward J had before him a notice of motion, in VG84 of 1983, by FCL, seeking that it be released from paragraph 2 of the undertaking which it had given to the court on 23 May 1983 insofar as 1t related to SCI, to enable it to "sound SCI out" about the possibility of a revised offer to it by SCI. FCL's application was opposed, for aiffering reasons, by the TPC, APM and SCI, and it was

On 27 and 28 July S.C.I's application for a joint hearing of VG82 of 1983 and VG84 of 1983 was heard by

By further notice of motion dated 11 August, which was heard by Woodward J. on 17 August, FCL and Amatil sought orders that they be released from their undertakings in relation to SCI, and that SCI and its related corporations be released from the undertakings given by them to the court on 23 May 1983. The TPC stated that it did not oppose these releases, provided that FCL and Amatil remained bound by

their undertakings not to negotiate with APM until the TPC's

s. 50 proceedings had been determined. SCI supported the

His Honour published reasons for judgment on the motion on 22 August 1983 but postponed making any orders until 24 August 1983 when he ordered the release of all parties from the undertakings given on 23 May 1983, and accepted a fresh

undertaking from FCL and Amatil not to finalize any proposed

APM appealed against the order made on 24 August 1983, and on 21 September 1983 a Full Court of this court constituted by Smithers, Fitzgerald & Jenkinson JJ allowed

the appeal and set aside the order of 24 August 1983.

On 10 October 1983 APM was given leave to amend its defence filed in VG84 of 1983. The substance of the amendment, as set out in paragraph 17A, was to foreshadow

that, if it were successful in acquiring the shares in FCL,

APM would dispose of about half of FCL's productive capacity.

This idea of splitting FCL was first considered by APM in early September as a course to be pursued 1f the Full Court were to dismiss the appeal against the order of 24 August 1983 and release all undertakings. APM had discussed the proposal with the TPC and had been encouraged by the TPC

reaction, although the TPC had indicated that, before

expressing any approval, it would need to know who was to

APM did not tell FCL, Amatil, or SCI of the splitting proposal and in the event the Full Court allowed the appeal. However APM then decided that it would seek from FCL and Amatil their reaction to its proposal to split the company after acquisition. APM's object was to secure a generally agreed release from all undertakings, and enable a prompt result to be achieved by a free bidding match in the market place, thus avoiding the necessity for further protracted

litigation. The proposal was eventually totally rejected by

Amatil, and APM applied to amend its defence again by

deleting all reference to such a proposal. This amendment

Amatil reacted strongly to the news of APM's plan to split FCL's capacity, if its offer were accepted. In his affidavit of 12 October 1983, Mr Peter Becker, Chairman of Directors of FCL and of Leigh-Mardon Pty Ltd anda director

the First Respondent [APM] including the heading thereto 1s in the following terms:

'INTENTIONS OF INVESTMENTS REGARDING THE BUSINESS OF THE COMPANY

It is the present intention of Investments - (a) to continue the business of the Company in its present basic form;

ree en ren ae ee ge ne ere tee -- - es --- wee ewe eee

(b) not to make any major changes to the business of the Company, including any redeployment of the fixed assets of the Company;

(dad) to continue the employment of the present employees of the Company.'

The intentions of the First Respondent, as expressed in paragraph 17A of its Amended Defence are directly contrary to the intentions of the First Respondent as expressed in sub-paragraphs 16(a) and (b) of the said Part A Statement and represent a significant and fundamental change in the intentions of the First Respondent as

In my opinion publication of the intentions of the First Respondent as expressed in its Amended Defence will have an extremely serious adverse effect on the business of the Second Respondent [FCL], upon the morale of its employees and upon the relations of the Second Respondent with its customers and consequently its ability to compete effectively in its market. In this regard I have read the affidavit of George Castan, a Director of S.C.I. Operations Pty. Limited and S.C.1I. Packaging Pty. Limited dated 7th October, 1983 and filed herein and agree with the opinions expressed therein as to the impact which the publication of the intentions of the First Respondent is likely to have on the business of the Second Respondent, the value of that business and upon its employees.

In all of the circumstances and having regard to the intentions of the First Respondent as expressed in paragraph 17A of its Amended Defence and to the contents of the affidavit of Stanley David Martin Wallis sworn on 28th September, 1983, the Third to Eighth Respondents have now decided not to sell their shares in the Second Respondent to the First Respondent. That decision has been made with the knowledge of the contents of an affidavit of Stanley David Martin Wallis which I am informed and verily believe the First Respondent intends to file in this Honourable Court tomorrow.

I say further that when on 23rd May, 1983, the Second to Ninth Respondents gave to this Honourable Court the undertakings more particularly set out in the Order of the Honourable Mr. Justice Northrop of the same date, they did so having regard, inter alia, to the circumstances then prevailing which circumstances included the intentions of the First

Respondent as expressed in its Part A Statement identified in paragraph 8 of this my Affidavit. The intentions of the First Respondent as now expressed are such that, when added to the circumstances referred to in my affidavit of 1lith August, 1983, filed herein and in the affidavit of Francis James Burke sworn on the same date and filed herein, the overall circumstances have now so changed that had they been known to or reasonably foreseeable by the Second to Ninth Respondents on 23rd May, 1983, which they were not and could not be the said undertakings would not have been

given." Mr Wallis the managing director of APM, in his affidavit

of 28 Septembér 1983, had set out APM's decision to sell

Mr Castan, a director of SCI, in his affidavit of 7

October 1983 referred to a letter dated 28 September from the solicitors for APM to those of FCL advising them of the proposed amendments to APM's defence, setting out the plan to dispose of about haif of FCL's business and continued as

"11. 2.0.2. + « « « The application foreshadowed in that letter was the first time there had been any indication by APM that it proposed that if it acquired the whole of the shares in FCL it would break up or dismember FCL's business.

I consider that the implications of the aforesaid statement of intention by APM are enormous. The nature of the cardboard container industry is such that if the proposed amendment, setting out as it does APM's intentions, becomes a matter of public knowledge the business of FCL will suffer immediate and irreparable damage as it would lose customers who would wish to ensure that their contracts for future purchases were made with a company which was going to continue carrying on business in the form Known to and accepted by the customer. In my opinion the ways in which FCL will suffer damage if

this publicity occurs are many and various and I have no doubt that the loss of trade by FCL will be massive and quick. I estimate that within six months the trade of FCL will have been substantially reduced and that this reduction will probably occur progressively over that period. In addition I believe that many employees will seek other employment because of the necessary uncertainty as to the future of the business of FCcL.

When the undertakings were given to the Honourable Mr. Justice Northrop on the 23rd May, 1983, and at the time SCI made uts previous application to be joined as a party in these proceedings the factual basis underlying the proceedings was much different from that which will exist when APM's intentions are made public. At that time SCI and APM were proposing to bid for the whole of the issued capital in FCL on the basis that FCL would continue in the form and carry on 1ts business as it had hitherto. The proposed amendment by APM contemplates a dismembering of FCL which has significance not only in relation to the attractiveness of FCL to a bidder, but also in relation to the effect of section 50 of the Trade Practices Act in such circumstances. Whilst a target company (the business of which will be carried on by the acquirer) will suffer substantial damage "if it so remains a target company for a lengthy period a target company in respect of which a potential acquirer states 1t will be cut in half will suffer a much greater loss of trade very quickly. _ At the time of giving the said undertakings SCI had assumed that if APM acquired the FCL shares it would retain the whole of the business of FCL and I believe that was the assumption of most people in the paperboard industry. Had SCI know at the time at give its undertakings that APM would announce its intentions to break up and dismember FCL's business this would have been a vital factor in SCI's consideration in relation to its offer to acquire shares in FCL and the giving of the undertaking.

In consequence of the amendment I am informed by SCI's legal advisers and do verily believe that the evidence which will need to be called in the application and the issues which will need to be canvassed will be substantially increased as it will be necessary for the matter to proceed on the basis of alternative analyses, namely:

{a) The identification of the market and the position in it if APM acquires the whole of the

issued capital in FCL and maintained its business in its present form.

(ob) The identification of the market and the position in it where 50% of the business of FCL is) in some way dismembered and 'sold' to an as yet indeterminate and unidentified purchaser.

As SCI 1s not only the proprietor of a paper mill,

put also. through an interest in Cargo Newpak, a company with an interest in the converting industry

tn which FCL operates, SCI not only has an interest in the issues which arise from the proposed amendment but also may be affected if any decision or determination of the Court is made on the basis of the proposed amendment.

Further, having regard to the change in circumstances brought about by the proposed amendment, SCI submits that it 1s appropriate and, indeed necessary, for the parties who gave the undertakings on the 23rd May, 1983, to be released from those undertakings as the factual substratum which brought about those undertakings has now

A third application for release of the undertakings

given to the court on 23 May 1983 was made by SCI by notice of motion dated 7 October 1983. Whereas the TPC had opposed the first application for release, and had not opposed the second application for release so long as FCL and Amatil remained suitably bound by undertakings not to negotiate with or sell to APM, it consented to SCI's application for all undertakings to be lifted. However senior counsel for the TPC stated that if APM were to acquire the FCL shares, the TPC would seek divestiture. Woodward J began hearing the motion on 13 October 1983. The application was supported by

On 17 October 1983, while the third application for release was proceeding before Woodward J, the board of directors of Amatil Limited passed the resolution "that the Company will not sell its shares in Fibre Containers Ltd to APM Investments Pty Ltd or to any of its related corporations

at any time or in any circumstances or for any price."

In the course of the hearing of the third application for release, it was submitted on behalf of SCI and FCL that the TPC should discontinue VG84 of 1983 since Amatil's

decision not to sell its shares to APM had rendered the

application unnecessary and academic. Mr Williamson OC., for

TPC, indicated to his Honour that his client would not take

"The view of the Commission is that the question of futility is something to be- judged by the court. The Commission can have its own views, whatever they may be, but its own views may well be wrong. If there were a decision by this Court arising out of the present application which indicated futility, well that of course is something which the Commission must then respond to. Indeed, if there are any indications by the Court in terrorem one way or the other the Commission would clearly have to give the most' serious consideration to any such indications.

That is not to say that the Commission wishes to avoid making a decision if one is called for but its position is that its overwhelming desire is to do what seems to be fair to ali the interests that are involved. But within the context of the main application, that is certainly if it is taking the initial proceedings and certain things follow from that, and that means inevitably the Commission 1s opposed to APM so long as APM proposes to proceed, but in that context wants to follow such course as is fair to APM, as is fair to

Smorgon, as is fair to FCL, 1t appears that is insoluble to them."

FCL and Amatil indicated a willingness to consent to judgment. for injunctions in the terms sought by the TPC in its application in VG84 of 1983, but the TPC declined to move

Prior to reserving judgment on 19 October 1983 his Honour had said that if, having had a chance to study the material that had been put to the court the TPC wished to

take any different stand from the one it had so far indicated

"and to firm up its position one way or the other", he would

not regard it as discourteous to the court if an indication

of that were given, so that the court could be reconvened.

The TPC re-stated its position in a telex addressed to several parties, including Visy Board Pty Ltd (VB) and dated 27 October 1983, when the hearing of the third application for release had been completed but before his Honour had delivered judgment. The major field of VB's operation was

the conversion of paper board into fibre containers. It stated, inter alia:

"As you are aware, the Commission has not opposed the release of all parties from their undertakings in the proceedings recently before Woodward J. The Commission did however state that if the judge were minded to release the parties 1t would wish to

preserve its option to proceed for divestiture if APM were successful in acquiring FCL. The judge has reserved his decision on the question of the undertakings. You may be aware also that during the course of these recent proceedings the suggestion was made that the Commission should discontinue its proceedings against APM because FCL had resolved not to sell to APM and discontinuance would be followed by immediate sale to SCI. The Commission stated to the court and confirms with you that it is not its intention to discontinue its proceedings against APM and that 1f APM is released from its-undertaking and proceeds to acquire FCL it

will proceed for divestiture pursuant to section 81 6£f the Act. The Commission would not institute

November 1983. In his reasons for judgment his Honour said:

"Although the role of the TPC has now been adverted to in open court, I do not believe that I should say anything to influence it in the performance of its statutory functions, and nothing I have said should be read as having that intention."

VG249 of 1983, the appeal" by SCI from Woodward J's judgment of 15 November 1983, came on for hearing on 13 December 1983. On 12 December 1983 FCL and Amatil filed in VG249 of 1983 a notice of motion returnable before the Full

Court on 13 December 1983. It sought the following orders:

"lL. That pursuant to Order 3 Rule 3 of the Federal Court Rules time for service of this notice of motion be abridged.

. 2. An injunction restraining the fourth to tenth ' respondents -- [Amatil and Arthur Kevin Smith] -- by themselves, their servants or agents or otherwise howsoever from entering into a contract to sell, directly or indirectly any

shares registered in their names ar the names of one or more of them in the capital of Fibre Containers Limited to the second respondent. -- [ie. APM] --.

An injunction restraining the third respondent -- [FCL] -~ by itself, its servants or agents or otherwise howsoever from aiding, abetting, counselling or procuring or in any way being directly or indirectly, knowingly concerned in or a party to:-

(a) the acquisition by the second respondent of any shares in its capital or any of its assets;

(b) the sale by the fourth to tenth respondents or any of them of any shares in its capital to the second respondent.

Paragraphs 2 and 3 were in the same terms as the final relief sought by the TPC in VG84 of 1983 against FCL, Amatil

During the course of opening the SCI appeal on 13 Decenber 1983, Mr O'Callaghan Q.C., for SCI, referred to the Amatil resolution of 17 October 1983 and again submitted that if it was firm it had rendered VG84 of 1983 futile and the

After the luncheon adjournment on 13 December 1983 Dr Griffith Q.C. for FCL and Amatil referred to the statements

made before Woodward J that FCL and Amatil would submit to

judgment by way of injunctions in the terms sought by the TPC

"But the difficulty is the commission up until the time we proceeded to court this morning has still not indicated either it was prepared to make terms of settlement with us whereby we bound ourselves -not to sell to APM - and I indicated as a matter of open offer to the commission we are prepared to do

prepared to give an undertaking to the TPC "not to sell to APM ever". Alternatively, they were prepared to give an undertaking that they would not sell to APM without giving to the TPC whatever notice was stipulated. He then referred to the notice of motion filed on 12 December 1983 in which FCL

and Amatil sought to move for judgment against themselves because of the TPC's reluctance to so move. He stated that if the TPC were to move for judgment against his clients, his clients would consent to such a judgment and would pay the TPC's costs, including any costs which the TPC may be ordered

to pay in favour of another party. He desired to "tender a

letter written yesterday by the Crown Solicitor to the Trade Practices Commission which states what is in effect my

Mr Williamson responded by indicating that the TPC desired to move for judgment against FCL and Amatil with the orders for costs proposed by Dr Griffith and for leave to

discontinue against APM. Mr O'Callaghan then applied for an

adjournment of the hearing of the appeal to enable the forshadowed motion by the TPC to be brought before a single

judge. The adjournment was granted over APM's opposition.

On 14 December 1983 the TPC took out two notices of motion in VG84 of 1983 both made returnable on 15 December. In the first notice it sought the relief which Mr Williamson had foreshadowed to the Full Court on 13 December 1983 that he proposed to seek. The second notice of motion sought leave to discontinue against all parties with the same order for costs against FCL and Amatil. On 14 December 1983 when it was realised that s. 80(1) of the Act aid not permit a consent judgment unless the court could be satisfied that the facts justifying it had been established, which was not possible without an extensive hearing, the TPC decided to seek leave to discontinue against all parties as set out in

When the matter came before Woodward J on 15 December 1983 the TPC proceeded only on its second notice of motion. Discontinuance of proceedings is dealt with by Order 22 of the Federal Court Rules, the relevant rules of which provide that, at the stage reached in VG 84 of 1983, after the close of pleadings, a party making a claim for relief may " aiscontinue a proceeding so far as concerns the whole or any

part of any part of any claim for relief made by him at any

On 15 December 1983, before Woodward J, Mr Williamson ' referred to the Amatil resolution of 17 October and to the statements made to the Full Court by Dr Griffiths on 13 . December, and informed the Court that in recognition of what the TPC perceived to be the commercial reality of the " situation, it no longer wished to continue its proceedings to ' restrain APM, which will not, by reason of Amatil's attitude,

APM opposed the application arguing that leave to |- discontinue should not be granted or only granted on the most stringent terms. Mr Shaw Q.C. submitted that if leave were to be granted to the TPC it should be on the condition, inter } alia, that the TPC undertook not to take any fresh action against APM if APM succeeded in acquiring FCL shares.

Counsel for the TPC informed his Honour such a condition

would not be acceptable to the TPC. It was prepared to surrender any right to pursue an injunction to prevent the an acquisition of FCL shares or assets by APM but it was not prepared to give up the right to bring an action for

Woodward J, in his judgment on the application for Leave

"I am satisfied that the application should be granted, on terms that TPC pay APM's taxed costs and undertakes not to institute any further proceedings for injunctions, or otherwise seek, to prevent the purchase of shares in FCL by APM. The words 'or otherwise seek' are within the spirit, though not the words, of the undertaking offered by TPC. I think some such addition is necessary. Such an undertaking would not prevent a later application for divestiture if TPC saw fit to bring it. I shall make the agreed order for costs against the second to eighth respondents.

Because I believe the parties should have an opportunity to consider the precise wording of the undertaking to be given by TPC as a condition of

"leave to discontinue, I shall make no formal order

now. I shall sit again at a time convenient to the parties."

Later on 22 December 1983, after the parties had agreed

upon the precise wording of the undertaking to be given by

"UPON THE TRADE PRACTICES COMMISSION UNDERTAKING to the Court that iat will not, prior to the expiration of twelve (12) months after the date upon which it files a notice of discontinuance herein and thereafter, until further order, institute any further proceedings seeking injunctions restraining the acquisition by A.P.M. Investments Pty. Limited er any company related thereto (hereinafter referred to as ''APM') of shares in Fibre Containers Limited and will not otherwise seek to prevent such an acquisition, save that the Trade Practices Commission does not hereby give any undertaking not to institute proceedings seeking orders in the event that such an acquisition takes place, for the divesture by A.P.M. of any shares acquired by it, direcly or indirectly, in Fibre Containers Limited,

The Applicant have leave to file a Notice of Discontinuance of the Application herein.

The costs of the firstnamed Respondent of and incidental to the Application herein and

Applications No. VG 150 of 1983 and No. VG 249 of 1983 in this Honourable Court, (including all reserved costs) be taxed and when taxed paid by the Applicant.

The costs of the Trade Practices Commission of and incidental to the Application herein and Applications No. VG 150 of 1983 and No. VG 249 of 1983 in this Honourable Court (including all reserved costs) be taxed (if not otherwise agreed) and when taxed (or so agreed) paid by the second, third, fourth, fifth, sixth, seventh and eighth Respondents together with any costs which the Applicant may have to pay to the firstnamed Respondent pursuant to

APM has appealed against this judgment of Woodward J.

and that appeal (VG308 of 1983) as one of the four appeals

with which we have to deal. By order of Woodward J, this

judgment was stayed until the hearing and determination of

In the course of the hearing before Woodward J on 15

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (505 paragraphs)

Parties

Cases Cited (5)