W.A. Pines Pty Ltd v. Bannerman, Ronald Moore [1980] FCA 16

On 13 November 1979 Fisher J. gave directions for the hearing of the application, including interlocutory steps to be taken. In the main, and to the extent that they are no longer prospective, those directions have been complied with.

What is still outstanding is the matter of interrogatories and discovery, and also one aspect of the particulars sought by the applicant of the respondent's

The directions hearing was adjourned until 22 January 1980. Shortly before that date the respondent filed notice of motion seeking to have a substantial part of the applicant's claim stayed or dismissed and in consequence thereof the striking out of two paragraphs of the statement of claim.

The balance of the directions hearing and the notice of motion were heard together. To some extent they overlap and bear upon each other. To determine these matters it is necessary to look first at what is alleged against the respondent. In essence, the applicant contends that the notice calling upon it to furnish information and to produce documents is ineffective because it fails to meet the requirement of s.155 that the person giving the notice -

"has, reason to Lelieve that a person is capable of furnishing information, producing documents or giving evidence relating to a Matter that constitutes, or may constitute,

Counsel for the applicant submitted that although s.155 does not oblige the Chairman to disclose the basis of his reason for belief, a notice may in its terms purport to do so. In so doing it may provide material for an assertion that the author did not have the state of belief required by the Act. Counsel amplified this submission by drawing attention to the language of the notice which speaks of the Chairman having reason to believe that the applicant is capable of furnishing information and producing documents relating to matters

that constitute or may constitute contraventions of the

In particularising those contraventions the notice speaks further of the applicant engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. By this use of what counsel described as "disjunctive language" it was said that the respondent had failed to define his reason for belief in the terms required by s.155.

I shall deal with this argument later but for the moment continue to describe the issues between the parties. Paragraph 6 of the statement of claim pleads by way of alternative that the notice was issued without the respondent having reason or any legally sufficient reason to believe any of the matters set out in s.155. Asked to particularise this allegation the applicant answered that it involved matters of evidence and law, not matters of pleading, and that the applicant was not required to give particulars. There the matter rests.

For completeness I mention the remaining paragraphs in the statement of claim. Paragraph 7 attacks the notice upon a range of grounds, asserting that it is vexatious, fishing, too wide, oppressive, unreasonable, too remote, uncertain, unclear and inquires into matters of law or requires the making of judgments on questions of law. Paragraph 8 pleads that the requirements of the notice or some of them exceed the ambit of and power conferred by s.155.

Counsel agreed that the matters raised by paragraphs 7 and 8 of the statement of claim were

essentially matters of law to be determined by reference

to the notice itself and not to other evidentiary material. Counsel for the applicant submitted that the respondent's motion to strike out paras.6 and 7 of the statement of claim should not be disposed of until the outcome of the application for discovery and interrogatories was known. Only then, it was

said, would the court have the whole of the evidence

before it, the evidence otherwise having been presented in affidavits already filed.

It may well be true that at this stage the court has not the whole of the evidence before it, but it does not follow that the motion is premature. An application based upon failure to disclose a reasonable cause of action is an application relating to the pleadings.

that which arises under the modern system of pleading in England upon an application to strike out a statement of claim as disclosing no reasonable cause of action. There the question is whether it would be open to the plaintiffs upon the pleadings to prove facts at the trial which would

constitute a cause of action." (Mutual Life Ltd. v. Evatt (1971) A.C.

the respondent's motion. The issues properly joined between the parties will then be known and the matter of discovery and interrogatories more readily considered.

I refer again to the two causes of action emerging from paras.5 and 6 of the statement of claim. As already mentioned para.5 pleads a lack of definition in the notice, inconsistent with the state of belief required to attract

the operation of s.155 of the Trade Practices Act. It is

a submission which turns upon the language of the

section and upon the terms of the notice itself. As

"the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion". (General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) TI? CLR. 125 at pp.178-129) .

The issue with regard to para.5 of the statement of claim is a narrow one. It has been argued by counsel and it is appropriate to deal with the application so far as it relates to that paragraph. In my view, the applicant's disjunctive argument cannot succeed for it puts too narrow and artificial a construction upon the language of s.155. The powers conferred by that section are given for the purpose of enabling the Commission to perform its functions under the Act, the range of which was described by Bowen C,J, in Riley McKay v. Bannerman (1977) 15 A.L.R. 561 at pp.565-566.

as "disjunctive", a term which implies alternatives - the

making of a choice between things. Section 155 does not

require the Chairman to choose. All it requires is that

he has reason to believe that something has happened which constitutes or may constitute a contravention of the Act. Likewise the reference to "conduct that is misleading or deceptive or is likely to mislead or deceive" is no more than the terminology of s.52 of the Act. But hereithas not been employed as the language of a charge against the applicant. It is part of a notice which itself is an administrative act, not part of a judicial or quasi-judicial function. For the purpose of requiring the production of information and documents I see no reason why the respondent should not have used the language he did, rather than select only one aspect of the section.

Although many issues surrounding that section were canvassed in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (1979) A.T.P.R. 18,080 and again, (1979) A.T.P.R. 18,402, similar language used in the notice with which those hearings were concerned was apparently not thought objectionable; at any rate no-one suggested it was.

I therefore accede to the application insofar as it seeks to strike out para.5 of the statement of claim as disclosing no reasonable cause of action. However, with some hesitation, I do not accede to it with regard to para.6. My reason is that as a pleading it 1s unobjectionable and on its face it discloses a cause of action. As mentioned earlier, the applicant has declined to give particulars of the pleading in that paragraph and the respondent has not pressed the matter. I was told by counsel for the applicant that the affidavit of Mr. French sworn 11 January 1980 was the principal evidence to be led by the applicant, but that was not intended to be a definitive statement and I am not satisfied that this is an appropriate case in which to shut out the applicant from pursuing a claim it may have based on the allegations in para.6.

I return now to the matter of interrogatories and discovery. Order 15 rule 3(2), and order 15 rule 3(3) (interrogatories) of the Federal Court Rules empower the Court to prevent unnecessary discovery and interrogatories, The Melbourne Home of Ford case itself proceeded on the basis that wide considerations may determine whether discovery and interrogatories shall be allowed.

I do not suggest that the reason for belief of the respondent is not a justiciable issue but I think that first there must be some basis for a contention that the respondent did not have reason to believe the matters referred to in a notice under s.155, and I refer again to the Melbourne Home of Ford case at pp.18,084- 18,085 and 18,100-18,101.

It is not enough for an applicant merely to assert lack of reason to believe and then seek, as undoubtedly the applicant seeks in the present case, to find some support for that contention through the procedures of discovery and interrogatories. There is in the material before the court an affidavit sworn by the respondent on 17 January 1980 that when he signed the notice he had reason to believe and did in fact believe that the matters referred to in the notice may constitute contraventions of the Act. I do not regard that as inconsistent with the recitals in the notice of 10 August 1979.

In the absence of some disclosed factual foundation for the allegation that the respondent did not have reason to believe any of the matters set out in s.155 when he issued the notice in question, neither discovery nor interrogatories is necessary for fairly disposing of the Matters in issue. They are an attempt to make a case

in a situation which can truly be described as fishing. Rofe v. Kevorkian (1936) 2 All E.R. 1334 at pp.1337-1338.

I had some reservations whether I should decline to make any order at all for discovery or interrogatories having regard to the causes of action pleaded in paras.7 and 8 of the statement of claim. However, with the assurance from counsel that those paragraphs raise no evidentiary matters, I feel justified in doing so.

I shall hear counsel on the precise form of the orders that should be made, but in summary:

1. Paragraph 5 of the statement of claim is struck out as disclosing no reasonable cause of action.

2. I decline to make any order for discovery or interrogatories.

g and the Sever ea trua coDyv of the ein of pis Honour

I certify that tnt preceding paces + . Reasons for cus. veal hes

) ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 9 of 1979 ) GENERAL DIVISION )

The applicant seeks a declaration that a notice issued by the respondent, the Chairman of the Trade Practices Commission, on 10 August 1979, pursuant to s.155 of the Trade Practices Act 1974 does not oblige the applicant to comply with the requirements of that notice and is void and without legal effect.

On 13 November 1979 Fisher J. gave directions for the hearing of the application, including interlocutory steps to be taken. In the main, and to the extent that they are no longer prospective, those directions have been complied with.

What is still outstanding is the matter of interrogatories and discovery, and alse one aspect of

the particulars sought by the applicant of the respondent's

The directions hearing was adjourned until 22 January 1980. Shortly before that date the respondent filed notice of motion seeking to have a substantial part of the applicant's claim stayed or dismissed and in consequence thereof the striking out of two paragraphs of the statement of claim.

The balance of the directions hearing and the notice of motion were heard together. To some extent they overlap and bear upon each other. To determine these matters it is necessary to look first at what is alleged against the respondent. In essence, the applicant contends that the notice calling upon it to furnish information and to produce documents is ineffective because it fails to Meet the requirement of s.155 that the person giving the notice - '

"has, reason to Lelieve that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute,

Counsel for the applicant submitted that although 8.155 does not oblige the Chairman to disclose the basis of his reason for belief, a notice may in its terms

' purport to do so. In so doing it may provide material for an assertion that the author did not have the scate of belief required by the Act. Counsel amplified this submission by drawing attention to the language of the notice which speaks of the Chairman having reason to believe that the applicant is capable of furnishing information and producing documents relating to matters

that constitute or may constitute contraventions of the

In particularising those contraventions the notice speaks further of the applicant engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. By this use of what counsel described as "disjunctive language" it was said that the respondent had failed to define his reason for belief in the terms required by s.155.

I shall deal with this argument later but for the moment continue to describe the issues between the parties. Paragraph 6 of the statement of claim pleads by way of alternative that the notice was issued without the respondent having reason or any legally sufficient reason to believe any of the matters set out in s.155. Asked to particularise this allegation the applicant answered that it involved matters of evidence and law, not matters of pleading, and that the applicant was not required to give particulars, There the matter rests.

For completeness I mention the remaining paragraphs in the statement of claim. Paragraph 7 attacks the notice upon a range of grounds, asserting that it is vexatious, fishing, too wide, oppressive, unreasonable, too remote, uncertain, unclear and inquires into matters of law or requires the making of judgments on questions of law. Paragraph 8 pleads that the requirements of the notice or some of them exceed the ambit of and power conferred by s.155.

Counsel agreed that the matters raised by paragraphs 7 and 8 of the statement of claim were

essentially matters of law to be determined by reference

to the notice itself and not vo other evidentiary material. Counsel for the applicant submitted that the respondent's motion to strike out paras.6 and 7 of the statement of claim should not be disposed of until the outcome of the application for discovery and interrogatories was known. Only then, it was

said, would the court have the whole of the evidence before it, the evidence otherwise having been presented in affidavits already filed.

It may well be true that at this stage the court has not the whole of the evidence before it, but it does not follow that the motion is premature. An application based upon failure to disclose a reasonable cause of action is an application relating to the pleadings.

that which arises under the modern system of pleading in England upon an application to strike out a statement of claim as disclosing no reasonable cause of action. There the question is whether it would be open to the plaintiffs upon the pleadings

constitute a cause of action." (Mutual Life Ltd. v. Evatt (1971) A.C.

In my view it is desirable to deal first with the respondent's motion. The issues properly joined between the parties will then be known and the matter of discovery and interrogatories more readily considered.

I refer again to the two causes of action emerging from paras.5 and 6 of the statement of claim. As already mentioned para.5 pleads a lack of definition in the notice, inconsistent with the state of belief required to attract

the operation of s.155 of the Trade Practices Act. It is

a submission which turns upon the language of the section and upon the terms of the notice itself. As

"the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion". (General Steel Industries Inc. v

• Commissioner for Railways CN S.W.) (1964) TI2 CLLR, 125 at pp. -129).

The issue with regard to para.5 of the statement of claim is a narrow one. It has been argued by counsel and it is appropriate to deal with the application so far as it relates to that paragraph. In my view, the applicant's disjunctive argument cannot succeed for it puts too narrow and artificial a construction upon the language of s.155. The powers conferred by that section are given for the purpose of enabling the Commission to perform its functions under the Act, the range of which was described by

Bowen C,J, in Riley McKay v. Bannerman (1977) 15 A.L R. 561

at pp.565-566, In my opinion it is not apt to describe the notice as "disjunctive", a term which implies alternatives - the :

making of a choice between things. Section 155 does not

require the Chairman to choose. All it requires is that

he has reason to believe that something has happened which constitutes or may constitute a contravention of the Act. Likewise the reference to "conduct that is misleading or deceptive or is likely to mislead or deceive" is no more than the terminology of s.52 of the Act. But here ithas not been employed as the language of a charge against the applicant. It is part of a notice which itself is an administrative act, not part of a judicial or quasi-judicial function. For the purpose of requiring the production of information and documents I see no reason why the respondent should not have used the language he did, rather than select only one aspect of the section.

Although many issues surrounding that section were canvassed in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (1979) A.T.P.R 18,080 and again, (1979) A.T.P.R. 18,402, similar language used in the notice with which those hearings were concerned

was apparently not thought objectionable, at any rate no-one suggested it was.

I therefore accede to the application insofar as it seeks to strike out para.5 of the statement of claim as disclosing no reasonable cause of action. However, with some hesitation, I do not accede to it with regard to para.6, My reason is that as a pleading it is unobjectionable and on its face it discloses a cause of action. As mentioned earlier, the applicant has declined to give particulars of the pleading in that paragraph and the respondent has not pressed the matter. I was told by counsel for the applicant that the affidavit of Mr. French sworn 11 January 1980 was the principal evidence to be led by the applicant, but that was not intended to be a definitive statement and I am not satisfied that this is an appropriate case in which to shut out the applicant from pursuing a claim it may have based on the allegations in para.6.

I return now to the matter of interrogatories and discovery. Order 15 rule 3(2), and order 15 rule 3(3) (interrogatories) of the Federal Court Rules empower the Court to prevent unnecessary discovery and interrogatories. The Melbourne Home of Ford case itself procecded on the basis that wide considerations may determine whether

I do not suggest that the reason for belief of the respondent is not a justiciable issue but I think that first there must be some basis for a contention that the respondent did not have reason to believe the matters referred to in a notice under s.155, and I refer again to the Melbourne Home of Ford case at pp.18,084- 18,085 and 18,100-18,101.

It is not enough for an applicant merely to assert lack of reason to believe and then seek, as undoubtedly the applicant seeks in the present case, to find some support for that contention through the procedures of discovery and interrogatories. There is in the material before the court an affidavit sworn by the respondent on 17 January 1980 that when he signed the notice he had reason to believe and did in fact believe that the matters referred to in the notice may constitute contraventions of the Act. I do not regard that as inconsistent with the recitals in the notice of 10 August

In the absence of some disclosed factual foundation

for the allegation that the respondent did not have

reason to believe any of the matters set out in s.155

when he issued the notice in question, neither discovery nor interrogatories is necessary for fairly disposing of the Matters in issue. They are an attempt to make a case

in a situation which can truly be described as fishing.

Rofe v. Kevorkian (1936) 2 All E.R. 1334 at pp.1337-1338.

I had some reservations whether I should decline to make any order at all for discovery or interrogatories having regard to the causes of action pleaded in paras.7 and 8 of the statement of claim, Jowever, with the assurance from counsel that those paragraphs raise no evidentiary matters, I feel justified in doing so.

I shall hear counsel on the precise form of the orders that should be made, but in summary:

1. Paragraph 5 of the statement of claim is struck out as disclosing no reasonable cause of action.

2. I decline to make any order for discovery or interrogatories,