Gyles J, as convenor of the Part IV
Panel, welcomed participants to the meeting and outlined
the background to the calling of the meeting and the connection
of the Part IV User Group with the NSW Liaison Committee.
Gyles J spoke of the difficulties of
trying to dispose of Part IV cases quickly and economically.
He said that the meeting provided an opportunity of exploring
ways to address some of these difficulties. He suggested
that some topics which might be discussed included:
· Discovery;
· Expert witness; and
· Oral evidence in chief
There was discussion about the difficulties
in running civil penalty cases with individuals not being
required to put on statements until the Commission had
put its case with the consequence that a case can run
for weeks before individuals, for the first time, disclose
their proposed evidence and the likelihood of the Commission
then needing to seek an adjournment. It was suggested
that there was some similarity between these types of
cases in this respect and some criminal trials and this
problem was managed without serious difficulties. There
was discussion of what was done in the Safeway trial and
the circumstances there which obviated the need for an
adjournment.
There was discussion about the difficulties
facing a judge in managing a case in which the identification
of the market is a live issue in determining the most
appropriate time to order discovery and, in particular,
whether this should be permitted before particulars have
been provided identifying what the relevant market is.
There was discussion of the expense and disputes which
has resulted from the system of discovery by categories.
There was also discussion about the extent experts relied
on discovery before being able to form an opinion.
It was suggested that use by the Commission
of its Section 155 powers might delay the need for the
Commission to seek discovery, although it was suggested
by some that these powers should be used sparingly.
It was suggested that there is a tension
between the expert as an advocate of the party and as
an expert assisting the Court. It was also commented that
the Rules talk about needing to set out in the expert’s
report all assumptions made and it was suggested that
if this was properly done it might resolve some and perhaps
many what in reality are often trivial matters of dispute.
It was also said that there could be real benefit in resolving
disputes between experts by having them confer at an appropriate
but early time.
There was discussion on how the “hot
tub” procedures worked in practice. The view was
expressed, without dissent, that these procedures can
work well and generally will get issues defined and sorted
out quickly but in cases where these procedures were appropriate
they are often not used until late and might be better
employed earlier. It was suggested that this could avoid
the cost associated with preparation of lengthy witness
statements. There was however discussion that this could
result in the loss of an opportunity to respondents to
put a “no case” submission and that the Court
could rightly be concerned that the experts were taking
over the role of the Judge in the case. It was also said
that in relation to civil penalty cases use of the “hot
tub” can cause hardship to respondents in forcing
them to appear with representation throughout lengthy
proceedings when, without a “hot tub”, a “no
case” submission would otherwise have been made.
There was discussion about the complexity
of pleadings and the resulting pleading disputes. It was
said, without dissent, that little could be done to avoid
the potential of these. It was suggested that the Safeway
case was a good example of possible unnecessary pleading
of alternative propositions and it was suggested that
it is important, particularly for the applicant, to examine
the case carefully and to consider whether if the principal
argument does not succeed it is likely that a multitude
of alternatives will. It was suggested that it is essential
to plead market very precisely.
The meeting closed at 5.45 pm.
Attendees:
Ian Davidson, 8th Floor Selborne
Peter Armitage, Blake Dawson Waldron
Bruce Lloyd, Clayton Utz
David Sibtain, Blacksone Chambers
Corolyn Oddie, Allens Arthur Robinson
Timothy Lear, Phillips Fox
Simon White, Wentworth Chambers
Ian Tonking, 7 Selborne
R.J. Wright, 12th Floor, Selborne
Susan Yee-Kong, Ebsworth & Ebsworth
David Yates SC, Blackstone Chambers
Vicky Antzovlatos, Slater & Gordon
Marcus Bezzi, Australian Government Solicitor
Peter Renehan, Garfield Barwick
Rose Webb, ACCC
Calum Henderson, Deacons
S Panayi, Clayton Utz
Justices Gyles, Lindgren, Tamberlin, Sackville, Hely,
Allsop and Jacobson and John Mathieson
