AUSTRALIAN COMPETITION TRIBUNAL
Qantas Airways Limited [2004] ACompT 3
PRACTICE AND PROCEDURE – proper place to hear application for review of Australian Competition and Consumer Commission determination - where application filed in Sydney – most parties and legal representatives in Sydney – most lay witnesses in Sydney.
National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 considered
File No 5 of 2003
RE: APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 9 SEPTEMBER 2003 DENYING AUTHORISATION IN RELATION TO APPLICATIONS A30220, A30221, A30222, A90862 AND A90863 (PROPOSED ACQUISITION BY QANTAS OF ORDINARY SHARES IN AIR NEW ZEALAND AND COOPERATIVE ARRANGEMENTS BETWEEN QANTAS, AIR NEW ZEALAND AND AIR PACIFIC)
BY: QANTASAIRWAYSLIMITED(ABN16009661901) and AIR NEW ZEALAND LIMITED (ABN 70 000 312 685)
Applicants
GOLDBERG J (President), MR G F LATTA and PROFESSOR D K ROUND
5 APRIL 2004
MELBOURNE
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IN THE AUSTRALIAN COMPETITION TRIBUNAL |
No 5 of 2003 |
RE: APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 9 SEPTEMBER 2003 DENYING AUTHORISATION IN RELATION TO APPLICATIONS A30220, A30221, A30222, A90862 AND A90863 (PROPOSED ACQUISITION BY QANTAS OF ORDINARY SHARES IN AIR NEW ZEALAND AND COOPERATIVE ARRANGEMENTS BETWEEN QANTAS, AIR NEW ZEALAND AND AIR PACIFIC)
BY: QANTASAIRWAYSLIMITED(ABN16009661901) and AIR NEW ZEALAND LIMITED (ABN 70 000 312 685)
Applicants
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THE TRIBUNAL: |
JUSTICE GOLDBERG (President) MR G F LATTA PROFESSOR D K ROUND |
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DATE OF ORDER: |
5 APRIL 2004 |
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WHERE MADE: |
MELBOURNE |
THE TRIBUNAL ORDERS THAT:
1. The hearing of opening submissions and evidence and the cross‑examination of lay and expert witnesses in this proceeding is to take place at the Law Courts Building, Queens Square, Sydney.
2. The Tribunal reserves its position in relation to the venue for the hearing of final submissions.
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IN THE AUSTRALIAN COMPETITION TRIBUNAL |
RE: APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 9 SEPTEMBER 2003 DENYING AUTHORISATION IN RELATION TO APPLICATIONS A30220, A30221, A30222, A90862 AND A90863 (PROPOSED ACQUISITION BY QANTAS OF ORDINARY SHARES IN AIR NEW ZEALAND AND COOPERATIVE ARRANGEMENTS BETWEEN QANTAS, AIR NEW ZEALAND AND AIR PACIFIC)
BY: QANTASAIRWAYSLIMITED(ABN16009661901) and AIR NEW ZEALAND LIMITED (ABN 70 000 312 685)
Applicants
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THE TRIBUNAL: |
JUSTICE GOLDBERG (President) MR G F LATTA PROFESSOR D K ROUND |
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DATE: |
5 APRIL 2004 |
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PLACE: |
MELBOURNE |
REASONS FOR DECISION
1 On 29 September 2003, the applicants, Qantas Airways Ltd (“Qantas”) and Air New Zealand Ltd (“Air New Zealand”), filed in the Sydney Registry of the Tribunal an application for review of a determination of the Australian Competition and Consumer Commission (“the Commission”) made on 9 September 2003 denying authorisations in relation to the following applications:
· An application seeking authorisation for collaborative arrangements between Qantas and Air New Zealand (A30220 and A30221) (“the Strategic Alliance proposal”);
· An application seeking authorisation for the acquisition by Qantas of ordinary shares comprising up to a 22.5% voting equity interest in Air New Zealand (A30222) (“the Equity proposal”); and
· An application seeking authorisation for a “Cooperation Agreement” between Qantas, Air New Zealand and Air Pacific Limited, which is ancillary to the Strategic Alliance proposal (A90862).
2 The proceeding has been set down for hearing from 3 May to 28 May 2004 on an estimate of 3 to 4 weeks. During directions hearings in relation to this proceeding an issue arose as to whether the hearing should take place in Sydney or Melbourne. On 12 March 2004, after hearing some brief oral submissions in relation to this issue from counsel for the applicants, the Tribunal ordered that the parties file and serve any material upon which they wished to rely in relation to the venue of the hearing by 26 March 2004. The Tribunal received affidavits and submissions from the applicants and the Commission. No material was filed on behalf of Gullivers Pacific Group and SYNERGI Travel Australia Pty Ltd (“Gullivers”), which are interveners in the proceeding.
3 The applicants and the Commission submitted that the proper place for the proceeding is Sydney. The material in support of those submissions may be summarised as follows.
Place of commencement of proceeding
4 The applicants’ application for review was filed in the Sydney Registry of the Tribunal. The initial application for authorisation by the Commission was filed in the Commission’s Canberra office on 9 December 2002 and that application was conducted by the applicants’ legal advisers operating out of Sydney until the Commission’s final determination on 9 September 2003.
Location of parties, counsel and solicitors
5 Qantas’ head office and principal instructor as well as its counsel and solicitors in the proceeding are located in Sydney. Air New Zealand’s head office and principal instructor is located in Auckland, New Zealand. Air New Zealand’s counsel and solicitors in the proceeding are located in Sydney. The Commission’s head office and principal instructor is located in Canberra. With the exception of one lawyer who is based in Canberra, the Commission’s solicitors and counsel are based in Sydney. Gullivers Pacific Group is a New Zealand based company without a registered office in Australia. The registered office of SYNERGI Travel Australia Pty Ltd, Gullivers Pacific Group’s main Australian operation, is in Sydney. Counsel for Gullivers are located in Sydney. Gullivers’ solicitors are located in Melbourne.
Location of witnesses
6 None of the witnesses to be called by the parties in the proceeding reside in Melbourne. Each of Qantas’ lay witnesses has his place of business and is resident in Sydney, with the exception of one lay witness who is resident in Canberra. Each of Air New Zealand’s lay witnesses has his place of business in Auckland and appears to reside in New Zealand. The applicants’ expert witnesses reside in North America and Canberra. The Commission expects to call lay witnesses who live in either Sydney or Brisbane and the Commission’s expert witnesses reside in North America.
Location of documents
7 Documents provided by the applicants to their respective solicitors are currently being stored in their respective solicitors’ Sydney offices. Documents provided by the Commission and other parties to the Commission’s solicitor are currently being stored either in the solicitor’s Sydney or Canberra office. Except for any documents filed in the course of Tribunal proceedings and in chambers, the applicants and the Commission have filed all their documents in the Sydney Registry of the Tribunal.
Cost to parties
8 If the proceeding is heard in Melbourne as opposed to Sydney, the estimated additional costs to the parties who made submissions on this issue are as follows:
· Air New Zealand would incur additional costs of approximately $107,989.50, including airfares, accommodation, disbursements and document transportation costs, based on an estimated period from 25 April to 28 May 2004;
· Qantas would incur additional costs of the order of $68,432 to $68,442, including airfares, accommodation, incidental expenses and the cost of transporting documents, based on an estimated period from 1 May to 21 May 2004;
· The Commission would incur additional costs of approximately $33,000, including travel and accommodation costs , based on an estimated period of 28 days.
Convenience to the parties
9 The applicants submitted that it is contrary to the principles of efficiency and the efficient allocation of resources that the applicants and the Commission should be required to incur substantial expenses and associated hardship in relocating their respective teams, offices, documents and witnesses to Melbourne for the period of the hearing of the proceeding.
Conclusion as to proper place
10 In determining the proper place for the proceeding, the Tribunal has had regard to the test set out by the Full Court of the Federal Court in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 in the context of s 48 of the Federal Court Act 1976 (Cth) and the Federal Court Rules. The Full Court stated at 162:
“Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.”
11 The Full Court considered that the Court could take into account numerous factors in determining whether one city was more appropriate than another. It is clear from this decision and subsequent decisions of the Federal Court that some of the relevant factors may include the place of business or residence of parties and their witnesses, expense to parties, the place where the cause of action arose, the nature of the proceeding and the convenience of the Court. These factors and the principles laid down by the Full Federal Court are equally applicable to the Tribunal.
12 The Tribunal has formed the view that to the extent to which the hearing involves opening submissions and the hearing of evidence and cross-examination of lay and expert witnesses, the hearing should take place in Sydney. The Tribunal is influenced by the fact that most of the parties, their solicitors, their counsel and their lay witnesses conduct business in and reside in Sydney. If the hearing were to be held in Melbourne this may affect the efficient, continuous and expeditious taking of evidence and cross-examination of witnesses who reside in Sydney. The parties would also incur substantial costs and inconvenience if they were to relocate to Melbourne for the duration of the entire hearing.
13 The Tribunal proposes to reserve its position in relation to the venue for the hearing of final submissions. A factor which was acknowledged, but not addressed, by the parties in their submissions was the convenience of the Tribunal. Consideration should be given to which venue will be most suitable for the members of the Tribunal and their support staff and the costs and inconvenience incurred by the Tribunal in relocating the Tribunal members, their staff, resources and documents to Sydney. The issue of venue may need to be revisited when the hearing of the evidence is concluded. At this point of time it will be necessary to consider whether any adjournment, if sought, is necessary to enable the preparation of final addresses. The Tribunal proposes to leave open the possibility that, if such an adjournment is necessary, it may sit in Melbourne for the hearing of final submissions.
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I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Decision herein of the Tribunal. |
Associate:
Dated: 5 April 2004
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Counsel for Qantas Airways Limited: |
Mr AJL Bannon SC with Mr JRJ Lockhart |
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Solicitors for Qantas Airways Limited: |
Blake Dawson Waldron |
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Counsel for Air New Zealand Limited: |
Mr RA Dick |
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Solicitors for Air New Zealand Limited: |
Freehills |
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Counsel for the Australian Competition and Consumer Commission: |
Mr PJ Renehan |
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Solicitor for the Australian Competition and Consumer Commission: |
Australian Government Solicitor |
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Solicitors for Gullivers Pacific Group and SYNERGI Travel Australia Pty Ltd: |
Allens Arthur Robinson |
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Date of Hearing: |
12 March 2004 |
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Date of Submissions: |
26 March 2004 |
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Date of Reasons for Decision: |
5 April 2004 |