(ABN 60 106 529 604) - [2009] FCA 1423

FEDERAL COURT OF AUSTRALIA
Australian Communications and Media Authority v Clarity1 Pty Ltd
(ABN 60 106 529 604) [2009] FCA 1423
PRACTICE AND PROCEDURE – substitution of name of applicant by legislative effect – orders to rectify the Court record
AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY v CLARITY1 PTY LTD (ABN 60 106 529 604) and WAYNE ROBERT MANSFIELD
WAD 155 of 2005
MCKERRACHER J
16 NOVEMBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 155 of 2005

BETWEEN:
AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
Applicant

AND:
CLARITY1 PTY LTD
(ABN 60 106 529 604)
First Respondent

WAYNE ROBERT MANSFIELD
Second Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

16 NOVEMBER 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The time for service and the hearing of this Motion be abridged so as to permit a hearing at any time after service of this Motion.
2.In accordance with item 6(1) of Schedule 4 to the Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005 (Cth) the Australian Communications and Media Authority is substituted for the Australian Communications Authority as the applicant herein, that substitution is to take effect from 1 July 2005.
3.The title of this proceeding be amended in terms of Order 2.
4.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 155 of 2005

BETWEEN:
AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
Applicant

AND:
CLARITY1 PTY LTD (ABN 60 106 529 604)
First Respondent

WAYNE ROBERT MANSFIELD
Second Respondent

JUDGE:

MCKERRACHER J

DATE:

16 NOVEMBER 2009

PLACE:

PERTH

REASONS FOR JUDGMENT

The Australian Communications and Media Authority (ACMA) applies for the time for service and the hearing of the motion to be abridged and for orders that, in accordance with item 6(1) of sch 4 to the Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005 (Cth) (the ACMA Act), ACMA be substituted for the Australian Communications Authority (ACA) as the applicant in the proceeding with that substitution to take effect from 1 July of 2005.
In fact, the name ACMA has been adopted since 2005 by the solicitors for the applicant, but without a formal order of the Court being granted changing the name of the Authority.
Mr Mansfield opposes the application on the basis that it should not be made retrospectively but that it should be granted only from the date at which the order of the Court is made.
The history of the matter is evident from an affidavit filed by the solicitor for the applicant confirming that the original applicant, ACA, was a body corporate under the s 15 of the Australian Communications Authority Act 1997 (Cth) and able to sue in its corporate name.
On 23 June 2005 it filed an application and statement of claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading (ABN 60 106 529 604)

Details

AGLC: (ABN 60 106 529 604) [2009] FCA 1423
Case: [2009] FCA 1423
Decision Date: 16 NOVEMBER 2009

CaseChat Overview and Summary

This matter involves the Australian Communications and Media Authority, formerly known as the Australian Communications Authority, and pertains to a motion filed under the Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005. The primary objective of the motion is to effect a substitution of the Authority in the proceedings following the legislative change that occurred on 1 July 2005. The matter was heard in a relevant Australian court where the motion was filed to amend the title of the proceeding to reflect the substitution of the Authority.

The court was tasked with deciding whether the substitution of the Australian Communications and Media Authority for the Australian Communications Authority in the proceeding was permissible under the provisions of the Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005. Furthermore, the court needed to determine if the substitution would necessitate any amendment to the title of the proceeding and whether any orders regarding costs should be made in the context of this substitution.

In addressing these issues, the court found that the substitution was indeed permissible under the legislative framework provided by the Act. The court considered that the substitution was a straightforward administrative change required by the statutory provisions and did not affect the substantive merits of the case. Consequently, the court determined that the title of the proceeding should be amended to reflect the substitution and that no costs should be ordered in relation to this motion. The court abridged the time for service and the hearing of the motion to facilitate a prompt hearing.

Accordingly, the court made an order to substitute the Australian Communications and Media Authority for the Australian Communications Authority as the applicant in the proceeding, effective from 1 July 2005, and amended the title of the proceeding to reflect this substitution. No order was made as to costs.

Orders

Orders of the court

1. The time for service and the hearing of this Motion be abridged so as to permit a hearing at any time after service of this Motion.

2. In accordance with item 6(1) of Schedule 4 to the Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005 (Cth) the Australian Communications and Media Authority is substituted for the Australian Communications Authority as the applicant herein, that substitution is to take effect from 1 July 2005.

3. The title of this proceeding be amended in terms of Order 2.

4. There be no order as to costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MCKERRACHER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MCKERRACHER J

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IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 155 of 2005

JUDGE:	MCKERRACHER J
DATE OF ORDER:	16 NOVEMBER 2009
WHERE MADE:	PERTH

JUDGE:	MCKERRACHER J
DATE:	16 NOVEMBER 2009
PLACE:	PERTH