Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 4)

[2015] FCA 676

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 4)

[2015] FCA 676

Citation:	Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 4) [2015] FCA 676
Parties:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ADATA (VIC) PTY LTD ACN 099 814 749, ADATA (CARRIERS) PTY LTD (ACN 072 129 321) and WAYNE WRIGHT
File number:	NTD 19 of 2014
Judge:	REEVES J
Date of judgment:	12 June 2015
Date of hearing:	12 June 2015
Place:	Brisbane (via videolink to Melbourne)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	6
Counsel for the Applicant:	Mr D Star
Solicitor for the Applicant:	Norton Rose Fulbright Australia
Counsel for the First and Second Respondents:	The First and Second Respondents did not appear
Counsel for the Third Respondent:	Mr Wright appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 19 of 2014

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

ADATA (VIC) PTY LTD ACN 099 814 749
First Respondent

ADATA (CARRIERS) PTY LTD (ACN 072 129 321)
Second Respondent

WAYNE WRIGHT
Third Respondent

JUDGE:	REEVES J
DATE OF ORDER:	12 JUNE 2015
WHERE MADE:	BRISBANE (VIA VIDEOLINK TO MELBOURNE)

THE COURT ORDERS THAT:

1.The trial dates fixed for 22 and 23 June 2015 be vacated.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 19 of 2014

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

ADATA (VIC) PTY LTD ACN 099 814 749
First Respondent

ADATA (CARRIERS) PTY LTD (ACN 072 129 321)
Second Respondent

WAYNE WRIGHT
Third Respondent

JUDGE:	REEVES J
DATE:	12 JUNE 2015
PLACE:	BRISBANE (VIA VIDEOLINK TO MELBOURNE)

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Wright, the third respondent, has applied by interlocutory application filed on 2 June 2015 to adjourn the trial of this matter fixed for 22 and 23 June 2015 in Darwin, Northern Territory.  In support of that application, he has filed an affidavit in which he deposes to the fact that his wife is currently pregnant and due to give birth on 22 June 2015.  Because of complications with her pregnancy, she has become an in-patient at a hospital in Melbourne.  Mr and Mrs Wright have a daughter.  In his affidavit, Mr Wright has deposed to the fact that his daughter requires constant care and during his wife’s confinement, he is the only person available to provide that care.  I have read the reports from Miss Wright’s childcare professional, Ms Byrne, about the need for Miss Wright to have constant care.  I take that into account, together with the other material in the affidavit.

2. Mr Star, for the Australian Competition and Consumer Commission (the Commission), informed me that, in the circumstances, the Commission did not oppose the application for an adjournment, but it had a number of submissions about the extent of the adjournment.  At this point, I am only dealing with the question whether the trial should be adjourned and not any consequences of that.

3. The authorities on the principles applicable to an adjournment application, such as this, are clear.  The primary consideration is the competing prejudice of the parties.  That is to say:  what prejudice will be suffered by the applicant if the trial is adjourned, compared to the prejudice to be suffered by the respondents if it is not. 

4. As to the applicant’s prejudice, the Commission relies upon the fact that Mr Wright gave an undertaking earlier in this proceeding that he would not – and this is describing the undertaking in broad terms – engage in any conduct of the kind described in the statement of claim.  Subsequent to giving that undertaking, Mr Wright sought to have it limited to a period expiring on 30 June 2015.  During submissions, I have asked Mr Wright whether he is willing to agree to an extension of that undertaking beyond 30 June 2015.  He said that he was not willing to do so.  I take into account that prejudice on the part of the Commission and the broader prejudice associated with the delay occasioned by an adjournment of the trial.  In that regard, I note that the proceeding has been alive now for about a year and the trial of this matter was fixed about four months ago.

5. As to Mr Wright’s prejudice, he is self-represented in this proceeding and he is one of the three respondents.  Clearly, in that event, he will suffer prejudice if he is unable to appear at the trial and put forward whatever material and submissions he wants to in defence of the Commission’s claims against him.  I accept, based upon the affidavit evidence that he has provided, that he will be unable to do that because he is required to attend to his daughter’s care in Melbourne for at least some period leading up to, and after, his wife’s delivery. 

6. In all the circumstances, I think the prejudice that Mr Wright will suffer outweighs the prejudice that the Commission will suffer.  I will therefore order that the trial dates fixed for 22 and 23 June 2015 be vacated.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:        

Dated:        16 July 2015