Australian Competition and Consumer Commission; v Giraffe World Australia Pty Ltd

[1999] FCA 1511

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission
v Giraffe World Australia Pty Ltd
[1999] FCA 1511

AUSTRALIAN COMPETITION & CONSUMER COMMISSION v GIRAFFE WORLD AUSTRALIA PTY LIMITED (ACN 078 012 521) & ORS
NG 421 OF 1998

GYLES J
SYDNEY
26 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 421 OF 1998

BETWEEN:

AUSTRALIAN COMPETITION & CONSUMER COMMISSION
Applicant

AND:

GIRAFFE WORLD AUSTRALIA PTY LIMITED
(ACN 078 012 521)
First Respondent

AKIHIKO MISUMA
Second Respondent

ROBIN HAN
Third Respondent

MARK SCOTTE
Fourth Respondent

LUCILLE ORR
Sixth Respondent

JUDGE:

GYLES J

DATE OF ORDER:

26 OCTOBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The time for compliance by the second respondent with Order 1 made by Moore J on 23 September 1999 (“Order 1”) be extended up to and including 3 November 1999.

2.That part of Order 1 that permits the applicant to notify banks, building societies and financial institutions in relation to Mrs Yukari Misuma be stayed up to and including 3 November 1999.

3.The motion filed in Court by the second respondent and Mrs Yukari Misuma on 26 October 1999 be otherwise stood over for hearing before Sackville J on 3 November 1999.

4.Costs be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 421 OF 1998

BETWEEN:

AUSTRALIAN COMPETITION & CONSUMER COMMISSION
Applicant

AND:

GIRAFFE WORLD AUSTRALIA PTY LIMITED
(ACN 078 012 521)
First Respondent

AKIHIKO MISUMA
Second Respondent

ROBIN HAN
Third Respondent

MARK SCOTTE
Fourth Respondent

LUCILLE ORR
Sixth Respondent

JUDGE:	GYLES J
DATE:	26 OCTOBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. Lindgren J gave reasons for judgment in this matter on 26 August 1999 and made formal orders on 2 September 1999.  Those formal orders included amendments to existing Mareva-type orders.  A motion was subsequently filed which came before Moore J, as duty judge, and led to his Honour making orders on 23 September 1999 which made some amendments to the Mareva orders and also ordered that the second and third respondents, and another, file an affidavit disclosing assets. 

2. A motion has come on before me today in a duty capacity, following appearances before Emmett J last week.  It seeks firstly that time for compliance by the second respondent with order 1 made by Moore J on 23 September 1999 be extended up to and including 3 November 1999.  That relates to the obligation to file the affidavit.  The second order sought is that that part of order 1 made by Moore J on 23 September 1999 that permits the applicant to notify banks, building societies and financial institutions in relation to a third party, one Mrs Yukari Misuma, be stayed up to and including 3 November 1999. 

3. The applicants on the motion have filed an application for an extension of time within which to seek leave to appeal from the orders of Moore J. That application is returnable before Sackville J on 3 November 1999.  At that time, his Honour will also be considering other applications in relation to these proceedings, hence the selection of the time for what amounts to an extension.  Unfortunately, the reasons for judgment of Moore J have not yet been published, so it is not possible to form any view as to the chances of success of the application before Sackville J next week for an extension of time nor any application for leave to appeal.

4. The transcript will record the arguments which were addressed by counsel.  There were also some written submissions handed up on behalf of the applicants on the motion.  There is no need for me, for the purposes of this application, to recite those arguments. 

5. What I should indicate is that the orders which were made by Lindgren J in effect disposed of, in one sense, questions relating to liability for conduct but did not include any orders for compensation.  Indeed, as I understand it, there were no applications for compensation before his Honour.  What his Honour did in those orders was to grant leave to the applicant in the proceedings to bring notices of motion for orders for compensation on behalf of persons who claim to have suffered loss by reason of the prohibited conduct of which the respondents were found guilty.  The applicant has not yet availed itself of this leave.  I am told that there is precedent for this form of procedure.  It has not been necessary for me to look at it independently. 

6. The position is, to say the least however, unusual.  There have been Mareva orders on foot for a very long time.  The principal proceedings having now been completed, the only extant orders involving money are orders for costs and the Mareva orders.  Those Mareva orders are not only maintained in force but there are now further orders obliging parties to disclose assets and involving notice (which will undoubtedly cause damage to those parties) to be given to banks and other financial institutions.  These orders are all in support of proceedings which are not yet on foot.  I say that to indicate that to me this is a situation which is quite unusual and, in the absence of reasons from Moore J, I certainly cannot rule out the possibility that there may be success in the application for the extension of time and indeed, ultimately, on the application for leave to appeal.

7. That being the case, it seems to me that there is a very strong argument in favour of the grant of what amounts to a short extension of time.  If the affidavit is made and/or if the notice is given to these financial institutions, it seems to me that damage will be suffered which simply cannot be repaired and, although perhaps not rendering the appeal nugatory in the strict sense, is close enough to it to cause considerable caution at this stage of these proceedings.  I would also say that there has been no case made, on the evidence, of any particular urgency which exists between now and then. 

8. The arguments which have been addressed to me concerning the absence of evidence, and the significance of the findings by Lindgren J, are really almost beside the point.  The question now is, is there any prejudice of a substantial nature involved in effectively extending time for compliance with these orders for a short period?  In my opinion, the answer is that there has been no evidence of that character put before me.  I therefore indicated before the luncheon adjournment that I would stand the matter over until next week. 

9. I have not been able to make contact with Sackville J over the adjournment, however I will, as I indicated a moment ago, formally order that this motion be adjourned for hearing before his Honour on 3 November 1999.  If his Honour thinks that is inappropriate, then the matter will be returnable before another judge on that day.  I do notice that the matter was to be put in for further directions, presumably before the docket judge later in November.  That can be sorted out next week.

10. Accordingly, the orders that I make are orders 1 and 2 sought in the notice of motion filed in Court today by the second respondent and Mrs Misuma.  I also order that the motion be otherwise stood over for hearing before Sackville J on 3 November 1999.  Costs are reserved.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             2 November 1999

Counsel for the Applicant:	Mr ST White
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Second Respondent:	Mr DR Pritchard
Solicitor for the Second Respondent:	Blessington Judd
Date of Hearing:	26 October 1999
Date of Judgment:	26 October 1999