Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (in Liq)

[2005] FCA 592

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (in Liq) [2005] FCA 592

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v GLOBAL PREPAID COMMUNICATIONS PTY LTD (ACN 095 154 108) (In Liquidation), IN TOUCH NETWORKS PTY LTD (ACN 098 279 746) (In Liquidation), NICHOLAS YATES, FRANK YATES, NICHOLAS RHODIN, DANIEL ALBERT, RUSSELL FIELDING
N 328 OF 2003

GYLES J
20 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 328 OF 2003

BETWEEN:

AUSTRALIA COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

GLOBAL PREPAID COMMUNICATIONS PTY LTD (ACN 095 154 108) (In Liquidation)
FIRST RESPONDENT

IN TOUCH NETWORKS PTY LTD (ACN 098 279 746) (In Liquidation)
SECOND RESPONDENT

NICHOLAS YATES
THIRD RESPONDENT

FRANK YATES
FOURTH RESPONDENT

NICHOLAS RHODIN
FIFTH RESPONDENT

DANIEL ALBERT
SIXTH RESPONDENT

RUSSELL FIELDING
SEVENTH RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

20 APRIL 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application is dismissed.

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	NSD 328 OF 2003

BETWEEN:

AUSTRALIA COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

GLOBAL PREPAID COMMUNICATIONS PTY LTD (ACN 095 154 108) (In Liquidation)
FIRST RESPONDENT

IN TOUCH NETWORKS PTY LTD (ACN 098 279 746) (In Liquidation)
SECOND RESPONDENT

NICHOLAS YATES
THIRD RESPONDENT

FRANK YATES
FOURTH RESPONDENT

NICHOLAS RHODIN
FIFTH RESPONDENT

DANIEL ALBERT
SIXTH RESPONDENT

RUSSELL FIELDING
SEVENTH RESPONDENT

JUDGE:	GYLES J
DATE:	20 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The solicitor for the third respondent seeks a further adjournment in order to take instructions as to whether his client should seek leave to have witnesses cross-examined and also seeks time to take instructions as to whether his client will seek to give or lead evidence.  I need not recount the procedural history of the matter.  Suffice to say that the third respondent has taken the course of having the proceedings monitored by the solicitor on the record, who has not taken an active part in the trial to date.  He has appeared ad hoc on particular occasions and for particular purposes.

2. I do not under estimate the difficulty of monitoring a matter of this volume on that basis and I am also well conscious of the fact that a practitioner such as the solicitor for the third respondent instructed in such a limited fashion has severe professional restrictions on the amount of time that can be allocated to a case.  However, the net result is that many days after the applicant has effectively closed its case and, indeed, some days after the plaintiff has given comprehensive written submissions as to all causes of action.

3. The third respondent is simply not in a position to say whether or not he has a case and still seeks the liberty to cross-examine if so advised.  As I have said on other occasions but I repeat, how the third respondent chooses to defend himself in a matter of this kind is a matter for the third respondent.  But he is not entitled to have the procedures of the Court set to one side in order to meet his convenience.  When I say his convenience I do not mean to imply anything more than that in the strict sense of the word.

4. There has been ample time over the months’ of preparation for this case for the third respondent to give consideration to whether or not he wishes to present a positive case and as to whether or not he wishes to test the applicant's case by cross-examination.  It is true that the case for the applicant has expanded to some extent, which has been dealt with in previous interim rulings of one sort and another, but the essentials of the case have not changed. 

5. The application by the third respondent for adjournment is dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            13 May 2005

Counsel for the Applicant:	CE Adamson SC, AR Zahra
Solicitor for the Applicant:	Phillips Fox
Solicitor for the Third Respondent:	K McConnell of McConnell Jaffray
Counsel for the Fifth Respondent:	S Chrysanthou
Date of Hearing:	20 April 2005
Date of Judgment:	20 April 2005