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

[2005] FCA 590

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (in Liq) [2005] FCA 590

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
14 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:

14 APRIL 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The applicant be granted leave pursuant to O 13 r 2(1) of the Federal Court Rules to amend the Further Further Amended Statement of Claim.

2.   The Further Further Amended Statement of Claim be amended pursuant to O 13 r 8 of the Federal Court Rules by filing a Notice in accordance with Form 19 specifying the additional pleading set out in the document which is Annexure ‘A’ to this Notice of Motion.

3.   The applicant be granted leave pursuant to O 13 r 2(1) of the Federal Court Rules to file a Further Amended Application to incorporate the additional pleading set out in the document which is Annexure ‘A’ to this Notice of Motion.

4. The applicant be granted leave to include in the Further Amended Application at prayer 33 a claim for interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth).

5.   Costs of the motion be reserved.

(Annexure not reproduced)

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:	14 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I am satisfied this is an appropriate case to grant the amendments to the Further Further Amended Statement of Claim as outlined in the Notice of Motion at Annexure ‘A’.  I am satisfied the amendments have arisen out of matters which came to light during the course of the recent events and could not have been raised earlier.  Whilst there is no doubt that they are not without their own importance, they relate to a relatively minor part of the case, although, of course, they will lead to the admission of further evidence.  It is appropriate that the pleadings in the case properly reflect the case that is sought to be made. 

2. The real question is what, if any, terms should flow from the amendment.  I am not satisfied that there should be any special order for costs of the kind referred to by Mr McConnell in his submissions on behalf of the third respondent.  The whole question of costs can be considered in the long run.  This is not such a special application as would require payment of costs in advance, as I was persuaded to require on one previous occasion.

3. I am also not satisfied that the mere making of the amendments themselves will cause any delay to the proceedings.  They are clear enough on their face.  Where they fit into the case will be very obvious to those affected.  However, as I have noted, the amendments will lead to the tendering of further evidence.  What the consequences of that may be is another matter. At the moment, in view of the procedural history of this matter, it is unlikely that the mere reliance upon that evidence would lead to the need for any adjournment. 

4. The third respondent for whom Mr McConnell still appears has, for whatever reason, adopted the course of monitoring the proceedings and intervening only on occasion.  As it has been pointed out from time to time, that involves risks on the part of that respondent.  I do not propose to hold up the case to meet the convenience of that respondent or any other respondent who has not been taking a full part in the proceeding.

5. I also have in mind that it is likely that there will be an adjournment after today to enable submissions to be absorbed.  I will defer ruling on that until the matter unfolds this morning. 

6. I make the orders sought in the amended notice of motion.  I reserve the costs of the motion. 

I certify that the preceding six (6) 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:	14 April 2005
Date of Judgment:	14 April 2005