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

[2005] FCA 331

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (In Liquidation) [2005] FCA 331

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 and JOHN RHODIN
N 328 OF 2003

GYLES J
21 MARCH 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

JOHN RHODIN
EIGHTH RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

21 MARCH 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application for adjournment is refused.

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

JOHN RHODIN
EIGHTH RESPONDENT

JUDGE:	GYLES J
DATE:	21 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Senior counsel for the third and fourth respondents seeks an adjournment on various bases at least until some time next week.  I will summarise the matter briefly as what has occurred during argument has been recorded on the transcript. 

2. The first point is the late payment of a fee to be paid by the applicant to the solicitor for the third and fourth respondents to consider amendments to the statement of claim, and linked with that, of course, is the fact that there are such amendments to consider.  Secondly, reference is made to the very recent service of an amended application.  Thirdly, it is pointed out that there are issues concerning the answers to interrogatories as to which legal advice has not yet been given.  Fourthly, there has been the late service of a number of affidavits by the applicant.

3. The view I have come to is that the matter should proceed today.  Counsel for the applicant is due to open the case and I would imagine that the opening will be fairly detailed because this is a case of considerable proportions for which I need to have a good road map in order to appreciate what is to take place, bearing in mind that at least some of the parties will not be represented.  At the end of the opening I will consider whether to go off the bench and read the affidavits.  Counsel for the third and four respondents, of course, suggests that there may be the occasion to object to affidavit evidence.  No doubt some means could be devised to preserve their rights for a time.

4. This matter has been fixed for hearing for a very considerable length of time and it is right to say that the position of the third and fourth respondents has been rather shadowy during that period.  Counsel for the applicant is correct in suggesting that there have been indications from time to time that applications for adjournment might be made.  I have certainly made it clear that to adjourn a matter of this kind, except by appropriate evidence, would not be in order. 

5. No affidavit evidence has been filed by the respondents themselves.  The only affidavit in support of this application is an affidavit from the solicitor for the third and fourth respondents dealing, in essence, with the late payment of the fee.  Whilst I accept that that late payment may have had some impact upon the matter, the reality is that if these respondents are to be represented at all then that fee would be a drop in the bucket. If they are to consider their position adequately then such payment as I ordered in relation to recent amendments to the statement of claim would not cover what would be required to assess the questions which will have to be assessed by anybody appearing for them.

6. I do not doubt that the task of any lawyer called upon to represent the respondents at this late stage would be very difficult, but there has been ample time to be in a position to deal with these matters much earlier than this.  Again I do not doubt that following the amendments to the statement of claim, following the amendments to the application, dealing with interrogatories and dealing with affidavits, including some filed later than the date ordered, would all involve time and money.  But, as I have indicated, in my view, in the broad sweep of things, that is the kind of adjustment that needs to be made in dealing with a cause such as the present.  I also bear in mind that, as counsel for the applicant has said, not much will happen this week to the forensic disadvantage of these respondents and it will be my task to ensure that any forensic disadvantage is minimised to the greatest possible extent.

7. The application for adjournment is refused.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            31 March 2005

Counsel for the Applicant:	CE Adamson SC, AR Zahra
Solicitor for the Applicant:	Phillips Fox
Counsel for the Third and Fourth Respondents:	JL Trew QC
Solicitor for the Third and Fourth Respondents:	McConnell Jaffray
Date of Hearing:	21 March 2005
Date of Judgment:	21 March 2005