Australian Competition and Consumer Commission v Liquorland (Australia) Pty Limited

[2005] FCA 266

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Liquorland (Australia) Pty Limited [2005] FCA 266

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION AND LIQUORLAND (AUSTRALIA) PTY LIMITED & ANOR
NSD 769 of 2003

ALLSOP J
15 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 769 of 2003

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

LIQUORLAND (AUSTRALIA) PTY LIMITED
FIRST RESPONDENT

WOOLWORTH LTD
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

15 MARCH 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The parties pay their own costs of the motion to set aside the subpoena to the Proper Officer of Bo-Jean Pty Ltd.

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 769 of 2003

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

LIQUORLAND (AUSTRALIA) PTY LIMITED
FIRST RESPONDENT

WOOLWORTH LTD
SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	15 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the first respondent with the leave of the Court caused to be issued a subpoena to Mr Robert Bourne, being the Proper Officer of a company by the name of Bo-Jean Pty Limited which is a licensee or related to the licensee of four hotels in the Gosford and Kariong areas of New South Wales.  Mr Bourne will be a witness for the applicant in these proceedings.  The subpoena was issued in September 2004 and served shortly thereafter. 

2. In March of this year steps were taken to have parts of the subpoena set aside largely on the ground of oppression and irrelevance.  Mr Bolster, who appears for the subpoenaed party, indicated to me that his instructors were retained in relation to the subpoena only a matter of weeks ago.  After they were retained correspondence took place between Mr Bolster's instructors and Allens Arthur Robinson who are the solicitors on the record for the first respondent.

3. I have been privy to part of that correspondence which relevantly shows me, if I may say so without embarrassing any of the practitioners, that once the legal practitioners began sensibly to discuss the issues, resolution took place in an ordered and reasonable fashion as the Court would expect. The difficulty is that it occurred at a time sufficiently close to the hearing of the notice of motion and the final answer of the subpoena to require an argument about costs of the notice of motion. 

4. Looking at the give and take that has occurred in relation to the various paragraphs I can see good sense in each party's position in the way they have approached it.  I think that good sense would have been manifested and could have been manifested earlier without the need for a notice of motion.

5. In that light I think the costs of the notice of motion and the requirement for it can probably be accounted for by the lateness of attendance to the issue by the subpoenaed party.  In those circumstances in relation to the notice of motion to set aside the subpoena I order that each party pay its own costs.

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

Associate:

Dated:            22 March 2005

Counsel for the Applicant:	Mr D Godwin
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the First Respondent:	Mr M A Speakman SC
Solicitor for the First Respondent:	Allens Arthur Robinson
Counsel for the Second Respondent:	Mr M A Jones
Solicitor for the Second Respondent:	Clayton Utz
Counsel for Bo-Jean Pty Limited:	Mr P Bolster
Solicitor for Bo-Jean Pty Limited:	Thorntons Lawyers
Date of Hearing:	15 March 2005
Date of Judgment:	15 March 2005