Australian Competition and Consumer Commission v The IMB Group Pty Ltd

[1999] FCA 992

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v The IMB Group Pty Ltd [1999] FCA 992

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v THE IMB GROUP PTY LTD (ACN 050 411 946), LOGAN LIONS LIMITED (ACN 060 338 758), SAMSON NEIL BACKO, DAVID JOHN IVERS, LUKE VINCENT IVERS, JOHN LINDSAY IVERS, LANCE THOMAS STONE, MICHAEL JOHN MacLEAN, WILLIAM ANTHONY MUSGRAVE, ROBERT COWLEY and GLEN JAMES IVERS

QG 175 of 1993

DOWSETT J
15 JULY 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 175 OF 1993

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

THE IMB GROUP PTY LTD (ACN 050 411 946)
First Respondent

LOGAN LIONS LIMITED (ACN 060 338 758)
Third Respondent

SAMSON NEIL BACKO
Fourth Respondent

DAVID JOHN IVERS
Fifth Respondent

LUKE VINCENT IVERS
Sixth Respondent

JOHN LINDSAY IVERS
Seventh Respondent

LANCE THOMAS STONE
Eighth Respondent

MICHAEL JOHN MacLEAN
Ninth Respondent

WILLIAM ANTHONY MUSGRAVE
Tenth Respondent

ROBERT COWLEY
Eleventh Respondent

GLEN JAMES IVERS
Twelfth Respondent

JUDGE:

DOWSETT J

DATE OF ORDER:

15 JULY 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed.

2.        No order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 175 OF 1993

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

THE IMB GROUP PTY LTD (ACN 050 411 946)
First Respondent

LOGAN LIONS LIMITED (ACN 060 338 758)
Third Respondent

SAMSON NEIL BACKO
Fourth Respondent

DAVID JOHN IVERS
Fifth Respondent

LUKE VINCENT IVERS
Sixth Respondent

JOHN LINDSAY IVERS
Seventh Respondent

LANCE THOMAS STONE
Eighth Respondent

MICHAEL JOHN MacLEAN
Ninth Respondent

WILLIAM ANTHONY MUSGRAVE
Tenth Respondent

ROBERT COWLEY
Eleventh Respondent

GLEN JAMES IVERS
Twelfth Respondent

JUDGE:	DOWSETT J
DATE:	15 JULY 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The application for leave to appeal will be dismissed.  It relates to an order made in the course of a trial before my brother Drummond, by which his Honour declared that the applicant bore the onus of establishing a particular matter contrary to the applicant's assertion.  The declaration may, on one view of it, determine finally the rights of the parties inter se on that question.  It is not normal for a procedural matter to be so resolved.  It would more usually be reflected in the final judgment, although an intimation might be given in the course of the trial.   If the decision in its present form is a final determination, then, as I understand it, no leave to appeal is necessary, although an extension of time will now be necessary.   If, on the other hand, the decision, despite its form, is interlocutory, then it will be subject to reconsideration in any appeal against the final decision in the action without leave.   In either case, this application for leave to appeal is unnecessary.  I should say that in any event, I would be unwilling to grant leave if the only reason were to permit an appeal on a procedural point prior to final judgment.  It would be in the best interests of the parties and a better use of court time to allow the matter to proceed to judgment before permitting any appeal concerning interlocutory matters.  Whoever bears the onus, for present purposes, much of the relevant evidence will be led in any event.

2. Mr Thompson for the applicant has asked that I entertain an application for an extension of time in which to appeal against the decision.   However, no notice of motion has been filed, no notice of it has been given to the other side who object to its being heard today, and I have not yet agreed to hear it.  In the circumstances, I consider that it is better that I not hear it today.   The applicant may consider how it wishes to proceed with respect to that matter.

3. I am told that the trial of this matter has already gone for many weeks and is scheduled to continue in September.   The applicant seems anxious to appeal against the ruling as to onus of proof prior to the conclusion of the trial.   I seriously question the wisdom of this position.   A trial that has gone for so long involves a substantial investment of time and money.   The longer it takes to bring it to completion, and the more interlocutory steps which are taken, the more likely it is to miscarry completely.   The interests of both parties in this litigation will be best served by finishing the trial as soon as possible.  Those issues which are directly relevant to the facts as established will then be isolated for the purposes of appeal.   Litigation should not be an exercise in self-justification or self-aggrandisement.  It is very expensive.  The parties must do their utmost to conclude these proceedings at the earliest possible time.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             15 July 1999

Counsel for the Applicant:	Mr G A Thompson SC Mr I Deane
Solicitor for the Applicant:	Australian Government Solicitor
Counsel instructed by the Twelfth Respondent for all Respondents:	Mr J Davidson
Date of Hearing:	15 July 1999
Date of Judgment:	15 July 1999