Australian Competition and Consumer Commission v Vassallo

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Vassallo [2009] FCA 954

PRACTICE AND PROCEDURE – circumstances in which it is appropriate to grant declaratory relief

Trade Practices Act 1974 (Cth) ss 80(1AA) and 83
Federal Court of Australia Act 1976 (Cth) s 21

Australian Competition & Consumer Commission v Knight [2007] FCA 1011
Australian Competition & Consumer Commission v Chen (2003) 132 FCR 309

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v LEANNE RITA VASSALLO and AARON DAVID SMITH

NSD 756 of 2009

GRAHAM J
20 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 756 of 2009

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

LEANNE RITA VASSALLO
First Respondent

AARON DAVID SMITH
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	20 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT:

1.Orders that the matter stand over for short minutes of order to be brought in at 2pm on Monday 24 August 2009.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 756 of 2009

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

LEANNE RITA VASSALLO
First Respondent

AARON DAVID SMITH
Second Respondent

JUDGE:	GRAHAM J
DATE:	20 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These proceedings were commenced by an application filed 24 July 2009. An amended application was filed on 29 July 2009. The amended application detailed the applicant’s claim as one for declaratory relief, injunctive relief, findings of fact for the purposes of section 83 of the Trade Practices Act 1974 (Cth) (‘the Act’) and costs. In addition, the amended application included a claim for interlocutory relief. On 30 July 2009 the duty judge granted interlocutory injunctive relief, including mandatory injunctive relief, until further order.

2. The matter was before the Court for first directions referable to the ultimate hearing, on 17 August 2009.  On that day the Court was informed that the respondents consented to the final relief sought.  However, it was indicated that it would be necessary for the Court to consider the evidence by reference to which the applicant sought the declaratory relief, so that it might be persuaded to make the declarations sought.

3. The matter was listed for final hearing on 20 August 2009. 

4. When the matter was called for hearing today, Senior Counsel for the applicant handed up proposed orders which, in paragraphs numbered 1 - 8 inclusive, sought the same relief as was set out in paragraphs 1 - 7 of the Amended Application filed 29 July 2009, but split the injunctive relief sought in paragraph 3 into two paragraphs which became paragraphs 3 and 4 in the draft orders. The draft orders did not propose any relief under s 83 of the Act. They did, however, include a proposed order that the respondents pay the applicant’s costs in…