Australian Competition and Consumer Commission v World Netsafe

[2002] FCA 519

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v World Netsafe [2002]
FCA 519

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v WORLD NETSAFE PTY LTD and ANOR

No Q 297 of 1999

SPENDER J
BRISBANE
19 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 297 OF 1999

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

WORLD NETSAFE PTY LTD
FIRST RESPONDENT

TERENCE BUTLER
SECOND RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

19 APRIL 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The motion is dismissed.

2.The applicant on the motion pay the costs of the second respondent on the motion, to be taxed if not agreed.

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	Q 297 OF 1999

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

WORLD NETSAFE PTY LTD
FIRST RESPONDENT

TERENCE BUTLER
SECOND RESPONDENT

JUDGE:	SPENDER J
DATE:	19 APRIL 2002
PLACE:	BRISBANE

REASONS FOR RULING ON EVIDENCE – NO. 1

1. I propose not to make the direction sought in this motion, notwithstanding the obvious good sense in the summary of voluminous documents. However technical the point is, it has been taken by the second respondent that there has been a want of compliance with s 50(2)(a) of the Evidence Act 1995 (Cth) (the Act) of the requirements that must be met for the Court to make a direction that a party may adduce evidence in the form of a summary.

2. The fact of the matter is that the ACCC, in my view, was not conscious of the requirement of s 50(2)(a) of the Act in the preparation and filing of the affidavit of Ms Deborah May Grimshaw. The respondent submits that the copy of the Summary did not disclose the name and address of the person who prepared the Summary, this defect being apprehended only in the course of submissions today. The applicant seeks to address that technical point by submitting that the Summary should be regarded as par 8 of the affidavit of Ms Grimshaw together with the Table DMG6.

3. I am not satisfied that that requirement of s 50(2)(a) of the Act has been met in this case, and I am not prepared to read the Summary as being par 8 together with the Table DMG6. That might be thought to be an artificial, and it is certainly a technical, view of the requirements of s 50, but I am influenced by the fact that s 50 sets out mandatory requirements for the admission of evidence, and that the evidence is sought to be led in respect of proceedings for imprisonment for contempt of court.

4. I am conscious that declining to make the direction in s 50 is likely to lead to an application to tender the primary documents on which the Summary was prepared, that the Summary purports to be no more than a mechanical compilation of information contained in a large volume of documents, and that the present application was sought to obviate that tedium.  However, since, in my opinion, the requirements of s 50 have not been met, it will be necessary to confront that position during the trial. 

5. I consequently decline to make the direction sought on the motion.  I order that the applicant on the motion pay the costs of the second respondent on the motion, to be taxed if not agreed.  As these orders are interlocutory, O 62 r 14 of the Federal Court Rules applies.

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

Associate:

Dated:             29 April 2002

Counsel for the Applicant:	Mr P.L. O’Shea SC, with Mr A.M. Pomerenke
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr M.M. Stewart SC, with Mr G.A. Wilkins
Solicitor for the Respondent:	Redmond van de Graff
Date of Hearing:	19 April 2002
Date of Judgment:	19 April 2002