Hall, D. v Brury, J

[1994] FCA 869

JUDGMENT No. .... , 869 9% ....,..,... ./ ,..,.

NOT FOR GENERAL DISTRIBUTION

THE FEDERAL COURT OF AUSTNIA ) )

NEW SO C 1 - T REGISTRX ) NB 2467 of 1994

) )

RE :  DENNIS HALL

EX PARTE:  JOHN DRURY & SUZANNE DRURY

CORAM: Burchett J.

PLACE: Sydney	RECEIVED
DATE : 2 November 1994	22 NOV 1994
FEDERAL COURT OF

AUSTRALIA

W O N S FOR JUDGMENT PRINCIPAL REOISTRV

TT J.:

In this matter, a sequestration order was made by a Registrar. Within the time permitted, the debtor requested that the matter be reviewed by a judge. On the evidence now before me, which is not the same as the evidence presented to the Registrar, there is no doubt that it is appropriate to dismiss the petition. Accordingly, I review the orders made, set aside the sequestration order, and dismiss the petition. I note that the evidence given before me by the debtor, who is a quality systems auditor and would certainly not be the kind of person who would not understand the bankruptcy notice, or a petition, is that he was never served with either. He had not paid the debt because he did not consider he owed it morally, although he had

been found liable.

In those circumstances, it does seem prima facie rather unlikely that the debtor would have simply ignored, first, the bankruptcy notice, and then a bankruptcy petition. He was a person with substantial assets, and apart from the normal house mortgage no other obligations. It would have been a remarkable example of biting off his nose to spite his face if he had simply ignored these documents, having received them. In those

circumstances, there must be concern about the affidavits of service which were filed, indicating service had twice been effected by a licensed process server.

Of course, I have not heard the process server. And there may be nothing at all sinister about that since, the debt having been paid, the petitioning creditor had no interest to oppose the debtor's case that the petition ought to be dismissed. Consequently, I reach no conclusion either way about the question of service, and I dismiss the petition on the ground that the debtor is not, in fact, insolvent, and was not insolvent at any relevant time. I think, in the circumstances, it is appropriate

that I request the Registrar of the court to refer these reasons,

together with copies of the affidavits of service and of today's

transcript, to the authority responsible for licensing process
servers, for such investigation as may be thought appropriate.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 18 November 1994

Counsel for the Bankrupt:	Mr B Debuse
Solicitors for the Bankrupt:	T Bouzanis
Solicitors for the Petitioning
Creditor:	Appleby & Nilson
Date of hearing:	2 November 1994

870 99

JUDGMENT No. .....," ...... ,J ,, ........

THE FEDERAL COURT OF AUSTRALIA

1

NEW SOUTH WALES DISTRICT REGISTRY	) NG 538-548 of 1994
GENERAL DIVISION	1

BETWEEN:	T R A D E	P R A C T I C E S
COMMISSION
Applicant

AND:  O M A R E E F P T Y L T D t / a

OUICKSILVER WETSUITS

Respondent

m:	Davies J.
Date:	20 October 1994
Place:	Sydney

2 1 NOV 1994

AUSTRALIA

PRINCIPAL REOlLllRV

REASONS FOR JUDGMENT

This is the prosecution of Omareef Proprietary L~mited on 11 separate charges.

The defendant has pleaded guilty to all charges. I find Omareef Proprietary Limited

guilty of each of the charges. The question now is as to the penalty to be imposed.

On wetsuits which Omareef Propr~etary Llmited ("Omareef') had imported from China, and on whlch it had done only a very l~ttle amount of work in Australia,

Omareef changed the label from "Made in China" to "Made in Australia", and then

exported the goods to the Un~ted States. Evidence has been given by Mr Howett, a director of Omareef, that this was done because he telt that there might be a delay in the processing of the goods in the United States it they had carrled the "Made in China" label. He was under the impression that goods or~glnating In Australia could

be rmported into the Unlted States rmmedrately, but that there could be delays for

goods originating in Chlna.

There IS no reason to doubt that thls was the predomrnant factor that brought thls matter about. Nevertheless, the actlon rnvolved deceit of United States Customs. It also, necessarily, involved some dece~t of the recrpients of the goods, whether they

be the 11 businesses to whom the goods were sold, or the ultrmate consumers. There

was no attempt made, so far as the evrdence shows, to rnform the reclplents of the goods that they were not made in Australra. So there was an lnevltable deception of

Unlted States Customs and of the consumers and traders in the Unlted States.

This is conduct of a type whrch can reflect badly upon the Australlan community. It reflects on all exporters from Australia. It is extremely Important that each exporter make every endeavour to be honest in its dealings with traders in

overseas countries, and with authorrtres such as the Amerlcan Customs. A good

reputation for Australlan goods and a good reputation for Australlan manufacturers is

a very important matter for the communrty.

Nevertheless, as Mr Whitford has pointed out, thls IS not a matter whrch IS at the worst end of the scale. The 11 separate offences really lnvolve one aggregate offence. and in accordance w~th s 79(2) of the Trade Practrces Act 1974 (Cth) that is a factor whlch ought to be taken Into account.

It appears that the total prlce of the goods was a httle more than $25,000. In these circumstances, I am of the view that a total figure of $25,000 would be appropriate. I would dlv~de ~t t h ~ s way; by Imposing a penalty of $20,000 in respect of the first offence and penalties of $500 in respect of the other 10 ottences. The respondent should pay the costs of the proceedings.

I certify that th~s and the 2 preceding pages

are a true copy of the reas ns tor judgment herem of

the Hi~nourable Justice D q e s .

Assocrate: /$:L

Date:  20 October 1994

Counsel for the applicant:	MS A.F. Backman
Solicltors for the applicant:	Commonwealth DPP
Counsel for the respondent:	Mr P. Whittord

Sollc~tors  for the respondent: Corrs Chambers Westgarth

Date of hearing:	20 October 1994
Date of judgment:	20 October 1994