Kendrick-Smith v Australian Competition & Consumer Commission

[2003] FCAFC 155

FEDERAL COURT OF AUSTRALIA

Kendrick-Smith v Australian Competition & Consumer Commission [2003] FCAFC 155

MILES KENDRICK-SMITH  v  AUSTRALIAN COMPETITION & CONSUMER COMMISSION

V 426 of 2003

RYAN, SUNDBERG & MARSHALL JJ
21 JULY 2003
MELBOURNE (via videolink to SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 426 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MILES KENDRICK-SMITH Appellant
AND:	AUSTRALIAN COMPETITION & CONSUMER COMMISSION Respondent
JUDGES:	RYAN, SUNDBERG & MARSHALL JJ
DATE OF ORDER:	21 JULY 2003
WHERE MADE:	MELBOURNE (via videolink to SYDNEY)

THE COURT ORDERS THAT:

1.        The purported notice of appeal filed 29 May 2003 be struck out;

2         The appeal embodied in the said purported notice be dismissed as incompetent.

3.The orders in paragraph 1 and 2 hereof are made without prejudice to the right of the appellant to apply for leave to file and serve out of time a properly formulated notice of appeal from the orders of Kenny J of 8 May 2003.

4.The appellant pay the respondent’s costs of the motion on notice dated 4 July 2003, including its costs reserved on 16 July 2003, such costs to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 426 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MILES KENDRICK-SMITH Appellant
AND:	AUSTRALIAN COMPETITION & CONSUMER COMMISSION Respondent

JUDGES:	RYAN, SUNDBERG & MARSHALL JJ
DATE:	21 JULY 2003
PLACE:	MELBOURNE (via videolink to SYDNEY)

REASONS FOR JUDGMENT

THE COURT

1. There is before the Court a motion on notice by the respondent (“the ACCC”) seeking the dismissal as incompetent of an appeal by the appellant, Mr Kendrick-Smith.  The appellant’s purported notice of appeal was filed on 29 May 2003 and sought to give notice of appeal from orders made by Kenny J on 8 May 2003.  Her Honour’s orders were in the following terms;

   ‘1.The second respondent has been, within the meaning of par 80(1)(e) of the Trade Practices Act 1974 (Cth) (“the Act”), knowingly concerned in, or party to, the conduct of the first respondent referred to in paragraphs 4, 5, and 7(1) of the Statement of Claim in contravention of s 52 of the Act.

   2.The second respondent, by himself, his servants or agents or otherwise howsoever, is restrained from:

   (a)       representing to members of the public that he performs; and

   (b)being knowingly concerned in representations by another person to members of the public that he, she, it or they perform;

   audit services on accounts or invoices of Telstra (‘the Representation’) unless the second respondent not less than 14 days prior to the first publication of the Representation by any such person, or any such representation in substance to the effect of the Representation by any such person, advises the Australian Competition and Consumer Commission in writing of details of:

   (i)the…