Obeid v Australian Competition and Consumer Commission

FEDERAL COURT OF AUSTRALIA

Obeid v Australian Competition and Consumer Commission [2018] FCA 1713

Appeal from:

Application for leave to appeal: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 4) [2018] FCA 1243

File number:

NSD 1504 of 2018

Judge:

JAGOT  J

Date of judgment:

12 November 2018

Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal – where primary judge dismissed application for interim suppression order – orders of primary judge not attended by sufficient doubt to warrant grant of leave to appeal – application dismissed

Legislation:

Evidence Act 1995 (Cth) ss 78, 79

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG

Independent Commission Against Corruption Act 1988 (NSW) s 74A

Cases cited:

Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019

Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741

Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; (1999) 88 FCR 438

Date of hearing:

8 November 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Economic Regulator, Competition and Access

Category:

Catchwords

Number of paragraphs:

29

Counsel for the Applicant:

P D Lange

Solicitor for the Applicant:

Hanna Legal

Counsel for the First Respondent:

M J O’Meara

Counsel for the First Respondent:

Australian Government Solicitor

ORDERS

NSD 1504 of 2018

BETWEEN:

MOSES EDWARD OBEID

Applicant

AND:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

First Respondent

CASCADE COAL PTY LTD (ACN 119 180 620)

Second Respondent

MINCORP INVESTMENTS PTY LIMITED (ACN 132 441 868) (and others named in the Schedule)

Third Respondent

JUDGE:	JAGOT  J
DATE OF ORDER:	12 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent’s costs of the application, as agreed or taxed.

3.The reasons for judgment in Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019, without redactions, be published forthwith.

4.The reasons for judgment in Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 4) [2018] FCA 1243 be published forthwith.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1. These reasons for judgment explain why I have decided that the applicant should not be granted leave to appeal against an order made by the primary judge on 20 August 2018 dismissing the applicant’s interlocutory application seeking an interim suppression order pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth).

   Background

2. The primary judge gave reasons for judgment explaining the dismissal of the interlocutory application in Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 4) [2018] FCA 1243 (itself subject to an interim suppression order to enable the application for leave to appeal to be determined).

3. Section 37AF(1) enables the Court to make a suppression or non-publication order. To the extent relevant, s 37AG(1)(a) provides that such an…