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One.Tel Ltd (in liq) v Rich

One.Tel Ltd (in liq) v Rich

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Case Copied 23 March 2005 54 min read

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Reported Decision:
53 ACSR 623
(2005) 23 ACLC 556

New South Wales

Supreme Court

CITATION:
ONE.TEL LIMITED (IN LIQUIDATION) v JOHN DAVID RICH & ORS [2005] NSWSC 226
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 February 2005

JUDGMENT DATE :

23 March 2005

JURISDICTION:
Commercial List

JUDGMENT OF:
Bergin J

DECISION:
(1)The plaintiff does not have standing to seek declarations of contravention of civil penalty provisions of the Corporations Act 2001: (2) Proceedings for an order for compensation under s 1317H(1) (and s 1317HA(1)) of the Corporations Act, and their predecessors, are not proceedings for the imposition of a penalty: (3) The defendants are not required to file evidence in the proceedings.

CATCHWORDS:
[CORPORATIONS] - Applications for strike-out of those parts of the pleadings in which the plaintiff sought declarations of contravention under s 1317E of the Corporations Act - Lack of standing in plaintiff to make application under s 1317J - - [STATUTORY INTERPRETATION] - [CIVIL PENALTIES] - Whether the proceedings seeking a compensation order under s 1317H (and s 1317HA), and their predecessors, are proceedings for imposition of a penalty - Whether the defendants should be required to file evidence prior to trial - Proposed amendments to the Act to ensure fairness of trials - - [NOTES] - Status of "Note" in the statute - Whether in the category of marginal note, endnote or footnote - New category of Statutory Note.

LEGISLATION CITED:
Acts Interpretation Act 1901 (Cth)
Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth)
Corporate Law Reform Act 1992 (Cth)
Corporate Law Reform Act 1994 (Cth)
Corporations Act 2001 (Cth)
Corporations Law (Securities and Futures) Amendment Act 1995 (Cth)
Corporations Legislation Amendment Act 1990 (Cth)
Corporations Legislation Amendment Act 1994 (Cth)
Corporations (Unlisted Property Trusts) Amendment Act 1991 (Cth)
Financial Services Reform Act 2001 (Cth)
First Corporate Law Simplification Act 1995 (Cth)
Patents, Designs and Trade Marks Act 1883 (UK)

CASES CITED:
Adams v Batley; Cole v Francis (1887) 18 QBD 625
Chandler v Director of Public Prosecutions [1964] AC 763
R v Schildkamp [1971] AC 1
Re Australian Federation of Construction Contractors; Ex Parte Billing (1986) 68 ALR 416
Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation & Ors [1979] 42 F.L.R 204
Rich v ASIC (2003) 48 ACSR 6
Rich v ASIC (2004) 78 ALJR 1354
Saunders & Anor v Wiel [1892] 2 Q.B. 18
The Ombudsman v Moroney [1983] 1 NSWLR 317

PARTIES:
One.Tel Limited (in liquidation) (Plaintiff / Respondent)
John David Rich (First Defendant / Applicant)
Lifecell Pty Limited (Second Defendant / Applicant)
Rodney Stephen Adler (Fifth Defendant / Applicant)

FILE NUMBER(S):
SC 50207/02

COUNSEL:
M.J. Slattery QC, R.A. Dick, A. Zahra (Plaintiff / Respondent)
B.W. Walker SC, E. Collins (1st and 2nd Defendants / Applicants)
J. Miller (5th Defendant / Applicant)

SOLICITORS:
Kemp Strang Lawyers (Plaintiff / Respondent)
Joanne Kelly (First and Second Defendants / Applicant)
Swaab…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWSC 226
Decision Date: 23 March 2005

CaseChat Overview and Summary

One.Tel Ltd, in liquidation, brought an action against Rich seeking declarations of contravention and compensation orders under sections of the Corporations Act. The dispute centred around whether the plaintiff had standing to apply for certain relief and whether the proceedings were considered penalty impositions. The case was heard by the Federal Court of Australia. The primary legal issues before the court were the plaintiff's standing to seek certain declarations and compensation orders under the Corporations Act, and the nature of the proceedings in terms of whether they constituted a penalty imposition. Additionally, the court considered whether the defendants should be required to file evidence prior to trial and the implications of proposed amendments to the Act.

The court examined the statutory language and structure to determine the plaintiff's standing. It found that the plaintiff lacked the requisite standing to seek certain declarations under section 1317J of the Act. The court also explored whether the proceedings were for the imposition of a penalty, which would affect the procedural requirements. The court held that the proceedings were not for the imposition of a penalty, thus no pre-trial evidence requirement applied. The court further examined the status of "Notes" within the statute, determining that they were not marginal notes, endnotes, or footnotes but rather a new category of Statutory Note, which had implications for the interpretation of the Act.

The Federal Court of Australia granted the application for a strike-out of those parts of the pleadings in which the plaintiff sought declarations of contravention under section 1317E of the Corporations Act, due to the plaintiff's lack of standing. The court held that the proceedings were not for the imposition of a penalty, and thus no requirement for the defendants to file evidence prior to trial was necessary. The court's interpretation of the "Notes" in the statute also clarified the legislative intent behind the new category of Statutory Note.

Orders