JUDGMENT No. 0.96.2, 9 14 NOT FOR GENERAL DISTRIBUTION IN_THE FEDERAL COURT OF AUSTRALIA ) ) qT T REGISTR ) NB 2467 of 1994 ) GENERAL DIVISION ) RE: DENNIS HALL EX PARTE: IN DRURY ZANNE_D A RECEIVED 22 NOV 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL CORAM: Burchett J. PLACE: Sydney DATE : 2 November 1994 R R DGMENT 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. 2. 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: Arlippee_0 Lea _ 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 JUDGMENT No. sono 2p LF jeneecoosenoeel eanscceceses IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 538-548 of 1994 ) ) GENERAL DIVISION BETWEEN: TRADE PRACTICES COMMISSION Applicant AND: QMAREEF PTY LTD t/a UICKSILVER WETSUITS Respondent Coram: Davies J. Date: 20 October 1994 Place: Sydney R EC E} VED 21 NOV 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY REASONS FOR JUDGMENT This is the prosecution of Omareef Proprietary Limited 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 mmposed. On wetsuits which Omareet Proprietary Limited ("Omareef") had imported from China, and on which it had done only a very little amount of work in Australia, Omareef changed the label from "Made in China" to "Made in Australia", and then exported the goods to the United States. Evidence has been given by Mr Howett, a director of Omareef, that this was done because he felt that there might be a delay in the processing of the goods in the United States it they had carried the "Made in China" label. He was under the impression that goods origmating in Australia could be imported into the United States immediately, but that there could be delays tor goods originating in China. There 1s no reason to doubt that this was the predominant factor that brought this matter about. Nevertheless, the action involved deceit of United States Customs. It also, necessarily, involved some deceit ot the recipients of the goods, whether they be the 11 businesses to whom the goods were sold, or the ultimate consumers. There was no attempt made, so far as the evidence shows, to form the recipients of the goods that they were not made in Australia. So there was an inevitable deception of United States Customs and of the consumers and traders in the United States. This is conduct of a type which can reflect badly upon the Austrahan community. It reflects on all exporters from Australia. It is extremely important that each exporter make every endeavour to be honest in tts dealings with traders in overseas countries, and with authorities such as the American Customs. A good reputation for Australian goods and a good reputation for Australian manufacturers 1s a very important matter for the community. Nevertheless, as Mr Whitford has pointed out, this is not a matter which 1s at the worst end of the scale. The 11 separate oftences really involve one aggregate offence. and in accordance with s 79(2) of the Trade Practices Act 1974 (Cth) that is a factor which ought to be taken into account. It appears that the total price 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 divide it this way; by imposing a penalty of $20,000 in respect ot 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 this and the 2 preceding pages are a true copy of the reasgns tor judgment herein of the Honourable Justice Davies. i AL we Date: 20 October 1994 Associate: Counsel for the applicant: Ms A.F. Backman Solicitors for the applicant: Commonwealth DPP Counsel for the respondent: Solicitors for the respondent: Date of hearing: Date of judgment: Mr P. Whittord Corrs Chambers Westgarth 20 October 1994 20 October 1994