Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd (ACN 074 316 304) [2001] FCA 982

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd (ACN 074 316 304) [2001] FCA 982

TRADE PRACTICES – misleading or deceptive conduct – ACCC claim for declarations, injunctions, refunds and corrective advertising against promoters of body and muscle toning products – alleged misrepresentations about benefits of products – respondents Australian promoters of products allege representations based on representations from overseas company – respondents seek leave to file cross-claim for indemnity and damages – no cause of action accrued against proposed cross-respondent – leave to file cross-claim refused – leave to appeal against order granted – whether relief available in cross-claim under ss 82 and 87 of the Trade Practices Act – whether indemnity can be claimed as a procedural matter through O 5 r 1 – indemnity and contribution – common law and equity – leave to appeal granted. PRACTICE AND PROCEDURE – leave to appeal – interlocutory decision – refusal to allow filing of cross-claim – whether sufficient doubt as to correctness of decision – whether injustice if decision wrong – leave granted.

Trade Practices Act 1974 (Cth) ss 82, 87 Federal Court Rules O5 r 1

Re La Rosa; Ex parte Norgard v Rodpat Nominees Pty Ltd (1991) 104 ALR 237 cited Bialkower v Acohs Pty Ltd (1999) ATPR 41-685 cited Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 cited Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 cited Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2001) 104 FCR 564 cited Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited Minogue v Williams [2000] FCA 125 cited Ex parte Bucknell (1936) 56 CLR 221 cited

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v EMERALD OCEAN DISTRIBUTORS PTY LTD (ACN 074 316 304), SLENDERTONE HEALTH AND BEAUTY PTY LTD (ACN 059 362 542), SEAN O'DONOGHUE W118 OF 2000