Emerald Ocean Distributors Pty Ltd v Australian Competition & Consumer Commission [2001] FCA 1920

FEDERAL COURT OF AUSTRALIA

Emerald Ocean Distributors Pty Ltd v Australian Competition & Consumer Commission [2001] FCA 1920

TRADE PRACTICES – misleading or deceptive conduct – claim by alleged co-contravenors for indemnity – application for leave to cross-claim and to serve cross-claim out of the jurisdiction – primary judge refused leave to cross-claim – whether such refusal amounted to error of law. Bialkower v A Achos Pty Ltd (1999) ATPR 41-685 referred to Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 referred to EMERALD OCEAN DISTRIBUTORS PTY LTD, SLENDERTONE HEALTH AND BEAUTY PTY LTD and SEAN O'DONOGHUE v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION W345 of 2001 FRENCH, LEE & CARR JJ 23 NOVEMBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W345 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: EMERALD OCEAN DISTRIBUTORS PTY LTD First Appellant SLENDERTONE HEALTH AND BEAUTY PTY LTD Second Appellant SEAN O'DONOGHUE Third Appellant AND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Respondent

JUDGES: FRENCH, LEE & CARR JJ

DATE OF ORDER: 23 NOVEMBER 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appellants' appeal from the whole of the judgment of R D Nicholson J given on 24 May 2001 whereby he refused the appellants' motion for leave to file a cross claim and ordered the appellants to pay the respondent's costs of the motion be allowed. 2. The Orders of Nicholson J on 24 May 2001 on the appellants' motion dated 14 February 2001 be set aside. 3. The appellants' motion dated 14 February 2001 be remitted to Nicholson J for determination. 4. The respondent pay the appellants' costs of the appeal and of the application for leave to appeal. 5. The costs of the appellants' motion before Nicholson J are reserved to him. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.