Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Cassidy v Medibank Private Limited [2002] FCA 315
BRIAN CASSIDY, CHIEF EXECUTIVE OFFICER, AUSTRALIAN COMPETITION AND CONSUMER COMMISSION -v- MEDIBANK PRIVATE LIMITED
V 836 of 2000
RYAN J
21 MARCH 2002
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY V 836 of 2000
BETWEEN: BRIAN CASSIDY, CHIEF EXECUTIVE OFFICER, AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND: MEDIBANK PRIVATE LIMITED
Respondent
JUDGE: RYAN J
DATE OF ORDER: 21 MARCH 2002
WHERE MADE: MELBOURNE
THE COURT ORDERS:
1. THAT the motion on notice dated 15 January 2001 be refused.
2. THAT the question of the costs of the said motion be stood over for submissions to be received on a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY V 836 of 2000
BETWEEN: BRIAN CASSIDY, CHIEF EXECUTIVE OFFICER, AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND: MEDIBANK PRIVATE LIMITED
Respondent
JUDGE: RYAN J
DATE: 21 MARCH 2002
PLACE: MELBOURNE
REASONS FOR JUDGMENT 1 Brian Cassidy, the Chief Executive Officer of the Australian Competition and Consumer Commission ("ACCC") commenced proceedings in this Court on 26 October 2000 against Medibank Private Limited ("Medibank"), pursuant to the Australian Securities and Investment Commission Act 1989 (Cth) ("the ASIC Act"). The Australian Securities and Investment Commission ("ASIC") by an instrument in writing dated 9 June 2000 delegated to the ACCC under Division 2 Part 2 of the ASIC Actits powers in respect of health insurance. The ACCC seeks a declaration under s 21 of the Federal Court of Australia Act 1976 (Cth) and orders under ss 12GD and 12GE of the ASIC Act, namely injunctive relief and orders for the disclosure of information or publication of advertisements to remedy allegedly misleading and deceptive conduct. 2 On 4 December 2000 I made consent orders granting the applicant leave to amend his application and statement of claim. On 15 January 2001, after the amended application and statement of claim had been filed and served, the respondent, Medibank, filed a notice of motion seeking an order that the amended statement of claim and amended application be struck out as disclosing no reasonable cause of action, tending to cause prejudice, embarrassment or delay in the proceeding; and as being otherwise an abuse of the process of the Court. The motion was listed for hearing on 1 February 2001, but by consent I granted the applicant leave further to amend its application and statement of claim and required Medibank to indicate, within seven days of the filing and service of the further amended pleadings whether it intended to continue with its strike out application. Upon Medibank's having indicated a desire to persist with its motion, it and an application for further directions were heard together on 13 March 2001. At the hearing of the motion Medibank confined itself to seeking that pars 10 to 14 of the amended application be struck out pursuant to O 20 r 2 or O 11 r 16 of the Rules of this Court.
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