FEDERAL COURT OF AUSTRALIA ACCC v Jayco Pty Ltd (ACN 057 480 556) [2002] FCA 1597 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v JAYCO PTY LTD (ACN 057 480 556), DAVID FRANCIS and MICHAEL JOSEPH CARMODY V567 OF 1997 RYAN J 12 DECEMBER 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V567 of 1997 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: JAYCO PTY LTD (ACN 057 480 556) First Respondent DAVID FRANCIS Second Respondent MICHAEL JOSEPH CARMODY Third Respondent JUDGE: RYAN J DATE OF ORDER: 12 DECEMBER 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The motion on notice filed on 31 October 2002 be adjourned to 17 February 2003 to be heard on that day and if necessary also on 18 and 19 February 2003. 2. Any further affidavit or affidavits on which the second respondent intends to rely in opposition to the said motion be filed and served by 31 January 2003. 3. Any answering affidavits on behalf of the applicant be filed and served by 11 February 2003. 4. Notices requiring the attendance for cross-examination of the deponent of any affidavit filed in relation to the said motion be filed and served by 12 February 2003. 5. Liberty be reserved to either the applicant or the second respondent to apply on not less than 48 hours' notice in writing to the other party. 6. The costs of the applicant and the second respondent of this day be reserved. 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 V567 of 1997 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: JAYCO PTY LTD (ACN 057 480 556) First Respondent DAVID FRANCIS Second Respondent MICHAEL JOSEPH CARMODY Third Respondent JUDGE: RYAN J DATE: 12 DECEMBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In the circumstances of this case, I have been persuaded that the appropriate course is to adjourn the motion. I have taken that view because of the extensive nature of the factual investigation which it seems is required to determine the motion and my real doubt whether that could be achieved within the space of today, having regard to other commitments of the Court. I am not persuaded that this is a matter of the kind considered by Barwick CJ in Australian Consolidated Press v Morgan (1965) 112 CLR 483 where it was indicated that the determination of a motion to punish a party for contempt should be deferred to the trial of the substantive action. In this case, as I apprehend it, the orders for breach of which the respondent is sought to be punished for contempt were final orders and the civil proceedings which are now pending between the same parties are new proceedings in relation to events which have happened since the making of those final orders. 2 By contrast, the motion in Australian Consolidated Press v Morgan sought punishment for contempt constituted by breach of an interlocutory undertaking while the substantive proceedings were still pending. I have also been strongly influenced against deferring the motion for contempt to the trial of the new proceedings by the fact that it has been indicated from the bar table that Gray J, to whom the later civil proceedings have been docketed, has indicated a strong view that the present contempt proceedings should be resolved separately from the proceedings of which he is seised. 3 In addition, the interlocutory steps in the civil proceeding have still some way to go before that matter can be ready for trial. It is true, as I discussed with Counsel in the course of the application for the adjournment, that difficult questions may arise as to the evidentiary effect of findings of fact made in one proceeding and the extent to which those findings will be binding on the parties in the other proceeding. However, I assume that the parties have already considered those difficulties or will give attention to them before either matter comes back to the Court for substantive determination. 4 I have also been influenced to accede to the request for the adjournment by the fact that a principal witness on whom the applicant relies, Prof Walquist, is not available for cross-examination today. I say nothing about whether the notice for that witness to attend for cross-examination was given within a reasonable time or not. However, it seems to me that his evidence is so critical to the outcome of the motion for contempt that, irrespective of where responsibility for his unavailability today might lie, the respondent should not be precluded from an opportunity test his evidence by cross-examination. 5 For all of these reasons, I consider that the application for an adjournment should be granted. I shall make the following orders: 1. The motion on notice filed on 31 October 2002 be adjourned to 17 February 2003 to be heard on that day and if necessary also on 18 and 19 February 2003. 2. Any further affidavit or affidavits on which the second respondent intends to rely in opposition to the said motion be filed and served by 31 January 2003. 3. Any answering affidavits on behalf of the applicant be filed and served by 11 February 2003. 4. Notices requiring the attendance for cross‑examination of the deponent of any affidavit filed in relation to the said motion be filed and served by 12 February 2003. 5. Liberty be reserved to either the applicant or the second respondent to apply on not less than 48 hours' notice in writing to the other party. 6. The costs of the applicant and the second respondent of this day be reserved. 6 I have apprehended from a cursory consideration of the affidavit filed on behalf of the second respondent that he does not propose to continue to promote in any form what could generically be called "weight loss products". If that is so, it seems to me that the preventative considerations which no doubt contributed to the present motion for contempt might no longer obtain. That may be a matter to which the parties should give some attention if there is any prospect of resolving this matter without the need for a final determination by the Court. If a resolution of that kind could be facilitated by the mediation of a Registrar of the Court, arrangements can be made, if requested, for that to take place. However, as I have said, that is essentially a matter for the parties in the light of what they perceive to be the likely future conduct of the second respondent. 7 So I shall make the orders that I have indicated and the motion is therefore adjourned to 17 February next year. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate: Dated: 12 December 2002 Counsel for the Applicant: Mr M O'Bryan Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr S Minahan Solicitor for the Respondent: Coadys Date of Hearing: 12 December 2002 Date of Judgment: 12 December 2002