FEDERAL COURT OF AUSTRALIA Australian Competition & Consumer Commission v Murray (No 3) [2003] FCA 295 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v MURRAY & ANOR. (No 3) T 29 AND T30 OF 2001 HEEREY J 31 MARCH 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY T29 OF 2001 T30 OF 2001 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION PROSECUTOR AND: SIDNEY JAMES MURRAY AND WILL WRITERS GUILD PTY LTD ACN 086 203 929 AND DEFENDANTS JUDGE: HEEREY J DATE OF ORDER: 31 MARCH 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The Orders made on 7 February 2003 be varied to the extent that the fines totalling $70,000 ordered to be paid by the first defendant be paid by instalments of $10,000 per year, commencing on 7 August 2003 and that in default of any instalment for a period of 28 days the unpaid balance shall become immediately due and payable. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY T29 OF 2001 T30 OF 2001 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION PROSECUTOR AND: SIDNEY JAMES MURRAY AND WILL WRITERS GUILD PTY LTD DEFENDANTS JUDGE: HEEREY J DATE: 31 MARCH 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The defendant Sidney James Murray seeks a variation of the orders that I made on 7 February 2003 imposing fines totalling $70,000 on him and $35,000 on the defendant Will Writers Guild Pty Ltd (WWG). I also ordered both defendants to pay compensation amounting to $229,770 to some of the complainants. The variation is sought only in relation to Mr Murray's fines and it is proposed that they be paid at $10,000 per year for seven years. 2 There has been some valid criticism made by the prosecutor of the lack of satisfactory explanation as to where the $329,000 provided by complainants to WWG has ended up. That may well be a ground for further pursuing the assets of WWG, whether by winding-up proceedings or otherwise. This may be relevant for the recovery of compensation ordered. However, for present purposes I have to look at Mr Murray's situation. The starting point is the statement of affairs which he filed with the Insolvency and Trustee Service of Australia for the purpose of a meeting of creditors on 30 January 2003. It shows liabilities to unsecured creditors at $662,949 and assets of $300. 3 Also the prosecutor refers to moneys which have been passed from WWG to the defendant's wife, from whom he is now said to be estranged, in reduction of a loan from the National Australia Bank to her. Those amounted to some $16,070.24 and further deposits were made into her cheque account of $30,500. It is said on behalf of the defendants that this was partly in payment of loans by Mrs Murray and partly in consideration of services rendered by her to the WWG. There is no documentation provided in support of those assertions and again this might be a matter that would warrant further investigation. 4 There is also a company Millcroft Pty Ltd which is a trustee of a superannuation fund and family unit trust. But there is no evidence that Mr Murray is a member of that fund or a beneficiary of that trust. While again there are matters which could be pursued I think it would be wrong to refuse the application for variation so that, pressure might be brought to bear on Mr Murray by way of threat of imprisonment for non payment of fines. 5 Mr Murray has proposed that the first payment of $10,000 be paid on 7 August 2003. Counsel on his behalf accepts that an appropriate default clause should be applicable. Counsel for the prosecutor asked where the money is going to come from for these payments. The answer I think is that if Mr Murray is not able to meet the payments then the total amount unpaid will become immediately due. 6 As to the complainants, for whom one naturally feels a great deal of sympathy, the fact remains however that the variation I am being asked to make relates to the fines and not to the orders for compensation. I will vary the order made on 7 February 2003 by ordering that the fine of $70,000 imposed on Mr Murray be paid by instalments of $10,000 per year commencing on 7 August 2003. I further order that in default of any one payment for a period of 28 days the balance then unpaid shall become immediately due and payable. There will be no order as to costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 2 April 2003 Counsel for the Prosecutor: I Arendt Solicitor for the Prosecutor: Director of Public Prosecutions (Cth) Counsel for the First Defendant: Ms R Ziukelis Solicitor for the First Defendant: Broadbent Radich Sampson Date of Hearing: 31 March 2003 Date of Judgment: 31 March 2003