Australian Competition and Consumer Commission v Lux Pty Limited [2003] FCA 1068

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Lux Pty Limited [2003] FCA 1068 Evidence Act 1995 (Cth) ss 56, 135 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v LUX PTY LIMITED and DENNIS PODGER W124 of 2000 RD NICHOLSON J 7 OCTOBER 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W124 OF 2000

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: LUX PTY LIMITED (ACN 054 882 852)

FIRST RESPONDENT

DENNIS PODGER

SECOND RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 7 OCTOBER 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT:

The Applicant's objections to the Respondents' expert report of Associate Professor Susan Hayes made in notice of objections filed 10 September 2003 be resolved in accordance with the attached ruling. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W124 OF 2000

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: LUX PTY LIMITED (ACN 054 882 852)

FIRST RESPONDENT

DENNIS PODGER

SECOND RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 7 OCTOBER 2003

PLACE: PERTH

RULING 1 This is a ruling on objections to evidence raised in submissions for the Applicant dated 10 September 2003. 2 With regard to the objections to admission of the Hayes Report on the grounds that it is drafted (a) with reference solely to the Murphy Report; and (b) on the basis that the Murphy Report is conclusive of the method of assessment adopted by Nada Murphy: (1) the general objection in reliance on s 56 of the Evidence Act 1995 (Cth) on the ground of irrelevant is dismissed; (2) the general objection in reliance on s 135 of the Act is dismissed on the ground that, in view of the forthcoming opportunity for cross-examination, there is no present basis for finding the probative value of the Hayes Report is substantially outweighed by the matters referred to in pars (a), (b) or (c) of that section. 3 With regard to the matters argued in the Applicant's submissions dated 30 July 2003 and considered in the reasons delivered on 1 August 2003, no additional bases of objection arise that do not fall within (2) above.