VENTURE INDUSTRIES v THE AUSTRALIAN COMPETITION & CONSUMER COMMISSION [1998] NSWCA 249

VENTURE INDUSTRIES v THE AUSTRALIAN COMPETITION & CONSUMER COMMISSION

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

STEIN JA 30 March 1998

[1998] NSWCA 249

Stein JA. This is an application for a stay pending a special leave application in the High Court, appealing from a decision of the Court of Appeal given on 3 March 1998.

The special leave application was attempted to be filed last Friday and again today, as I am informed by Mr Aitken, appearing on behalf of the claimants. However, it was rejected by the High Court Registry. It apparently now requires to be re-tendered for registration tomorrow, together with a full copy of the judgment of the Court of Appeal. It seems reasonable to assume that it will be filed tomorrow, or shortly thereafter and that it will be in the form of Annexure A to the affidavit of Nick Milios sworn on 30 March 1998, the solicitor for the claimants. No point is taken by the opponents that the leave application is not afoot.

The matter has its origin in a judgment given by Hunter J against the present claimants and in favour the ACCC, in part on behalf of a number of complainants. The verdict involved a total sum of around $1.4 million.

Following the decision by Hunter J, an appeal was lodged to the Court of Appeal. A stay application was then made in relation to Hunter J's judgment. That failed before the Court of Appeal and was ultimately dismissed by Sheller JA on 17 March 1997. The appeal was heard in February of this year and the Court of Appeal gave judgment on 3 March 1998 dismissing the appeal.

The draft application for special leave to the High Court raises two issues of error by the Court of Appeal. The first concerns the appropriate measure of damages under s 87(1A) of the Trade Practices Act 1974. This was a matter that was dealt with in the judgment of Cole JA at pp 19 to 28 of his decision, which was concurred in by Sheppard AJA and myself.