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. The second matter in the application for special leave maintains that the judgment of the Court of Appeal fails to offset the amount of damages awarded, by taking into account various payments by third parties to individual complainants. I am informed that the special leave application (pursuant to new procedures adopted by the High Court) is likely to be heard in or around August of this year, earlier than perhaps had hitherto been the situation. It also appears that the sums involved, when one takes account of interest on the judgment and costs, which are yet to be assessed, would total a figure in the vicinity of $2.9 million. The affidavit in support of the application for a stay offers security by way of caveats over three real estate properties owned by the second claimant, Harry Kioussis and his wife Angela, who is not a party to the proceedings. I will return to the issue of security in a moment. 2 UNREPORTED JUDGMENTS I invariably find it difficult to assess the likelihood of success of special leave applications — yet alone if leave is granted — second guessing the High Court as to the result of any appeal. One must start from the point that the judgment of the Court of Appeal must be accepted as correct. My assessment of the merits of the two points involved in the special leave application is that the first, relating to what has perhaps incorrectly been referred to as expectation damages — but concerns the measure of damages under s 87(1A) of the Trade Practices Act, is that it is an arguable application, which may or may not succeed. The grant of leave in part depends upon an outstanding judgment of the High Court in the case referred to in the Court of Appeal's judgment, namely G/JO Australia Holdings Ltd v Marks (1997) 70 FCR 559), in which the High Court granted special leave and has heard the appeal but, at this stage, judgment has not been delivered. The second ground in the special leave application affects only part of the judgment; as far as can be estimated a figure in the vicinity of $500,000 — $600,000. I would be less confident that the High Court would grant special leave in relation to this point, although it must be conceded that it is at least arguable. Provided adequate security can be offered for the special leave application in the High Court I have come to the conclusion that the judgment of the Court of Appeal should be stayed. However, I regard the offer made in the affidavit in support of the Notice of Motion to be inadequate in two respects. One is that it only purports to cover the judgment sum itself. I think this was conceded by Mr Aitken in his address. Second, it suffers a problem in that one of the owners of the properties offered as security is Angela Kioussis, who is not a party to the proceedings, although that may to some extent be able to be overcome by her giving a mortgage. It seems to me that a stay should only be granted on terms that cover more or less the whole sum of money involved, that is, the judgment, the interest upon it and the costs, which are considerable. As I have said, it is acknowledged by the claimants that the total figure at this point of time is in the vicinity of $2.9 million. In my opinion, the stay should only be granted if adequate security can be given by the claimants to that sum. I see no reason why that security should not be in a variety of forms, such as the giving of mortgages over property, the taking of caveats over property and the giving of cash security. Indeed, it is apparent from the admitted assets of the second claimant, that there is a considerable fund of properties to which resort may be had to be able to properly secure the whole of the judgment, interest and costs. Ido not want at this point of time to imprint my view of the details that should be provided for security. In the first instance the parties should attempt to come to an agreement as to its form. I think that this would be an appropriate way to proceed. In the absence of agreement, I will determine the appropriate terms of security. I would hope that the good sense of the parties will prevail and they will arrive at an appropriate form of security for the stay. I will not grant a stay at this time provided that the ACCC undertakes for the period of an adjournment (which will enable the parties to negotiate the appropriate terms of security) not to execute upon the judgment. I would have thought that four weeks, or thereabouts, would be a more than adequate time for the parties to see if they can come to an agreement as to the terms of security for the stay. WENTURE INDUSTRIES v THE AUSTRALIAN COMPETITION & CONSUMER COMMISSION (Stein JA) (Stein JA) Subject to what both Mr Aitken and Mr Falkiner have to say, I would propose to adjourn the motion until 20 April or 27 April, on an undertaking by the ACCC not to execute in the meantime and to allow the parties that time in which to work out an appropriate security for the full amount of the judgment, interest and costs. ... [Discussion with Counsel] Notice of Motion stood over to 27 April 1998 at 9.30 a.m. before me. Liberty to apply on 48 hours notice in writing. Costs reserved. Orders accordingly.