Australian Competition & Consumer Commission v Emerald Ocean Distributors Pty Ltd [2004] FCA 303

Australian Competition & Consumer Commission v Emerald Ocean Distributors Pty Ltd [2004] FCA 303

Leave to further re-amend the application was granted because the amendment was made necessary by a change in the law (the Medibank Private decision), the issue of third-party written consent did not arise at this stage as no finding of contravention was yet made, and the amendment did not cause injustice or alter the fundamental nature of proceedings.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent/first Cross Claimant: Emerald Ocean Distributors Pty Ltd; Second Respondent/second Cross Claimant: Slendertone Health & Beauty Pty Ltd; Third Respondent/third Cross Claimant: Sean O'Donoghue; Cross Respondent: Bio-Medical Research Limited
Jurisdiction
Australia
Judgment Date
23 March 2004
Procedural Posture
Application to Amend Application in Existing Proceedings / Interlocutory Application for Leave to Further Re Amend Application
Outcome
Leave to amend application granted
Legal Topics
Application for Leave to Amend, Trade Practices Act S 80, S 83, S 87(1 A), S 87(1 B), Findings of Fact, Refunds/compensation Orders, Effect of Higher Court Decision on Pleadings
Competition Law Consumer Law Civil Procedure Application for Leave to Amend Trade Practices Act S 80, S 83, S 87(1 A), S 87(1 B) Findings of Fact Refunds/compensation Orders Effect of Higher Court Decision on Pleadings

Case Brief

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Parties

Australian Competition and Consumer Commission

Applicant

Emerald Ocean Distributors Pty Ltd

First Respondent/first Cross Claimant

Slendertone Health & Beauty Pty Ltd

Second Respondent/second Cross Claimant

Sean O'Donoghue

Third Respondent/third Cross Claimant

Bio-Medical Research Limited

Cross Respondent

Procedural Posture

Application to Amend Application in Existing Proceedings / Interlocutory Application for Leave to Further Re Amend Application

Legal Issues

  1. 1 Whether leave should be granted to further re-amend the application to delete claim for refund and substitute findings of fact under s 83 of the Trade Practices Act
  2. 2 Whether the amendment would cause undue prejudice or injustice to the respondents or cross-respondent
  3. 3 Whether the absence of third party consent is a bar at this stage

Ratio Decidendi

Leave to further re-amend the application was granted because the amendment was made necessary by a change in the law (the Medibank Private decision), the issue of third-party written consent did not arise at this stage as no finding of contravention was yet made, and the amendment did not cause injustice or alter the fundamental nature of proceedings.

Court Disposition

Leave to amend application granted

Orders

  • The applicant be granted leave to amend the application in terms of the minute of proposed further re-amended application dated 17 December 2003.
  • Costs reserved.