Australian Competition & Consumer Commission v J McPhee & Son (Australia) Pty Ltd & Ors (No. 4) [1998] FCA 231

Australian Competition & Consumer Commission v J McPhee & Son (Australia) Pty Ltd & Ors (No. 4) [1998] FCA 231

The respondents' complaints about misunderstanding, natural justice and adverse factual findings were matters for appeal and did not constitute the extremely exceptional circumstances required for the trial judge to reopen the judgment, disqualify himself, order a new trial before another judge, or adjourn the penalty phase pending appeal. Adverse findings made in resolving a stark factual conflict at the liability stage did not establish apparent bias for the penalty hearing.

Jurisdiction
Australia
Judgment Date
13 March 1998
Procedural Posture
Trade Practices Proceeding Under Part IV of the Trade Practices Act 1974 (cth) / Respondents' Notice of Motion After Liability Judgment and Before Penalty Hearing, Seeking Reopening, Rehearing, Disqualification or Adjournment Pending Leave to Appeal
Outcome
Respondents' motion dismissed.
Legal Topics
['part IV Trade Practices Act Contraventions' 'judicial Disqualification' 'apparent Bias' 'reopening Judgment' 'adjournment Pending Appeal' 'penalty Hearing']
['trade Practices' 'civil Procedure'] ['part IV Trade Practices Act Contraventions' 'judicial Disqualification' 'apparent Bias' 'reopening Judgment' 'adjournment Pending Appeal' 'penalty Hearing']

Case Brief

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Procedural Posture

Trade Practices Proceeding Under Part IV of the Trade Practices Act 1974 (cth) / Respondents' Notice of Motion After Liability Judgment and Before Penalty Hearing, Seeking Reopening, Rehearing, Disqualification or Adjournment Pending Leave to Appeal

Legal Issues

  1. 1 ['Whether the trial judge should reopen the liability judgment and grant a rehearing of the proceeding.' "Whether the trial judge should disqualify himself from further hearing and determination of the proceeding on the ground of misunderstanding the respondents' case or apparent bias." "Whether the penalty, costs and other relief hearing should be adjourned until determination of the respondents' application for leave to appeal from the 26 February 1998 judgment."]

Ratio Decidendi

The respondents' complaints about misunderstanding, natural justice and adverse factual findings were matters for appeal and did not constitute the extremely exceptional circumstances required for the trial judge to reopen the judgment, disqualify himself, order a new trial before another judge, or adjourn the penalty phase pending appeal. Adverse findings made in resolving a stark factual conflict at the liability stage did not establish apparent bias for the penalty hearing.

Court Disposition

Respondents' motion dismissed.

Orders

  • ["The respondents' motion by notice dated 13 March 1998 is dismissed." "The respondents pay the applicants' costs of the motion."]