Business Sampler (WA) Pty Ltd & Morgan, Janette Lynn & Anor [1995] FCA 1024

Business Sampler (WA) Pty Ltd & Morgan, Janette Lynn & Anor [1995] FCA 1024

The contempt motion should be adjourned to the trial because the respondent was entitled to cross-examine Geue, whose affidavit was the only evidence supporting the alleged contempt, there was no evidence supporting the allegation implied in the final sentence of paragraph 7 of the Statement of Charge, and the relevant undertaking was unclear and closely related to the substantive proceeding. The respondent's security for costs motion should be adjourned with directions to allow it to be heard early in the new year.

Jurisdiction
Australia
Judgment Date
14 December 1995
Procedural Posture
Proceeding Seeking Relief for Alleged Breach of Copyright and Alleged Contraventions of the Trade Practices Act; Interlocutory Contempt Motion and Security for Costs Motion / Interlocutory Motions Heard on 7 December 1995; Orders Made on 14 December 1995
Outcome
Applicants' contempt motion adjourned to be heard at the same time as the trial with costs reserved; respondent's motion adjourned to 8 February 1996 with costs reserved.
Legal Topics
['alleged Breach of Undertakings Given to the Court' 'interlocutory Relief' 'cross Examination on Affidavit Evidence' 'security for Costs' 'adjournment of Motions']
['copyright' 'trade Practices' 'civil Procedure' 'contempt of Court'] ['alleged Breach of Undertakings Given to the Court' 'interlocutory Relief' 'cross Examination on Affidavit Evidence' 'security for Costs' 'adjournment of Motions']

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Procedural Posture

Proceeding Seeking Relief for Alleged Breach of Copyright and Alleged Contraventions of the Trade Practices Act; Interlocutory Contempt Motion and Security for Costs Motion / Interlocutory Motions Heard on 7 December 1995; Orders Made on 14 December 1995

Legal Issues

  1. 1 ['Whether the respondent should be punished for contempt for alleged breach of undertakings given on 5 September 1995.' 'Whether the contempt motion should proceed without the deponent Geue being available for cross-examination.' 'Whether there was evidence to support the allegation of contempt implied in the final sentence of paragraph 7 of the Statement of Charge.' 'What was the meaning and effect of the second undertaking given by the respondent on 5 September 1995.' "Whether the respondent's motion for security for costs should be dealt with after the contempt motion."]

Ratio Decidendi

The contempt motion should be adjourned to the trial because the respondent was entitled to cross-examine Geue, whose affidavit was the only evidence supporting the alleged contempt, there was no evidence supporting the allegation implied in the final sentence of paragraph 7 of the Statement of Charge, and the relevant undertaking was unclear and closely related to the substantive proceeding. The respondent's security for costs motion should be adjourned with directions to allow it to be heard early in the new year.

Court Disposition

Applicants' contempt motion adjourned to be heard at the same time as the trial with costs reserved; respondent's motion adjourned to 8 February 1996 with costs reserved.

Orders

  • ["The applicants' motion of which notice was filed on 27 November 1995 be adjourned and heard at the same time as the trial of the proceeding with costs reserved." "In relation to the respondent's motion of which notice was filed on 30 November 1995 be adjourned to 8 February 1996 with costs reserved."]