Free Law Dissertations - ..there Would Be No Matter Relating To Which A Person Could Furnish
..there would be no matter relating to which a person could furnish informationas provided for by s 155 (1).
Lockhart J, in reference to Melbourne Home of Ford v Trade Practices
Commission concluded that ’matter’ is itself a complex of factsanswering the description of the ‘matter’ that may or may not constitute [sic] a contravention of the Act.
Furthermore, using the reference of Riley McKay Pty Ltd v Bannerman, Lockhart J defined reason to believe from s 155 (1) of the Act as:-
Meaning that the Commission must believe that a person is capable of furnishing information, producing documents or giving evidence, and there must be reasonable grounds or cause for belief before the power conferred by s 155 (1) is exercised.
Brennan J, referring to various cases , stated:- a challenge to the validity of a s 155 (1) notice requires the applicant to show that the Chairman has no reason to believe that the personis capable of furnishing information, producing documents or giving evidence
Furthermore, Lockhart J defined the words that constitutes or may constitute as outlined in s 155 (1) intends to draw a distinction between existing or past contraventions
In relation to discovery of documents, discovery could not be obtained in the absence of evidence that the respondent did not have the belief required by s 155 (1).
The court heard no argument to suggest that para 6 was inapposite to raise a challenge though the difficulty in supporting a challenge was recognised.To make this challenge good, it was argued that the respondent may be required to give discovery under 0 15, r 1 of the Federal Court Rules. This rule states that after a direction hearing pursuant to Order 10any party may unless the court otherwise ordersrequire any other party to give discovery of documents. In comparison with the Civil Procedure Act 2005 (NSW), under 5.4 (1) it is for the Court to decide whether to grant discovery.
Furthermore, the respondent seeks to strike out paras 5 and 6 of the statement of claim, relying upon rules 0 11, r 16 and 0 20, r 2 of the Court to aid him. 0 11, r 16 states where a pleading discloses no reasonable cause of actionor is otherwise an abuse of processthe Courtmay order any part of the pleading to be struck out.
0 20, r 2 states where in any proceeding...no reasonable cause of action is disclosed...the Court may order the proceeding to bedismissed. Under 13.4 and 14.28 of the Civil Procedures Act 2005, the change to these orders that may be given, is for an evidentiary hearing to be held when an application is first put forth to the Court.
Implications
Brennan J stated the difficulty a recipient of a notice has in challenging the validity of a notice as deemed by s 155 (1), that para 5 did not raise the challenge and so it was right to strike it out.
