JUSTICE STEPHEN BURLEY CONSPIRED WITH FRAUD ANNABELLE BENNETT

Posted on 16 August 2016

Justice Stephen Burley (“Burley J”) a judge of the Federal Court of Australia since May 2016, filled the vacancy left by former Justice Annabelle Bennett (“Annabelle Bennett”) leaving the position some years before the mandatory retirement age of 70, which according to journalist Katie Walsh at Fairfax Media “is considered a bold, uncommon move”.

Justice Stephen Burley

FROM L-R: David Bennett, senior counsel at 5 Wentworth; Justice Stephen Burley, a judge of the Federal Court of Australia; and Annabelle Bennett, senior counsel at 5 Wentworth.

5 WENTWORTH CHAMBERS COLLEGIALITY & RIGGED COURT OUTCOMES

(“Burley J”) practiced at 5 Wentworth Barristers Chambers (“5 Wentworth”) from 1993–2016 alongside David Bennett, former Solicitor-General for the Commonwealth of Australia and husband of (“Annabelle Bennett”), and also with mentor (“Annabelle Bennett”) at ("5 Wentworth") from 1993 until the appointment of (“Annabelle Bennett”) to the position of a judge of the Federal Court of Australia in 2003.

(“5 Wentworth”) collegiality positioned (“Burley J”) to perform a complete job swap with (“Annabelle Bennett”) returning to (“5 Wentworth”) in 2016 to make way for the appointment of ("Burley J") by Attorney-General George Brandis to the Federal Court of Australia.


THE TIES RUN DEEP FOR (“BURLEY J”), (“ANNABELLE BENNETT”),
(“YATES J”) AND (“RARES J”)

In March 2016 when (“Annabelle Bennett”) departed the Federal Court of Australia to make way for ("Burley J"), (“Annabelle Bennett”) passed on the mantle of social secretary and SSPJ – Senior Sydney Puisne Judge to Justice Steven Rares (“Rares J”) to organise the future social life of the Sydney registry.

In 1993 when (“Burley J”) came to the NSW bar he read with Justice David Yates (“Yates J”) and (“Rares J”) and was given his “red bag” by (“Annabelle Bennett”).


(“ANNABELLE BENNETT”) CONSPIRED WITH ("BURLEY J") FOR APPLE

("5 Wentworth") collegiality extended to the landmark Apple v Samsung Federal Court of Australia proceedings – NSD1243/2011 Apple Inc. & Anor v Samsung Electronics Co. Limited & Anor, when (“Annabelle Bennett”) conspired and engaged in fraud, providing a pre-determined court outcome for (“5 Wentworth”) client Apple, in granting an injunction on 13 October 2011 sought by (“Burley J”) when senior counsel at (“5 Wentworth”) acting for Apple, which would have effectively killed off the Samsung Galaxy Tab 10.1 in Australia had the (“Annabelle Bennett”) fraud not been set aside on 30 November 2011 by a full bench decision in a Samsung appeal.


(“ANNABELLE BENNETT”), (“BURLEY J”), (“RARES J”) AND (“YATES J”) CONSPIRED TO CONCEAL NESTLÉ AND (“POST") CONSPIRACY TO CUT SUPPLY TO ("A-SASHI”)

In late 2013 when Post Holdings (“Post”) were preparing to acquire, the PowerBar + Musashi brands and related worldwide assets (“PowerBar + Musashi”) from Nestlé in a $500 million cash and stock deal, Nestlé conspired with (“Post”) to approach Arnet Pharmaceutical (“Arnet”) a contract manufacturer of nutritional supplements in the USA, to engage in a conspiracy to cut supply to the James William Christian (“Christian”) business A-Sashi Vitamins (“A-Sashi”).

(“Arnet”) co-manufactured for (“A-Sashi”) from December 2012 but refused to continue in November 2013 after Owen Nelson PowerBar + Musashi General Manager caused (“Arnet”) to receive a supply-contract from (“Post”) for cutting supply to ("A-Sashi"). Information detailing (“Arnet”) and (“A-Sashi”) was purposely provided to Owen Nelson by Aldo D’Agostino, Head of Sales Oceania, DHL Global.

("Post") and Nestlé caused ("Arnet") to cut supply to (“A-Sashi”) and for a collateral purpose of willful and malicious harassment instructed IP lawyers, Banki Haddock Fiora ("BHF") to file a Musashi trademark action to be brought against (“A-Sashi”) under the Trade Marks Act 1995 filed on 20 December 2013 commencing legal proceedings in the Federal Circuit Court of Australia proceedings – SYG3214/2013 Société des Produits Nestlé SA & Ors v James William Christian (“FCC proceedings”), just over a month prior to (“Post”) announcing on 3 February 2014 it agreed to acquire (“PowerBar + Musashi”).

(“Christian”) filed an application for leave to appeal (“app for leave to appeal 16 Sept 2014”) commencing the Federal Court of Australia proceedings – NSD940/2014 James William Christian v Société des Produits Nestlé SA & Ors (“Federal Court proceedings”), to appeal from orders made in the ("FCC proceedings").

(“Burley J”) practiced at (“5 Wentworth”) and appeared for Nestlé and ("Post”) in the (“FCC proceedings”) and (“Federal Court proceedings”), with ("Annabelle Bennett") and (“Rares J”) hearing matters in the (“Federal Court proceedings”) along with the docket judge for the proceedings (“Yates J”).

Material facts in the Musashi trademark litigation in the (“FCC proceedings”) and (“Federal Court proceedings”) revealed the conspiracy by Nestlé, (“Post”) and (“Arnet”) to cut supply to (“A-Sashi”) and exposed violations of U.S. federal securities and antitrust laws and contraventions of the Australian Competition and Consumer Act 2010 ("CCA"). To avoid the possibility of exposing material facts in the Australian Court proceedings to U.S. federal law enforcement agencies, (“Post”) conspired to conceal the Musashi legal proceedings from the reporting of the acquisition of (“PowerBar + Musashi”) for Securities and Exchange Commission (“SEC”) mandatory filings.


(“POST") DUMPED MUSASHI AT A LOSS EXCEEDING $40 MILLION
TO CONCEAL CRIMINAL ACTIONS

In October 2014 (“Post”) acquired (“PowerBar + Musashi”) from Nestlé in a $500 million cash and stock deal, with Musashi valued at an estimated $45 million. (“Post”) dumped Musashi at a loss exceeding $40 million during the (“Federal Court proceedings”), in a sell-off to Vitaco Holdings (“Vitaco”) for $3.8 million on 1 July 2015 and misrepresented the sell-off for (“SEC”) mandatory filings, in the attempt to conceal criminal actions and disconnect from Musashi liabilities revealing that:

(a) (“Post”) engaged in a conspiracy with Nestlé and (“Arnet”) to cut supply to (“A-Sashi”) and for a collateral purpose of willful and malicious harassment caused a Musashi trademark action to be brought against (“A-Sashi”) under the Trade Marks Act 1995 (Cth) filed on 20 December 2013 commencing the (“FCC proceedings”); and

(b) (“Post”) wilfully violated reporting and disclosure requirements under U.S. federal securities laws when purposefully concealing Musashi trademark litigation in the (“FCC proceedings”) and (“Federal Court proceedings”) from the reporting of the acquisition of (“PowerBar + Musashi”) for (“SEC”) mandatory filings, to conceal material facts in both proceedings exposing (“Post”) willful violations of U.S. antitrust laws.


FEDERAL COURT OF AUSTRALIA APPEALS ARE DELIVERED WITHIN 3 MONTHS

Federal Court of Australia Annual Report for 2014/15 and Annual Report for 2015/16 states:

“The Court has a goal of delivering reserved judgments within a period of three months.”
“The data indicates that eighty-seven per cent of appeals (both full court and single judge) were delivered within three months.”

("YATES J") CONSPIRED WITH (“RARES J”) AND (“ANNABELLE BENNETT”) TO CAUSE AN 8-MONTH & 2-DAY STOPPAGE ON DELIVERING A RESERVED JUDGMENT IN THE ("FEDERAL COURT PROCEEDINGS") TO FACILITATE J.P. MORGAN, CITIGROUP AND (“POST”) MATERIAL NON-DISCLOSURE AND TO PERVERT THE COURSE OF JUSTICE

(“Yates J”) conspired to cause an 8-month & 2-day stoppage on delivering a reserved judgment from 2 March–4 November 2015 and to ensure pre-determined outcomes with (“Rares J”) and former Justice Annabelle Bennett (“Annabelle Bennett”) in the (“Federal Court proceedings”), to facilitate the (“Post”) on-sell of the Musashi brand to (“Vitaco”) for the (“Vitaco”) $332 million initial public offering (“IPO”) and for the joint lead managers for the ("IPO"), J.P. Morgan and Citigroup, to avoid the consequences of civil liability, civil penalty and criminal liability provisions for contraventions of disclosure requirements under the Corporations Act 2001 for the prospectus filed on 24 August 2015 with ASIC for the (“Vitaco”) (“IPO”) closed on 11 September 2015, for having purposefully concealed Musashi trademark litigation in the ("Federal Court proceedings"), with the particulars being:

(a) (“Yates J”) conspired to ensure a stoppage on ("Christian") filing an application for special leave to appeal in the High Court of Australia during the (“Vitaco”) acquisition of the Musashi brand from (“Post”) completed on 1 July 2015 and the (“Vitaco”) (“IPO”) closed on 11 September 2015; and

(b) (“Yates J”) conspired with (“Annabelle Bennett”) to facilitate concealment of contraventions of the Corporations Act 2001 for non-disclosure of the ("Federal Court proceedings") in the prospectus dated 24 August 2015 filed with ASIC for the ("Vitaco") (“IPO"), with the particulars being:

(i) (“Annabelle Bennett”) ensured a 21-day stoppage on the (“Christian”) 31 August 2015 application in a case (“31 Aug 2015 interlocutory application”) seeking the joinder of correct parties to the (“Federal Court proceedings”), in ("Annabelle Bennett") giving instructions to the Sydney Registry for the application to remain unprocessed for 21-days until 21 September 2015, 10-days after the (“Vitaco”) (“IPO”) closed on 11 September 2015;

(ii) (“Annabelle Bennett”) ensured the (“Vitaco”) entities listed in the 24 August 2015 prospectus, the share & asset sale agreement and the (“31 Aug 2015 interlocutory application”), as the purchasers on 1 July 2015 of the Musashi brand, Vitaco Health Australia Pty Ltd & Health Foods International Ltd, not to be joined as parties;

(iii) (“Annabelle Bennett”) ensured an entity not listed in the 24 August 2015 prospectus, Vitaco Health IP Pty Ltd, which was re-assigned the Musashi intellectual property ownership on 21 September 2015 in an agreement drafted that day 2 hours prior to the (“Annabelle Bennett”) hearing of the (“31 Aug 2015 interlocutory application”), to be joined as a party to the ("Federal Court proceedings”) on 21 September 2015, 10-days after the (“Vitaco”) (“IPO”) closed on 11 September 2015;

(iv) (“Annabelle Bennett”) ensured the (“31 Aug 2015 interlocutory application”) filed by (“Christian”) to be listed on the (“CCP”) after the ("Vitaco") ("IPO") closed and as a directions hearing and not correctly listed as an interlocutory application hearing; and

(c) (“Yates J”) conspired with (“Rares J”) to facilitate concealment of contraventions of the Corporations Act 2001 for non-disclosure of the ("Federal Court proceedings") in the prospectus dated 24 August 2015 filed with ASIC for the ("Vitaco") (“IPO"), with the particulars being:

(i) (“Rares J”) ensured a (“Vitaco”) entity, the fifth respondent/cross appellant: Vitaco Health IP Pty Ltd, a party to the (“Federal Court proceedings”), not to be listed on the (“Rares J”) 18 November 2015 judgment and orders made; and

(d) (“Yates J”) conspired with (“Rares J”) to facilitate concealment of violations of reporting and disclosure requirements under U.S. federal securities laws, for non-disclosure of the (“FCC proceedings”) for (“Post”) (“SEC”) mandatory filings, caused by the attempt to conceal material facts in the proceedings revealing violations of U.S. antitrust laws and contraventions of the ("CCA"), with the particulars being:

(i) (“Rares J”) ensured two (“Post”) entities, the third respondent/cross appellant: Premier Nutrition Corporation & the fourth respondent/cross appellant: Post Foods Australia Pty Ltd, both parties to the (“Federal Court proceedings”), not to be listed on the (“Rares J”) 18 November 2015 judgment and orders made; and

(e) (“Yates J”) ensured greater concealment of the unlawful collusion against (“Christian”) in conspiring to ensure further pre-determined outcomes designed to disadvantage (“Christian”) in matters including, the Notice of a Constitutional matter under section 78B of the Judiciary Act 1903 filed by (“Christian”) in the (“FCC proceedings”) on 5 December 2014, the (“Christian”) 15 January 2015 application for removal in the High Court of Australia for a cause pending in the (“FCC proceedings”), the 4 November 2015 full bench judgment and orders made in the ("Federal Court proceedings") and the (“Christian”) application for special leave to appeal (“app for special leave to appeal 17 Nov 2015”) in the High Court of Australia proceedings – S239/2015 James William Christian v Société des Produits Nestlé SA & Ors (“High Court proceedings”); and

With particulars relating to (“Burley J”) and (“Annabelle Bennett”) conspiring to ensure the (“31 Aug 2015 interlocutory application”) remained unprocessed during the (“Vitaco”) (“IPO”) being that:

On 31 August 2015 (“Christian”) filed the (“31 Aug 2015 interlocutory application”) by eLodgment seeking the Musashi registered purchasers, Vitaco Health Australia Pty Ltd & Health Foods International Ltd, to be joined as parties to the (“Federal Court proceedings”); and

On 1 September 2015 (“Christian”) called the Sydney Registry of the Federal Court of Australia and spoke to team member Joshua Goldshaft about the status of processing the (“31 Aug 2015 interlocutory application”) with Joshua Goldshaft stating:

“We are still waiting for instructions from Bennett J chambers but it should be processed by the end of today. Applications are normally processed within 24 hours.”; and

On 2 September 2015 due to the (“31 Aug 2015 interlocutory application”) still remaining unprocessed, ("Christian") emailed Timothy Gonski the Associate of Bennett J stating:

“For her Honours attention, I respectfully request the interlocutory application filed on 31 August 2015 to join Vitaco Holdings Limited ('VIT') as a party be dealt with as a matter of urgency as it is negligent of both the respondents and ('VIT') not to have made the application within these proceedings at the time of the acquisition of Musashi by ('VIT') in July 2015 and not to comply with ASX Limited listing rules in relation to disclosure obligations within the ('VIT') IPO period expected to close 11 September 2015.”; and

On 2 September 2015 with IP lawyers ("BHF") acting for Nestlé, ("Post”) and ("Vitaco") not responding to service of the (“31 Aug 2015 interlocutory application”) Timothy Gonski the Associate of Bennett J emailed the IP lawyers ("BHF") and copied ("Christian") stating:

“Would the respondents/cross-appellants please inform the Court of their position on the filing of this interlocutory application.”; and

On 7 September 2015 with IP lawyers ("BHF") still not responding to service of the (“31 Aug 2015 interlocutory application”), Timothy Gonski the Associate of Bennett J sent another email to the IP lawyers ("BHF") and copied ("Christian") stating:

“Their Honours are surprised that the respondents/cross-appellants have not responded to the application (and my email from 2 September 2015) as the interlocutory application concerns the respondents.”; and

On 7 September 2015 IP lawyers ("BHF"), partner Ms Julie Robb, emailed Timothy Gonski the Associate of Bennett J stating:

“I apologise to their Honours for the delay in response. I have sought, but have thus far not received instructions in respect of your email of 2 September. I hope to receive instructions overnight, and to be in a position to provide a substantive response tomorrow. I will contact you again then in any event.”; and

On 8 September 2015 IP lawyers ("BHF"), partner Ms Julie Robb sent another email to Timothy Gonski the Associate of Bennett J advising ("Burley J") will be able to inform their Honours further on 10 September 2015 when he returns from a hearing in Melbourne, with Ms Robb stating:

“I have now received instructions, subject to conferring with senior counsel. I am informed by his clerk that Mr Burley is in a hearing in Melbourne that finishes tomorrow. I therefore expect to be able to inform their Honours of my clients’ position by Thursday morning (10.09.15).”; and

On 17 September 2015 Timothy Gonski the Associate of Bennett J emailed (“Christian”) and IP lawyers ("BHF"), stating:

“Due to the complexity of this interlocutory application, the matter will be re-listed for directions before Bennett J on Monday, 21 September 2015 at 9.30am.”

 

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