Australian Communications and Media Authority v Jones

Federal Court of Australia|2023-05-23|Before: Thomas J

The interlocutory application filed on 9 March 2023 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

OVERVIEW 1 By an interlocutory application filed on 9 March 2023, the third respondent, Mr Brenton Lee Buttigieg, sought orders that the applicant's (Australian Communications and Media Authority (ACMA)) Concise Statement dated 19 April 2022 (Concise Statement) be struck out and that the ACMA be required to file and serve a Statement of Claim in its place. 2 In broad terms, Mr Buttigieg advanced the application on the basis that the Concise Statement failed to make sufficiently clear the case asserted against him which he suggested can only be achieved by the filing of a Statement of Claim. 3 The ACMA rejected the assertion that its Concise Statement does not clearly identify the nature of its case against Mr Buttigieg. Further, it highlighted that Mr Buttigieg's application was made at a time when the proceedings against him have been on foot for almost 12 months and the parties (including Mr Buttigieg) have filed concise responses to the Concise Statement and agreed to orders requiring the ACMA to file all its evidence and to provide standard discovery. 4 Mr Rhys Jones (the first respondent) and Brisbane Poker Pty Ltd (the fourth respondent) neither support nor oppose Mr Buttigieg's application. In the event that the orders sought by Mr Buttigieg are granted, they seek orders that they also be permitted to file a defence to any Statement of Claim filed by the ACMA.

PROCEDURAL BACKGROUND 5 The proceedings were commenced by the ACMA on 19 April 2022 and supported by the Concise Statement. 6 Broadly, the ACMA alleges that the respondents engaged in gambling activities in contravention of s 15(2A) of the Interactive Gambling Act 2001 (Cth) (IGA) and seek declaratory relief, pecuniary penalties and injunctive relief against the respondents. 7 On 29 June 2022, at a case management hearing, the first respondent sought to have the matter proceed by Statement of Claim in place of the Concise Statement. Mr Buttigieg's then counsel declined to support that application, stating the following when asked about his client's position (TS-17 lines 8-10): … In our view, a fundamentally agreed narrative of facts can be reached between our client and the applicant. And in my submission, that is best achieved by orders being made for a concise response to be filed. 8 The first respondent's application was dismissed and orders were made directing the respondents to file and serve their concise responses to the Concise Statement. 9 On 27 July 2022, the ACMA provided Further and Better Particulars in relation to its case against the first and fourth respondents and on 12 August 2022 it provided Further and Better Particulars in relation to its case against Diverse Link Pty Ltd, the second respondent (Further Particulars). 10 On 23 September 2022, Mr Buttigieg's lawyers ceased acting for him. A notice of appearance subsequently filed on 26 September 2022 indicated that new lawyers had been instructed. 11 On 14 October 2022, Mr Buttigieg filed his Concise Response (Concise Response), to which the ACMA filed its reply on 27 October 2022 (Concise Reply). 12 Mr Buttigieg did not seek any Further Particulars from the ACMA, either before or after filing his Concise Response. 13 On 9 March 2023, Mr Buttigieg filed this application. 14 On 13 March 2023, the ACMA sent a letter to Mr Buttigieg setting out the basis on which it opposed this application. 15 On 20 March 2023, the ACMA sent a further letter to Mr Buttigieg summarising its case against him. 16 Mr Buttigieg did not respond to either of these letters.

MR BUTTIGIEG'S SUBMISSIONS IN SUPPORT OF THE APPLICATION 17 Mr Buttigieg contended that, if the ACMA was not required to file a statement of claim, he would be denied the "basic requirement of procedural fairness" and would not be given the opportunity to meet the case against him and to define the issues for decision. 18 In particular, he placed heavy reliance on the fact that the ACMA sought relief against him in the form of civil penalties. He cited the decision of Australian Securities and Investments Commission v Bettles [2020] FCA 1568 (ASIC v Bettles) (per Greenwood ACJ) in support of the proposition that, where a "serious matter" was alleged (such as one which could result in civil penalties), it was essential for the applicant to set out all the material facts and suggested that this could only be done by a Statement of Claim. 19 In his written submissions, Mr Buttigieg identified [38] of the Concise Statement as comprising the "relevant allegations" against him. That paragraph states: The ACMA alleges from at least 30 November 2020 to 22 April 2021, Mr Buttigieg aided, abetted, counselled or procured, or was directly or indirectly knowingly concerned in, or party to, the alleged contraventions of s 15(2A) by each of Brisbane Poker, Mr Jones, and Diverse Link, and therefore contravened s 92 of the Regulatory Powers Act and s 15(2A) of the IGA. 20 Mr Buttigieg identified two aspects of the Concise Statement which he submitted were unsatisfactory: first, that the ACMA failed to identify each factual allegation for each type of accessorial liability (that is, how he aided the contraventions, how he abetted the contraventions and so on); and, second, that the ACMA did not identify how Mr Buttigieg was accessorily liable for "each contravention" alleged (emphasis in submissions). 21 Mr Buttigieg's submissions relied on principles applicable in the context of formal pleadings.

Nature and purpose of concise statements 22 The purpose of a concise statement is to give a concise summary of the nature of the case alleged and the central issues involved. It is said to be a different form of document from a traditional pleading and is directed to exposing the real nature of the dispute: Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2021) 287 FCR 388; [2021] FCAFC 121 (Allianz v Delor Vue) at [140] (per McKerracher and Colvin JJ) (reversed by the High Court on other grounds). See also Federal Court of Australia Central Practice Note [6.8]-[6.10]. 23 In MLC Ltd v Crickitt (No 2) [2017] FCA 937, Allsop CJ said at [4]: One of the underlying reasons for the commencement of a matter by a Concise Statement is the limitation of costs expended before the commencement of proceedings … 24 Later, in Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited (2019) ACSR 52; [2019] FCA 1284 (ASIC v ANZ), Allsop CJ made the following observations at [8]-[9]: 8 As was the intention of the Court in the changes to the practice notes, the concise statement has forestalled a long pleading, which would not have enabled or facilitated the above task to be undertaken without large wasted cost. 9 Without intended disrespect to the parties by saying it, the Court expects the cooperation between the parties and the development of this narrative in a cost-effective manner. To the extent that further interrogation may be required, such can be achieved in a cost-effective manner and a number of tools are available: simple requests for information, confined but precisely targeted interrogatories … 25 Earlier pleading rules do not apply unaffected by the new context and character of the concise statement: Allianz v Delor Vue at [148]. 26 Of course, this does not mean that a concise statement can act as an excuse for laziness in analysis or vagueness or imprecision in expression: Allianz v Delor Vue at [153]. 27 As set out at [5.6] of the Court's Commercial and Corporations Practice Note (C&C-1), a concise statement will: … be plain, concise and direct in every regard. It will omit unnecessary repetition and will do no more than summarise: (a) the important facts giving rise to the claim; (b) the relief sought from the Court (and against whom); (c) the primary legal grounds (causes of action) for the relief sought; and (d) the alleged harm suffered by the applicant, including - wherever possible - a conservative and realistic estimate or range of loss and damage. 28 In Allianz v Delor Vue, McKerracher and Colvin JJ further observed at [150]: It may be accepted that where a case proceeds upon pleadings then the function of those pleadings is to state with sufficient clarity the case that must be met and to ensure that a party has the opportunity to meet that case and also to define the issues for determination: Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286. However where this Court, in civil proceedings, gives effect to a different procedure in accordance with the overarching purpose to facilitate the just resolution of disputes (and does so in the expectation that the parties to the civil proceeding will conform to their statutory obligation to act in a way that is consistent with that overarching purpose) then the function of clearly stating the case to be met by each party and affording procedural fairness so each party can meet that case is performed by the supervised case management process. (emphasis added) 29 Whether the matter proceeds by way of statement of claim or concise statement, the case which must be met must be outlined with sufficient clarity to ensure that the party has the opportunity to meet that case. 30 Where a concise statement is delivered, in considering whether a case has been stated with sufficient clarity to ensure that a party has the opportunity to meet that case and to define the issues for determination (to determine whether procedural fairness has been afforded), regard must be had to the whole of the supervised case management process: Allianz v Delor Vue at [151]. 31 For these reasons, the material facts relied upon, and the nature of the case, may be exposed by other methods of disclosure which best suit the circumstances of the particular case: Allianz v Delor Vue at [154].

"Provision of further particulars is not a solution to the problem" 32 In some instances, further and better particulars cannot correct a lack of an adequate outline of the case, for example if the concise statement does not deal with a matter at all. In that case, there would be no matter about which a particular could be given. 33 Unlike a pleading, a concise statement does not need to state all the matters relied upon by the applicant. As stated in Allianz v Delor Vue at [144], a concise statement serves the: … broader function of providing a fair disclosure of the nature of the case to be advanced with more precise issues being disclosed by other means and to the extent considered to be appropriate in the interests of fairness … (emphasis added) 34 If it is considered that the concise statement is lacking in detail, the Court is able to consider whether some other procedure might be followed to expose the issues (for example, the provision of certain particulars, delivery of a focused interrogatory or disclosure of categories of documents). This was contemplated in ASIC v ANZ and in Allianz v Delor Vue at [141]: The concise statement … enables the Court to consider whether it is appropriate for the application to proceed on the basis of the concise statement without pleadings, whether the efficient conduct and disposition of the application is better served by requiring pleadings or whether some other procedure might be followed to expose the issues, such as requiring a statement of issues, the provision of detailed particulars of particular aspects of the claim or the disclosure of certain categories of documents that are of key significance for the resolution of the dispute.

Are concise statements treated differently in respect of "more serious" cases? 35 A concise statement is not inappropriate in cases where civil penalties or other "serious" relief is sought. Procedural fairness does not require there to be a statement of claim: Allianz v Delor Vue at [150]. 36 The concise statement method is applicable to all proceedings in this Court: Central Practice Note [6.5]-[6.10]. There have been many instances where proceedings involving civil penalties have progressed to trial by way of concise statements: see, for example, Australian Competition and Consumer Commission v SmileDirectClub LLC [2022] FCA 1343 (per Anderson J); Australian Securities and Investments Commission v Austal Ltd [2022] FCA 1231 (per O'Bryan J); and Australian Competition and Consumer Commission v Lactalis Australia Pty Ltd [2022] FCA 1087 (per Derrington J). 37 Dealing with a separate question arising in a native title proceeding, Mortimer J (as her Honour then was) considered that a concise statement would be the most appropriate method to allow the other side to better understand the case: Nona on behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland [2020] FCA 1353 at [23]-[28]. Her Honour relevantly stated at [26]: … (b) [The concise statement] is an intelligible and accessible form for members of the native title claimant communities to understand the issues. (c) Since the documents are short, and to be expressed in plain English, it will assist in ensuring the separate question hearing is fair to the Badulgal respondents in the event they cannot secure legal representation, or secure it later. … (emphasis added)

Greenwood ACJ's decision in ASIC v Bettles 38 As mentioned above, Mr Buttigieg relied on a decision of Greenwood ACJ, when his Honour determined that the applicant's concise statement should be struck out and that it should prepare a statement of claim instead: ASIC v Bettles. 39 In his written submissions, Mr Buttigieg quoted Greenwood ACJ's observation that it was "essential for ASIC to set out all of the material facts which, if proved, establish conduct on the part of particular persons … which is said to constitute a contravention of the Act": see Mr Buttigieg's submissions at [8]. 40 In effect, Mr Buttigieg's submissions suggested that such an exposition of the material facts can only be achieved by way of a statement of claim and that Greenwood ACJ's decision is authority for a more general proposition that there should be a statement of claim in "serious" cases, such as ones where a civil penalty is sought. 41 In ASIC v Bettles, Greenwood ACJ made express reference to the possibility of the material facts being contained in a concise statement. The relevant passage (at [85]) actually stated: It follows that it is essential for ASIC to set out all the material facts which, if proved, establish conduct on the part of particular persons (perhaps described in a definitional sense in the document which might be either a Concise Statement or a Statement of Claim, as the "controllers"), which is said to constitute a contravention of the Act … (emphasis added). 42 Greenwood ACJ acknowledged that the ASIC might have been able to develop a coherent statement of the case within a concise statement, but that in the circumstances of the case (where the ASIC had already filed a supplementary concise statement in an attempt to remedy its deficiencies), the "best way forward" was for the ASIC to prepare a statement of claim: see ASIC v Bettles [132]. 43 As outlined in Allianz v Delor Vue at [154] (see at [31] above), the material facts relied upon may be exposed by documents other than the concise statement itself.

THE ACMA'S CASE AGAINST MR BUTTIGIEG 44 The central question is, of course, whether the nature of the case against Mr Buttigieg has been fully and fairly disclosed. The requirement to do this is not in doubt. 45 The content of the Concise Statement is a significant consideration in determining whether the nature of the ACMA's case has been fairly disclosed, but, as I have said, the inquiry is not confined to the Concise Statement: see Allianz v Delor Vue at [148]. 46 It is necessary to take account of the case management process and consequential steps which have been taken by the parties in the proceedings. In this case: (a) a similar application was made by the other respondents, not supported by Mr Buttigieg, who did not object to the content of the Concise Statement; (b) particulars had been provided of the Concise Statement against the other respondents; (c) Mr Buttigieg had delivered a Concise Response and the ACMA has delivered a Concise Reply; (d) an order had been made by consent of all parties as to delivery of evidence by the ACMA and provision of documents by the ACMA; (e) in response to the application having been made by Mr Buttigieg, the ACMA provided additional information by way of the letter dated 20 March 2023 (consistent with the observations made by Allsop CJ in ASIC v ANZ as to the provision of information). 47 The ACMA's case can be drawn from its Concise Statement, Concise Reply, Further Particulars and the letter it sent on 20 March 2023. 48 These documents are to be read together and regard must also be had to the whole of the supervised case management process to ascertain whether the ACMA's case against Mr Buttigieg has been sufficiently set out: see Australian Securities and Investments Commission v Westpac Securities Administration Ltd (2019) 272 FCR 170; [2019] FCAFC 187 at [185] (per Allsop CJ) and Allianz v Delor Vue at [151].

Concise Statement, Concise Reply and Further Particulars 49 As extracted above, by [38] of the Concise Statement, the ACMA contended that Mr Buttigieg is liable for contraventions of s 15(2A) of the IGA on an ancillary basis: The ACMA alleges from at least 30 November 2020 to 22 April 2021, Mr Buttigieg aided, abetted, counselled or procured, or was directly or indirectly knowingly concerned in, or party to, the alleged contraventions of s 15(2A) by each of Brisbane Poker, Mr Jones, and Diverse Link, and therefore contravened s 92 of the Regulatory Powers Act and s 15(2A) of the IGA. 50 This is not the only "relevant allegation" against him in the Concise Statement. 51 Paragraphs [2]-[6] and [8]-[34] of the Concise Statement set out the facts and circumstances which comprise the allegedly unlawful acts of the principal offenders, namely the first, second and fourth respondents. In relation to the primary contraventions, the Concise Statement broadly alleged that: (a) s 15(2A) of the IGA makes it unlawful for a person to provide a "prohibited interactive gambling service" that has an "Australian-customer link": [1]; (b) from at least 2 March 2020, the second and fourth respondents have operated various online poker services which constituted a prohibited interactive gambling service, and the first respondent, as director of the fourth respondent, was also involved: [2]; (c) the fourth respondent initially provided a service which operated under the name "PPPFish": [3]; (d) after receiving advice from the ACMA that the PPPFish service was contravening s 15(2A) of the IGA, on 6 January 2021, the private poker clubs on the PPPFish service migrated to new clubs referred to as "Shuffle Gaming" clubs: [4]-[5]; (e) subsequently, on 10 March 2021, the Shuffle Gaming service was shut down and a new service called the "Redraw Poker" service was established, and remains operating. This service was provided by the second respondent: [6]. 52 These services are all said to have been operated in contravention of s 15(2A) of the IGA. The way in which that is said to be the case is set out in detail at [8]-[34] of the Concise Statement. 53 These facts and circumstances have been further expanded upon in the ACMA's Further Particulars. 54 The Concise Statement identified at [7] how the ACMA contended that Mr Buttigieg is accessorily liable by setting out the circumstances in which Mr Buttigieg was said to have engaged in the allegedly contravening conduct. 55 In essence, it is contended that he engaged in the allegedly contravening conduct between 30 November 2020 to 22 April 2021, when he: (a) administered a private Facebook group for the PPPFish, Shuffle Gaming and Redraw Poker services; (b) promoted those services; (c) referred customers to those services; and (d) provided instructions to customers on how to use the services. 56 The whole paragraph states as follows: Since at least 30 November 2020 to 22 April 2021, the third respondent, Mr Brenton Lee Buttigieg, has administered a private Facebook group for the PPPFish, Shuffle Gaming and Redraw Poker services, promoted the services, referred customers to the services and provided instructions on how to use the services. The ACMA alleges that in so doing Mr Buttigieg contravened s 15(2A) of the IGA by engaging in conduct ancillary to the contraventions of s 15(2A) by Brisbane Poker, Mr Jones and Diverse Link. 57 The Concise Statement made it clear that the facts outlined were the facts which, it was asserted, led to the conclusion that Mr Buttigieg contravened s 15(2A) of the IGA by engaging in conduct ancillary to the contraventions of s 15(2A) by the first, second and fourth respondents. 58 It was also clear the ACMA asserted that, based upon the case of EZY Accounting 123 Pty Ltd v Fair Work Ombudsman (2018) 360 ALR 261; [2018] FCAFC 134, the matters were one single concept. 59 It seems clear the ACMA will seek to establish that the conduct described at [7] is sufficient to constitute an act or conduct by Mr Buttigieg which implicated or involved him in the alleged primary contraventions so as to make him knowingly concerned. 60 As to how Mr Buttigieg was accessorily liable for "each contravention", in [1(e)] of the Concise Reply, the ACMA asserted that s 15(2B) of the IGA is to the effect that a person commits a separate contravention of that provision in respect of each day during which the contravention occurred.

The ACMA's letter dated 20 March 2023 61 As to whether the case against Mr Buttigieg has been sufficiently identified, the letter from the ACMA dated 20 March 2023 is also of relevance. 62 In that letter, the ACMA sets out the case against Mr Buttigieg. 63 The ACMA made clear in [3] that it alleged that Mr Buttigieg was liable under the IGA on an ancillary basis only. 64 It identified in [4] the primary contraventions to which Mr Buttigieg was alleged to be ancillary, before it set out the alleged factors upon which it relied to establish that he was accessorily liable in [5]-[7]. 65 In [8], reference was made to admissions made by Mr Buttigieg in relation to some of the factual matters. 66 In [9], the ACMA indicated it was willing to consider any request for Further Particulars, noting that the ACMA was not required to identify the evidence upon which it would rely. The ACMA noted that, were it not for the filing of his application, Mr Buttigieg would have shortly received the ACMA's evidence against Mr Buttigieg (which was the subject of consent orders made by the Court). 67 The fact that evidence might have been filed is not, in my view, relevant to the question raised by Mr Buttigieg. In the usual course, a party to proceedings must be made fully aware of the case well in advance of delivery of evidence.

CONCLUSION 68 The potential imposition of civil penalties upon Mr Buttigieg is a "serious" matter, as the term was used by Greenwood ACJ in ASIC v Bettles. There is no doubt that, in such circumstances, procedural fairness requires that Mr Buttigieg is aware fully of the case he has to meet. However, the entitlement to procedural fairness does not mean that a statement of claim is required in lieu of a concise statement. 69 The key question is whether Mr Buttigieg has been made fully aware of the case against him. 70 In this case, the stage which the proceedings have reached is relevant to that question. The way in which cases operate in this Court is through a structured case management process designed to achieve the overarching purpose of the civil practice and procedure provisions which is, of course, to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible (s 37M of the Federal Court of Australia Act 1976 (Cth)) 71 As issues arise, they are dealt with as part of the case management process as the matter progresses. Thus, specific concerns can be dealt with in a timely, specific and efficient way which avoids unnecessary cost for the parties. The supervised case management process ensures that parties are afforded procedural fairness. 72 The use of a concise statement is complementary with the way in which matters are conducted in this Court and consistent with the overarching purpose. 73 Previously, through his former representatives, Mr Buttigieg indicated to the Court that the filing of a Concise Response would be the appropriate course to follow. No question was raised as to the adequacy of the way in which the case was outlined against him. He filed a Concise Response and the ACMA has filed a Concise Reply. These steps are all relevant to the question raised by Mr Buttigieg. 74 Mr Buttigieg joined with the other parties in agreeing to orders relating to delivery of evidence by the ACMA and provision of discovery. 75 At this stage in the proceedings, the nature of the ACMA's case against Mr Buttigieg has been provided through its Concise Statement combined with the Concise Reply, Further Particulars and letter dated 20 March 2023. 76 The application made by Mr Buttigieg is dismissed. 77 I will hear argument regarding the costs of the application. 78 The provision of the evidence and discovery has been delayed as a result of this application. I will make timetabling orders dealing with those matters. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thomas.

SCHEDULE OF PARTIES QUD 129 of 2022 Respondents Fourth Respondent: BRISBANE POKER PTY LTD (ACN 636 038 269)

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