Australian Competition and Consumer Commission v Hughes

REASONS FOR JUDGMENT 1 The applicant ("the Commission") seeks an order that the respondent ("Hughes") is guilty of contempt of court because he has breached an order made by the Court on 9 November 2000 by failing to cause a notice to be posted, within ten days of that date, on an internet site ("the site") to the effect that oral contraceptives will not be sold or supplied to anyone in Australia. 2 This order was one of several orders made by me on 9 November 2000 including orders restraining Hughes from making misleading and deceptive representations and requiring him to cause to be published an advertisement correcting a false and misleading or deceptive representation, previously published on the site. 3 The order in question is in these terms: "7. Until the further order of the Court: (a) the Respondent, by himself or his agents, cause a notice to be posted on the site to the effect that oral contraceptives will not be sold or supplied to anyone in Australia, such notice to be in font size 12 in Times New Roman and posted within ten days from the date of this order and to remain on the site." 4 The order noted that the Respondent referred to in the orders was David Zero Population Growth Hughes who had appeared before the Court on 9 November 2000. This note was made because Hughes has acted under a number of pseudonyms. The description is used because Hughes holds strong and definite views as to the over population of the planet and the necessity to avoid the problems which arise from excess population pressure. 5 Included in the orders was a note to Hughes that if he disobeyed the orders he could be liable to a fine and/or imprisonment and/or sequestration of his property. Hughes does not contend that he was unaware of the orders made on 9 November or of the caution. 6 On 27 November 2000 Hughes was served on behalf of the Commission with a copy of the Notice of Motion seeking an order that he is guilty of contempt together with the Statement of Charge and an affidavit in support. The service was effected personally. The Statement of Charge reads: "The Respondent is guilty of contempt of the Court in that in breach of orders made by his Honour, Justice Tamberlin on 9 November 2000 he has failed to cause a notice to be posted within ten (10) days from 9 November 2000 on the internet site located and associated with the domain name ("the site") to the effect that oral contraceptives will not be sold or supplied to anyone in Australia, which notice was to remain on the site." 7 Evidence has been filed by the Commission that periodic inspections of the site, during the period 10 November 2000 to 14 December inclusive, disclosed that the required amendment had not been made. However, the printouts from the site in evidence indicate that a number of different amendments have been made to it since 10 November 2000. These are annexed to affidavits filed by the Commission and it is not necessary to itemise them here. It is clear that there has been no compliance with the order. 8 Some of the contraceptive products advertised on the site of Crowded Planet include substances which in the public interest can only be supplied upon the written prescription of a medical practitioner or other authorised person. These are substances within Schedule 4 to the Poisons and Therapeutic Goods Act 1966 ("the Act") known as the "Poisons List": ss 8(2) & 17A. A letter in evidence from the Therapeutic Goods Administration dated 12 January 2000 states that in the opinion of that Administration the site is illegally promoting and supplying Schedule 4 oral contraceptives to the public and that upon being informed of this allegation the respondent failed to make any adequate response. 9 In the course of a television interview on Channel Nine on 24 October 2000 the respondent acknowledged that he had been illegally supplying through the site contraceptive pills and the "morning after" pill to anyone who ordered it on the internet without prescription. He further acknowledged that he did not have any medical qualification to make any decision on a woman's medical condition whether it came from blood pressure, allergies or other complications. In addition, on being confronted with an assertion that he knew that it was illegal to sell any Schedule 4 drug without a prescription, he responded: "Well that's just the law in Australia." 10 Mr Ian Anderson ("Anderson") of Gladesville Hospital, Gladesville, is a pharmaceutical adviser employed by the New South Wales Department of Health. His affidavit evidence was that his duties are to advise on pharmaceutical matters and investigate complaints relating to the Poisons and Therapeutic Goods Act 1966 (NSW) ("the Act"). Anderson has a Bachelor of Pharmacy from Sydney University and a Master of Computing from Macquarie University. He said that on 10 November 2000, in company with two other Pharmaceutical Advisers, he visited and searched the Crowded Planet premises located at 157 Crown Street, Wollongong because the Department of Health had received information alleging certain items were being sold from the premises contrary to the provisions of the Act. His function on that occasion was to download or make copies of relevant files from the Crowded Planet computer. A number of therapeutic goods, in the nature of packets of contraceptive pills, were collected and seized in exercise of powers conferred by s 43 of the Act. Anderson inspected the directories of a number of files on a computer at the premises and found they contained a number of names and addresses. He was unable to download files from the computer to a disk because the files were too large. Importantly, he said that the computer did not appear to be "corrupted" when he left the Crowded Planet premises. 11 In response to the application Hughes filed a Statement in the form of an Affidavit which refers to the visit of the three officers of the New South Wales Health Department. He says that they took away all birth control pills and boxes of emergency contraception for refugee camps, photocopied customer files, and made a copy of the desktop computer hard drive onto a laptop computer. He says that the hard drive on the Crowded Planet computer may have been corrupted by them. Hughes says that from 11 November onwards he attempted on at least three occasions to obey the order of 9 November but was unable to do so for technical reasons related to Microsoft software used by Crowded Planet. He says that on 18 November he asked a person aiding him with his site, "Rodger", to assist him to comply as Hughes does not have computer expertise. He says that he was informed that Rodger could not comply with the order using the Microsoft software. Hughes asserts that he will, if possible, comply with the order but that it seems pointless and a waste of time because Crowded Planet's business, under which he operates, will cease its non-profit operations in Australia and possibly relocate to New Zealand. 12 Hughes was cross-examined by Counsel for the Commission. He conceded that, since 10 November 2000, a number of changes had been made to the site at his direction. Hughes expanded on his statement that it was technically impossible to comply with the order and says that font size 20 point is not available on the Microsoft software. I note here that the order requires the notice to be written in font size 12 point, not 20 point. Hughes said it was his mis-understanding that the order required font size 20. He asserted that the site, posted in California, could not be altered without "hacking" into it, and that this was illegal. 13 Apart from assertion as to suggested technical difficulties in implementing the order Hughes did not call any evidence, either from his computer assistant Rodger whom he was very reluctant to name in order to protect him, or from any other person competent or with expertise to support his assertions. 14 The Commission submits that the amendments to the site after 10 November 2000 show a capacity to amend the site to include new material and that despite these alterations Hughes has not carried through the order by posting the notice. The thrust of the "explanations" put forward by Hughes is that he was unable to comply exactly with the orders of the Court and that he says the Crowded Planet computer may have been corrupted by the "computer incompetence" of the New South Wales Health Department officer who attempted to access the files on it on 10 November. I do not accept this assertion and prefer the evidence of Anderson on this aspect. The "explanation" of Hughes does not dispel the inference to be drawn from the fact that other alterations were carried out to the site. As to the assertion that the site could not be amended without illegally "hacking" into the site by Rodger or some other expert no evidence was called to support it. It was simply an assertion.