Australian Competition and Consumer Commission v Sensaslim Australia Pty Ltd [2012] FCA 939 | Case summary

Background 2 Before dealing with the basis on which the adjournment is sought, it is necessary for me to set out some background matters that have occurred since this proceeding was commenced on 15 July 2011 with an application for ex parte injunctive relief and for the abridgement of time for service of the application commencing the proceeding and other court process. Those applications were made before me. The proceeding has remained in my docket since that time. In very general terms, the proceeding concerns the marketing of a product called Sensaslim which was said to have been promoted to a large number of individuals each of whom acquired that product as a franchisee based on representations made about the product. It is alleged that the second respondent was implicated in those matters and contravened provisions of the Trade Practices Act 1974 (Cth) and the Australian Consumer Law. The applicant seeks declarations of contravention, injunctions, civil penalties, compensation orders and banning orders, amongst other relief. The banning order sought against the second respondent is that he be disqualified from managing corporations for a period of 20 years. 3 The first background matter is that, during the pendency of the present proceeding, the applicant filed an interlocutory application and statement of charge on 11 November 2011 alleging criminal contempt by the second respondent in a proceeding that had been commenced in the Queensland District Registry of the Court: QUD 252 of 2001 - Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (Deregistered) (the contempt proceeding). In that proceeding a warrant for the imprisonment of the second respondent was issued on 28 November 2011. By an order made on 7 December 2011 the second respondent was conditionally released pending the determination of the charge against him. One of the conditions of his release was that he reside at a certain address in Queensland (or at such other place in Queensland as may be authorised in writing by the applicant). The order was made subject to the payment into court of, or the provision of a bank guarantee for, the sum of $125,000 by a surety or sureties. Luigina Foster (also known as Louise Foster), the second respondent's mother, became his surety and paid the sum of $125,000 into court. 4 The second respondent unsuccessfully sought to have the hearing of the contempt proceeding deferred until the hearing of the present proceeding. In support of his application in that regard the second respondent, by his counsel, argued that the present proceeding should be heard first because many more individuals were affected by this proceeding than the contempt proceeding, which only concerned him. He relied on the existence of a number of freezing orders that had been made in this proceeding (to which I will refer below) and the hardship being suffered by those subject to those orders, and the fact that in excess of 100 franchisees of the Sensaslim product might well be entitled to compensation as a result of this proceeding. He also referred to the possible commencement of a class action to recover compensation with respect to the Sensaslim product. 5 The hearing of the contempt proceeding commenced in June 2012. It is presently part-heard with the hearing to resume on 24 September 2012 and to continue until 5 October 2012. The second respondent wishes to call evidence in that proceeding from Robin Howard Reichelt who is currently in prison at HMP Ford in Arundel in the United Kingdom. Apparently Mr Reichelt was not available to give evidence during the June hearing. Mr Reichelt's evidence is now to be given by videolink on 2 October 2012 whilst he is on day release. He is not able to give evidence by videolink from prison. It is said by the second respondent that Mr Reichelt is due for relase from prison on 7 December 2012. 6 The second respondent is and has been represented in the contempt proceeding by a solicitor (Mr Fisher of Fisher Dore Lawyers) and by counsel. He has the benefit of a grant of legal aid, although the details of that grant and the basis for it are not in evidence in the present application. 7 The second background matter is the course of the present proceeding since its commencement on 15 July 2011. Mr Fisher was acting for the second respondent in this proceeding from 20 July 2011 until 1 February 2012, when he filed a notice of ceasing to act. Since 1 February 2012, and subject to Ms Johnson's participation in the present application for an adjournment, the second respondent has been self-represented. He has participated in all directions hearings by telephone from Queensland and has made submissions in the course of those directions hearings as to the conduct of this proceeding and, in particular, the conduct of the hearing that he now seeks to adjourn. 8 Between commencement and 5 December 2011, a number of applications were made which resulted in the granting of various forms of interlocutory relief, including orders restraining the respondents from making certain representations. A number of freezing orders were also made. These orders involve third parties, including members of the second respondent's family. The orders remain in place. There was also an application by the second respondent that I disqualify myself from further hearing the matter. This application was filed on 5 August 2011. At that time Mr Fisher was acting for the second respondent. Counsel was briefed on the hearing of the application. The second respondent's application was unsuccessful: Australian Competition and Consumer Commission v Sensaslim Australia Pty Ltd (In Liquidation) (No 2) [2011] FCA 1013. There was no appeal from the dismissal of his application. A further such application was foreshadowed on 17 August 2012 by Ms Johnson, however no such application has been filed or otherwise proceeded with. 9 On 5 December 2011 a number of orders were made that included the following: (a) The applicant file and serve the remainder of its affidavit evidence on or before 19 December 2011. (b) The second to fifth respondents, if asserting a positive defence, file and serve a document identifying the positive defence on or before 30 January 2012. (c) The applicant give standard discovery and inspection pursuant to r 20.14 of the Federal Court Rules 2011 in relation to the allegations raised in the statement of claim, on or before 13 February 2012. (d) The applicant serve on the respondents hard or electronic copies of all documents upon which it intends to rely at the hearing, on or before 20 February 2012. 10 The proceeding was listed for further directions on 27 February 2012 for the purpose of allocating a hearing date. These orders were made while Mr Fisher was acting for the second respondent. It was not until approximately two months later that Mr Fisher ceased to act for the second respondent in this proceeding. 11 On 10 February 2012 the listing of the proceeding for directions on 27 February 2012 was vacated. On that day orders were made that included the following: (a) The time for the applicant to give standard discovery and inspection be extended to 14 February 2012. (b) The time for the second respondent, if asserting a positive defence, to file and serve a document identifying the positive defence, be extended to 20 February 2012. (c) The second to fifth respondents file and serve any affidavit evidence in support of any positive defence, on or before 24 February 2012. (d) The second to fifth respondents serve on the applicant hard or electronic copies of all documents on which each intends to rely at the hearing, on or before 24 February 2012. (e) The applicant file and serve any affidavit evidence in reply, on or before 9 March 2012. 12 At the directions hearing on that day the orders proposed by the applicant were discussed with the second respondent. The only other respondent appearing was the fifth respondent, who was represented by a solicitor. The following exchange took place with the second respondent in relation to the proposed orders: HIS HONOUR: Mr Foster, is there anything else you wanted to say for or against the short minutes of order that have been proposed? MR FOSTER: I don't have any difficulties with them, your Honour. The only issue, I think, that will need to be canvassed in regard to eventually the sitting of the hearing date is, as was mentioned yesterday, in the event that the contempt proceedings are heard prior, and in the event that I am convicted, I will be incarcerated almost certainly, and that would have the effect, I would have thought, of certainly delaying the main proceedings insofar as I wouldn't be able to attend, and given the nature of the orders that are being sought in the substantive proceedings, which is a ban of me being a director of a company for 20 years and basically from commerce - virtually a life ban - it's important that I believe I need to be able to defend the proceedings. Logan J yesterday mentioned, just as a thought, I suppose, that one possibility, in the event of my incarceration, would be for the matter to be transferred from Sydney to the Federal Court in Brisbane, because I would be incarcerated in Brisbane. So it's just something I mention in regard to hearing date. The real difficulty we have in me being able to defend myself in the main proceedings - the contempt proceedings are heard first and I am incarcerated. So I'm of a view that I would like to have the main proceedings be heard as expeditiously as possible. However, I would also be calling witnesses from the United Kingdom. And the only comment I would make, and I know how late the time is - - - HIS HONOUR: I'm sorry - are you still on the line, Mr Foster? MR FOSTER: I am, yes. The only other comment, your Honour, is I think that when we do start, whether the matter is moved to Brisbane or what actually happens, I just think the length of time for the trial - two weeks - is a little bit conservative. I think it will be more like four weeks, based upon the evidence I've seen and the witnesses that will be called, and given the seriousness of the orders sought against me, which, as I say, is a life ban, I intend to take every opportunity to dissect every piece of evidence presented against me, and I don't think I would be able to do that in two weeks. HIS HONOUR: Well, thank you for those observations. I won't anticipate anything that may happen in the immediate future. In paragraph 6 of the short minutes, rather than providing that the matter be listed for hearing, I will say that the matter be listed for further directions at 9.30 am on 12 March 2012. So with that addition, and also with the addition to paragraph 3 that I've indicated, I will make the orders in accordance with the form of short minutes of order, which I will sign, date and place with the papers. 13 A further directions hearing was held on 12 March 2012. The second respondent and the fifth respondent (who was, once again, represented by a solicitor) were the only respondents who appeared. At that time the length of the hearing was discussed. Counsel for the applicant estimated that the hearing would take two to three weeks. The solicitor appearing for the fifth respondent said that he could not offer anything in relation to the length of time for the hearing but did state that he did not anticipate that his client would have "much of a role to play in these proceedings". He said that he may play some role but that he could not see him having "a significant role in any event". The length of the hearing was raised with the second respondent. The following exchange took place: HIS HONOUR: I see. Thank you. Mr Foster, how long do you see the proceeding taking? MR FOSTER: Your Honour, I'm imagine that the estimate of three weeks is probably accurate. 14 At that time I said that the proceeding would be set down for hearing with a provisional commencement date of 3 September 2012. The following exchange took place: HIS HONOUR: I can give you provisional dates in September commencing on Monday the 3rd. MR WHITE: It's convenient to the Commission. HIS HONOUR: Mr Foster. MR FOSTER: Yes, your Honour. HIS HONOUR: I hope you've heard what I've said. I can allocate provisional hearing dates in this matter commencing on Monday, 3 September for three weeks. MR FOSTER: Yes, your Honour. I'm anxious of course to have this matter heard as possible, not only because it affects my family members who are subject to freezing orders but I think the greater public interest with respect to the people that are affected, the hundreds of area managers, the thousands of ..... to consumers so I think it's important that it's heard. I think this conundrum is a making of the ACCCs own doing insofar as the contempt proceedings which seems to now make these more important in my opinion, the civil proceedings secondary, were brought by the ACCC where I thought it would have been more logical that the evidence should have been tested in the main proceedings and then if there was seen to be evidence of a contempt then the charges could have been brought. My concern is that there is no provision for a prisoner, in the event that I am convicted in the contempt matter, there is no provision for a prisoner to be moved interstate on civil matters. We have investigated that. So I think this rental that Mr White refers to is the size of the Grand Canyon and I can see that these proceedings are going to be just unnecessarily delayed, but I'm keen for a date to be set although I'm concerned that it won't be met, your Honour. HIS HONOUR: Well, I've noted what you've said, Mr Foster. As I think I might have said at the last directions hearing, I will try not to anticipate too many difficulties in that regard but it's appropriate that you've informed me of those matters… 15 Apart from other matters, this passage reveals a clear appreciation by the second respondent that, as at March 2012, there was a commonality of factual issues in the contempt proceeding and this proceeding. 16 On 14 March 2012, following the directions hearing, the matter was provisionally set down for hearing for 15 days commencing on 3 September 2012. On that day other orders were made that included the following: (a) The applicant deliver: (i) to each respondent, one hard copy; and (ii) to the Associate to the trial judge, two hard copies of the court book (comprising the pleadings and evidence upon which the applicant will seek to rely at the hearing) on or before 20 August 2012; (b) Each respondent give the applicant written notice of any objections to the applicant's affidavit evidence, on or before 27 August 2012; (c) Each respondent give the applicant written notice of witnesses required for cross-examination on or before 27 August 2012; (d) The applicant be granted leave to issue subpoenas to attend to give evidence to the deponents of affidavits required for attendance at the hearing; and (e) The applicant make any application pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth) for the testimony of any witness whose evidence it seeks to be given by video link or audio link, on or before 6 August 2012. 17 A further directions hearing was held on 2 July 2012. Once again the only respondents appearing were the second respondent and the fifth respondent. Certain procedural orders were made that are of no particular significance for the present application. At that time, however, the question was raised as to whether the proceeding should commence on 3 September 2012, as ordered, given that the last week of the scheduled hearing (ie the week commencing on 17 September 2012) then clashed with the date to which the hearing of the contempt proceeding had been adjourned. At that time counsel for the applicant indicated that the present proceeding could be accommodated within two weeks rather than the originally scheduled three weeks. The fifth respondent's solicitor said that the applicant's revised hearing estimate of two weeks was "more than realistic". On the other hand Mr Foster said that there was "absolutely no chance that this matter would be concluded in two weeks" and said that, on the basis of counsel's advice, "we need to budget for four and, perhaps, as much as five weeks". It should be noted that, as counsel for the applicant pointed out at the time, this was quite at variance with what the second respondent had said at the directions hearing on 12 March 2012. At that directions hearing the second respondent also said that "we are placing ourselves in funds" to retain counsel who would be retained "in the near future". The second respondent also raised the difficulty that he was subject to release conditions which prevented him from leaving Queensland. 18 In the end result I determined that the hearing should proceed so that it would commence on 3 September 2012 as provisionally fixed and that, if necessary, I would hear the matter in the Brisbane. At that time I also indicated that, if required, I would make available hearing dates in the weeks commencing 22 and 29 October 2012. I should record that, as events have now transpired, there is no clash because the adjourned hearing of the contempt proceeding which will now commence on 24 September 2012. Having said that, I have now allocated other hearings for the week commencing 17 September 2012. 19 On 3 August 2012 I ordered that the proceeding be set down for hearing in the Queensland District Registry of the Court at Brisbane commencing on 3 September 2012. 20 It can be seen from the above that on 5 December 2011 each of the second to fifth respondents, if asserting a positive defence, was required to file and serve a document identifying that positive defence and that, in the case of the second respondent, that document was to have been filed and served by no later than 20 February 2012. No such document has been filed by the second respondent (or any other respondent). 21 It can also be seen that on 10 February 2012 each of the second to fifth respondents was required to file and serve any affidavit evidence in support of any positive defence and serve hard or electronic copies of all other documents on which reliance was to be placed at the hearing, by 24 February 2012. No such affidavit or documents have been filed by the second respondent (or any other respondent). 22 Finally, it can also be seen that on 14 March 2012 the matter was set down for hearing to commence on 3 September 2012, thus giving the parties nearly six months advance notice of the hearing of this matter. On 3 August 2012 I ordered that the hearing take place in Brisbane to accommodate the second respondent's inability to leave Queensland.

Consideration 26 My consideration of this application commences with the fact that, although this proceeding is civil in legal character, it is nevertheless one in which the applicant seeks a pecuniary penalty and a banning order against the second respondent, amongst other relief. Thus the proceeding has this element of seriousness relative to other civil proceedings in which relief of that kind is not sought. However, the proceeding has had this character from the outset. Since July 2011 the preparation of this matter for hearing has proceeded in the knowledge that particular allegations have been made against the second respondent, which he may choose to answer or not answer, which, if proven, may entail orders being made against him that impose a pecuniary penalty and which prevent him from managing corporations for some period of time. The preparation of the matter for hearing has also proceeded in the knowledge that injunctive relief has been sought which, if granted, would prevent the second respondent from participating in particular activities in trade or commerce. Whether such relief would be granted, should the alleged contraventions be proved, is another question. But the potential for such relief to be granted has been known to the second respondent for a significant period of time. 27 The second respondent has also urged on the Court the desirability that this proceeding be dealt with as expeditiously as possible - indeed, as soon as possible. At the directions hearing on 12 March 2012 when I allocated the September hearing dates for this matter - when it was known that the hearing of the contempt proceeding had also been set down for hearing - the second respondent earnestly called in aid the interests of his family and "the greater public" as the reason why it was important for the present matter to be heard as soon as possible: see Transcript 12 March 2012 p 10 lines 1-17. My summary of the background shows that, by mid-February 2012, the applicant had substantially prepared its case against all respondents. None of the respondents had sought, in response, to advance a positive case or to file affidavits in support of such a case. No reason was advanced why, on 12 March 2012, the matter should not be set down for hearing, even given the pendency of the hearing of the contempt proceeding. Thus all parties have had nearly six months advance notice of the hearing of this matter on affidavits (with the exception of some formal affidavits) and documents that had been served by the applicant, at the latest, approximately one month earlier. 28 Having said that, it must also be stated that, since July 2012, the second respondent has expressed an objection to the present matter proceeding, while the adjourned hearing of the contempt proceeding was pending. His objection, in substance, at that time was that he should not have to deal with two hearings taking place at much the same time, one listed in Brisbane and the other listed in Sydney. His arguments in that regard were based largely on the inconvenience that would be occasioned to him, although he also expressed the hope that he would be acquitted of the allegations of contempt and that the amount of his mother's surety would be returned so that it would be made available to him to fund his legal defence in Sydney: see Transcript 2 July 2012 at p 5 lines 19-29. The Court has accommodated the second respondent's concerns about the difficulty of him participating in proceedings heard in Sydney. As I have noted above, on 3 August 2012 I ordered that the hearing take place in Brisbane to accommodate the second respondent's inability to leave Queensland. 29 The second respondent has really advanced two reasons why the hearing should be adjourned. The first is that he is unable to fund legal representation. The second is his desire to call evidence from Mr Reichelt. 30 As to the first of these matters, I note that the second respondent had legal representation in this proceeding until 1 February 2012 when Mr Fisher filed a notice of ceasing to act. There is no evidence before me as to why Mr Fisher ceased to act in this proceeding, although Mr Fisher does act for the second respondent in the contempt proceeding. What can be said is that, with full knowledge of the allegations made against him and the relief that is sought, and with the substance of the applicant's evidential case having been provided by affidavits and documents, the second respondent has known since mid-February 2012 at the latest that it has been incumbent on him to procure, and if need be fund or procure funding for, any legal representation that he may require in relation to the hearing of this matter. Since mid-March 2012 he has known that the hearing was to commence on 3 September 2012. 31 The second respondent has placed no evidence before me as to his present financial position or as to why he cannot procure funds for the representation he now seeks. I do note that the second respondent currently has the benefit of legal aid in the contempt proceeding. I do not know the basis on which legal aid was sought or provided. I also note, however, that, in that proceeding, his counsel advanced the possibility that the second respondent's family members "might be able to put up security for the court to travel to the United Kingdom" to take evidence in that proceeding, although he expressed concern as to how that might affect the second respondent's entitlement to the legal aid that had been granted. Also, at the directions hearing before me on 2 July 2012, the second respondent informed me that he had received counsel's advice as to the likely length of the hearing and that "we are placing ourselves in funds so they [counsel] will be retained in the near future": Transcript 2 July 2012 p 4 lines 13-17. Later in the directions hearing the second respondent also expressed the hope that the money provided by his mother, as surety, might become available for his defence in this proceeding. In context, the second respondent's reference to "placing ourselves in funds" cannot reasonably be understood as a reference to the money paid into court by his mother as surety. He must have been referring to the contemplated availability of other funds. These matters throw into question the extent to which uncritical reliance can be placed on the assertion that the second respondent is unable to fund, or at least procure funding for, legal representation in this proceeding. 32 I accept the applicant's submission that the money paid into court by the second respondent's mother as surety has been committed to the contempt proceeding and that this was apparent from at least February 2012. Thus, objectively speaking, there is no reasonable ground for thinking on the present evidence that those funds would be available or are likely to become available to fund legal representation in this proceeding. 33 In any event, the fact that the second respondent says that he is unable to fund the legal representation that he now seeks does not establish, in my view, a sufficient basis or provide a sufficient reason to adjourn the hearing of the proceeding as presently scheduled. The second respondent has had ample time to obtain legal representation. He has had nearly six months notice of the hearing. I am not persuaded on the material before me, and in the circumstances that I have outlined, that, by refusing the adjournment he now seeks on that basis, the second respondent will be denied procedural fairness or that he will not be afforded a fair hearing. In my view the second respondent's reliance upon the Dietrich principle is misplaced, both legally and factually. 34 I should also add that I do not regard the mere fact that this proceeding will be heard over two weeks from 3 September to 14 September 2012, before the resumed hearing of the contempt proceeding on 24 September to 5 October 2012, to be a reason for an adjournment. 35 As to the second matter, I note that the second respondent was ordered to plead, on or before 20 February 2012, any positive defence he seeks to make and to file and serve, on or before 24 February 2012, any affidavit evidence in support of that defence. He has not done so. I can only assume from this that, in fact, the second respondent raises no positive defence, although in oral submissions Ms Johnson said that, if an adjournment were to be granted, the second respondent would seek leave to extend the time for raising a positive defence. Whether such an application, if made, would be granted is not a matter with which I need to deal at the present time. The fact is that no affidavit by Mr Reichelt has been filed in this proceeding. The only material I have before me is a copy of a statement by Mr Reichelt that was given to the second respondent's solicitor in the contempt proceeding. That statement is, to say the least, short. Senior Counsel for the applicant has informed the Court that, if that statement were to be deployed in this proceeding, his cross-examination of Mr Reichelt would be, correspondingly, short. 36 It is said that Mr Reichelt will not be available to give evidence in this proceeding until December 2012 at the earliest. Leaving aside the question - yet to be debated - whether any evidence from Mr Reichelt can be called without leave, and whether, if required, that leave would be granted in any event (matters on which I decline to express any present view), the evidence before me is that he is scheduled to give evidence in the contempt proceeding on 2 October 2012 and is otherwise available to give evidence by Skype on Mondays. Senior Counsel for the applicant has suggested that Mr Reichelt could give evidence in this proceeding on 2 October 2012 at the conclusion of his cross-examination in the contempt proceeding. Leaving aside the question of whether the Court can sit in this matter on that day (which it presently cannot), I am not presently persuaded that that course would be satisfactory. However, what the evidence does show is that, although his opportunities to do so are limited, Mr Reichelt is likely to be able to give evidence, by arrangement, well before December 2012. In the circumstances I have described, I am not persuaded that the limited availability of Mr Reichelt to give evidence, if permitted to do so, is a sufficient reason to adjourn the present hearing. I should add, once again, that the present hearing has been set down for some considerable period of time. The second respondent has had ample opportunity to marshal the evidence on which he proposes to rely. The fact that Mr Reichelt is in prison plainly presents a difficulty in adducing his evidence, but that fact was known by the second respondent and it does not present an insurmountable difficulty. It was for the second respondent to make the necessary arrangements. He has been able to do so in the contempt proceeding. The present proceeding does not exist in a vacuum. 37 I am not persuaded therefore that these two matters, considered individually and cumulatively, provide a sufficient or, indeed, satisfactory reason to adjourn the hearing which is to commence in Brisbane on 3 September 2012. 38 In addition, I do not accept the second respondent's submission that no prejudice will be suffered by the applicant if an adjournment is granted. Common experience reveals that much cost and expense is involved in the organisation of a hearing of this nature. An order for costs, even if capable of being satisfied (and there would seem to be some real doubt about that matter), would not adequately compensate the applicant for the inconvenience involved in adjourning the hearing of the proceeding. I also take into account the interests of third parties who are subject to freezing orders made by the Court and the interests of those on behalf of whom the applicant, as regulator, seeks compensation orders. As the second respondent himself has recognised, all these people have an interest in the timely and efficient disposition of this matter, one way or the other. 39 Moreover, the overarching purpose expressed in s 37M of the Federal Court of Australia Act 1976 (Cth) includes as its objectives the just determination of all proceedings before the Court; the efficient use of the judicial and administrative resources available for the purposes of the Court; the efficient disposal of the Court's overall caseload; the disposal of all proceedings in a timely manner; and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. In my view those objectives are best met by this matter proceeding to hearing on 3 September 2012. In light of the history of this matter, I am satisfied that, by the hearing commencing as scheduled, it can proceed to a just determination. I have allocated time in my docket accordingly. The Court has deployed its own resources to arrange to have this matter heard in Brisbane to meet the difficulties of the second respondent in attending a hearing in Sydney in person. The fact is that if this matter is not heard as presently scheduled, any adjourned hearing could not take place in my docket until some time well into the second half of next year. It is not in the interests of justice that there be any significant delay in the hearing of the matter. I am not satisfied that the bases advanced by the second respondent warrant any delay. 40 For these reasons the second respondent's application for an adjournment is refused. The interlocutory application will be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Australian Competition and Consumer Commission v Sensaslim Australia Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (5 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Cited By (6)