Australian Competition and Consumer Commission v Yellow Page Marketing BV

REASONS FOR JUDGMENT 1 By notice of motion filed on 15 February 2011, the Australian Competition and Consumer Commission (the ACCC) sought leave to file and serve an amended application in the form of exhibit DJM1 to the affidavit of Mr Daniel John Marquet, sworn on 14 February 2011. The amended application proposed the following additional relief: 1. injunctions pursuant to s 232 of the Competition and Consumer Act 2010 (Cth) (the Act) in relation to Yellow Page Marketing BV's (YPM) websites in order to prevent Australian consumers from being misled by the publication of information on the internet to similar effect to earlier identified conduct which the ACCC alleges contravened the Act; and 2. an order for the delivery up to the ACCC of 215 subpoenaed cheques in the total sum of $178,704.12 drawn by Australian consumers and made out to YPM which had been produced to the Court by the West Australian Police Commissioner under a subpoena issued to him dated 19 November 2010. 2 Before proceeding to deal with the application, I will deal with two procedural matters. First, the notice of motion together with the affidavit in support was served on the respondents at 6:40pm on Tuesday 15 November 2011 in accordance with paragraph 1 of the Orders made by this Court on 3 February 2011 which provided that service could be effected by sending the documents, as attachments to an email, to an identified email address. The ACCC filed sworn affidavit evidence from Mr John Fogarty dated 25 February 2011 deposing to service on both of the respondents in accordance with that Order. Mr Fogarty is a solicitor employed by Corrs Chambers Westgarth, the ACCC's solicitors. Despite service being effected in the manner described, neither respondent has appeared nor, I am instructed, responded to the application. 3 Secondly, the West Australian Police Force. On 1 March 2011, an officer of the ACCC instructed Mr Fogarty to contact the West Australian Police. Mr Fogarty has deposed to telephone conversations with a senior solicitor employed by the West Australian Police in which he informed that solicitor that the ACCC intended to seek to amend the relief sought in the proceeding to include a direction in the form described in para 1(2) above. Namely, that the cheques be delivered to the ACCC so that the ACCC could use its best endeavours to return the cheques either to the drawers of the cheques or, failing that, to the banks on which the cheques are drawn. 4 In direct response to an inquiry of Mr Fogarty as to whether the West Australian Police opposed an order to that effect, an email was received which has been tendered as evidence in this Court. In that email, a senior solicitor for the Special Crime Portfolio of the West Australian Police advised Mr Fogarty that the Major Fraud Squad did not seek to be heard by the Court in respect of the proposed order, did not have a position in respect of whether or not any such order should be made, and asked those instructions be communicated to the Court. They have been. Against the background of those procedural matters, I turn to consider the application for leave. 5 In my view, having regard to the content of the proposed changes, I regard them as being of sufficient utility that the leave to make the changes should be granted. I leave open the question of whether or not as a matter of analysis at the end of the substantive hearing they would be made. Secondly, the additional relief sought relies upon the same factual matters identified in the fast track statement. The ACCC does not seek leave to amend its fast track statement. In other words, it is an important consideration given the history of this matter that there are no new allegations of fact raised by the ACCC which would cause any prejudice to the respondents, especially respondents who have, since at least early February 2011, taken no part in the proceeding. In those circumstances and relying upon the content of the affidavit of Mr Marquet, sworn on 15 February 2011, I make the following orders: 1. The ACCC, the applicant in these proceedings, has leave to file and serve an amended application in the form of the proposed amended application in exhibit DJM1 to the affidavit of Mr Daniel John Marquet sworn on 14 February 2011; and 2. The applicant file and serve the amended application by 6:00pm on 8 March 2011, such service to be effected in accordance with paragraph 1 of the Orders of 3 February 2011. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.