Australian Competition & Consumer Commission v INFO4PC.com Pty Ltd

Federal Court of Australia|2003-04-02|Before: Doussa J, Nicholson J

REASONS FOR JUDGMENT 1 On 23 January 2001 the applicant brought an application seeking injunctive relief against the first respondent. On 15 February 2001 the application was substituted by an amended application seeking declarations and orders in addition to injunctive relief against both the first and second respondents. 2 On 24 January 2001 von Doussa J made orders in the nature of interlocutory relief. On 31 July 2002 I made declarations and orders in respect of contempts alleged against the respondents in respect of breach of the interlocutory orders. 3 While the contempt motions were under hearing and consideration by the Court, general directions continued to be made in relation to the amended application. On 15 August 2002 I published reasons relating to the applicant's notice of motion dated 17 August 2001. The motion sought orders that the first respondent provide answers to the applicant's notice to answer interrogatories, failing which default judgment be entered pursuant to O 16 r 9(1)(b) of the Federal Court Rules. It also sought orders that the first respondent provide discovery failing which default judgment be entered pursuant to O 15 r 16(1)(b). The motion was stood over pending compliance with orders. The first order required the applicant to file any evidence and submissions relevant to a determination of whether the second respondent was a director of the first respondent at the relevant date at which the second respondent provided an answer to interrogatories and purported to provide discovery on behalf of the first respondent. The orders also gave to each of the respondents the opportunity to file any evidence or submissions in response. The reasons set out the background to each of the issues in relation to interrogatories and discovery and I rely on that statement for these reasons.

Discovery 10 For the second respondent the submission is made that the order of 25 June 2001 was in terms that "the first respondent and/or the second respondent" provide discovery. That referred back to orders of 11 May 2001 in which the order required "the respondents" to "provide discovery" as described in the applicant's minute of 23 April 2001. The minute was also expressed in terms of "the respondents" giving discovery of the documents described. The second respondent submits that as the applicant accepted the alternative formulation of 25 June 2001 it should not be permitted by the Court to contend that the response from the second respondent does not satisfy the obligation for discovery. It is to be noted that, for the reasons set out in the following paragraph, this cannot be accepted as a submission for the first respondent. 11 At the same time as making that submission, the second respondent in his submissions relevant to discovery maintains his position that he was not a director of the first respondent at the relevant date for the purposes of discovery, namely 9 July 2001. He has not filed and served any affidavit, in accordance with O 15 r 9(1)(c) of the Federal Court Rules, verifying that he was a member or officer of the first respondent at the time of making and answering the discovery. It is clear he does not regard himself as a person entitled to now or then speak for the first respondent. That is, irrespective of whether or not he was properly to be regarded as a director of first respondent at the relevant date or now, he does not seek to speak for the first respondent and claims no authority to do so. 12 For the applicant it is submitted that the first respondent's discovery would not be the same as the second respondent's discovery as there are various classes of documents the former has had in its possession which have not been in the possession, custody or power of the latter. These include but are not limited to: "(a) documents generated by other office holders of the First Respondent including Johnson Williamson and Timothy Rae; (b) documents relating to the negotiations for the financial package for the First Respondent; (c) details of the Spanish bank account; (d) documents relating to the sale or proposed sale of client information to third parties; (e) documents relating to the First Respondent's business plan; (f) documents relating to financing agreements with banks or other finance providers; and (g) documents relating to the financial capacity of the First Respondent." The second respondent made submissions concerning each of these categories but these cannot, for the reasons state above, be accepted as submissions for the first respondent. 13 In these circumstances I accept the submission for the applicant that it is inappropriate to permit the second respondent's discovery to stand as the discovery of the first respondent. This is so despite the alternative formulation of the order of 25 June 2001. The relevance of that formulation is that the first respondent should now be given adequate time to provide discovery before the sanctions of the order proposed in par 3 of the notice of motion take effect. I regard 21 days as adequate. 14 There remains an issue in relation to the discovery by the second respondent. He maintains a claim for privilege over various documents but has not produced them to the Court. That is despite the explanation given to him at the hearing on 25 June 2001 of the means by which he could do so with full protection of the claimed privileged status. The order requiring him to do so should therefore be made.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate: Dated: 2 April 2003 Counsel for the Applicant: Mr AA Jenshel

Solicitor for the Applicant: Australian Government Solicitor

Date of Hearing: 9 August 2002

Date of last written submission: 24 October 2002

Date of Judgment: 2 April 2003

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