Buttigieg v Australian Communications and Media Authority

1. The application for leave to appeal be dismissed.
2. The applicant for leave to appeal pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NICHOLAS J: 1 Before me is an application brought by the applicant ("Mr Buttigieg") pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Act") seeking leave to appeal an interlocutory judgment of the primary judge delivered on 23 May 2023. By his judgment, his Honour dismissed an interlocutory application filed by Mr Buttigieg seeking an order that the first respondent's ("ACMA") concise statement dated 19 April 2022 be struck out and that the ACMA be required to file and serve a statement of claim in its place. 2 The interlocutory application was heard by his Honour on 5 April 2023. On 23 May 2023 his Honour gave judgment and published detailed reasons for his decision: Australian Communications and Media Authority v Jones (No 3) [2023] FCA 511. Mr Buttigieg is the third respondent in the proceeding being case management by his Honour in which the ACMA as applicant alleges that Mr Buttigieg aided, abetted, counselled or procured, or was directly or indirectly knowingly concerned in, or party to, alleged contraventions of s 15(2A) of the Interactive Gambling Act 2001 (Cth) by the first and second respondents in the proceeding (Rhys Edward Jones and Diverse Link Pty Ltd). The relief sought by the ACMA against Mr Buttigieg includes declaratory and injunctive relief together with pecuniary penalties. 3 In his written submissions, Senior Counsel for Mr Buttigieg referred to a number of the well-known authorities dealing with the grant of leave to appeal, and the need for an applicant for leave to demonstrate first, that the decision in question is attended by sufficient doubt to warrant its being reconsidered by the Full Court and, second, that substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong. He acknowledged that the criteria are cumulative and ordinarily both must be made out if leave to appeal is to be granted. I accept his submission that the usual test does not reflect any hard and fast rule and that it merely provides general guidance on which the Court would normally act: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [25]-[34], Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95 at [39]. 4 Two other points should be noted: It is accepted by Mr Buttigieg that the primary judge's decision relates to a matter of practice and procedure. It is well established that appellate courts should exercise particular caution in reviewing decisions pertaining to practice and procedure: see the authorities referred to in the judgment of the Full Court in Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1 at [41]-[42] which include Hogan v Australian Crime Commission (2010) 240 CLR 651 at [34] and Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177. For Mr Buttigieg to succeed in his proposed appeal, it would be necessary for him to demonstrate an error of the kind referred to in House v The King (1936) 55 CLR 499 at 505. That is because the present case involved not just a matter of practice and procedure, but an exercise of discretion. 5 The application for leave to appeal is supported by an affidavit of Mr Buttigieg's solicitor, Mr Patrick Quinn, which annexes a draft notice of appeal that includes two grounds of appeal. The first asserts, in effect, that the primary judge's decision will result in Mr Buttigieg being denied procedural fairness at the trial. The second asserts that the primary judge failed to take into account the ratio decidendi of the decision in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298. The notice of appeal does not purport to identify the ratio decidendi of that case or why his Honour erred in failing to apply it in this case. In the written submission relied on by Mr Buttigieg before the primary judge reference was made to [63] of the Full Court's judgment which states: Even so, a civil suit for the recovery of a pecuniary penalty is a proceeding of a penal nature: Naismith v McGovern (1953) 90 CLR 336 at 341. In this class of case, it is especially important that those accused of a contravention know with some precision the case to be made against them. Procedural fairness demands no less. Furthermore, although the civil standard of proof applies, where (as here) the resolution of an issue exposes a respondent to a penalty, satisfaction on the balance of probabilities is not achieved by "inexact proofs, indefinite testimony, or indirect inferences": Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. The Evidence Act 1995 (Cth) now requires that the court take into account the nature of the cause of action in deciding whether it is satisfied that a party's case has been proved on the balance of probabilities: Evidence Act, s 140(2)(a). 6 As to the first of Mr Buttigieg's proposed grounds of appeal, I am not at all persuaded that there is any substance to his contention that the concise statement filed by the ACMA does not provide him with adequate notice of the matters that are relied on in support of the ACMA's case against him. In this regard, the primary judge observed at [54]-[57]: [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. 7 The submissions made on Mr Buttigieg's behalf assert that he has not been provided with proper notice of the case to be made against him. Based on what his Honour said in [54]-[57] I am inclined to think that is not the case. In any event, as the primary judge noted, it is apparent that any deficiency in the information contained in the concise statement (assuming there is one) can be cured in a number of different ways including, in particular, by the making of orders for particulars. I note that orders have already been made, with the consent of all parties, for the delivery of evidence by ACMA. 8 His Honour also considered it relevant to the exercise of the discretion that Mr Buttigieg (at a time when he had different legal representation) opposed the making of an order sought by other respondents in the proceeding that it continue by way of pleadings. His Honour observed at [7]-[13]: [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. 9 So not only did Mr Buttigieg, through his counsel, make clear to the Court that he did not see a difficulty in proceeding by way of concise statement, he considered it the most appropriate course. Since that time it has been open to Mr Buttigieg to seek further particulars from the ACMA and, if necessary, apply to the Court for an order that such particulars be provided. 10 In his written submissions, Senior Counsel for Mr Buttigieg referred to the High Court decision in Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-7 per Mason CJ and Gaudron J concerning the function of pleadings, which is to state with sufficient clarity the case that has to be met and thereby ensure that the party against whom the case is brought is afforded procedural fairness. But as the primary judge recognised, a statement of claim is not the only means by which a party may be informed of the case they have to meet. In the case of Australian Securities and Investments Commission v Bettles [2020] FCA 1568 which was relied on by Mr Buttigieg before the primary judge and also in his written submissions in support of the application for leave to appeal, Greenwood J recognised at [85] that material facts may be set out in either a concise statement or a statement of claim: see the primary judge's discussion of that case at [38]-[43]. Deficiencies in a concise statement or statement of claim are often dealt with by way of particulars. 11 Mr Buttigieg has failed to demonstrate any arguable basis for finding that the primary judge's exercise of discretion in relation to a manner of practice and procedure was affected by any relevant misunderstanding of the facts or applicable law or that it was unreasonable or unjust. In those circumstances, there is no utility in considering what effect a refusal of leave would have on Mr Buttigieg supposing that the primary judge's decision was incorrect. The application for leave to appeal will be dismissed. Mr Buttigieg must pay ACMA's costs of the application. 12 Orders accordingly. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.