Secretary, Department of Health and Aged Care v Prefixx Pty Ltd [2024] FCA 153 | Case summary

Introduction 1 The applicant, the Secretary of the Department of Health and Aged Care, seeks declarations and pecuniary penalties against the respondents in relation to conduct allegedly engaged in by the respondents, namely, advertising, or causing to be advertised, nicotine vaping products (NVPs) on websites operated and/or controlled by them, in contravention of the Therapeutic Goods Act 1989 (Cth) (TG Act). 2 The first respondent, Prefixx Pty Ltd (in liq), was placed in liquidation after the commencement of the proceedings. On 19 April 2023, the Court granted the Secretary leave to proceed against Prefixx pursuant to s 500(2) of the Corporations Act 2001 (Cth). The second respondent, Mr Anthonisz, was at all times material to the matter, the sole director and shareholder of Prefixx. 3 By an interlocutory application filed on 9 August 2023, Mr Anthonisz, initially sought three interlocutory orders in relation to the future conduct of the proceedings, namely: (1) Mr Anthonisz be granted leave to file documents and make representations on behalf of Prefixx under s 237 of the Corporations Act or, in the alternative, rule 1.32 of the Federal Court Rules 2011 (FCR) (orders 1 and 2 respectively) (2) pursuant to FCR rule 40.51, Mr Anthonisz be granted a protective costs order limiting costs in the proceedings that can be claimed by the Secretary to a maximum of $5,000 and by Mr Anthonisz against the Secretary, to a maximum of $10,000 or, in the alternative, a maximum sum that can be claimed on a party/party basis as the court deems appropriate (orders 3 and 4 respectively); and (3) the notice to produce issued by the Secretary on 28 July 2023 be set aside in whole or in part (orders 5 and 6 respectively). 4 Mr Anthonisz also seeks an order that the Secretary pay the costs of the interlocutory application to be paid forthwith or that each party is to bear its own costs. 5 In support of his application, Mr Anthonisz relies on his affidavit affirmed on 8 August 2023 (Anthonisz Affidavit), and written submissions dated 8 August 2023 (R2S) together with his submissions in reply dated 4 September 2023. I note that Mr Anthonisz did not formally read his affidavit but this was no doubt due to an oversight on his part as it is relied upon by him in his written submissions. Given that the Secretary did not foreshadow any objections to any parts of that affidavit, I have treated Mr Anthonisz's affidavit as read for the purpose of the interlocutory application for orders 1 and 2. 6 At the hearing, Mr Anthonisz supplemented his written submissions with oral submissions, as did the Secretary. I granted Mr Anthonisz leave to attend with his McKenzie friend, Mr Dylan Abbott, accountant, on the basis that Mr Anthonisz would make submissions on his own behalf, but he could seek assistance, as required by him, during the course of the hearing from Mr Abbott. 7 The Secretary relied upon the affidavit of Andrew Korbel, Solicitor, affirmed on 30 August 2023 (Korbel affidavit). There were a number of objections by Mr Anthonisz to the affidavit and annexures, which the Secretary conceded. These related to the disclosure of Heads of Agreement apparently entered into by the parties after a court-ordered mediation but which Mr Anthonisz no longer agrees to. I should explain that I have not read those annexures. I also made orders at the hearing that the Korbel affidavit and annexures be removed from the Court file and that the Secretary file and serve redacted copies of the affidavit and annexures in line with the Secretary's concessions and the Court rulings. 8 At the hearing, the Secretary accepted that the claim of penalty privilege by Mr Anthonisz was properly made (as he had also accepted in his written submissions) and therefore agreed to orders withdrawing the notice to produce. The Secretary also explained that he did not intend to issue a further notice to produce against Mr Anthonisz but was seeking documentation from other persons through other means. 9 Also at the hearing, orders were made that the application for a protective costs order be adjourned to a date to be fixed after Mr Anthonisz had filed and served his concise statement in response to the Secretary's concise statement filed on 10 June 2022. Mr Anthonisz sought a period of twelve weeks within which to file and serve his concise statement so as to afford him an opportunity to seek legal advice. In this regard, I explained at the hearing the importance of Mr Anthonisz seeking independent legal advice if at all possible, given the seriousness of the allegations made against him and the fact that the Secretary sought civil penalties against him which could be substantial, as could any costs order against Mr Anthonisz if he were unsuccessful. As I further explained at the hearing, in making those observations, I was not in any way indicating any views as to the possible outcome of the proceedings. 10 That leaves only the interlocutory application for orders 1 and 2 seeking leave to represent Prefixx in liquidation to be determined at this time. For the reasons set out below, the interlocutory application to this extent must be dismissed.

Secretary, Department of Health and Aged Care v Prefixx Pty Ltd

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