Secretary, Department of Health, Disability and Ageing v Prefixx Pty Ltd

1. Costs of the interlocutory applications referred to in orders 1 and 2 above are reserved.
2. There be liberty to apply to amend the orders.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1 INTRODUCTION

2 THE PROTECTIVE COSTS APPLICATION BY MR ANTHONISZ

2.1 Procedural history relevant to the protective costs application

2.2 Should a protective costs order be made?

3 THE DELIVERY APPLICATION BY THE SECRETARY

3.1 Background

3.2 Disposition of the delivery application

4 CONCLUSION

1. The applicant, the Secretary of the Department of Health, Disability and Ageing, 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, with the appointment of the liquidator on 23 December 2022. 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, Brad Anthonisz, was at all times material to the matter, the sole director and shareholder of Prefixx.
3. This proceeding has been the subject of several interlocutory applications. This judgment relates to two such applications:

(1) an application by Mr Anthonisz for a protective or maximum costs order (the protective costs application); and

(2) an application by the Secretary seeking orders requiring Mr Anthonisz to deliver to the liquidator of Prefixx all books and records of Prefixx that are in the possession of Mr Anthonisz (the delivery application).

1. Mr Anthonisz relies upon his affidavit affirmed on 8 August 2023 in support of the protective costs application.
2. In support of the delivery application, the Secretary relies on the affidavit of his solicitor, Andrew Herbert John Korbel, affirmed on 7 May 2025 (Korbel Affidavit). The Secretary contends that the Court has power to make the orders sought in the delivery application under s 483 of the Corporations Act or alternatively s 530A of the Corporations Act, s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and r 1.32 of the Federal Court Rules 2011 (Cth) (the FCR). Alternatively, the Secretary seeks orders which compel the liquidator to take steps to obtain the books and records of Prefixx from the second respondent.
3. For the reasons set out below, the protective costs application is refused, and the delivery application is granted. As to the latter, I agree, contrary to Mr Anthonisz's contentions, that the Secretary has standing to invoke the Court's power to require delivery of the relevant documents by Mr Anthonisz to the liquidator under s 483 of the Corporations Act. I also consider that it is appropriate to order that Mr Anthonisz deliver up the relevant documents to the liquidator under s 483.
4. Finally, I note that, at the interlocutory hearing on 22 September 2025, I heard submissions and made orders granting the Secretary's interlocutory application lodged on 9 September 2025, seeking an order that the subpoena to produce documents issued to Wayne Richard Butler on 8 May 2025 is deemed to have been served on Mr Butler on 8 June 2025 pursuant to rule 10.23 of the FCR. I also made orders deferring the hearing of a further interlocutory application by Mr Anthonisz made on 29 July 2025, seeking an order pursuant to s 192A of the Evidence Act 1995 (Cth) to the effect that, in accordance with s 42DU of the TG Act, certain documents or parts thereof are inadmissible in the Secretary's case against Mr Anthonisz.

2. THE PROTECTIVE COSTS APPLICATION BY MR ANTHONISZ

2.1 Procedural history relevant to the protective costs application

1. On 8 August 2023, Mr Anthonisz lodged an interlocutory application pursuant to r 40.51 of the FCR, seeking orders relevantly for a protective costs order to be made limiting the costs in the proceedings that can be claimed by the Secretary against Mr Anthonisz to a maximum of $5,000 and, by Mr Anthonisz against the Secretary, to a maximum of $10,000, or alternatively limiting the costs claimable to a maximum otherwise considered appropriate by the Court.
2. Mr Anthonisz relied upon his affidavit affirmed on 8 August 2025 in support of these orders. In his affidavit, he deposed that an adverse costs order would be "extremely detrimental" to him, that his income was limited, and that the litigation had had an adverse impact on his tax accounting business.
3. On 27 February 2024, I made orders adjourning the protective costs application to a date to be fixed after Mr Anthonisz filed and served his concise statement in response to the Secretary's concise statement dated 9 June 2022. I did so to alleviate difficulties for the Secretary in responding to the protective costs application at a "preliminary stage", and to enable Mr Anthonisz to seek legal representation.
4. At the interlocutory hearing on 23 July 2024, I reached the view that the protective costs application should be determined after a decision was made with respect to Mr Anthonisz's application for test case funding from the Attorney-General's Department. I therefore made orders, relevantly, listing the protective costs application and the delivery application for hearing on 22 September 2025. At the same time, I arranged for a pro bono certificate to be issued in relation to Mr Anthonisz.
5. The pro bono referral was subsequently accepted by Mr Coombes of counsel, to whom the Court expresses its gratitude. Mr Coombes represented Mr Anthonisz at the case management hearing of 22 October 2024. While the protective costs application was not raised on that day, timetabling orders were made in respect of evidence and discovery.
6. A further case management hearing originally listed for 20 May 2025 was vacated by consent, and I made orders on 19 May 2025 that the protective costs application be determined on the papers in circumstances where the parties indicated that they had no objections to that course.
7. On 2 June 2025, an email was sent to the parties from my Chambers, expressing my concerns that the submissions which had been filed in respect of the protective costs application were "premised on the circumstances pertaining to the proceeding as at the time they were filed" and appeared now to be "largely irrelevant". On 11 June 2025, I made timetabling orders with respect to the protective costs application, allowing for the filing of further submissions so as to address my concerns.
8. Following the case management hearing of 23 July 2025, I made orders listing, relevantly, the protective costs and delivery applications for hearing on 22 September 2025.

1. It was rightly not in dispute that the Court has a broad power to make a maximum costs order pursuant to r 40.51 of the FCR. As McElwaine J held in Doctors for the Environment (Australia) Incorporated v National Offshore Petroleum Safety and Environmental Management Authority (Maximum Costs) [2025] FCA 598 at [20], "[u]ltimately, the discretion is guided by what is an appropriate order in the interests of the administration of justice in the particular circumstances".
2. Thus, while a range of considerations are potentially relevant, its exercise does not require the Court to engage in a checklist approach: Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not-for-profits Commission [2021] FCA 435 at [8]- [11] (Thawley J). For example, in Doctors for the Environment, McElwaine J held that the applicant had demonstrated that it was an appropriate matter in which to make a maximum costs order. In so holding, McElwaine J rejected the contention that the applicant was acting "in its private interests and in order to secure some benefit for it and its members" (at [13]). His Honour held that the case concerned whether the National Offshore Petroleum Safety and Environmental Management Authority correctly accepted an environmental plan, that is, determining whether the Authority's exercise of public regulatory power with respect to "a controversial project with [alleged] long-term adverse environmental and public health consequences" was valid (at [15]). Among other things, McElwaine J also took into account the assessed costs of the respondent in the context of the major project it was undertaking and the applicant's limited resources, and held that "[t]here is also in this case the 'potential chilling effect of making an order against an organisation' which is charitable where it brings a proceeding in the public interest" (citing Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) [2024] FCAFC 97 at [51]).
3. Applying these principles, it follows for the reasons set out below that Mr Anthonisz has not established that this is an appropriate case in which to impose a maximum costs order.
4. First, Mr Anthonisz (incorrectly) contends that an "order obliging [him] to pay some or all of the [Secretary's] costs of the proceedings ... will inevitably have a punitive effect on [him] as it will create a further, potentially very substantial, pecuniary obligation on [him] additional to any pecuniary penalty arising directly from any breach proved by the [Secretary]".
5. I accept as a practical matter, that an adverse costs order may appear from a lay perspective to be "punitive", especially in circumstances where, as Mr Anthonisz contends, the person subject to such an order has limited financial resources. However, as Mr Anthonisz accepts, an award of costs is "compensatory" only in nature: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [12] (Black CJ and French J), citing Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 (Mason CJ). Nor is the assumption that the Secretary brings the proceedings to punish Mr Anthonisz correct. Rather the purpose of a pecuniary penalty such as that sought here is general and specific deterrence: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 247 CLR 450 at [15] and [40]-[41] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), [105] (Edelman J). The analogy therefore that Mr Anthonisz seeks to draw between proceedings for civil penalties on the one hand and criminal proceedings where the Crown generally does not seek costs of an unsuccessful defendant, on the other hand, is not a valid one. As Logan J held in Gulliver v Corporation of the Trustee of the Roman Catholic Archdiocese of Brisbane (No 2) [2023] FCA 1039 at [8] with respect to the purpose of a pecuniary penalty regime:

That purpose is not to be assimilated with the purposes of the criminal justice system. Instead and overwhelmingly, the purpose of a pecuniary penalty regime is deterrence, not just specific deterrence but general deterrence: see Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 96 ALJR 426 (Pattinson). The end to which such deterrence is directed is adherence to an ordained norm of conduct and also the reverse of that. That is, to put a price on a departure from an ordained norm of conduct which is sufficiently high to make any such departure an act of folly.

1. Secondly, the fact that there have been a number of interlocutory applications of which some are attributable to the Secretary and that these have led the parties to incur costs does not provide a basis for making a maximum costs order. Rather this reflects the complexity of the proceedings in circumstances where, among other things, Prefixx entered liquidation after the proceedings had commenced. Nor is there anything to suggest that the interlocutory applications made by the Secretary were other than reasonable.
2. Thirdly, while I accept that there is a disparity in resources between the Secretary and Mr Anthonisz and that at times Mr Anthonisz has been unrepresented, this alone could not provide a basis on which to deprive the Secretary of the opportunity to recover his costs in the event that he is successful. Unfortunately, such disparities exist in many matters before the courts and, absent some other element such as a significant public interest as was the case in Doctors for the Environment, such disparities do not provide a basis on which to make a maximum costs order.
3. Fourthly, that the proceedings may raise relatively complex issues in fact and law or that alleged contraventions of s 42DBL of the TG Act have not previously been the subject of judicial consideration does not mean that the public interest of this case is such as to warrant the imposition of a maximum costs order.
4. In contrast, for example, to Doctors for the Environment, Mr Anthonisz has a personal interest in defending himself against the alleged contraventions and it can fairly be inferred that this is his primary, if not sole, interest in defending the proceedings. As the Secretary submits, "Mr Anthonisz's exposure to a costs risk was the natural result of his forensic decisions" and therefore not a factor which should entitle him to a maximum costs order.
5. In the fifth place, there is nothing to suggest that the Secretary chose to "make an example" of the respondents. Rather, as the Secretary submits, Parliament has invested the Secretary with the discretion to commence proceedings in order to administer and ensure compliance with the TG Act. There is nothing that suggests that the Secretary was acting otherwise than within the scope of their role and functions in commencing this proceeding.
6. In the sixth place, the risk that a costs order may be made against Mr Anthonisz in the event that he is unsuccessful in defending the proceedings in addition to payment of any pecuniary penalty, and the fact that this is a risk which may affect forensic decisions which Mr Anthonisz makes as to the conduct of his defence, are circumstances that potentially confront any respondent to civil penalty or indeed other civil proceedings. They are not factors which affect access to justice or which raise a matter of public interest such as to warrant a maximum costs order. The question of whether and the extent to which Mr Anthonisz seeks to defend the proceedings is a matter for Mr Anthonisz to determine; his decision should not entitle him to be relieved of the risks of an adverse costs order in the event that that defence is unsuccessful.
7. In short, while the Court appreciates that Mr Anthonisz is concerned about the risks that an adverse costs order may pose for him financially in the event that he unsuccessfully defends the present proceedings, this is not a factor which is sufficient in the circumstances of this case to justify the making of a maximum costs order. It follows that I do not consider that a maximum costs order should be made in this case.

1. By way of background to the delivery application, Mr Anthonisz agreed generally with the following summary by the Secretary in his written submissions of the nature and state of the proceedings, which I adopt:

1. These proceedings concern contraventions of the Therapeutic Goods Act 1989 (Cth) (TG Act). The Secretary's allegations are set out in the Concise Statement filed on 10 June 2022. In summary, it is alleged that:

(a) the Respondents advertised or caused to be advertised nicotine vaping products (NVPs) on websites and an Instagram account operated and/or controlled by them (Products); > > (b) the Products were therapeutic goods within the meaning of s 3(1) of the TG Act; > > (c) nicotine, as present in NVPs such as the Products, was at all relevant times included in Schedule 4 of the Poisons Standard but not in Appendix H of the Poisons Standard within the meaning of s 52A of the TG Act (Poisons Standard). Substances included in Schedule 4 of the Poisons Standard are prescription-only substances, and may only be supplied by or on the order of persons authorised to prescribe medicines under State or Territory legislation; > > (d) the Products were not at any relevant time entered in the Register maintained by the Secretary pursuant to s 9A(1) of the TG Act, nor the subject of an exemption, approval or authority under the TG Act, nor an exemption, approval or authority under regulations made under the TG Act; > > (e) this had the consequence that the Products were at all relevant times prescribed by reg 7(i) of the Therapeutic Goods Regulations 1990 (Cth) (TG Regulations) for the purposes of s 42DLB(9) of the TG Act, and the advertising of the Products contravened s 42DLB(1) of the TG Act, where s 42DLB(9) of the TG Act applied; and > > (f) additionally, the advertisements referred to nicotine or goods containing nicotine (a prescription-only substance that is not permitted to be advertised), and those references were not authorised or required by a government or government authority (not including a foreign government or foreign government authority), which meant that the advertising of the Products contravened s 42DLB(1) of the TG Act where s 42DLB(7) of the TG Act applied.

1. On 17 December 2024, the Secretary filed and served his lay evidence in relation to the question of whether the Respondents have contravened the TG Act and whether any declaratory relief should be granted in respect of any such contraventions (Liability Question). 2. On 11 February 2025, the Secretary completed discovery in accordance with categories agreed with the Second Respondent. 3. On 28 March 2025, the Secretary filed and served his expert evidence in relation to the Liability Question. 4. The Second Respondent is not required to file and serve any expert or lay evidence prior to the conclusion of the Secretary's case.

1. The Secretary's attempts to obtain Prefixx's documents are also conveniently summarised by the Secretary as follows, with which no issue was taken by Mr Anthonisz:

(a) serving a subpoena on the Liquidator on 7 March 2023 [the Liquidator Subpoena]. The subpoena sought documents going relevantly to the issues of the involvement of Prefixx or the Second Respondent in the advertising, or causing the advertising of NVPs, statistical data of the traffic to the websites or Instagram account, and the financial benefit obtained from the sale of NVPs. In response, the Liquidator produced only four documents, being limited financial statements and bank records, responsive to two categories (of the ten categories in the subpoena). In a cover letter to the Secretary's instructing solicitors, Corrs, dated 27 March 2023, the Liquidator advised he did not possess any documents responsive to the remaining categories in the subpoena;

(b) serving on the Second Respondent on 13 June 2023 a list of documents requested from him, pursuant to which no documents were produced;

(c) serving a Notice to Produce on the Second Respondent dated 28 July 2023. That Notice to Produce was withdrawn by the Secretary following the Second Respondent's objection on the grounds of penalty privilege;

(d) issuing a subpoena to Prefixx Investments Ltd (New Zealand company number 8177768) (Prefixx NZ) [the New Zealand Subpoena] which also sought documents concerning the websites and Instagram account analytics, and hosting, relevant to the issues of control of advertising on those websites and social media. No documents were produced in answer to that subpoena; and

(e) issuing a subpoena to Mr Wayne Butler, Prefixx's former director.

1. Nor is it in issue that the liquidator has an incomplete set of records in respect of Prefixx, despite having made their own request of Mr Anthonisz to provide books and records.

1. Having regard to the matters in issue in the proceedings, I accept the relevance of the documentary evidence sought by the Secretary. Specifically, as the Secretary submitted:
   1. It will be relevant to the proceedings for the Court to have documentary evidence as to the control and/or operation of the websites and the Instagram account, together with evidence that Australian consumers had access to those websites and Instagram account, and, to the extent the documents exist, evidence as to the actual access of Australian consumers to the website and/or Instagram account.
   2. Further, in relation to the allegations that the Second Respondent aided and abetted the contraventions by Prefixx, it will be relevant for the Court to have documentary evidence of his access to (and/or control of) the websites and Instagram account. His knowledge of the access to those websites / social media by Australian consumers and purchases made by them will also be relevant.
   3. The books and records of Prefixx may include supply or engagement agreements concerning hosting of the websites, data concerning access to the Instagram account including who had such access and how access was obtained, financial and sales information including the geographical location of customers viewing and purchasing NVPs through the websites, and documents which bear relevantly upon the Second Respondent's involvement, control and decision-making authority in relation to Prefixx.
2. While Mr Anthonisz (rightly in my view) did not take issue with the relevance of the evidence sought by the Secretary, he contended that the Secretary did not have standing to make orders requiring him to deliver the documents to the liquidator. Further or in the alternative, Mr Anthonisz contended that it was not appropriate for the orders to be made as they were sought by the liquidator "for a purpose entirely ulterior to the liquidation of [Prefixx]".
3. The Secretary contends that the Court has power under s 483(1) or alternatively under s 530A of the Corporations Act to require Mr Anthonisz to deliver up the relevant documents to the liquidator, and that the Secretary has standing to invoke that power before the Court.
4. Section 530A(1) of the Corporations Act imposes an obligation upon "each officer of the company" to deliver up to the liquidator "all books in the officer's possession that relate to the company" save for those in the officer's possession to which the officer is entitled as against the company and the liquidator to retain.
5. In turn, s 483(1) of the Corporations Act provides that:

The Court may require a person who is a contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer to the liquidator or provisional liquidator, as soon as practicable or within a specified period, any money, property of the company or books in the person's hands to which the company is prima facie entitled.

1. The term "officer" is defined in s 9AD of the Corporations Act to include a person who is a director of the corporation, who makes or participates in making decisions affecting the business of the corporation, who has the capacity to affect significantly the corporation's financial standing or in accordance with whose instructions or wishes the directors are accustomed to act. Relevantly, that term also includes a former officer for the purposes of s 530A by virtue of s 530A(7). There is no dispute that Mr Anthonisz:

(1) is relevantly an "officer" for the purposes of s 530A and 483(1);

(2) is a "contributory" (as defined in s 9 of the Corporations Act); and

(3) was an "agent" for the purposes of s 483(1).

1. In this regard, Mr Anthonisz: had been a director of Prefixx from 25 July 2021 until 13 December 2022; was the sole shareholder in Prefixx from 25 July 2021; and, controlled Tax Stuff Pty Ltd who was Prefixx's accountant.
2. For the reasons set out below, I agree with the Secretary that he has standing to make the delivery application and that it is appropriate to make the orders sought.
3. First, there is no express limitation in s 483 of the Corporations Act upon the persons who may ask the Court to exercise the power in s 483(1). This is not surprising because, as the Secretary contended, one can readily envisage, for example, that it may be necessary for a creditor such as the Commissioner of Taxation in a particular matter to seek to invoke that power. By contrast, for example, s 474(2) of the Corporations Act expressly provides that the Court may direct that company property vest in the liquidator only upon an application by the liquidator.
4. Mr Anthonisz seeks to rely upon a number of authorities to contend that the discretionary power conferred on the Court by s 483(1) is exercisable only on application by the liquidator, namely: Re Kenross Homes Pty Ltd (in liq) [1994] 2 Qd R 137 at 141-142; Re Bluejays Removals and Storage Pty Ltd (in liq) [2020] QSC 322 at [23]. However, these authorities do not stand for the proposition that a liquidator alone may seek orders under s 483(1), but rather rise no higher than examples of cases where a liquidator has, as a matter of fact, sought that relief.
5. Secondly, contrary to Mr Anthonisz's submissions, I do not accept that the delivery application was brought by the Secretary for a purpose which is "entirely ulterior to the liquidation of [Prefixx]". Rather, as the Secretary submits, the powers conferred by ss 483 and 530A of the Corporations Act facilitate the provision of information to a liquidator in order to enable the liquidator to take such steps as the liquidator might be required to take with respect to a company under the liquidator's control. Those steps include investigating the company's past history and activities which precipitated the liquidation, and to bring and defend proceedings in the company's name: Australian Securities and Investments Commission v Edge [2007] VSC 170 at [42] (Dodds-Streeton J); Australian Securities and Investments Commission v McDermott, in the matter of Conalpin Pty Ltd (in liq) [2016] FCA 1186 at [18] (Moshinsky J).
6. Contrary, therefore, to Mr Anthonisz's submissions, I agree with the Secretary that the orders sought under s 483 and 530A are for the purposes of the liquidation because the litigation against the company in liquidation is able to be continued by reason of the grant of leave to proceed under s 500(2) of the Corporations Act. This litigation therefore forms part of the administration of the company in liquidation for which the liquidator is responsible. It is, therefore, entirely appropriate in my view for the Secretary to take steps under s 483(1) to seek to obtain books and records which are necessary for the Court to examine the past affairs of the company for the purposes of prosecuting these proceedings.
7. Thirdly, Mr Antonisz submitted that s 483(1) "provides a summary means by which a liquidator who, having exercised the power granted to them by s 477(2)(ca) to make a demand under s 483(1) for the delivery of a company's books, may seek an enforceable court order to compel production where delivery in response to the liquidator's demand has not occurred or has been incomplete". However, this is not a case "where a claim is made by the person in whose hands the assets are found that is a claim adverse to the company" and, as a result, the summary procedure available under s 483(1) is not available: Blackjack Executive Car Services Pty Ltd v Koulax [2002] VSC 380 at [17] (Habersberger J) (quoting Boyles Sweets (Australia) Pty Ltd (in liq) v Platt (1993) 11 ACSR 76 with approval). In other words, this is not a case where questions of title are in issue and sought to be finally resolved. Nor, as the Secretary also contends, is this a case where Mr Anthonisz has given sworn evidence that he has no books or records to produce.
8. Fourthly, I do not agree with Mr Anthonisz that the delivery application represents an impermissible attempt to circumvent his invocation of penalty privilege. The short answer is that identified by the Secretary, namely, that penalty privilege cannot be relied upon by Mr Anthonisz in order to prevent the liquidator obtaining Prefixx's books and records which Prefixx is required to produce to the Court in proceedings where the Court has granted leave to proceed against Prefixx: Australian Securities and Investments Commission v Mining Projects Group Limited (No 2) [2008] FCA 951 at [7(3)] (Gordon J). Rather, if Mr Anthonisz holds books and records of the company, he has a statutory obligation under s 530A(1) to deliver them to the liquidator, notwithstanding his claim of penalty privilege in response to the notice to produce issued to him which the Secretary subsequently withdrew on accepting that claim.
9. In summary, I agree that it is appropriate to make an order under s 483(1) of the Corporations Act for delivery of the documents to the liquidator having regard to: the matters set out above; the relevance of the documents to the matters in issue in these proceedings; the fact that Mr Anthonisz is under an obligation to provide those documents in any event to the liquidator under s 530A(1); and the largely unsuccessful attempts hitherto made by the Secretary to obtain documents with respect to the respondents' liability for alleged contraventions of the TG Act as earlier detailed.

1. For the reasons set out above, the protective costs application is dismissed and the application for orders under s 483(1) and, to the extent necessary, s 530A(1), of the Corporations Act is granted.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.