Australian Communications and Media Authority v Jones (No 3)

• Jurisdiction: Australia Federal only
• Judgment Date: 23 May 2023
• Neutral Citation: [2023] FCA 511
• Date: 23 May 2023
• Court: Federal Court

Federal Court of Australia

Australian Communications and Media Authority v Jones (No 3) [2023] FCA 511

File number:	QUD 129 of 2022
Judgment of:	THOMAS J
Date of judgment:	23 May 2023
Catchwords:	PRACTICE AND PROCEDURE – application to strike out applicant’s concise statement and require the applicant to file a statement of claim – whether claim sufficiently made out in the concise statement – whether respondents have an opportunity to meet the case – purpose of concise statement – whether a concise statement can set out all material facts – application dismissed
Legislation:	Federal Court of Australia Act 1976 (Cth) Interactive Gambling Act 2001 (Cth)
Cases cited:	Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2021) 287 FCR 388; [2021] FCAFC 121 Australian Competition and Consumer Commission v Lactalis Australia Pty Ltd [2022] FCA 1087 Australian Competition and Consumer Commission v SmileDirectClub LLC [2022] FCA 1343 Australian Securities and Investments Commission v Austal Ltd [2022] FCA 1231 Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited (2019) ACSR 52; [2019] FCA 1284 Australian Securities and Investments Commission v Bettles [2020] FCA 1568 Australian Securities and Investments Commission v Westpac Securities Administration Ltd (2019) 272 FCR 170; [2019] FCAFC 187 EZY Accounting 123 Pty Ltd v Fair Work Ombudsman (2018) 360 ALR 261; [2018] FCAFC 134 MLC Ltd v Crickitt (No 2) [2017] FCA 937 Nona on behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland [2020] FCA 1353
Division:	General Division
Registry:	Queensland
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	78
Date of hearing:	5 April 2023
Counsel for the Applicant:	Mr D Roche with Mr M Pulsford
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the First Respondent:	Mr M Wilson
Solicitor for the First Respondent:	Black Hill Legal
Counsel for the Third Respondent:	Mr SW Trewavas
Solicitor for the Third Respondent:	Gilshennan & Luton

ORDERS

		QUD 129 of 2022
BETWEEN:	AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY Applicant
AND:	RHYS EDWARD JONES First Respondent ; DIVERSE LINK PTY LTD ACN 641 292 088 Second Respondent ; BRENTON LEE BUTTIGIEG (and another named in the Schedule) Third Respondent

order made by:	THOMAS J
DATE OF ORDER:	23 May 2023

THE COURT ORDERS THAT:

1. The interlocutory application filed on 9 March 2023 be dismissed.

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

REASONS FOR JUDGMENT

THOMAS J:

OVERVIEW

1. By an interlocutory application filed on 9 March 2023, the third respondent, Mr Brenton Lee Buttigieg, sought orders that the applicant’s (Australian Communications and Media Authority (ACMA)) Concise Statement dated 19 April 2022 (Concise Statement) be struck out and that the ACMA be required to file and serve a Statement of Claim in its place.

2. In broad terms, Mr Buttigieg advanced the application on the basis that the Concise Statement failed to make sufficiently clear the case asserted against him which he suggested can only be achieved by the filing of a Statement of Claim.

3. The ACMA rejected the assertion that its Concise Statement does not clearly identify the nature of its case against Mr Buttigieg. Further, it highlighted that Mr Buttigieg’s application was made at a time when the proceedings against him have been on foot for almost 12 months and the parties (including Mr Buttigieg) have filed concise responses to the Concise Statement and agreed to orders requiring the ACMA to file all its evidence and to provide standard discovery.

4. Mr Rhys Jones (the first respondent) and Brisbane Poker Pty Ltd (the fourth respondent) neither support nor oppose Mr Buttigieg’s application. In the event that the orders sought by Mr Buttigieg are granted, they seek orders that they also be permitted to file a defence to any Statement of Claim filed by the ACMA.

PROCEDURAL BACKGROUND

5. The proceedings were commenced by the ACMA on 19 April 2022 and supported by the Concise Statement.

6. Broadly, the ACMA alleges that the respondents engaged in gambling activities in contravention of s 15(2A) of the Interactive Gambling Act 2001 (Cth) (IGA) and seek declaratory relief, pecuniary penalties and injunctive relief against the respondents.

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.

14. On 13 March 2023, the ACMA sent a letter to Mr Buttigieg setting out the basis on which it opposed this application.

15. On 20 March 2023, the ACMA sent a further letter to Mr Buttigieg summarising its case against him.

16. Mr Buttigieg did not respond to either of these letters.

MR BUTTIGIEG’S SUBMISSIONS IN SUPPORT OF THE APPLICATION

17. Mr Buttigieg contended that, if the ACMA was not required to file a statement of claim, he would be denied the “basic requirement of procedural fairness” and would not be given the opportunity to meet the case against him and to define the issues for decision.

18. In particular, he placed heavy reliance on...