Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 07 September 2007
• Neutral Citation: [2007] FCAFC 146

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146

TRADE PRACTICES – consideration of the principles guiding the imposition of a pecuniary penalty pursuant to s 76 of the Trade Practices Act 1974 (Cth) (TPA) in circumstances where the respondent company is in liquidation – consideration of evidence or inferences drawn from evidence of no reasonable prospect penalty might be paid – consideration of the principles guiding orders made pursuant to order 35A rule 3(2)(c) – consideration of the principles guiding the imposition of a pecuniary penalty generally – consideration of the utility of earlier determinations of pecuniary penalty in informing determinations of pecuniary penalty in subsequent cases

TRADE PRACTICES - consideration of the principle guiding the granting of injunctive relief pursuant to s 80 of the TPA concerning conduct directly or indirectly aiding and abetting conduct in contravention of ss 51AC, 52, 60 and 48 of the TPA – consideration of the principles and authorities guiding the making of an injunction order pursuant to s 80 of the TPA in respect of contraventions of the TPA – consideration of past conduct as an indication of future likelihood of contravening conduct – consideration of principles informing the grant of an injunction, generally – consideration of the relationship between the possible grant of an injunction in aid of an existing statutory prescription or proscription and the statutory sanctions attending non-compliance.

PRACTICE AND PROCEDURE - consideration of the principles guiding orders made pursuant to order 35A rule 3(2)(c)

Trade Practices Act 1974 (Cth), ss 51AC, 52, 60, 48, 76, 80

Federal Court Rules, Order 35A rule 3(2)

Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) ATPR 42-138

Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2005] FCA 153 (3 March 2005)

Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2003] FCA 1027 (25 September 2003)

Australian Competition and Consumer Commission v The Vales Wine Company Pty Ltd (1996) ATPR 41-528

Australian Competition and Consumer Commission v SIP Australia Pty Ltd (2003) ATPR 41-937

Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688

Commonwealth v Leahy Petroleum – Retail Pty Ltd (subject to deed of company arrangement) (2005) 55 ACSR 353

Ah Toy v Registrar of Companies (1985) 10 FCR 280

Trade Practices Commission v CSR Ltd (1991) ATPR 41-076

Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515

ACCC v Mayo International Pty Ltd [1998] FCA 1

ACCC v Mayo International Pty Ltd [1998] FCA 1008

ACCC v High Adventure Pty Ltd [2005] FCA 762

Rip Curl International Pty Ltd v Phone Lab Pty Ltd (No 2) [2004] FCA 1553

Australian Competition and Consumer Commission v High Adventure (2006) ATPR 42-091

Phonographic Performance Ltd v Maitra [1988] 2 All ER 638

Australian Competition and Consumer Commission v Dermalogica Pty Ltd (2005) 215 ALR 482

Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993

Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40‑091

Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41‑763

NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285

Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2

Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No. 8) (1999) 92 FCR 375

Australian Competition and Consumer Commission v Gullyside Pty Ltd [2005] FCA 1727; (2006) ATPR 42‑097

Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 1425

Australian Competition and Consumer Commission v Leahy Petroleum (No. 2) [2005] FCA 254 [17]; (2005) 215 ALR 281

Australian Competition and Consumer Commission v Humax Pty Ltd [2005] FCA 706; (2005) ATPR 42‑072,

Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCA 762; (2005) ATPR 42‑073

Australian Competition and Consumer Commission v RM Hall Pty Ltd (SAD 182/2004

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (In Liquidation) [2004] FCA 398

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (In Liquidation) [2005] FCA 1212

Australian Competition and Consumer Commission v Colgate‑Palmolive Pty Ltd [2002] FCA 619 (2002) ATPR 41‑880

Australian Competition and Consumer Commission v Sundaze Australia Pty Ltd [1999] FCA 1642 (2000) ATPR 41‑736

Australian Competition and Consumer Commission v Mayo International Pty Ltd, LeCourt & Ors (No. 1) (1998) ATPR 41‑653

Australian Competition and Consumer Commission v Mayo International Pty Ltd & Ors (No. 3) (1998) ATPR 41‑655

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41‑562

Australian Competition and Consumer Commission v Hugo Boss (Australia) Pty Ltd (1996) ATPR 41‑536

Australian Competition and Consumer Commission v Cambur Industries Pty Ltd (2006) ATPR 42‑127

Australian Competition and Consumer Commission v Digital Products Group Pty Ltd (2007) ATPR 42‑145

Australian Competition and Consumer Commission v Jurlique International Pty Ltd [2007] FCA 79

Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432

Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (2005) ATPR 42‑084

Australian Competition and Consumer Commission v 1Cellnet LLC [2005] 856

Macquarie Bank Ltd v Seagle (2005) 146 FCR 400

Scott v Beneficial Finance Corp Ltd (unreported, Federal Court, per Burchett J, NG 699 of 1993

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380

Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591

Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53

Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248

BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452

House v The King (1936) 55 CLR 499

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v DATALINE.NET.AU PTY LTD (IN LIQUIDATION) ACN 075 400 529, AUSTRALIS INTERNET PTY LTD (IN LIQUIDATION) ACN 090 539 432 AND JOHN LYNDEN RUSSELL

QUD 458 OF 2006

MOORE, DOWSETT AND GREENWOOD JJ

7 September 2007

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 458 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Appellant
AND:	DATALINE.NET.AU PTY LTD (IN LIQUIDATION) ACN 075 400 529 First Respondent AUSTRALIS INTERNET PTY LTD (IN LIQUIDATION) ACN 090 539 432 Second Respondent JOHN LYNDEN RUSSELL Third Respondent

JUDGES:	MOORE, DOWSETT AND GREENWOOD JJ
DATE OF ORDER:	7 September 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The Appeal is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 458 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Appellant
AND:	DATALINE.NET.AU PTY LTD (IN LIQUIDATION) ACN 075 400 529 First Respondent AUSTRALIS INTERNET PTY LTD (IN LIQUIDATION) ACN 090 539 432 Second Respondent JOHN LYNDEN RUSSELL Third Respondent

JUDGES:	MOORE, DOWSETT AND GREENWOOD JJ
DATE:	7 September 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal by the Australian Competition and the Consumer Commission (“ACCC”) from a judgment of a single judge given on 3 November 2006: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) ATPR 42-138; [2006] FCA 1427. The proceedings before the primary judge concerned alleged contraventions of the Trade Practices Act 1974 (Cth) (“TPA”) in the provision of internet-related services, principally by the present respondents. Following default by the respondents, the primary judge made orders pursuant to O 35A r 3 of the Federal Court Rules. This appeal by ACCC, in which the respondents have taken no role, concerns certain of those orders and the primary judge’s refusal to make other orders sought by ACCC.

Background

2 The first respondent, Dataline.Net.Au Pty Ltd (“Dataline”) was a wholesale provider of internet services to virtual internet service providers (“VISPs”). Such VISPs, in turn, sold services to customers (the “consumers”). The second respondent, Australis Internet Pty Ltd (“Australis”), was a VISP. Both Dataline and Australis were effectively controlled by Mr Russell, who is the third respondent. The services supplied by Dataline included:

· Wholesale internet provider services for resale by VISPs to consumers;

· The right to use a certain online computer program (Pandora) in the administration of the business of reselling services to consumers; and

· Technical support services to assist in the use of such services and Pandora.

3 The proceedings before the primary judge primarily addressed the conduct of Dataline and Australis in connection with the VISPs, and the involvement of Mr Russell and other individuals in that conduct. World Publishing Systems Pty Ltd (“World Publishing Systems”), of which Dataline was a wholly owned subsidiary, was also a respondent to the proceedings below, although it seems not to be of any present relevance.

4 The statement of claim was fifty-two pages in length. The alleged conduct was described...