FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v World Netsafe [2002]

FCA 532

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v WORLD NETSAFE PTY LTD and ANOR

No Q 297 of 1999

SPENDER J

BRISBANE

24 APRIL 2002

THE COURT ORDERS THAT:

1. The amendments to the Statement of Charge are not permitted.

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

REASONS FOR RULING ON EVIDENCE – NO. 4

1                     I intended to give considered reasons later, but my conclusion is that, since there is a question of discretion behind permitting the statement of charge to be amended by the insertion of these matters, as a matter of discretion I will not permit it, for the reasons which follow.

2                     My attitude may have been quite different in relation to this matter had the position of the ACCC been that the representations made in the e-mail in question constituted false and misleading conduct at the time they were made, and were in breach of Order 1 of the Orders of the Court dated 8 December 2000. If that had been the position of the ACCC, notwithstanding the lateness of these matters, I would have been inclined to allow the amendment.

3                     It seems to me to be a fortiori the other way, however, where what is sought is imprisonment for the making of representations which fall (assuming that they do in fact fall), within the categories of representation set out in Order 1, regardless of whether they be true or false, and consequently, regardless of whether the making of those representations constitutes misleading or deceptive conduct.

4                     It is one thing to punish a person for engaging in conduct which constitutes a contravention of the Trade Practices Act 1974 (Cth) (the Act), the contravening of which has been enjoined by the Court. It is quite another to punish a person for conduct which does not, or does not necessarily, involve contraventions of the Act, but merely involves a contravention of one view of what the Orders were. I do not think I have power, for instance, to make an order prohibiting a person from making representations, unless the making of those representations also constitutes a contravention of the Act.

5                     Consequently if, as the ACCC contends independently of whether these statements are correct, true, misleading or deceptive, the making of them constitutes punishable contempts, that would raise, in my opinion, a very real question as to the lawfulness of the injunctions.

6                     For these reasons, it seems to me that the better view of the Orders the Court made is the view that puts them within power. On this basis I will not permit the amendments.

Associate:

Dated: 29 April 2002