Federal Court of Australia

Australian Pesticides and Veterinary Medicines Authority v Arnica Pty Ltd (No 2) [2022] FCA 815

ORDERS

PENAL NOTICE

TO: ARNICA PTY LTD; ARIEL WINGS PTY LTD; ADAM HAYES; DIANA HAYES

IF YOU (BEING THE PERSONS BOUND BY THIS ORDER):

(A)    REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THESE ORDERS FOR THE DOING OF THE ACT; OR

(B)    DISOBEY THE ORDERS BY DOING AN ACT WHICH THE ORDERS REQUIRE YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THESE ORDERS AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THE ORDERS MAY BE SIMILARLY PUNISHED.

THE COURT ORDERS THAT:

1.    Pursuant to s 145F(1) of the Agricultural and Veterinary Chemicals Code scheduled to the Agricultural and Veterinary Chemicals Code Act 1994 (Cth) (AgVet Code) the respondents must not, whether by themselves, or by their servants or agents or otherwise:

(a)    supply, or cause or permit to be supplied:

(i)    unregistered veterinary chemical products contrary to s 78 of the AgVet Code; and

(ii)    without limiting (i) the veterinary chemical products identified in the notices issued to the first and second respondents on 20 March 2020 under s 101 of the AgVet Code (Identified Products) unless after the making of these orders the Identified Products come to be registered chemical products, or come to be authorised under s 78(1)(a) or s 78(1)(b) of the AgVet Code; and

(b)    publish, or cause to be published (including via the website www.holisticanimalremedies.com), notices that offer to sell or invite the making of offers to buy:

(i)    unregistered veterinary chemical products contrary to s 88 of the AgVet Code; and

(ii)    without limiting (i), the Identified Products, unless after the making of these orders the Identified Products come to be registered chemical products, or the publication of such notices in relation to the Identified Products comes to be authorised under s 88(2)(c) and s 88(2)(d) of the AgVet Code.

2.    Pursuant to s 145F(2) of the AgVet Code, the first respondent must comply with Recall Notices Nos. 7, 8, 9 and 10 of 2020 issued pursuant to s 101 of the AgVet Code on 20 March 2020.

3.    Pursuant to s 145F(2) of the AgVet Code the second respondent must comply with Recall Notice No. 6 of 2020, issued pursuant to s 101 of the AgVet Code on 20 March 2020.

4.    The respondents must pay the applicant's costs of the proceeding, to be assessed on a lump sum basis.

5.    The fixing of the appropriate lump sum is referred to a registrar for determination.

6.    The applicant has liberty to apply by written correspondence to the Chambers of Justice Jackson in respect of the service of these orders on any of the respondents.

7.    Pursuant to s 190 of the Evidence Act 1995 (Cth), the following are admitted into evidence in the proceeding:

(a)    paragraphs 18-20 of the affidavit of Steven Noel Harris affirmed 14 October 2021;

(b)    affidavit of Aaron Michael Clarke affirmed 8 June 2020, as annexed to the affidavit of Steven Noel Harris affirmed 14 October 2021;

(c)    affidavit of Janine Ross sworn 18 June 2020, as annexed to the affidavit of Steven Noel Harris affirmed 14 October 2021; and

(d)    affidavit of Tamara Claire Diaz affirmed 9 November 2021, as annexed to the affidavit of Steven Noel Harris affirmed 22 November 2021.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, the Australian Pesticides and Veterinary Medicines Authority (the APVMA), seeks injunctions against the respondents arising out of their alleged marketing and supply of unregistered veterinary chemical products.

Application for adjournment

2    The respondents did not seek to participate in the proceeding until a few days before the hearing, which took place on Friday 29 April 2022. The APVMA had found it difficult to serve the papers on the non-corporate respondents, so that orders for deemed service were made: see Australian Pesticides and Veterinary Medicines Authority v Arnica Pty Ltd [2021] FCA 1328. The respondents did not file any notice of address for service or any other document in the proceeding. On 2 February 2022, when the matter was set down for hearing, the Court ordered the applicant to give the respondents a written notice informing them of the date of the hearing and telling them that if they did not attend the hearing, the Court may make orders against them in their absence.

3    In the circumstances of the COVID-19 pandemic, the hearing was held by video link. On Friday 22 April 2022, a week before the hearing, a person who seemed to be the third respondent, Adam Hayes, emailed the Court's registry asking that the video link be provided to a named barrister, Bruce Levet, so that he could 'appear and represent us' at the hearing on 29 April 2022. No further details as to what the respondents would seek to do, or to be done, at the hearing were provided.

4    Mr Levet did appear at the hearing (by video link) and sought leave to represent all four respondents for the limited purpose of seeking an adjournment of the hearing. Although no notice of address for service had been filed, Mr Levet was given leave to make oral submissions for that purpose. After hearing submissions the application for an adjournment was dismissed. The following are the reasons for doing so.

5    Mr Levet said that he had been briefed to appear for all four respondents in criminal proceedings which had been set down for a five day hearing in the Magistrates Court of Western Australia starting on 9 May 2022. According to Mr Levet, the charges were related to the issues raised in this proceeding and many of those issues were before the Magistrates Court. The prosecution briefs had been placed before that Court. Mr Levet said officers of the first and second respondents had given statements in the criminal proceedings and would be cross-examined. Mr Levet said that it was not clear at that point whether the individuals who were the accused, the third and fourth respondents in this proceeding, Adam Hayes and Diana Hayes, would give evidence, but he expected that they were likely to do so.

6    Mr Levet submitted that it would not be appropriate to require the respondents to effectively waive their right to silence in the criminal proceeding in order to participate in the present civil proceeding in this Court. He said that if the respondents were to appear, give evidence and cross-examine in this civil proceeding, that may prejudice them in their defence of the criminal proceeding. For that reason, he submitted, it was appropriate to vacate the hearing on 29 April 2022 and hold it after the criminal trial.

7    The APVMA opposed the application to adjourn. It relied on Australian Aged Dental Care Pty Ltd v Australian Dental Association (New South Wales Branch) Ltd [2021] FCA 1514 at [21]-[23]. That case in turn relies on and sets out the summary of the principles as to staying civil proceedings when there are related criminal proceedings which Moshinsky J gave in Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2019] FCA 964 (ANZ) at [50]-[63]. Points of particular importance were:

(1)    A court will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending. A stay of the civil proceeding may be warranted if it is apparent that the accused is at real risk of prejudice in the conduct of the defence in the criminal trial: ANZ at [55].

(2)    In order to establish potential prejudice warranting the grant of a stay of the civil proceeding, there must be an evidential basis for thinking that it is likely that the person said to be prejudiced would give evidence in the civil proceeding if there was no risk of prejudicing the criminal proceeding: Australian Aged Dental Care at [23], summarising Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; (2016) 242 FCR 153.

8    Counsel for the APVMA submitted that no real risk of prejudice to the respondents in their conduct of the criminal proceeding would arise out of the civil proceeding if the respondents were not, in fact, going to take part in the civil proceeding. Given their lack of participation to date, including any evidence in support of the application for adjournment, he submitted that there was no reason to think that they were going to give evidence in this proceeding at all. He also submitted that there would be prejudice if the proceeding was adjourned because the proceedings seek injunctions with respect to continuing contravening conduct.

9    In reply, Mr Levet did not dispute that the principles in applications to stay proceedings were applicable to his clients' application to adjourn, and I consider that they were. The difficulty for the adjournment application, as pointed out by counsel for the APVMA, was that there was no basis for thinking that the respondents were going to do anything in the defence of the present proceeding, let alone anything that would prejudice them. Mr Levet's references to the possibility of the respondents giving evidence in the civil proceeding, or cross-examining others, were entirely hypothetical. His application was based on no evidence, even though it can be inferred that the respondents had decided to seek an adjournment no later than a week before the hearing. Mr and Ms Hayes, the individuals who are the third and fourth respondents, were not present in court or, as far as one could tell, present on the video conference. Nor was anyone else present who might give evidence or participate in the hearing on behalf of the two corporate respondents (who, under r 4.01 of the Federal Court Rules 2011 (Cth), would need to be represented by a lawyer). Those matters, along with the respondents' attitude to the APVMA investigation that led to this proceeding (as detailed below), the difficulties that the APVMA experienced in attempting to serve court documents on the respondents, and their complete lack of participation in the proceeding until Mr Levet was instructed provide ample support for an inference that even in the absence of the criminal prosecution, the respondents would have taken no part in this proceeding.

10    Two factors that are recognised as relevant to the question of prejudice to an accused facing related civil proceedings are prejudice to the accused's right to silence or privilege against self-incrimination, and the possibility of publicity that might reach and influence jurors: see ANZ at [55]. As to the first, the history of the matter presents no suggestion that the respondents have ever intended to do anything other than remain silent. As to the second, Mr Levet indicated from the bar table that the criminal trial will not be a jury trial. I therefore accepted the submission of the APVMA that no basis had been established to think that holding the hearing on 29 April 2022 would have prejudiced the defence of the criminal charges. By analogy with the principles for a stay, I decided to dismiss the application for an adjournment.

Summary of claim and outcome

11    The essential factual basis for the APVMA's application is that since at least October 2018, the respondents have been promoting and selling what are described as naturopathic and homeopathic products for the treatment of diseases and conditions in animals. This is said to have been done under the name 'Holistic Animal Remedies' and by way of products marketed as 'HAMPL Pet Formulas'. The APVMA alleges that these products are not registered under the Agricultural and Veterinary Chemicals Code (AgVet Code) which is the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 (Cth), so that marketing and supplying them involve contraventions of the AgVet Code. The APVMA has issued recall notices under the AgVet Code requiring the corporate respondents to immediately stop supplying unregistered products and to do other things. The APVMA claims that the respondents have not complied with these notices. It seeks injunctions restraining what it says are breaches of the AgVet Code and requiring compliance with the recall notices.

12    For the following reasons, the application will be allowed and injunctions in terms sought by the APVMA will be granted.

Statutory framework

13    The long title of the Agricultural and Veterinary Chemicals Code Act says that it makes provision for the evaluation, registration and control of agricultural and veterinary chemical products. One of its purposes was to establish a system for the regulation of such products that was uniform throughout Australia: Preamble. The objects of the AgVet Code include the registration and control of the manufacture and supply of veterinary chemical products: s 1 of the AgVet Code.

14    The APVMA is the regulatory body responsible for enforcing the AgVet Code. It exists as the successor of the authority formerly responsible for regulation of the area, under s 6 of the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth) (Administration Act). Under s 7 of the Administration Act, the APVMA has any functions and powers that are conferred on it by or under, relevantly, the AgVet Code.

15    The AgVet Code is part of a scheme of federal cooperative legislation. It is not necessary to go into any detail about how it applies, except to the extent that it will be necessary below to address the jurisdiction of this Court over the matter. It is enough to say at this stage that it takes effect as a law in Western Australia by force of s 5 of the Agricultural and Veterinary Chemicals (Western Australia) Act 1995 (WA) (WA Act).

Registration of veterinary chemical products

16    Section 18 of the AgVet Code requires the APVMA to keep the Register of Agricultural and Veterinary Chemical Products (Register). Section 20 provides for the registration of chemical products on the Register.

17    'Chemical product' is defined to mean an 'agricultural chemical product or a veterinary chemical product, or both': s 3. Section 5(2) defines 'veterinary chemical product' to mean:

a substance or mixture of substances that is represented as being suitable for, or is manufactured, supplied or used for, administration or application to an animal by any means, or consumption by an animal, as a way of directly or indirectly:

(a)    preventing, diagnosing, curing or alleviating a disease or condition in the animal or an infestation of the animal by a pest; or

(b)    curing or alleviating an injury suffered by the animal; or

(c)    modifying the physiology of the animal:

(i)    so as to alter its natural development, productivity, quality or reproductive capacity; or

(ii)    so as to make it more manageable; or

(d)    modifying the effect of another veterinary chemical product.

18    That is subject to s 5(3) and s 5(4). Of potential relevance is 5(4)(a), which excludes from the definition:

a substance or mixture of substances that is:

(i)    prepared by a pharmacist in accordance with the instructions of a veterinary surgeon; or

(ii)    prepared by a veterinary surgeon;

in the course of the practice, by the person preparing the substance or mixture of substances, of his or her profession as permitted by or under a law of this jurisdiction …

'Veterinary surgeon' is defined in s 3 to mean 'a person who is registered as a veterinary surgeon under the law of a State or Territory'.

Prohibitions on supply and advertising of unregistered chemical products

19    Part 4 of the AgVet Code regulates the supply of chemical products (and active constituents for chemical products). Division 2 of Part 4 contains prohibitions and offences in respect of a range of particular kinds of conduct associated with chemical products and active constituents.

20    Section 78(1) prohibits the supply of unregistered chemical products. It provides that:

A person must not supply, or cause or permit to be supplied, a chemical product that is not a registered chemical product or a reserved chemical product unless:

(a)    the supply is authorised by a permit; or

(b)    the product is exempted by the APVMA from the operation of this section.

A reserved chemical product is, essentially, a chemical product that is listed in a specified schedule of regulations made under the AgVet Code: s 3. None of the products that are the subject of this proceeding are in that list, which only contains disinfectants applied to inanimate objects, so that exception may be put to one side.

21    Section 78(1) is a civil penalty provision and contravention of it is also an offence: s 78(2A) and s 78(3A).

22    Section 88(2) prohibits publication of notices concerning unregistered chemical products. Relevantly, it provides:

A person must not publish, or cause or permit to be published, a notice that offers to sell, or invites the making of offers to buy:

(a)    an active constituent for a proposed or existing chemical product if the constituent is not an approved active constituent; or

(b)    a chemical product that is not a registered chemical product;

unless:

(c)    an application has been made for approval of the constituent or registration of the product, as the case may be; and

(d)    the notice states:

(i)    that the constituent is not an approved active constituent or the product is not a registered chemical product, as the case may be; and

(ii)    that such an application has been made.

23    'Notice' is defined to include an advertisement ('advertisement' is not defined) and 'publish' means 'publish by any means, including in a newspaper or periodical, by broadcasting or televising, in a cinematograph film or in a video recording': s 88(1). Section 88(2) also is a civil penalty provision and contravention of it is also an offence: s 88(2A) and s 88(4).

Recall notices

24    Part 6 of the AgVet Code concerns recall notices, which are described in s 100(1) as follows:

This Part sets out various circumstances in which the APVMA may issue recall notices requiring persons who have, or have had, stocks of chemical products in their possession to stop supplying the products and to take action in relation to the products as directed by the APVMA.

25    Section 101 provides for the giving of recall notices, and what they can require notified persons to do. It provides:

(1)    If:

(a)    a chemical product (other than a reserved chemical product) is not registered under the Agvet Code of this jurisdiction; or

(b)    the APVMA is reconsidering the registration of a chemical product under Division 4 of Part 2 of that Code;

the APVMA may give written notice to any person (the notified person) who has, or has had, possession or custody of stocks of the product, or of a particular batch of the product, in this jurisdiction, requiring the notified person to do any one or more of the things mentioned in subsection (2).

(2)    The things that the notified person may be required to do under subsection (1) are as follows:

(a)    not to supply, or to stop supplying, the product, or that batch, in this jurisdiction either immediately or within a stated period;

(b)    to take any action stated in the notice that the notified person is reasonably capable of taking to recover stocks of the product or of that batch from any other person in this jurisdiction:

(i)    to whom the product or that batch has been supplied by the notified person; or

(ii)    who has possession or custody of any such stocks directly or indirectly because of a supply by the notified person;

(c)    if the product is not registered - to destroy, as stated in the notice, stocks of the product or of that batch in the possession or custody of, or recovered by, the notified person in this jurisdiction or to deal with them as stated in the notice;

(d)    to report to the APVMA within a stated period on the action taken by the notified person under the notice.

26    Under s 105(1), a person to whom a recall notice is given must not fail to comply with the notice. That is a civil penalty provision, and contravention of it is also an offence: s 105(1A), s 105(3).

Involvement in contravention of civil penalty provisions

27    Section 145CA(1) of the AgVet Code provides for accessory liability in a way that is familiar from other Commonwealth legislation, as follows:

A person must not:

(a)    attempt to contravene a civil penalty provision; or

(b)    aid, abet, counsel or procure a contravention of a civil penalty provision; or

(c)    induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or

(d)    be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or

(e)    conspire with others to effect a contravention of a civil penalty provision.

Under s 145CA(2), contravening this prohibition is taken to be a contravention of the relevant civil penalty provision.

Injunctions

28    Section 145F of the AgVet Code provides for the grant of injunctions as follows:

Restraining injunctions

(1)    If a person has engaged, is engaging or is proposing to engage, in conduct that constitutes an offence against this Code or a contravention of a civil penalty provision, a court of competent jurisdiction may, on application by any person, grant an injunction:

(a)    restraining the first-mentioned person from engaging in the conduct; and

(b)    if, in the court's opinion, it is desirable to do so - requiring the first-mentioned person to do a thing.

Performance injunctions

(2)    If:

(a)    a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do a thing; and

(b)    the refusal or failure was, is or would be, an offence against this Code or a contravention of a civil penalty provision;

the court may, on application by any person, grant an injunction requiring the first-mentioned person to do that thing.

…

29    These powers arise only in respect of offences against the AgVet Code or contraventions of a civil penalty provision. Other contraventions of the Code will therefore not engage these statutory injunction provisions.

30    Section 145FB expressly provides that the power of the Court to grant such injunctions may be exercised whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of the relevant kind, whether or not the person has previously engaged in conduct of that kind, and whether or not the conduct involves a serious and immediate risk of harm. Section 145FC provides that the power to grant injunctions that the preceding provisions confer on a court are in addition to, and not instead of, any other powers of the court, whether conferred by the AgVet Code or otherwise.

Evidentiary provisions

31    Finally, there are provisions designed to facilitate proof of certain matters, of which the APVMA seeks to make use here. Under s 149, the APVMA may issue what are referred to as 'evidential certificates'. They have effect in any proceeding under or for the purposes of the AgVet Code: s 149(1)(a). An evidential certificate is a certificate signed by the Chief Executive Officer of the APVMA or a member of its staff authorised to do so: see s 149(2). Its function is that it 'states a matter referred to in subsection (3)': s 149(2). If it states such a matter, and is signed as required, it is prima facie evidence of the matter: s 149(2). Matters that an evidential certificate may cover include:

(a)    that a chemical product referred to in the certificate was, at a particular time, or during a particular period, a chemical product, or was not at that time or during that period a registered chemical product (s 149(3)(b));

(b)    that a permit or exemption referred to in the certificate was in force at a particular time or during a particular period (s 149(3)(d)); and

(c)    that the APVMA had not received by a particular time an application that was required or permitted to be made to the APVMA under the AgVet Code (s 149(3)(k)).

Jurisdiction

32    Before turning to the details of the case, it is convenient to state how the jurisdiction of the Federal Court arises under the statutory scheme just described. The existence of that jurisdiction is not obvious because on the face of things, much if not all of the alleged contravening conduct has taken place within Western Australia, and the AgVet Code applies as a law within Western Australia by force of the WA Act, not any Act of the Commonwealth Parliament. Speaking in broad terms, it has been clear since Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 that it is constitutionally impermissible to confer state jurisdiction on federal courts and the WA Act does not purport to do so. The APVMA specifically seeks injunctions under s 145F of the AgVet Code. The specific power to grant those injunctions is conferred on any 'court of competent jurisdiction'. But that requires the court to have jurisdiction from another source, and is not a conferral of jurisdiction itself: R v Ward (1978) 140 CLR 584 at 588-589; Kodak (Australasia) Pty Ltd v Commonwealth (1988) 22 FCR 197 at 201-202.

33    The APVMA submits that this Court nevertheless has jurisdiction under s 39B(1A)(a) of the Judiciary Act 1903 (Cth). That provision relevantly applies the terminology of s 75(iii) of the Constitution to establish jurisdiction in the Court where 'the Commonwealth' seeks an injunction or a declaration: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 at [40]. As a legal entity, the APVMA is a body corporate (Administration Act s 12) and thus distinct from the polity known as the Commonwealth that was established under s 3 and s 4 of the Constitution. Nevertheless, a Commonwealth agency or instrumentality can be included within 'the Commonwealth' for the purposes of s 75(iii), and in an appropriate context the words are of sufficient width to include a corporation that is an agency or instrumentality of the Commonwealth: see Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136 at [10], [48]; Edensor at [39], [43].

34    The words 'the Commonwealth' are to be construed no more narrowly in s 39B(1A)(a) of the Judiciary Act: see Edensor at [41]-[43]; Commonwealth v Westwood [2007] FCA 1282; (2007) 163 FCR 71 at [52] (Sackville J). Whether a statutory body is an agency or instrumentality of the Commonwealth or of a State is to be assessed by weighing its overall connection to the Commonwealth or State by reference to factors including a relationship of control, the nature of the body's activities, and the interests in and ownership of the body: see e.g. State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 at 649-652; SGH Ltd v Federal Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51 at [16]; Westwood at [52]-[53].

35    There are several aspects of the Administration Act which make it clear that in that sense, the APVMA is an emanation of the Commonwealth and must therefore be taken to be 'the Commonwealth' for the purposes of s 39B(1A)(a) of the Judiciary Act. It is not necessary to list them exhaustively. The more significant among them are:

(1)    The APVMA and many of its functions and powers are established and conferred by the Administration Act, which is an Act of the Commonwealth Parliament: e.g. s 6 and s 7.

(2)    The Commonwealth Minister has power to direct the APVMA in the performance of its functions and the exercise of its powers: s 10.

(3)    The members of the Board of the APVMA are to be appointed and may be removed by the Minister: s 18, s 25.

(4)    The staff of the APVMA are to be persons engaged under the Public Service Act 1999 (Cth) and the Chief Executive Officer and staff of the APVMA together constitute a Statutory Agency for the purposes of that Act: s 45.

(5)    the APVMA is to receive funds out of the Consolidated Revenue Fund and does not receive the amounts of fees paid under the AgVet Code directly: s 58.

36    The APVMA is therefore the Commonwealth for the purposes of s 39B(1A)(a) of the Judiciary Act, and by this proceeding seeks statutory injunctions which, unsurprisingly, are each an 'injunction' within the meaning of s 39B(1A)(a): see Edensor at [44]-[45]. The Federal Court has jurisdiction in respect of this matter.

37    The APVMA also submits that this matter is one arising under a law of the Commonwealth for the purposes of s 39B(1A)(c) of the Judiciary Act, because the AgVet Code owes its existence to a federal law. However given the conclusion I have just reached, that issue need not be determined.

The APVMA's case against the respondents

38    This matter has proceeded on the basis of affidavits rather than pleadings. The following statement of the case against the respondents is largely drawn from the outline of written submissions that the APVMA filed on 22 March 2022 for the purposes of the hearing of 29 April 2022.

39    The respondents are: two companies, being the first respondent Arnica Pty Ltd and the second respondent Ariel Wings Pty Ltd; and two individuals who are the ultimate shareholders of the companies, being the third respondent Adam Hayes and the fourth respondent Diana Hayes.

40    Arnica is the sole shareholder in Ariel Wings and has been since at least February 2015. Mr and Ms Hayes are shown in Australian Securities and Investment Commission (ASIC) records as living at the same address. They are the sole directors and shareholders of Arnica and have been directors since November 2014 (when Arnica was first registered). Mr Hayes is the sole director of Ariel Wings, Ms Hayes having ceased to be registered as a director on 8 March 2021. Until that time, from February 2015, Mr and Ms Hayes were the sole directors of Ariel Wings.

41    The APVMA alleges that the respondents are associated with a website that may be found at www.holisticanimalremedies.com (Website). It says that on the Website, the respondents advertise the supply of a range of products for the treatment of diseases and other conditions in animals. They are marketed under the name HAMPL Pet Formulas. They are said to be naturopathic and homeopathic methods of animal treatment.

42    The APVMA has conducted an investigation into the Website and the products sold through it. It says that investigation revealed that the respondents have been supplying 296 unregistered veterinary chemical products (Identified Products) from premises in Angove Street, North Perth. To be clear, that number refers to 296 different product lines, rather than to that number of individual packages of product.

43    An evidential certificate dated 6 December 2019 produced by the APVMA (Evidential Certificate), to which I will come in more detail, states: that between 1 October 2018 and 6 December 2019, the Identified Products were 'chemical products'; that they were not and have never been registered chemical products, 'listed chemical products' or 'reserved chemical products'; and that by 6 December 2019 there had been no application for registration of the Identified Products or for a permit in respect of them.

44    In reliance on that Evidential Certificate the APVMA alleges that each of the Identified Products:

(a)    is a chemical product for the purposes of the AgVet Code;

(b)    has never been on the Register;

(c)    is not the subject of an application for registration under the Code; and

(d)    has never been the subject of a permit or exemption under the Code.

45    On that basis it is alleged that all four respondents have breached s 78(1) of the AgVet Code. In broad terms that is because, the APVMA alleges, the corporate respondents have supplied the Identified Products, which are not on the Register, from the premises in North Perth including via the Website, and Mr and Ms Hayes have caused or permitted that to happen. The breaches are alleged to have been ongoing since 6 December 2019, being the last date covered by the Evidential Certificate, and it is said that it can be inferred that the respondents propose to continue breaching s 78(1) in that way in future and so are proposing to engage in conduct in contravention of a civil penalty provision.

46    The APVMA also alleges that the corporate respondents have breached s 88(2) of the AgVet Code by publishing notices on the Website that offer to sell the Identified Products and invite offers to buy those products. Once again, Mr and Ms Hayes are said to have contravened s 88(2) by causing or permitting that conduct.

47    Alternatively to its case that Mr and Ms Hayes are liable as principals for breaches of s 78(1) and s 88(2) of the AgVet Code, the APVMA alleges that they each are liable as accessories under s 145CA.

48    Also, the APVMA says that on 20 March 2020 it issued several recall notices under s 101 of the AgVet Code to Arnica and Ariel Wings (Recall Notices) requiring them to:

(a)    immediately stop supply of all stocks of the Identified Products;

(b)    immediately notify any person who has possession or custody of any stocks of the Identified Products that they must stop supply of the products and return them immediately;

(c)    take all steps necessary to recover all stocks of the Identified Products from any person to whom the company has either directly or indirectly supplied the products within the last 12 months;

(d)    store all stocks of the Identified Products at the Angove St premises; and

(e)    provide, within 10 business days of receipt of a written request from the APVMA, a report setting out the actions taken by the company to comply with the notice.

49    On 5 June 2020 the APVMA sent letters to Arnica and Ariel Wings requiring them to cease and desist their supply of the Identified Products and to report to the APVMA as to what steps they had taken to comply with the Recall Notices. According to the APVMA, no response has been received. The APVMA alleges that Arnica and Ariel Wings have failed to comply with the Recall Notices and so have breached s 105 of the AgVet Code. The APVMA claims that since the time of the letters, the respondents have continued to advertise the sale of and to supply unregistered veterinary chemical products including the Identified Products.

The evidence

50    This section of these reasons describes the evidence on which the APVMA bases its case. It is mostly contained in affidavits affirmed by two officers of the APVMA, Steven Harris (affidavits filed 14 October 2021 and 23 November 2021) and Phillip Maria (affidavits filed 14 October 2021 and 17 November 2021), and the annexures to those affidavits. The APVMA also relies on an affidavit filed on 17 November 2021 by its solicitor, Michael Palfrey, which annexes some correspondence.

51    Since the respondents did not appear at the hearing (save for the adjournment application) there was no challenge to anything in the affidavits and no cross-examination of the deponents. Subject to the following, I accept the factual accuracy of everything in the affidavits and the annexures.

52    Some of the evidence on which the APVMA relied was hearsay. That included, in particular, evidence given by Mr Harris based on what an APVMA officer, Shannon Cobley, told him about what happened on the execution of an investigation warrant. The APVMA has not filed any affidavit made by Mr Cobley himself. The APVMA also relies on several affidavits sworn by private investigators which, curiously, it chose not to file but instead annexed to Mr Harris's affidavits.

53    The APVMA made no attempt to place any of this evidence within any exception to the hearsay rule in s 59 of the Evidence Act 1995 (Cth). Instead it submitted that it was appropriate for the Court to exercise its power under s 190(3)(a) of the Evidence Act to order that s 59 does not apply in relation to evidence if the matter to which the evidence relates is not genuinely in dispute. I am satisfied that the apparent decision of the respondents not to contest the proceeding means that the matters to which the hearsay evidence relates are not genuinely in dispute and that it is appropriate to make orders under s 190(3)(a) here: see Director of Consumer Affairs Victoria v Gibson [2017] FCA 240 at [11].

The respondents, the Website, Holistic Animal Remedies and the HAMPL trade mark

54    Company searches as at 17 June 2021 and 3 November 2021 for Arnica and for Ariel Wings are in evidence. The summary of the respective positions of those companies and of Mr and Ms Hayes given at [39] and [40] above is drawn from those company searches and need not be repeated.

55    According to searches of ASIC's database, Arnica trades under the registered business names 'Holistic Animal Remedies', 'Holistic Pet Remedies' and 'Natural Pet Pharmacy'. On the face of the Website it is associated with a business called 'Holistic Animal Remedies': for example there is a notice on the home page and other pages claiming that the copyright is owned by 'Holistic Animal Remedies'; there is a page offering 'the latest news from Holistic Animal Remedies'; and the 'Our History' page says '[a]t Holistic Animal Remedies, we are dedicated to empowering the pet guardian, to be able to make more educated choices for the welfare of their beloved animal companions'. And, as earlier stated, the URL is www.holisticanimalremedies.com. Mr Harris's affidavit says that Arnica operates the Website.

56    However the domain name registration information annexed to the affidavit shows that the domain name is registered by Adam Hayes on behalf of Ariel Wings. The Website also appears to associate Ariel Wings with the formulation of the HAMPL Pet Formulas by referring to that name on the 'Our History' page. It also says on that page that Diana Hayes is the CEO and founder of the business. It states that she is a 'Humanitarian, Intuitive Counselor, Animal Empath'. Adam Hayes is shown as a 'Director' and 'Reiki Practitioner'. The same part of the Website also mentions a 'Dr McKibbin DVM DipHom'. That appears to be Angus McKibbin, who until 2015 was a director of Ariel Wings.

57    There is also a domain name www.holisticanimalmedicines.com which redirects to the Website and is also registered to Adam Hayes on behalf of Ariel Wings, and a domain www.hampl.com.au which is registered to Holistic Animal Medicines Pty Ltd and which also redirects to the Website. Holistic Animal Medicines Pty Ltd is a company that was deregistered in 2016 and which, up until it was placed into liquidation prior to deregistration, had the Angove Street premises listed with ASIC as its principal place of business and had Mr and Ms Hayes as its sole directors and shareholders.

58    Arnica is the owner of the HAMPL trade mark, which is registered in Australia against goods in Class 5, including 'Preparations for animal health, including natural, homoeopathic, naturopathic and complementary medicines, medications, remedies and products'.

The search warrant

59    In October 2018 the APVMA received three complaints about snake bite remedies that were being offered for sale on the Website. It commenced an investigation.

60    An investigation warrant was executed at the Angove Street premises on 7 March 2019. Mr Cobley was present at the execution of the warrant. Mr Harris's affidavit annexes a number of photographs said to have been taken by Mr Cobley at the execution of the warrant which appear to show a large number of bottles of various remedies with dropper caps. Some of these, and in some cases the shelves on which they are stacked, appear to be labelled with product numbers commencing with the letters 'AN' that correspond to product numbers that, as will be seen, appear on the Website. Mr Harris's hearsay evidence of what Mr Cobley told him about the execution of the warrant includes that:

During the course of the execution of the warrant, Mr COBLEY located product guides including instructions for administering the products, job sheets, back-order sheets, returns sheets, and completed order sheets for the products which were advertised on the www.holisticanimalremedies.com website and that were stacked on the shelves in the premises. I am informed by Mr COBLEY, and believe, that the manufacturing process continued in the presence of APVMA staff, whereby customer orders for the products were being made and being prepared for postage.

61    There are some further photographs that support this evidence, although they would not make much sense in the absence of that evidence.

62    During the execution of the warrant, computer records were seized showing that between 1 February 2019 and 7 March 2019 Arnica and Ariel Wings supplied over 2000 individual products within the product lines that constitute the Identified Products.

The products marketed on the Website

63    The Website was used to market and sell products after the warrant was executed. Mr Maria has affirmed an affidavit dated 14 October 2021 deposing to monitoring of the Website that he conducted between March 2019 and June 2021. He observed that Identified Products have continued to be advertised on the Website and that 'pop-ups' regularly appeared showing that a product had been sold. These are small pop-up windows which say that an identified buyer has just bought a particular product. New products continued to be added to the Website and in 2020 it ran a 'free shipping in April' campaign.

64    According to Mr Harris's first affidavit, in August 2019, a copy of the catalogue of products obtained from the Website was given to Dr Rachaelle Victor, who is a registered veterinarian employed by the APVMA. Dr Victor's review found that 296 of the products fell within the definition of 'veterinary chemical product' under the AgVet Code. The review was not a scientific analysis of the chemical composition of any product. It was, rather, a review of the claims made for each product on the Website, in order to identify which products were, in the words of the definition of 'veterinary chemical product', 'a substance or mixture of substances that is represented as being suitable for' administration or application to an animal or consumption by an animal as a way of achieving the ends referred to in the definition, such as the prevention, cure or alleviation of a disease or injury. She concluded that 296 of the products sold on the Website, that is the Identified Products, met the definition of 'veterinary chemical product' in the AgVet Code.

65    It is worth saying that many of the Identified Products, the claims for which Dr Victor analysed, purport to be for the treatment of acute and/or serious conditions: snake bite has already been mentioned, and other example product descriptions are:

AN022 Heart - Congestive heart failure, cardiomyopathy, arrhythmias, tachycardia, hypertropic, cardiomegaly, bradycardia, AF, feline hypertrophic cardiomyopathy.

AN112 Pneumonia - Lung, Flat-chested Syndrome (FCKS), Fading Puppy, Kitten Syndrome, Pasteurealla, Pseudomonas aeruginosa infections (SOLUTION) Use for all animal species and ages.

AN206 Cancer - Bone Cancer (osteosarcoma) spindle cell tumours as well as chondrosarcoma (sacomas) - tumors of bone and/or soft tissue. Nasal and Paranasal Sinus Chondrosarcomas in your cat or dog.

66    Each of the Identified Products has an 'AN' number, where, as earlier stated, numbers of that kind also appeared on the packaging observed during the execution of the search warrant at the Angove Street premises.

Evidential certificates

67    On 16 September 2019, the Veterinary Surgeons' Board of Western Australia provided a certificate pursuant to s 17(4) of the Veterinary Surgeons Act 1960 (WA) to the effect that as at that time none of the respondents were, or had previously been, registered veterinary surgeons or registered veterinary practices under that Act. That certificate only has evidentiary effect for questions under that Act and for prosecution for offences against that Act, but it may be received into evidence in this matter under s 69 of the Evidence Act as a business record (activities of the kind carried on by the Veterinary Surgeons' Board, and by the APVMA, being included in the definition of 'business' in s 1 of Part 2 of the Dictionary in the Evidence Act).

68    On 6 December 2019 Mr Harris issued the Evidential Certificate under s 149 of the AgVet Code stating that for the purposes of s 149(3)(b) of the Code, for the period 1 October 2018 to 6 December 2019, the Identified Products were chemical products as defined in s 3 of the Code, and had never been (including for that period) a 'registered chemical product', a 'listed chemical product' or a 'reserved chemical product'. The certificate also states for the purpose of s 149(3)(d) of the Code that the Identified Products were not subject to a permit or exemption as at 6 December 2019 and had never had a permit or exemption in force. It also states for the purpose of s 149(3)(k) of the Code that the APVMA had not received by 6 December 2019 an application for registration under Part 2 of the Code or a permit application under Part 7 of the Code.

The Recall Notices

69    On 20 March 2020 the APVMA issued the Recall Notices to Arnica and Ariel Wings under s 101 of the AgVet Code. Each of the notices concerned all the Identified Products. They said that the Identified Products met the definition of veterinary chemical product in the Code, that none of the products were registered veterinary chemical products under the Code, and that the recipient of the notice had possession or custody of stocks of the products within 'the jurisdiction'. Two of the Recall Notices also said that the recipient of the notice has caused to be published or has published notices that offer to sell or invite the making of offers to buy Identified Products. The notices each required the recipient:

(a)    to stop supply of all stocks of the Identified Products to any person;

(b)    to notify any person who had possession or custody of any stocks of the Identified Products that they must stop supply of them immediately and return them to the recipient of the notice;

(c)    to take all necessary steps to recover all stocks of the Identified Products from any person to whom the recipient had either directly or indirectly supplied the products within the last 12 months;

(d)    to store all stocks of the Identified Products at the Angove Street premises, or in the case of two of the notices, to return them to those premises; and

(e)    to provide within 10 business days of any written request from the APVMA a report setting out the actions taken by the recipient to comply with the Recall Notice.

70    The Recall Notices were sent by registered post but on 18 May 2020, the APVMA received them back with the envelopes marked 'Refused'. They were subsequently personally served at the Angove Street premises and at Mr and Ms Hayes's home address.

Developments after the Recall Notices

71    It appears from ASIC searches which Mr Harris arranged in November 2021 that on 8 March 2021, the principal place of business registered with ASIC for Arnica and Ariel Wings was changed from the Angove Street premises to an address at Wagait Beach in the Northern Territory. Searches in relation to the latter address which Mr Harris conducted indicate that it is in a subdivision near a beach and has no metered electricity or water.

72    As previously noted, Mr Maria observed on several occasions in April and May 2020 and in May and June 2021 that the Website continued to advertise Identified Products and to show pop-ups recording sales of them. In some of his observations in 2020 he also noted that that there was nothing on the Website concerning the recall of products that was required in the Recall Notices.

73    On 5 June 2020 the APVMA wrote to Arnica and Ariel Wings requiring each of them to report on the steps that they had taken to comply with the Recall Notices and, in the case of Ariel Wings, to cease and desist supply of the Identified Products and the publication of notices offering to sell a chemical product that is not a registered chemical product or inviting offers to buy such a product. The APVMA has not received any response to the letters, including reports as required under the recall notice.

74    In June 2020 private investigators retained by the APVMA purchased Identified Products from the Angove Street premises and using the Website (which were shipped from the Angove Street premises). Another private investigator purchased Identified Products from the Angove Street premises in June 2021 and in that month Mr Maria also purchased Identified Products using the Website.

75    Mr Harris observed that the Website continued to be active, including displaying pop-ups showing sales of Identified Products, in January 2021 and in July 2021. He also accessed the site in November 2021. He observed that the Website contained contact details for the 'HAMPL Pet Clinic' which give the Angove Street address. In addition, screenshots of the Website show a note that said 'Please note that we have migrated to a new website. You are requested to reset your password to access your account and start ordering'.

76    In November 2021, after the commencement of this proceeding in August 2021, the APVMA's solicitors wrote to the corporate respondents at various addresses referring to the Recall Notices, asserting that the respondents had continued to supply Identified Products despite having received those notices, asserting that the respondents continued to breach the AgVet Code, including s 88(2) concerning publication of notices, and requiring them to cease and desist supply of the products and publication of notices. There is no evidence of any reply and I infer that these letters too were ignored.

77    Also in November 2021, Mr Harris performed Google searches which revealed contact details for HAMPL, including an address listed as the Angove Street premises, and he telephoned a number he found that way and had a conversation with a person who identified herself as 'Ange', from which it appeared that a business identifying itself as HAMPL continued to trade from the Angove Street premises and that it was possible to obtain the services of a naturopath for animals at those premises.

78    Later in November Mr Harris accessed a Facebook page for 'Manufacturer & Supplier of HAMPL Natural Pet Formulas.' which showed the Angove Street premises as a terrestrial address and the URL of the Website as a web address. The Facebook page also contained a post with a link to a petition on the Australian Parliament House website entitled 'Petition EN2559 - Change AgVet Code to allow "low risk" Homeopathic for pets'. Ms Hayes is listed as the Principal Petitioner and the petition was listed as having closed on 19 May 2021.

79    Another private investigator was able to purchase an Identified Product from the Angove Street premises on 8 November 2021.

Findings and conclusions

80    While the respondents have not contested the allegations made against them in this proceeding, the APVMA accepted, correctly, that before the Court can grant the relief sought it must make findings that support the relief, based on admissible evidence, and it must be satisfied that it is an appropriate exercise of discretion to grant the relief on the basis of those findings.

The validity and effect of the Evidential Certificate

81    The central factual matter that must be determined is whether the respondents have been marketing and supplying veterinary chemical products within the meaning of the AgVet Code that are not registered under the Code. The primary evidence that identifies the existence of relevant products of that nature is the Evidential Certificate dated 6 December 2019. It is signed by Mr Harris, who is a member of the staff of the APVMA whom the APVMA has authorised to give certificates under s 149 of the AgVet Code. It identifies the 296 Identified Products as chemical products. On its face, the Evidential Certificate is evidence of that central factual matter. However two aspects of it require comment: whether all the matters stated in it are matters of a kind that s 149(3) authorises evidential certificates to cover; and the effective date of the certificate.

82    The matters stated in the Evidential Certificate are said in it to be matters covered by s 149(3)(b), s 149(3)(d) and s 149(3)(k) of the AgVet Code. Sub-paragraph (b) includes among the matters that may be stated in a certificate 'that a chemical product referred to in the certificate was, or was not, at a particular time, or during a particular period, a chemical product or a registered chemical product'. There is some circularity on the face of this, as it appears to authorise, among other things, a statement that 'a chemical product' is 'a chemical product'. It will be recalled that 'chemical product' is a defined term which includes 'veterinary chemical product', that being the category of product with which this proceeding is concerned. But the definition in s 3 of the AgVet Code is subject to the usual exception of 'unless the contrary intention appears', and in my view the contrary does appear here, because it is necessary to read the term in a way other than the defined term so as to remove the circularity and give a sensible effect to the provision. That may be done by reading the first use of the term 'chemical product' in s 149(3)(b), not to be a reference to the defined term, but to be a reference to 'a substance or mixture of substances' (a phrase used in the definitions of 'agricultural chemical product' in s 4 and 'veterinary chemical product' in s 5) that is or may be a 'chemical product' as defined, that is, or may be an agricultural chemical product (as defined) or a veterinary chemical product (as defined).

83    A further question about the scope of s 149(3)(b) of the AgVet Code could arise because the Evidential Certificate purports to state under that paragraph, not just that the Identified Products are chemical products and were not registered chemical products (both matters explicitly authorised under the sub-paragraph), but also that they are not 'listed chemical products' or 'reserved chemical products' (not explicitly authorised under the sub-paragraph). However, as I have already said, any question as to reserved chemical products can be set to one side. So too can any question as to listed chemical products; that is a concept found in the Agricultural and Veterinary Chemicals Code Regulations 1995 (Cth) which can be relevant to what is required for the APVMA to have power to register a product under the AgVet Code (s 15(2)(b)), but it does not operate to exempt the product from s 78 or s 88 and so is not presently relevant. So it is not necessary to consider whether those aspects of the Evidential Certificate were authorised by the AgVet Code.

84    Another question about the construction of s 149(3) arises because of the statement in the Evidential Certificate, purportedly made under s 149(3)(d), that the Identified Products are not subject to a permit or exemption and have never had a permit or exemption in force. The matter that s 149(3)(d) permits an evidential certificate to state is 'that a permit or exemption referred to in the certificate was in force at a particular time or during a particular period'. One difficulty is that s 149(3)(a)-(c) expressly authorise statements that a matter was not the case, where s 149(3)(d) does not expressly authorise a statement that a permit was not in force. That may indicate that the statement is not authorised.

85    The APVMA nevertheless submits that the ordinary natural meaning of s 149(3)(d) is that it refers to the status of a permit and exemption and whether it was in force at a particular time or during a particular period. The APVMA submits that this authorises a statement that 'no permit or exemption' was in force, based on a purposive interpretation and contrasting the nature of a 'permit or exemption' with the 'characterisation of a substance, product or label' in s 149(3)(a), s 149(3)(b) and s 149(3)(c). However I doubt that is so: on its face what the section authorises is a statement 'that' a specific permit or exemption is in force, not 'whether' any permit or exemption is in force. That is reinforced by the fact that what the sub-paragraph authorises is a statement in relation to 'a permit or exemption referred to in the certificate', which seems to mean a particular permit or exemption, that is a permit or exemption that exists, and not 'no permit or exemption'. And it is further reinforced by s 149(3)(e) and s 149(3)(f), which respectively appear to authorise, with similar wording, statements that a particular permit or exemption was suspended or was subject to a stated condition. These must be referring to permits or exemptions that do exist, as it would be a nonsense to say that a non-existent permit or exemption has been suspended or is subject to a condition.

86    But it is not necessary to come to a firm view about the proper construction of s 149(3)(d) because I accept the APVMA's alternative submission that it was not incumbent on it to prove the absence of a permit or exemption anyway. However I reach that conclusion by a different route to that submitted by the APVMA. It relies on s 13.1(2) of the Criminal Code as scheduled to the Criminal Code Act 1995 (Cth), which provides that the prosecution bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant. The reference to an evidential burden of proof is a reference to 'a burden of proof that a law imposes on a defendant' which is said to be an 'evidential burden only': Criminal Code s 13.3(1). The APVMA says that there is such an evidential burden under s 13.3(3) of the Criminal Code for a defendant who wishes to rely on 'any exception, exemption, excuse, qualification or justification provided by the law creating an offence'. But I cannot see how that provision applies outside a prosecution for an offence. While there are notes to s 78 of the AgVet Code that refer to s 13.3(3) of the Criminal Code, they do so only in relation to s 78(2A), which creates an offence, and such an offence is not being prosecuted in this proceeding.

87    Note 2 to s 78(3A) of the AgVet Code, which provides that s 78(1) is a civil penalty provision, says 'For the evidential burden in civil penalty proceedings in relation to the matters in paragraphs (1)(a) and (b), see section 145CD'. That section in turn provides:

In proceedings for a civil penalty order, a person who wishes to rely on any exception, excuse, qualification or justification in relation to a civil penalty provision bears an evidential burden in relation to that matter.

So it, too, cannot apply to this proceeding, as the APVMA is not seeking any civil penalty order, which is an order requiring a person to pay a pecuniary penalty: s 145A(4). Similarly to s 78, there are notes to s 88 that refer to the burden of proof, but they only concern the subsection that creates a criminal offence and civil penalty proceedings.

88    It is necessary, then, to refer to the general principles of statutory interpretation that guide the determination of where the burden of proof of a matter relies. That must be determined as a matter of substance: Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 at 119 (McHugh J). It depends on whether the matter in question is part of the total statement of the obligation, or whether it is in the nature of an excuse or justification: Avel at 119; Vines v Djordjevitch (1955) 91 CLR 512 at 519-520. If the purpose of the legislation is to lay down a principle of liability which is intended to apply generally, and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts, the onus of proving those facts will lie on the party seeking to rely on them: Vines at 519-520.

89    Those principles lead to the conclusion that, here, the onus of proving that the respondents have a permit or exemption saving them from any breach of s 78(1) of the AgVet Code lies on the respondents. That is inherent in the very notion that, under other provisions of the AgVet Code, a person may obtain a permit or exemption that the person would not otherwise have, and so be authorised to do something that would otherwise be a breach of s 78(1). A permit or exemption is thus in the nature of an excuse or justification. That is confirmed by the structure of s 78, which makes a general statement of the obligation - an obligation not to 'supply, or cause or permit to be supplied, a chemical product that is not a registered chemical product or a reserved chemical product' - and then provides by the word 'unless' that the obligation does not apply if one of two specific conditions is satisfied, that (a) the supply is authorised by a permit, or (b) the product is exempted by the APVMA from the operation of the section.

90    I do not consider that the existence of the specific provisions about evidential burdens in s 13.1 and s 13.3 of the Criminal Code or of s 145CD of the AgVet Code in relation to civil penalty orders implies that, in the absence of those specific provisions, the burden lies on the APVMA. Those sections are better understood as providing, by way of clarification, for a limited burden - an evidential burden - on the defendant or respondent where the criminal or otherwise penal nature of the proceeding might give rise to doubt that such a burden applies.

91    I therefore accept, albeit for different reasons, the APVMA's submission that it was not obliged to prove that the respondents did not have a permit or exemption of the kind referred to in s 78(1). That being so, there is no need to consider whether the Evidential Certificate had effect in relation to the absence of a permit or exemption.

92    The second aspect of the Evidential Certificate that requires comment is its date and date range. It was made over one and a half years before the proceeding was commenced and nearly two and a half years before the hearing. It only makes the relevant statements in relation to the period 1 October 2018 to 6 December 2019, so it does not have direct operative force in relation to the considerable period that has elapsed after that date. Its age gives rise to concern about the weight that should be put on it as at the date of the hearing.

93    Counsel for the APVMA submitted that since the Evidential Certificate stands as prima facie evidence of the matters stated in it, in the absence of evidence to the contrary the Court could infer that the state of affairs existing as at that time has continued. He referred to Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 at [395]-[398] (Austin J) in that regard. That passage does not deal specifically with the question of lapse of time; it considered, rather, the question of the probative force to be given to the documents that were there taken as prima facie evidence under s 1305(1) of the Corporations Act 2001 (Cth), namely company books. Nevertheless, the passage is helpful. At [396]-[397] Austin J held (citations omitted):

… The statement in s 1305(1) that the company's books are prima facie evidence of a matter stated or recorded in them does more than merely to convey that they are the starting point to proof or a 'first view'. All other things being equal, the fact that a matter is stated in a book kept by a company is sufficient to prove that matter in civil proceedings. That does not reverse the onus of proof in the proceedings in any general way, but it means that the tendering of the book is evidence of the matter recorded in it, and that matter will be thereby proven unless other evidence convinces the tribunal of fact to the contrary, on the balance of probabilities.

Section 1305(1) does not make the company's books conclusive evidence of the matters they contain, in the sense of requiring the tribunal of fact to make a finding in terms of the content of the books in the absence of proof to the contrary by the opposing party. The books are prima facie evidence of the matters stated in them, but the weight of that evidence is to be measured in accordance with the common sense of the tribunal of fact.

94    The same common sense approach should be taken here. The Court has to determine whether, on the balance of probabilities, the matters stated in the Evidential Certificate as at 6 December 2019 were still true as at the time of the hearing, 29 April 2022. Applying a common sense approach, there is no rule that the earlier state of affairs must be taken to have continued in the absence of proof to the contrary; whether it will be taken to have done so depends on the evidence (if any) and the inherent probabilities.

95    Here I am satisfied on the balance of probabilities that if the matters stated in the Evidential Certificate were prima facie true as at 6 December 2019, they were still true as at the date of the hearing. That follows from the nature of the matters stated, the inherent probabilities, and the evidence that has been led. The nature of the principal matter stated, that the Identified Products are 'chemical products' regulated by the AgVet Code, depends on the nature of the claims that are made for the products, including on the Website. The evidence additional to the Evidential Certificate described above indicates continuity over time, up until November 2021, as to the offering of products on the Website. To cease to offer products which are claimed to offer therapeutic benefits of the kind that makes them 'veterinary chemical products' would be a considerable change in the business of the respondents. The evidence indicates that far from changing their business model since the APVMA's investigation, the respondents have chosen to conduct it in the same way that they did beforehand, so as to ignore both the investigation and the Recall Notices.

96    The other main matter that is the subject of the Evidential Certificate is that the Identified Products are not registered products. As the authority that maintains the Register, the APVMA may be taken to know whether a person has applied for or obtained registration of a chemical product. It is inherently improbable that the respondents would have applied for or obtained registration and that the APVMA would have continued its investigation and would not have mentioned that fact in its evidence. To the contrary, the respondents seem to have chosen to ignore the lack of registration, save to the extent that Ms Hayes has proposed a petition to change the law, which itself suggests that there has been no attempt to have any product registered.

97    While the long lapse of time since the date of the Evidential Certificate is less than ideal, and has not been explained, a common sense view of the position leads to the conclusion that, on the balance of probabilities, the fact that the Court must take the certificate as prima facie evidence of the things stated in it as at 6 December 2019 means that the prima facie and uncontradicted position was the same as at the date of the hearing.

Findings as to contravention

98    The evidence described above shows that Arnica owns the registered trade mark HAMPL, under which the Identified Products are sold, and trades as Holistic Animal Remedies, the business name associated with the Website, and which is also its URL. Mr Harris's evidence is that Arnica operates the Website. Adam Hayes on behalf of Ariel Wings is the registered owner of the Website and Ariel Wings is also associated with HAMPL products on it. It follows that for the purposes of the AgVet code, responsibility for the content of the Website can be attributed to both Arnica and Ariel Wings.

99    Also, both Arnica and Ariel Wings have carried on business from the Angove Street premises, at which the Identified Products have been made, and from which it was possible to buy Identified Products at various times between March 2019 and November 2021. Although in March 2021 Arnica and Ariel Wings changed their principal places of business as registered with ASIC, since the new address is an unmetered property in a beachside subdivision in the Northern Territory, I infer that there has in fact been no change to its actual place of business. That is confirmed by the evidence that it has continued to be possible to buy Identified Products from the Angove Street premises after March 2021 and the other evidence I have referred to showing that those premises continue to be listed in the contact details for 'Ariel Wings Pty Ltd (trading as hampl)' (on Google searches and for the HAMPL Pet Clinic on the Website.

100    There is ample evidence showing that Identified Products have been supplied on many occasions both via the Website and from the Angove Street premises. Those two channels for the sale and distribution of the Identified Products are intertwined and in effect present a single enterprise for the marketing and supply of those products that is carried on by both of Arnica and Ariel Wings. The latter company is a subsidiary of the former and both have common directors (noting Ms Hayes' resignation as a director of Ariel Wings in March 2021).

101    I therefore find that both Arnica and Ariel Wings have repeatedly breached s 78(1) of the AgVet Code, in that they have supplied numerous veterinary chemical products that are not registered chemical products or reserved chemical products, that is, the Identified Products. For reasons I have given, the Evidential Certificate and the other circumstances to which I have referred establish that the Identified Products that are sold and supplied both on the Website and from the Angove Street premises have been products of that kind throughout the period covered by the APVMA's investigation and since the beginning of this proceeding, namely March 2019 (the time of the search warrant and the time from which monitoring of the Website commenced) until April 2022.

102    The Evidential Certificate means it was not necessary for the APVMA to adduce evidence as to the exceptions from the definition of veterinary chemical product that are found in s 5(4)(a) of the AgVet Code, so as to establish, broadly described, that the product was not prepared by or in accordance with the instructions of a veterinary surgeon. As I have said, there is evidence that none of Mr Hayes, Ms Hayes or Dr McKibbin are veterinary surgeons who are registered in Western Australia. And while there is evidence that Dr McKibbin is a registered veterinary surgeon in New South Wales, there is no suggestion in the evidence that any of the products were prepared by him or under his supervision. To the contrary, the Website says that '[o]ur girls' - two persons called Jamiee and Nicole - 'make up our formulas on a daily basis to orders from all over the world'. The evidence that Dr McKibbin is registered in New South Wales does not amount to evidence that displaces the prima facie proof provided by the Evidential Certificate, that the Identified Products are unregistered veterinary chemical products.

103    As for s 88, I find that in marketing the Identified Products on the website, Arnica and Ariel Wings have published, or caused or permitted to be published, notices that offer to sell or invite the making of offers to buy chemical products that are not registered chemical products. To maintain the Website is to publish a notice of that kind, and it is not necessary to decide whether it is also to publish an 'advertisement' (that term being expressly included in the definition of 'notice' in the AgVet Code). The Evidential Certificate establishes that the Identified Products have not been the subject of any application for registration, so that the exceptions in s 88(2)(c) and (d) do not apply.

104    Each of s 78 and s 88 prohibit, not just the supply of unregistered veterinary chemical products or the publication of notices offering to sell such products, but also causing or permitting their supply and causing or permitting the publication of such notices. The APVMA's case is that each of Mr and Ms Hayes have caused or permitted the contravening conduct of the corporate respondents and have thereby themselves breached the provisions. I find that the APVMA has made out these allegations. Mr and Ms Hayes were the sole directors and shareholders (directly in Arnica and indirectly in Ariel Wings) of both companies during the entire period covered by the APVMA's investigation, save that Ms Hayes ceased to be registered as a director of Ariel Wings on 8 March 2021. They are described on the Website as the CEO and founder of the business (Ms Hayes) and a Director (Mr Hayes). It appears from the descriptions given of the execution of the search warrant and of the acquisition of Identified Products from the Angove Street premises by private investigators that only a small number of persons have worked at the business at any given time. It is not possible to give precise numbers but it appears to be in the order of five. So it is a reasonably small enterprise and it can be comfortably inferred that Mr and Ms Hayes have been at all times aware of the fact of the supply of Identified Products, including via the Website, and of the nature of the products supplied. It can also be inferred from the Recall Notices (which were personally served upon them) and multiple communications telling the corporate respondents to stop the supply that they have declined to exercise their powers to stop the corporate respondents from engaging in the contraventions. This is, at least, to permit the supply of the Identified Products and to permit the publication of notices offering to sell them. In this way, each of Mr Hayes and Ms Hayes have breached s 78(1) and s 88(2) of the AgVet Code.

105    Each of s 78(1) and s 88(2) are civil penalty provisions. Under s 145CA(2) of the AgVet Code, to be involved in a contravention of such a provision is to be taken to have contravened it. The APVMA's alternative case against Mr and Ms Hayes is that they have aided and abetted, conspired to effect, or have been directly or indirectly knowingly concerned in or party to the companies' contraventions. For the reasons I have just given, I find that this alternative case would also have been made out. But it was put as an alternative, and I received no submissions as to whether it is possible under the AgVet Code to be both a principal contravenor and liable under the accessory provision that is s 145CA(1) of the Code. I will therefore proceed solely on the basis that Mr and Ms Hayes are principal contravenors.

106    Finally, it is plain that Arnica and Ariel Wings, as the respondents to whom the Recall Notices were directed, have failed to comply with the Recall Notices in any respect, and so have contravened s 105(1) of the AgVet Code. There is nothing to suggest that the Recall Notices were other than valid and effective, their content being expressly authorised by s 101(2).

Injunctions

107    Other than costs, the relief the APVMA seeks is confined to the following injunctions:

(a)    an injunction pursuant to s 145F(1) of the AgVet Code restraining all the respondents from: (i) supplying, or causing or permitting to be supplied, unregistered veterinary chemical products contrary to s 78 of the AgVet Code, including the Identified Products; and (ii) publishing, or causing to be published (including via the website www.holisticanimalremedies.com), notices that offer to sell or invite the making of offers to buy unregistered veterinary chemical products contrary to s 88 of the AgVet Code, including the Identified Products; and

(b)    injunctions pursuant to s 145F(2) of the AgVet Code requiring Arnica and Ariel Wings to comply with the Recall Notices respectively applicable to each of them.

108    An injunction for which s 145F(1) of the AgVet Code provides becomes available when a person has engaged, is engaging or is proposing to engage, in conduct that constitutes a contravention of a civil penalty provision. Each of the respondents has engaged in conduct that constitutes a contravention of each of s 78 and s 88 of the AgVet Code, which are civil penalty provisions. Arnica and Ariel Wings have also engaged in conduct that constitutes contravention of a further civil penalty provision, s 105(1).

109    I also find that during the period of the APVMA's investigation, and up to and beyond the commencement of this proceeding, the respondents have continued to supply the Identified Products in breach of s 78 and to market them in breach of s 88, and they will keep doing so if injunctions are not granted. The corporate respondents have also been continuously failing to comply with the Recall Notices and that failure will continue in the absence of injunctions. The evidence described above provides ample basis for an inference, which I make, that the respondents have decided simply to ignore the APVMA's investigation, the Recall Notices, and the letters from the APVMA and its solicitors calling on them to cease and desist supply of the Identified Products. The corporate respondents have continued to supply Identified Products throughout the period March 2019 to November 2021, even after a search warrant was executed on their premises, and even after the Recall Notices were served. The note on the Website saying 'we have migrated to a new website' suggests that the respondents intend to continue to develop the Website and intend to continue to use it to sell Identified Products. It is plain that they will continue to supply the Identified Products if they are not restrained from doing so on pain of contempt of court. It follows that each of the respondents is not only engaging but is also proposing to engage in conduct that constitutes a contravention of a civil penalty provision. Also, each of the corporate respondents is refusing or failing, and is proposing to refuse or fail, to comply with the Recall Notices where that is or would be a contravention of a civil penalty provision, and s 145F(2) of the AgVet Code is engaged.

110    Although it is not necessary to make findings that the respondents are likely to continue to contravene in order to grant the injunctions that the APVMA seeks, it is relevant to the discretion as to whether the Court should grant the injunctions. I have no doubt that it should. The respondents continue to breach provisions of the AgVet Code that are intended for the protection of the public and their pets and other animals they look after. They do so in the face of demands to stop and in the face of notices with statutory force requiring them to stop.

111    No discretionary reason against granting the injunctions appears on the face of the evidence. Subject to one issue which I raised with counsel for the APVMA (and to some drafting changes), the injunctions sought by the APVMA identify with sufficient precision the contravening conduct that is to be restrained and the mandatory conduct that is to be required.

112    The issue that I raised with counsel concerned the utility of the Court requiring the corporate respondents to comply with the paragraphs of the Recall Notices obliging them to '[t]ake all steps necessary to recover all stocks of the [Identified] Products from any person that the Supplier has either directly or indirectly supplied the [Identified] Products to within the last 12 months': para 4.0(c) in each Recall Notice. The issue is that each of the notices is dated 20 March 2020 so the injunction would, in terms, operate in respect of a window of time that ended more than two years ago.

113    The APVMA accepted that it would have that operation and did not seek to vary the injunction to achieve any other result. It submitted that the injunction would nevertheless have utility and be capable of performance in relation to paragraph 4.0(c) of the Recall Notices. The APVMA submitted that it can be inferred that it is likely that many of the Identified Products supplied during the historical 12 month window will still be in the possession of those to whom they were supplied, so that the requirement to take steps to recover those products will have some utility. The evidence indicates that at least the liquid products, for example, are sold in volumes of up to 200mL and there is also evidence that indicates they are accompanied by directions which specify individual doses of no more than a few drops. So there are likely to be numerous instances where Identified Products supplied during that 12 month window have been retained.

114    The APVMA also submitted that the 12 month window only closes off the category of people to whom products were supplied, not supplies of products themselves. So while only supplies of products to people who received Identified Products during that window will be captured, that will include other products that are supplied to those same people after 20 March 2020 (and before that date).

115    I accept these submissions, and so accept that there will be utility in injunctions requiring the corporate respondents to comply with the Recall Notices in their entirety. Injunctions will be granted essentially in the terms the APVMA seeks. There will also be an order that the respondents pay the APVMA's costs.

Associate:

Dated:    15 July 2022