Federal Court of Australia

Australian Communications and Media Authority v Jones [2023] FCA 246

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 17.03 of the Federal Court Rules 2011 (Cth), the applicant’s interlocutory application and the accompanying affidavit of Mr Matthew Garey dated 14 February 2023 are taken to have been served on the second respondent by the following methods of service:

(a)    the applicant’s solicitors sending a copy of the interlocutory application and affidavit addressed to the second respondent at anthonycurro@outlook.com; and

(b)    the applicant’s solicitors sending a text message to +61427376388 informing the second respondent of the interlocutory application and the email sent to authonycurro@outlook.com.

2.    The second respondent pay the applicant’s costs of and incidental to this application, to be taxed.

UPON admissions which the second respondent is taken to have made consequent upon defaults under the Federal Court Rules 2011 (Cth), THE COURT DECLARES THAT:

1.    Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), between 15 March 2021 and 13 April 2022, the second respondent provided a prohibited interactive gambling service, through https://redrawpoker.com/ and the Redraw Poker clubs on the PPPoker App with club identification numbers 3000693, 3000694 and 3000695 that had an Australian-customer link and by doing so contravened s 15(2A) of the Interactive Gambling Act 2001 (Cth).

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

REASONS FOR JUDGMENT

THOMAS J:

1    By way of interlocutory application dated 14 February 2023, the Australian Communications and Media Authority (ACMA), the applicant, sought an order for default judgment against Diverse Link Pty Ltd (Diverse Link), the second respondent, pursuant to r 5.23(2)(c) of the Federal Court Rules 2011 (Cth) (the Rules).

JUDGMENT ON DEFAULT

2    Rule 5.22 of the Rules provides that:

A party is in default if the party fails to:

(a)    do an act required to be done, or to do an act in the time required, by these Rules; or

(b)    comply with an order of the Court; or

(c)    attend a hearing in the proceeding; or

(d)    prosecute or defend the proceeding with due diligence.

3    Rule 5.23(2)(c) provides that:

(2)    If a respondent is in default, an applicant may apply to the Court for:

…

(c)    if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings—an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled …

…

4    Principles established with respect to the former O 35A r 3(2)(c) of the Federal Court Rules (Cth) continue to be applicable to the current r 5.23(2)(c).

5    Useful summaries of the relevant principles are contained in Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 (Chamberlain Group) at [13]-[14] per Yates J and Tax Practitioners Board v Stroe [2022] FCA 482 (Stroe) at [43]-[47] per Banks-Smith J.

6    The discretionary power in relation to default judgment is enlivened when an applicant applies to the Court for the order giving judgment against the respondent (r 5.23(2)).

7    The power provided for by the rule is discretionary and must be exercised cautiously (Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 (Speedo Holdings) at [20] per Flick J).

8    The Court may give judgment for the relief claimed in the statement of claim or alternative accompanying document “to which the Court is satisfied that the applicant is entitled”. The requirement imposed is not that an applicant prove by way of evidence the claim sought to be advanced; the requirement is that the Court needs to be satisfied on the face of the statement of claim or alternative accompanying document that the applicant is entitled to the relief claimed (Speedo Holdings at [23]).

9    Where the defaulting party is a respondent to a pleaded claim, the giving of judgment for final relief on the application will deliver complete success to the applicant without investigation of the merits of the pleaded claim (Chamberlain Group at [13]).

10    For the purpose of determining whether the Court is satisfied on the statement of claim or alternative accompanying document that the applicant is entitled to the relief claimed, the facts as alleged in the statement of claim or alternative accompanying document are deemed to have been admitted by the respondent (Speedo Holdings at [23] and Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) (2007) 161 FCR 513; [2007] FCAFC 146 at [42] per Moore, Dowsett and Greenwood JJ).

11    In considering the applicant’s entitlement to the relief claimed, the Court must be satisfied that the respondent has been served with the relevant documents and that the Court has jurisdiction to grant the relief.

12    In exercising the discretion, the Court must be satisfied why relief of the kind sought should be granted, including the necessity for, or utility of, that relief. This is particularly so in the case of declaratory relief, as is sought in this case.

COMMUNICATIONS FROM THE ACMA

13    On 28 June 2022, the ACMA filed an interlocutory application seeking orders pursuant to r 10.23 of the Rules that the originating application and concise statement (the Originating Documents) are taken to have been served on Diverse Link on 13 June 2022. In support of this application, the ACMA filed the fifth affidavit of Mr Matthew Richard Garey dated 28 June 2022.

14    Mr Garey’s affidavit outlined the following information as to service of the Originating Documents on Diverse Link.

15    The sole director of Diverse Link is Mr Anthony Alf Curro and the registered office address of Diverse Link is Unit 3, 44 Rawlinson Street, Murarrie QLD 4172 (the Rawlinson Street address), as recorded in the Current and Historical Extract from the registers of the Australian Securities and Investments Commission.

16    A person attended at the Rawlinson Street address on 20 April 2022 and was informed by the occupant that Diverse Link “must have been a previous tenant” and that she had been living at the address for approximately 18 months. The Originating Documents were placed in the letterbox at the Rawlinson Street address.

17    On 3 May 2022, the Originating Documents were returned to the office of the ACMA’s solicitors with a notation that Diverse Link was not known at the Rawlinson Street address.

18    On 16 May 2022, the ACMA sent a letter enclosing the Originating Documents to the Rawlinson Street address. The letter enclosing the Originating Documents was returned to the office of the ACMA’s solicitors on 23 May 2022 with the following messages written on the envelope:

Australia Post

Please Return to address on opposite side

and

Note

This person does not live at this address!!

This is a rental property

check with [name and telephone number of the real estate agent]

(Error in original)

19    Earlier, on 8 October 2021, the ACMA had issued a notice to provide documents and information under s 173(1) of the Broadcasting Services Act 1992 (Cth) to each of the Commonwealth Bank of Australia (Commonwealth Bank) and the Australian and New Zealand Banking Group Limited (ANZ) in respect of bank accounts held by Diverse Link. The ANZ responded with a mobile number (the first mobile number) and the Rawlinson Street address. The Commonwealth Bank responded with the email address anthonycurro@outlook.com (the email address), the first mobile number, a second mobile number and the address 20709/33 Manning Street, South Brisbane QLD 4104 (the Manning Street address).

20    A person again attended at the Rawlinson Street address on each of 10, 11 and 12 May 2022. The person was again not able to serve the Originating Documents on any of those days.

21    On 13 May 2022, a telephone call was made to the first mobile number, which was not connected.

22    On 16 May 2022, the Originating Documents were sent via email to the email address.

23    A telephone call was made to the second mobile number on each of 19 and 25 May 2022, which rang out to a generic voicemail each time. A message was left on each of those occasions.

24    On 10 June 2022, a person attended at the Manning Street address, with no response from the unit. A person attended at that property again on 13 June 2022, again with no response. The person found and called a mobile number for the building manager, who informed the person that the unit was occupied, but that the name on their system was different. The person left a calling card in the letterbox and called the second mobile number, which rang out to a silent voicemail. The person left a message.

25    On 13 June 2022, Mr Garey received a telephone call from an unknown mobile number (the third mobile number) from a person who identified himself as “Anthony Curro”. The telephone conversation as described in Mr Garey’s fifth affidavit was as follows:

42.    On 13 June 2022, I received a phone call from an unknown mobile number (the third mobile number) from a person who identified himself as Anthony Curro. Mr Curro said words to the following effect:

The email is the first I have heard of the matter.

43.    I said words to the following effect:

We served Diverse Link at its registered office, but the fact that you had not heard suggests that the details that ASIC has were not up-to-date. That does not matter though, I am glad you are now aware of the case.

44.    Mr Curro said words to the following effect:

I don’t understand the bases of the ACMA’s case against me.

45.    I said words to the following effect:

I would be happy to speak with you in detail about it but for now the basis for and nature of our case is set out in the Concise Statement and the relief we are seeking is set out in the Originating Application.

46.    Mr Curro said words to the following effect:

What is happening when the matter is before the court later this month?

47.    I said words to the following effect:

We will apply to the court to have Brisbane Poker reinstated so we can proceed against it. The balance of the case management hearing would depend on what happens in the next couple of weeks but broadly we would be seeking a timetable to move the matter forward.

48.    Mr Curro said words to the following effect:

I will call you this week to discuss further.

49.    I said words to the following effect:

Do you have legal representation?

50.    Mr Curro said words to the following effect:

I am not currently represented but I will look into that depending where we get with our discussion later this week.

(Emphasis in original)

26    On 24 June 2022 at 11.38 am, Mr Garey called Mr Curro on the third mobile number which went to voicemail. Mr Garey received a text message from the third mobile number at 11.38 am on 24 June 2022 which said: “Please text me.” He sent two text messages back as a response as follows:

Dear Anthony, it’s Matthew Garey from the Australian Government Solicitor calling about the Federal Court proceeding involving Diverse Link, following up on your call to me on Monday 13 June 2022. Could you please call me when you get a chance. Regards Matthew

and

My number is [Garey telephone number 1] or [Garey telephone number 2]. Regards Matthew

27    On 24 June 2022 at 11.51 am, Mr Garey received a telephone call from the third mobile from a person identifying himself as “Mr Curro”. The following exchange took place:

67.    ... I said words to the following effect:

Will Diverse Link be appearing in court next week by you or by a lawyer or in another way?

68.    Mr Curro said words to the following effect:

I don’t know.

69.    I said words to the following effect:

The reason I am asking is because we are working out whether we need to file an application for deemed service.

70.    After briefly explaining deemed service, I said words to the following effect:

We have now spoken twice so I assume that the application will be unnecessary.

71.    Mr Curro said words to the following effect:

I am not a retard. I know we have spoken twice. What does the ACMA want?

72.    I said words to the following effect:

The ACMA is seeking a range of relief, including a penalty.

73.    Mr Curro said words to the following effect:

What if Diverse Link can’t pay?

74.    I said words to the following effect:

I would need instructions but the fact that you cannot pay is not a reason the Court won’t order a penalty.

28    On 29 June 2022, a case management hearing was conducted. Neither Diverse Link nor Mr Curro appeared.

29    An order was made pursuant to r 10.23 of the Rules that the Originating Documents were taken to have been served on Diverse Link on 13 June 2022, and an order was made that the respondents were to file and serve their concise responses by 11 August 2022. Orders were subsequently made extending the deadline for the respondents to file and serve the concise responses until 9 September 2022.

30    On 14 February 2023, the ACMA filed the interlocutory application for default judgment against Diverse Link and the eighth affidavit of Mr Garey affirmed 14 February 2023 (the Default Judgment Documents). The eighth affidavit detailed the following events.

31    On 12 August 2022, the ACMA filed particulars of the concise statement (Particulars) in respect of the allegations against Diverse Link.

32    On 15 August 2022, the solicitor for the ACMA sent a copy of the Particulars via email to the email address. As well, he sent two text messages. The first indicated that a copy of the orders dated 29 June 2022 was sent to the email address. The second informed that the Particulars were sent to the email address. These texts are exhibited to the eighth affidavit of Mr Garey as “MRG-78” and were as follows:

… that the Originating Application and Concise Statement, both filed 19 April 2022, are taken to be served on Diverse Link Pty Ltd (the Second Respondent). We have sent a copy of the orders made to your email address at anthony.curro@outlook.com. If you have any questions please contact me. My numbers are [Garey telephone number 1] or [Garey telephone number 2]. Regards, Matthew Garey

and

Dear Mr Curro. We refer to the Federal Court proceedings ACMA v Jones and Anor (QUD129/2022). The Applicant filed particulars in respect of its case against Diverse Link Pty Ltd on Friday. A copy of the particulars has been sent to your email address at anthony.curro@outlook.com. If you have any questions, please contact me. My numbers are [Garey telephone number 1] or [Garey telephone number 2]. Regards, Matthew Garey.

33    On 14 February 2023, the solicitors for the ACMA sent an email to the email address which attached a copy of a letter of the same date addressed to Mr Curro. The letter advised Diverse Link that the ACMA would apply for default judgment against Diverse Link and explained the consequences of a default judgment application. On 14 February 2023, Mr Garey also sent a text message to the third mobile number advising that the letter had been sent via email as follows:

Dear Mr Curro. We refer to the Federal Court proceedings ACMA v Jones and Anor (QUD129/2022). AGS has sent you a letter to your email address at anthony.curro@outlook.com. If you have any questions, please contact me. My numbers are [Garey telephone number 1] or [Garey telephone number 2]. Regards, Matthew Garey.

34    On 17 February 2023, the ACMA filed the ninth affidavit of Mr Garey affirmed 17 February 2023. It detailed the following events.

35    On 15 February 2023, the solicitors for the ACMA sent a copy of the unsealed Default Judgment Documents to the email address and also sent a message to the third mobile number as follows:

Dear Mr Curro. We refer to the Federal Court proceedings ACMA v Jones and Anor (QUD129/2022). The Applicant has filed an interlocutory application for default judgment against Diverse Link on 14 February 2023. The documents have been sent to your email address anthony.curro@outlook.com. If you have any questions, please contact me. My numbers are [Garey telephone number 1] or [Garey telephone number 2]. Regards, Matthew Garey.

36    On 16 February 2023, the solicitors for the ACMA sent a copy of the sealed Default Judgment Documents to the email address and sent a message to the third mobile number as follows:

Dear Mr Curro. We refer to the Federal Court proceedings ACMA v Jones and Anor (QUD129/2022). The Applicant has filed an interlocutory application for default judgment against Diverse Link on 14 February 2023. By way of service, the sealed documents have been sent to your email address at anthony.curro@outlook.com. If you have any questions, please contact me. My numbers are [Garey telephone number 1] or [Garey telephone number 2]. Regards, Matthew Garey

COMMUNICATION FROM THE COURT

37    An email was sent from the Court on 17 February 2023 at 4.36 pm AEST informing the parties that they have leave to attend the interlocutory hearing on 21 February 2023 via Microsoft Teams and included the relevant Microsoft Teams details. In this email, the Court also requested that the parties advise appearance details no later than midday on Monday, 20 February 2023. The email addresses included anthonycurro@outlook.com.

38    The Court has not received any responses from the email address anthonycurro@outlook.com, nor received confirmation of any appearances.

SERVICE OF THE INTERLOCUTORY APPLICATION AND ACCOMPANYING AFFIDAVIT OF MATTHEW GAREY DATED 14 FEBRUARY 2023

39    Rule 17.03 provides that a party may apply to the Court for an order that an interlocutory application be served on a party who has not filed a notice of address for service.

40    In these proceedings, Diverse Link has not filed a notice of address for service.

41    As explained earlier in these reasons, on 29 June 2022, an order was made pursuant to r 10.23 of the Rules that the originating application dated 19 April 2022 and the concise statement dated 19 April 2022 are taken to have been served on Diverse Link on 13 June 2022. The documents had been forwarded to Diverse Link by sending an email to anthonycurro@outlook.com. Mr Curro, the sole director of Diverse Link, subsequently called the solicitor acting on behalf of the ACMA and it was clear that Mr Curro was aware of the documents (which had clearly been received) and was also aware of the date of the first case management hearing.

42    Subsequently, all documents were forwarded to the same email address with follow-up text messages to the mobile telephone number used by Mr Curro to make the calls, in each case advising of the sending of the various documents and orders to the email address.

43    I am satisfied that this method of service of the interlocutory application and accompanying affidavit of Mr Garey dated 14 February 2023 is a method of service which is adequate to ensure that Diverse Link is aware of those documents.

44    In those circumstances, I will order that, pursuant to r 17.03 of the Rules, the ACMA’s interlocutory application and the accompanying affidavit of Mr Garey dated 14 February 2023 is taken to have been served on Diverse Link by the following methods of service:

(a)    the ACMA’s solicitors sending a copy of the interlocutory application and affidavit addressed to Diverse Link at anthonycurro@outlook.com.; and

(b)    the ACMA’s solicitors sending a text message to +61427376388 informing Diverse Link of the interlocutory application and the email sent to authonycurro@outlook.com.

THE PLEADED CASE

45    The ACMA asserted (using the paragraph numbers in the concise statement):

A.    IMPORTANT FACTS GIVING RISE TO THE CLAIM

1.    The Interactive Gambling Act 2001 (Cth) (the IGA) prohibits various types of interactive gambling in Australia. This proceeding concerns alleged contraventions of s 15(2A) of the IGA which makes it unlawful for a person to provide a prohibited interactive gambling service that has an Australian-customer link. The Australian Communications and Media Authority (ACMA), which is responsible for civil enforcement of the IGA, alleges that since at least 2 March 2020, an online poker service as described below has been operating in contravention of s 15(2A) of the IGA.

2.    Since at least 2 March 2020, this service has offered Australians the ability to play poker online for money on their computers, phones or other devices. Players access poker clubs through an application known as the PPPoker App. Through a separate website, players register an account and purchase chips (either via bank transfer or bitcoin), which are then credited to their account in the clubs. Chips are used to play poker and can be redeemed for money or cryptocurrency.

3.    From at least 2 March 2020 to 6 January 2021, the service operated under the name ‘PPPFish’. Players registered and purchased chips through a website (https://pppfish.com/) (the PPPFish website) and played poker games in one or more of three PPPFish private poker clubs on the PPPoker App … The ACMA alleges that this service was provided … in contravention of s 15(2A) …

…

5.    On or about 6 January 2021 … the PPPFish private poker clubs on the PPPoker App were closed down, and the players’ accounts and chips, were migrated to new clubs, branded as Shuffle Gaming clubs. Players were able to register, purchase and cash out chips through one or two websites: the original PPPFish website and a new website (https://shufflegaming.com) (the Shuffle Gaming website). The ACMA alleges that this service was also provided … in contravention of s 15(2A) of the IGA …

6.    On or about 10 March 2021, further changes occurred: the Shuffle Gaming clubs, which had only opened two months earlier, were closed down, and the players’ accounts and chips, were again migrated, this time from the Shuffle Gaming clubs to new Redraw Poker clubs. The PPPFish and Shuffle Gaming websites were also taken down, and a new website established (https://redrawpoker.com) (the Redraw Poker website), through which players since mid-March 2021 have been able to register, purchase and cash out chips. The ACMA alleges that this service was and is provided by the second respondent, Diverse Link Pty Ltd, in contravention of s 15(2A) of the IGA. As of the date of this Concise Statement, the Redraw Service continues to operate.

7.    …

Prohibited interactive gambling services with an Australian-customer link

The PPPFish Service

8.    From at least 2 March 2020 to 6 January 2021, players were able to play poker in the PPPFish poker clubs on the PPPoker App, having the PPPoker club identification numbers 700000, 1071550 and 910440 (PPPFish clubs).

9.    In order to play poker in the PPPFish clubs, players were required to have a registered account, which they used to purchase chips to play poker in the clubs and to redeem chips.

10.    From about 2 March 2020 to at least 6 January 2021, players were able to register accounts, purchase and redeem chips through the PPPFish website.

11.    Players purchased chips on the PPPFish website through either a bank transfer or a bitcoin payment. Those chips were then credited to the player’s account in the PPPFish clubs on the PPPoker App. Players could then use those chips to play games of poker in the PPPFish clubs on the PPPoker App.

12.    Poker is a game of mixed chance and skill. In the PPPFish clubs, players played for the sum of the players’ bets (known as the “pot”), minus a certain proportion of the pot (known as the “rake”) which was retained by the club. Players could keep their chips in their account for future games, or cash them out (for money or cryptocurrency) via the PPPFish website.

13.    The matters alleged in paragraphs 8 to 12 above constituted a gambling service within the meaning of s 5 of the IGA.

14.    Further, this gambling service:

(a)    was provided in the course of carrying on a business;

(b)    was provided to customers using an internet carriage service;

(c)    included customers who were physically present in Australia.

15.    By reason of the matters alleged in the paragraph above, the gambling service was a prohibited interactive gambling service that had an Australian-customer link (as defined in s 5 and s 8 of the IGA).

The Shuffle Gaming Service

16.    On about 6 January 2021, the PPPFish clubs were closed, and players accounts’ (including their chips) were migrated from the PPPFish clubs to the Shuffling Gaming clubs on the PPPoker App, having the PPPoker club identification numbers 2896943, 2896953 and 2896949 (Shuffle Gaming clubs).

…

23.    Further, for the same reasons as alleged in relation to the PPPFish clubs (in paragraph 14 above), this gambling service was a prohibited interactive gambling service that had an Australian-customer link.

The Redraw Poker Service

24.    On about 10 March 2021, the Shuffle Gaming clubs were closed and players’ accounts (including their chips) were migrated from the Shuffle Gaming clubs to the Redraw Poker clubs on the PPPoker App, having PPPoker club identification numbers 3000693, 3000694 and 3000695 (Redraw Poker clubs).

25.    Since 12 March 2021, players have been able to play poker in the Redraw Poker clubs on the PPPoker App.

26.    In order to play poker in the Redraw Poker clubs, players are required to have a registered account, which they use to purchase chips to play poker in the clubs and to redeem chips.

27.    From about mid-March 2021, players have been able to register accounts, purchase and redeem chips from the Redraw Poker website.

28.    Players purchased chips on the Redraw Poker website through either a bank transfer or a bitcoin payment. Those chips were then credited to the player’s account in the Redraw Poker clubs on the PPPoker app.

29.    Poker games in the Shuffle Gaming clubs operated in the same way as the PPPFish clubs (as alleged above in paragraph 12)

30.    The matters alleged in paragraphs 24 to 29 constituted a gambling service within the meaning of the IGA.

31.    Further, for the same reasons as alleged in relation to the PPPFish clubs (in paragraph 14 above), the gambling service was a prohibited interactive gambling service that has an Australian-customer link.

Providers of the Services

…

34.    From March 2021 to present date, players wishing to play in one of the Redraw Poker clubs could purchase chips by depositing funds with Diverse Link. From March 2021 to at least October 2021, Diverse Link received at least $1 million from players wanting to play in one of the Redraw Poker clubs, and from March 2021 to at least April 2021, Diverse Link purchased chips from the PPPoker app, which was allocated to players’ accounts.

B.    THE RELIEF SOUGHT FROM THE COURT

35.    The ACMA seeks the relief set out in the accompanying Originating Application, namely:

(a)    declaratory relief;

(b)    pecuniary penalties; and

(c)    injunctive relief.

C.    THE PRIMARY GROUNDS FOR THE RELIEF SOUGHT

…

37.    The ACMA alleges that from about 15 March 2021 to 19 April 2022, Diverse Link provided a prohibited interactive gambling service with an Australian-customer link in contravention of s 15(2A) of the IGA.

…

(Emphasis and italics in original)

CONSIDERATION

Default by Diverse Link

46    Diverse Link has not filed and served a notice of address for service as is required by r 5.02 of the Rules. Diverse Link has thus failed to do an act required to be done by the Rules. Diverse Link is in default by virtue of this fact (r 5.22(a)).

47    On 29 June 2022, the Court ordered that the respondents (including Diverse Link) file and serve concise statements by 11 August 2022. This was subsequently varied on 15 August 2022 and further varied on 26 August 2022. I am satisfied that Diverse Link had notice of the hearings. Diverse Link has failed to file and serve a concise statement and has thus failed to comply with an order of the Court. Diverse Link is in default by virtue of this fact (see r 5.22(b)).

48    Diverse Link did not attend the case management hearing on 29 June 2022. As I have said earlier, I am satisfied that Diverse Link was aware of that hearing in advance. Diverse Link has failed to attend a hearing in the proceedings. Diverse Link is in default by virtue of this fact (r 5.22(c)).

49    Broadly, Diverse Link has not taken any steps to defend the proceedings with due diligence (or at all). Diverse Link is in default by virtue of this fact (r 5.22(d)).

50    Diverse Link has indicated no intention to defend the proceedings and has provided no explanation in relation to its conduct, including the various defaults outlined above. The solicitors for the ACMA have continued to forward Court documents to Diverse Link at the email address. Since the telephone discussion between Mr Curro and Mr Garey on 24 June 2022, there has been no further contact from Mr Curro despite the Court documents having been forwarded.

The Court has jurisdiction to grant the relief sought

51    Pursuant to the originating application, the relief sought against Diverse Link included declarations, pecuniary penalties, injunctive relief and costs.

52    The ACMA proposes that the claim for pecuniary penalties be determined at a separate hearing at which the ACMA would provide the Court with specific submissions on penalty as well as any supplementary evidence required.

53    As to the relief sought as a result of the interlocutory application, the Court has jurisdiction to grant discretionary relief (s 21 of the Federal Court of Australia Act 1976 (Cth) (the Act)), to grant injunctive relief (ss 15(2A) and 64D of the Interactive Gambling Act 2001 (Cth) (the IGA) and s 121 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth)) and to make an order for costs pursuant to s 43 of the Act.

The ACMA’s entitlement to the relief sought

54    By reason of the defaults outlined, Diverse Link is taken to have admitted the relevant facts alleged in the concise statement (which are set out in the section headed “The Pleaded Case”) and the ACMA’s particulars.

55    Of course, it is clear that those admissions are only relevant for the purpose of the application against Diverse Link and have no relevance or effect with respect to the balance of these proceedings which continue against the other respondents, who have defended the claims. This position was acknowledged by counsel appearing for the ACMA at the hearing of the interlocutory application.

56    I am satisfied, on the face of the concise statement and Particulars, that the ACMA is entitled to the relief outlined in the concise statement and pressed in this application.

57    I am cognisant of the fact that default judgment should not be entered lightly, however, in the circumstances, I am satisfied it is appropriate to enter judgment in default under r 5.23(2)(c).

Declaratory relief

58    There is a broad discretionary power to grant declaratory relief pursuant to s 21 of the Act.

59    The Court’s jurisdiction to make declarations, together with the principles which must be applied with respect to the grant of declaratory relief, are well recognised. The ACMA must have a real interest in raising the question and there must be a proper contradictor. In this case, the ACMA, which is responsible for civil enforcement of the IGA, has a real interest in raising questions associated with the asserted contraventions of the IGA.

60    Diverse Link is a proper contradictor with an interest in opposing the declaratory relief. Having a true interest in opposing the declaratory relief sought does not require that the respondent appear. As Bromwich J observed in Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4) (2016) 120 IPR 133; [2016] FCA 867 at [82], “I interpret the requirement for no more than a joined party having an interest to oppose declaratory relief as encompassing a range of responses from a respondent, from outright opposition, to not turning up despite knowing that a declaration was to be sought”.

61    Diverse Link had a true interest to oppose the declaration, despite having chosen not to do so, and after being served with all relevant material, including the application for default judgment.

62    The question was a real, and not a hypothetical, question for Diverse Link as well as the customers of the Redraw Poker Service.

63    Moreover, I conclude that there is utility in this Court making the declaration sought. This is despite the fact that Diverse Link would, were it not for the intervention of the ACMA, be deregistered. As was observed by Banks-Smith J in Stroe at [59], the “Court has generally accepted that in proceedings brought by a regulator involving contraventions of civil penalty provisions, a declaration is an available remedy to formally record the basis upon which the proceeding has been resolved, even where penalties are to be imposed”.

64    I will order a declaration in the terms sought by the ACMA.

INJUNCTIVE RELIEF

65    The ACMA has sought injunctive relief restraining Diverse Link from providing a prohibited interactive gambling service that has an Australian-customer link for a period of five years. It is submitted as being warranted by the 394 contraventions of s 15(2A) of the IGA committed by Diverse Link between 15 March 2021 and 13 April 2022.

66    The ACMA submitted that, while the Redraw Poker website represents that the Redraw Poker Service has ceased operation and Diverse Link has sought to be deregistered, the injunction guards against the risk that the Redraw Poker Service will resume or reappear.

67    From the information contained in the concise statement of facts, the assertion by the ACMA seems to be that, when regulatory attention was detected, those alleged to have been conducting the alleged prohibited activity simply used different corporate vehicles. As to Diverse Link, it seems that the ACMA has found it necessary on three occasions to prevent the Australian Securities and Investment Commission from deregistering the company.

68    Based on the history outlined above and the status of Diverse Link, there seems to be little prospect that, even if there developed a plan to resume the Redraw Poker Service, those intending to do that would look to doing so through Diverse Link. An injunction against Diverse Link will do little or nothing to guard against Redraw Poker Services resuming or reappearing.

69    In those circumstances, I will not make the order sought by the ACMA.

COSTS

70    I will order that Diverse Link pay the ACMA’s costs of and incidental to this application, to be taxed.

Associate:    

Dated:    23 March 2023

SCHEDULE OF PARTIES