Australian Competition & Consumer Commission v Destiny Telecom International Inc & Ors [1997] FCA 984

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - whether the respondents have failed to comply with the orders of the Court so as to justify final orders against them - whether the cause of action is established - whether the respondents have breached s 61 of the Trade Practices Act 1974.

TRADE PRACTICES - whether the respondents have been involved in a "trading scheme" in breach of s 61 of the Trade Practices Act.

Trade Practices Act 1974

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v

DESTINY TELECOM INTERNATIONAL INCORPORATED and others

NG 143 of 1997

LEHANE J

SYDNEY

17 September 1997

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 143 of 1997

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: DESTINY TELECOM INTERNATIONAL

INCORPORATED and OTHERS

Respondent

JUDGE(S): LEHANE J

DATE OF ORDER: 17 SEPTEMBER 1997

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The first respondent, whether by itself its servants or agents or howsoever be restrained from promoting, advertising, holding out or participating in the scheme or any similar scheme known as "Destiny Telecom International's Binary Marketing Program" being the scheme described in the document marked "A" and annexed to the application. 2. The first and fourth respondents, whether by themselves, their servants or agents or howsoever otherwise be restrained from: (a) publishing, distributing or disseminating any promotional or advertising material in respect of the scheme or any similar scheme; (b) inducing by any means whatsoever persons to participate in the scheme or any similar scheme; (c) disposing, transferring, disbursing, removing from the jurisdiction or otherwise parting with possession of money or other consideration received from persons for the purpose of participating in the scheme. 3. The first respondent repay any person an amount of money equivalent to that which the person paid to it, its servants or agents by reason of that person having participated in the scheme or any similar scheme. 4. The fourth respondent be restrained from promoting, advertising, holding out or participating in the scheme or any similar scheme. 5. The fourth respondent be restrained from being in any way, directly or indirectly, knowingly concerned in or a party to the first respondent's promotion of or involvement in the scheme or any similar scheme and from being in any way involved in the promotion or, or the involvement in, any similar scheme by any other corporation. 6. The first and fourth respondents pay the commission's costs of the proceedings so far as they relate to those respondents. THE COURT DECLARES THAT: 1. The first respondent engaged in conduct in contravention of s 61 of the Trade Practices Act 1974. 2. The fourth respondent is a person who was knowingly concerned in or a party to a contravention of s 61 of the Trade Practices Act 1974.