Australian Competition & Consumer Association v World Netsafe Pty Ltd [2000] FCA 33

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v World Netsafe Pty Ltd [2000] FCA 33

TRADE PRACTICES - application for interlocutory injunctions and mareva orders for alleged representations made and pyramid selling - whether there is a serious question to be tried and where the balance of convenience lies. Trade Practices Act 1974 (Cth) Cardile v LED Builders Pty Ltd (1999) 162 ALR 294 Foll

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v WORLD NETSAFE PTY LTD AND TERANCE BUTLER NO Q297 OF 1999 COOPER J BRISBANE 27 JANUARY 2000

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q297 OF 1999

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: WORLD NETSAFE PTY LTD

FIRST RESPONDENT

TERANCE BUTLER

SECOND RESPONDENT

JUDGE: COOPER J

DATE OF ORDER: 27 JANUARY 2000

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. Until trial of the action or earlier order, the first respondent and the second respondent, by themselves, their servants or agents or otherwise, are restrained from : (a) attempting, in the promotion and operation of a scheme carried on under the name or style of "World Netsafe" being the scheme as pleaded and particularised in paragraph 7 of the amended statement of claim ("the Scheme"), to induce persons to become members of the Scheme by paying to the first respondent US$1,500 or AUD$2,389 by holding out to those persons the prospect of receiving payments or other benefits of the type particularised in sub-paragraphs 7(i) and 7(j) of the amended statement of claim by the introduction of other persons who become members of the Scheme; (b) representing for the purpose of inducing a person to make a contract to acquire membership of the Scheme or to acquire a card described as a "World Netsafe ATTM Card" or other goods or services upon becoming a member of the Scheme, that after making such a contract to acquire membership or to acquire the said card or other goods or services upon becoming a member, the person in return for assisting the first respondent to supply goods or services to other persons would be paid a commission payable on the event of those other persons acquiring goods or services from the first respondent. 2. Without prejudice to the right of the first respondent to communicate to present members of the Scheme promoted and operated by the first respondent under the style or name of "World Netsafe" on the development of a card called the "World Netsafe ATTM Card", the first and second respondents, until the trial of the action or earlier order, are restrained by themselves, their servants or agents or otherwise from representing that the first respondent presently has available for supply, whether alone or as part of the said Scheme, a card and that in respect of the use of the card : (a) the card is of any assistance in making telephone calls; (b) records of teleminutes (or any similar concept) is kept in relation to the card; (c) any record of any currency is kept in relation to the card; (d) any arrangement has been made with any bank or other financial institution in relation to the card; (e) a deposit can be made to the credit of any card; (f) any arrangement has been made with a third party for the certification of any software associated with the card; (g) the card is of any assistance in making purchases by way of utilising an electronic communication network; (h) the card possesses any debit card facilities; (i) the card is of any assistance in obtaining cash from an automatic teller machine; (j) the card has any association with Visa, Mastercard, Maestro or Cirrus cards or debit platforms, or with any other network utilising electronic communication in relation to banking or commerce; (k) it is possible for a member of the Scheme to earn money from their membership. 3. The costs of the notice of motion seeking injunctive relief filed on 22 December 1999 be reserved. 4. The notice of motion filed 20 December 1999, in so far as it seeks further interlocutory orders pending trial of the action, is dismissed. 5. The applicant pay the respondents' costs of and incidental to the notice of motion filed 20 December 1999. 6. The application be adjourned to 25 February 2000 at 9.30 am before Spender J for further directions. 7. Liberty to apply. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.