Australian Competition & Consumer Commission v Chen [2002] FCA 1248

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Chen [2002] FCA 1248 TRADE PRACTICES – contraventions of Trade Practices Act 1974 (Cth) by overseas resident relating to internet usage concerning Australian live entertainment – prima facie evidence justifying injunctions – service out of Australia – mandatory as well as prohibitive relief sought.

Trade Practices Act 1974 (Cth) ss 5, 6(3), 52, 53(c), 53(d), 55A and 80(6) Federal Court Rules O 8 r 2(2)(a)(b) and (c) Delco Australia Pty Ltd v Equipment Enterprises Incorporated trading as Kukla Trenchers [2000] FCA 821 cited Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 cited AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v RICHARD CHEN N 1039 of 2002 CONTI J 8 OCTOBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1039 OF 2002

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: RICHARD CHEN

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 8 OCTOBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Pursuant to Order 8 rule 2 of the Federal Court Rules, the Applicant be granted leave to serve the originating process in the proceedings, being the Application and Statement of Claim, outside the Commonwealth on terms and conditions that the Applicant employ private agents in the United States of America and/or the United Kingdom to effect personal service on the Respondent. 2. The Respondent by himself, his servants or agents, forthwith take all steps necessary to remove from the World Wide Web and, until further order, not reinstate thereon, the Imitation Site, the Witestar Site, and the WBO Site (as those terms are defined in the Statement of Claim herein) so that those internet web sites cease to be, and until further order remain, inaccessible to persons or computers within Australia (whether or not that requires the entire removal of those sites). 3. Until further order, the Respondent by himself, his servants or agents, be restrained from publishing, operating or maintaining the Imitation Site, the Witestar Site, or the WBO Site (as those terms are defined in the Statement of Claim herein) or any similar internet web site, in circumstances where those sites are accessible by persons or computers within Australia. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.