Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856 PROCEDURE – orders on default – failure to comply with court order for discovery – applicant appearing entitled to the relief on the statement of claim – Court satisfied it has power to grant the relief – injunctive and other orders appropriate Corporations Act 2001 (Cth) s 601AH Trade Practices Act 1974 (Cth) s 86C Federal Court Rules O 35A, O 35A r 2(2)(d), O 35A r 3(2)(c), O 37 r 3, Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 cited Australian Competition and Consumer Commission v 1Cellnet LLC [2004] FCA 1210 cited Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576 cited AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v 1CELLNET LLC, UNIFIED INTERACTIVE PTY LTD, BRUCE JAMES PALLISTER and SHAUN MELLET WAD 196 of 2004 NICHOLSON J 23 JUNE 2005 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 196 OF 2004

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: 1CELLNET LLC

FIRST RESPONDENT

UNIFIED INTERACTIVE PTY LTD

(ACN 079 956 531)

SECOND RESPONDENT

BRUCE JAMES PALLISTER

THIRD RESPONDENT

SHAUN MELLET

FOURTH RESPONDENT

JUDGE: NICHOLSON J

DATE OF ORDER: 23 JUNE 2005

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. Pursuant to s 80 of the Trade Practices Act 1974 (Cth) ('the Act'), an injunction be granted restraining the first respondent by itself, its servants or agents or otherwise howsoever (excluding therefrom the second, third and fourth respondents), and by any means whatsoever including by utilising the Internet, from: (a) establishing, promoting, taking part in or otherwise participating in; or (b) inducing or attempting to induce any person to establish, promote, take part in or otherwise participate in; the 1Cellnet Scheme described in Schedule A to the application, or any scheme identically structured under whatever name in which: (c) to take part in the scheme, some or all new participants must make a payment (a 'participation payment') to another participant or participants in the scheme; and (d) the participation payments are entirely or substantially induced by the prospect held out to new participants that they will be entitled to a payment in relation to the introduction to the scheme of further new participants. 2. Pursuant to s 86C of the Act, the first respondent, within 14 days of the date of the order, cause to be published and maintained for a period of six months, at its own expense, at any website on the World Wide Web the home page of which is owned, operated or maintained by or on behalf of the first respondent, including, but not limited to, the website(s) on the World Wide Web the home page of which is located at the URL: www.1cellnet.com (or if such URL is replaced or changed, the website on the World Wide Web the home page of which is located at the replacement or changed URL) a notice in terms advising of the Court's orders, with a prominent one click link to the notice on the home page of the website. 3. Pursuant to s 86C of the Act, the first respondent, within 28 days of the date of the order, cause to be published at its own expense, an advertisement, in terms of Schedule 1 hereto advising of the Court's orders, including the remedy granted, in the following newspapers: (a) The West Australian; (b) The Brisbane Courier Mail; (c) The Adelaide Advertiser; (d) The Age; (e) The Australian; (f) The Sydney Morning Herald; (g) The Hobart Mercury; (h) The Canberra Times; and (i) The Territorian, and the first respondent use its best endeavours to ensure that such advertisements are: 3.1 of a size not less than 15 cm wide by 15 cm deep; 3.2 in a text which is a type not less than 10 point; 3.3 within the first 10 pages of each newspaper; and 3.4 in either the Wednesday or Saturday edition of those newspapers. 4. The first respondent pay one quarter of the applicant's costs to date, including all reserved costs and all the costs of this application forthwith, such costs to be taxed unless otherwise agreed to. 5. There be liberty to apply in respect of further orders by way of declaratory relief to be made against the first respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.