Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd [2006] FCA 778

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd [2006] FCA 778 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v DYNACAST (INT) PTY LTD (ACN 061 234 642) AND ALAN BRADLEY JORGENSEN No SAD 248 of 2005 MANSFIELD J ADELAIDE 16 JUNE 2006 IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 248 OF 2005

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: DYNACAST (INT) PTY LTD (ACN 061 234 642)

FIRST RESPONDENT

ALAN BRADLEY JORGENSEN

SECOND RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 16 JUNE 2006

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application for transfer of the proceedings to the Brisbane Registry of the Federal Court of Australia be dismissed. 2. There be no order regarding the applications for disqualifications of the docket judge on the grounds of perceived bias. 3. The question of costs of the application for transfer be referred to the judge hearing the complaint proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 248 OF 2005

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: DYNACAST (INT) PTY LTD (ACN 061 234 642)

FIRST RESPONDENT

ALAN BRADLEY JORGENSEN

SECOND RESPONDENT

JUDGE: MANSFIELD J

DATE: 16 JUNE 2006

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 In proceedings No 122 of 2004, the Australian Competition and Consumer Commission ("the ACCC") brought an action against a company then called Phoneflasher.com Pty Ltd, Alan Bradley Jorgensen and Jimeale Marie Jorgensen for conduct in contravention of certain provisions of Part V of the Trade Practices Act 1974 (Cth). 2 Those proceedings culminated in a consent order made on 2 November 2004. There was no trial. The consent order was made pursuant to Order 35, Rule 10 of the Federal Court Rules. The consent in respect of the then respondents were signed by solicitors on the record on their behalf. On 4 October 2005 the present proceeding was instituted seeking declarations and other orders in relation to alleged contempts of Court, relevantly committed by Dynacast (INT) Pty Ltd (formerly Phoneflasher) ("Dynacast") and Mr Jorgensen. 3 Those proceedings, according to the Court file, were served on Dynacast and on Mr Jorgensen in December 2005. Mr Jorgensen has pointed out, they were served on him by email and by leaving them at a certain address specified in the order for service but they were apparently not served upon him personally. According to the affidavit of service he was informed by a telephone call to a mobile telephone number, that the documents had been left at a particular address in Cairns. The proceedings were the subject of subsequent directions given on 26 April 2006. 4 The two respondents I have identified had not by that date filed appearances, although they clearly knew of the proceedings. This was indicated by a letter from Dynacast's solicitors received on that morning, prior to the directions hearing, in which those solicitors indicated a preparedness, indeed undertook, to file an appearance forthwith. Appearances were only filed by the first respondent, Dynacast, on 15 June 2006, and by Mr Jorgensen on 16 June 2006. Mr Jorgensen remains self represented. 5 On 26 April 2006 directions were given for the exchange of material prior to the hearing of the present application, which is listed for hearing on 28 June 2006. The respondents have not complied with those directions. Their responses were to have been filed and served by 2 June 2006. They have not done that. On 1 June 2006, Mr Jorgensen, by letter to the Court, asked that (1) the venue for the hearing on 28 June 2006 be changed to Brisbane, and (2) that the Judge in whose docket the matter is, should disqualify himself from hearing the matter on account of perceived bias. 6 His application ultimately was supported by an affidavit, which was affirmed on 15 June 2006. The application in both respects is opposed by the ACCC. Following the filing of appearances, today's hearing took place by arrangement with the respondents by telephone from the Court to the solicitor's office of the solicitors acting for Dynacast and Mr Jorgensen was present in their office. 7 Section 48 of the Federal Court of Australia Act 1976 (Cth) permits the Court or a Judge at any stage of the proceedings to direct that the proceedings, or a part of the proceeding be conducted, or continued at a place specified in the order. 8 In National Mutual Holdings Pty Ltd v Century Corporation (1988) 19 FCR 155, the Court said that the appropriate test is simply: "… where the case can be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them and the most efficient administration of the Court. It cannot and should not be defined more closely or more precisely."