Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd (formerly Phoneflasher.com Pty Ltd) ACN 061 234 642 [2007] FCA 429

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd (formerly Phoneflasher.com Pty Ltd) ACN 061 234 642 [2007] FCA 429

CONTEMPT – alleged non-compliance with consent orders – company indifferent to the obligations imposed by the orders

CONTEMPT – penalty – need for party to be made aware of the seriousness of contempt – purposes of penal power in cases on civil contempt

CONTEMPT – director's liability for company's non-compliance – must be shown to have aided or abetted the breach by the company or have acted so as to have subverted the effect of the order to be guilty of contempt – consent orders – consented to by director in the knowledge that neither the company nor the director had the power or capacity to comply with the order – whether liability proved

COMPANY LAW – shadow director – acted as the company's mind and will – exercised the powers of the company in relation to court proceedings with the acquiescence of, and not subject to the supervision of, the company's director Trade Practices Act 1974 (Cth) s 52, s 53(c) Corporations Act 2001 (Cth) s 9 Federal Court Rules O 9 r 1(3), O 4 r 14(2)

Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 cited Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 cited Witham v Holloway (1995) 183 CLR 525 cited Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 cited Secretary of State of Trade and Industry v Deverell [2001] Ch 340 cited Australian Securities Commission v A S Nominees Ltd (1995) 133 ALR 1 cited Ho v Akai Pty Ltd (in liq) (2006) 24 ACLC 1, 526 cited Deputy Commissioner of Taxation v Austin (1998) 28 ACSR 565 cited Australian Competition and Consumer Commission v World Netsafe Pty Ltd (No 3) (2003) 127 FCR 542 cited LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 1213 cited Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 cited Australian Competition and Consumer Commission v Info4PC.com Pty Ltd (2002) 121 FCR 24 cited Smith v The Queen (1991) 25 NSWLR 1 cited Australian Competition and Consumer Commission v Contact Plus Group Pty Ltd (in liq) (No 2) [2006] FCA 695 cited Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1999) 200 CLR 591cited Australian Competition and Consumer Commission v Australian Business Reports Pty Ltd (1997) 19 ATPR 41-577 cited Australian Competition and Consumer Commission v Globex Systems Pty Ltd (2005) 27 ATPR 42-069 cited