Tomarchio v Reksmiss [2011] FCA 1208

FEDERAL COURT OF AUSTRALIA

Tomarchio v Reksmiss [2011] FCA 1208 Citation: Tomarchio v Reksmiss [2011] FCA 1208

Parties: SALVATORE TOMARCHIO v STEFAN RICHARD REKSMISS

File number: WAD 403 of 2011

Judge: SIOPIS J

Date of judgment: 14 October 2011

Date of hearing: 14 October 2011

Place: Perth

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 14

Counsel for the Applicant: The Applicant appeared by telephone.

Counsel for the Respondent: Mr PD Yovich

Solicitor for the Respondent: State Solicitor's Office

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 403 of 2011

BETWEEN: SALVATORE TOMARCHIO

Applicant

AND: STEFAN RICHARD REKSMISS

Respondent

JUDGE: SIOPIS J DATE OF ORDER: 14 OCTOBER 2011 WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The applicant's interlocutory application is dismissed. 2. The applicant is to pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 403 of 2011

BETWEEN: SALVATORE TOMARCHIO

Applicant

AND: STEFAN RICHARD REKSMISS

Respondent

JUDGE: SIOPIS J DATE: 14 OCTOBER 2011 PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application for an urgent interlocutory injunction, which is brought by the applicant, Mr Salvatore Tomarchio. 2 The respondent, Mr Stefan Richard Reksmiss, is an officer of the Department of Commerce in the State of Western Australia. In that capacity, Mr Reksmiss has laid a complaint and is bringing a prosecution against Mr Tomarchio in the Magistrates Court of Western Australia. The charge against Mr Tomarchio alleges that between 1 January 2009 and 31 May 2010 at Laverton and elsewhere, Mr Tomarchio carried on the business of providing credit whilst not being the holder of a credit provider's licence contrary to s 6(1) of the Credit Administration Act 1984 (WA). 3 Mr Tomarchio has not, as yet, filed an originating application in this Court, but has undertaken to do so. Mr Tomarchio says that his intended application will claim an injunction under s 80 of the Competition and Consumer Act 2010 (Cth) enjoining Mr Reksmiss from continuing to prosecute him, because, in so doing, Mr Reksmiss has contravened or is threatening to contravene, s 45 of the Competition and Consumer Act. 4 The reason why this matter is urgent is that Mr Tomarchio is due to face trial on the charge in the Magistrates Court of Western Australia commencing on Monday 17 October 2010. In effect, Mr Tomarchio is seeking to prevent the trial from commencing on that day. 5 In his oral submissions, Mr Tomarchio made a number of points. 6 First, Mr Tomarchio said he recently made, what appears to be, although it is not entirely clear on the papers, an interlocutory application before Magistrate Benn for the summary dismissal of the charge. It appears that the basis for Mr Tomarchio's application was that the charge was bound to fail because s 6 of the State legislation, which it is alleged he contravened, is inconsistent with the Competition and Consumer Act and the operation of s 109 of the Constitution would invalidate the State statute. Mr Tomarchio said that Magistrate Benn dismissed Mr Tomarchio's interlocutory application. Mr Tomarchio contends that the Magistrate was wrong to have dismissed his application. 7 Secondly, Mr Tomarchio referred to other matters about his impending trial. He said that he would have difficulty in presenting his case at trial because many of his witnesses were widely dispersed throughout the State. As to the charge, Mr Tomarchio said that he simply received "tips" from people in distress to whom he provided money; and that he would not be found guilty of the offence. He also said, without providing any evidence to that effect, that he believed that Mr Reksmiss had arranged for Magistrate Benn specifically to be the magistrate to preside at his trial. 8 A Court will, in appropriate circumstances, grant an interlocutory injunction to preserve the status quo until the hearing of the substantive claim. One condition that an applicant for such an injunction must satisfy is that there is a sufficient prospect of success in the substantive claim, to justify the interference in the respondent's affairs that will occur by reason of the grant of the interlocutory injunction. 9 In this case, as mentioned, the relief sought in the substantive claim, which has not yet been filed, is for an injunction under s 80 of the Competition and Consumer Act. That section gives this Court power to grant an injunction in circumstances where there has been a contravention of that Act. As mentioned, Mr Tomarchio alleges that, by bringing and persisting with the prosecution, Mr Reksmiss has contravened, or threatens to contravene, s 45(2) of the Consumer and Competition Act. Section 45(2) states: (2) A corporation shall not: (a) make a contract or arrangement, or arrive at an understanding, if: (i) the proposed contract, arrangement or understanding contains an exclusionary provision; or (ii) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or (b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision: (i) is an exclusionary provision; or (ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition. 10 There is no arguable prospect of Mr Tomarchio being able to establish that s 45(2) of the Consumer and Competition Act has any application to the conduct of Mr Reksmiss in prosecuting Mr Tomarchio in the Magistrates Court of Western Australia. For one thing, s 45(2) applies to a corporation and Mr Reksmiss is an individual. Further, Mr Reksmiss's conduct in bringing the prosecution does not comprise conduct which falls within, or even arguably within, the ambit of s 45(2) of the Competition and Consumer Act. 11 Mr Tomarchio also made reference during his oral submissions, to s 75B of the Consumer and Competition Act in relation to Mr Reksmiss's conduct, particularly in relation to his assertion that Mr Reksmiss procured a specific magistrate to preside at the trial of the case against Mr Tomarchio. In general, s 75B applies to visit secondary liability upon a person who has been knowingly concerned in a primary contravention of a provision of that Act. As I have said, Mr Tomarchio has not identified any conduct which would arguably demonstrate a primary contravention of the Competition and Consumer Act. Also, as I have already said, there is absolutely no evidence that Mr Reksmiss procured a specific magistrate to preside at the case against Mr Tomarchio. 12 In those circumstances, therefore, there is no prospect of Mr Tomarchio obtaining the final relief which he intends to claim. In the absence of there being any prospect of obtaining final relief, it follows that there is no serious question to be tried in relation to his claim for urgent interlocutory relief. It follows that Mr Tomarchio has failed to satisfy an essential element to obtain an interlocutory injunction. 13 Further, insofar as Mr Tomarchio complained in relation to the conduct of Magistrate Benn in refusing his application for the summary dismissal of the prosecution and in relation to the difficulties he will face at trial, these are State matters and Mr Tomarchio would, no doubt, be at liberty to pursue these complaints within the State system. However, these are not matters which fall within the jurisdiction of this Court. 14 Accordingly, I dismiss Mr Tomarchio's application for an interlocutory injunction. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.