Australian Competition and Consumer Commission v EDirect Pty. Ltd. (in liq) [2012] FCA 976

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v EDirect Pty. Ltd. (in liq) [2012] FCA 976 Citation: Australian Competition and Consumer Commission v EDirect Pty. Ltd. (in liq) [2012] FCA 976

Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v EDIRECT PTY. LTD. ACN 1008 532 083 (IN LIQUIDATION)

File number: NTD 3 of 2011

Judge: REEVES J

Date of judgment: 6 September 2012

Corrigendum: 14 February 2013

Catchwords: PRACTICE AND PROCEDURE – judgments and orders – default judgment – operation of O 35A r 3(2)(c) Federal Court Rules (now Rule 5.23(2)(c) Federal Court Rules 2011) in relation to declaratory orders – default by respondent – consideration of whether declaratory orders may be made on deemed admissions – Court not bound by decision in BMI – considerations in exercising discretion to make declaratory orders under s 21 Federal Court of Australia Act 1976 (Cth) – form of declaratory order – orders must clearly state the basis upon which they are made PRACTICE AND PROCEDURE – judgments and orders – declarations – consideration of discretionary power to make declarations under s 21 Federal Court of Australia Act 1976 (Cth) – issue addressed by declaration must not be hypothetical – consideration of whether sufficient consequences flow from the making of declaratory orders –public interest in declarations in consumer protection litigation – declarations should clearly describe the conduct underlying the imposition of a pecuniary penalty PRACTICE AND PROCEDURE – judgment and orders – proper contradictor – consideration of decision of Full Court in MSY Technology – a party with an interest in opposing proceedings is a proper contradictor – a decision by a proper contradictor not to contest proceedings does not alter their status as a proper contradictor PRACTICE AND PROCEDURE – default judgment under O 35A r 3(2)(c) Federal Court Rules – principle that Court may not receive evidence in support of application for default judgment is based upon a practice of dubious origins, not a rule of law – evidence must not alter the case pleaded – Court empowered to make default judgments in the absence of evidence – matters not taken into account because not pleaded or not pleaded with sufficient particularity TRADE PRACTICES – penalty – pecuniary penalty for contraventions – consideration of whether it is appropriate to impose a penalty on a company in liquidation – consideration of principles of general deterrence for companies or traders in a discrete industry TRADE PRACTICES – penalty – application of pecuniary penalty under s 76E Trade Practices Act 1974 (Cth) – factors prescribed by s 76E(2) Trade Practices Act 1976 (Cth) are not exhaustive – consideration of factors relevant to fixing pecuniary penalty – penalties fixed should involve an element of general deterrence such that contraventions amount to "commercial suicide" – guidance on imposition of pecuniary penalty derived from recent, comparable cases – consideration of context, seriousness and frequency of contraventions – concurrent contraventions taken into account – relevance of prior conduct by respondent