Federal Court of Australia Australian Competition and Consumer Commission v Ultra Tune Australia Pty Ltd (No 2) [2023] FCA 178 File number: NSD 750 of 2017 Judgment of: BROMWICH J Date of judgment: 2 March 2023 Catchwords: PRACTICE AND PROCEDURE – interlocutory application seeking orders to vacate a sentence hearing on four charges of contempt of court for which guilty pleas have been entered – where the basis of the application is an asserted incapacity of a deponent to swear an affidavit in compliance with court orders – Held: asserted basis for incapacity not made out, interlocutory application dismissed with costs Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 12 Date of hearing: 2 March 2023 Counsel for the Applicant: Mr J Clark Solicitor for the Applicant: Webb Henderson Counsel for the Respondent: Mr D Preston Solicitor for the Respondent: Tisher Liner FC Law ORDERS NSD 750 of 2017 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: ULTRA TUNE AUSTRALIA PTY LTD ACN 065 214 708 Respondent order made by: BROMWICH J DATE OF ORDER: 2 March 2023 THE COURT ORDERS THAT: 1. The respondent's interlocutory application dated 23 February 2023 be dismissed. 2. The respondent pay the applicant's costs of and incidental to the interlocutory application dated 23 February 2023, including costs of the applicant thrown away by reason of the vacation of the sentence hearing date on 9 March 2023. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from transcript) BROMWICH J: 1 This is an interlocutory application to vacate a sentence hearing on four charges of contempt of court for which guilty pleas have been entered. The basis for the application is asserted incapacity of the director and executive chairman of the respondent, Mr Sean Buckley, to swear an affidavit in compliance with a varied timetable ordered on 21 December 2022, a prior sentence hearing date having already been vacated last year. The fate of that application should be determined separately from a consideration of what should take place due to the timetable not having been complied with and the matter not presently being completely ready in the manner contemplated by the 21 December 2022 orders. 2 The respondent, as the applicant on the interlocutory application, relied upon three affidavits from Mr Buckley's long-term general practitioner, Dr Peter Lewis, deposing to Mr Buckley's incapacity by reference to observations made in late 2022, a conversation with Mr Buckley about a short medical certificate provided in late 2022 by another general practitioner, and the results of a short cognitive test that Dr Lewis conducted on several occasions on Mr Buckley, known as the Digital Symbol Short Term Memory Test (DSSTMT). The respondent also relies upon two affidavits from a solicitor, Mr Robert Oxley, as to not obtaining an affidavit from Mr Buckley as a consequence of that asserted incapacity. 3 The applicant and respondent to the interlocutory application, the Australian Competition and Consumer Commission (ACCC), opposes the adjournment upon the basis that the asserted incapacity has not been established. The ACCC relies upon two affidavits, the first of a clinical neuropsychologist, Dr Robert Bourke, deposing to the lack of efficacy and reliability of the DSSTMT, both inherently and the way it was apparently conducted, and the second, an affidavit of an officer of the ACCC, Ms Jasmine Tan, as to the observations she made of Mr Buckley on Monday of this week, 27 February 2023, at a committal hearing at the Melbourne Magistrates' Court. 4 Having considered all of that evidence and the competing submissions made, I am not satisfied that the respondent has established the asserted incapacity of Mr Buckley. In reaching that conclusion, I accept and prefer the evidence of Dr Bourke to that of Dr Lewis as to lack of efficacy and lack of reliability of the DSSTMT, both inherently and in the way it was administered. I am not satisfied that the observations made by Dr Lewis in late 2022 come close to establishing any current, recent or relevant incapacity in relation to the timetable and affidavit evidence deadline contained in the 21 December 2022 orders. 5 I have had regard to the more recent observations by Ms Tan, and while they do not of themselves establish incapacity, they do assist in casting real doubt on there being any current incapacity, and in that way contribute to my lack of satisfaction arising from Dr Lewis' evidence as to the observations he made. I therefore dismiss the interlocutory application with costs, including any consequential costs thrown away. 6 I now turn to the question of what should happen with the sentence hearing in a week's time, on 9 March 2023. I am concerned that maintaining the current hearing date next week may work a real injustice by impeding the respondent from being able properly to present its case in mitigation. I am also concerned about the real possibility of Mr Buckley having difficulty with processing speed, rather than memory or concentration, by reason of the major surgery he had in late 2022 and the aftereffects of a COVID infection earlier this year. 7 I am concerned that I would be straying into what would be known in the area of administrative law as legal unreasonableness, or something akin to that, as explained by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. While this is not an administrative decision, Li is a practical guide on the question of an adjournment in circumstances such as this. As I have already indicated, the issue is not one of incapacity, that not having been established, but shortage of time due to the timetable not being complied with. The ACCC offers an alternative date of 20 March 2023. That is the date upon which the ACCC's senior counsel is available, but senior counsel for the respondent is not available. 8 I would not treat the lack of availability of senior counsel for the respondent as being determinative, in light of the conclusions I have reached about his lack of capacity and non-compliance with the court-ordered timetable. However, a delay of seven working days does not, in my view, adequately address the problem already identified in maintaining the hearing next week. I would add an extra observation, in that regard, that it is not just a question of Mr Buckley being in a position to depose to an affidavit by either next week or by that date, but also an unknown aspect as to his capacity for any cross-examination that may need to take place. In these circumstances, it may not be in the best interests of the ACCC either to force the sentence hearing on 20 March 2023. 9 The next available date to the senior counsel on both sides is 29 May 2023. Once again, I would not regard that as being determinative, although not something to be taken lightly given the costs that have likely already been expended. While that date is really far too much of a delay and too far away, the practical reality is that my availability between 20 March 2023 and 26 May 2023 is very limited, in any event. I am not available at all in April due to fixed and immovable commitments, and the period in May up to 26 May is the Full Court and appeal period. Subject to anything further the parties advance, I will vacate the sentence hearing date of next Thursday, 9 March 2023, and relist that sentence hearing at 10.15 am on 29 May 2023. 10 I note that after the delivery of the above, the parties instead agreed upon a sentence hearing date of 31 May 2023. Conclusion 11 The interlocutory application to vacate the sentence hearing date of 9 March 2023 is dismissed with costs upon the basis of the failure of the respondent to establish that Mr Sean Buckley failed to swear an affidavit in compliance with a varied timetable ordered on 21 December 2022 by reason of incapacity to do so. 12 The sentence hearing must nonetheless be vacated, in the interests of justice, by reason of unjustified non-compliance with the timetable by the respondent and the matter therefore not being ready to proceed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate: Dated: 6 March 2023