Australian Competition and Consumer Commission v 1Cellnet LLC

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856

PROCEDURE – orders on default – failure to comply with court order for discovery – applicant appearing entitled to the relief on the statement of claim – Court satisfied it has power to grant the relief – injunctive and other orders appropriate

Corporations Act 2001 (Cth) s 601AH
Trade Practices Act 1974 (Cth) s 86C

Federal Court Rules O 35A, O 35A r 2(2)(d), O 35A r 3(2)(c), O 37 r 3,

Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 cited
Australian Competition and Consumer Commission v 1Cellnet LLC [2004] FCA 1210 cited
Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576 cited

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v 1CELLNET LLC, UNIFIED INTERACTIVE PTY LTD, BRUCE JAMES PALLISTER and SHAUN MELLET
WAD 196 of 2004

NICHOLSON J
23 JUNE 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 196 OF 2004

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

1CELLNET LLC
FIRST RESPONDENT

UNIFIED INTERACTIVE PTY LTD
(ACN 079 956 531)
SECOND RESPONDENT

BRUCE JAMES PALLISTER
THIRD RESPONDENT

SHAUN MELLET
FOURTH RESPONDENT

JUDGE:

NICHOLSON J

DATE OF ORDER:

23 JUNE 2005

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.Pursuant to s 80 of the Trade Practices Act 1974 (Cth) (‘the Act’), an injunction be granted restraining the first respondent by itself, its servants or agents or otherwise howsoever (excluding therefrom the second, third and fourth respondents), and by any means whatsoever including by utilising the Internet, from:

(a)establishing, promoting, taking part in or otherwise participating in; or

(b)inducing or attempting to induce any person to establish, promote, take part in or otherwise participate in;

the 1Cellnet Scheme described in Schedule A to the application, or any scheme identically structured under whatever name in which:

(c)to take part in the scheme, some or all new participants must make a payment (a ‘participation payment’) to another participant or participants in the scheme; and

(d)the participation payments are entirely or substantially induced by the prospect held out to new participants that they will be entitled to a payment in relation to the introduction to the scheme of further new participants. 

2.Pursuant to s 86C of the Act, the first respondent, within 14 days of the date of the order, cause to be published and maintained for a period of six months, at its own expense, at any website on the World Wide Web the home page of which is owned, operated or maintained by or on behalf of the first respondent, including, but not limited to, the website(s) on the World Wide Web the home page of which is located at the URL: (or if such URL is replaced or changed, the website on the World Wide Web the home page of which is located at the replacement or changed URL) a notice in terms advising of the Court’s orders, with a prominent one click…