Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited)

In the matter of Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited), the Australian Competition and Consumer Commission (ACCC) pursued legal action against several respondents, including Advanced Medical Institute Pty Limited, its former directors, and subsequent business entities under new ownership but continuing under the same management. The case revolved around allegations of misleading or deceptive conduct and unconscionable conduct under the Australian Consumer Law, with the ACCC seeking injunctive relief and the appointment of independent auditors and reporters to oversee compliance with these orders. The court was tasked with deciding whether the costs incurred by the ACCC should be borne by the insolvent respondents and whether the appointment of an independent auditor was warranted.

The legal issues before the court included whether the unsuccessful defences against the insolvent respondents should attract costs and whether the discretion to appoint an independent auditor and reporter was properly exercised. The court held that the third respondent, Dr. Vaisman, who had control over the businesses in question, should bear the costs of the ACCC's case against the insolvent respondents because his liability was contingent upon the conduct of those respondents. Similarly, the sixth and seventh respondents, who continued the business practices of the insolvent respondents, should also contribute to the costs as they had contested the continuity of the business practices. The court reasoned that the interests of justice required those who benefited from the continuation of the business practices to bear the costs associated with proving the ACCC's case. Furthermore, the court found that the discretion to appoint an independent auditor was not exercised properly but dismissed the application for the appointment of an independent reporter, directing the sixth and seventh respondents to appoint one at their own cost.

The court's orders included dismissing the application to vary certain orders and mandating the appointment of an independent reporter by the sixth and seventh respondents. It also directed that the third, sixth, and seventh respondents pay two-thirds of the ACCC's costs of the application. The court's decision underscored the importance of holding parties accountable for continuing business practices that lead to legal disputes, particularly when those practices result in consumer harm.