Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (in liq) (No 3)

In the case of Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (in liq) (No 3), the Australian Competition and Consumer Commission (ACCC) sought to vary freezing orders against Clinica Internationale Pty Ltd, a company in liquidation. The ACCC brought an interlocutory application challenging the orders, and Swishette Pty Ltd and Letore Pty Ltd, non-party companies, made an application to vary the freezing orders. The Court had to decide whether the non-party companies had the opportunity to be heard, whether they were estopped from making the application, and whether the application was an abuse of process. The Court also had to determine if joinder was required where the proprietary interests of a non-party could be affected by the final orders, and the scope of the power under s 239 of the Australian Consumer Law to make orders affecting non-parties.

The Court found that the non-party companies did not have an opportunity to be heard and that they were not estopped from making the application. The Court also found that the application was not an abuse of process, and that joinder was not required in this case. The Court found that the non-party companies did not have a vested and indefeasible interest, and that the orders proposed by the ACCC were appropriate and in the interests of justice. The Court found that the resolution of Swishette made on 30 June 2015 did not satisfy the Court on the balance of probabilities that the three identified beneficiaries had a vested and indefeasible interest.

The Court dismissed the interlocutory application by Swishette Pty Ltd and Letore Pty Ltd as filed on 26 February 2016. The oral application for joinder made on behalf of Swishette Pty Ltd and Letore Pty Ltd on 22 March 2016 was granted insofar as it relates to Swishette Pty Ltd, but was otherwise dismissed. Swishette Pty Ltd was joined as a party to this proceeding, with effect from 23 March 2016. The ACCC was ordered to pay the costs of the application by Swishette Pty Ltd and Letore Pty Ltd, to be taxed in default of agreement. The Court found that the orders it proposed to make were appropriate and in the interests of justice, when all the circumstances that had arisen in this proceeding were taken into account.