Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2)

This case involves a proceeding brought by the Australian Competition and Consumer Commission (ACCC) against Clinica Internationale Pty Ltd, a company accused of contravening several sections of the Australian Consumer Law (ACL). The ACCC sought various forms of relief, including pecuniary penalties, undertakings, declaratory relief, injunctions, a disqualification order, and non-party redress orders to facilitate refunds to clients who suffered loss or damage. The court was tasked with deciding whether the second respondent had effective control over funds held in a discretionary trust, such that they should be made available to effect refunds.

The court considered the legal issues involved in determining the appropriate relief, particularly in light of the High Court's decision in Commonwealth v Director, Fair Work Building Industry Inspectorate. The court noted that the restrictions on making submissions as to penalty in criminal proceedings do not apply to civil penalty proceedings, as civil penalty proceedings do not involve retribution or rehabilitation but are primarily protective in promoting compliance with the law. The court also noted that the ACCC did not seek to have regard to certain conduct of a representative of Clinica in determining the proceeding, and therefore did not consider that conduct in its final determination.

The court found that the second respondent had effective control over the funds held in the discretionary trust and ordered that those funds be made available to effect refunds to clients who suffered loss or damage. The court also ordered that the parties file and serve any short submissions they wish to make on the orders proposed by the Court, including the form of any proposed amendments to those orders, by a specified date.