Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd

[2006] FCA 778

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd [2006] FCA 778

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v DYNACAST (INT) PTY LTD (ACN 061 234 642) AND ALAN BRADLEY JORGENSEN

No SAD 248 of 2005

MANSFIELD J
ADELAIDE
16 JUNE 2006

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 248 OF 2005

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

DYNACAST (INT) PTY LTD (ACN 061 234 642)
FIRST RESPONDENT

ALAN BRADLEY JORGENSEN
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

16 JUNE 2006

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application for transfer of the proceedings to the Brisbane Registry of the Federal Court of Australia be dismissed. 

2.There be no order regarding the applications for disqualifications of the docket judge on the grounds of perceived bias.

3.The question of costs of the application for transfer be referred to the judge hearing the complaint proceedings. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 248 OF 2005

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

DYNACAST (INT) PTY LTD (ACN 061 234 642)
FIRST RESPONDENT

ALAN BRADLEY JORGENSEN
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	16 JUNE 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. In proceedings No 122 of 2004, the Australian Competition and Consumer Commission (“the ACCC”) brought an action against a company then called Phoneflasher.com Pty Ltd, Alan Bradley Jorgensen and Jimeale Marie Jorgensen for conduct in contravention of certain provisions of Part V of the Trade Practices Act 1974 (Cth).

2. Those proceedings culminated in a consent order made on 2 November 2004.  There was no trial.  The consent order was made pursuant to Order 35, Rule 10 of the Federal Court Rules.  The consent in respect of the then respondents were signed by solicitors on the record on their behalf.  On 4 October 2005 the present proceeding was instituted seeking declarations and other orders in relation to alleged contempts of Court, relevantly committed by Dynacast (INT) Pty Ltd (formerly Phoneflasher) (“Dynacast”) and Mr Jorgensen.

3. Those proceedings, according to the Court file, were served on Dynacast and on Mr Jorgensen in December 2005.  Mr Jorgensen has pointed out, they were served on him by email and by leaving them at a certain address specified in the order for service but they were apparently not served upon him personally.  According to the affidavit of service he was informed by a telephone call to a mobile telephone number, that the documents had been left at a particular address in Cairns.  The proceedings were the subject of subsequent directions given on 26 April 2006. 

4. The two respondents I have identified had not by that date filed appearances, although they clearly knew of the proceedings.  This was indicated by a letter from Dynacast’s solicitors received on that morning, prior to the directions hearing, in which those solicitors indicated a preparedness, indeed undertook, to file an appearance forthwith.  Appearances were only filed by the first respondent, Dynacast, on 15 June 2006, and by Mr Jorgensen on 16 June 2006.  Mr Jorgensen remains self represented. 

5. On 26 April 2006 directions were given for the exchange of material prior to the hearing of the present application, which is listed for hearing on 28 June 2006.  The respondents have not complied with those directions.  Their responses were to have been filed and served by 2 June 2006.  They have not done that.  On 1 June 2006, Mr Jorgensen, by letter to the Court, asked that (1) the venue for the hearing on 28 June 2006 be changed to Brisbane, and (2) that the Judge in whose docket the matter is, should disqualify himself from hearing the matter on account of perceived bias.

6. His application ultimately was supported by an affidavit, which was affirmed on 15 June 2006.  The application in both respects is opposed by the ACCC.  Following the filing of appearances, today's hearing took place by arrangement with the respondents by telephone from the Court to the solicitor's office of the solicitors acting for Dynacast and Mr Jorgensen was present in their office. 

7. Section 48 of the Federal Court of Australia Act 1976 (Cth) permits the Court or a Judge at any stage of the proceedings to direct that the proceedings, or a part of the proceeding be conducted, or continued at a place specified in the order.

8. In National Mutual Holdings Pty Ltd v Century Corporation (1988) 19 FCR 155, the Court said that the appropriate test is simply:

   “… where the case can be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them and the most efficient administration of the Court.  It cannot and should not be defined more closely or more precisely.”

9. It is, nevertheless, necessary for the evidence before the Court on any such application to demonstrate positively that the balance of convenience warrants change of the location.  The matter is presently listed for hearing in Adelaide and Mr Jorgensen, supported by Dynacast, wants the matter to be heard in Brisbane.  There is little evidence to support that application. 

10. Mr Jorgensen's affidavit, of 15 June 2006, asserts that it is costly and difficult to instruct solicitors in Adelaide from Queensland and that he believes that:  “We ought not be put to this ongoing disadvantage and prejudice any longer, especially when the ACCC can easily use their Brisbane to attend Court matters there.”

11. Mr Jorgensen is presently resident in Cairns.  The solicitors acting for Dynacast are, according to the appearance, resident in Cairns.  There is no evidence of any hardship on the part of Dynacast in attending a hearing in Adelaide.  There is no evidence upon which I could be satisfied that instructing solicitors in Adelaide instead of solicitors in Cairns or Brisbane would be significantly different in cost to the detriment of either respondent.  There is also no evidence in the material before me that Mr Jorgensen is in such economically straitened circumstances that he could not fly to Adelaide for the day listed for the hearing or that the costs of him doing so, as distinct from his flying to Brisbane, would produce significant unfairness to him.

12. On the material before the Court, there are three substantive witnesses proposed by the ACCC based in Adelaide and presumably who will be asked to give evidence.  That is not including the two persons whose evidence of proof of service will apparently also be relied upon if necessary.  Counsel for the ACCC has informed me that Mr Blumenthal, one of the witnesses, is presently overseas and the ACCC proposes to seek an order that he give his evidence by video.  That is a matter for the Judge hearing the application at the time as to whether that is allowed.  In those circumstances, I do not think that any sufficient reason is shown for changing the venue of the hearing to Brisbane. 

13. I have also borne in mind the belated nature of the application.  It has been brought only a few weeks before the time listed for the hearing.  As it happens, because of significant other commitments, it would present very great difficulties to the Court for the Judge in whose docket the matter presently is to attend in Brisbane for the hearing on 28 June 2006.  Had the application been made in a more timely fashion, those administrative difficulties may have been able to be overcome. 

14. In light of these circumstances, I propose to refuse the application to change the venue of the hearing.  That is not intended to preclude Mr Jorgensen, if so advised, from making application for him to attend the hearing by telephone or, if he proposes to give evidence and has complied, albeit belatedly, with the directions about the provision of information, to give evidence by video.  At present, in my view, there is simply insufficient basis shown for an order that the venue of the proceedings be changed.

15. The second application is for an order that the present docket Judge disqualify himself from hearing the application on the ground of perceived bias.  That is, in essence, a matter which his Honour will have to address.  The test to be applied is whether a fair-minded observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide.  See Johnson v Johnson (2000) 201 CLR 488.

16. As I have said, that is ultimately a question for the Judge in whose docket the matter is to make that decision.  However, I think it appropriate to make some observations about the matters which Mr Jorgensen has raised.  His concerns relate in part and largely to the way in which the earlier proceedings, culminating in the consent order of 2 November 2004 were made. 

17. Firstly, he complains that an order for substituted service was made so that he was served by email when he was overseas.  The making of an order for substituted service is a discretionary order and although it may have presented him with considerable logistical difficulties, as his affidavit suggests and as his submissions said, that is not a reason itself to say that the order should not have been made or that the making of it could lead a reasonable person to believe that the trial Judge would not approach the hearing and determination of the principal issues impartially and in an unprejudiced way. 

18. Second, Mr Jorgensen complains of a series of procedural directions.  There is a difficulty about that complaint.  As I put to him in the course of his submissions, his complaint about the directions given on 26 July 2004 in that proceeding is that the orders were made by consent.  He says he did not give his consent.  It is unclear how the consent order came to be made but it is, nonetheless, recorded as a consent order.  It set a timetable for the exchange of material and a hearing on 11 October 2004.  Subsequently, a further order was made on 20 September 2004, changing the timetable and altering the hearing date to 2 November 2004.

19. Mr Jorgensen pointed out that shortly before that hearing, he had complained through an email to the associate to the Judge proposing to hear the trial, about the adequacy of the pleadings of the ACCC.  The file reveals that there is such an email, although it does not, in vehement terms, contend that the matter should not proceed.  Rather, it informs that the second respondent was awaiting a response to a request for further and better particulars, and refers to the prospect of the matter resolving.  More importantly, on the directions hearing which took place on 20 September 2004, apparently whilst Mr Jorgensen was still overseas, both he and Phoneflasher were represented by counsel and submissions were made leading to a change in the directions then given.

20. It does not appear that any application was then made for an order for further and better particulars.  Whether one was raised at all does not appear on the face of the record.  Those who were then representing Mr Jorgensen or Phoneflasher would be the persons whose evidence would indicate what, if anything, transpired in that regard.  At present all that is evident is that there was no order refusing a request for further and better particulars, but a change of the timetable was allowed presumably to accommodate the respondents because the change had the effect of extending the time for them to comply and delay the hearing date.

21. I do not think there is anything in that material upon which any reasonable person could apprehend that the Judge might not bring an impartial and unprejudiced mind to the hearing of this matter.  Nor is there anything in that material which could indicate to a fair-minded lay observer that the docket Judge might not entertain the present application impartially and with an unprejudiced mind.  Further, no support is found from the circumstances of the making of the consent order, given by that time Gary Needham and Associates were again solicitors on the record for Phoneflasher and solicitors on the record for Mr Jorgensen and his daughter.  Their consent was endorsed on the order submitted to the Court for the making of that order.

22. I should note that Mr Jorgensen's submission and his affidavit indicate that the conduct of that proceeding caused him considerable difficulty because he was living overseas.  That may well be the case.  It may well be that because of those difficulties or because of work commitments or other commitments he could not attend to the proceedings and the issues as they arose, as assiduously as he could have wished.  I make no comment about that, but interposed between him and the Court was of course the representation to which I have referred. 

23. Once it is recognised that Mr Jorgensen was represented at all material times during the procedural conduct of the matter, it may be that his experience of the way the proceeding was conducted is skewed by failing to take into account the things which were done on his behalf or on behalf of Phoneflasher through solicitors acting for him or them.  However, I have said, in my opinion there is simply nothing in the way that proceeding was conducted which could in any way lead a fair-minded observer to reasonably apprehend that on the present application the Judge, in whose docket the matter is, might not bring an impartial and unprejudiced mind to its resolution.

24. There were two other matters which Mr Jorgensen referred to.  One is the fact that the present proceedings have apparently also been served on him under some form of substituted service, and as such he only came to read them quite recently.  That may be but whether that results in some other application being made by him to the trial Judge at or before the hearing, is a matter for him.  As I have said, the fact of the making of an order for substituted service cannot of itself, or in this matter does not, indicate any foundation for a reasonable apprehension of bias on the part of the Judge who is to hear the matter.

25. Finally, Mr Jorgensen made submissions about the fact that, at least initially, the proposed contempt proceedings were conducted through the previous action rather than through the present action.  Subpoenas were authorised by order of 12 April 2005 in the previous action, apparently leading to some material emerging of relevance to the present proceeding.  At a later point, it was apparently recognised by the ACCC that under order 40, rule 5, it was necessary that there be separate proceedings for contempt.  The present application now before the Court was therefore issued on 4 October 2005. 

26. In my view the fact that, before the issue of these proceedings the Court, upon the application of the ACCC, authorised the issue of subpoenas or gave leave for the issue of subpoenas on 12 April 2005 directed to certain persons associated with the respondents, does not and could not demonstrate that the docket Judge will not bring an impartial and unprejudiced mind to the resolution of the present proceedings.

27. For those reasons I would not make an order that the Judge who is to hear the matter should disqualify himself from the hearing.  As I have said, however, that is ultimately a matter for his Honour; any such application can be renewed before his Honour either at the commencement of the hearing or before it. 

28. Mr Jorgensen, in his forceful submissions today complained that he perceived his rights as a citizen to have been unfairly trodden over in the course of the previous proceedings and in the course of these proceedings.  In my view, whatever his perception, the material that he relies upon does not demonstrate that.  His perception may arise, as I have said, because he has failed to take into account that at material times actions were taken on his behalf by solicitors acting for him and actions were taken on behalf of Phoneflasher, now Dynacast, by solicitors acting for them. 

29. Accordingly, I refuse the application to transfer proceedings, and will make no order regarding the application for disqualification of the docket judge.  I will refer to the Judge hearing the complaint action proceedings the question of costs of today.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             22 June 2006

Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the Respondent:	Mr S Cole
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 June 2006
Date of Judgment:	16 June 2006