Australian Competition and Consumer Commission v Nuera Health Pty Ltd (No 2)

[2007] FCA 1756

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Nuera Health Pty Ltd    (No 2) [2007] FCA 1756

CONTEMPT OF COURT – injunction – harassment of witnesses after findings of contravention of Trade Practices Act 
Held:
Court will protect witnesses from harassment by parties to a proceeding.  

Attorney‑General v Butterworth [1963] 1 QB 696 followed
Australian Competition and Consumer Commission v Nuera Health Pty Ltd (In Liquidation) [2007] FCA 695 cited
R v Wright (No1) [1968] VR 164 cited

AUSTRALIAN COMPETITON AND CONSUMER COMMISSION v NUERA HEALTH PTY LTD (IN LIQUIDATION), NUERA CARE CENTRE PTY LTD (IN LIQUIDATION), ALTERNATIVE CARE FACILITY PTY LTD (DEREGISTERED), NUERA INVESTMENTS PTY LTD, PAUL JOHN RANA, CHRISTOPHER JAMES RANA, MICHEAL LEE RANA  AND NUERA WELLNESS CLINIC PTY LTD (NO 2)

VID 1301 OF 2006

HEEREY J
14 NOVEMBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1301 OF 2006

BETWEEN:

AUSTRALIAN COMPETITON AND CONSUMER COMMISSION
Applicant

AND:

NUERA HEALTH PTY LTD (DEREGISTERED)
ABN 97 113 678 452
First Respondent

NUERA CARE CENTRE PTY LTD
ABN 31 113 682 152
Second Respondent

ALTERNATIVE CARE FACILITY PTY LTD (DEREGISTERED
ABN 94 110 546 962
Third Respondent

NUERA INVESTMENTS PTY LTD (IN LIQUIDATION)
ABN 65 113 662 918
Fourth Respondent

NUERA WELLNESS CENTRE PTY LTD
ACN 121 679 392
Fifth Respondent

PAUL JOHN RANA
Sixth Respondent

CHRISTOPHER JAMES RANA
Seventh Respondent

MICHEAL LEE RANA
Eighth Respondent

NUERA WELLNESS CLINIC PTY LTD
ACN 121 388 912
Ninth Respondent

JUDGE:

DATE OF ORDER:

HEEREY J

14 NOVEMBER 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Each of the Sixth and Seventh Respondents, whether by themselves, or by their servants, agents or otherwise however, be restrained until further order from communicating in any form whatsoever with:

(a)Rosa Mary Bulzomi;

(b)Madeleine Elizabeth Marie Henriette Otterspoor

(c)Mark Thomas McNamara;

(d)Dr Raymond David Snyder;

(e)Olivia Varga;

(f)Belinda Loris Lee O’Sullivan;

(g)Harvey George Feeney;

(h)Wende Elaine Feeney; and

(i)Kirstyn Elise Feeney,

in relation to the subject matter of this proceeding or any other legal proceeding concerning the Sixth and Seventh Respondents.

2.Each of the Sixth and Seventh Respondents, whether by themselves, or by their servants, agents or otherwise however, be restrained until further order from sending any documents in the same form or to the same effect as the documents contained in exhibit DJM-9 to the affidavit of Daniel John Marquet sworn on 9 November 2007 to:

(a)Rosa Mary Bulzomi;

(b)Madeleine Elizabeth Marie Henriette Otterspoor;

(c)Mark Thomas McNamara;

(d)Dr Raymond David Snyder;

(e)Olivia Varga;

(f)Belinda Loris Lee O’Sullivan;

(g)Harvey George Feeney;

(h)Wende Elaine Feeney; and

(i)Kirstyn Elise Feeney.

3.Each of the Sixth and Seventh Respondents, whether by themselves, or by their servants, agents or otherwise however, be restrained until further order from sending any demand for the payment of money to:

(a)Rosa Mary Bulzomi;

(b)Madeleine Elizabeth Marie Henriette Otterspoor

(c)Mark Thomas McNamara;

(d)Dr Raymond David Snyder;

(e)Olivia Varga;

(f)Belinda Loris Lee O’Sullivan;

(g)Harvey George Feeney;

(h)Wende Elaine Feeney; and

(i)Kirstyn Elise Feeney.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1301 OF 2006

BETWEEN:

AUSTRALIAN COMPETITON AND CONSUMER COMMISSION
Applicant

AND:

NUERA HEALTH PTY LTD (DEREGISTERED)
ABN 97 113 678 452
First Respondent

NUERA CARE CENTRE PTY LTD
ABN 31 113 682 152
Second Respondent

ALTERNATIVE CARE FACILITY PTY LTD (DEREGISTERED
ABN  94 110 546 962
Third Respondent

NUERA INVESTMENTS PTY LTD (IN LIQUIDATION)
ABN 65 113 662 918
Fourth Respondent

NUERA WELLNESS CENTRE PTY LTD
ACN 121 679 392
Fifth Respondent

PAUL JOHN RANA
Sixth Respondent

CHRISTOPHER JAMES RANA
Seventh Respondent

MICHEAL LEE RANA
Eighth Respondent

NUERA WELLNESS CLINIC PTY LTD
ACN 121 388 912
Ninth Respondent

JUDGE:	HEEREY J
DATE:	14 NOVEMBER 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 9 May 2007 Ryan J made orders granting injunctions based on findings of contraventions of the Trade Practices Act 1974 (Cth) against the respondents: Australian Competition and Consumer Commission v Nuera Health Pty Ltd (In Liquidation) [2007] FCA 695. The conduct of the respondents was of the most appalling nature. It involved exploiting the families of persons suffering from terminal cancer and defrauding them of substantial amounts of money.

2. Since Ryan J’s order the respondents have persistently harassed the witnesses by sending them strange documents couched in pseudo-legal medieval language, including demands for some $294 million.  Understandably, this has caused great distress to the witnesses and has revived their tragic memories. 

3. The Australian Competition and Consumer Commission now seeks injunctions against those of the respondents who are individuals, that is, Paul John Rana, Christopher James Rana and Michael Lee Rana, to restrain them from communicating in any form whatsoever with the witnesses in relation to the subject matter of the proceeding or any other legal proceeding, from sending them documents of the kind mentioned and from demanding any payment of money from the witnesses. 

4. The jurisdiction to make such an order is undoubted.  The Court will protect witnesses who have given evidence from subsequent victimisation or harassment: see Attorney-General v Butterworth [1963] 1 QB 696. This position has been followed in many jurisdictions including Victoria: see R v Wright(No1) [1968] VR 164.

5. Only the sixth and respondents, Paul and Christopher Rana, have been served so the injunctions sought will be granted against those respondents.  It must be clearly understood – and I direct that a copy of these reasons be served with the order – that any breach of this injunction will be treated as a most serious contempt of this court and will be likely to result in a substantial term of imprisonment. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:        14 November 2007

Counsel for the Applicant:	C M Scerri QC
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	There was no appearance for any respondent
Date of Hearing:	14 November 2007
Date of Judgment:	14 November 2007