Director of Consumer Affairs Victoria v Gibson (No 4)

The Director of Consumer Affairs Victoria initiated proceedings against Ms Gibson, seeking declarations and pecuniary penalties for her conduct related to the promotion and publication of a phone application and book called “The Whole Pantry”. The case proceeded through various stages, resulting in declarations of contraventions of the Australian Consumer Law (ACL) and the Australian Consumer Law (Victoria) (ACL (Vic)), as well as an order for pecuniary penalties of $410,000. The Court, however, did not endorse the order with a penal notice, despite the Director's failure to request it. Ms Gibson subsequently applied for the variation of the orders to include an endorsement of a penal notice, arguing that the omission of the notice was an oversight. The primary legal issues before the Court were whether the Court could vary the orders to include an endorsement after the time for compliance had lapsed, and if so, whether it was appropriate to do so under the Federal Court Rules 2011 (Cth). The Court considered the purpose of the endorsement, which is to inform the party subject to the order of the consequences of wilful disobedience. The Court found that the omission of the endorsement was an oversight and that the endorsement was necessary for the proper administration of justice. It concluded that the application for variation could be allowed under the general power of the Court to make orders in the interests of justice, as provided by Rule 1.32 of the Federal Court Rules. The Court granted the application, allowing the variation of the orders to include the endorsement of a penal notice.

The Court's decision underscores the importance of ensuring that orders are properly endorsed with a penal notice where necessary. The Court recognised that the omission of such an endorsement was an oversight and that it was in the interests of justice to correct this. The decision also highlights the Court's discretion to vary orders to ensure that they accurately reflect the intention of the Court and serve their intended purpose. By granting the application for variation, the Court provided a clear and final resolution to the issue, ensuring that the order would properly inform Ms Gibson of the consequences of non-compliance.