Wood v Dancertext

[2007] FMCA 1410

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WOOD v DANCERTEXT & ANOR [2007] FMCA 1410

TRADE PRACTICES – Consumer protection – where respondent made representations to mobile telephone users that they had a ‘secret admirer’ – where applicant responded to messages – whether first respondent was correct legal entity – whether second respondent was knowingly concerned – whether conduct in breach of s.52 Trade Practices Act 1974 – whether conduct induced error in the applicant – whether conduct unconscionable and in breach of s.51AB Trade Practices Act 1974 – whether injunctive relief appropriate.

Trade Practices Act 1974, ss.51AB, 52, 75B
Federal Magistrates Court Rules 2001

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Keehn v Medical Benefits Fund of Australia Limited [1977] 14 ALR 77
Hurley v McDonalds Australia Ltd (2000) ATPR 41-471
Australian Consumer & Competition Tribunal v Keshow [2005] FCA 558 Australian Competition and Consumer Commission v Lux Pty Ltd [2004] FCA 926
Australian Competition and Consumer Commission v Keshow [2005] FCA 558
Australian Competition and Consumer Commission v Nuera Health Pty Ltd (in liq) [2007] FCA 695
Australian Consumer & Competition Commission v Z-tek Computer Pty Ltd [1997] 871 FCA
Australian Competition & Consumer Commission v Wizard Mortgage Corporation Limited [2002] FCA 1317.

Applicant: HOPE UMIT WOOD

First Respondent: DANCERTEXT PTY LIMITED

Second Respondent: SIMON OWEN

File Number: SYG 991 of 2007

Judgment of: Raphael FM

Hearing date: 13 August 2007

Date of Last Submission: 13 August 2007

Delivered at: Sydney

Delivered on: 21 August 2007

REPRESENTATION

Solicitors for the Applicant: Youth & Enterprise Legal Centre

For the First Respondent: No appearance

For the Second Respondent: No appearance

ORDERS

1. The first and second respondents pay the applicant the sum of $4,394.20 plus interest of $395.00 pursuant to s.82 of the Trade Practices Act 1974 (the “Act”) for breach of ss.51AB, 52 and 75B of the Act.

2. The first respondent be permanently restrained from offering an SMS messaging service purporting to come from 'a secret admirer' or other person unknown or unnamed (“the person”) to the recipient of the service without making and  keeping a permanent record of the following particulars of the person:

   Name
   Address
   Mobile telephone number

   Such particulars to have been verified by the production of a passport, driver's licence or other identifying document, and the following particulars of the intended recipient of the messaging service:

   Name
   Mobile telephone number

   together with a signed statement by the person identifying the circumstances in which the recipient came to the person’s attention.

3. The second respondent be permanently restrained from acting as a director, officer, employee of or consultant to any trading entity that offers an SMS messaging service purporting to come from 'a secret admirer' or other person unknown or unnamed (“the person”) to the recipient of the service unless the service has in place or puts in place  within 2 days of his becoming associated with it and thereafter maintains procedures for making and  keeping a permanent record of the following particulars of the person:

   Name
   Address
   Mobile telephone number

   Such particulars to have been verified by the production of a passport, driver's licence or other identifying document; and the following particulars of the intended recipient of the messaging service:

   Name
   Mobile telephone number

   and a signed statement by the person identifying the circumstances in which the recipient came to the person’s attention.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG991 of 2007

HOPE UMIT WOOD

Applicant

And

DANCERTEXT PTY LIMITED

First Respondent

SIMON OWEN

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a proceeding brought by the applicant seeking injunctive relief under s.80(1) of the Trade Practices Act 1974 (the “Act”) and damages under s.82 of the Act against the first and second respondents, who respectively ran and were involved in the running of a call centre style operation which made representations to mobile telephone owners including the applicant through an SMS message that the recipient of the message had a secret admirer who wanted to get in contact with them. The applicant received one such message and made certain enquiries. Those enquiries convinced her to enter into an SMS messaging communication with the first respondent and continued over a period of approximately six months and which cost her approximately $4,000.00. It is the applicant’s case that there was no secret admirer, that the conduct of the first respondent was misleading and/or deceptive and/or unconscionable in breach of s.52 and s.51AB of the Act.

2. The respondents, who until the week before the hearing had been represented by solicitors, filed a response effectively denying responsibility for the actions complained of suggesting that it was not the first respondent company which was responsible for the activity. The second respondent states that the allegations made in the statement of claim are untrue and denies that he was involved in any contraventions of the Act as pleaded by the applicant whether by virtue of s.75B of the Act or otherwise.

3. In the absence of the respondents the court determined to hear the matter ex parte pursuant to Part 13 r.13.03A(e) of the Federal Magistrates Court Rules 2001.

   “Default of appearance of a party

   If a party to a proceeding is absent from a hearing (including a first court date), the Court may do one or more of the following:

   …

   (e)     proceed with the hearing generally or in relation to any claim for relief in the proceeding.”

Narrative

1. Ms Wood is a young woman whose marriage of approximately ten years had broken down by February 2006.  At that time her feelings as described in her affidavit of 5 July 2007 were of being “depressed and feeling down”.  In late February 2006 she received an SMS message upon her mobile phone in the following terms:

   “Free MSG you have a secret admirer! Reply CHAT to this message to be connected.  For help 1300 659 707. Average message cost 2.70 MSG pair.”

   The applicant telephoned the number and had a conversation with a female person.  The content of that conversation as deposed to by the applicant in her affidavit is as follows:

   She said:   “Thank you for calling IMP Mobile”

   I said:     I got a text message from someone who is my secret admirer.  Who is it?”

   She said:“We run a website, where people who have a crush on you put in your number and anonymously be connected to you through our service.  The person who sent the message would know you and want to get into contact with you.  Everything you want to know, that website will tell you.”

   I said:          “Are you sure it is not a scam” 

   She said:“No we don’t make any money off this, I can see the person, I know who they are and I can assure you they are genuine”

   I said:“Bur everyone I know would have my number and call me directly”

   She said“It was someone you met recently and wants to know if you feel the same way”

   I said:“Thank you, I will see who it is”

2. The applicant relied upon this conversation and in her depressed state replied “CHAT” to a mobile telephone number 19773366 to see who this secret admirer was.  The applicant attempted to obtain details from the respondent to her messages as to who he was, but receiving no information ceased the messaging.  The applicant’s affidavit proceeds:

   12Some time later I received another message seemingly coming from 19735555 saying “Free MSG you have a secret admirer! Reply CHAT to this message to be connected.  For help 1300 883 902.  Average message cost 2.70 MSG pair.

   13 I again called the number 1300 885 902 and spoke to a lady named Lisa.  We had a conversation to the effect of:

   She said:Thank you for calling IMP mobile

   I said:I keep getting these text message from someone who is my secret admirer.  Who is it?

   She said:I cant tell you who it is, it is against our terms and conditions

   I said:This is driving my crazy it has been going along to long

   She said:It is legitimate, I can see the persons name and phone number who is trying to contact you and they know who you are

   I said:Well what state are they calling from

   She said:Victoria

   I said:Ok I will try and see if they want to talk to me”

   14As a result of the reassurance of this conversation, I wanted to find out who my secret admirer was, so I replied “who is it”.

   15A message came back saying “Free Message, connection unsuccessful reply only yes to be connected”

   16I then replied “Yes”.

3. The messages that then passed between the applicant and the “secret admirer” between March 2006 and 22 September 2006 are annexed to Ms Wood’s affidavit.  It is clear from reading these messages that by 30 April 2006 the “secret admirer” would have known that Ms Wood was a vulnerable person:

   “now its u, babe my life is so complicated I don’t need another, at times I want 2 escape disappear, Would 1 care if I did that?

   2 many responsibilitys commitments.  I haven’t been happy for so long, how did I get my self into this?  I feel im trapped.  Why don’t any 1 leave me alone?  And

   U love me don’t u?”

4. The applicant deposes that she had on at least five different occasions called the 1300 number during the period that the messaging was taking place and was assured on many occasions that “this was not a scam” and “the person is known to you and is really genuine”.  By the end of September the applicant’s suspicions were sufficiently aroused for her to conduct an internet search of the number 19735555 and she found a forum posting on the internet which gave her cause for concern.  She then took legal advice which resulted in these proceedings.  The applicant was charged through her Telstra bills for each incoming and outgoing call.  Over the period that the messaging took place the total cost of the calls to her was $4,804.20.

Discussion

1. I am grateful to the applicant’s legal representative for providing me with an outline of case and authorities.  The outline of case goes through, under a series of headings, all the matters which I believe necessary to establish the applicant’s claim and her right to the relief which she seeks.  I shall deal with my consideration of the claim in the same manner and under the same headings.

Standing

1. I am satisfied on the basis of the findings which I shall make hereafter that the applicant has standing to seek damages under s.82 of the Act as she has suffered damages by paying for premium SMS messages that she was induced to send by the conduct and representations of the first respondent with which the second respondent was knowingly concerned. I am also satisfied on the basis of the same findings that the applicant has standing to seek injunctive orders under s.80(1) of the Act which permits applications for injunctions from the ACCC and “any other persons”.

Evidence of First Respondent as Correct Legal Entity

1. The first respondent denies the allegations made in the Statement of Claim.  In the course of correspondence with the applicant’s solicitors the first respondent provided the applicant with a copy of a letter from the Australian Communications and Media Authority which had made adverse findings under the SPAM Act 2003 (Cth) against a company known as International Machinery Parts. That letter stated relevantly:

   “On 17 July 2006, the Australian Communications and Media Authority (ACMA) wrote to International Machinery Parts Pty Ltd (IMP Mobile) to inform you that an investigation had commenced into allegations that IMP Mobile had contravened the Spam Act 2003 (the Act) by failing to obtain consent to send commercial electronic messages and not incorporating a functional unsubscribe facility into commercial electronic messages sent.  This notice was issued in accordance with section 512 of the Telecommunications Act 1977 and is attached.

   At that time, ACMA provided you with an opportunity to make a further submission about the issues under investigation, or alternatively to inform ACMA whether you wished to rely upon representations made by Mr Tarek Salcedo via email on 5 June 2006 and 16 June 2006 in response to ACMA’s earlier letter of 19 May 2006.  The letter dated 19 May 2006 detailed three of the four alleged conversations (8580, 8592 and 8602).

   An additional complaint was received by the ACMA on 12 May 2006 relating to the mobile telephone number 0402 766 834 stating that a message “Free MSG You have a secret admirer! Reply CHAT to this message 2 be connected directly! 4help 1300659707. Average msg cost $2.70” was received on 5 May 2006. On the basis of the information provided by the complainant, this message did not contain a functional unsubscribe facility, as required by section 18 of the Spam Act.

   As at 13 April 2007, no further written submissions have been received from IMP Mobile.

   Therefore, having considered all the relevant information, and as an authorised person, I have formed a preliminary adverse finding that there are reasonable grounds for believing the company has contravened the Spam Act. Details of ACMA’s preliminary adverse findings are set out in Attachment A.

   …

   Facts – Complaints

   5.   Between 22 January 2006 and 17 May 2006, ACMA received 51 separate written complaints via the ACMA website that persons had received unsolicited commercial electronic messages (‘the messages’) offering a chat service operated on one of three mobile premium numbers, 19735555, 1973366 and 19996111.  The complainants all advised that the unsolicited messages were sent via Short Message Service (SMS) to their mobile telephones.

   6.   Preliminary enquiries to the holders of the premium rate numbers 19735555, 19773366 and 19996111 indicated that IMP Mobile was the party responsible for these services.  This fact has not been disputed by IMP Mobile.”

2. The inference to be drawn from the provision of this letter is that it was not the first respondent who was providing the secret admirer service but International Machinery Parts Pty Ltd, a company which has now gone into liquidation.  The applicant’s solicitors filed an affidavit in court indicating that he had written to the liquidator of that company seeking information but the liquidator had responded to the effect that he had no information as the directors of the company had failed to complete a statement of affairs.  There was tendered to the court by the applicant’s solicitor business name searches and trademark searches which indicated that there was no registered business name “IMP Mobile” or no trademark in that name.  The letter from ACMA made reference to telephone numbers which were being used for the secret admirer service.  Those telephone numbers included 19735555 and 19773366 which were the two numbers referred to by the applicant in her affidavit. 

3. It is noteworthy that International Machinery Parts Pty Ltd did not make the assertion that it was the company that ran the service. That was made by ACMA.  The way in which these services work is somewhat complex.  There is a company formed in the United Kingdom called MBlox Limited.  MBlox provides a billed premium SMS service for Australian mobile networks.  It charges a fee to set up a system whereby communications can be made between the MBlox party and subscribers to the mobile phone services run by Vodafone, Telstra, Optus and in future other mobile phone companies.  A monthly service charge is paid as are some statutory fees.  When the arrangement is in existence any SMS issuing out of one of the numbers listed in the MBlox agreement or messages received by that number are charged at a premium rate to the normal carrier charge.  The individual mobile phone owner is charged at these premium rates for both incoming and outgoing messages.  The calls are shown on the mobile phone user’s phone bill as MBlox and MBlox is shown as a provider.  The premium rate for incoming messages to the subscriber’s telephone is approximately $1.11 and the rate for messages sent by the subscriber is $5.00.  By arrangement between the company contracting with MBlox and the carrier the charges paid by the subscriber are divided up.  It would appear that the contractor with MBlox ends up with anything between $3.29 and $1.91 of any $5.00 message and between 49¢ and 41¢ of a $1.10 message.

4. The applicant tendered as part of Exhibit 1 copy contracts between a company described as Dancertext Australia and MBlox which gave the company number of the first respondent and the telephone numbers 19735555 and 19736666.  The number 19735555 was the main number used in communications between the applicant and the “secret admirer” I am not able to be sure that the number 19736666 mentioned in the service addendum to the agreement that I have referred to is a misprinting of the number 19733366 that was used by the applicant or the number referred to as 19733366 in the ACMA letter.  I am satisfied that the applicant was billed using the MBlox arrangements that I have discussed and I am therefore satisfied that the company responsible for those arrangements was not International Machinery Parts Pty Ltd but the first respondent Dancertext Pty Limited.  The evidence provided by the applicant is corroborated by certain correspondence between the applicant’s solicitor acting on behalf of another party relating to revenue from the use of the number 19735555 which was responded to by the then solicitors for the first respondent confirming that they acted for the first respondent.  The letter from the applicant’s solicitors did not identify the first respondent as the person to whom the letter of complaint was being sent, it was only the letter from the first respondent’s solicitors that indicated that that company accepted that it controlled the relevant telephone number.

Evidence of Second Respondent Being Knowingly Concerned

1. The second respondent has denied being knowingly concerned with the conduct as pleaded.  However, the second respondent signed the agreement with MBlox Limited to which I have referred and is shown in part of Exhibit 1 as being a director and company secretary of the first respondent in a filing with the ASIC.  Incidentally, Mr Owen is also shown as a director of International Machinery Parts Pty Ltd.  I am satisfied that as Mr Owen was instrumental in the setting up of the arrangements between MBlox Limited and Dancertext Pty Ltd and was a director and secretary of Dancertext Pty Ltd he was a person knowingly concerned with its actions.  Whilst “knowingly concerned” naturally implies a requirement of knowledge on the part of the individual to be brought within the scope of the sub-section, the court is entitled to imply, from the evidence produced of a clear method of doing business by sending “secret admirer” messages, that the messages sent to the applicant in this case were not a one off aberration by a delinquent employee but were part of a scheme of trading countenanced and supported by the second respondent.

In Trade or Commerce

1. In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 604 their Honours Mason CJ, Deane, Dawson and Gaudron JJ said:

   “What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.  Such conduct includes, of course, promotional activities in relation to, or for the purpose of, the supply of goods or services to actual or potential consumers, be they identify persons or merely an unidentifiable section of the public.”

2. Brennan J would have widened the definition of the majority:

   “The question whether conduct is engaged in “in trade or commerce” cannot be answered by reference to the conduct divorced from the circumstances in which it is engaged in; it can be answered only by reference to the surrounding circumstances … Therefore, in my opinion, if misleading or deceptive conduct occurs in the course of carrying on an activity or carrying out a transaction of the trading or commercial character the test imported by the phrase “in trade or commerce” is satisfied.”

1. It is clear in this case that the applicant was a consumer of services provided by the first respondent.  She paid for those services.  This was a commercial activity carried out by the first respondent.  I am satisfied that the conduct meets the definition.

Evidence of Misleading and Deceptive Conduct

1. The conduct that is complained of by the applicant and which must be looked at for the purposes of deciding whether it is misleading or deceptive is the statement made by an employee of the first respondent deposed to in the applicant’s affidavit that

   ·She has a secret admirer;

   ·We (the first respondent) don’t make any money off this;

   ·I can see the person, I know who they are and I can assure you they are genuine;

   ·It was someone you met recently and wants to know if you feel the same way;

   ·It is legitimate, I can see the person’s name and phone number who is trying to contact you and they know who you are;

   ·[In response to the question] “What state are they calling from” Victoria.

   The applicant served a notice to produce on the respondent requesting it to provide full details of the secret admirer.  No response was received to that notice.  To the extent that it was alleged that the notice was addressed to a respondent who was not responsible for the messaging I reject that as an excuse because of my finding that the first respondent was the responsible entity.  I am also satisfied that it is inherently improbable that a person who has expressed a wish to meet another person and who conducts the type of messaging conversation evidenced by the transcripts of this applicant’s messages over a period of six months would not reveal himself to the applicant.  Whilst it is quite conceivable that such a person would not wish to be identified originally there is little point in the exercise unless identification, meeting and an attempt at a relationship is the result of the conduct.  Given the evidence of the complaints about the activities claimed to be carried out by International Machinery Parts Pty Ltd but which I have found were carried out by the first respondent in addition to the other matters mentioned in this paragraph I am satisfied there was no secret admirer.  I am satisfied that to tell a person that she has a secret admirer for the purposes of inducing her to enter into a commercial relationship when there is no such secret admirer induced error in this applicant: Keehn v Medical Benefits Fund of Australia Limited [1977] 14 ALR 77. The applicant was clearly deceived by the first respondent’s conduct. The applicant also states that a proper reading of the transcript of the messages indicates that the messenger continually falsely represented that he wished to be in a relationship with her and that in other messages he confirmed that he was not writing to her as part of his job. I am satisfied that the applicant entered into the messaging relationship relying on a series of clear misrepresentations and continued that relationship as a result of further individual misrepresentations such as the ones referred to above and the general misrepresentation that the feelings of the messenger were genuine.

Evidence of Unconscionable Conduct

1. It is not strictly necessary for the applicant in this case to establish unconscionable conduct. She wishes to do so and to have the court find that the respondents have breached s.51AB of the Act. She refers me to the views of the Full Court per Heerey, Drummond, and Emmett JJ in Hurley v McDonalds Australia Ltd (2000) ATPR 41-741 at [22]:

   “For conduct to be regarded as unconscionable, serious misconduct or something clearly unfair or unreasonable, must be demonstrated  - Cameron v Qantas Airways Limited [1995] ATPR 41-417 at 40,633; [1994] 55 FCR 147 at 179. Whatever “unconscionable” means in sections 51AB and s 51AC, the term carries the meaning given by the Shorter Oxford Dictionary, namely, actions showing no regard for conscience, or that are irreconcilable with what is right or reasonable – Qantas Airways Limited v Cameron [1996] ATPR 41-417 at 42,068; (1996) 66 FCR 246 at 262… The various synonyms used in relation to the term “unconscionable” import a pejorative moral judgment Qantas Airways Limited  v Cameron (1996) ATPR 41-487 at 42,085 and 42,096; (1996) 66 FCR 246 at 283-4 and 298.”

2. As Mansfield J noted in Australian Consumer & Competition Tribunal v Keshow [2005] FCA 558 at [91], s.51AB has only recently been the subject of judicial consideration. Instances in which s.51AB has been successfully invoked include Australian Competition and Consumer Commission v Lux Pty Ltd [2004] FCA 926, where the company Lux was found to have behaved unconscionably when an agent made a house visit and sold a vacuum cleaner to a person whom he was aware was “illiterate and unable to understand commercial matters in any depth” (at [112] per RD Nicholson J), and Australian Competition and Consumer Commission v Keshow [2005] FCA 558 where the respondent purported to sell educational material to residents of indigenous communities on Centrelink benefits by obtaining their bank details and periodically debiting their accounts. In that case Mansfield J found that the complainants were “each, to differing degrees, vulnerable by reason of their personal circumstances to succumb to the unsolicited proposal of someone such as the respondent to sign an open-ended periodical payment form” (at [108]). The respondents in Australian Competition and Consumer Commission v Nuera Health Pty Ltd (in liq) [2007] FCA 695 were also found to have breached s.51AB by selling “treatments” to cancer victims. Ryan J found that the respondents had “indiscriminately thrown together … a package of discredited or entirely unproven theories” (at [7]) with the knowledge that each of their representations was unsupported by generally accepted science, and were “aware of the falsity of the representations” (at [9]).

3. The actions of the first respondent in this case were not just misleading and deceptive, they were dishonest and untrue. Whilst I am not prepared to go so far as the applicant wishes in making findings that the first respondent deliberately baited a trap for vulnerable and lonely people I would find from reading the transcripts as a whole that from fairly early on the first respondent was aware that this applicant was such a person and yet it continued with the deception. That action carries with it a pejorative moral judgment. The activities are made worse by the fact that the applicant was charged for every insincere message sent to her and for each of her pathetic (as that word is properly defined) responses. I find a breach of s.51AB has occurred.

Evidence of Damage Being Suffered

1. The applicant has tendered her telephone accounts which total $4,804.20.  There are 82 calls to the number 19773366. The evidence does not allow me to make any finding that that number was controlled by the first respondent.  It does not feature in the MBlox agreement and no admissions have been made.  Each of those calls is charged to $5.00 and I must therefore deduct $410.00 from the amount claimed.

2. I would make an award of damages in favour of the applicant in the sum of $4,394.20.  I would award the applicant interest on that sum of $395.00 which would represent the total sum outstanding for a year at the court rate of 9%. Whilst the total sum has not been outstanding for a whole year some of it has been outstanding for more than a year and I have exercised my discretion in making the award.

Reasons for Injunctive Orders

1. The applicant seeks rather wide ranging injunctions against both the first and second respondents.  The orders sought are set out in the statement of claim as follows:

   “An injunction against the First Respondent, in such terms and for such period as the Court thinks fit, to the following effect:

   (a)  The First Respondent be restrained from sending or being involved in sending SMS messages to any member of the public that makes representations that are false and/or misleading;

   (b) The First Respondent be restrained from sending or being involved in sending SMS messages to any member of the public that implies or represents that a secret admirer, or other such similarly described person, wishes to contact that member of the public, unless it is in fact true and not misleading; and

   (c)  The First Respondent cease sending or being involved in sending any premium SMS messages to any member of the public who has responded to the First Respondent’s initial SMS as referred to in paragraph 6 and/or  11.

   An injunction against the Second Respondent, in such terms and for such period at the Court thinks fit, to the following effect:

   (a)  The Second Respondent be restrained from sending or being involved in the sending of SMS messages to any member of the public that makes representations that are false and/or misleading;

   (b) The Second Respondent be restrained from sending or being involved in the sending of SMS messages to any member of the public that implies or represents that a secret admirer, or other such similarly described person, wishes to contact that member of the public, unless it is in fact true and not misleading; and

   (c)  The Second Respondent be restrained from sending or being involved in the sending or receiving of SMS messages to or from any member of the public who has responded to the First Respondent’s initial SMS as referred to in paragraph  6 and/or 11.”

2. There is evidence that the activity of which the applicant complains was not confined solely to her. Indeed the very nature of the first respondent’s business was to ensure that these messages went out to as many persons as possible. It is clear that the messages did do that from the ACMA letter and that there were a large number of complaints. The public interest is a valid consideration in the granting of an injunction under the Act: Australian Consumer & Competition Commission v Z-tek Computer Pty Ltd [1997] 871 FCA, and if an injunction may deter other persons from acting in a similarly unconscionable manner then there is an additional reason for granting one: Australian Competition & Consumer Commission v Wizard Mortgage Corporation Limited [2002] FCA 1317.

3. There is evidence on the file that Mr Owen, the second respondent, has novated with the agreement with MBlox from the first respondent to another company of which he is a director.  He did not come to the court to defend his position.  He dismissed his solicitors on the eve of the hearing.  I am satisfied that the conduct complained of is reprehensible and should be prevented.  I propose to grant injunctions against both the first and second respondents in a form which I believe would have the effect of preventing a repeat of the activities of the first respondent but without being merely an invocation not to break the law in a particular way.

Costs

1. The applicant has advised me that she proposes to make an application for the payment of indemnity costs directly by the respondent’s solicitors.  This is a matter for which strict procedures are provided and I will therefore at this stage make no order as to costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  21 August 2007