Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984

The Commission proved beyond reasonable doubt that Mr Foster knew the 2 September 2005 orders and deliberately concealed his involvement while directly and knowingly controlling and promoting SensaSlim's weight loss business during the material period, including by using aliases, directing promotional material, advertisements, communications and franchise processes. The Commission also proved beyond reasonable doubt that he was knowingly concerned in SensaSlim making representations in the Area Manager Proposal and promotional DVD about the SensaSlim product's efficacy and worldwide clinical trial without providing or notifying representees of the Court's orders, although the newsletter...

Jurisdiction
Australia
Judgment Date
27 September 2013
Procedural Posture
Contempt of Court Proceeding Alleging Breach of Federal Court Orders / Judgment on Liability for Two Contempt Charges, Before Submissions on Form of Orders, Penalties and Costs
Outcome
Both charges of contempt were proved beyond reasonable doubt, with charge 2 proved only to the extent indicated and certain newsletter particulars not proved.
Legal Topics
['breach of Restraining Orders' 'knowingly Concerned in Contravention' 'proof Beyond Reasonable Doubt' 'civil and Criminal Contempt' 'voice Identification Evidence' 'credibility Evidence' 'misleading or Deceptive Conduct' 'resale Price Maintenance']
['contempt of Court' 'competition and Consumer Law' 'evidence'] ['breach of Restraining Orders' 'knowingly Concerned in Contravention' 'proof Beyond Reasonable Doubt' 'civil and Criminal Contempt' 'voice Identification Evidence' 'credibility Evidence' 'misleading or Deceptive Conduct' 'resale Price Maintenance']

Case Brief

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Procedural Posture

Contempt of Court Proceeding Alleging Breach of Federal Court Orders / Judgment on Liability for Two Contempt Charges, Before Submissions on Form of Orders, Penalties and Costs

Legal Issues

  1. 1 ['Whether the fourth respondent was directly or indirectly knowingly concerned in the promotion or conduct of SensaSlim Australia Pty Ltd, a business relating to weight loss, in breach of order 27 made on 2 September 2005.' 'Whether the fourth respondent was knowingly concerned in SensaSlim making representations as to the standard or quality of the SensaSlim product without providing or notifying representees of the 2 September 2005 orders, in breach of order 29.' "Whether the alleged contempts and the fourth respondent's knowledge of the essential facts were proved beyond reasonable doubt." "Whether voice identification, email, witness and circumstantial evidence proved that the fourth respondent used aliases including Peter O'Brien and controlled SensaSlim's business."]

Ratio Decidendi

The Commission proved beyond reasonable doubt that Mr Foster knew the 2 September 2005 orders and deliberately concealed his involvement while directly and knowingly controlling and promoting SensaSlim's weight loss business during the material period, including by using aliases, directing promotional material, advertisements, communications and franchise processes. The Commission also proved beyond reasonable doubt that he was knowingly concerned in SensaSlim making representations in the Area Manager Proposal and promotional DVD about the SensaSlim product's efficacy and worldwide clinical trial without providing or notifying representees of the Court's orders, although the newsletter...

Court Disposition

Both charges of contempt were proved beyond reasonable doubt, with charge 2 proved only to the extent indicated and certain newsletter particulars not proved.

Orders

  • ['The proceeding is adjourned to 10.15 am on Thursday 24 October 2013 for the hearing of submissions as to the form of orders to give effect to the reasons for judgement published today and in respect of penalties and costs.']