Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 1087

Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 1087

The variation of the costs order was refused because the third respondent unsuccessfully contested the conduct of the first and second respondents on which his accessorial liability depended, and the sixth and seventh respondents unsuccessfully contested allegations that their business practices continued those of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 October 2015
Procedural Posture
Costs, Variation of Orders, and Consumer Law Injunctive Enforcement Orders / Determined on the Papers After Orders Made on 22 April 2015
Outcome
The respondents' application to vary the costs order was dismissed. The ACCC's application for appointment of an independent auditor was otherwise dismissed, but an independent reporter was ordered. The third, sixth and seventh respondents were ordered to pay two thirds of the ACCC's costs of the application.
Legal Topics
['costs Follow the Event' 'variation of Costs Orders' 'independent Auditor or Reporter' 'enforcement of Injunctive Orders' 'australian Consumer Law Injunctions' 'disclosure Orders']
['competition and Consumer Law' 'practice and Procedure' 'costs'] ['costs Follow the Event' 'variation of Costs Orders' 'independent Auditor or Reporter' 'enforcement of Injunctive Orders' 'australian Consumer Law Injunctions' 'disclosure Orders']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Costs, Variation of Orders, and Consumer Law Injunctive Enforcement Orders / Determined on the Papers After Orders Made on 22 April 2015

Legal Issues

  1. 1 ["Whether the third, sixth and seventh respondents should be relieved from paying the ACCC's costs of the proceeding against the insolvent first and second respondents." 'Whether the Court had power and should exercise discretion to require the sixth and seventh respondents to appoint an independent auditor or reporter to report on matters relevant to compliance with order 9 made on 22 April 2015.' 'Whether the proposed audit order should require an assessment of compliance or only a factual reporting function.']

Ratio Decidendi

The variation of the costs order was refused because the third respondent unsuccessfully contested the conduct of the first and second respondents on which his accessorial liability depended, and the sixth and seventh respondents unsuccessfully contested allegations that their business practices continued those of the first and second respondents; the interests of justice required them to pay the ACCC's costs of the case against the first and second respondents. The Court also held that, although an independent auditor should not be given an assessment role, ss 232 and 246(2)(c) of the Australian Consumer Law supported an order requiring the sixth and seventh respondents to appoint an...

Court Disposition

The respondents' application to vary the costs order was dismissed. The ACCC's application for appointment of an independent auditor was otherwise dismissed, but an independent reporter was ordered. The third, sixth and seventh respondents were ordered to pay two thirds of the ACCC's costs of the application.

Orders

  • ['The application made by the third, sixth and seventh respondents to vary [13] of the orders made on 22 April 2015 is dismissed.' 'The sixth and seventh respondents must, within six months, appoint an independent reporter with expertise in consumer law at their own cost to specify in writing matters concerning...