Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382

Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382

Declarations by consent about public rights, or those with a public element, should not be granted where all parties consent and no proper contradictor exists (following BMI v Federated Clerks Union of Australia). However, the agreed statements of fact under s 191 suffice as evidence for findings of contravention, so the agreed penalties are appropriate within the statutory regime. Pecuniary penalties for the respondents are set at levels agreed by the parties, reflecting the seriousness, but also the cooperation and remedial conduct post-proceedings.

Jurisdiction
Australia
Judgment Date
15 April 2011
Procedural Posture
Civil Penalty Application / Judgment (post Admissions and Consent Orders)
Outcome
Civil penalties imposed; declarations refused; injunctive, corrective, compliance and costs orders made by consent
Legal Topics
['declarations by Consent' 'pecuniary Penalty for Contraventions' 'misleading or Deceptive Conduct' 'false or Misleading Representations Regarding Warranties' "court's Power to Make Declarations by Consent"]
['consumer Law' 'competition Law'] ['declarations by Consent' 'pecuniary Penalty for Contraventions' 'misleading or Deceptive Conduct' 'false or Misleading Representations Regarding Warranties' "court's Power to Make Declarations by Consent"]

Case Brief

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Procedural Posture

Civil Penalty Application / Judgment (post Admissions and Consent Orders)

Legal Issues

  1. 1 ['Whether the Court should grant declarations by consent when all parties agree and evidence is by agreed statement of facts under s 191 Evidence Act 1995 (Cth)' 'Whether a proper contradictor exists when parties consent to relief' 'If the conduct of the respondents breached ss 52 and 53(g) Trade Practices Act (now Competition and Consumer Act Sch 2)' 'What is the appropriate pecuniary penalty for the conduct']

Ratio Decidendi

Declarations by consent about public rights, or those with a public element, should not be granted where all parties consent and no proper contradictor exists (following BMI v Federated Clerks Union of Australia). However, the agreed statements of fact under s 191 suffice as evidence for findings of contravention, so the agreed penalties are appropriate within the statutory regime. Pecuniary penalties for the respondents are set at levels agreed by the parties, reflecting the seriousness, but also the cooperation and remedial conduct post-proceedings.

Court Disposition

Civil penalties imposed; declarations refused; injunctive, corrective, compliance and costs orders made by consent

Orders

  • ['Impose civil penalties as specified for each respondent.' 'Grant injunctive relief, a compliance programme, and corrective advertising as requested in the short minutes of order.' 'Refuse to make the declarations sought.' 'Order costs as per paragraph 25 of the proposed short minutes of order.' 'Release...