NRM Trading Pty Ltd v Australian Competition and Consumer Commission [2015] FCA 595

NRM Trading Pty Ltd v Australian Competition and Consumer Commission [2015] FCA 595

The stay application was refused except as to order 13 because the Applicants did not provide persuasive evidence that compliance with orders 9(a), 9(c), 9(e), 10(b) or 12 would cause NRM's business to close or otherwise render the appeal nugatory. Order 9(a) could be met by in-person or video-link consultations; order 9(c) did not prohibit advertising generally or statements by qualified medical practitioners during consultations; order 9(e) did not prevent appropriate direct debit arrangements after provision of services; order 10(b) was not shown to halt the business given insufficient evidence of Dr Vaisman's current role; and order 12 could be contextualised by amendments noting the...

Jurisdiction
Australia
Judgment Date
28 May 2015
Procedural Posture
Appeal Proceeding; Interlocutory Application for Stay Pending Appeal / Application for Stay of Orders Made by North J on 22 April 2015 Pending the Hearing and Determination of the Appeal
Outcome
Application for a stay refused except that order 12 was temporarily stayed and modified, order 13 was stayed pending the appeal, and the costs of the interlocutory application were reserved.
Legal Topics
['stay Pending Appeal' 'unconscionable Conduct' 'unfair Contract Terms' 'injunctions' 'corrective Advertising' 'costs']
['competition and Consumer Law' 'federal Court Practice and Procedure'] ['stay Pending Appeal' 'unconscionable Conduct' 'unfair Contract Terms' 'injunctions' 'corrective Advertising' 'costs']

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Procedural Posture

Appeal Proceeding; Interlocutory Application for Stay Pending Appeal / Application for Stay of Orders Made by North J on 22 April 2015 Pending the Hearing and Determination of the Appeal

Legal Issues

  1. 1 ['Whether orders 9 to 13, or alternatively orders 9(a), 9(c), 9(e), 10(b), 12 and 13, made by North J should be stayed pending appeal.' "Whether compliance with the orders would likely cause NRM's business to be unable to continue, thereby rendering the appeal nugatory." 'Whether order 9(a) requiring consultations with a duly qualified medical practitioner in person or by video-link should be stayed.' 'Whether order 9(c) restricting statements or representations as to efficacy should be stayed.' 'Whether order 9(e) restricting advance payments for more than two months should be stayed.' 'Whether order 10(b) restraining Dr Vaisman from roles in training, supervising, counselling or terminating employees, agents or contractors should be stayed.' 'Whether order 12 requiring publication of a corrective notice should be stayed or modified.' 'Whether order 13 as to costs should be stayed pending the appeal.']

Ratio Decidendi

The stay application was refused except as to order 13 because the Applicants did not provide persuasive evidence that compliance with orders 9(a), 9(c), 9(e), 10(b) or 12 would cause NRM's business to close or otherwise render the appeal nugatory. Order 9(a) could be met by in-person or video-link consultations; order 9(c) did not prohibit advertising generally or statements by qualified medical practitioners during consultations; order 9(e) did not prevent appropriate direct debit arrangements after provision of services; order 10(b) was not shown to halt the business given insufficient evidence of Dr Vaisman's current role; and order 12 could be contextualised by amendments noting the...

Court Disposition

Application for a stay refused except that order 12 was temporarily stayed and modified, order 13 was stayed pending the appeal, and the costs of the interlocutory application were reserved.

Orders

  • ['Order 12 of the orders made by North J on 22 April 2015 be stayed until 5 p.m. on Friday, 12 June 2015.' 'Order 12 is modified so that the words "subject to appeal" will be inserted in the text of the "click-through" icon referred to in order 12(c) after the words "Unconscionable Conduct by Advanced Medical...