The Australian Competition and Consumer Commission has filed a Notice of Contention* in the Full Federal Court of Australia in relation to the decision of the late Justice Selway in ACCC v. Australian Communications Network Pty Ltd.
On 15 November 2004 the ACCC instituted proceedings against Australian Communications Network Pty Ltd, a seller of telecommunications services, for alleged breaches of the pyramid selling scheme provisions of the Trade Practices Act 1974.
On 23 March 2005 Justice Selway found that ACN participated in, promoted and induced or attempted to induce persons to take part in a pyramid selling scheme in contravention of section 65AAC of the Act, and that Mr Martin Paech, an ACN director, aided and abetted and was knowingly concerned in those contraventions.
The court also found that Mr Keith Janke and Mr Jonathon Gibbs, two ACN Independent Representatives, were knowingly concerned in and aided and abetted the contraventions, and Gibbschade Pty Ltd participated in the pyramid selling scheme and attempted to induce other persons to participate in the scheme in contravention of the TPA.
On 20 July 2005 Justice Mansfield made a number of orders, including declarations and injunctions, and orders relating to corrective action.
Justice Mansfield also ordered that ACN comply with the undertaking it gave to the Federal Court on 24 November 2004 that ACN refund all $499 plus GST participation payments held in trust from 24 November 2004 but stayed this order, and the orders relating to corrective action, pending the hearing and determination of an appeal by ACN.
The injunction restraining ACN against operating the $499 plus GST scheme remains in force but Justice Mansfield noted in his reasons that the injunction does not restrain the current ACN scheme which involves participation payments of $200 plus GST because there has been no decision by the Federal Court as to the legality or otherwise of that scheme.
On 25 July 2005 ACN and Mr Paech filed a Notice of Appeal against the whole of the judgment of Justice Selway and against the orders made by Justice Mansfield.
On 12 August 2005 the ACCC filed a Notice of Contention in respect of some findings of law made by Justice Selway.
A date has yet to be set down for the hearing of ACN's appeal.
*A notice of contention is where the respondent wishes to contest a particular finding of fact or law by the trial judge, but is not seeking to overturn any of the orders made by the trial judge.