Director General of the Department of Fair Trading v Navagold Pty Limited and Peter Edmund Sheed

HIS HONOUR: These are proceedings brought pursuant to the express power vested in the Court pursuant to s66 of the Fair Trading Act 1997. That provision specifies power to grant injunctive relief and in particular, by statutory edict, notes that relief can be granted without an undertaking as to damages being required.

The circumstances which bring the plaintiff to Court are set out in detail in the affidavits relied upon. Neither defendant has appeared today and I am satisfied from the affidavits of service that they are aware of the proceedings. When I use the plural, I recognise that the first defendant is a corporate defendant and, in effect, within the control of the second defendant.

It is plain from the material that despite repeated requests for production of material in compliance with a statutory requirement that neither defendant has been willing to comply. The responses of the second defendant have clearly indicated his apparent unwillingness to recognise his statutory obligations in regard to matters the subject of investigation and enquiry.

Accordingly, I am of the view that I should exercise the power vested by s66 to grant an injunction in such terms as I determine appropriate.

The summons seeks orders in specific terms. I have indicated to Mr Galvin, who appears for the plaintiff, that I am reluctant to make an order in terms of paragraph 2 because I am not persuaded that there is sufficient precision or specification of requirement to the second defendant to justify the making of an order in those terms. In so doing, I repeat my observation of the close identification of the defendants with each other.

There is no need, in the circumstances, for me to detail the evidence in the affidavit by Mr Portolesi corroborated as it is by the material in the other affidavits. I accept the evidence in that material.

I make orders in accordance with paragraphs 1, 3 and 4 of the summons. The order in relation to paragraph 4 will be an order for the first and second defendants to pay the plaintiff’s costs of these proceedings.