Australian Competition & Consumer Commission v Rana 
Courts consider a failure to comply with a notice issued under
section 155 by the ACCC a serious matter.
Readers will remember that last year we reported on the decision
in Australian Competition and Consumer Commission v Nuera
Health Pty Ltd (In Liquidation)  FCA 695, where the
Federal Court found the defendants to have engaged in reprehensible
conduct in falsely promoting a treatment to cancer patients.
These proceedings were significant because the court made rare
findings that the respondents had engaged in unconscionable conduct
in breach of section 51AB (1) of the Trade Practices Act 1974
(Cth). It was also held that representations made in relation to a
cancer treatment constituted misleading or deceptive conduct (in
breach of section 52 of the Trade Practices Act) and false
representations were made concerning the need for goods and
services, that goods and services were of a particular standard or
quality and that goods and services had performance
characteristics, uses or benefits that they did not have.
By way of update, in Australian Competition & Consumer
Commission v Rana  FCA 374 the discredited cancer
therapist Mr Paul John Rana was sentenced in the Federal Court,
Melbourne to six months imprisonment following conviction for
offences under the Trade Practices Act. The offences related to his
failure and his involvement in the failure by other parties to
comply with section 155 Notices issued by the ACCC.
As a part of its original investigation, the ACCC issued notices
under section 155 of the Trade Practices Act requiring production
of certain information and documents to the Australian Competition
and Consumer Commission. Section 155 gives the ACCC a powerful
investigative tool. If it has reason to believe someone can provide
information, documents or evidence relating to a contravention of
the TPA, it may issue a notice requiring them to produce
information or documents, or to appear before it and give evidence.
Under section 155 witnesses cannot rely on the normal right to
refuse to provide information on the grounds of self-incrimination,
although the information is not admissible in evidence in criminal
proceedings except proceedings under the section.
By providing for a maximum penalty of 12 months'
imprisonment, the court considered that Parliament has indicated
the seriousness with which it regards a failure to comply with a
notice issued under section 155.
In imposing a 12 month prison sentence, the court took the
following factors into account:
the failure to produce the information sought had the result
that people dying of cancer were further traumatised by having to
give information to the ACCC so that it could bring the civil
proceeding against Rana to ensure that his conduct was
the defendant had not shown contrition for the offences and had
not accepted responsibility for his actions;
the defendant had adopted tactics aimed at thwarting the legal
process, filed nonsensical documents in the proceedings and made a
spurious claim for $294 million against people who had made
complaints against him, or who had taken action to expose or
the defendant's refusal to take responsibility for his
actions provided no assurance that he would not re-offend; and
the defendant did not co-operate with the ACCC when offered the
opportunity to do so.
The court also noted the need for the sentence to reflect
general deterrence. It was thought that imprisonment would
communicate to the community the court's view that compliance
with section 155 of the Act was a serious obligation and that it
regards section 155 as a most important tool for the protection of
the public against unfair and unconscionable conduct. The
circumstances of this case called for a period of imprisonment.
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