Communications Regulation Act 2002

F96 [ Commission may apply to High Court for order to restrain repeated or apprehended contravention of section 45.


46. (1) If it appears to the Commission that an undertaking

( a ) is contravening subsection (1) of section 45 , or

( b ) has contravened that subsection in the past and may contravene that subsection in the future,

the Commission may apply to the High Court to make a restraining order under subsection (4) . Such an application is to be by motion.

(2) The High Court may hear the application only if it is satisfied that a copy of the application has been served on the undertaking concerned. On being served with such a copy, that undertaking becomes the respondent to the application.

(3) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (1) . The Court may not refuse interim or interlocutory relief merely because the Commission may not suffer damage if relief were not granted pending determination of the application.

(4) On the hearing of an application made under subsection (1) , the High Court

( a ) may make a restraining order requiring the undertaking to cease contravening section 45 and not to repeat the contravention, or

( b ) if it is of the opinion that the application is not substantiated, refuse the application.

(5) An application for a restraining order may include or be accompanied by a further application for an order directing the respondent to pay to the Commission a financial penalty of such amount as is proposed by the Commission having regard to the circumstances of the contravention or contraventions of section 45 committed by the respondent.

(6) On hearing the further application, the High Court may, having previously been satisfied that the respondent has contravened section 45 and having regard to the circumstances surrounding the contravention, order the respondent to pay to the Commission a financial penalty of such amount as is specified in the order. The amount can be more or less than the amount proposed by the Commission.

(7) The circumstances referred to in subsection (6) include (but are not limited to) the following:

( a ) the duration of the contravention;

( b ) the effect of the contravention on other parties to the relevant decision and on consumers;

( c ) the submission of the Commission with respect to what it considers to be the appropriate amount;

( d ) any excuse or explanation for the contravention provided by the respondent.

(8) If the High Court makes an order under this section, it may make such ancillary orders as it considers appropriate.

(9) In this section, consumer has the same meaning as in section 45 . ]