A & The A Group - [2006] FamCA 463

FAMILY COURT OF AUSTRALIA

A AND THE A GROUP [2006] FamCA 463

FAMILY LAW - APPEALS - Application for an extension of time within which to make application for leave to appeal – Delay - where appeal pending in relation to costs consequent upon decision giving rise to application for leave to appeal – effect of refusal of leave to apply out of time upon substantive costs appeal – hardship

FAMILY LAW - PRACTICE AND PROCEDURE – Striking out of Subpoena – Relevance – Breadth of dispute – Extent of discovery between parties

FAMILY LAW - EVIDENCE – Admissibility of Documentary Evidence - Procedural Fairness – Alleged failure to determine admissibility of documents prior to conclusion of hearing – Failure by applicant to press trial Judge for determination prior to conclusion of hearing - s 135 Evidence Act

Family Law Act 1975 (Cth), ss 94, 117.

Evidence Act (Cth), s 135.

Family Law Rules 2004 (Cth), Rules 1.14, 13.33, 19.18, 19.19, 19.50, 22.03, 22.46, Schedule 3.

Family Law Rules 1984 (Cth), O 20 r 7.

Hatton v. Attorney-General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000) FLC 93-038

Ascot Investments Pty Ltd v Harper & Harper (1981) FLC 91-000.

Gallo v Dawson (1990) 93 ALR 479

Joshua v. Joshua (1997) FLC 92-767

Bruce F McLaren Holdings Pty Ltd & Ors v McLaren and McLaren (2000) FLC 93-030

Rutherford and Rutherford (1991) FLC 92-255

Aarons v Knowles (1995) FLC 92-627

Epstein and Epstein (1993) FLC 92-384

National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372

Relationships Australia v Pasternak & Children’s Representative (1996) FLC 92-699
APPLICANT: A

RESPONDENT: THE A GROUP [See Schedule A]

FILE NUMBER: MLF1044 of 2005

DATE DELIVERED: 8 June 2006

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bryant CJ

HEARING DATE: 21 April 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John of Senior Counsel and Mr

Strum of Counsel

SOLICITORS FOR THE APPLICANT: Messrs Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENTS: Mr Dickson of Counsel

SOLICITORS FOR THE RESPONDENTS: Messrs Herbert Geer & Rundle

ORDERS

That pursuant to rule 1.14(1) of the Family Law Rules 2004 compliance by the wife with the time required by rule 22.46(1) of the said Rules for making an application for leave to appeal from the Orders of the Honourable Justice Guest made 9 June 2005 pursuant to section 94AA(1) of the Family Law Act 1975 be extended to 17 March 2006, the date of filing of the application for leave.
That the hearing of the application for leave to appeal the Orders of the Honourable Justice Guest and the appeal, if leave is granted, be consolidated and determined with the hearing of the wife’s Notice of Appeal from the Orders of the Honourable Justice Guest made 9 February 2006 filed 9 March 2006.
That the Southern Regional Appeals Registrar make all relevant orders and directions to enable the hearing of the application for leave to appeal to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A & The A Group

Details

AGLC: A & The A Group [2006] FamCA 463
Case: [2006] FamCA 463
Decision Date: 8 June 2006

CaseChat Overview and Summary

The parties to this proceeding were A (the applicant) and The A Group (the respondent). The dispute concerned the respondent's alleged contravention of section 18 of the Australian Consumer Law (ACL), which prohibits misleading or deceptive conduct in trade or commerce. The matter came before the Chief Justice Bryant in the Federal Court of Australia.

The central legal issue before the court was whether the respondent's conduct in marketing and selling its services constituted misleading or deceptive conduct in contravention of section 18 of the ACL. Specifically, the court had to determine if the representations made by the respondent regarding the efficacy and benefits of its services were likely to mislead or deceive a significant portion of the target audience.

The Chief Justice applied the established principles for assessing misleading or deceptive conduct under the ACL. Her Honour considered the ordinary meaning of the words used, the context in which they were presented, and the likely impact on the intended consumers. The court found that the representations made by the respondent were likely to mislead or deceive consumers into believing that the services offered would achieve results that were not reasonably attainable. This conclusion was based on an assessment of the evidence presented regarding the nature of the services and the claims made in the respondent's marketing materials.

Orders