Australian Competition and Consumer Commission v Davis - [2003] FCA 1227

FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Davis & Others
[2003] FCA 1227
TRADE PRACTICES – unconscionable conduct – undue harassment – accessorial liability – whether respondents aided and abetted or were knowingly concerned in and party to contraventions under the Trade Practices Act 1974 (Cth) – whether inconsistency between Fair TradingAct 1987 (WA) and Trade Practices Act 1974 (Cth) – seizure of motor vehicle subject to a chattel mortgage – where respondents entered consumer’s property without his consent to effect seizure of the motor vehicle – where respondents had reasonable cause to apprehend a physical confrontation with consumer – where respondents use of physical force went beyond self defence
Australian Securities and Investments Commission 2001 (Cth) ss 12CB, 12DJ
Fair Trading Act 1987 (WA) ss 23, 74
Judiciary Act 1903 (Cth) s 78B
Trade Practices Act 1974 (Cth) ss 51AB, 60, 75(1), 75B, 80
Commonwealth of Australia Constitution Act 1901 s 109
Ex parte McLean (1930) 43 CLR 472 cited
Glennanv Federal Commissioner of Taxation (2003) 198 ALR 250 cited
Grace Bros Pty Ltd v Magistrates, Local Courts of New South Wales (1988) 84 ALR 492 cited
Hamilton v Whitehead (1988) 166 CLR 121 cited
Hurley v McDonald’s Australia Ltd (2000) 22 ATPR 41-741 cited
Mallan v Lee (1949) 80 CLR 198 cited
Miller v Miller (1978) 141 CLR 269 cited
PSL Industries Ltd v Simplot Australia Pty Ltd (2003) 174 FLR 111 cited
Re: Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 cited
Yorke v Lucas (1985) 158 CLR 661 cited
AUSTRALIAN COMPETITION & CONSUMER COMMISSION v WAYNE HINA DAVIS, ANTHONY TERENCE MATTHEWS, EDWARD DAVIS
W111 OF 2001
LEE J
7 NOVEMBER 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W111 OF 2001

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

WAYNE HINA DAVIS
SIXTH RESPONDENT

ANTHONY TERENCE MATTHEWS
SEVENTH RESPONDENT

EDWARD DAVIS
EIGHTH RESPONDENT

JUDGE:

LEE J

DATE OF ORDER:

7 NOVEMBER 2003

WHERE MADE:

PERTH

THE COURT DECLARES THAT:
1. The sixth, seventh and eighth respondents aided and abetted, were directly knowingly concerned in and party to the following contravention of section 51AB of the Trade Practices Act1974 (the ‘TPA’) by the first respondent in connection with the supply of goods and services by the first respondent to Mr McPhee, pursuant to the “McPhee Agreement” referred to in par 10 of the Statement of Claim filed in the proceeding, by reason of:
1.1the first respondent’s agents and sub-agents failing to desist from their attempts to repossess the “McPhee vehicle” when they had reasonable cause to apprehend that a physical confrontation may occur if they continued in those attempts.

2. The sixth and eighth respondents on 20 June 2000 used physical force, in connection with the supply of goods and services by the first respondent to Mr McPhee and the payment for services by McPhee, pursuant to the “McPhee Agreement”, in contravention of s 23 of the Fair TradingAct 1987 (WA) (the “FTA”)…

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.

Keep reading for free

Create a free CaseChat account to read Australian Competition and Consumer Commission v Davis and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] FCA 1227
Decision Date: 7 NOVEMBER 2003

CaseChat Overview and Summary

The case of Australian Competition and Consumer Commission v Davis and others was heard by the Federal Court of Australia. The Australian Competition and Consumer Commission (ACCC) brought proceedings against the respondents, alleging that they were involved in contraventions of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (WA). The respondents were involved in the repossession of a vehicle belonging to a consumer who had defaulted on a loan from Esanda, the first respondent. The ACCC argued that the respondents had engaged in unconscionable conduct, undue harassment, and used physical force in contravention of the relevant Acts.

The legal issues before the Court were whether the respondents had aided and abetted or were knowingly concerned in and party to the contraventions under the Trade Practices Act and whether there was an inconsistency between the Fair Trading Act and the Trade Practices Act. The Court also considered whether the seizure of the motor vehicle was lawful, given that it occurred without the consumer's consent.

In its reasoning, the Court found that the sixth, seventh, and eighth respondents had indeed aided and abetted, were directly knowingly concerned in and party to the contravention of section 51AB of the Trade Practices Act by Esanda, as they failed to desist from their attempts to repossess the vehicle when they had reasonable cause to apprehend that a physical confrontation may occur if they continued in those attempts. Furthermore, the sixth and eighth respondents were found to have contravened section 23 of the Fair Trading Act by physically restraining the consumer during the removal of the vehicle from the consumer's premises.

The Court also declared that the sixth respondent be restrained from taking any steps to repossess goods under certain circumstances, and that all respondents attend a compliance seminar on trade practices law. The sixth respondent was ordered to pay a portion of the ACCC's costs in the proceeding. The seventh and eighth respondents were not subject to the same restraining order as the sixth respondent, but were still required to attend the compliance seminar.

Orders