FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v McCaskey [2000] FCA 1037
TRADE PRACTICES – debt collectors – undue harassment and coercion – elements of “undue harassment and coercion” – legitimate purposes of debt collectors – consent orders – principles governing grant of consent orders – compliance programmes and corrective advertising – applicable principles.
Trade Practices Act 1974 (Cth) s 52, par 53(g) and s 60
Trade Practices Revision Act 1986
Fair Trading Act 1987 (WA)Australian Competition and Consumer Commission v Real Estate Institute of Western AustraliaInc (1999) 95 FCR 114 followed
Beckwith v R (1976) 12 ALR 333 followed
Deming No 456 Pty Ltd v Brisbane Unit Development Corp Pty Ltd (1983) 50 ALR 1 followed
Waugh v Kippen (1986) 64 ALR 195 followed
Thompson v Master Touch TV Services Pty Ltd (1977) 15 ALR 487 cited
Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 discussed
O’Callaghan v Loder [1984] EOC 92-023 cited
Johnston v Collier (1997) 142 FLR 409 cited
Campbell v Metway Leasing Ltd (1998) ATPR 41-630 discussedHeydon, Trade Practices Law (Law Book Co) Vol 1
Pearce and Geddes, Statutory Interpretation in Australia, 4th Edition, ButterworthsAUSTRALIAN COMPETITION AND CONSUMER COMMISSION v SHARYN McCASKEY and CASH RETURN MERCANTILE PTY LTD
W114 of 1999FRENCH J
1 AUGUST 2000
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W114 OF 1999
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANTAND:
SHARYN McCASKEY
RESPONDENTAND
CASH RETURN MERCANTILE PTY LTD
(ACN 070 509 536)
SECOND RESPONDENTJUDGE:
FRENCH J
DATE OF ORDER:
1 AUGUST 2000
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
Orders in terms of the Orders set out in the Schedule to these Reasons for Judgment.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W114 OF 1999
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANTAND:
SHARYN McCASKEY
FIRST RESPONDENTAnd
CASH RETURN MERCANTILE PTY LTD
(ACN 070 509 536)
SECOND RESPONDENT
JUDGE:
FRENCH J
DATE:
1 AUGUST 2000
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
When Shylock in the Merchant of Venice demanded a pound of his debtor’s flesh he was confounded by the very law which he invoked. The community attitude reflected in Shakespeare’s play is deep seated and persistent. In today’s credit-based economy the collection of payments for goods and services is an indispensable element of trade and commerce but the use of physical force, undue harassment or coercion in connection with the collection of debts is regarded as unacceptable. It is prohibited by the Trade Practices Act of the Commonwealth and the Fair Trading Acts of the various States. In this case a debt collector and its employee have admitted to engaging in undue harassment and coercion as well as misleading or deceptive conduct in connection with the collection of debts. The debt collector, Cash Return Mercantile Pty Ltd (“Cash Return”) and its employee…
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- Case
- [2000] FCA 1037
- Decision Date
CaseChat Overview and Summary
The main legal issues in this case were whether the proposed orders, including a public apology, were appropriate and within the court's power. The court had to consider the nature of the conduct engaged in by Cash Return and McCaskey and determine if the proposed orders were an adequate response to their actions. The court also had to consider the impact of these orders on the parties involved and the public, as well as the potential deterrent effect of the orders on future conduct.
The court found that the proposed notice, which was an apology, was an appropriate way to draw attention to the inappropriate conduct of Cash Return and McCaskey. It was within the court's power to make such an order and it was deemed appropriate in this case. The court did, however, modify some of the proposed orders to ensure they were targeted and appropriate. For instance, the injunction was limited to conduct involving the use of telephone services. The court concluded that the proposed orders, subject to certain modifications, were within its power and appropriate.
In conclusion, the court made orders in terms of the Further Revised Minutes of Proposed Consent Orders, subject to the aforementioned modifications. The ACCC and Cash Return indicated their agreement with the proposed orders, while McCaskey, who did not appear at the delivery of the judgment, had previously consented to orders in wider terms than those which the court regarded as appropriate. The orders took effect at the expiry of seven days unless the parties requested a relisting of the directions on the basis that one or more of them would not consent to the proposed orders.
Orders
Orders of the court
Orders in terms of the Orders set out in the Schedule to these Reasons for Judgment.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: FRENCH J
Full text does not contain this section.