Australian Competition and Consumer Commission v Roberson - [2008] FCA 1735

FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Roberson [2008] FCA 1735
PRACTICE AND PROCEDURE – application for orders on default under Order 35A rule 3(2)(c)
TRADE PRACTICES – appropriate relief for non-compliance with an undertaking given under s 87B(1)
Trade Practices Act 1974 (Cth) ss 87B(1) and 87B(4)
Federal Court Rules O4 r8, O9 r2(1) and r2(2),O11 r20, O35A r2(2), O35A r 3(2) and O35A r3(2)(c)
Federal Court of Australia Act 1976 (Cth) s 21
Universal City Studios LLLP v Hoey t/as DVD Kingdom (2006) 232 ALR 525
Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (ACN 075 400 529) (2006) (‘Dataline.net.au’) 236 ALR 665
Bank of Kuwait and the Middle East v Ship MV “Mawashi Al Gasseem” (No 2) (2007) 240 ALR 120
Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (in liquidation) (2007) 161 FCR 513
Australian Competition and Consumer Commission v Storesonline International, Inc (2007) ATPR 48,236
Hadgkiss v Aldin (No 2) (2007) 169 IR 76
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v RICHARD ALEXANDER ROBERSON
NSD 1290 of 2008
GRAHAM J
4 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1290 of 2008

BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:
RICHARD ALEXANDER ROBERSON
Respondent

JUDGE:

GRAHAM J

DATE OF ORDER:

4 NOVEMBER 2008

WHERE MADE:

SYDNEY

THE COURT:
1.Declares that the respondent (also known as Richard James) has breached paragraph 11 of the undertaking pursuant to section 87B of the Trade Practices Act 1974 (Cth) (“the Act”) executed by him and accepted by the applicant on 2 April 2008 (the Undertaking), by failing to provide the letter in the form and terms of "Annexure A" to the Undertaking (see Schedule 1 hereto) to all persons for whom he had address information and who had subscribed to the service that the respondent trading as Backpacker Employment Services (BES) offered in the period from May 2007 to October 2007 (inclusive), within 30 days of the Undertaking coming into effect, or at all.
2.Declares that the respondent (also known as Richard James) has breached paragraph 12 of the Undertaking, as he did not cause to be published in either the Manning River Times or the Port Macquarie News a consumer notice in the form and terms of "Annexure B" to, and paragraph 12 of, the Undertaking within 30 days of the Undertaking coming into effect, or at all.
3.Declares that the respondent (also known as Richard James) has breached paragraph 16 of the Undertaking, by failing to attend practical trade practices training focusing on sections 52, 53(c) and (d) and 53B of the Act (Trade Practices training), within 2 months of the Undertaking coming into effect, or at all.
4.Declares that the respondent (also known as Richard James) has breached paragraph 18 of the Undertaking, by failing to provide to the applicant a written statement or certificate from the trade practices professional who conducts the Trade Practices training referred to in paragraph…

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.

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Details

Case: [2008] FCA 1735
Decision Date: 4 November 2008

CaseChat Overview and Summary

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Richard James, trading as Backpacker Employment Services (BES), alleging multiple breaches of an Undertaking executed pursuant to section 87B of the Trade Practices Act 1974 (Cth). The Undertaking was executed by James on 2 April 2008, following earlier proceedings by the ACCC concerning BES's activities in the backpacker employment market. The court was required to determine whether James had breached various obligations set out in the Undertaking, including failing to provide certain letters to subscribers, publish a consumer notice, attend trade practices training, provide a certificate of training, develop a complaint handling system, and furnish documentation to the ACCC.

The Federal Court found that James had indeed breached multiple terms of the Undertaking. Specifically, the court found that James had failed to distribute letters to subscribers as required, did not publish a consumer notice, did not attend trade practices training, did not provide a certificate verifying the training, did not develop a complaint handling system, and did not provide requested documentation. The court meticulously reviewed the evidence and the terms of the Undertaking to conclude that James had not fulfilled his obligations. Consequently, the court declared that James had breached the Undertaking and ordered him to take certain actions, such as communicating with subscribers, publishing a consumer notice, and providing evidence of compliance. The court also ordered James to pay the ACCC's costs.

The court's decision highlighted the importance of compliance with undertakings given to the ACCC, particularly when they involve ongoing obligations to ensure fair business practices. By declaring the breaches and issuing specific orders, the court underscored the seriousness of adhering to legal obligations and the consequences of non-compliance.

Orders

Orders of the court

1. Declares that the respondent (also known as Richard James) has breached paragraph 11 of the undertaking pursuant to section 87B of the Trade Practices Act 1974 (Cth) (“the Act”) executed by him and accepted by the applicant on 2 April 2008 (the Undertaking), by failing to provide the letter in the form and terms of "Annexure A" to the Undertaking (see Schedule 1 hereto) to all persons for whom he had address information and who had subscribed to the service that the respondent trading as Backpacker Employment Services (BES) offered in the period from May 2007 to October 2007 (inclusive), within 30 days of the Undertaking coming into effect, or at all.

2. Declares that the respondent (also known as Richard James) has breached paragraph 12 of the Undertaking, as he did not cause to be published in either the Manning River Times or the Port Macquarie News a consumer notice in the form and terms of "Annexure B" to, and paragraph 12 of, the Undertaking within 30 days of the Undertaking coming into effect, or at all.

3. Declares that the respondent (also known as Richard James) has breached paragraph 16 of the Undertaking, by failing to attend practical trade practices training focusing on sections 52, 53(c) and (d) and 53B of the Act (Trade Practices training), within 2 months of the Undertaking coming into effect, or at all.

4. Declares that the respondent (also known as Richard James) has breached paragraph 18 of the Undertaking, by failing to provide to the applicant a written statement or certificate from the trade practices professional who conducts the Trade Practices training referred to in paragraph 16 of the Undertaking to the applicant within 14 days of completion of the training verifying that such training has occurred, with such written statement or certificate outlining:

(a) the title of the training seminar;

(b) the name of the person(s) who conducted the training seminar; and

5. Declares that the respondent (also known as Richard James) has breached paragraph 19 of the Undertaking, by failing to:

(a) develop procedures for recording, storing and responding to trade practices complaints (complaint handling system); and

(b) provide the applicant with an outline of the complaint handling system developed,

within 2 months of the Undertaking coming into effect, or at all.

6. Declares that the respondent (also known as Richard James) has breached paragraph 20 of the Undertaking, by failing to provide to the applicant copies of documents or information in respect of:

(a) the Trade Practices training; and

(b) the complaint handling system,

in response to the applicant’s request of 29 July 2008.

7. Orders that the respondent communicate with each of the persons whose names and telephone numbers are listed in Schedule 2 hereto on or before 28 November 2008 by telephoning each of those persons and reading a statement to each of them in accordance with the terms of Schedule 3 hereto.

8. Orders pursuant to section 87B(4) of the Act that the respondent cause to be published within 21 days of the date of these Orders, a consumer notice in the form and terms of Schedule 4 to these Orders, with such notice to be:

(a) published in the following newspapers:

(i) Manning River Times; and

(ii) Port Macquarie News;

(b) of a size not less than 12cm x 10cm;

(d) published in the employment section; and

(e) published once in each of the above newspapers.

9. Orders pursuant to section 87B(4) of the Act that the respondent will within 14 days after the publication of the relevant notices, provide the applicant with written evidence of the consumer notice he has caused to be published pursuant to Order 9 above, by providing to the applicant a copy of the consumer notice which has been published in each of the Manning River Times and Port Macquarie News.

10. Orders that the respondent pay the applicant’s costs of the application and of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAHAM J

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Ratio Decidendi

Legal Principle Established

Established by: GRAHAM J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1290 of 2008

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	RICHARD ALEXANDER ROBERSON Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	4 NOVEMBER 2008
WHERE MADE:	SYDNEY