FEDERAL COURT OF AUSTRALIA
ACCC v Sampson [2011] FCA 1165
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 852 of 2010
BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
ApplicantAND: PIPPA ROSALIND SAMPSON
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
17 october 2011
WHERE MADE:
MELBOURNE
BY CONSENT THE COURT DECLARES THAT:
1. The Respondent in trade or commerce engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 52 of the Trade Practices Act 1974 (Cth), by:
(a) sending to addresses in all States and Territories during the periods April 2002 to 12 October 2010 letters titled “URGENT NOTICE”, examples of which are attached as Annexure A to this order, that contained the statements that:
(i)Goddard Elliott acted on behalf of an identified video rental client (“the video rental client”) in relation to the recovery of an outstanding amount “together with $30.00
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- AGLC
- Australian Competition and Consumer Commission v Sampson [2011] FCA 1165
- Case
- [2011] FCA 1165
- Decision Date
CaseChat Overview and Summary
The Court examined the legal principles relevant to declaratory and injunctive relief, considering whether the ACCC had a real interest in obtaining the relief and whether Sampson was a proper contradictor. The Court concluded that the ACCC had a real interest in obtaining the relief and that Sampson was a proper contradictor despite agreeing to the declarations. The Court found that Sampson's conduct was misleading and deceptive, and contravened the ACL. The Court granted the ACCC's sought relief, including injunctions against specific misleading representations, corrective advertising, training requirements, and costs.
The Court made several orders against Sampson, including a five-year injunction against making specific misleading representations, a requirement to publish corrective advertisements, mandatory training for Sampson and Goddard Elliott employees, and an obligation to provide the ACCC with a verification affidavit. The Court also ordered Sampson to pay the ACCC's costs in the agreed sum of $30,000. The Court's decision highlights the importance of ensuring that debt collection practices comply with consumer protection laws and the potential consequences for those who engage in misleading or deceptive conduct.
Orders
Orders of the court
Injunctions
2. The Respondent be restrained for a period of five (5) years from the date of this order from making or causing to be made the following representations (each as defined above):
(a) First Urgent Notice A Representation;
(b) Second Urgent Notice A Representation;
(c) Urgent Notice B Representation;
(d) Notice of Impending Proceedings Representation;
(e) First Notice of Intention to Commence Proceedings Representation;
(f) Second Notice of Intention to Commence Proceedings Representation; and
(g) Third Notice of Intention to Commence Proceedings Representation.
Corrective Advertising
3. The Respondent cause to be published, at her expense, within 21 days of the date of this order, a corrective advertisement in the form of Annexure E to this order in the:
(a) Friday edition of each of the:
(i) “Australian Financial Review”; and
(ii) “The Australian”;
(“the Newspapers”) and in the next available edition of the:
(b) Lexis Nexis publication, “Lawyers Weekly”; and
(c) Australian Institute of Credit Management publication “Credit Management in Australia”,
and, further, that the Respondent shall use her best endeavours to ensure that such advertisement shall be”
(d) placed within that part of the Newspapers styled “Legal Affairs”; and
(e) in text which is in a type not less than 10 point.
Training
4. The Respondent will, for a period of three (3) years from the date of this order and only whilst the Respondent continues to practice as a legal practitioner:
(a) receive; and
(b) for so long as the Respondent remains a principal of Goddard Elliott, cause all the employees of Goddard Elliott whose duties could result in them being concerned with conduct that may contravene Chapters 2 or 3 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL)) to receive,
regular (at least once a year) practical training administered by a qualified compliance professional or legal practitioner with expertise in trade practices law, that focusses on Chapters 2 and 3 of the ACL.
5. Upon the completion of any training conducted pursuant to order 4 above the Respondent will, within 14 days, at her own expense provide the Applicant with a statutory declaration confirming the completion of the training conducted in accordance with that order, including the date conducted, and the name and qualifications of the person who conducted the training.
Verification affidavit
6. The Respondent file and serve on the Applicant, within 42 days of the date of this order, an affidavit, sworn by her, verifying that she has carried out the obligations made under the orders of the Court set out in paragraph 3 above, and:
(a) detailing the steps taken in relation to the publication of the corrective advertisements; and
(b) providing a copy of the corrective advertisements.
Other orders
7. A copy of the Reasons for Judgment, with the seal of the Court thereon, be retained in the Court for the purposes of s 83 of the Act.
8. The Respondent pay the Applicant’s costs of the proceeding in the agreed sum of $30,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
There has, however, been some debate as to whether declaratory relief is available in such cases and, if so, on what conditions. Declarations The Court has the power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth). Any declaratory order made in the exercise of this power must be directed to quelling legal controversy between parties. The applicant must have a real interest in obtaining the relief sought: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2. There must also be a proper contradictor: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-8. Each of these requirements is satisfied in the present proceeding. A dispute has existed between the parties as to whether or not Ms Sampson had engaged in contraventions of s 52 of the Act. The ACCC is a public body which had power under the Act to bring enforcement proceedings. Declaratory orders of the kind proposed serve the public interest by making it plain that conduct such as that admitted by Ms Sampson contravenes the Act: see Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 at 333; Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53 at 91. In Forster Gibbs J (with whom McTiernan, Stephen and Mason JJ agreed) adopted Lord Dunedin’s description of a proper contradictor (in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438 at 448) as “one presently existing who has a true interest to oppose the declaration sought”: see at 438. In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382 Perram J added a requirement that the proper contradictor must not only be a party but must argue against the granting of relief: see at [32]. In adding this requirement his Honour considered himself bound by the joint judgment of Keely and Beaumont JJ in BMI Limited v Federated Clerks Union of Australia (1983) 51 ALR 401. More recently, Dodds-Streeton J has held that the true ratio of BMI is much narrower and that, in any event, the decision is distinguishable: see Australian Competition and Consumer Commission v Willesee Healthcare Pty Ltd(No 2) [2011] FCA 752 at [32]-[43]. I respectfully agree with her Honour’s analysis. In BMI the failure of the respondents actively to oppose the making of declarations was but one of a number of factors which led the Court, in the exercise of its discretion, to refuse relief. Forster, in my view, establishes that a person will be a “proper contradictor” provided that he or she has a genuine interest in resisting the grant of relief. Ms Sampson is a proper contradictor notwithstanding her agreement to the making of the proposed declarations. Despite her willingness to compromise her position in the litigation she retained a genuine interest in resisting the granting of the declarations. One of the reasons for requiring that there be a proper contradictor is to ensure that the Court is supplied with a factual foundation for the making of orders. Some judges have expressed reservations about whether this requirement can be satisfied in circumstances where the parties have reached agreement as to the facts and the orders which should be made. These reservations can be traced to the statement of Keely and Beaumont JJ in BMI at 412-3, that declarations “ought not to be made merely on admissions of counsel or by consent, but only if the court is satisfied by evidence.” This statement of principle led Finkelstein J to hold, in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [2009] FCA 960 at [19], that the Court should “not grant a declaration involving a public right in the absence of evidence that supports the declaration.” Statements of agreed facts did not constitute “evidence” for relevant purposes. See also: Australian Competition and Consumer Commission v Cosic Holdings Pty Ltd [2009] FCA 1579; Australian Competition and Consumer Commission v Wilson Parking 1992 Pty Ltd [2009] FCA 1580 (per Barker J).