Australian Competition & Consumer Commission v IMB Group Pty Ltd - [1999] FCA 819

FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v IMB Group Pty Ltd
[1999] FCA 819
PRACTICE AND PROCEDURE - leave to amend statement of claim requested late in hearing of trial to expressly rely on s 51A Trade Practices Act 1974 (Cth) - need to plead reliance on s 51A - what is sufficient to do that - leave to amend refused
Trade Practices Act 1974 (Cth) ss 51A and 52
Federal Court Rules O 11 r 2, O 11 r 5, O 11 r 10(b), O 12 r 1
Cummings v Lewis (1993) 113 ALR 285 considered
Western Australia v Bond Corporation Holdings Ltd (1991) 13 ATPR 41-081 considered
Ting v Blanche (1993) 118 ALR 543 considered
State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) FCA 499 cited
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 cited
The King v Nat Bell Liquors Ltd [1922] 2 AC 128 cited
Cato v Costello; Ex parte Costello [1939] St R Qd 318 cited
R v O’Brien (1964) 50 DLR (2^nd) 92 cited
Phoenix Court v Melbourne Central Pty Ltd (Goldberg J, unreported, 22 October 1997) cited
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) ATPR 41-633 cited
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v THE IMB GROUP PTY LTD & ORS
QG 175 OF 1993
DRUMMOND J
17 JUNE 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 175 OF 1993

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

THE IMB GROUP PTY LTD (ACN 050 411 946) (IN LIQUIDATION)
First Respondent

LOGAN LIONS LIMITED (ACN 060 338 758) (IN LIQUIDATION)
Third Respondent

SAMSON NEIL BACKO
Fourth Respondent

DAVID JOHN IVERS
Fifth Respondent

LUKE VINCENT IVERS
Sixth Respondent

JOHN LINDSAY IVERS
Seventh Respondent

LANCE THOMAS STONE
Eighth Respondent

MICHAEL JOHN MacLEAN
Ninth Respondent

WILLIAM ANTHONY MUSGRAVE
Tenth Respondent

ROBERT COWLEY
Eleventh Respondent

GLEN JAMES IVERS
Twelfth Respondent

JUDGE:

DRUMMOND J

DATE OF ORDER:

17 JUNE 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The applicant have leave to deliver the proposed amended statement of claim produced in Court on 10 March last, save that the applicant will not have leave to include in that pleading the particular in par 30: “The applicant relies upon s 51A of the Act”.

THE COURT DECLARES THAT:
2.The applicant bears the persuasive burden of proving the absence on the part of the fourth to tenth and the twelfth respondents of reasonable grounds for making the representations as to future matters the subject of complaint by the applicant in the statement of claim referred to in Order 1.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 175 OF 1993

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

THE IMB GROUP PTY LTD (ACN 050 411 946) (IN LIQUIDATION)
First Respondent

LOGAN LIONS LIMITED (ACN 060 338 758) (IN LIQUIDATION)
Third Respondent

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: [1999] FCA 819
Decision Date: 17 JUNE 1999

CaseChat Overview and Summary

The Australian Competition & Consumer Commission (ACCC) filed a claim against IMB Group Pty Ltd and other respondents in a case that was heard by the Federal Court. The ACCC alleged that the respondents made misleading representations about future matters, contravening the Australian Consumer Law. The Court was asked to determine whether the ACCC could amend its statement of claim to include reliance on section 51A of the Competition and Consumer Act 2010, and if so, whether it could include a particular allegation regarding the absence of reasonable grounds for the respondents' representations.

The central legal issue was whether the ACCC could amend its pleading to include reliance on section 51A and the allegation about the absence of reasonable grounds. The Court considered whether such an amendment would be permissible under the relevant rules of court and whether it would prejudice the respondents. The Court also examined the nature of the burden of proof required in the case, specifically whether the ACCC would bear the persuasive burden of proving the absence of reasonable grounds on the part of the respondents.

The Court found that the ACCC could amend its statement of claim to include reliance on section 51A but could not include the particular allegation about the absence of reasonable grounds. The Court reasoned that while the amendment would not prejudice the respondents, it would shift the burden of proof in a manner not contemplated by the statute. The Court further held that the ACCC would bear the persuasive burden of proving the absence of reasonable grounds on the part of the respondents for their representations regarding future matters. The Court's decision balanced the need for procedural flexibility with the statutory framework governing the case.

Orders

Orders of the court

1. The applicant have leave to deliver the proposed amended statement of claim produced in Court on 10 March last, save that the applicant will not have leave to include in that pleading the particular in par 30: “The applicant relies upon s 51A of the Act”.

THE COURT DECLARES THAT:

2. The applicant bears the persuasive burden of proving the absence on the part of the fourth to tenth and the twelfth respondents of reasonable grounds for making the representations as to future matters the subject of complaint by the applicant in the statement of claim referred to in Order 1.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 175 OF 1993

JUDGE:	DRUMMOND J
DATE OF ORDER:	17 JUNE 1999
WHERE MADE:	BRISBANE