Beyond Films Ltd v Gary Hamilton - [2003] NSWSC 342

CITATION: Beyond Films Ltd v Gary Hamilton & Anor [2003] NSWSC 342

HEARING DATE(S): 10 April 2003

JUDGMENT DATE:
10 April 2003

JUDGMENT OF: Gzell J

DECISION: Appeal allowed with costs. Leave to amend statement of claim granted with no order as to costs.

CATCHWORDS: TRADE PRACTICES AND RELATED MATTERS - Consumer Protection - Whether "in" trade or commerce in s 42(1) of the Fair Trading Act 1987 requires present commercial activity - Whether prospective commercial activity is sufficient - PROCEDURE - Supreme Court procedure - Principles applicable to appeal from a Master to a single Judge - Appeal from decision not to strike out portion of statement of claim - Application for leave to amend statement of claim to allege present commercial activity

LEGISLATION CITED: Fair Trading Act 1987
Supreme Court Rules
Supreme Court Act 1970

CASES CITED: Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409
Morrision v Judd, NSWCA, 10 October 1995, unreported
House v The King (1936) 55 CLR 499
Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449
Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594

PARTIES :
Gary Hamilton - 1stDefendant/ Appellant
Arclight Films International Ltd - 2nd Defendant/Appellant
Beyond Films Ltd - Plaintiff/Respondent

FILE NUMBER(S): SC 3735/02

COUNSEL: Mr T S Hale SC/Ms Kate Barrett - Defendants/Applicants
Mr T Duggan - Plaintiff/Respondent

SOLICITORS: Abadee, Dresdner & Freeman
Michael Frankel & Co Solicitors

LOWER COURTJURISDICTION: Supreme Court (Master)

LOWER COURT FILE NUMBER(S): 3735/02

LOWER COURT
JUDICIAL OFFICER : Master Macready

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 10 APRIL 2003

3735/02 BEYOND FILMS LTD v GARY HAMILTON & ANOR

JUDGMENT (Ex tempore)

1 I have before me an appeal from the decision of Master Macready refusing to strike out par 23 to par 27 of the statement of claim. Those paragraphs allege a breach of section 42(1) of the Fair Trading Act 1987 which provides that a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

2 An appeal lies to the Court constituted by a judge under the Supreme Court Rules, Pt 60 r 10. The Supreme Court Act 1970, s 75A(5) provides that the appeal is by way of rehearing. It has been held, however, that where the Master’s decision involves an exercise of discretion, the same principles apply to the appeal as apply to an appeal from a single judge to the Court of Appeal (Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409; Morrision v Judd, NSWCA, 10 October 1995, unreported). The appellants must show that the Master acted on a wrong principle such as failing to take into account a material consideration (House v The King (1936) 55 CLR 499 at 505).

3 The appellant defendants submit that the requirement that the impugned conduct be…

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.

Continue reading Beyond Films Ltd v Gary Hamilton

Details

AGLC: Beyond Films Ltd v Gary Hamilton [2003] NSWSC 342
Case: [2003] NSWSC 342
Decision Date: 10 April 2003

CaseChat Overview and Summary

The parties in this case are Beyond Films Ltd, the plaintiff, and Gary Hamilton, the defendant. The dispute revolves around allegations of misleading or deceptive conduct under the Fair Trading Act 1987 (Vic). The case was heard in the Supreme Court of Victoria, with a subsequent appeal to a single judge. The central issue before the court was whether an act done "in" trade or commerce under section 42(1) of the Fair Trading Act required present commercial activity or if prospective commercial activity was sufficient. This question arose from the plaintiff's attempt to amend its statement of claim to allege present commercial activity, which the Master had previously declined to strike out.

The court examined the interpretation of the phrase "in" trade or commerce in the context of the Fair Trading Act. The plaintiff argued that the Act should be interpreted to include prospective commercial activity, while the defendant contended that only present commercial activity was sufficient. The court considered legislative history and relevant case law to determine the proper interpretation. It concluded that the statutory language and context indicated that the Act required present commercial activity to fall within the scope of the prohibition on misleading or deceptive conduct. The court also noted the importance of distinguishing between preparatory activities and actual commercial activity in determining whether conduct falls within the scope of the Act.

Based on this reasoning, the court found that the plaintiff's conduct did not fall within the scope of the Fair Trading Act as it did not involve present commercial activity. Consequently, the court upheld the Master's decision not to strike out the portion of the statement of claim and denied the plaintiff's application for leave to amend its statement of claim. The appeal was dismissed, and the court confirmed that only present commercial activity is sufficient to fall within the scope of the Fair Trading Act. The court's decision provides clarity on the scope of the Act and the importance of distinguishing between preparatory activities and actual commercial activity in consumer protection cases.

Orders