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Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors

Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

BROAD SPECTRUM TRAINING PTY LTD & ORS v BIDDING BUZZ LIMITED & ORS

[2010] FMCA 932

TRADE PRACTICES – Alleged misleading and deceptive conduct – franchising agreement.

PRACTICE AND PROCEDURE – Application for adjournment pending mediation – mediation provisions of Franchising Code – requirement for Court to consider if mediation may help resolve dispute – factors which may help resolve dispute – whether parties must attend mediation in person – whether Court must advise parties to use mediation – whether proceedings to be adjourned pending mediation – relevant factors for consideration.

PRACTICE AND PROCEDURE – Venue – application to change – mandatory matters for consideration – other relevant matters for consideration.

PRACTICE AND PROCEDURE – Security for costs – factors for consideration.

MEDIATION – Whether mediation may help resolve dispute – whether mediation under provisions of Franchising Code or by Registrar of the Court – whether proceedings to be adjourned pending mediation.

WORDS AND PHRASES – “mediation” – “may” – “help” – “may help” – “must” – “advise” – “must advise” – “range”.

Fair Trading Act 1989 (Queensland), ss. 38, 99, 100
Federal Magistrates Act 1999 (Cth), ss.3(2)(b) and (c), 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 42, 45, 52, 80
Federal Magistrates Court Rules 2001 (Cth), rr.8.01, 14.02, 15.07-15.10, 21.01, 27.01-27.06, Schedule 1
Trade Practices Act 1974 (Cth), ss.51AC, 51AE, 52, 82, 87
Trade Practices (Industry Codes – Franchising) Regulations 1998 (Cth), reg.3(a) and (b), Schedule – Franchising Code of Conduct, Part 4, cll.24, 25, 26, 27, 28, 29, 30, 30A, 31

Abrahams v Qantas Airways Limited (No. 2) (2007) 210 FLR 314; [2007] FMCA 639
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314
Australian Steel Co (Operations) Pty Ltd v Steel Foundations Ltd & Anor (2003) 58 IPR 69; [2003] FCA 374
Biman International Pty Ltd v Amalgamated Security Services Pty Ltd [2008] FCA 919
Director of Public Prosecutions (Vic) & Anor v Drage (1993) 17 MVR 390
Dorrian v Rushlyn Pty Ltd [2010] FMCA 787
Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972
Greenwood v World of Maths Pty Ltd [2005] FMCA 1557
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
Groundwater v Territory Insurance Office (2004) 183 FLR 437; [2004] FMCA 381
Hobson v BWL Pty Ltd & Ors [2010] FMCA 722
Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194
Kosovich v Mancini (1982) 31 SASR 272
National Australia Bank Ltd v Neil (2009) 7 ABC(NS) 357; [2009] FMCA 826
Neil v Reward Property Group Pty Ltd [2008] FMCA 1583

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

PEP Community Services Inc. t/as PEP Community Services v Job Futures Ltd [2008] FCA 1264
Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 2) [2010] FMCA 121
Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3)

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: [2010] FMCA 932
Decision Date

CaseChat Overview and Summary

The case of Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors is an application in a case concerning a franchise agreement between Broad Spectrum Training Pty Ltd, Lloyd Patrick Rice, and Janis Rowell (the applicants) and Bidding Buzz Limited, Matthew Daniel Clarkson, and Amanda Clarkson (the respondents). The applicants allege misleading and deceptive conduct and unconscionable conduct by the respondents, contrary to sections 52 and 51AC of the Trade Practices Act 1974 (Cth). The respondents sought an adjournment of the proceedings pending mediation under the Franchising Code, a change of venue to Brisbane, and security for costs. The applicants opposed these applications.

The Court found that mediation under the Franchising Code may help resolve the dispute, and the parties should be advised to use that process. The Court held that the phrase "must advise" in the Federal Magistrates Act 1999 (Cth) imposes an obligation on the Court to direct the parties to use mediation. The Court considered it desirable to adjourn the proceedings to allow mediation under the Franchising Code to occur. The Court dismissed the application for a change of venue, finding that there was no strong case for transferring the proceedings to Brisbane. Lastly, the Court dismissed the application for security for costs, finding that the respondents had not sufficiently established a case for the applicants to provide security for costs.

The Court granted the application for an adjournment of the proceedings pending mediation under the Franchising Code, dismissed the application for a change of venue, and dismissed the application for security for costs. The Court ordered the proceedings to be adjourned to 9.00am on 28 February 2011 for mention, after mediation under the Franchising Code.

Orders