Legal Research
Cases
Campbell (Office of Fair Trading) v Williams

Campbell (Office of Fair Trading) v Williams

Case [2015] QDC 297 2 December 2015

Type to search within this case.

DISTRICT COURT OF QUEENSLAND

CITATION:

Campbell (Office of Fair Trading) v Williams [2015] QDC 297

PARTIES:

Annie Elizabeth Campbell ( Office of Fair Trading) (Appellant)

v

Douglas Michael Williams

(Respondent)

FILE NO/S:

1001 of 2015

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Brisbane

DELIVERED ON:

2 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2015

JUDGE:

Shanahan DCJ

ORDER:

Appeal Dismissed

CATCHWORDS:

FAIR TRADING – CONSUMER LAW – where the respondent, a sole director of a company, was charged with failing to supply goods to customers despite taking part or full payment – where the appellant served a number of notices pursuant to s 90 Fair Trading Act 1989 (Qld) requiring information to a number of non-party entities – where the results of those notices furnished the appellant’s case at trial against the respondent – where the respondent admitted the allegations but invoked the operation of s 96(2) Fair Trading Act 1989 (Qld) as a defence against the action due to the incriminating information provided by the notices.

STATUTORY INTERPRETATION – ACTS OF PARLIAMENT – LEGISLATIVE INTENT – STATUTORY CONSTRUCTION – where s 96(1) Fair Trading Act 1989 (Qld) holds a director vicariously liable for the actions of an offending body corporate – where s 96(2) Fair Trading Act 1989 (Qld) purports to provide a defence to a director where incriminating information is obtained under s 90 Fair Trading Act 1989 (Qld) – whether the learned Magistrate had erred as a matter of law by interpreting s 96(2) Fair Trading Act 1989 (Qld) as providing the defendant with a complete defence.

Acts Interpretation Act 1954 (Qld)

Competition and Consumer Act 2010 (Cth)

Fair Trading Act 1989 (Qld)

Fair Trading Amendment Act 1997 (Qld)

Justices Act 1886 (Qld)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378

CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384

Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477

Jemena Asset Management Pty Ltd v Coinvest Ltd (2011) 244 CLR 508

Lacey v Attorney-General (Queensland) (2011) 242 CLR 573

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 555

R v Lenahan [2009] QCA 187

Ravenscroft v Nominal Defendant [2008] 2 Qd R 32;

Salomon v A. Salomon and Company Limited [1897] AC 22

Sevmere Pty Ltd v Cairns Regional Council [2010] 2 Qd R 276

Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40

Zheng v CAI (2009) 239 CLR 446

COUNSEL:

Mr C Cater for the Appellant

Mr A.M. Nelson for the Respondent

SOLICITORS:

Crown Law for the Appellant

Conradie and Associates for the Respondent

This is an appeal pursuant to s 222 Justices Act 1886 from an acquittal in the Magistrates Court in relation to a number of charges laid under the Fair Trading Act 1989 (FTA) incorporating the…

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 Campbell (Office of Fair Trading) v Williams

Details

AGLC: Campbell (Office of Fair Trading) v Williams [2015] QDC 297
Case: [2015] QDC 297
Decision Date: 2 December 2015

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) was asked to consider an appeal by the Office of Fair Trading against a decision made by a Magistrate. The respondent, Williams, was the sole director of a company that had been charged with failing to supply goods to customers despite receiving full or partial payment. Williams admitted the charges but argued that the incriminating information obtained through notices served under the Fair Trading Act 1989 (Qld) should not be admissible as it was obtained improperly. The key legal issue was whether section 96(2) of the Fair Trading Act provided Williams with an absolute defence against the charges.

The Court began by examining the legislative intent behind section 96 of the Fair Trading Act. It noted that section 96(1) imposed vicarious liability on directors for the actions of an offending body corporate. Section 96(2) provided a defence to a director if incriminating information was obtained under section 90. The Court considered whether section 96(2) provided an absolute defence or merely a partial defence. The Court found that the Magistrate had erred in interpreting section 96(2) as providing an absolute defence, which meant that the incriminating information obtained through the notices was still admissible against Williams.

The Court held that the Magistrate had misinterpreted the legislative intent behind section 96(2). Rather than providing an absolute defence, section 96(2) provided a partial defence, which meant that the incriminating information obtained through the notices could still be used against Williams in the proceedings. The Court concluded that the Magistrate had erred in law by finding that section 96(2) provided an absolute defence, and therefore, the appeal was dismissed. The Court found that the Magistrate's decision should be set aside, and the matter should be remitted back to QCAT for reconsideration.

Orders

Orders of the court

Appeal Dismissed

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.

Actions

Citations

Campbell (Office of Fair Trading) v Williams [2015] QDC 297

Cases Citing This Decision

No citing cases yet.

Cases Cited

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2015] HCA 52
Citation 1 (Para 1)

…; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [41]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25] and [70]. The respondent submits that if the words of the legislation are clear, there is no need to refer to extrinsic material.…
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Citation 2 (Para 1)

…et Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at [50]; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [41]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25] and [70]. The respondent submits that if the words of the legislation are cl…
Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33
Citation 3 (Para 1)

…ly, the legal meaning corresponds with the grammatically meaning. Such an approach was indorsed in Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at [50]; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [41]; Certain Lloyd’s Underwriters v…
Lacey v Attorney-General (Qld) [2011] HCA 10
Citation 4

…Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Jemena Asset Management Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 Lacey v Attorney-General (Queensland) (2011) 242 CLR 573 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 555 R v Lenahan [2009] QCA 187 Ravenscroft v Nominal Defendant [2008] 2 Qd R 32; Salomon v…
Jemena Asset Management Pty Ltd v Coinvest Limited [2009] FCAFC 176
Citation 5

…n Football Club Limited (1997) 187 CLR 384 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Jemena Asset Management Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 Lacey v Attorney-General (Queensland) (2011) 242 CLR 573 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 555 R v Lenahan [2009] QCA 187 Rav…
Zheng v CAI [2009] HCA 52
Citation 6 (Para 5)

…The appellant submits that the interpretation of s 96(2) should be guided by a purposive construction of the statute ( Zheng v CAI (2009) 239 CLR 446; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384).…
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Citation 7 (Para 7)

…The appellant contends that such an approach is also consistent with Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]; Lacey v Attorney General (Qld) (2011) 242 CLR 573 at [43].…
R v Lenahan [2009] QCA 187
Citation 8 (Para 1)

…nusual in that it circumvented established law that a director was not so liable ( Salomon v A. Salomon and Company Limited [1897] AC 22; R v Lenahan [2009] QCA 187). By the introduction of s 96(2) in the 1997 Amendment Act, The Legislature clearly intended to introduce a further protection from that vicarious li…
Chanel Limited v Kim [2007] FCA 2076
Citation 9

…4 CLR 508 Lacey v Attorney-General (Queensland) (2011) 242 CLR 573 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 555 R v Lenahan [2009] QCA 187 Ravenscroft v Nominal Defendant [2008] 2 Qd R 32; Salomon v A. Salomon and Company Limited [1897] AC 22 Sevmere Pty Ltd v Cairns Regional Council [2…
Stevenson v Yasso [2006] QCA 40
Citation 10

…mpany Limited [1897] AC 22 Sevmere Pty Ltd v Cairns Regional Council [2010] 2 Qd R 276 Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40 Zheng v CAI (2009) 239 CLR 446…
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 53
Citation 11

…Jemena Asset Management Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 Lacey v Attorney-General (Queensland) (2011) 242 CLR 573 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 555 R v Lenahan [2009] QCA 187 Ravenscroft v Nominal Defendant [2008] 2 Qd R 32; Salomon v A. Salomon and Company Limited [1897] AC 22 Sevmere Pty Ltd v Cairns Regiona…
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
Citation 12

…ute of Technical and Further Education v Barclay (2012) 248 CLR 500 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Jemena Asset Management Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 Lacey v Attorney…
Environment Protection Authority v Caltex Refining Co Pty Limited [1992] HCATrans 354
Citation 13 (Para 9)

…n and the law that the privilege against incrimination does not apply to corporations ( Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477). To extend its application to notices served on other bodies would frustrate the purpose of the Act in protecting consumers.…

Legislation Cited

Acts Interpretation Act 1954 (Qld)
1 mention (from Para 3)
Competition and Consumer Act 2010 (Cth)
1 mention (from Para 1)
Fair Trading Act 1989 (Qld)
1 mention (from Para 1)
Fair Trading Amendment Act 1997 (Qld)
1 mention (from Para 1)
Justices Act 1886 (Qld)
1 mention (from Para 1)

CITATION:	Campbell (Office of Fair Trading) v Williams [2015] QDC 297
PARTIES:	Annie Elizabeth Campbell ( Office of Fair Trading) (Appellant) v Douglas Michael Williams (Respondent)
FILE NO/S:	1001 of 2015
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court Brisbane
DELIVERED ON:	2 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	4 September 2015
JUDGE:	Shanahan DCJ
ORDER:	Appeal Dismissed
CATCHWORDS:	FAIR TRADING – CONSUMER LAW – where the respondent, a sole director of a company, was charged with failing to supply goods to customers despite taking part or full payment – where the appellant served a number of notices pursuant to s 90 Fair Trading Act 1989 (Qld) requiring information to a number of non-party entities – where the results of those notices furnished the appellant’s case at trial against the respondent – where the respondent admitted the allegations but invoked the operation of s 96(2) Fair Trading Act 1989 (Qld) as a defence against the action due to the incriminating information provided by the notices. STATUTORY INTERPRETATION – ACTS OF PARLIAMENT – LEGISLATIVE INTENT – STATUTORY CONSTRUCTION – where s 96(1) Fair Trading Act 1989 (Qld) holds a director vicariously liable for the actions of an offending body corporate – where s 96(2) Fair Trading Act 1989 (Qld) purports to provide a defence to a director where incriminating information is obtained under s 90 Fair Trading Act 1989 (Qld) – whether the learned Magistrate had erred as a matter of law by interpreting s 96(2) Fair Trading Act 1989 (Qld) as providing the defendant with a complete defence. Acts Interpretation Act 1954 (Qld) Competition and Consumer Act 2010 (Cth) Fair Trading Act 1989 (Qld) Fair Trading Amendment Act 1997 (Qld) Justices Act 1886 (Qld) Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Jemena Asset Management Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 Lacey v Attorney-General (Queensland) (2011) 242 CLR 573 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 555 R v Lenahan [2009] QCA 187 Ravenscroft v Nominal Defendant [2008] 2 Qd R 32; Salomon v A. Salomon and Company Limited [1897] AC 22 Sevmere Pty Ltd v Cairns Regional Council [2010] 2 Qd R 276 Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40 Zheng v CAI (2009) 239 CLR 446