CAREY -v- COMMISSIONER FOR CONSUMER PROTECTION [2013] WASCA 195

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 195
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:14/2012	Heard:	9 APRIL 2013
Coram:	MARTIN CJ PULLIN JA NEWNES JA	Delivered:	28/08/13
No of pages:	32	Judgment Part:	1 of 1
Result:	Appeal dismissed Notice of contention dismissed
Category:	B
PDF Version

Parties:	NORMAN PHILLIP CAREY COMMISSIONER FOR CONSUMER PROTECTION
Catchwords:	False or misleading representations Director Real estate agent Whether director could have avoided commission of offence by exercise of reasonable diligence Standard of 'reasonable diligence' under s 81 of the Fair Trading Act 1987 (WA)
Legislation:	Fair Trading Act 1987 (WA), s 12(2)(b), s 12, s 81, s 82 Trade Practices Act 1974 (Cth), s 85
Case References:	Adams v ETA Foods Ltd (1987) 19 FCR 93 Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 Ballard v Sperry Rand Australia Ltd (1975) 6 ALR 696 Brown v Riverstone Meat Co Pty Ltd (1985) 60 ALR 595 Carey v Commissioner for Consumer Protection [2012] WASC 8 Gardam v George Wills & Co Ltd (1988) 82 ALR 415 Payne v Tiwest Pty Ltd [2005] WASC 141 Shafron v Australian Securities & Investments Commission [2012] HCA 18; (2012) 86 ALJR 584 State Pollution Control Commission v Kelly (1991) 5 ACSR 607 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 Woolworths Ltd v Liquor Licensing Board (1998) 144 FLR 409

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CAREY -v- COMMISSIONER FOR CONSUMER PROTECTION [2013] WASCA 195 CORAM : MARTIN CJ

PULLIN JA

NEWNES JA

HEARD : 9 APRIL 2013 DELIVERED : 28 AUGUST 2013 FILE NO/S : CACR 14 of 2012 BETWEEN : NORMAN PHILLIP CAREY

Appellant

AND

COMMISSIONER FOR CONSUMER PROTECTION

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURRAY J

Citation : CAREY -v- COMMISSIONER FOR CONSUMER PROTECTION [2012] WASC 8

File No : SJA 1024 of 2011

Catchwords:

False or misleading representations - Director - Real estate agent - Whether director could have avoided commission of offence by exercise of reasonable diligence - Standard of 'reasonable diligence' under s 81 of the Fair Trading Act 1987 (WA)

Legislation:

Fair Trading Act 1987 (WA), s 12(2)(b), s 12, s 81, s 82

Trade Practices Act 1974 (Cth), s 85

Result:

Appeal dismissed

Notice of contention dismissed

Category: B

Representation:

Counsel:

Appellant : Mr M M Mony De Kerloy

Respondent : Mr W B Zichy-Woinarsky QC & Mr M G S Crowley

Solicitors:

Appellant : Mony de Kerloy Barristers and Solicitors

Respondent : Department of Commerce

Case(s) referred to in judgment(s):

Adams v ETA Foods Ltd (1987) 19 FCR 93
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Ballard v Sperry Rand Australia Ltd (1975) 6 ALR 696
Brown v Riverstone…

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: [2013] WASCA 195
Decision Date: 28 AUGUST 2013

CaseChat Overview and Summary

The case of Carey v Commissioner for Consumer Protection involved a dispute regarding false or misleading representations made by a real estate agent. The Director, acting under the Fair Trading Act 1987 (WA), brought an action against the agent for allegedly breaching s 81 of the Act. The court had to determine whether the director could have avoided committing the offence through the exercise of reasonable diligence, and if so, what standard of'reasonable diligence' applied.

The primary legal issue was whether the director could be held liable for the false or misleading representations made by the real estate agent, and if so, what level of care and attention was required to avoid such liability. The court examined the relevant statutory provisions and considered the appropriate standard of diligence that should be applied to a director in this context.

In reaching its decision, the court held that the director could have avoided committing the offence by exercising reasonable diligence. The court found that the standard of'reasonable diligence' required under s 81 of the Act was not a stringent one, but rather a reasonable standard of care and attention. The court emphasised that the director's role and responsibilities should be taken into account when determining the appropriate standard of diligence.

The appeal was dismissed, and the notice of contention was also dismissed. The decision confirmed that directors of companies can be held liable for false or misleading representations made by their agents, but only if they fail to exercise a reasonable standard of diligence in monitoring and managing their business activities.

Orders

Orders of the court

Appeal dismissed

Notice of contention dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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