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Commissioner for Consumer Protection v Akrawy

Commissioner for Consumer Protection v Akrawy

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Case Copied 22 September 2023 50 min read

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   COMMISSIONER FOR CONSUMER PROTECTION -v- AKRAWY [2023] WADC 109
CORAM:   PALMER DCJ
HEARD:   22 AUGUST 2023, WRITTEN SUBMISSIONS 12 SEPTEMBER 2023
DELIVERED          :   22 SEPTEMBER 2023
FILE NO/S:   CIV 654 of 2023
BETWEEN:   COMMISSIONER FOR CONSUMER PROTECTION
Plaintiff
AND
HAVAL AKRAWY
Defendant

Catchwords:

District Court - Jurisdiction - Claim for pecuniary penalty for contravention of Australian Consumer Law - Claims for declaratory relief - Determination of appropriate penalty - Australian Consumer Law - District Court of Western Australia Act 1969 (WA)

Legislation:

Australian Consumer Law, s 224
Competition and Consumer Act 2010 (Cth)
District Court Act 1973 (NSW)
District Court of Western Australia Act 1969 (WA), s 50, s 55
Fair Trading Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)
Trade Practices Act 1974 (Cth)

Result:

Motion for default judgment granted
Declarations made
Pecuniary penalties imposed

Representation:

Counsel:

Plaintiff	:	Mr J L Derby
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Department Of Mines, Industry Regulation And Safety - Legal Services Directorate
Defendant	:	Not applicable

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

Attorney General v Lord Churchill (1841) 10 LJ Ex 314; (1841) 151 ER 997
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) [2002] FCA 559; (2002) 190 ALR 169
Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 3) [2015] FCA 583
Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996; (2019) 374 ALR 776
Australian Competition and Consumer Commission v Chopra [2015] FCA 539
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; (2006) 236 ALR 665
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513
Australian Competition and Consumer Commission v EDirect Pty Ltd (in liq) [2012] FCA 976; (2012) 206 FCR 160
Australian Competition and Consumer Commission v Rural Press Ltd [2001] FCA 1065
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640
Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1
Bass v Permanent Trustee Co Ltd [1999] HCA 9 [47]; (1999) 198 CLR 334
Boschetti v Carr [2002] WASC 211
Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270; (2007) 35 WAR 488
City of Stirling v Dueschen [2011] WASC 126
Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208
Commissioner for Consumer Affairs (SA) v Goros (No 2) [2023] SASC 1
Commissioner for Consumer Protection v Realgold Corporation Pty Ltd [2014] WADC 51; (2014) 86 SR (WA) 16
Commissioner for Consumer Protection v Susilo [2014] WASC 50
Commissioner for Consumer Protection v Unleash Solar Pty Ltd (in Liq)…

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: [2023] WADC 109
Decision Date: 22 SEPTEMBER 2023

CaseChat Overview and Summary

The case of Commissioner for Consumer Protection v Akrawy was brought before the District Court of Western Australia. The Commissioner for Consumer Protection filed a claim against Akrawy, alleging multiple contraventions of the Australian Consumer Law, seeking pecuniary penalties and declaratory relief. The dispute primarily revolves around whether Akrawy breached consumer protection laws by engaging in misleading and deceptive conduct and failing to comply with certain statutory obligations.

The court was tasked with determining whether the Commissioner's claims were within its jurisdictional bounds, specifically focusing on whether the District Court could award pecuniary penalties and issue declarations. Additionally, the court had to consider the appropriate amount of penalty for the alleged contraventions if found in Akrawy's favour. The central legal issues involved the interpretation of the Australian Consumer Law and the court's authority under the District Court of Western Australia Act 1969.

The District Court found that it had the jurisdiction to hear claims for pecuniary penalties and declaratory relief related to breaches of the Australian Consumer Law. The court detailed the statutory framework that empowered it to impose penalties and issue declarations. After evaluating the evidence presented, the court concluded that Akrawy had indeed contravened the Australian Consumer Law and awarded the specified penalties and reliefs as claimed by the Commissioner. The court's reasoning was grounded in the statutory provisions and the precedents set by previous cases interpreting similar legal issues.

The court ordered Akrawy to pay the pecuniary penalties as determined, and issued the declaratory reliefs sought by the Commissioner for Consumer Protection. The final orders mandated compliance with the court's decision and specified the timelines for payment of the penalties.

Orders