Commissioner for Consumer Protection v Healy - [2021] WASC 468

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COMMISSIONER FOR CONSUMER PROTECTION -v- HEALY [2021] WASC 468
CORAM:   ARCHER J
HEARD:   5 - 8 OCTOBER 2021
DELIVERED          :   23 DECEMBER 2021
FILE NO/S:   CIV 2066 of 2020
BETWEEN:   COMMISSIONER FOR CONSUMER PROTECTION
Plaintiff
AND
ALWYN ROBERT HEALY
Defendant

Catchwords:

Breach of undertaking - permanent injunction on involvement in domestic air‑conditioning - Australian Consumer Law

Legislation:

Australian Consumer Law, s 218

Result:

Declarations made, permanent injunction granted, compensation orders made

Category: B

Representation:

Counsel:

Plaintiff	:	GD Cobby SC & JLC Rivalland
Defendant	:	In Person

Solicitors:

Plaintiff	:	Department of Mines, Industry Regulation and Safety - Consumer Protection Division (In House Legal Counsel)
Defendant	:	Not Applicable

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

Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513
Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695
Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378
Commissioner for Consumer Protection v Armstrong [2012] WASC 206
Commissioner for Consumer Protection v Armstrong [2012] WASC 206 (S)
Commissioner for Consumer Protection v Healy [2011] WASC 36
Healy v Commissioner for Consumer Protection [2010] WASC 177
Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53
Samsung Electronics Australia Pty Ltd v LG Electronics Australia Pty Ltd (No 2) [2015] FCA 477
Trade Practices Commission v GLO Juice Company Pty Ltd (1987) 73 ALR 407

Table of Contents

Introduction

The Australian Consumer Law

Issues

The evidence

Facts

Background facts

The Third Undertaking

The conduct after the Third Undertaking

The advertisements

Inadvertent breach?

The contacts with the Customers

November 2019
December 2019
January 2020
February 2020
March 2020
April 2020
May 2020
June 2020
August 2020
September 2020
December 2020
January 2021
February 2021

The witnesses

Mrs Surtees

Mr Healy

Particular factual findings

The breaches of the Third Undertaking

Should a declaration be made?

Should a permanent injunction be granted?

Breaches of s 36 of the Australian Consumer Law

Likely to continue to breach?

Conclusion on injunction

Compensation

Mr Woods

Mr and Mrs Gibbons?

Orders

ARCHER J:

Introduction

Mr Healy has been involved in the supply of domestic air conditioners for many years. The Commissioner for Consumer Protection has been involved with Mr Healy for many years.
The Commissioner asserts that Mr Healy breached an undertaking which was to the effect that he would not be involved in any capacity in the retail sale, supply, or installation of air-conditioning systems for domestic use for a period of five years, to expire on 28 July 2020. The Commissioner seeks a declaration that Mr Healy breached the undertaking.
The Commissioner's allegations relate to advertising placed by Mr Healy in 2019 and air-conditioning sales Mr Healy made to four consumers in late 2019 and early 2020: Mrs…

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: [2021] WASC 468
Decision Date

CaseChat Overview and Summary

The Commissioner for Consumer Protection brought proceedings against Mr Healy, alleging that Mr Healy had breached an enforceable undertaking to the effect that he would not be involved in any capacity in the retail sale, supply, or installation of air-conditioning systems for domestic use for a period of five years. The Commissioner also alleged that Mr Healy had breached s 36 of the Australian Consumer Law. The Commissioner sought a declaration that Mr Healy had breached the undertaking, a permanent injunction restraining Mr Healy from having any involvement in the retail sale, supply, or installation of air-conditioning systems for domestic use, and compensation orders. Mr Healy admitted breaching the undertaking in relation to the sales to four consumers, but denied breaching the undertaking in relation to the advertisements. He also denied breaching s 36. The court found that Mr Healy had breached the undertaking in each of the alleged respects. It found that Mr Healy had breached s 36(3) in relation to each of the Customers except Mr Gibbons. It found that Mr Healy had breached s 36(4) in relation to all of them. It found that the declarations should be made and that a permanent injunction should be granted. It found that Mr Healy should pay compensation to two of the Customers.

Orders