COMMISSIONER FOR CONSUMER PROTECTION -v- HEALY [2011] WASC 36

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 36
Published:	14/02/2011
Case No:	CIV:2472/2009	Heard:	6 OCTOBER 2010 & 1 NOVEMBER 2010
Coram:	KENNETH MARTIN J	Delivered:	6/10/10
No of pages:	19	Judgment Part:	1 of 1
Result:	20 days imprisonment suspended for 12 months
Category:	B
PDF Version

Parties:	COMMISSIONER FOR CONSUMER PROTECTION ALWYN ROBERT HEALY
Catchwords:	Contempt Undertakings received by court Six transgressions proven Penalty Late refund of consumers' deposits by contemnor
Legislation:	Nil
Case References:	Chief Executive Officer of the Department of the Environment and Conservation v Szulc [2010] WASC 195 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 Wood v Staunton (1996) 86 A Crim R 183

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : COMMISSIONER FOR CONSUMER PROTECTION -v- HEALY [2011] WASC 36 CORAM : KENNETH MARTIN J HEARD : 6 OCTOBER 2010 & 1 NOVEMBER 2010 DELIVERED : 6 OCTOBER 2010 & 1 NOVEMBER 2010 PUBLISHED : 14 FEBRUARY 2011 FILE NO/S : CIV 2472 of 2009 BETWEEN : COMMISSIONER FOR CONSUMER PROTECTION

Plaintiff

AND

ALWYN ROBERT HEALY

Defendant

Catchwords:

Contempt - Undertakings received by court - Six transgressions proven - Penalty - Late refund of consumers' deposits by contemnor

Legislation:

Nil

Result:

20 days imprisonment suspended for 12 months

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr G D Cobby

Defendant : In person

Solicitors:

Plaintiff : Jason L Derby

Defendant : In person

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

Chief Executive Officer of the Department of the Environment and Conservation v Szulc [2010] WASC 195
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150
Wood v Staunton (1996) 86 A Crim R 183

(Page 3)

KENNETH MARTIN J

(This judgment was delivered extemporaneously on 6 October 2010 and has been edited from the transcript.)

1 The (plaintiff) Commissioner's amended chamber summons raises six alleged transgressions as contempts in respect of undertakings offered by the defendant Mr Healy and received by the Court, on 19 November 2009. The terms of Mr Healy's undertakings are set out in par 1 of the chamber summons under a heading, Particulars of Contempt.

2 Five components of Mr Healy's undertakings, given at court through Mr Healy's counsel were, first (1.1) to restrain Mr Healy from representing to any person that any residential air-conditioning system that he, or any entity subject to his control, proposes to supply to that person, or to any other person nominated by that person, has both cooling and heating functions, when the system will not possess both those functions at the time that the system is installed.

3 The second undertaking (1.2), was that within two working days of entering into a contract for the supply of a system to any person (referred to as a customer), Mr Healy would order and pay for all parts necessary for the supply and installation of a complete system.

4 The third…

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: [2011] WASC 36
Decision Date: 14 FEBRUARY 2011

CaseChat Overview and Summary

In this matter, the Commissioner for Consumer Protection brought an action against Healy, a contractor, in the Consumer Affairs Division of the Magistrates' Court of Queensland. The Commissioner sought enforcement of six undertakings made by Healy, alleging that Healy had failed to comply with these obligations, including making late refunds of consumers' deposits. The court was required to determine whether Healy had indeed breached the undertakings and, if so, what appropriate penalty should be imposed. The Commissioner argued that Healy's conduct constituted contempt of court, given the seriousness of the transgressions and the impact on consumers.

The primary legal issue the court had to address was whether Healy's actions constituted contempt of court, specifically in relation to the six proven transgressions. The court had to consider whether the breaches of the undertakings were significant enough to warrant a penalty, and if so, what form that penalty should take. The court examined the nature and extent of the transgressions, including the delay in refunding consumers' deposits, and the implications of these actions on consumer protection and the integrity of the court's processes.

The court found that Healy had indeed breached the six undertakings, which included failing to refund consumers' deposits within the stipulated time frames. The court found that these breaches were serious and warranted a penalty. It acknowledged the impact of the delays on consumers and the importance of enforcing compliance with court undertakings. The court imposed a penalty of 20 days imprisonment, suspended for 12 months, to reflect the seriousness of the contempt while also taking into account mitigating factors. The court's decision emphasised the need for contractors to adhere to their obligations and the court's commitment to protecting consumers.

Orders

Orders of the court

20 days imprisonment suspended for 12 months

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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