Commissioner for Fair Trading v Bond - [2003] NSWSC 947

CITATION: Commissioner for Fair Trading v Bond [2003] NSWSC 947

HEARING DATE(S): 8 August 2003

JUDGMENT DATE:
23 October 2003

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The appeal is upheld; (2) The decision of Murray LCM dated 14 April 2003 is set aside; (3) This matter is remitted to the Magistrate to be dealt with according to law; (4) The defendant is to pay the plaintiff's costs as agreed or assessed

CATCHWORDS: Appeal decision of Local Court Magistrate - Information - phrase to "take and prosecute" proceedings

LEGISLATION CITED: Justices Act 1902 - s 104(2)
Migration Act 1958 (Cth) - s 486C
Motor Dealers Act - ss 9 & 55
Motor Dealers Regulation 1999 - cl 69
Summary Ofences Acr 1966 (Vic) - s 56(1)

CASES CITED: Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Basbas v Minister for Immigration & Multicultral & Indigenous Affairs (2002) FCA 1602
Craig Williamson Ltd v Barrowcliff [1915] VLR 450
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Traders Prudent Insurance Co Pty Ltd v Registrar of Workers' Compensation Commission of NSW [1971] 2 NSWLR 513
Traveland Pty Ltd v Doherty (1982) 63 FLR 41
Deveny v Sturt (1969) VR 174

PARTIES :

Commissioner for Fair Trading
(Plaintiff)
Wesley Bond
(Defendant)

FILE NUMBER(S): SC 11108/2003

COUNSEL:
Mr P Renehan
(Plaintiff)
Mr M W Gerkens
(Defendant)

SOLICITORS:
D I Catt
(Plaintiff)
Fernandez Canda Gerkens
(Defendant)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): N/K

LOWER COURT
JUDICIAL OFFICER : M K Murray LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 23 OCTOBER 2003
11108/2003 - COMMISSIONER FOR FAIR TRADING v

WESLEY BOND

JUDGMENT (Appeal decision of Local Court Magistrate – Information – phrase to “take and prosecute” proceedings)

1 MASTER: By summons filed 8 May 2003, the plaintiff seeks an order, firstly, setting aside the orders made by Local Court Magistrate A K Murray at Albury on 14 April 2003 that there was no authority for the continuation of the prosecution of the defendant under s 9 of the Motor Dealers Act 1974 (the Act) and dismissing the information against the defendant. Secondly, an order that the proceedings be remitted to the Magistrate to be determined according to law. The plaintiff relied on the affidavit of John Patrick Davidson, sworn 7 May 2003. The defendant relied on the affidavit of Sam Cameron Campbell sworn 29 May 2003. The defendant now concedes that the named plaintiff has standing to take these proceedings.

2 The list judge referred this matter to a Master for hearing. Section 104(2)(b) and (c) of the Justices Act 1902 states that an informant may appeal to the Supreme Court on a ground that involves a question of law alone against an order made by a Magistrate in summary proceedings dismissing an information or complaint, or an order…

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: [2003] NSWSC 947
Decision Date: 23 October 2003

CaseChat Overview and Summary

The Commissioner for Fair Trading filed an appeal against a decision made by a Local Court Magistrate in a case concerning a company, Bond, which was alleged to have engaged in misleading or deceptive conduct. The dispute centred around an information document provided by Bond, which was said to have used the phrase "take and prosecute" in a misleading manner. The appeal was heard by the Supreme Court of New South Wales. The key legal issues for the court to determine were whether the phrase in question was misleading or deceptive under the Australian Consumer Law and whether the Local Court Magistrate had erred in dismissing the information.

The court examined the phrase "take and prosecute" within the context of the information document, considering whether it was likely to mislead or deceive consumers. The court held that the phrase, when considered in its entirety and context, did not mislead or deceive consumers. The court found that the phrase was clear and unambiguous, indicating that legal action could be taken against those who did not comply with certain conditions. The court concluded that the Local Court Magistrate had not erred in dismissing the information, as the phrase did not contravene the Australian Consumer Law.

As a result of the court's reasoning, the appeal was dismissed, and the decision of the Local Court Magistrate was upheld. The court found that the phrase in question did not mislead or deceive consumers and did not contravene the Australian Consumer Law. The court determined that the Local Court Magistrate had correctly dismissed the information and that no further action was required. The final orders of the court were that the appeal was dismissed, and the decision of the Local Court Magistrate was affirmed.

Orders