COMMISSIONER FOR FAIR TRADING -v- HOLZ & ANOR [2006] WASC 202

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 202
Case No:	CIV:2765/2002	Heard:	23 JUNE 2006
Coram:	TEMPLEMAN J	Delivered:	23/06/06
No of pages:	8	Judgment Part:	1 of 1
Result:	Deliberate and intentional breach
Category:	B
PDF Version

Parties:	COMMISSIONER FOR FAIR TRADING RENEE-PETER HOLZ KATHARINA ISOBELL HOLZ
Catchwords:	Contempt of court Breach of undertaking to court Breach admitted Whether breach deliberate and intentional
Legislation:	Fair Trading Act 1987 (WA), s 14(1)
Case References:	Nil Ainsworth v Hanrahan (1991) 25 NSWLR 155 Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 AttorneyGeneral for New South Wales v Dean (1990) 20 NSWLR 650 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 Castlecity Pty Ltd v New Vintage Nominees Pty Ltd [2002] WASC 2 R v Zhong Wen Huang Wong (1995) 16 WAR 219 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Witham v Holloway (1995) 183 CLR 525

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : COMMISSIONER FOR FAIR TRADING -v- HOLZ & ANOR [2006] WASC 202 CORAM : TEMPLEMAN J HEARD : 23 JUNE 2006 DELIVERED : 23 JUNE 2006 FILE NO/S : CIV 2765 of 2002 MATTER : Application for an injunction under s 74 and s 76 of the Fair Trading Act 1987 (WA) BETWEEN : COMMISSIONER FOR FAIR TRADING

Plaintiff

AND

RENEE-PETER HOLZ

First Defendant

KATHARINA ISOBELL HOLZ

Second Defendant

Catchwords:

Contempt of court - Breach of undertaking to court - Breach admitted - Whether breach deliberate and intentional

Legislation:

Fair Trading Act 1987 (WA), s 14(1)

(Page 2)

Result:

Deliberate and intentional breach

Category: B

Representation:

Counsel:

Plaintiff : Mr A R Beech SC & Mr S L Dworcan

First Defendant : Mr R G S Harrison

Second Defendant : Mr R G S Harrison

Solicitors:

Plaintiff : Department of Consumer & Employment Protection

First Defendant : Tottle Partners

Second Defendant : Tottle Partners

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

Nil

Case(s) also cited:

Ainsworth v Hanrahan (1991) 25 NSWLR 155
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
AttorneyGeneral for New South Wales v Dean (1990) 20 NSWLR 650
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Castlecity Pty Ltd v New Vintage Nominees Pty Ltd [2002] WASC 2
R v Zhong Wen Huang Wong (1995) 16 WAR 219
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Witham v Holloway (1995) 183 CLR 525

(Page 3)

1 TEMPLEMAN J: This is a summons brought by the Commissioner for Fair Trading against Katharina Isobell Holz in which the commissioner seeks to have Mrs Holz committed for breaches of undertakings given to the Court on 17 June 2005 and again in the same terms on 3 August 2005.

2 The background to the matter is that Mrs Holz and her husband…

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: [2006] WASC 202
Decision Date

CaseChat Overview and Summary

The case before the Supreme Court of Western Australia was brought by the Commissioner for Fair Trading against Renee-Peter Holz and Katharina Isobell Holz. The Commissioner alleged that the Holzes engaged in conduct contrary to s 14(1) of the Fair Trading Act 1987 (WA), by misleading members of the public to pay for photographs and promotional services on the Internet, with the promise of obtaining paid employment as photographic models. The Holzes had previously given undertakings to the court to refrain from certain conduct, including representing themselves as 'model consultants' or 'talent scouts', identifying themselves as affiliated with the International Freelance Models Organisation (USA), and representing advertisements for models from other websites as 'job or employment opportunities'. Katharina Holz was alleged to have breached these undertakings by handing out business cards that still contained the prohibited language. The central legal issue was whether Katharina Holz's actions in handing out the business cards were deliberate and intentional, despite her explanations for the breaches.

The Court found that Katharina Holz's explanations for the breaches were not credible. The Court noted that the deletions on the business cards handed out were made with a biro, not the black felt pen that Holz claimed to have used in compliance with the court's undertaking. The Court was also skeptical of Holz's explanation that the cards were mixed up. The Court concluded that Holz was fully aware of the requirements of the undertaking and deliberately chose what to cross out on the cards, knowing what was required of her. The Court accepted that Holz's actions in handing out the cards to Ms Watkins and Ms Hawes were deliberate and intentional.

The Court found Katharina Holz in contempt of court for deliberately and intentionally breaching the court's undertakings. The Court will proceed to determine an appropriate punishment, taking into account submissions and a plea in mitigation, in accordance with the principles applicable to sentencing.

Orders