COMMISSIONER FOR FAIR TRADING -v- HOLZ & ANOR [2005] WASC 202

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 202
Case No:	CIV:2765/2002	Heard:	3 AUGUST 2005
Coram:	LE MIERE J	Delivered:	14/09/05
No of pages:	14	Judgment Part:	1 of 1
Result:	The application for interlocutory injunctions is allowed
Category:	B
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Parties:	COMMISSIONER FOR FAIR TRADING RENEE-PETER HOLZ KATHARINA ISOBELL HOLZ
Catchwords:	Injunction Interlocutory injunction Misleading conduct Section 14(1) Fair Trading Act 1987 (WA) Court's discretion to grant interlocutory injunctions Serious question to be tried
Legislation:	Fair Trading Act 1987 (WA), s 14(1), s 74, s 76, s 82(4)
Case References:	Nil Aaron's Reefs Ltd v Twiss [1896] AC 273 Australian Coarse Grain Pool v Barley Marketing Board (1982) 57 ALJR 425 Bullock v Federated Furnishing Trades Society of Australia (No 1) (1985) 5 FCR 464 City of Botany Bay Council v Jazabas Pty Ltd [2001] NSWSC 94; [2002] ANZ ConvR 300 Glev Pty Ltd & Glev Franchises Pty Ltd v Kentucky Fried Chicken Pty Ltd (1994) ATPR 41-299 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 Henderson v Pioneer Homes Pty Ltd (No 2) (1980) 43 FLR 276 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546 Holz v Lane [2005] WASCA 40 Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 Peter Isaacson Publications Pty Ltd v Nationwide News Pty Ltd (1984) 6 FCR 289 Parkdale Custom Built furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Sterling v Trade Practices Commission (1981) 51 FLR 1 Sykes v Reserve Bank of Australia (1998) 88 FCR 511 Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Ting v Blanche (1993) 118 ALR 543

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : COMMISSIONER FOR FAIR TRADING -v- HOLZ & ANOR [2005] WASC 202 CORAM : LE MIERE J HEARD : 3 AUGUST 2005 DELIVERED : 14 SEPTEMBER 2005 FILE NO/S : CIV 2765 of 2002 MATTER : Application for an injunction under s 74 and 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:

Injunction - Interlocutory injunction - Misleading conduct - Section 14(1) Fair Trading Act 1987 (WA) - Court's discretion to grant interlocutory injunctions - Serious question to be tried

Legislation:

Fair Trading Act 1987 (WA), s 14(1), s 74, s 76, s 82(4)

(Page 2)

Result:

The application for interlocutory injunctions is allowed

Category: B

Representation:

Counsel:

Plaintiff : Mr P B O'Neil

First Defendant : Mr R G S Harrison

Second Defendant : Mr R G S Harrison

Solicitors:

Plaintiff : Consumer & Employment Protection Legal Services Unit

First Defendant : Tottle Partners

Second Defendant : Tottle Partners

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

Nil

Case(s) also cited:

Aaron's Reefs Ltd v Twiss [1896] AC 273
Australian Coarse Grain Pool v…

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: [2005] WASC 202
Decision Date

CaseChat Overview and Summary

The Commissioner for Fair Trading brought an application for interlocutory injunctions against Renee-Peter Holz and Katharina Isobell Holz, who run a business offering photographic and promotional services related to modelling. The Commissioner alleged that the Holzes engaged in conduct misleading aspiring models as to the availability, nature, and terms of employment, in breach of section 14(1) of the Fair Trading Act 1987 (WA). The court was required to decide whether there was a serious question to be tried and whether the balance of convenience favoured granting interlocutory relief.

The court found that the Commissioner had made out a serious question to be tried, as there was a strong case that the Holzes impliedly represented to customers that if they paid for photographic and promotional services there was a realistic chance of obtaining paid modelling work, where such representations were false. The court considered the context and circumstances in which the alleged representations were made and the persons to whom the representations were made. The court also noted that the Holzes had given written undertakings to the Court in relation to certain aspects of the orders sought by the Commissioner.

The court exercised its discretion to grant interlocutory injunctions, taking into account the balance of convenience. The court was satisfied that there was a significant public interest in restraining the Holzes from engaging in such conduct pending the trial of the action. The court granted an interlocutory injunction in the terms of paragraph 1 of the plaintiff's chamber summons, with the letter modified as indicated in the reasons. The court also sought input from the parties as to the precise form of the order and whether orders should be made in terms of paragraphs 2, 3, and 5 of the plaintiff's chamber summons or whether the undertakings given by the defendants on 17 June 2005 should continue.

Orders