Commissioner for Fair Trading v Taylor

[2005] NSWSC 97

CITATION:	Commissioner for Fair Trading v Taylor [2005] NSWSC 97
HEARING DATE(S):	22 February 2005
JUDGMENT DATE :	24 February 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	The plaintiff is to prepare short minutes and is granted liberty to apply.

CATCHWORDS:	Misrepresentation - publications of biographical details - defendant fails to supply publications or refund payments - declaratory and injunctive relief.
LEGISLATION CITED:	Fair Trading Act 1987, s42
PARTIES:	Commissioner for Fair Trading (Plaintiff) Alister Taylor (aka Rupert Alister Halls Taylor) (Defendant)
FILE NUMBER(S):	SC 12155/03
COUNSEL:	Mr P Renehan (Plaintiff) No appearance (Defendant)
SOLICITORS:	D I Catt (Plaintiff) N/A (Defendant)

LOWER COURT JURISDICTION:

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

24 February 2005

12155/03 Commissioner for Fair Trading v Alister Taylor (aka Rupert Alister Halls Taylor)

JUDGMENT

1 Master: These proceedings were commenced by summons filed on 21 August 2003. The summons seeks certain declarations and other orders. The plaintiff presently presses for the relief sought in paragraphs 2, 3, 4, 6, 7 and 8 thereof.

2 The defendant resides in New Zealand. Largely, his business activities have been conducted from that country. Since June 2004, he has not been legally represented and he has not personally appeared before the court.

3 In or about 1996, the plaintiff began receiving complaints concerning the business activities of the defendant. These activities involved dealing in publications containing short biographical entries relating to persons who had received Australian awards or honours, under the name “Australian Roll of Honour” (AROH). At one stage, the business was conducted by a company registered in New South Wales under the name of Roll of Honour Publications Pty Limited. The company was deregistered on 11 September 1998. A business name (The Australian Roll of Honour) was registered in this state on 22 September 1999. It lapsed on 22 September 2002.

4 Annexure A to the summons lists the publications with which the defendant has been concerned.

5 In submissions made by counsel for the plaintiff, what has been done by the defendant was described as follows:-

… … …
The way in which the defendant generally conducted his business was that he would send letters on AROH letterhead to persons who had, for example, been the recipient of awards by way of the Australia Day Honours list for a particular year. The letter would congratulate the recipient on his or her recent award and indicate that a book was to be published setting out biographical entries for all recipients of such awards over a particular period. The letter indicated that the recipient’s entry was to appear in the book and requested the recipient to check his or her biographical details contained in a document sent with the letter and to correct or expand that entry if desired.
The letter also sought from the recipient an order for the book. If the recipient wished to order the book, payment was sought immediately, usually at a “special subscriber discount price”. The recipient was requested to send the biographical details, together with any order and payment to a Sydney address, initially “Level 29, The Chifley Tower, 2 Chifley Square, Sydney, NSW, 2000” and, from at least 1999, “PO Box N30, Grosvenor Place, Sydney, NSW, 2000”.
Such letters (or brochures sent with the letters) sometimes contained specific expected publication dates. Others did not contain any specific representation regarding a publication date but sought an urgent response upon the basis that the book was being “finalised”, was “about to be published” or words to a similar effect.
During a period from at least 1996 until 2002, many persons throughout Australia responded to these letters and ordered the defendant’s publications. As noted above, payment was sought at the time of ordering the publication. Prices for the publications ranged from between $145 and $185 for a standard edition and up to $595 for special leather editions.
… … …

6 The complaints relate to four proposed publications (AROH – They Carried the Flag, AROH – National Honours and Awards 1975-2000, Australians Honoured by Queen and Country 1952-2002 and Australian Who’s Who). Orders placed in respect of these proposed publications have not been met. The court has been informed that the last of his publications which was supplied to a customer was AROH – Honoured by the Queen 1952-1998. It was supplied in 1999.

7 The proceedings have had a long history. The summons first came before the court on 13 October 2003. Largely, the plaintiff’s case was ready for hearing by late November 2003. Thereafter, the proceedings were listed and adjourned on a number of occasions. The defendant was given further time to put on his evidence. On 15 December 2003, he gave an undertaking to the court. It was an undertaking not to sell, offer for sale, distribute or otherwise market or cause to be marketed certain publications. The undertaking was expressed to operate until 31 May 2004.

8 On 12 March 2004, a special fixture was allocated by the court (for two days commencing 9 June 2004). On 4 June 2004, the defendant’s then solicitor filed a notice of intention to cease acting.

9 On 9 June 2004, the proceedings were listed before Sperling J. Whilst the defendant did not himself appear, he earlier sent a facsimile to the court which in effect sought an adjournment of the proceedings. Sperling J granted the opposed application. He did so with a cautionary observation inter alia (“The defendant cannot expect these proceedings to be postponed indefinitely”). The proceedings were then listed for callover on 16 July 2004. Shortly before the callover, the defendant sought that the proceedings be stood down “for six months”. This application was supported by a medical report from Dr A B McCallum. He had diagnosed a major depressive disorder and prognosticated that a six month adjournment was warranted.

10 On 16 July 2004, the proceedings were placed in a call up list to be held on 13 August 2004. The previous undertaking given by the defendant was extended to 1 March 2005.

11 Prior to the call up, the defendant sought a further adjournment. Bell J allocated a special fixture for a hearing to commence on 22 February 2005.

12 The special fixture was listed before me on 22 February 2005. Prior to the hearing date, the defendant sent a further communication to the court. It contained what might be construed as a request for the matter to be specially fixed either at the end of May or the beginning of June. The request was founded on allegations concerning his health. The communication was accompanied by a further report from Dr McCallum. The report contains, inter alia, a submission “that pending legal hearings would serve as a perpetuating stressor” and states that despite considerable progress in his recovery, the defendant “would presently be less able to fully acquit himself in such proceedings”.

13 Despite his absence, the Court treated the contents of the defendant’s documentation as an application for further adjournment. Such an application was opposed by the plaintiff. The hearing of this application took in the order of at least half an hour.

14 After carefully considering the relevant material, I came to the conclusion that the hearing should proceed. I was not satisfied that the defendant was unable to attend court and defend the proceedings. He had been given considerable latitude in the past and I was not satisfied that his intention was otherwise than to frustrate a resolution of the proceedings. It seemed to me that justice was best served if the proceedings were expeditiously disposed of.

15 The proceedings were then heard in the absence of the defendant. Such a result was inevitable, in the event that his application was rejected. Once again, he made a decision not to appear before the Court.

16 The Court has before it a number of affidavits. There are affidavits from investigators employed by the plaintiff (M S Turton and Mr Cornish). An affidavit was sworn by Glynis Heydon (Ms Heydon’s business had been engaged by the defendant to handle his mail). There are affidavits from a sample of unsatisfied customers (Bailey, Blackmore, Bolten, Bullen, Crompton, Greig, Moir and Wilson).

17 The affidavits identify unsuccessful attempts made to obtain the publications.

18 The affidavits from the unsatisfied customers also identify the publication ordered, the date and amount paid by the customer and the various representations made by the defendant to each of them concerning delivery date. The earliest order was placed in March 2000.

19 None of the customers have received the publication ordered by them. It is not said by the defendant that he will be supplying any of the publications. It is not said by him that he will be refunding any monies. As I understand their position, each of the customers has reached the stage where they have abandoned all hope of receiving what was ordered and want their money back.

20 It is thought that total complaints may be in excess of 500 and that in excess of $120,000.00 has been paid by customers in respect of unsupplied publications.

21 The claim for relief is founded on, inter alia, ss42, 53 and 65 of the Fair Trading Act 1987 (the Act). For present purposes, it is unnecessary to dwell on that part of the case which relies on s53. It seems to me that it suffices if relief is granted pursuant to s42. I have in mind a declaration in the nature of what is contemplated by paragraph 3 of the summons.

22 The defendant has made numerous representations as to delivery dates. All were false. Either they were known to be false or recklessly made not caring whether they were true or false. Certain of them were made to induce purchase of publications. I am satisfied that the misrepresentations were intended to mislead or deceive and that they did so.

23 Accordingly, I find that the defendant has, in trade or commerce, engaged in conduct that was misleading or deceptive and that there has been contravention of s42 of the Act.

24 The existing undertaking is shortly to expire. No further undertaking has been offered. In the circumstances of this case, I am satisfied that the plaintiff is entitled to an order restraining the activities of the defendant in New South Wales as contemplated by paragraph 6 of the summons.

25 Further, I am satisfied that the plaintiff is entitled to the relief sought in paragraphs 7 and 8 of the summons.

26 The plaintiff is to prepare short minutes and is granted liberty to apply.

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