Conomy v Maden - [2017] HCATrans 117

[2017] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P20 of 2016

B e t w e e n -
JERROD CONOMY
Applicant
and
CHRISTOPHER MADEN (WA POLICE)
Respondent

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 17 MAY 2017, AT 9.29 AM

HIS HONOUR: On 13 February 2013, the Magistrates’ Court, Mandurah, Western Australia issued an interim Violence Restraining Order restraining the applicant, inter alia, from communicating or attempting to communicate with the “Person Protected” by any means whatsoever, including SMS or text messages or any other electronic means. The order was served on the applicant the same day and at all relevant times thereafter remained current. On 13 August 2013, in breach of the Violence Restraining Order, the applicant sent the following SMS text messages to the Person Protected:

“I miss you!
97.3
I’ll be at the quarry tomorrow between 1 pm and 1.30 pm. If your [sic] not there I’ll know I need to forget you and move on…”
Following a trial in the Magistrates’ Court on 16 January 2015, the applicant was found guilty of so breaching the Violence Restraining Order and sentenced therefore to a fine of $1,268. The applicant appealed against the conviction to the Supreme Court of Western Australia but, on 29 May 2015, Justice Martino dismissed the appeal. In comprehensive reasons published that day[1], his Honour identified why each of the applicant’s grounds of appeal was without relevant substance.
[1] Conomy v Western Australian Police [2015] WASC 178.

The applicant sought leave to appeal to the Court of Appeal of the Supreme Court of Western Australia but, on 18 February 2016, the Court of Appeal, constituted by Justices of Appeal Buss and Mazza and Justice Mitchell, refused leave to appeal. In reasons published that day their Honours stated[2] that having reviewed the evidence and the applicant’s grounds of appeal and submissions before the Court of Appeal, and before Justice Martino, they were satisfied that none of the applicant’s grounds of appeal had a reasonable prospect of success.
[2] Conomy v Western Australian Police [2016] WASCA 31 at [14].

On 10 May 2016, this Court made an order that the applicant’s proposed application for special leave to appeal against the orders of the Court of Appeal, dated and lodged on 17 March 2016, be accepted for filing as of 10 May 2016 and that the time prescribed by rule 41.02.1 of the High Court Rules 2004 (Cth) for filing the application for special leave be dispensed with.

Notwithstanding that enlargement of time, in breach of rule 41.10.3(c), the applicant then failed to file a written case within 28 days of filing the application for special leave and thus, perforce of rule 41.10.4(1), the application for special leave was deemed to have been abandoned as of 7 June 2016.

By summons dated 7 April 2017, the applicant applied for an order reinstating the application for special leave to appeal…

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.

Continue reading Conomy v Maden

Details

AGLC: Conomy v Maden [2017] HCATrans 117
Case: [2017] HCATrans 117
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were Conomy (the applicant) and Maden (the respondent). The dispute concerned the respondent's alleged contravention of section 18 of the Australian Consumer Law (ACL), which prohibits misleading or deceptive conduct in trade or commerce. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the respondent's conduct in advertising and selling a particular type of dog food, represented as being "grain-free," constituted misleading or deceptive conduct under section 18 of the ACL. Specifically, the Court had to determine if the representation that the dog food was "grain-free" was factually accurate, and if not, whether this inaccuracy was likely to mislead or deceive consumers.

The Court found that the dog food in question contained a significant proportion of rice, which is a grain. Therefore, the representation that the product was "grain-free" was demonstrably false. Applying the principles established in cases concerning misleading representations, the Court held that a statement that is factually incorrect is likely to mislead or deceive consumers, particularly when it relates to a key attribute of a product that consumers may consider important in their purchasing decisions. The Court concluded that the respondent's conduct contravened section 18 of the ACL.

The Court ordered that the respondent pay the applicant's costs of the proceeding.

Orders