CPA Australia Ltd v Dunn

Case [2007] FCA 1966

FEDERAL COURT OF AUSTRALIA

CPA Australia Ltd v Dunn [2007] FCA 1966

TRADE PRACTICES LAW — application for injunctive relief pursuant to Trade Practices Act 1974 (Cth) s 80 — applicant sought to restrain respondent from engaging in misleading or deceptive conduct in contravention of Trade Practices Act s 52 — whether respondent’s use of terms “Certified Practising Accountant” and “Certified Public Accountant” misleading or deceptive — principles relevant to determining whether representation misleading or deceptive — whether terms in question have acquired a “secondary meaning” — injunction granted — unnecessary to deal with alternative claims based on Fair Trading Act 1987 (NSW) and tort of passing off

WORDS AND PHRASES — “Certified Practising Accountant”, “Certified Public Accountant”

Fair Trading Act 1987 (NSW) ss 42, 44(f)
Trade Practices Act 1974 (Cth) ss 6(3), 52, 53(c), 53(d), 80

.au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 cited
Australian Society of Accountants v Federation of Australian Accountants Inc (1987) 9 IPR 282; [1987] FCA 298 discussed
Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 cited
Dunn v Australian Society of Certified Practising Accountants (1996) ATPR ¶41-461 referred to
Dunn v Australian Society of Certified Practising Accountants [1996] FCA 1193 referred to
Dunn v Australian Society of Certified Practising Accountants [1998] FCA 1199 referred to
Dunn v Australian Society of Certified Practising Accountants [1999] FCA 651 referred to
Federation of Australian Accountants Inc v Australian Society of Accountants [1988] FCA 101 discussed
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 cited
Mobileworld Communications Pty Ltd v Q & Q Global Enterprise (2003) 61 IPR 98 cited
National Exchange Pty Ltd v ASIC (2004) 49 ACSR 369 cited
Neal v The Queen (1982) 149 CLR 305 referred to
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 cited
S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354 cited
Society of Accountants and Auditors v Goodway and London Association of Accountants Ltd [1907] 1 Ch 489 cited
Taco Company Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 cited
The Society of Accountants in Edinburgh v The Corporation of Accountants Ltd (1893) 20 R 750 cited

CPA AUSTRALIA LTD (ACN 008 392 452) v STEPHEN DUNN
VID 1348 OF 2006

WEINBERG J
12 DECEMBER 2007
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1348 OF 2006

BETWEEN:

CPA AUSTRALIA LTD (ACN 008 392 452)
Applicant

AND:

STEPHEN DUNN
Respondent

JUDGE:

WEINBERG J

DATE OF ORDER:

12 DECEMBER 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The respondent (by himself or his servants or agents or otherwise howsoever) be, and hereby is, restrained from representing, in connexion with the provision, promotion or supply of his professional services, that he is a “Certified Practising Accountant” or a “Certified Public Accountant”.

2.The respondent pay the applicant’s costs.

Note:    Settlement and entry of orders is dealt…

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AGLC
CPA Australia Ltd v Dunn [2007] FCA 1966
Case
[2007] FCA 1966
Decision Date

CaseChat Overview and Summary

The matter before the court was an action by CPA Australia Ltd against Stephen Dunn, a practising accountant who is not a member of CPA Australia. CPA Australia sought an injunction against Mr Dunn from representing that he is a “Certified Practising Accountant”, a “Certified Public Accountant” or a “CPA” in connection with the provision, promotion or supply of his professional services. The court was required to determine whether Mr Dunn’s use of these titles was misleading and deceptive and whether CPA Australia had a proprietary interest in these titles.

The court held that Mr Dunn’s use of the titles “Certified Practising Accountant”, “Certified Public Accountant” or “CPA” was misleading and deceptive conduct, and that CPA Australia had a proprietary interest in these titles. The court found that the public used these titles to refer to members of CPA Australia who had completed a program of study and had ongoing professional development. The court held that Mr Dunn’s use of these titles was likely to cause confusion and mislead the public into thinking that he was a member of CPA Australia and had completed the necessary program of study and professional development. The court also found that CPA Australia had a proprietary interest in these titles as they had been widely adopted since 1983 and had been accorded statutory recognition throughout Australia.

The court made an order that Mr Dunn be restrained from representing that he is a “Certified Practising Accountant” or a “Certified Public Accountant” in connection with the provision, promotion or supply of his professional services. The court also ordered Mr Dunn to pay CPA Australia’s costs.

Orders

Orders of the court

1. The respondent (by himself or his servants or agents or otherwise howsoever) be, and hereby is, restrained from representing, in connexion with the provision, promotion or supply of his professional services, that he is a “Certified Practising Accountant” or a “Certified Public Accountant”.

2. The respondent pay the applicant’s costs.

Background

Background to the litigation

CPA Australia Ltd (“CPA Australia”) is an incorporated body of accountants. It has brought proceedings against Stephen Dunn who is a practising accountant, but not a member of the applicant body. It seeks to restrain Mr Dunn from representing, in connection with the provision, promotion or supply of his professional services, that he is a “Certified Practising Accountant”, a “Certified Public Accountant” or a “CPA”.FACTUAL BACKGROUND There are three recognised bodies of accountants in Australia. The applicant is one. The others are the Institute of Chartered Accountants in Australia, and the National Institute of Accountants. The applicant is by far the largest of these three bodies. It has over 112,000 members, and its officers and staff are based in 18 offices located across Australia, Asia and Europe. The applicant can trace its origins back to the late 19th Century. After a series of name changes, it finally acquired its present designation in 2000. One class of the applicant’s membership is that of “Certified Practising Accountant”. That expression, and its commonly used abbreviation “CPA”, have been widely adopted since at least 1983 to describe those of the applicant’s members who have been recognised as such according to the applicant’s bylaws. In order to qualify for this designation, members are required to have tertiary qualifications in accountancy and to complete a program created for this purpose which includes examinations and continuing professional development. The evidence overwhelmingly points to the fact that the public use by the applicant and its members of the term “Certified Practising Accountant” and its abbreviation “CPA” is extensive and widespread. The applicant has been accorded statutory recognition throughout Australia. For example, it is expressly mentioned, along with the Institute of Chartered Accountants in Australia and the National Institute of Accountants, in various provisions of the Legal Profession Act 2004 (Vic), the Strata Schemes Management Act 1996 (NSW) and the Property Agents and Land Transactions Act 2005 (Tas). Some statutes refer to the applicant and the Institute of Chartered Accountants in Australia only. See for example the Corporations Act 2001 (Cth) s 1282 and the Australian Securities and Investments Commission Act 2001 (Cth) s 203(1). In addition, the applicant is specifically recognised in reference works such as the Penguin Macquarie Dictionary of Economics & Finance. The term “Certified Practising Accountant” or “CPA” is defined as:“A member of the AUSTRALIAN SOCIETY OF ACCOUNTANTS who has completed a minimum number of hours additional study above the Society’s entry requirements and intends to continue to keep abreast of new accounting practices and developments. This new, higher class of accountants was introduced in 1983.” The applicant actively promotes its various designations. It also spends considerable amounts each year on the further education of its members, and on the recruitment of new members.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WEINBERG J

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Ratio Decidendi

Legal Principle Established

Established by: WEINBERG J

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