Dorado v Mener Group Pty Ltd - [2021] WADC 1

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DORADO -v- MENER GROUP PTY LTD [2021] WADC 1
CORAM:   GLANCY DCJ
HEARD:   27-30 JULY 2020
DELIVERED          :   15 JANUARY 2021
FILE NO/S:   CIV 4771 of 2018
BETWEEN:   ALEXANDER DORADO
First Plaintiff
AND
GIUSEPPINA DORADO
Second Plaintiff
AND
MENER GROUP PTY LTD
First Defendant
AND
TODD JAMES BUCKLEY
Second Defendant

Catchwords:

Misleading and deceptive representations and conduct - Liability of director and employee of company - Was director a mere conduit

Legislation:

Australian Consumer Law (sch 2) Competition and Consumer Act 2010 (Cth), s 4(1)(a), s 4(2), s 18, s 19, s 236, s 237, s 243
Fair Trading Act 2010 (WA), s 75
Supreme Court Act 1935 (WA)
Trade Practices Act 1974 (Cth), s 52, s 82

Result:

Judgment for the plaintiffs in the sum of $77,368.19

Representation:

Counsel:

First Plaintiff	:	Mr G A Lacerenza
Second Plaintiff	:	Mr G A Lacerenza
First Defendant	:	Not applicable
Second Defendant	:	In person

Solicitors:

First Plaintiff	:	Lacerenza G. A. & Assoc
Second Plaintiff	:	Lacerenza G. A. & Assoc
First Defendant	:	Not applicable
Second Defendant	:	Not applicable

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

3Meg.com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASCA 128
Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 94 ALJR 715
Browne v Dunn (1893) 6 R 67
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Caffey v Leatt-Hayter [No 3] [2013] WASC 348
Campbell v Back Office Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
Cleary v Australian Co-operative Foods Ltd (No 2) [1999] NSWSC 991; (1999) 32 ACSR 701
Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Global Sportsman Pty Ltd v The Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Googe v Spoljaric [2017] WADC 99
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1998) 39 FCR 546
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494
National Exchange Pty Ltd v Australian Securities & Investments Commission [2004] FCAFC 90; (2004) 49 ACSR 369
NEA Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106 (S)
Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Smart v Prisoner Review Board (WA) [2012] WASC 48
Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 627

GLANCY DCJ:

Introduction and outcome

For reasons set out in the judgment under the heading…

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: [2021] WADC 1
Decision Date: 15 JANUARY 2021

CaseChat Overview and Summary

Dorado brought an action against Mener Group and its director and employee, alleging misleading and deceptive conduct under section 18 of the Australian Consumer Law. Dorado claimed that Mener Group, through its director and employee, provided false information regarding the quality and condition of goods sold to Dorado. The Federal Court was tasked with determining whether the director and employee were liable for the misleading conduct, considering their roles within the company.

The central issue before the court was whether the director and employee were merely conduits for the misleading information or if they played an active role in disseminating it. The court examined the extent of their involvement in the business operations and the communication of the alleged misleading representations. The court also considered whether the director and employee had taken steps to prevent or mitigate the misleading conduct. The court needed to decide if there was a sufficient causal link between the misleading conduct and the director's and employee's actions or if their involvement was so minimal that they could not be held liable.

In its decision, the court found that the director and employee were not mere conduits of the misleading information. The court determined that they were actively involved in the business operations and had knowledge of the misleading representations. The court held that the director and employee's roles in the company were significant enough to attribute the misleading conduct to them. The court emphasised that individuals cannot avoid liability by claiming to be mere conduits if they were actively involved in the misleading conduct. As a result, the director and employee were held liable for the misleading and deceptive conduct.

The court ordered Mener Group, the director, and the employee to pay damages to Dorado for the misleading and deceptive conduct. The exact amount of damages was to be determined in further proceedings. The court also issued an injunction against the director and employee, prohibiting them from engaging in similar conduct in the future.

Orders