Duxbury v Pierce

[2009] FCAFC 164

FEDERAL COURT OF AUSTRALIA

Duxbury v Pierce [2009] FCAFC 164

TRADE PRACTICES – misleading or deceptive conduct – where respondent failed to participate in trial below – whether uncontroverted evidence establishes liability for representations

Held: appeal allowed

Trade Practices Act 1974 (Cth) s 52

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 cited
Dare v Pulham (1982) 148 CLR 658 cited

BRUCE LYALL DUXBURY v ROGER BRIAN PIERCE

VID 359 of 2009

MOORE, MIDDLETON & GORDON JJ

17 NOVEMBER 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 359 of 2009
GENERAL DIVISION

ON APPEAL FROM THE FEDERAL COURT

BETWEEN:	BRUCE LYALL DUXBURY Appellant
AND:	ROGER BRIAN PIERCE Respondent

JUDGES:	MOORE, MIDDLETON & GORDON JJ
DATE OF ORDER:	17 NOVEMBER 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The Appeal be allowed.

2.The matter be remitted to the Trial Judge for further consideration.

3.The Respondent pay the Appellant’s costs of the appeal, to be taxed in default of agreement. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 359 of 2009
GENERAL DIVISION

ON APPEAL FROM THE FEDERAL COURT

BETWEEN:	BRUCE LYALL DUXBURY Appellant
AND:	ROGER BRIAN PIERCE Respondent

JUDGES:	MOORE, MIDDLETON & GORDON JJ
DATE:	17 NOVEMBER 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1. EVP Recruitment Pty Ltd (“EVP Recruitment”) conducted recruitment businesses and promoted and sold joint venture recruitment businesses across Australia and New Zealand.  At the relevant time, the respondent, Roger Brian Pierce (“Mr Pierce”) was a director of EVP Recruitment and its parent company, EVP Holdings Pty Ltd (“EVP Holdings”). 

2. In September 2003, the appellant, Bruce Lyall Duxbury (“Mr Duxbury”), responded to an internet advertisement published on headed “Managing Partner for new Queensland Office” and read documents published on Mr Duxbury ultimately invested in a joint venture recruitment business promoted and sold by EVP Recruitment (“the EVP Windsor Business”). 

3. Mr Duxbury alleged that in the course of the negotiations to invest in the EVP Windsor Business, he relied upon representations made by, amongst others, Mr Pierce or in which Mr Pierce was directly or indirectly knowingly involved.  Those representations were set out in paragraph 11 of the Amended Statement of Claim (“the Initial Representations”).  Further, Mr Duxbury alleged that in the course of conducting the EVP Windsor Business, he relied upon further representations made by, amongst others, Mr Pierce or in which Mr Pierce was directly or indirectly knowingly involved.  Those representations were set out in paragraph 15 of the Amended Statement of Claim (“the Further Representations”). 

4. On 21 April 2009, the trial judge granted Mr Duxbury a declaration that Mr Pierce had aided, abetted, counselled or procured contraventions of s 52 of the Trade Practices Act 1974 (Cth) (“the Trade Practices Act”) by EVP Holdings and / or EVP Recruitment (“the Companies”) as a…