PROCEDURE – whether statement of claim should be struck out – whether pleaded and particularised facts support a contravention of s 52 Trade Practices Act 1974 (Cth).
TRADE PRACTICES – whether misleading and deceptive conduct – whether likely to mislead or deceive – whether alleged conduct was in trade or commerce – whether should have regard to overall commercial purpose and activities done incidental to making of documentary – whether should only have regard to aspect or element of activities or transactions that bears trading or commercial nature – whether correct to focus on conduct in question or range of activities engaged in – where no commercial relationship between parties.
TACCARA JAYNE HEARN by her next friend Margaret Anne Hearn and KELLIE ANNE ALLARDICE v DENNIS O’ROURKE AND CAMERAWORK PTY LTD (ACN 002 277 296)
Q 166 OF 2002
FINN, DOWSETT & JACOBSON JJ 2 MAY 2003 BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q166 OF 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
TACCARA JAYNE HEARN by her next friend Margaret Anne Hearn FIRST APPLICANT
KELLIE ANNE ALLARDICE SECOND APPLICANT
AND:
DENNIS O'ROURKE FIRST RESPONDENT
CAMERAWORK PTY LTD (ACN 002 277 296) SECOND RESPONDENT
JUDGES:
FINN, DOWSETT & JACOBSON JJ
DATE OF ORDER:
2 MAY 2003
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The appeal be allowed with costs.
2. The matter be remitted to the primary judge for determination.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q166 OF 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
TACCARA JAYNE HEARN by her next friend Margaret Anne Hearn FIRST APPLICANT
KELLIE ANNE ALLARDICE SECOND APPLICANT
AND:
DENNIS O'ROURKE FIRST RESPONDENT
CAMERAWORK PTY LTD (ACN 002 277 296) SECOND RESPONDENT
JUDGES:
FINN, DOWSETT & JACOBSON JJ
DATE:
2 MAY 2003
PLACE:
BRISBANE
REASONS FOR JUDGMENT
FINN & JACOBSON JJ:
Leave to appeal in this proceeding ought be granted for the reasons given by Dowsett J. The appeal itself raised a narrow and largely factual question which is to be resolved in light of the decision of the High Court in
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
AGLC
Hearn v O'Rourke [2003] FCAFC 78
Case
[2003] FCAFC 78
Decision Date
CaseChat Overview and Summary
In Hearn v O’Rourke, the applicants, who were under the age of consent at the time of events, brought claims against the respondents for misleading and deceptive conduct. The respondents, one a film director and the other a production company, had made a documentary film in which the applicants were interviewed. The applicants alleged that the director had misrepresented the purpose of the interview and engaged in conduct that was in breach of the Trade Practices Act. The primary judge dismissed the applicants’ claims on a motion to have their Statement of Claim struck out as not disclosing any cause of action, finding that the alleged conduct did not occur "in trade or commerce". The applicants sought leave to appeal this decision.
The central legal issue in this appeal was whether the alleged misleading and deceptive conduct by the respondents occurred "in trade or commerce" within the meaning of s 52 of the Trade Practices Act. The primary judge held that it did not, but the appeal court found that the issue was a factual one that should be resolved in light of the High Court's decision in Concrete Constructions (NSW) Pty Ltd v Nelson. The appeal court found that the factual matrix of the case was sufficient to warrant a determination by the primary judge, and that the primary judge had erred in striking out the applicants' claims.
The appeal court held that the appeal should be allowed, and the matter remitted to the primary judge for determination. The court found that the respondents' conduct occurred in the course of the production of a film for profit, and that the documentary film contained interviews with the applicants. The court held that the primary judge had erred in striking out the applicants' claims without allowing them an opportunity to adduce evidence that might have assisted in resolving the issue of whether the conduct occurred "in trade or commerce". The appeal court granted leave to appeal and ordered that the matter be remitted to the primary judge for determination.
The court’s orders were that the appeal be allowed with costs, and that the matter be remitted to the primary judge for determination. The court found that the primary judge had erred in striking out the applicants' claims without allowing them an opportunity to adduce evidence that might have assisted in resolving the issue of whether the conduct occurred "in trade or commerce". The court held that the issue was a factual one that should be resolved in light of the High Court's decision in Concrete Constructions (NSW) Pty Ltd v Nelson, and that the primary judge had not properly considered the relevant facts in making her decision. The court therefore granted leave to appeal and remitted the matter to the primary judge for determination.
Orders
Orders of the court
1. The appeal be allowed with costs.
2. The matter be remitted to the primary judge for determination.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Leave to appeal in this proceeding ought be granted for the reasons given by Dowsett J. The appeal itself raised a narrow and largely factual question which is to be resolved in light of the decision of the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594. The claims made by the applicants allege that conduct engaged in by the two respondents was in contravention of s 52 of the Trade Practices Act 1974 (Cth). The question raised in this appeal (and which was decided by the primary judge adversely to the applicants on a motion to have their Statement of Claim struck out as not disclosing any cause of action), is whether the conduct complained of was engaged in “in trade or commerce”.The Primary Judge’s Decision It is sufficient for present purposes simply to restate her Honour’s description of the factual setting as pleaded:“The facts relevant to a consideration of this question are not in dispute. The first respondent was a film director and the second respondent a company, of which the first respondent was a director, which produced films and documentaries for profit. The respondents made the film “Cunnamulla” in 1998 and 1999. Each of the first and second applicants took part in the film and were interviewed by the first respondent without an adult present. The conduct complained of is alleged to have occurred in bringing that about. The applicants were then aged 13 and 15 years respectively. It is alleged that the first respondent falsely represented to the first applicant and her mother that he wished to document her involvement in a contest called the “Miss Maid Contest”. To the second applicant’s father the respondent is alleged to have said that he wished to obtain her views on whether there was racism in the town. These statements were made in the context of a proposed documentary he said would be made about life in Cunnamulla. The first respondent is alleged to have sought an interview with the applicants alone. He is alleged to have given assurances that he would not speak to them about matters other than those identified. Permission to film the girls and interview them was given by the mother of the first applicant and the father of the second applicant on the basis of these assurances. It is alleged that they were deceived. The representations were false. The first respondent intended to speak to each of the applicants about the first applicant’s sexual activities, as he in fact did.” It should be said as well that several matters appeared to have been accepted at the hearing of the strike out motion, most notably, (i) that the first respondent’s conduct in the matter occurred in the course of the second respondent’s production of a film for profit; and (ii) that not only was a documentary film made and released but that it contained interviews with both applicants. However, no additional facts were identified at the hearing which, if adduced at trial, might have been of assistance in resolving whether the conduct alleged was “in trade or commerce”. Finally, the respondents in their Defence have admitted that a parent of each of the applicants consented to their respective child being interviewed by the first respondent.