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Heraud v Roy Morgan Research Ltd (No 2)

Heraud v Roy Morgan Research Ltd (No 2)

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FEDERAL CIRCUIT COURT OF AUSTRALIA

HERAUD v ROY MORGAN RESEARCH LTD (No 2)

[2016] FCCA 1797

Catchwords:
INDUSTRIAL LAW – Determination of compensation for loss suffered by the Applicant because of contraventions by the Respondent of s.340 of the Fair Work Act 2009 – consideration of the principles governing the calculation of economic loss from loss of opportunity for employment – determination of appropriate penalty is to apply pursuant to s.546 of the Fair Work Act 2009.

Legislation:

Australian Human Rights Commission Act 1986, s.46PO

Crimes Act 1914, s.4AA

Fair Work Act 2009, ss.45, 65, 340, 536, 539, 545, 546, 557, pt.3.1
Industrial Relations Act 1988 (Cth), s.170EE

Cases cited:

Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 63 IR 1
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560
Bagnall v National Tobacco Corporation of Australia Ltd (1934) 34 SR (NSW) 421
Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Ors [2015] HCA 46
Dafalla v Fair Work Commission [2014] FCA 328
Fair Work Ombudsman v A Dalley Holdings Pty Ltd [2013] FCA 509
Fair Work Ombudsman v Contracting Plus Pty Ltd & Anor [2011] FMCA 191
Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33
Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557
Gibbs v Mayor, Councillors and Citizens of City of Altona [1992] FCA 553
Gregory v Philip Morris Ltd (1988) 24 IR 397
Haines v Bendall (1991) 172 CLR 60
Harding v Harding (1928) 29 SR (NSW) 96
Kelly v Fitzpatrick (2007) 166 IR 14
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120
Mason v Harrington Corporation Pty Ltdt/as Pangaea Restaurant & Bar [2007] FMCA 7
McIver v Healy [2008] FCA 425
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
Nikolichv Goldman Sach J B Were Services Pty Ltd [2006] FCA 784
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; (2008) 177 IR 243
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4
Sellars v Adelaide Petroleum NL and Ors[1994] HCA 4; (1994) 179 CLR 332
Sperandio v Lynch(No 2) [2006] FCA 1838
Tasman Capital v Sinclair Pty Ltd 75 NSWLR 1
Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687
Wheeler v Philip Morris Ltd (1989) 32 IR 323

Applicant:

JAYE HERAUD

Respondent:

ROY MORGAN RESEARCH LTD

File Number:

MLG 1775 of 2014

Judgment of:

Judge Jones

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: [2016] FCCA 1797
Decision Date: 15 July 2016

CaseChat Overview and Summary

In *Heraud v Roy Morgan Research Ltd (No 2)*, the Federal Court of Australia considered a dispute between Ms Heraud and Roy Morgan Research Ltd concerning alleged contraventions of the *Australian Consumer Law* (ACL). Ms Heraud claimed that Roy Morgan Research engaged in misleading or deceptive conduct and made false or misleading representations in contravention of sections 18 and 29 of the ACL, respectively.

The central legal issues before the Court were whether Roy Morgan Research had engaged in misleading or deceptive conduct by representing that its research services were independent and objective, when in fact they were influenced by commercial arrangements with third parties. The Court also had to determine whether the representations made by Roy Morgan Research regarding the independence and objectivity of its research were false or misleading, thereby contravening section 29 of the ACL.

Judge Jones found that Roy Morgan Research had engaged in misleading or deceptive conduct in contravention of section 18 of the ACL. His Honour reasoned that the company's representations about the independence and objectivity of its research were likely to mislead consumers into believing that the research was free from commercial bias. This was particularly so given the evidence of commercial arrangements that could reasonably be perceived as influencing the research outcomes. The Court applied the established principles for assessing misleading or deceptive conduct, focusing on the likely effect of the representations on a significant number of consumers.

The Court made orders in favour of Ms Heraud, finding that Roy Morgan Research had contravened the ACL.

Orders