Houghton v Arms

Case [2006] HCA 59


HIGH COURT OF AUSTRALIA

GLEESON CJ
GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

JAMES HOUGHTON AND ANOR    APPELLANTS

AND

SIMON ARMS  RESPONDENT

Houghton v Arms
[2006] HCA 59
13 December 2006
M107/2006

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

D J O'Callaghan SC with M D Rush for the appellants (instructed by Deacons)

P J Riordan SC with D W Bennett for the respondent (instructed by Middletons)

D R Williams QC with S Bhojani for the Director of Consumer Affairs of Victoria appearing as amicus (instructed by Department of Justice)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Houghton v Arms

Trade practices − Misleading or deceptive conduct in trade or commerce – Where appellant employees of a corporation made misleading or deceptive statements to respondent in the course of their employment − Where the corporation was sued for contravention of s 52 of the Trade Practices Act 1974 (Cth) ("the Commonwealth Act") by reason of the conduct of the appellants − Where the appellants were also sued for contravention of s 9 of the Fair Trading Act 1999 (Vic) ("the State Act") − Whether each appellant was a "person" for the purposes of s 9 of the State Act − Whether conduct of each appellant was "in trade or commerce" for the purposes of s 9 of the State Act.

Statutes − Statutory construction − Construction of s 9 of the State Act − Where the Commonwealth Act and the State Act have concurrent and overlapping operation − Where the Commonwealth Act had, but the State Act did not have, provisions imposing accessorial liability upon persons "involved" in a contravention − Where the Commonwealth Act had, but the State Act did not have, provisions deeming conduct engaged in on behalf of a corporation to have been engaged in by the corporation − Whether s 9 of the State Act is to be construed so as not to apply to persons who were not engaged in trade or commerce on their own account.

Words and phrases – "in trade or commerce".

Trade Practices Act 1974 (Cth), ss 52, 75, 75B, 82, 84.
Fair Trading Act 1999 (Vic), ss 9, 159.

GLEESON CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ.

The litigation

  1. The action giving rise to this appeal was instituted by the present respondent (Mr Arms) in the Federal Court of Australia.  He sought declaratory relief and damages in respect of alleged misleading and deceptive conduct.  It was admitted on the pleadings that each of the first appellant (Mr Houghton) and the second appellant (Mr Student) was an employee of WSA Online Limited ("WSA").  WSA was the first respondent to the action but was subject to a deed of company arrangement.

  2. At the trial before Ryan J, Mr Arms recovered judgment against WSA in the sum of $58,331, but his claims against Mr Houghton and Mr Student…

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Details
AGLC
Houghton v Arms [2006] HCA 59
Case
[2006] HCA 59
Decision Date

CaseChat Overview and Summary

The appeal concerned the application of state and federal consumer protection legislation to the conduct of employees of a corporation. The appellants, employees of a company, were alleged to have made misleading or deceptive statements to the respondent. The respondent had sued the corporation under section 52 of the *Trade Practices Act 1974* (Cth) for contravention by reason of the appellants' conduct. The respondent also sued the appellants personally under section 9 of the *Fair Trading Act 1999* (Vic).

The High Court of Australia was required to determine two principal legal issues. First, whether each appellant constituted a "person" for the purposes of section 9 of the *Fair Trading Act 1999* (Vic). Second, whether the conduct of each appellant could be considered to have occurred "in trade or commerce" within the meaning of section 9 of the State Act, particularly in light of the concurrent operation of the *Trade Practices Act 1974* (Cth). The court also considered whether the State Act should be construed to exclude application to individuals whose conduct was engaged in on behalf of a corporation, given the differences in accessorial liability provisions between the two Acts.

The High Court held that the conduct of the appellants contravened section 9 of the *Fair Trading Act 1999* (Vic). The court reasoned that the appellants were persons engaged in trade or commerce, and their conduct fell within the scope of the State Act. The court dismissed the appellants' challenge to the Full Court's decision.

The appeal was dismissed, and the appellants were ordered to pay the costs of the respondent.

Orders

Orders of the court

The attack on the outcome in the Full Court fails. The appeal should be dismissed and the appellants pay the costs of the respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ
In the present case, whether or not the acts of the appellants were also the acts in law of WSA (a matter discussed above), they were the conduct of persons which contravened the prohibition in s 9 of the FT Act.Conclusions and orders The attack on the outcome in the Full Court fails. The appeal should be dismissed and the appellants pay the costs of the respondent.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

Full text does not contain this section.