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.
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.
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…
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
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
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