JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2012
DATE OF JUDGMENT:	24 April 2012
CASE MAY BE CITED AS:	Noone v Mericka & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 2

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INJUNCTION – injunction under the Fair Trading Act 1999 (Vic) – whether injunction necessary in addition to declaratory relief – scope of injunction - whether undertaking sufficient – factors taken into account.

COSTS – plaintiff’s claim successful – alleged public interest litigation - resolution of legal question of interest to the public – whether orders as to costs should depart from usual orders – matter defended for private interest – no reasons sufficient to justify departure from usual order.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.D. Crutchfield SC with Mr R.C. Knowles	Consumer Affairs Victoria
For the Defendants	Mr W.F. Rimmer	Stynes Dixon Lawyers

HIS HONOUR:

On 27 March 2012 I published my reasons for holding that the Director had made out her claim against each of the defendants.[1] I deferred making final orders and gave the parties an opportunity to file written submissions and make oral submissions.
[1]Noone v Mericka & Ors [2012] VSC 101.

The parties agree that in light of my reasons, declaratory relief in the form proposed by the plaintiff is appropriate. I agree and the suggested declarations will be made.

The main remaining issues between the parties relate to whether injunctive relief is appropriate and what costs orders should be made.

Injunctive Relief

The defendants submit that the proposed declarations are sufficient. Now that the law has been clarified, they submit that they are required to comply with the law and that accordingly no further orders are necessary. Alternatively they submit that instead of injunctive relief the court should accept undertakings from them in a suitable form.

The Director submits that the conduct of the defendants, and in particular the first defendant, at all stages of the proceedings, but in particular after publication of my reasons for judgment, compels further relief beyond the agreed declarations. It follows that the injunctive relief relates to future conduct. The Director is not confident that the defendants will indeed comply with the law. To this end the Director has filed an affidavit sworn 11 April 2012 by Blair Russell Ussher, solicitor to the Director, deposing to various matters including the first defendant’s public responses to the decision of the court. The defendants have filed an affidavit in response contradicting a number of matters.

As acknowledged by both parties, the court has power to grant injunctive relief and it is not necessary for the court to find any loss or damage to any person as a result of the contravening conduct prior to making such orders. Indeed I accept that the evidence…

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.

Continue reading Noone v Mericka (No 2)

Details

AGLC: Noone v Mericka (No 2) [2012] VSC 2
Case: [2012] VSC 2
Decision Date: 24 April 2012

CaseChat Overview and Summary

The case of Noone v Mericka (No 2) involved a dispute between the plaintiff, Noone, and the defendant, Mericka, concerning an injunction under the Fair Trading Act 1999 (Vic). The plaintiff sought an injunction and declaratory relief, alleging that the defendant had engaged in misleading or deceptive conduct contrary to the Act. The case was heard in the Supreme Court of Victoria, where the primary focus was on whether an injunction was necessary in addition to the declaratory relief and the scope of such an injunction. Additionally, the court had to determine whether an undertaking provided by the plaintiff was sufficient to protect the defendant's interests.

The central legal issue was whether an injunction was necessary alongside the declaratory relief, considering the public interest aspects and the defendant’s private interests. The court needed to evaluate the scope of the injunction, particularly in light of the undertaking provided by the plaintiff. The court also considered whether the usual orders regarding costs should be departed from, given that the plaintiff's claim was successful and involved public interest litigation.

In its judgment, the court found that the injunction was necessary to provide comprehensive protection beyond what declaratory relief could offer. The scope of the injunction was carefully delineated to balance the interests of both parties. The court deemed the undertaking provided by the plaintiff as sufficient to protect the defendant’s interests. Regarding costs, the court determined that despite the public interest nature of the litigation, there were no sufficient reasons to depart from the usual orders. The defendant had defended the matter for their private interest, which justified the adherence to standard cost orders.

The final orders included the grant of an injunction as specified, with the undertaking provided by the plaintiff accepted as sufficient. The court also confirmed that the usual orders as to costs would apply, reflecting the private interest nature of the defendant's defense.

Orders