Re: ANDREW JAMES O'CONNOR
And: GARY SCOTT STEVENSON
No. G 163 of 1988
FED No. 123
Trade Practices
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY
GENERAL DIVISION
Einfeld J.(1)
CATCHWORDS
Trade Practices - Contempt of Court - breaches of undertakings to Court - incorporation of entrepreneur after undertakings - effectiveness of undertakings not to contravene Act by servants or agents - vicarious liability - agency - corporation as agent for contempt of court purposes - form of charges
Trade Practices Act 1974 53bb, 53c, 64(2A)
HEARING
SYDNEY
#DATE 29:3:1990
Counsel and solicitors for the Prosecutor: Mr P. Hastings instructed by
the Director of Public ProsecutionsCounsel and solicitors for the Defendant : Ms M. Beazley instructed by Collin W. Love and Co
JUDGE1
On May 11 1989 I imposed fines on this defendant totalling $72,000 for false representations and misleading and deceptive conduct in contravention of the Trade Practices Act 1974. The nature and circumstances of the conduct are set out in the reasons for judgment given at that time. It will suffice for present purposes to summarise the essential matters proved there. Until mid 1988, the defendant traded under various business names as a publisher of differently titled magazines, commercially sustained by advertising sold principally by telephone. The defendant's servants or agents sold or attempted to sell advertising space in magazines published by the defendant or his business names by making misleading or false assertions to potential advertisers in order to obtain their consent to advertise and their payment for the advertising. The relevant trading name for this case was Packmore Publicity.
The current proceedings are for determinations and penalties in regard to alleged contempts of Court by the defendant in this connection prior to his trial before me. The contempts are said to arise from breaches of undertakings given by the defendant to Justice Gummow on 19 July 1988 pending the hearing of those earlier contravention proceedings. These undertakings were signed by counsel for the defendant, presumably on instructions, and because they were embraced in consent Short Minutes covering the matters, by counsel for the prosecution as well. The prosecutor here is an officer of the Trade Practices Commission.
The defendant's undertakings were as follows:
1. The Defendant undertakes to the Court that, pending the determination of these proceedings, he, his servants or agents, in trade or commerce, in connection with the publication or possible publication of any material printed or published by or on behalf of the Defendant, will not represent, by means of postal or telephonic services or by means which involve the use of such services, to any other person, firm or corporation that that person, firm or corporation, as the case may be, has agreed to or has authorised the placing of an advertisement in a publication when there has been no such agreement or authorisation.
2. The Defendant undertakes to the Court that, pending the determination of these proceedings, he, his servants or agents, in trade or commerce, in…
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- Case
- [1990] FCA 123
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether the appellant could be held liable for the actions of the incorporated entity, and if the entity could be considered an agent of the appellant for the purposes of establishing contempt of court. Additionally, the Court needed to determine the appropriate form of charges for the alleged breaches.
The Court found that the appellant could indeed be held liable for the actions of the incorporated entity, as it was effectively acting as an agent for the appellant. This conclusion was based on the principle of vicarious liability, where an employer can be held responsible for the actions of their employees or agents. Furthermore, the Court determined that the corporation could be considered an agent for contempt of court purposes, as it was carrying out the appellant's business. The Court also considered the form of charges to be appropriate, as they were based on the specific undertakings given to the Court. Consequently, the Court held that the appellant was in contempt of Court and issued appropriate penalties.
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