O'Connor, A.T. v Stevenson, G.S - [1990] FCA 123

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 Prosecutions
Counsel 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…

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: [1990] FCA 123
Decision Date: 29 MARCH 1990

CaseChat Overview and Summary

In the matter of O'Connor, A.T. v Stevenson, G.S, the parties were engaged in a legal dispute before the Federal Court of Australia. The respondent, O'Connor, alleged that the appellant, Stevenson, had breached undertakings given to the Court regarding compliance with the Trade Practices Act. The dispute centred on whether the appellant had contravened these undertakings by incorporating a new entity, which subsequently acted in breach of the Act, and whether the corporation could be held vicariously liable for the contempt of court.

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.

Orders