Macfarlan JA at [1]; Emmett JA at [2]; Gleeson JA at [5]
Decision:
1. Appeal allowed. 2. Set aside orders 1 and 2 made by Robison DCJ on 12 June 2014. 3. In lieu thereof order: (a) judgment for the second defendant against the plaintiff; (b) the plaintiff to pay the second defendant’s costs as agreed or assessed. 4. Respondent to pay the appellant’s costs in this Court. 5. The respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.
Catchwords:
TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (NSW) – false or misleading representations – unconscionable conduct – accessorial liability – whether appellant involved in a contravention – statements made by appellant’s husband – whether appellant knew representations made and of facts which made them false or misleading or unconscionable – appellant lacked requisite knowledge – appellant not involved in a contravention
Cathy Rae Pollock (Appellant) Ricky Eric Hicks (Respondent)
Representation:
Counsel: E G Romaniuk SC with M A Kumar (Appellant) K G Bennett with T T Baw (Respondent)
Solicitors: Farrell Lusher (Appellant) Simpson Law (Respondent)
File Number(s):
2014/197805
Decision under appeal:
Court or Tribunal:
District Court
Jurisdiction:
Civil
Date of Decision:
12 June 2014
Before:
Robison DCJ
File Number(s):
2010/414913
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation…
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
Pollock v Hicks [2015] NSWCA 122
Case
[2015] NSWCA 122
Decision Date
CaseChat Overview and Summary
This case concerned an appeal by Ms Pollock against orders made by the primary judge in favour of Mr Hicks. Mr Hicks had alleged that Ms Pollock was involved in contraventions of the *Trade Practices Act 1974* (Cth) and the *Fair Trading Act 1987* (NSW), specifically concerning misleading or deceptive representations and unconscionable conduct. The central dispute revolved around whether Ms Pollock possessed the requisite knowledge to be held liable as an accessory to the conduct of her husband, Mr Pollock.
The legal issues before the Court of Appeal were whether Ms Pollock was involved in misleading or deceptive conduct contrary to section 42 of the *Fair Trading Act 1987* (NSW), and alternatively, whether she was involved in conduct in breach of that Act. The Court noted that the notice of contention filed by Mr Hicks sought to uphold the primary judge's decision on these grounds, which were analogous to the issues of accessorial liability under the *Trade Practices Act 1974* (Cth).
The Court of Appeal allowed the appeal, setting aside the primary judge's orders. The Court reasoned that to establish accessorial liability for misleading or deceptive representations, it must be proven that the alleged accessory knew that the representations were made and knew the facts that rendered them misleading or deceptive. Similarly, in the context of unconscionable conduct, while the precise knowledge required may differ, the claim of accessorial liability must fail if the fundamental element of knowledge is absent. The Court found no basis to conclude that Ms Pollock knew of the representations made by Mr Pollock to Mr Hicks in 2005, nor that she was involved in any misleading or deceptive conduct.
Consequently, the Court ordered judgment for Ms Pollock against Mr Hicks, with Mr Hicks to pay Ms Pollock's costs. The Court also ordered that Mr Hicks pay Ms Pollock's costs in the Court of Appeal and granted a certificate under the *Suitors’ Fund Act 1951* (NSW) if Ms Pollock qualified.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders 1 and 2 made by Robison DCJ on 12 June 2014.
3. In lieu thereof order:
(a) judgment for the second defendant against the plaintiff;
(b) the plaintiff to pay the second defendant’s costs as agreed or assessed.
4. Respondent to pay the appellant’s costs in this Court.
5. The respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.
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
A similar approach was taken in Keller v LED Technologies Pty Ltd [2010] FCAFC 55; 185 FCR 449 at [336] where Besanko J (with whom Jessup J agreed) said:In a case concerning representations, the essential elements of the contravention are the fact that the representation was made and that, in a case such as the present, it was misleading or deceptive, or likely to mislead or deceive (s 52) or was false (s 53(a) and (c)). To establish accessorial liability it must be established that the relevant person knew the representation was made and the facts which made it misleading or deceptive, or likely to mislead or deceive, or false. It need not be shown that the relevant person actually drew the conclusion that the representation was misleading or deceptive, or likely to mislead or deceive, or was false. [Emphasis added.] In Coggin v Telstar Finance Company (Queensland) Pty Ltd [2006] FCA 191, a case concerning alleged involvement in unconscionable conduct, Heerey J at [73] expressed the view that it was not necessary to show that an alleged accessory properly characterised or recognised the facts constituting the contravention as unconscionable. His Honour noted that the assessment of conduct as unconscionable or not under s 51AC may involve the consideration and weighing of 13 statutory criteria, and an infinite number of other criteria which appear relevant to the Court, and it would be quite unworkable to suppose that there could be no finding of accessorial liability unless the individual, at the time of the contravention, considered the same factors, and gave them the same weight, as did the Court at the subsequent trial. It is unnecessary to express any concluded view on this issue. It was not the subject of argument. Moreover, the difference between the two approaches is not significant here where the claim of accessorial liability must fail at the first hurdle – there was no finding, and there is no basis for finding, that Ms Pollock knew of the representations made by Mr Pollock to Mr Hicks in 2005. By notice of contention, Mr Hicks sought to uphold the primary judge’s decision on two grounds. First that Ms Pollock had engaged in misleading conduct contrary to s 42 of the FTA and secondly, and alternatively, that she was “involved” in conduct in breach of s 42 of the FTA. Counsel for Mr Hicks accepted that the first ground was not available as no case had been pleaded or advanced at trial that Ms Pollock herself had engaged in misleading conduct (AT 16/4/15, 25 at line 47 – 26 at line 4). In relation to the second ground, the notice of contention did no more than raise under State legislation (s 61 of the FTA, which is in similar terms to s 75B of the TPA) the same issue of accessorial liability arising under the Federal legislation. For the reasons given above, there is no basis upon which the decision could be upheld on the ground that Ms Pollock was relevantly involved, within the meaning of s 61 of the FTA, in any misleading or deceptive conduct of Mr Pollock.