Quinlivan v Australian Competition & Consumer Commission [2004] FCAFC 175
TRADE PRACTICES (Cth) – misleading and deceptive conduct – system of marketing used to sell residential units on Gold Coast – representation as to eight per cent capital growth rate – accessorial liability – whether reversal of onus applies – whether onus on respondent to establish appellant had actual knowledge either that representation misleading or that representor had no reasonable grounds for making it
DUDLEY JAMES QUINLIVAN v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Q211 OF 2003
HEEREY, SUNDBERG and DOWSETT JJ 5 JULY 2004 BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q211 OF 2003
On appeal from a single Judge of the Federal Court of Australia
BETWEEN:
DUDLEY JAMES QUINLIVAN APPELLANT
AND:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION RESPONDENT
JUDGES:
HEEREY, SUNDBERG and DOWSETT JJ
DATE OF ORDER:
5 JULY 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The declaration that in the period from November 1997 to 9 September 1998 the appellant was knowingly concerned in the contraventions of s 52 of the Trade Practices Act1974 (Cth) by Oceana Commercial Pty Ltd and Markfair Pty Ltd and conspired with them and Christopher Russell Bilborough and National Asset Planning Corporation Pty Ltd to effect them be set aside.
3.In lieu of the above declaration the application be dismissed as against the appellant.
4.The order that the respondent pay 60 per cent of the appellant’s costs at first instance be set aside, and in lieu thereof it be ordered that the respondent pay the appellant’s costs at first instance.
5.The respondent pay the appellant’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q211 OF 2003
On appeal from a single Judge of the Federal Court of Australia
BETWEEN:
DUDLEY JAMES QUINLIVAN APPELLANT
AND:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION RESPONDENT
JUDGES:
HEEREY, SUNDBERG and DOWSETT JJ
DATE:
5 JULY 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
THE COURT:
Two appeals arising out of the same set of facts were heard one after the other. The first was Australian Competition and Consumer Commission v Oceana Commercial…
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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AGLC
Quinlivan v Australian Competition and Consumer Commission [2004] FCAFC 175
Case
[2004] FCAFC 175
Decision Date
CaseChat Overview and Summary
In Quinlivan v Australian Competition and Consumer Commission, the appellant, Quinlivan, sought to overturn a declaration made by the Federal Court that he had been knowingly involved in breaches of section 52 of the Trade Practices Act 1974 by companies and individuals associated with him. The ACCC argued that the appellant had conspired with others to engage in misleading or deceptive conduct in the sale of real estate. The appellant challenged the decision on appeal to the High Court.
The legal issues that arose involved the interpretation of section 52 of the Trade Practices Act 1974 and the extent to which the appellant was complicit in the misleading conduct of others. The central issue was whether the evidence supported a finding that the appellant was knowingly involved in the misleading conduct and whether the trial judge had erred in his interpretation of the law. Another key issue was the allocation of costs between the parties, both at first instance and on appeal.
The Court found that there was insufficient evidence to support the trial judge's conclusion that the appellant was knowingly involved in the misleading conduct. The Court held that the appellant's involvement was not sufficient to establish knowledge or complicity in the misleading conduct. The Court also found that the trial judge had erred in his interpretation of the law and that the allocation of costs was unjust. As a result, the appeal was allowed, and the declaration against the appellant was set aside. The Court ordered that the ACCC pay the appellant's costs at first instance and on appeal.
Orders
Orders of the court
1. The appeal be allowed.
2. The declaration that in the period from November 1997 to 9 September 1998 the appellant was knowingly concerned in the contraventions of s 52 of the Trade Practices Act 1974 (Cth) by Oceana Commercial Pty Ltd and Markfair Pty Ltd and conspired with them and Christopher Russell Bilborough and National Asset Planning Corporation Pty Ltd to effect them be set aside.
3. In lieu of the above declaration the application be dismissed as against the appellant.
4. The order that the respondent pay 60 per cent of the appellant’s costs at first instance be set aside, and in lieu thereof it be ordered that the respondent pay the appellant’s costs at first instance.
5. The respondent pay the appellant’s costs of the appeal.