The Commissioner for Consumer Protection v Armstrong
[2012] WASC 206 (S)
•22 AUGUST 2012
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| CITATION | : | THE COMMISSIONER FOR CONSUMER PROTECTION -v- ARMSTRONG [2012] WASC 206 (S) |
| CORAM | : BEECH J | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
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AND
FAY MARIE ARMSTRONG
Defendant
Catchwords:
Consumer protection - Enforceable undertaking given to regulator - Findings made of breaches - Whether declarations should be made
Declarations - Whether declarations should be made of finding of breaches of undertaking
Legislation:
Nil
Result:
| Declarations and other orders made Category: B | [2012] WASC 206 (S) |
| Representation: | |
| Counsel: |
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Department of Commerce |
| Defendant | : | No appearance |
Case(s) referred to in judgment(s):
Australian Competition and Consumer Commission v Construction, Forestry,
Mining and Energy Union [2006] FCA 1730
Australian Competition and Consumer Commission v Marksun Australia Pty
Ltd [2011] FCA 695
Australian Competition and Consumer Commission v MSY Technology Pty Ltd
[2012] FCAFC 56; (2012) 201 FCR 378
Australian Competition and Consumer Commission v Yellow Page Marketing
BV (No 2) [2011] FCA 352; (2011) 195 FCR 1
BMW Australia Ltd v Australian Competition and Consumer Commission
[2004] FCAFC 167
Rural Press Ltd v Australian Competition and Consumer Commission [2003]
HCA 75; (2003) 216 CLR 53
The Commissioner for Consumer Protection v Armstrong [2012] WASC 206
Warramunda Village Inc v Pryde [2001] FCA 61; (2001) 105 FCR 437
| BEECH J | [2012] WASC 206 (S) |
BEECH J:
Introduction
1 In reasons delivered on 21 June 2012 I found that Ms Armstrong had
breached the enforceable undertaking she gave to the Commissioner, and that an injunction should be granted to substantially the same effect as the undertaking: The Commissioner for Consumer Protection v Armstrong [2012] WASC 206. I indicated that I would hear further submissions as to whether any declarations should be made. These are my reasons as to the orders that should be made.
No appearance or application by Ms Armstrong
2 As I said in my primary reasons [17], Ms Armstrong did not appear
at the hearing of the Commissioner's application, and the hearing
proceeded in her absence.3 On 16 July 2012, Ms Armstrong telephoned my associate. In the
course of that telephone conversation, she stated that she had not been served with copies of the plaintiff's submissions, among other documents.
The letter of 17 July 2012 from my associate:
(a)
enclosed copies of the minute of proposed amended originating motion filed 6 July 2012, plaintiff's minute of proposed orders filed 6 July 2012, plaintiff's schedule of costs filed 6 July 2012, plaintiff's submissions on declaratory relief dated 5 July 2012, and my primary reasons;
(b)
advised Ms Armstrong that at that stage the court had not made any orders on the Commissioner's application;
(c)
confirmed that the directions of the court made on 21 June provided for Ms Armstrong to file and serve any submissions in response to the Commissioner's submissions by 19 July 2012, stating that if an extension was sought, Ms Armstrong should advise in writing of the period of extension sought; and
(d)
stated that given Ms Armstrong's assertion, in her telephone conversation, that she had not been served with the papers for the Commissioner's application prior to the hearing on 12 June 2012, if she wished to be heard on the merits of the application, thus revisiting the findings made in the primary reasons, she would need to make an application to the court.
| BEECH J | [2012] WASC 206 (S) |
5 By letter dated 19 July 2012 sent by facsimile on that day,
Ms Armstrong wrote to the court stating an intention to apply to the court to have the Commissioner's applications dismissed, stayed or set aside.
6 By letter of 20 July 2012 from my associate, the court proposed to
the Commissioner's solicitors that it would not take any action in the matter for 14 days to see what, if any, applications were made by Ms Armstrong, stating that if the Commissioner objected to that proposal, she should advise the court. By facsimile of 23 July 2012, the Commissioner stated that she had no objection to that course.
Ms Armstrong did not make any application to the court in the following 14 days.
8 By letter of 9 August 2012 from my associate to Ms Armstrong, the
court referred to the correspondence I have set out, and to the fact that no application or further correspondence had been received from Ms Armstrong. The letter stated that if nothing further was received or filed by 15 August 2012, the court would proceed on the assumption that no application had been made in the action.
No application has been made, nor any correspondence received from Ms Armstrong, since then.
10 Consequently, I proceed to determine the question of whether any
declarations should be made, and what costs orders should be made in the
applications.
Declarations?
11 The Commissioner filed written submissions in support of her
application for declarations. She also filed a minute of proposed orders setting out the terms of the declarations sought. Those terms differ markedly from the terms of the declaration sought in the originating motion. The latter terms were unacceptably general. The declarations now sought by the Commissioner contain appropriate and adequate particulars of how and why Ms Armstrong's conduct breached her undertaking. See in this regard Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 [35]; BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167 [35]; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 [62].
| BEECH J | [2012] WASC 206 (S) |
12 The fact that Ms Armstrong did not participate in the action does not
mean that the proceedings lack a proper contradictor: Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378. The requirement of a proper contradictor is satisfied when a party with an interest in contradicting the claim is joined as a defendant. If that party does not take an active role in the proceedings, there will nevertheless have been a proper contradictor. The lack of a contest may bear upon whether there is utility in the making of a declaration.
13 A declaration should only be made if it has a utility beyond simply
'recording in a summary form, conclusions reached by the court in reasons for judgment': Warramunda Village Inc v Pryde [2001] FCA 61; (2001) 105 FCR 437 [8]; ACCC v MSY Technology [35].
14 That utility may be found in the setting out of the basis of the
liability found and the penalties or injunctions imposed: see Rural Press v ACCC [95]; ACCC v MSY Technology [35]. Declarations may also be appropriate because they may:
(a) be an appropriate vehicle to record the court's disapproval of the contravening conduct; (b) serve to vindicate the regulator's claim that the defendant contravened legislation (or here, her enforceable undertaking); (c) be of assistance to the regulator in carrying out its duties; (d) inform consumers of the dangers arising from the defendant's contravening conduct; and (e) deter others from contravening the legislation. See Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695 [49]; Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 [6]. See also ACCC v Yellow Page Marketing BV (No 2) [69].
All of these considerations seem to me to support the granting of the declarations sought in this case.
For these reasons I would grant declarations in the form set out in the schedule to these reasons.
| BEECH J | [2012] WASC 206 (S) |
| Costs |
17 The Commissioner seeks an order for costs in her favour. There is
no reason to depart from the ordinary rule that costs follow the event. Consequently, the Commissioner, as the successful party, should have an order for costs in her favour. She seeks that the costs be fixed in the sum of $5,362.50. That figure is supported by the information in the schedule of costs. I consider the amounts claimed to be reasonable. I will fix costs in the amount claimed.
Conclusion
For these reasons I make orders in the terms set out in the schedule to
these reasons.
| BEECH J | [2012] WASC 206 (S) |
SCHEDULE 1
THE COURT DECLARES THAT
1. The defendant, Fay Marie Armstrong, did breach an enforceable undertaking (the Undertaking) accepted on 7 July 2011 by the Plaintiff, the Commissioner for Consumer Protection (the terms of which Undertaking are set out at Schedule A to these Orders), under section 218 of the Australian Consumer Law (WA) in that:
1.1
In relation to a sale on 24 July 2011 by the defendant (going by the name 'Mandy') to Ms Veronica Pakieto of a puppy which was infected with parvovirus, the defendant:
1.1.1 breached cl 1 of the Undertaking by stating that there should not be any problems with the animal once it was examined, impliedly representing that the animal was in good health without first obtaining a veterinarian’s written report; 1.1.2 breached cl 2 of the Undertaking by selling or offering for sale an animal without first obtaining a written report of a qualified veterinarian as to the animal's condition; 1.1.3 breached cl 3 of the Undertaking by selling an animal without offering to the purchaser a veterinarian's written report as to the animal's condition;
1.1.4 breached cl 4 of the Undertaking by selling an animal infected with parvovirus;
1.1.5
breached cl 5 of the Undertaking by selling or offering for sale an animal without first specifically testing the animal for parvovirus; and
1.1.6
breached cl 7 of the Undertaking by accepting payment of $350 for an animal without first having obtaining and provided a veterinarian's written report; and
1.2 In relation to an offer of sale on 1 August 2011 by the defendant to
Ms Cheryl Dyer of a puppy, the defendant:
| BEECH J | [2012] WASC 206 (S) |
1.2.1
breached cl 1 of the Undertaking by expressly stating that the animal was healthy without first obtaining a veterinarian's written report;
1.2.2
breached cl 2 of the Undertaking by offering for sale an animal without first obtaining a veterinarian's written report;
1.2.3
breached cl 3 of the Undertaking by offering for sale an animal without providing to the purchaser a veterinarian's written report as to the animal's condition; and
1.2.4
breached cl 5 of the Undertaking by offering for sale an animal without first specifically testing the animal for parvovirus; and
1.3
In relation to a sale on 31 October 2011 by the defendant (going by the name 'Emma') to Ms Alyce Kym Ramsay of a puppy which was infected with parvovirus, the defendant:
1.3.1
breached cl 1 of the Undertaking by impliedly representing that the animal was in good health without first obtaining a veterinarian's written report;
1.3.2
breached cl 2 of the Undertaking by selling or offering for sale an animal without first obtaining a written report of a qualified veterinarian as to the animal's condition;
1.3.3 breached cl 3 of the Undertaking by selling an animal without offering to the purchaser a veterinarian's written report as to the animal's condition;
1.3.4 breached cl 4 of the Undertaking by selling an animal infected with parvovirus;
1.3.5
breached cl 5 of the Undertaking by selling or offering for sale an animal without first specifically testing the animal for parvovirus; and
1.3.6
breached cl 7 of the Undertaking by accepting payment of $450 for an animal without first having obtained and provided a veterinarian's written report; and
1.4
In relation to a sale on 22 January 2012 by the defendant (going by the name 'Jody') to Ms Jacqueline Susan Devereaux of a puppy infected with parvovirus, the defendant:
| BEECH J | [2012] WASC 206 (S) |
1.4.1 breached cl 1 of the Undertaking by impliedly representing that the animal was in good health without first obtaining a veterinarian's written report; 1.4.2 breached cl 2 of the Undertaking by selling or offering for sale an animal without first obtaining a written report of a qualified veterinarian as to the animal's condition; 1.4.3 breached cl 3 of the Undertaking by selling an animal without offering to the purchaser a veterinarian's written report as to the animal's condition;
1.4.4 breached cl 4 of the Undertaking by selling an animal infected with parvovirus;
1.4.5
breached cl 5 of the Undertaking by selling or offering for sale an animal without first specifically testing the animal for parvovirus; and
1.4.6
breached cl 7 of the Undertaking by accepting payment of $400 for an animal without first having obtaining and provided a veterinarian's written report.
AND THE COURT ORDERS
2. The Plaintiff is granted leave to amend its Notice of Motion in accordance with the Minute of Proposed Amended Notice of Originating Motion filed 6 July 2012.
3. The defendant is permanently restrained, whether by her servants, agents, or howsoever otherwise, from:
3.1
representing, whether expressly or impliedly, that any animal that sold or offer for sale is in good health, has been vaccinated, or has been wormed, without first obtaining a written report of a qualified veterinarian stating precisely that;
3.2
selling or offering for sale an animal without first obtaining a written report of a qualified veterinarian as to the animal's condition;
3.3
selling or offer for sale an animal without providing to the purchaser a written report of a qualified veterinarian as to the animal's condition;
| BEECH J | [2012] WASC 206 (S) |
3.4 selling or offer for sale an animal with parvovirus, hepatitis,
distemper, parainfluenza, or bordatellabronciosepta;3.5 selling or offer for sale an animal without first having that animal tested for and vaccinated against parvovirus, hepatitis, distemper, parainfluenza, or bordatellabronciosepta; 3.6 without limiting any the above, entering into an agreement for the supply of a dog without first obtaining and providing a written report of a qualified veterinarian as to the animal's condition; and 3.7 without limiting any the above, accepting payment or other consideration for the supply of an animal without first obtaining and providing a written report of a qualified veterinarian as to the animal's condition. 4. The defendant pay compensation to:
4.1 Veronica Pakieto in the sum of $2043.50; 4.2 Alyce Kym Ramsay in the sum of $613.90; and 4.3 Jacqueline Devereaux in the sum of $716.65. 5. The Plaintiff's costs of and incidental to this application be paid by the defendant forthwith, fixed in the sum of $5,362.50.
| BEECH J | [2012] WASC 206 (S) |
SCHEDULE A - ENFORCEABLE UNDERTAKING
I, Fay Marie ARMSTRONG, UNDERTAKE to the COMMISSIONER FOR CONSUMER PROTECTION for the purpose of section 218 of the Australian Consumer Law (WA) that I will not, whether by my servants, agents or otherwise:
1. represent, whether expressly or impliedly, that any animal that I sell or offer for sale is in good health, has been vaccinated, or has been wormed, without first obtaining a written report of a suitably qualified veterinarian stating precisely that;
2. sell or offer for sale an animal without first obtaining a written report of a suitably qualified veterinarian as to the animal's condition;
3. sell or offer for sale an animal without providing to the purchaser a written report of a suitably qualified veterinarian as to the animal's condition;
4. sell or offer for sale an animal with parvovirus, hepatitis, distemper, parainfluenza, or bordatellabronciosepta;
5. sell or offer for sale an animal without first having that animal tested for and vaccinated against parvovirus, hepatitis, distemper, parainfluenza, or bordatellabronciosepta;
6. without limiting any the above, enter into an agreement for the supply of a dog without obtaining and providing a written report of a suitably qualified veterinarian as to the animal's condition;
7. without limiting any the above, accept payment or other consideration for the supply of an animal without obtaining and providing a written report of a suitably qualified veterinarian as to the animal's condition.
In so undertaking I understand that this undertaking is ENFORCEABLE by the Commissioner for Consumer Protection in the Supreme Court of Western Australia, and the sanctions described in section 218 of the Australian Consumer Law (WA) for breach are available.
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