THE COMMISSIONER FOR CONSUMER PROTECTION -v- ARMSTRONG [2012] WASC 206

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 206
Case No:	CIV:1611/2012	Heard:	12 JUNE 2012
Coram:	BEECH J	Delivered:	21/06/12
No of pages:	12	Judgment Part:	1 of 1
Result:	Injunctions and other orders granted
Category:	B
PDF Version

Parties:	THE COMMISSIONER FOR CONSUMER PROTECTION FAY MARIE ARMSTRONG
Catchwords:	Consumer protection Enforceable undertaking given to regulator Application by regulator for orders enforcing the undertaking Turns on own facts
Legislation:	Australian Consumer Law (WA), s 218
Case References:	Australian Competition and Consumer Commission v StoresOnline International [2007] FCA 1597 Rural Press Ltd v Australian Competition and Consumer Protection (2003) 216 CLR 53

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : THE COMMISSIONER FOR CONSUMER PROTECTION -v- ARMSTRONG [2012] WASC 206 CORAM : BEECH J HEARD : 12 JUNE 2012 DELIVERED : 21 JUNE 2012 FILE NO/S : CIV 1611 of 2012 BETWEEN : THE COMMISSIONER FOR CONSUMER PROTECTION

Plaintiff

AND

FAY MARIE ARMSTRONG

Defendant

Catchwords:

Consumer protection - Enforceable undertaking given to regulator - Application by regulator for orders enforcing the undertaking - Turns on own facts

Legislation:

Australian Consumer Law (WA), s 218

Result:

Injunctions and other orders granted

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr M G S Crowley

Defendant : No appearance

Solicitors:

Plaintiff : Department of Commerce

Defendant : No appearance

Case(s) referred to in judgment(s):

Australian Competition and Consumer Commission v StoresOnline International [2007] FCA 1597
Rural Press Ltd v Australian Competition and Consumer Protection (2003) 216 CLR 53

(Page 3)

BEECH J

Introduction

1 The plaintiff, the Commissioner for Consumer Protection (the Commissioner) applies for declarations and injunctions relating to an enforceable undertaking given by the defendant, Ms Fay Armstrong, to the Commissioner. The Commissioner claims that Ms Armstrong has breached her enforceable undertaking in various respects. For the reasons that follow, I am satisfied that Ms Armstrong has breached the enforceable undertaking she gave, and that injunctions should be granted to substantially the same effect as the undertaking.

The background to the enforceable undertaking

2 By letter of 4 March 2011, the Commissioner wrote to Ms Armstrong setting out her concerns that, in advertising and selling puppies, Ms Armstrong had breached a number of consumer protection laws, including the Fair Trading Act 1987 (WA), the Fair Trading Act 2010 (WA) and the Australian Consumer Law (WA) (ACL). The letter stated that:

(a) since August 2008 up to March 2011, the Commissioner had received a number of credible complaints from consumers in relation to their purchase of puppies from her;

(b) the Commissioner alleged that on at least 8 occasions Ms Armstrong had contravened the relevant consumer protection laws, in that she had:

(i) offered for sale or sold to consumers animals with express representations, either orally or in writing by advertisements in The Quokka or the Sunday Times, as to a characteristic of the animals, namely that they had been 'vet checked, vaccinated, and wormed' whereas that…

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: [2012] WASC 206
Decision Date: 21 JUNE 2012

CaseChat Overview and Summary

In the matter of The Commissioner for Consumer Protection v Armstrong, the Commissioner applied to the Court for orders enforcing an enforceable undertaking given by Armstrong to the Commissioner. The dispute centred on whether Armstrong had complied with the terms of the enforceable undertaking, which was made in response to allegations of misleading or deceptive conduct under the Australian Consumer Law. The Court of Appeal was tasked with determining whether the Commissioner had met the threshold for enforcing the undertaking.

The primary legal issue before the Court was whether the Commissioner had demonstrated, on the balance of probabilities, that Armstrong had failed to comply with the enforceable undertaking. This required the Court to consider the terms of the undertaking, the evidence presented by the Commissioner, and whether there was a sufficient evidentiary basis to support the grant of the orders sought. The Court also needed to assess whether the Commissioner had acted in good faith and whether the orders sought were appropriate and proportionate to the alleged non-compliance.

The Court found that the Commissioner had provided sufficient evidence to establish that Armstrong had not complied with the enforceable undertaking. The Court considered the terms of the undertaking to be clear and unambiguous and held that Armstrong's failure to comply was evident from the documentation and witness testimonies presented. The Court emphasised the importance of enforcing undertakings to maintain the integrity of the regulatory process and to ensure that parties adhere to their commitments. The Court granted the injunctions and other orders sought by the Commissioner, reflecting the seriousness of Armstrong's non-compliance and the need for deterrence.

Orders

Orders of the court

Injunctions and other orders granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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