Tristep Pty Ltd v Intero Pty Ltd

[1990] FCA 804

JUDGMENT No. To+ / ... 9.0-

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1	NO. WAG 33 OF 1990
B E T W E E N :	TRISTEP PTY. LTD.

First Applicant

and

MINGULAAY NOMINEES PTY. LTD.

Second Applicant

and

INTER0 PTY. LTD.

First Respondent

and

LESLIE PERRY and LEAH MARY PERRY

Second Respondents

and

RAYMOND BARWICK

Third Respondent

CORAM: LEE J.

DATE : 18 JULY 1990

This is an application principally under 0.18 r.4 of the Federal Court Rules seeking the making of the final order under s.80 of the Trade Practices Act 1974 ("the Act") in respect of alleged contraventions of s.52 of the Act by the first respondent; and pursuant to s.75B of the Act, derivative orders against the third respondent.

m RECEIVED

11 MAR 1991 p]

Order 18 is one concerned with admissions, perhaps of a formal nature, but it is not limited to that. Informal admissions may support an application for judgment. In the present case the proceedings have involved the delivery of affidavits to support the cases relied upon in the pleadings. The material contained in such affidavits may provide admissions to ground an application for judgment.

The pleaded contraventions of 9.52 of the Act, with which this application is concerned, relate to the statements in a brochure which is, it is admitted, was distributed by the first respondent. It is also admitted or is otherwise clear from the uncontested facts that the first respondent acted through the third respondent and that the third respondent had knowledge of all relevant facts which would or should have made him aware of any misleading quality in the conduct of the first respondent. (See Yorke v. Lucas (1985) 158 C.L.R. 661.)

The object of the Act is to extirpate conduct that public interest. As was discussed in Fencott v. Muller (1983)	impedes fair dealing in commerce and in so doing to serve the
152 C.L.R. 570, the means by which the provisions of the Act may be enforced may be by imposition of a civil penalty or by commencement of a civil action in which the wide range of statutory relief provided may govern the conduct of parties engaged in trade or commerce.
These objects were clearly expressed by Bowen C.J. in &&d Series Cricket v. Parish (1977) 16 A.L.R. 181. What
is involved in an application under the Act is a claim for relief based upon powers provided in the Act to control conduct that is shown to contravene the Act's requirements. Because of the element of public interest involved therein a Court, in determining whether to exercise those powers, will not limit its consideration of the scope of the powers to remedies that are available either in common law or equity.
Such criteria will, however, remain relevant and in circumstances where the application seeks relief of an interim nature, it may well be that considerations that are appropriate in a like application for equitable relief may be the dominant considerations in determining whether such an interm order should be made under the Act.
However, this is an application for a final order and an assessment must be made of whether the grounds have
been made out which will justify the making of an order. That is, have admissions been made and if made, are they admissions
as to conduct which constitutes a contravention of s.52 of the Act? I am well satisfied that admissions have been made in the respondents' affidavits and that the admissions prove conduct that is patently in contravention of s.52 of the Act.
The respondents' allegation that the applicant has engaged in like conduct can have no bearing on the consequences which flow from the respondents' admissions. Service of the public interest can only be satisfied by rooting out this type of conduct and bringing it to a halt whenever it is shown to occur.
In matters such as this it may be inappropriate for the Court to consider whether it should refrain from making an order whilst an undertaking not to repeat such conduct is offered by the respondent. There is a requirement that the Court display to parties engaged in trade or commerce, and to the public, that certain conduct will not be countenanced and the acceptance of an undertaking not to repeat the conduct may be an insufficient demonstration of that resolve.
In other words, in appropriate cases, there may be an obligation on the Court to move to exercise powers granted by the Act.
For those reasons I intend to make declaratory orders that the first respondent has contravened the Act in the terms pleaded and that the third respondent has been knowingly concerned in such contraventions.
There will be an order that the first respondent, by its servants or agents, be restrained from any further publication or distribution of the identified brochure, or any brochure containing the infringing statements or like statements or representations, and that all existing copies of the brochure be recovered and destroyed.
As to the matter of publication of corrective statements, I am not prepared to make any order in that regard. There is a paucity of evidence as to the distribution of the brochures and it is inappropriate to make any order for corrective statements to be published when it is not shown how and to what extent the brochure was distributed. It may be that at the termination of the proceedings such an order in relation to these breaches may be shown to be appropriate, but again it may not.
Also, I am not prepared to make any order at this time in respect of the matter of damages.
There is no material at this point which suggests that the applicants have necessarily suffered any loss. That determination will have to await the completion of the proceedings.

I certify that the preceding

five (5) pages are a true copy of the

Reasons for Judgment of his Honour Mr Justice Lee.

Counsel for the Applicant: Mr S. Owen-Conway

Solicitors for the Applicant: Messrs Nielsen & Co.

Counsel for the Respondent: Mr D.H. Solomon
Solicitors for the Respondent: Messrs Solomon Brothers

Date of Hearing: 18 July 1990 Date of Judgment: 18 July 1990