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Walker v Lifespan Financial Planning

Walker v Lifespan Financial Planning

Case [2003] FMCA 519 19 November 2003

Jurisdiction

Consumer Protection

Misleading or Deceptive Conduct

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALKER v LIFESPAN FINANCIAL PLANNING & ORS

[2003] FMCA 519

TRADE PRACTICES – Jurisdiction – whether s.51AF of the Trade Practices Act applies – whether claim relates to “financial services”.

Trade Practices Act 1974, ss.4, 47(6), 51AF, 51AF(2), 52, 86
Corporations Act, s.995
Federal Magistrates Court Act 1999, ss.10, 18, 39
Australian Securities and Investment Commission Act 1989, s.12BA(1)
Corporations Law 2000, s.92

Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) FCA 1572
Queensland Aggregates Pty Ltd v Trade Practices Commission (1981-82) 38 ALR 217
Henderson v Pioneer Homes Pty Ltd (1979‑80) 29 ALR 597
Cleary v Australian Cooperative Foods (No 2) (1999) NSWSC 991 (12 October 1999).
Carlton and United Breweries v Castlemaine Tooheys Ltd (1986) 161 CLR 543
McIntosh v National Australia Bank Ltd (1988) 80 ALR 47
Elna v International Computers (1987) 75 ALR 271
Stack v Coast Securities (No 9) Pty Ltd (1983) 49 ALR 193
Mahoney v AGD Mining Ltd and Ors (2002) FMCA 237

Applicant:

HELEN PATRICIA WALKER

Respondents:

LIFESPAN FINANCIAL PLANNING PTY LTD, DAINBRIDGE SERVICES PTY LTD and JAMES BUCHANNON BLAIR

File No:

MZ 787 of 2003

Delivered on:

19 November 2003

Delivered at:

Melbourne

Hearing Date:

6 November 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr R. Moore

Solicitors for the Applicant:

D.G. Skinner and Associates

Counsel for the Respondents:

Mr D. Bailey

Solicitors for the Respondents:

Minter Ellison

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 787 of 2003

HELEN PATRICIA WALKER

Applicant

and

LIFESPAN FINANCIAL PLANNING PTY LTD, DAINBRIDGE SERVICES PTY LTD and JAMES BUCHANNON BLAIR

Respondents

REASONS FOR JUDGMENT

In this application a preliminary issue has arisen in relation to the jurisdiction of the Federal Magistrates Court to hear and determine the application. The application seeks damages for what is alleged to be breach of, amongst other matters, s.52 of the Trade Practices Act 1974 (the Act). The application filed on 22 July 2003 was accompanied by a statement of claim and an affidavit of the applicant sworn 27 June 2003. The matter came before the court on 15 September 2003 and on that date it was made clear by the respondents that an application would be made in relation to jurisdiction, and hence the court made orders that the parties file and serve an outline of submissions and list of authorities and otherwise fixed the jurisdiction issue for hearing.
The respondents, in addition to relying upon an outline of submissions, have also sought to rely upon an affidavit of Sheena Leibowitz sworn 26 September 2003. The parties, in addition to adopting an outline of submissions made oral submissions. It is appropriate to briefly set out the nature of the claim as pleaded and to note the background information which is set out in the affidavit of the applicant in support to which I have referred.
It does not seem to be an issue that the applicant in 1996 suffered what is described as severe…

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.

Continue reading Walker v Lifespan Financial Planning

Details

AGLC: Walker v Lifespan Financial Planning [2003] FMCA 519
Case: [2003] FMCA 519
Decision Date: 19 November 2003

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Helen Patricia Walker brought a claim against Lifespan Financial Planning Pty Ltd, Dainbridge Services Pty Ltd, and James Buchanan Blair for damages related to an alleged breach of Section 52 of the Trade Practices Act 1974. The respondents argued that the court lacked jurisdiction to hear the matter, asserting that the claim primarily related to financial services and was regulated by the Australian Securities and Investment Commission Act 1989. The court examined whether the nature of the claim was such that the Federal Magistrates Court did not have jurisdiction, and if the jurisdiction was not present, whether the court could transfer the proceedings to another court.

The court found that the central issue in the proceeding was the advice given by the respondents for the applicant to enter into the margin loan contract and whether the respondents breached their agreement to provide continuing professional care and assistance to the applicant. The court held that the claim did not fall within the definition of financial services and that the court did have jurisdiction to hear and determine the application as pleaded. The application by the respondents to dismiss the substantive application for want of jurisdiction was dismissed, and the respondents were ordered to pay the applicant's costs of and incidental to this preliminary application.

Orders