Yorke, Miles Richard v Ross Lucas Pty Ltd

[1983] FCA 28

IN THE FEDERAL COURT	OF AUSTRALIA	)
)

SOUTH AUSTRALIA DISTRICT REGISTRY	)	No. S.A. G.38 of 1981
)
GENERAL DIVISION	1

THE TRADE PRACTICES ACT 1974

B E T W E E N :

MILES RICHARD YORKE and

SUE ELIZABETH YORKE

Applicants

- and -

ROSS LUCAS PTY. LTD. and

ROSS MELVILLE LUCAS and

TREASUREWAY STORES PTY. LTD. and

KFVIN THOMAS MAHONEY

Respondents

O R D E R

JUDGE MAKING ORDER	Fisher J
WHERE MADE	Adelaide
DATE	2 2 February 1983

THE COURT ORDERS THAT:

1. There be judgment for Mlles Richard Yorke and Sue Elizabeth Yorke in the sum of Seventy three thousand dollars ($73,000) against the respondent Kevin Thomas Mahoney.

2. The question of costs payable by the respondent Kevm Thomas

Mahoney be reserved.

IN THE FEDERAL COURT OF AUSTRALIA

1

SOUTH AUSTRALIA DISTRICT REGISTRY	)	No. S.A. G.38 of 1981
)

DIVISION	GENERAL	)
THE TRADE PRACTICES ACT 1974
B E T W E E N :
MILES RICHARD YORKE and SUE ELIZABETH YORKE

Applicants

- and -

ROSS LUCAS PTY. LTD. and

ROSS MELVILLE LUCAS and

TREPSUREWAY STORES PTY. LTD. and

KEVIN THOMAS MAHONEY

Respondents

FISHER J.

22 February 1983 REASONS FOR JUDGMENT

Bearing in mind certain delays vhich have unavoidably occurred

I propose to give my decision in this matter once. On this

occasion Mr. Lambert has appeared on behalf of Mr. Mahoney and has,

to my mind, said everything that can be said in the circumstances on

his behalf, The position IS that the applicants have requested

me to enter judgment now against the respondent Kevin Thomas Mahoney,

as an aider and abettor or a party knowingly concerned under section

75B of the Trade Practices Ack 1974 and are asking me to enter

judgment against him for the amount f the damages previously assessed.

Earlier I had at the suggestion of the partles refrained from

consldering the position of Mr. Mahoney because the provisions of

section 75B of the Trade Practices Act 1974 were,*to be and have now

been considered by the High Court on appeal in the matter of Muller v

Fencott and Others, a decision of Toohey J. reported (1982) A.T.P.R.

.

L .

43,401. Judgment has not to date been delivered. In that matter

there was a challenge to the jurisdictlon of the Federal Court in

circumstances somewhat similar to this. The essence of the challenge

was that the Trade Practices Act 1974 was invalid insofar as it

purported to apply to natural persons.

This ~urisdictional point was not taken in the pleadings and there

has been no compliance by Mr. Mahoney with the provisions nf Order 51

of the Rules of this Court. However, this application is now before

me and it is before me no doubt because there is evidence that Mr.

Mahoney has disposed of ne of his assets by way of voluntary

dlsposition in favour of his brother.

In my principal reasowfor judgment I have made all necessary

findings of fact on the extent of Mr. Mahoney's involvement i the

contravention of the relevant section of the Trade Practices Act 1974,

and in my reasons for judgment i respect of the liability of the

respondent Ross Melville Lucas I gave extensive consideration to

section 15B of the Trade Practices Act 1974 and the circumstances in

which it applied. I adopt my earlier reasoning and findings of fact

for the purposes of this application.

In my opinion the facts e'stablish that there is no doubt Mr.

Mahoney did aid and abet or, alternatively, was knowingly concerned in the

contravention by Treasureway Stores Pty. Limited. He, in one instance,

made a relevant representation concernlng turnover, and on a number

of other occasions gave instructlons to Mr. Lucas to make these

representations. It seems to me, therefore, that the facts

3 .

abundantly establlsh that by virtue of the provisions of section

75B of the Act he is a person involved in that contravention and

therefore liable under sectlon 8 2 of the Trade Practices Act 1974

On the matter of my jurisdiction in this matter I follow and

adopt the reasoning of Toohey J. at first instance in Muller v Fencott

and Others and I hold thls Court has the necessary jurlsdlctlon. I

therefore enter judgment against the respondent Kevin Thomas Mahoney in the sum of $73,000, being the amount awarded against the respondent,

Treasureway Stores Pty. Limited, in favour. of the applicants; and	I so
order.

I reserve for further consideration the question of the costs

which might be payable by Mr. Mahoney.

P

. .