Re: MILES RICHARD YORKE and SUE ELIZABETH YORKE
And: ROSS LUCAS PTY. LTD.; ROSS MELVILLE LUCAS; TREASUREWAY STORES PTY. LTD.
and KEVIN THOMAS MAHONY (1983) 68 FLR 268
No. SA G38 of 1981
Trade Practices
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.(1)
CATCHWORDS
Trade Practices - consumer protection - misleading and deceptive conduct - sale of a business - misrepresentations as to turnover - judgment entered against corporation - question of liability of its managing director - primary offence requiring no mens rea - whether liability of director absolute - "involvement" and "participation" in the commission of the primary offence - whether he was aware or had reason to suspect information incorrect - meaning of "aider or abettor" and "person knowingly concerned" - actual or constructive knowledge required - structure of s.75B.
Trade Practices Act 1974 ss. 75B, 82(1) and 52
Johnson v Youden (1950) 1 KB 544 (1950) 1 All ER 301
Reg v Glennan (1970) 91 WN (NSW) 609
Lenzi v Miller (1965) SASR 1 considered.
Trade Practices - Misleading or deceptive conduct - Incorrect weekly turnover figures relayed by respondent - Whether respondent "aided, abetted, counselled or procured" contravention of s. 52 by other persons - Whether respondent was "knowingly concerned in" contravention - Whether respondent was "involved in contravention" - Judgment entered against two respondents - Whether judgment should be entered against another respondent - Actual or constructive knowledge required to establish contravention - Trade Practices Act 1974 (Cth), ss 52, 75B, 82(1), 84(2).
HEADNOTE
Section 82(1) of the Trade Practices Act 1974 (Cth) provides as follows:
"A person who suffers loss or damage by conduct of another
person that was done in contravention of a provision of Part IV
or V may recover the amount of the loss or damage by action
against that other person or against any person involved in
the contravention".
On 16 September 1982, judgment was entered in favour of the applicants against the first and third respondents after a single judge of the Federal Court of Australia found that the second respondent, Mr Lucas, by acting as agent for the third respondent company, had unwittingly engaged in misleading conduct and thereby contravened s. 52 of the Trade Practices Act 1974 (Cth) (the Act). The applicants sought judgment against Mr Lucas (who was managing director of the third respondent) jointly and severally with the other three respondents for the amount of damages awarded them. The applicants contended that Mr Lucas had aided and abetted, counselled or procured or was knowingly concerned in or a party to such contravening conduct. The question for the court was whether, assuming that s. 75B of the Act was within the constitutional power of the Commonwealth, the court was obliged, on the facts as found, to enter judgment against Mr Lucas. Evidence showed that Mr Lucas was not aware and had no reason to suspect that the information he received from the fourth respondent concerning the accuracy of…
Keep reading for free
Create a free CaseChat account to read Yorke v Ross Lucas Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [1983] FCA 14
- Decision Date
CaseChat Overview and Summary
The court examined the statutory provisions, particularly section 75B of the Trade Practices Act, which imposes liability on directors without requiring proof of mens rea. The court considered the meanings of "aider or abettor" and "person knowingly concerned" in this context, and whether the director's involvement needed to be more than passive. The court concluded that liability under section 75B was indeed absolute, meaning the director's awareness or suspicion of the misrepresentations was not required to establish liability. The focus was instead on the director's involvement and participation in the commission of the primary offence.
The court dismissed the plaintiffs' claims against Ross Melville Lucas, finding that the director's liability under section 75B was absolute and did not require actual or constructive knowledge of the misrepresentations. The court's decision hinged on the interpretation of the statutory language and the nature of the director's role in the corporation's conduct. The plaintiffs' application was dismissed, and the question of costs was reserved for further consideration.
Orders
Orders of the court
1. The applicants' claims against the respondent Ross Melville Lucas be dismissed.
2. The question of costs be reserved for further consideration. Application dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.