Hearn v O'Rourke [2003] FCAFC 78

FEDERAL COURT OF AUSTRALIA

Hearn v O'Rourke [2003] FCAFC 78 PROCEDURE – whether statement of claim should be struck out – whether pleaded and particularised facts support a contravention of s 52 Trade Practices Act 1974 (Cth). TRADE PRACTICES – whether misleading and deceptive conduct – whether likely to mislead or deceive – whether alleged conduct was in trade or commerce – whether should have regard to overall commercial purpose and activities done incidental to making of documentary – whether should only have regard to aspect or element of activities or transactions that bears trading or commercial nature – whether correct to focus on conduct in question or range of activities engaged in – where no commercial relationship between parties. Trade Practices Act 1974 (Cth) ss 51A, 52 Federal Court Rules O 29 r 2(a) Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 applied Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169 cited Dey v Victorian Railways Commissioners (1949) 78 CLR 62 considered Federal Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355 cited Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 discussed Barto v GPR Management Services Pty Limited & Anor (1991) 33 FCR 389 cited Martin v Tasmania Development and Resources (1999) 163 ALR 79 cited Sykes & Ors v Reserve Bank of Australia (1998) 88 FCR 511 considered TACCARA JAYNE HEARN by her next friend Margaret Anne Hearn and KELLIE ANNE ALLARDICE v DENNIS O'ROURKE AND CAMERAWORK PTY LTD (ACN 002 277 296) Q 166 OF 2002

FINN, DOWSETT & JACOBSON JJ 2 MAY 2003 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q166 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: TACCARA JAYNE HEARN by her next friend Margaret Anne Hearn