GENERAL DIVISION IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY No. S.A. G.38 of 1981 THE TRADE PRACTICES ACT 1974 BETWEEN: 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 ORDER JUDGE MAKING ORDER 3 Fisher J WHERE MADE : Adelaide DATE : 22 February 1983 THE COURT ORDERS THAT: 1. There be judgment for Miles 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 Kevin Thomas Mahoney be reserved. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY No. S.A. G.38 of 1981 GENERAL DIVISION THE TRADE PRACTICES AcT 1974 BETWEEN: MILES RICHARD YORKE and SUE ELIZABETH YORKE Applicants - and - ROSS LUCAS PTY. LTD. and ROSS MELVILLE LUCAS and TREASUREWAY STORES PTY. LTD. and KEVIN THOMAS MAHONEY Respondents FISHER J. 22 February 1983 REASONS FOR JUDGMENT Bearing in mind certain delays which have unavoidably occurred I propose to give my decision in this matter at 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 1s 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 Act 1974 and are asking me to enter judgment against him for the amount of the damages previously assessed. Earlier I had at the suggestion of the parties refrained from considering 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. 43,401. Judgment has not to date been delivered. In that matter there was a challenge to the jurisdiction 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 jurisdictional point was not taken in the pleadings and there has been no compliance by Mr. Mahoney with the provisions of 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 one of his assets by way of voluntary disposition in favour of his brother. In my principal reasors for judgment I have made all necessary findings of fact on the extent of Mr. Mahoney's involvement in the contravention of the relevant section of the Trade Practices Act 1974, and in my reasons for judgment in respect of the liability of the respondent Ross Melville Lucas I gave extensive consideration to section 75B 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 establish 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 concerning turnover, and on a number of other occasions gave instructions to Mr. Lucas to make these representations. It seems to me, therefore, that the facts abundantly establish that by virtue of the provisions of section 75B of the Act he is a person involved in that contravention and therefore liable under section 82 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 this Court has the necessary jurisdiction. 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. | certify that this and the -Z preceding Pages are a true copy of the Reasons tor Judgment of Mr. Justice 2 Fon Dated: 5 —7/ a ae 783