Trade Practices Commission v My Life Corporation Pty Ltd (ACN 054 040 327) [1995] FCA 358

CATCHWORDS PRACTICE AND PROCEDURE - application to stay or strike out parts of statement of claim as disclosing no reasonable cause of action - cannot be said that no real question of fact or law to be determined - real question whether facts as pleaded established contravention of Trade Practices Act 1974 (Cth) ss.57, 61(2A). Trade Practices Act 1974 (Cth) ss.57, 61(2A) General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125 (Applied) Munnings v. Australian Government Solicitor (1994) 68 ALJR 169 Queensland Aggregates Pty. Ltd. v. Trade Practices Commission (1981) 57 FLR 314 Trade Practices Commission v. My Life Corporation Pty. Ltd. (ACN 054 040 327) No. QG169 of 1994 Cooper J., Brisbane, 2 June, 1995

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG 169 of 1994 BETWEEN: TRADE PRACTICES COMMISSION Applicant AND: MY LIFE CORPORATION PTY. LTD. (ACN 054 040 327) Respondent JUDGE MAKING ORDER:Cooper J. WHERE MADE: Brisbane DATE OF ORDER: 2 June, 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The respondent's notice of motion be dismissed. 2. The respondent pay the applicant Trade Practice Commission its costs of and incidental to the notice of motion to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG 169 of 1994 BETWEEN: TRADE PRACTICES COMMISSION Applicant AND: MY LIFE CORPORATION PTY. LTD. (ACN 054 040 327) Respondent CORAM: Cooper J. PLACE: Brisbane DATE: 2 June, 1995 REASONS FOR JUDGMENT By notice of motion the respondent My Life Corporation Pty. Ltd. ("My Life") seeks orders that so much of the claim of the applicant Trade Practices Commission ("the TPC") as seeks relief in consequence of alleged contraventions of section 57 and section 61(2A) of the Trade Practices Act 1974 (Cth) ("the Act") be stayed or in the alternative, that paragraphs 3 to 11 and 15 to 23 relating to the section 57 claim, and paragraphs 12 to 14 and 24 to 26 relating to the section 61(2A) claim, of the statement of claim be struck out. Section 57 of the Act provides :- "A corporation shall not, in trade or commerce, induce a consumer to acquire goods or services by representing that the consumer will, after the contract for the acquisition of the goods or services is made, receive a rebate, commission or other benefit in return for giving the corporation the names of prospective customers or otherwise assisting the corporation to supply goods or services to other consumers, if receipt of the rebate, commission or other benefit is contingent on an event occurring after that contract is made." Section 61(2A) of the Act provides :- "(2A) A corporation also contravenes this section if the corporation promotes, or takes part in the promotion of, a scheme under which - (a) a payment is to be made by a person who participates, or who has applied or been invited to participate, in the scheme to or for the benefit of the corporation or another person who takes part in the promotion of the scheme or to or for the benefit of another person who participates in the scheme; and (b) the inducement for making the payment is the holding out to the person who makes or is to make the payment the prospect of receiving payments from other persons who may participate in the scheme. (3) For the purposes of sub-section (1), (2) or (2A) - (a) a prospect of a kind mentioned in that sub-section shall be taken to be held out to a person whether it is held out so as to confer on him a legally enforceable right or not; (b) in determining whether an inducement or attempt to induce is made by holding out a prospect of a kind mentioned in that sub-section, it is sufficient if a prospect of that kind constitutes or would constitute a substantial part of the inducement; and (c) any reference to the making of a payment to or for the benefit of a person shall be construed as including the making of a payment partly to or for the benefit of that person and partly to or for the benefit of one or more other persons." On the hearing of the application the TPC handed up a proposed further amended statement of claim which it submitted pleaded a case which established a breach of the relevant sections of the Act. That document has been marked "A" and placed on the file for the purpose of identification. In support of the case alleging a breach of section 57 of the Act, the TPC pleaded, so far as is relevant :-