Australian Competition & Consumer Commission v Commercial and General Publications Pty Ltd [2002] FCA 900

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Commercial and General Publications Pty Ltd [2002] FCA 900

TRADE PRACTICES – consumer protection – asserting right to payment by complainants for unsolicited services – magazine publisher making telephone calls to complainants offering to publish advertisements – whether complainants in fact authorised advertisements – draft advertisement sent to complainants after initial telephone conversation with notification that advertisement would be deemed approved if no reply received within seven days – whether legally binding contract – whether existence of legally binding contract relevant to contravention TRADE PRACTICES – consumer protection – accepting payment for services where there are reasonable grounds for believing corporation will not be able to supply such services – publisher of magazine for community organisation – advice of organisation withdrawing authority to publish – subsequent acceptance of payments from advertisers – whether reasonable grounds for belief as to future non-supply – whether objective test EVIDENCE – coincidence evidence – complaints as to demands for payment for unsolicited services – no notice under s 98 Evidence Act 1995 (Cth) – whether probative at common law WORDS AND PHRASES – "request", "unsolicited services" Trade Practices Act 1974 (Cth) ss 6(3), 58(b), 64(2A), 79(1)(a) Evidence Act 1995 (Cth) ss 95, 98, 100, 101 Hoch v The Queen (1988) 165 CLR 292 at 294 mentioned Jaldiver Pty Ltd v Nelumbo Pty Ltd [1992] FCA 906at [39], [40], [49] and [52] followed Cornell v Kennett [2000] VSC 272 at [17] – [18] mentioned Aroutsidis v Illawarra Nominees Pty Ltd (1990) 21 FCR 500 at 509 followed Trade Practices Commission v Quality Publications Pty Ltd (1990) 12 ATPR 40-991 at 50,889 discussed Darwin Bakery Pty Ltd v Sully (1981) 36 ALR 371 at 376 mentioned He Kaw Teh v The Queen (1985)157 CLR 523mentioned Chief of General Staff v Stuart (1995) 58 FCR 299 mentioned Toyota Motor Corp Australia v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 mentioned Alpine Hardwoods (Australia) Pty Ltd v Hardys Pty Ltd [2001] FCA 1876 mentioned Felthouse v Bindley (1862) 11 CB (NS) 869 mentioned Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd [1992] 27 NSWLR 326 at 334 mentioned Chitty on Contracts: General Principles (25th Ed) at par 113 Carter and Harland Contract Law in Australia (3rd Ed) at par 268 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v COMMERCIAL AND GENERAL PUBLICATIONS PTY LTD T 32 of 2001 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ANTHONY ROBERT HASSETT T 33 of 2001 HEEREY J 22 JULY 2002 MELBOURNE (HEARD IN HOBART)