Australian Competition & Consumer Commission v Francis [2004] FCA 487

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Francis [2004] FCA 487 TRADE PRACTICES – misleading and deceptive conduct – proposed consent orders – no statement of agreed facts – pleadings containing partial admissions only – reliance on evidence filed in another case, for another purpose – whether, and to what extent, allegations of falsity of representations and knowledge by respondent of falsity established – relevance of consent – assertion that consent motivated by limited finances TRADE PRACTICES – liability of natural person as person involved in contravention by corporation – requirement of knowledge – allegations of knowledge not traversed specifically in pleadings – whether knowledge proved – whether orders should be made by consent TRADE PRACTICES – declarations – whether jurisdiction to make – whether appropriate – whether merely recording occurrence of contravention of statute – form of declaration TRADE PRACTICES – injunctions – based on past conduct, not proposed or intended conduct – whether terms of injunction should go beyond area of past conduct TRADE PRACTICES – injunctions – whether proposed injunctions sought by consent restrain the respondent from conduct of a broader nature than was involved in making the representations PRACTICE AND PROCEDURE – pleadings – partial admissions – failure to traverse specifically every allegation of fact – whether deemed admission of allegations – relief from compliance with rules – whether power to relieve from compliance carries the power to relieve from past deemed non-compliance – whether power to relieve should be exercised when consent orders sought – relevance of impecuniosity as a motivation for consent PRACTICE AND PROCEDURE – pleadings – representations – allegations of falsity pleaded as direct negatives of representations – failure to plead affirmative facts that would tend to establish the falsity of the representations – whether appropriate COSTS – consent orders – some orders sought by consent not made – whether Court should make agreed costs order Australian Competition & Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548 applied Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 (1999) 161 ALR 79 applied Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 followed Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 followed Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 referred to McLeish v Faure (1979) 40 FLR 462 discussed Warramunda Village Inc v Pryde [2001] FCA 61 (2001) 105 FCR 437 discussed Warramunda Village Inc v Pryde [2002] FCAFC 58 (2002) 116 FCR 58 discussed Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 discussed Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 referred to Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 discussed Australian Competition & Consumer Commission v Chen [2003] FCA 897 (2003) 201 ALR 40 referred to Rural Press Ltd v Australian Competition & Consumer Commission [2003] HCA 75 (2003) 203 ALR 217 discussed Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 followed Trade Practices Act 1974 (Cth) ss 6(3), 51A, 52, 53(c), 55, 75B, 80, 155 Federal Court of Australia Act 1976 (Cth) ss 21, 23 Federal Court Rules (Cth) O 1 r 8, O 11 r 13(1), O 11 r 13(3) High Court Rules (Cth) O 64 r 2 Supreme Court Rules (Vic) O 70 r 1A, O 2 r 2.04 Supreme Court Rules (NSW) Pt 1 r 2 J Stuckey-Clarke in P Parkinson, ed, The Principles of Equity, 1996 Meagher, Gummow and Lehane's Equity doctrines and remedies 4th edn, 2002 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v DAVID FRANCIS V 756 of 2002 GRAY J 26 APRIL 2004 MELBOURNE