Australian Competition and Consumer Commission v ATS All Trades and Services Pty Ltd [2009] FCA 647

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v ATS All Trades and Services Pty Ltd [2009] FCA 647

TRADE PRACTICES: whether false and misleading representations under s 52 of the Trade Practices Act 1974 (Cth) –when an employee of a corporation will be knowingly concerned in company's contravention. Trade Practices Act 1975 (Cth) ss52, 51A, 75B(1), 155(1C) Evidence Act 1995 (Cth) s 69 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53 Yorke v Lucas (1985) 158 CLR 661 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ATS ALL TRADES AND SERVICES PTY LTD ACN 107 855 434, JOHN BARRY and AARON BELL

NSD 1119 of 2008

MOORE J

17 JUNE 2009

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1119 of 2008

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: ATS ALL TRADES AND SERVICES PTY LTD ACN 107 855 434

First Respondent

JOHN BARRY

Second Respondent

AARON BELL

Third Respondent

JUDGE: MOORE J

DATE OF ORDER: 17 JUNE 2009

WHERE MADE: SYDNEY

THE COURT ORDERS AND DECLARES THAT:

1. In these Orders, the "Cooling Off provisions" refers to the following:

COOLING OFF PROVISIONS

A. These provisions apply when All Trades and Services Pty Ltd (ACN 107 855 434) or another corporation or the third respondent(each of which is hereafter referred to as Supplier) solicits or accepts any payment by a person (Customer) before the Supplier has supplied the Customer with the services to which that payment relates (Services) in full. B. Any contract for the services must include an express provision that the Customer may send a notice to an address, and in accordance with any of the methods, specified in clause D requesting a refund of money paid for the Services, within a period expressly stated in the contract being no shorter than the later of: (a) 42 days after the payment for the Services was made; or (b) 14 days after the whole of the Services were supplied in full. C. Any contract for the Services must include an express provision that when a Customer pays money for the Services and gives a notice in accordance with the contract requesting a refund, the whole of the amount so paid will be repaid to the Customer by the Supplier within 7 days of the Customer giving that notice. D. When a Supplier solicits or accepts any payment by a Customer before the Supplier has supplied the Customer with the Services in full, the Supplier must, within 7 days of such soliciting or acceptance, notify in writing each Customer of the cooling off provisions of the contract and of an email address, facsimile number (including STD area code) or postal address to which the Customer may send a notice requesting a refund. 2. The third respondent be restrained from promoting, offering or supplying job finding or marketing services for tradespeople by postal, telegraphic or telephonic means, or being directly or indirectly knowingly concerned in the promotion, offer or supply by a corporation of any business relating to job finding or marketing services for trades people, unless: 6.1 The third respondent or the corporation (as the case may be) does not accept payment for those services before they have been supplied in full; or 6.2 In a case in which the offer or supply is only of a class of information to be supplied on a regular basis, the third respondent or the corporation (as the case may be) does not accept payment for those services before that class of information has been supplied to the purchaser of it on four separate occasions; or 6.3 The third respondent or the corporation (as the case may be) complies with the Cooling Off provisions; or 6.4 When the third respondent promotes, offers or supplies the services: 6.4.1 he acts in accordance with instructions from the business, unincorporated entity or corporation or a person authorised by the business, unincorporated entity or corporation; and 6.4.2 he has not participated in the management of the business, unincorporated entity or corporation promoting, offering or supplying those services. 3. The third respondent is to pay 40% of the applicant's costs of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA