Houghton v Arms [2006] HCA 59

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

JAMES HOUGHTON AND ANOR APPELLANTS

AND

SIMON ARMS RESPONDENT

Houghton v Arms

[2006] HCA 59

13 December 2006

M107/2006

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

D J O'Callaghan SC with M D Rush for the appellants (instructed by Deacons)

P J Riordan SC with D W Bennett for the respondent (instructed by Middletons)

D R Williams QC with S Bhojani for the Director of Consumer Affairs of Victoria appearing as amicus (instructed by Department of Justice)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Houghton v Arms

Trade practices − Misleading or deceptive conduct in trade or commerce – Where appellant employees of a corporation made misleading or deceptive statements to respondent in the course of their employment − Where the corporation was sued for contravention of s 52 of the Trade Practices Act 1974 (Cth) ("the Commonwealth Act") by reason of the conduct of the appellants − Where the appellants were also sued for contravention of s 9 of the Fair Trading Act 1999 (Vic) ("the State Act") − Whether each appellant was a "person" for the purposes of s 9 of the State Act − Whether conduct of each appellant was "in trade or commerce" for the purposes of s 9 of the State Act.

Statutes − Statutory construction − Construction of s 9 of the State Act − Where the Commonwealth Act and the State Act have concurrent and overlapping operation − Where the Commonwealth Act had, but the State Act did not have, provisions imposing accessorial liability upon persons "involved" in a contravention − Where the Commonwealth Act had, but the State Act did not have, provisions deeming conduct engaged in on behalf of a corporation to have been engaged in by the corporation − Whether s 9 of the State Act is to be construed so as not to apply to persons who were not engaged in trade or commerce on their own account.