Director General of the Department of Fair Trading v Sims [1999] NSWSC 1243

New South Wales Supreme Court CITATION : Director General of the Department of Fair Trading v Sims [1999] NSWSC 1243 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 12886/99 HEARING DATE(S) : 10 December 1999 JUDGMENT DATE : 16 December 1999

PARTIES : Director General of the Department of Fair Trading v Kevin John Sims JUDGMENT OF : Simpson J at 1

COUNSEL : P Lakatos - Plaintiff SOLICITORS : McKell's Solicitor - Defendant CATCHWORDS : ACTS CITED : Fair Trading Act 1987 Evidence Act 1995 DECISION : Orders made in accordance with terms sought by the plaintiff - see pages 10 and 11

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

16 December 1999

12886/99 DIRECTOR GENERAL OF THE DEPARTMENT OF FAIR TRADING v Kevin John SIMS Judgment

HER HONOUR : 1 S 65(1) of the Fair Trading Act 1987 ("the Act") authorises this Court, where satisfied that a person has engaged, or is proposing to engage, in conduct, inter alia, that constitutes or would constitute a contravention of a provision of Pt 5 of the Act, to grant an injunction in such terms as the Court determines to be appropriate. Sub s (2), while expressly not limiting the generality of sub s (1), specifies that such an injunction may be, or include, an injunction restraining a person for a specified period, or except on specified terms and conditions, from carrying on a business of supplying goods or services. 2 S 42 and s 46 are both provisions of Pt 5. S 42(1) provides: "A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." 3 S 46 provides: "A person shall not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment." 4 By summons filed on 26 November 1999 the plaintiff, the Director General of the Department of Fair Trading ("the Director General"), claims orders, both final and interlocutory, restraining the defendant, Kevin John Sims: "(i) From engaging … in conduct that is misleading or deceptive or that is likely to mislead or deceive by selling, offering for sale, providing or advertising any goods or services so as to mislead members of the public into believing that - (a) the defendant is a model agent, casting agent or employment agent; (b) the goods or services are goods or services sold or provided by a modelling agency, casting agency or employment agency; or (c) the goods or services are otherwise connected with modelling, acting or entertainment work. (ii) … from engaging in conduct in relation to employment that is to be or may be offered by the defendant or by another person that is liable to mislead members of the public seeking the employment as to - (a) the availability or the extent of the employment; (b) whether they have been accepted or chosen for any such employment; or (c) the need in order to obtain any such employment to be first registered with the defendant or to be entered into a catalogue, magazine or computer or to have a photographic portfolio, folder or album or a video prepared by the defendant. (iii) … from carrying on a business of supplying goods or services as a model agent or employment agent for such period as to the court may seem proper."