Commissioner for Fair Trading & anor v H.M.S. Direct Limited & ors [2003] NSWSC 415

New South Wales Supreme Court

CITATION : Commissioner for Fair Trading & anor v H.M.S. Direct Limited & ors [2003] NSWSC 415 HEARING DATE(S) : 12 May 2003; 15 May 2003 JUDGMENT DATE : 15 May 2003 JURISDICTION: Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : Orders made.

CATCHWORDS : FAIR TRADING ACT - STATUTORY INJUNCTION - FOREIGN CORPORATIONS AND INDIVIDUALS FORWARDING MAIL TO NEW SOUTH WALES - DECEPTIVE AND MISLEADING CONTENT - INTERCEPTION OF MATERIAL - PREVENTION OF LOSS BY POTENTIAL VICTIMS - DECLARATORY RELIEF - UTILITY OF FURTHER ORDERS LEGISLATION CITED : Fair Trading Act 1987 ACCC v IMB Group P/Ltd 1999 ATPR 41-688 CASES CITED : ACCC v Goldy Motors P/Ltd 2001 ATPR 41-801 Director General, Dept of Fair Trading v Boss Communications Corp & Ors (File S11146/01) PARTIES : Commissioner for Fair Trading, Department of Commerce v H.M.S. Direct Limited, Hallstone Products Pty Limited and David Stucky FILE NUMBER(S) : SC 10759/03 COUNSEL : P. Renehan (Plaintiff) No appearances (Defendants) SOLICITORS : D.I. Catt (Plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Thursday 15 May 2003

10759/03 - COMMISSIONER FOR FAIR TRADING, DEPARTMENT OF COMMERCE v H.M.S. DIRECT LIMITED, HALLSTONE PRODUCTS PTY LIMITED and DAVID STUCKY.

JUDGMENT

1 HIS HONOUR: This is a summons brought by the Commissioner for Fair Trading of the Department of Commerce, who was formerly the Director General of the Department of Fair Trading. Proceedings are brought pursuant to the Fair Trading Act 1987. 2 The summons is supported by voluminous affidavit material, and there is no need to refer to that in detail. It suffices to observe that there has been received in New South Wales a considerable amount of mail emanating, so the evidence demonstrates, from two corporations, the first and second defendants, HMS Direct Limited and Hallstone Products Pty Limited respectively, and a third defendant, David Stucky, described and identified as holding most of the significant offices in those corporations. The corporations and Mr Stucky are resident in Canada. 3 The content of the material which has been lawfully examined before delivery demonstrates that there is constituted by the despatchers in each instance conduct in contravention of s 42 of the Fair Trading Act. That section prohibits conduct which is misleading or deceptive. 4 The defendants have not appeared in answer to the summons. There has been some correspondence between the department and solicitors apparently instructed for limited purposes on behalf of the defendants. Expressly, they are not instructed to appear on the summons. 5 The plaintiff Commissioner seeks orders of four types. The first type is declaratory, and as I have indicated in the course of the hearing, I am persuaded that such orders may be made and should be made. It is clearly in the public interest that such declarations be made. In helpful submissions by Mr Renehan of counsel, I have been taken to several analogous cases under Federal legislation, and I would respectfully adopt these observations. 6 In ACCC v IMB Group Pty Limited 1999 ATPR 41-688, Drummond J observed: "Proceedings brought by the ACCC, as well as by private litigants alleging contraventions of the provisions of the Trade Practices Act here in question, do not involve matters concerned only with the private rights of the parties to the particular litigation. …….