Commissioner of Fair Trading v Kent Publishing Pty Ltd [2007] NSWSC 590

New South Wales Supreme Court

CITATION : Commissioner of Fair Trading v Kent Publishing Pty Ltd [2007] NSWSC 590

HEARING DATE(S) : 25 May 2007

JUDGMENT DATE : 8 June 2007

JUDGMENT OF : Price J at 1

DECISION : See paragraph 26

CATCHWORDS : Interim injunction - use of telemarketers - misleading and deceptive conduct.

Trade Practices Act 1974 (Cth) s 52, 53(bb), 53(c), s 55, s 55A, s 58, s 64, s 64(3), s 64(5), LEGISLATION CITED : s 64(6), s 80(2), Pt IV, Pt IVA, Pt V Fair Trading Act 1987 (NSW) s 65

Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 148 ALR 339 CASES CITED : ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FLR 248 Kennan v Monahan [1991] 1 Qd.R 401

Commissioner of Fair Trading PARTIES : Kent Publishing Pty Ltd Dean James King

FILE NUMBER(S) : SC 2007/20008

COUNSEL : Mr G Sarginson - applicant Ms M Hindman - respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PRICE J

8 June 2007

2007/20008 Commissioner of Fair Trading v Kent Publishing Pty Ltd & Dean James King

JUDGMENT 1 HIS HONOUR: Where the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute a contravention of Part V of the Trade Practices Act 1974 (TPA) or aiding, abetting, counselling or procuring a person to contravene such a provision, s 80(2) TPA authorises the Court to grant an interim injunction pending determination of an application under subsection (1) where in the Court's opinion it is desirable to do so. 2 By a notice of motion filed on 10 January 2007, the plaintiff seeks interim injunctive orders against each of the defendants as follows: "Pursuant to section 80 of the Trade Practices Act 1974 (Cth) and section 65 of the Fair Trading Act 1987 (NSW): 1. Until further order, the First Defendant and Second Defendant be restrained from conducting, or being engaged in, whether or not in a personal capacity, as a sole trader, in a partnership, as an employee, through another person, through the agency of another person, through the agency of a chain of other persons, through a company or the agency of a company (whether or not that company is one which the Second Defendant is an officer and whether or not that company is one which the Second Defendant is a shareholder) or otherwise, any of the following: entering the details of any person, business, or company in any publication known as: A) The All States Annual Report B) Guide to Australian Associations C) Media Guide to Australia D) Hotel and Restaurant Guide of Australia E) The Australian Accommodation and Dining Guide F) National Travel and Tourism Guide G) Australian Quality Assured Services H) The National Business and Trade Guide I) Essential Local Service J) Kent Group Travel K) Australian State and National Business Service L) The Unionist M) Coast to Coast Travellers Guide N) Industrial Safety Gazette or any publication with a similar name (collectively 'the publications') prior to receipt by the First Defendant from that person, business or company which authorises the entry of the details and: (a) is signed and dated by the person, or signed by a person with the authority to sign on behalf of the business or company by virtue of their position in the business or company; (b) specifies the name of the publication; (c) specifies the name and address of the person publishing the publication; (d) specifies the particulars of the entry to appear in the publication; (e) specifies the amount of the charge for the making of the entry or the basis on which the charge is, or is to be, calculated; (f) contains the words, in a prominent position on the document, "this is a solicitation not an invoice for a debt incurred by you"; and (g) has been provided to the person, business or company to whom the entry relates. 2. Demanding, requesting, or asserting a right, or purported right, to payment from any person, business or company in respect of the listing of details in the publications unless and until a document as described in Paragraph 1(a)-(g) has been received by the First Defendant from the person, business or company to whom the listing relates. 3. Attempting to enforce any asserted right, or purported right, to payment from any person, business or company in respect of the listing of details in the publications unless and until a document as described in Paragraph 1(a)-(g) has been received by the First Defendant from the person, business or company to whom the listing relates. 4. Collecting a debt, or purported debt, from any person, business or company in respect of the listing of details in the publications unless and until a document as described in Paragraph 1(a)-(g) has been received by the First Defendant from the person, business or company to whom the listing relates."