New South Wales Bar Association & Ors v. Forbes MacFie Hansen Pty Ltd & Ors [1988] FCA 243

New South Wales Bar Association & Ors v. Forbes MacFie Hansen Pty Ltd & Ors [1988] FCA 243

The Trade Practices Act 1974 does not bind the Crown in right of the State of New South Wales. The Ministers were representatives of the State Crown and entitled to the Crown's immunity; this immunity extends to commercial contractors, such as the advertising agency, where a restriction on them would adversely affect the rights and interests of the Crown. Neither the Ministers nor the agents can be liable for aiding and abetting under the Act, as the principal offence cannot be committed where the Act does not bind the State Crown.

Parties
First Applicant: New South Wales Bar Association; Second Applicant: Law Society of New South Wales; Third Applicant: Michael Aroney and Donald Mervyn Sheldon on behalf of the Australian Association of Surgeons; First Respondent: Forbes Macfie Hansen Pty Limited; Second Respondent: Monohan Dayman Adams (NSW) Pty Limited and Mojo Australia Pty Limited trading as 'MOJO MDA'; Third Respondent: The Honourable Patrick Darcy Hills; Fourth Respondent: The Honourable Kenneth George Booth
Jurisdiction
Australia
Judgment Date
23 May 1988
Procedural Posture
Application for Injunctive Relief / Judgment on Motions to Dismiss Application
Outcome
Application dismissed with costs
Legal Topics
Crown Immunity, Injunctive Relief, Misleading or Deceptive Conduct
Administrative Law Trade Practices Crown Immunity Injunctive Relief Misleading or Deceptive Conduct

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 23 Party arguments 2
Sign in to unlock

Parties

New South Wales Bar Association

First Applicant

Law Society of New South Wales

Second Applicant

Michael Aroney and Donald Mervyn Sheldon on behalf of the Australian Association of Surgeons

Third Applicant

Forbes Macfie Hansen Pty Limited

First Respondent

Monohan Dayman Adams (NSW) Pty Limited and Mojo Australia Pty Limited trading as 'MOJO MDA'

Second Respondent

The Honourable Patrick Darcy Hills

Third Respondent

The Honourable Kenneth George Booth

Fourth Respondent

Procedural Posture

Application for Injunctive Relief / Judgment on Motions to Dismiss Application

Legal Issues

  1. 1 Whether the Trade Practices Act 1974 binds the Crown in right of the State of New South Wales
  2. 2 Whether Crown immunity extends to agents, representatives, and contractors
  3. 3 Whether injunctive relief may be granted against non-Crown parties where this would adversely affect State Crown interests

Ratio Decidendi

The Trade Practices Act 1974 does not bind the Crown in right of the State of New South Wales. The Ministers were representatives of the State Crown and entitled to the Crown's immunity; this immunity extends to commercial contractors, such as the advertising agency, where a restriction on them would adversely affect the rights and interests of the Crown. Neither the Ministers nor the agents can be liable for aiding and abetting under the Act, as the principal offence cannot be committed where the Act does not bind the State Crown.

Court Disposition

Application dismissed with costs

Orders

  • The application is dismissed.
  • Costs are to be paid by the applicants, including costs of the second respondent up to their departure from the suit.