Hearn v O'Rourke [2003] FCAFC 78

Hearn v O'Rourke [2003] FCAFC 78

On the pleaded and agreed facts, it was reasonably arguable that the first respondent's alleged representations to obtain the applicants' participation in interviews were made in dealings integral to the second respondent's commercial activity of producing a documentary film for profit. Although the applicants' relationship with the respondents was not itself commercial, securing interviews could properly be characterised as central to the trading or commercial activity of producing the film. The primary judge therefore erred in striking out the statement of claim on the basis that the alleged conduct could not be in trade or commerce.

Jurisdiction
Australia
Judgment Date
02 May 2003
Procedural Posture
Appeal From a Judge of the Federal Court of Australia Concerning an Application to Strike Out a Statement of Claim Alleging Contraventions of S 52 of the Trade Practices Act 1974 (cth). / Application for Leave to Appeal and Appeal Against Orders Striking Out the Statement of Claim.
Outcome
Leave to appeal granted; appeal allowed with costs; matter remitted to the primary judge for determination.
Legal Topics
['misleading or Deceptive Conduct' 'conduct in Trade or Commerce' 'strike Out of Statement of Claim' 'film Production for Profit']
['trade Practices' 'civil Procedure'] ['misleading or Deceptive Conduct' 'conduct in Trade or Commerce' 'strike Out of Statement of Claim' 'film Production for Profit']

Case Brief

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Procedural Posture

Appeal From a Judge of the Federal Court of Australia Concerning an Application to Strike Out a Statement of Claim Alleging Contraventions of S 52 of the Trade Practices Act 1974 (cth). / Application for Leave to Appeal and Appeal Against Orders Striking Out the Statement of Claim.

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the order striking out the statement of claim.' 'Whether the pleaded and particularised facts could support a contravention of s 52 of the Trade Practices Act 1974 (Cth).' 'Whether the alleged representations made to the applicants and their parents to secure interviews for a documentary film were conduct engaged in "in trade or commerce".']

Ratio Decidendi

On the pleaded and agreed facts, it was reasonably arguable that the first respondent's alleged representations to obtain the applicants' participation in interviews were made in dealings integral to the second respondent's commercial activity of producing a documentary film for profit. Although the applicants' relationship with the respondents was not itself commercial, securing interviews could properly be characterised as central to the trading or commercial activity of producing the film. The primary judge therefore erred in striking out the statement of claim on the basis that the alleged conduct could not be in trade or commerce.

Court Disposition

Leave to appeal granted; appeal allowed with costs; matter remitted to the primary judge for determination.

Orders

  • ['The appeal be allowed with costs.' 'The matter be remitted to the primary judge for determination.']