Australian Competition & Consumer Commission v Billbusters Pty Ltd [2003] FCA 423

Australian Competition & Consumer Commission v Billbusters Pty Ltd [2003] FCA 423

The second respondent, Mr Kendrick-Smith, was knowingly concerned in the misleading or deceptive conduct of the first respondent, in contravention of s 52 of the Trade Practices Act 1974 (Cth), by making and causing to be made representations to consumers regarding the supply of telephone account auditing services, where those representations were false or misleading and customers did not receive the promised services. The evidence established no real question to be tried regarding the s 52 claim and no arguable defence was disclosed. However, claims under ss 53 and 58 of the Act involved issues unsuitable for summary determination.

Parties
Applicant: Australian Competition & Consumer Commission; First Respondent: Billbusters Pty Ltd (ACN 081 250 099); Second Respondent: Miles Kendrick-Smith
Jurisdiction
Australia
Judgment Date
08 May 2003
Procedural Posture
Civil / Motion for Summary Judgment; Final Determination
Outcome
Summary judgment for applicant in respect of s 52 claim; cross-claim of second respondent dismissed; declaratory and injunctive relief granted; costs awarded to applicant.
Legal Topics
Misleading or Deceptive Conduct, Summary Judgment, Injunctions, Declaratory Relief
Trade Practices Consumer Protection Misleading or Deceptive Conduct Summary Judgment Injunctions Declaratory Relief

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Parties

Australian Competition & Consumer Commission

Applicant

Billbusters Pty Ltd (ACN 081 250 099)

First Respondent

Miles Kendrick-Smith

Second Respondent

Procedural Posture

Civil / Motion for Summary Judgment; Final Determination

Legal Issues

  1. 1 Whether the second respondent was knowingly concerned in conduct of the first respondent in contravention of s 52 of the Trade Practices Act 1974 (Cth)
  2. 2 Whether false or misleading representations were made regarding services supplied to consumers in trade and commerce
  3. 3 Whether summary judgment should be granted to the applicant under O 20 r 1(1) of the Federal Court Rules

Ratio Decidendi

The second respondent, Mr Kendrick-Smith, was knowingly concerned in the misleading or deceptive conduct of the first respondent, in contravention of s 52 of the Trade Practices Act 1974 (Cth), by making and causing to be made representations to consumers regarding the supply of telephone account auditing services, where those representations were false or misleading and customers did not receive the promised services. The evidence established no real question to be tried regarding the s 52 claim and no arguable defence was disclosed. However, claims under ss 53 and 58 of the Act involved issues unsuitable for summary determination.

Court Disposition

Summary judgment for applicant in respect of s 52 claim; cross-claim of second respondent dismissed; declaratory and injunctive relief granted; costs awarded to applicant.

Orders

  • The second respondent was knowingly concerned in, or party to, the conduct of the first respondent in contravention of s 52 of the Trade Practices Act 1974 (Cth).
  • The second respondent is restrained from representing to members of the public that he performs, or being knowingly concerned in representations by another person that audit services are performed on Telstra accounts, unless he gives written notice to the ACCC 14 days prior to such representations being made,...