Houghton v Arms

[2006] HCA 59

Judgment: 13 December 2006

Before: Gleeson CJ, Gummow, Hayne, Heydon, Crennan JJ

Trade practices – Misleading or deceptive conduct in trade or commerce – Where appellant employees of a corporation made misleading or deceptive statements to respondent in the course of their employment – Where the corporation was sued for contravention of s 52 of the Trade Practices Act 1974 (Cth) (“the Commonwealth Act“) by reason of the conduct of the appellants – Where the appellants were also sued for contravention of s 9 of the Fair Trading Act 1999 (Vic) (“the State Act”) – Whether each appellant was a “person” for the purposes of s 9 of the State Act – Whether conduct of each appellant was “in trade or commerce” for the purposes of s 9 of the State Act.

Statutes – Statutory construction – Construction of s 9 of the State Act – Where the Commonwealth Act and the State Act have concurrent and overlapping operation – Where the Commonwealth Act had, but the State Act did not have, provisions imposing accessorial liability upon persons “involved” in a contravention – Where the Commonwealth Act had, but the State Act did not have, provisions deeming conduct engaged in on behalf of a corporation to have been engaged in by the corporation – Whether s 9 of the State Act is to be construed so as not to apply to persons who were not engaged in trade or commerce on their own account.

Words and phrases – “in trade or commerce”.

Trade Practices Act 1974 (Cth), ss 52, 75, 75B, 82, 84.

Fair Trading Act 1999 (Vic), ss 9, 159.

Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ:

45. … A submission by the respondent that a person who subsumes his personality in a company cannot be guilty both as a principal offender in his corporate persona and as an accessory was rejected. The respondent was “the mind of the company” so that it was liable as principal; but that did not gainsay his liability as an accessory under the particular section providing for accessorial liability.

46. So far as the reasoning in Hamilton has any bearing upon the construction of s 9 of the FT Act, it assists the respondent not the appellants. Their Honours stressed[34], with reference to remarks of Bray CJ in R v Goodall[35], that recognition of the distinct legal identity of a corporation had the consequence that in law the act of an individual might be both a corporate act and the separate act of the actor as an individual.

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd

[1982] HCA 44

Hearing: 1981, 9 April, 11 August 1982.

Decision: 11 August 1982

Before: Gibbs CJ, Mason, Murphy, Brennan JJ. The Hon. Mr Justice Aickin died before judgment was delivered in this case.

Trade Practices – Consumer protection – Misleading or deceptive conduct – Conduct likely to mislead or deceive – Selling goods virtually identical to goods manufactured by another – Goods tagged with manufacturer’s label – Trade Practices Act 1974 (Cth), s. 52(1)*.

*Section 52(1) of the Trade Practices Act 1974 (Cth) provides:
misleading or deceptive or is likely to mislead or deceive.”

Gibbs CJ:

7. … A corporation which has acted honestly and reasonably may therefore nevertheless be rendered liable to be restrained by injunction, and to pay damages, if its conduct has in fact misled or deceived or is likely to mislead or deceive.