Australian Competition and Consumer Commission v Sampson [2011] FCA 1165 (17 October 2011)


11 The Court has the power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth). Any declaratory order made in the exercise of this power must be directed to quelling legal controversy between parties. The applicant must have a real interest in obtaining the relief sought: see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-2. There must also be a proper contradictor: Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437-8.
12 Each of these requirements is satisfied in the present proceeding. A dispute has existed between the parties as to whether or not Ms Sampson had engaged in contraventions of s 52 of the Act. The ACCC is a public body which had power under the Act to bring enforcement proceedings. Declaratory orders of the kind proposed serve the public interest by making it plain that conduct such as that admitted by Ms Sampson contravenes the Act: see Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 at 333; Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at 91.
13 In Forster Gibbs J (with whom McTiernan, Stephen and Mason JJ agreed) adopted Lord Dunedin’s description of a proper contradictor (in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438 at 448) as “one presently existing who has a true interest to oppose the declaration sought”: see at 438. In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382 Perram J added a requirement that the proper contradictor must not only be a party but must argue against the granting of relief: see at [32]. In adding this requirement his Honour considered himself bound by the joint judgment of Keely and Beaumont JJ in BMI Limited v Federated Clerks Union of Australia (1983) 51 ALR 401.
14 More recently, Dodds-Streeton J has held that the true ratio of BMI is much narrower and that, in any event, the decision is distinguishable: see Australian Competition and Consumer Commission v Willesee Healthcare Pty Ltd (No 2) [2011] FCA 752 at [32]- [43].
15 I respectfully agree with her Honour’s analysis. In BMI the failure of the respondents actively to oppose the making of declarations was but one of a number of factors which led the Court, in the exercise of its discretion, to refuse relief. Forster, in my view, establishes that a person will be a “proper contradictor” provided that he or she has a genuine interest in resisting the grant of relief. Ms Sampson is a proper contradictor notwithstanding her agreement to the making of the proposed declarations. Despite her willingness to compromise her position in the litigation she retained a genuine interest in resisting the granting of the declarations.
16 One of the reasons for requiring that there be a proper contradictor is to ensure that the Court is supplied with a factual foundation for the making of orders. Some judges have expressed reservations about whether this requirement can be satisfied in circumstances where the parties have reached agreement as to the facts and the orders which should be made. These reservations can be traced to the statement of Keely and Beaumont JJ in BMI at 412-3, that declarations “ought not to be made merely on admissions of counsel or by consent, but only if the court is satisfied by evidence.” This statement of principle led Finkelstein J to hold, in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [2009] FCA 960 at [19], that the Court should “not grant a declaration involving a public right in the absence of evidence that supports the declaration.” Statements of agreed facts did not constitute “evidence” for relevant purposes. See also: Australian Competition and Consumer Commission v Cosic Holdings Pty Ltd [2009] FCA 1579; Australian Competition and Consumer Commission v Wilson Parking 1992 Pty Ltd [2009] FCA 1580 (per Barker J).
17 Other judges have, however, been prepared to grant declaratory relief on the evidentiary foundation provided by a statement of agreed facts which has been made in accordance with the requirements of s 191 of the Evidence Act 1995 (Cth): see Australian Competition and Consumer Commission v Skins Compression Garments Pty Ltd [2009] FCA 710 (per Besanko J); Minister for Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58; (2010) 183 FCR 10 (per Stone J); MSY Technology at [27] (per Perram J). An ‘agreed fact’ is one which the parties to a proceeding have agreed will not be disputed in that proceeding: see s 191(1). Whilst agreement as to a fact will not necessarily be determinative of the truth of that fact, evidence need not be brought to prove its existence: see s 191(2)(a).
18 In my view the agreed statement of facts, when considered in light of s 191, provides a sufficient basis for the making of the declarations sought in the present proceeding. The agreed statement clearly identifies the impugned statements and the reasons that those statements are misleading and deceptive. The declarations which are sought accurately describe the contravening conduct.