Ahmed v Harbour Radio Pty Limited

The Application and the Statement of Claim 17 In her Application, the applicant seeks damages, aggravated damages and punitive damages based upon the causes of action relied upon in the Statement of Claim. 18 The allegations in the Statement of Claim may be summarised as follows: (a) At all material times, the applicant was the owner and operator of the Seafood Lovers business; (b) The Carlingford Court premises from which that business was conducted were leased by GPT Management Limited (GPT) to the applicant and her husband pursuant to a formal written lease; (c) The Seafood Lovers business was a retail fish and chip shop from which both cooked and uncooked fish and associated products were sold to members of the public; (d) The respondent contravened s 60 of the Act. The precise allegations constituting the applicant's s 60 case are found in pars 5 and 6 of the Statement of Claim which are in the following terms: 5. In the period September 2007 - May 2008 the Respondent, contrary to the provisions of Section 60 of the Trade Practices Act (TPA) unduly harassed the Applicant and her business and unduly harassed and coerced GPT to terminate the said lease whereupon GPT terminated the lease by reason of the said undue harassment and coercion and the Applicant was not able to supply goods to consumers and the payments for the goods by consumers were reduced.

6. By reason of the breaches of Section 60 of the said Act the Applicant suffered financial loss and damage and was otherwise seriously wounded and injured and suffered great pain of body and mind. (e) The respondent wrongfully and maliciously induced GPT to breach and terminate the lease of the Seafood Lovers premises granted to the applicant and her husband; (f) The respondent defamed the applicant by broadcasting certain material, a transcript of which is annexed to the Statement of Claim. The defamation is alleged to have occurred during the conversation which Mr Hadley had on air on 21 May 2008 with the father of the employee assaulted by Mr Ahmed. That material is alleged to convey the following imputations, namely that: (a) The Applicant is a grub (paragraphs 1, 95, 96).

(c) The Applicant has brought a false, vexatious and frivolous Application for an AVO against a person called Glen (15-38, 95, 96).

(d) The Applicant is contemptible and should be sent out of business (95, 96).

(e) The Applicant's conduct is disgraceful (95, 96).

(f) The Applicant is unfit to run the business Seafood Lovers (95, 96).

(g) The Applicant condones and does not object to the criminal conduct of her husband (1, 95, 96). (g) The respondent also committed the other torts referred to in [12] above; and (h) Damages are claimed. As mentioned in [12] above, aggravated and punitive damages are claimed in respect of the causes of action based in tort. 19 Particulars of the alleged breaches of s 60 of the Act are provided as follows: The Respondent through and by its employee, servant and agent Ray Hadley, engaged in a campaign against the Applicant, her husband and the business "Seafood Lovers" with the intention of denigrating the Applicant and causing harm and injury to her business. This campaign was conducted by way of radio broadcasts by Mr Hadley on 2GB on 20 September 2007 (4 broadcasts), 7 November 2007 (3 broadcasts) 8 November 2006 [sic] (6 broadcasts), 9 November 2007 (2 broadcasts) and 21 May 2008 (2 broadcasts).

In each broadcast the Respondent denigrated Seafood Lovers and harassed, coerced and made representations to GPT to cancel the lease of Seafood Lovers. In all broadcasts the Respondent made disparaging statements about the Applicant and Seafood Lovers and invited listeners to boycott the business or otherwise not deal with it. These particulars are also given as particulars of the unlawful inducement of breach of contract case and the unlawful interference with trade case. 20 Further particulars referable to the applicant's defamation case and her case for aggravated and punitive damages are also set out in the Statement of Claim. 21 It is apparent from the particulars of the alleged breaches of s 60 of the Act provided in the Statement of Claim that 17 broadcasts made by Mr Hadley in the period from September 2007 to May 2008 are relied upon in support of the applicant's s 60 case and in support of all of the claims which she makes in tort except for the defamation claim. The defamation claim is confined to what was said by Mr Hadley during his on air conversation with the victim's father on 21 May 2008. No particulars have been provided of the substance of what was said during any of the 15 broadcasts which took place in late 2007.

The Case Based on Section 60 of the Act 22 Section 60 of the Act is in the following terms: 60 Harassment and coercion A corporation shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer. 23 There are some important differences between the s 60 case put in the applicant's Written Submissions and that which has been pleaded in the Statement of Claim. 24 In his Written Submissions, Counsel for the applicant explained her s 60 case in the following way: (a) The lease between GPT, as lessor, and the applicant and her husband, as lessees, gave to the applicant certain rights, benefits, privileges and facilities in respect of the leased property; (b) Those rights, benefits, privileges and facilities are services within the meaning of the Act; (c) The services were provided, granted or conferred in trade and commerce; (d) The applicant is a consumer of the services provided by GPT under the lease; (e) The customers of the Seafood Lovers business are indirect consumers in respect of the services provided by GPT and direct consumers in respect of the goods sold by the applicant; (f) The respondent directly unduly harassed and/or coerced the applicant's customers into not dealing with the applicant; (g) The respondent unduly harassed and coerced GPT in connection with the supply of services to the applicant under the lease and in the supply of services or goods to the applicant's customers, being those who purchased the products sold from the Seafood Lovers business; and (h) The harassment and coercion applied to GPT led it to terminate the applicant's lease and the harassment and coercion applied to the applicant's retail customers caused them to boycott the Seafood Lovers business. 25 In the submissions which I have summarised in [24] above, the applicant put forward a case of harassment and coercion of GPT and of the retail customers of the Seafood Lovers business. Counsel for the applicant did not articulate a case based upon harassment and/or coercion of the applicant herself in the Written Submissions filed on behalf of the applicant. 26 The Statement of Claim, on the other hand, contains allegations that the respondent: (a) Unduly harassed the applicant and her business; and (b) Unduly harassed and coerced GPT to terminate the lease which it had granted to the applicant and her husband. The pleaded case based upon harassment of the applicant was relied upon by Counsel for the applicant in his oral submissions. He also relied upon the other ways in which he had put the case in his Written Submissions. 27 I do not think that the applicant has pleaded in the Statement of Claim any case based upon harassment and/or coercion of the customers of the Seafood Lovers business. It is true that, in par 5 of her Statement of Claim, the applicant alleges that the respondent "… unduly harassed the Applicant and her business …" (emphasis added). The second part of that allegation is ambiguous or perhaps meaningless. It may mean that the respondent harassed the business itself by, for example, harassing employees of the business. It may mean that the respondent harassed the customers and potential customers of the business. The position is clarified when regard is had to the particulars of harassment and coercion set out in the Statement of Claim which I have extracted in full at [19] above. In those particulars, Mr Hadley's conduct is characterised as "an invitation" to listeners (a description of a group or class of persons which would include but not be confined to customers and potential customers of the business) to boycott the Seafood Lovers business and otherwise not to deal with it. Those particulars do not amount to an allegation that the broadcasts about which complaint is made constituted harassment of customers, let alone "undue" harassment of customers. The applicant has not sought to amend her Statement of Claim insofar as the cause of action based upon s 60 of the Act is concerned. I will, therefore, approach my consideration of the present application upon the basis that the applicant's s 60 case, as pleaded, does not involve any allegation to the effect that the respondent unduly harassed or coerced the customers of the Seafood Lovers business. The potential for such a case to be put will need to be considered if I need to address the question of whether the applicant should be granted leave to re-plead her s 60 case. 28 The respondent submitted that s 60 of the Act was concerned with harassment and coercion directed at consumers, rather than at suppliers. The respondent submitted that the complaints made by the applicant in her Statement of Claim were that the respondent had unduly harassed her and had unduly harassed and coerced GPT. The respondent submitted, correctly in my view, as I have already indicated, that the applicant does not allege in her pleading that the respondent used physical force or unduly harassed or coerced any consumer or potential consumer of the products sold by the Seafood Lovers business. The respondent also relied upon the fact that the conduct on the part of the respondent about which complaint is made in the Statement of Claim consists entirely of oral communications broadcast by the respondent to the public generally, via talkback radio. 29 Dowsett J in Worchild v Queensland Television Ltd [2005] FCA 1792 at [6] made several observations which generally support the approach to s 60 reflected in the submissions made by the respondent to which I have referred at [28] above. In that case, his Honour held that s 60 is intended to protect consumers. His Honour also held that the conduct about which complaint is made must be in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer. His Honour decided that the expression in connection with in s 60 requires a direct and close connection between the conduct complained of and the actual or possible supply. At [6], his Honour said: As to the claim pursuant to s 60 of the Trade Practices Act, the applicant has not pleaded that the alleged conduct was in connection with the supply or possible supply of goods or services to a consumer, or the payment for goods or services by a consumer. It is likely that his case is that such supply was the delivery of news or other services by the respondent (which owns a television station) to consumers of such services. However, that has not been pleaded. I indicated to the applicant that he might be able to amend, but he said that he thought that it was rather a matter for particulars. Even if the pleading were amended, there would be a further difficulty in that the conduct of which he complains is not in connection with the supply or possible supply of goods or services to a consumer. It is true that the expression, 'in connection with' can have a very wide import. It is also true that the taking of film is undoubtedly a step in the process of supplying news services to consumers, if that is a correct description of what a television station does in its news broadcast. However, in my view, the expression, 'in connection with' in s 60 should be read more narrowly as requiring a direct connection between the conduct complained of and the actual supply. In other words, conduct preparatory to supply is not sufficient. Clearly, the section is designed to protect consumers. Any broader interpretation of the section would go beyond that purpose. 30 In Worchild [2005] FCA 1792, the applicant alleged that a news cameraman employed by Queensland Television Ltd had unlawfully entered his flat and had surreptitiously recorded pictures and sound of the applicant. In that sense, the actions of the cameraman might be said to have been conduct preparatory to the supply of news services to the public but was not sufficiently close to such supply to engage s 60. His Honour confined the scope of the expression "in connection with" in the way that he did because the interpretation given to the section by adopting that approach most appropriately accommodated the purpose of the section viz the protection of consumers. 31 The respondent referred me to five decisions in this Court which it contended supported the narrow interpretation of the expression in connection with which found favour with Dowsett J in Worchild [2005] FCA 1792. The five cases in question were: Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at [63] and [66] (pp 486-487); Australian Competition and Consumer Commission v Davis [2003] FCA 1227 at [21] and [22]; Australian Competition and Consumer Commission v Esanda Finance Corporation Ltd [2003] FCA 1225; Australian Competition and Consumer Commission v Capalaba Pty Ltd [2004] ATPR 41-976; and Australian Competition and Consumer Commission v McCaskey (2000) 104 FCR 8. Those five decisions tend to support the proposition that the connection between the conduct complained of and a supply or possible supply of goods or services to a consumer must be direct and obvious. However, the point was not specifically addressed in any of them and was not the subject of detailed consideration in any of them. 32 In McCaskey 104 FCR 8, at [44]-[53] (pp 25-29), French J (as he then was) explained s 60 of the Act. At [44] (p 25-26), his Honour said: [44] The elements of the conduct prohibited by s 60 are as follows:

1. It is the conduct of a corporation or a person to whom the extended operation of the Act applies.

(a) in connection with the supply or possible supply of goods or services to a consumer;

(b) in connection with the payment for services by a consumer.

(c) coercion. 33 His Honour then referred to some matters of history and then gave a detailed exposition of the section at [47]-[51] (pp 26-28) with which I respectfully agree. In those paragraphs of his judgment, his Honour said: 47 It is the second limb of the conduct defined by s 60 namely "undue harassment or coercion in connection with the payment for goods or services by a consumer" that is in issue in this case. The words of the section are to be given their ordinary meanings relevant to the context in which they appear. The term "harass" as defined in the New Shorter Oxford English Dictionary defines from the French "harasser", a pejorative derivation of the word "harer" meaning "to set a dog upon". The definitions of the word are thus:

"1. Trouble by repeated attacks. Now Freq; subject to constant molesting or persecution.

4. Overwhelm with cares and misfortunes etc -- Chiefly as harassed."

The meaning of primary relevance here is the first, but it is important to have regard to context in considering its application in s 60. In this respect judicial exegesis, in other statutory settings, of concepts such as "sexual harassment" is of little assistance. Sexual harassment under the Sex Discrimination Act 1984 (Cth) does not require a demonstration of repeated unwelcome approaches: Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 231; 85 ALR 503 at 514 (Lockhart J), at 240; 523 (Wilcox J), at 279; 567 (French J). And see O'Callaghan v Loder [1984] EOC 92-023 at 75,505. That proposition derived from the language of s 28(3) of the Sex Discrimination Act. Certainly it is consistent with the ordinary meaning of "harass" as involving an element of repetition to speak of a harassed state of mind arising out of one or more events: Johnson v Collier (1997) 142 FLR 409 at 412 (Anderson J). But there, "harassed" is used in the fourth of the defined meanings and relates to the state of mind of a person induced by an event or events none of them necessarily amounting to harassment. A person can feel harassed because something has gone wrong for which nobody is to blame.

48 The word "harassment" as used in s 60 must serve two broad purposes. It describes a range of conduct, in connection with the supply of goods or services which involve, inter alia, applying repeated pressure to a consumer who is under no pre-existing obligation to acquire. It also describes conduct in relation to a consumer who is under an unfulfilled obligation to pay for goods or services. Given the range of cases that it can cover, the question whether or not there is harassment involves evaluative judgment. The word "undue" adds an extra layer of evaluation which is more relevant to the case of debt recovery than to the sale of goods or services. Repeated unwelcome approaches to a potential acquirer of goods or services could qualify as harassment and, so qualified, require very little additional evidence, if any, to attract the characterisation of "undue harassment". On the other hand a consumer who owes money to a supplier can expect repeated unwelcome approaches requesting payment of the debt if he or she does not pay. No doubt such approaches might also qualify as harassment. If legitimate demands are reasonably made, on more than one occasion, for the purpose of reminding the debtor of his or her obligation and drawing the debtor's attention to the likelihood of legal proceedings if payment is not made, then that conduct, if it be harassment, is not undue harassment. If, however, the frequency, nature or content of the approaches and communications associated with them is such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor rather than convey the demand and an associated legitimate threat of proceedings, the harassment will be undue.

49 Section 60 can also cover cases in which the conduct complained of lacks the element of repetition necessary to constitute harassment, undue or otherwise. This requires consideration of the term "undue coercion".

50 The word "coercion" is defined in the Shorter Oxford English Dictionary thus:

"1. The action of coercing; constraint, restraint, compulsion.

2. Government by force; the employment of force to suppress political disaffection and disorder.

"1. To constrain or restrain by force, or by authority resting on force.

2. To subject to restraint in the matter of (rare) 1780.

51 The collection of debts may involve coercion in the sense that the debtor is subjected to the pressure of the demand and the legitimate threat of civil process for recovery with the additional cost and damage to credit which that can involve. Such pressure may be thought of as coercion but is entirely legitimate and not "undue". Where the demand includes content which does not serve legitimate purposes of reminding the debtor of the obligation and threatening legal proceedings for recovery but is calculated otherwise to intimidate or threaten the debtor, then the coercion may be undue. So if a threat is made of criminal proceedings, or of the immediate seizure and sale of house and property, a remedy not available in the absence of retention of title or some form of security, the coercion is likely to be seen as undue. The threat of criminal proceedings itself may be an offence against State laws. Quite apart from content the manner or circumstances of a demand or communication, including the language used, the time and place at which it is made and the person to whom it is communicated, may go beyond the legitimate purposes of drawing attention to the existence of the obligation and the consequences for non-compliance. Again such a communication may amount to undue coercion. Obvious examples include the use of personally abusive or obscene language, conveying the demand to uninvolved family members, particularly children, or conveying the demand through a third party in order to embarrass the debtor when the debtor could reasonably have been the subject of a direct communication. Each case will turn on its own facts. Some useful examples of situations that may give rise to contraventions of s 60 are set out in the ACCC guidelines entitled "Debt Collection and the Trade Practices Act" published in July 1999. As pointed out of course that publication is not a statement of the law. It can only be a guide. The recovery of unpaid debts can be pursued with firmness, determination and civility. It can do all those things without resorting to bullying, bluff, misrepresentation or stand-over tactics. If it does the first and avoids the second it is unlikely to contravene the law. 34 His Honour did not specifically address the question of what is meant by "in connection with" in s 60 of the Act. At [48] (p 27), his Honour did speak of pressure being applied to a consumer. The examples which his Honour gave were examples of pressure being applied to a consumer in that person's capacity as a consumer. But his Honour was not called upon to decide whether the expression "in connection with" should be construed widely, as is often the case, or narrowly by reference to the purpose for which s 60 was enacted. 35 As the respondent submitted, correctly I think, there are only a handful of decisions in this Court which deal with s 60 of the Act. Most do not descend into any reasoned analysis of the section because the section appeared clearly to apply. There is no Full Court authority and no High Court authority on the meaning of the section. 36 I should follow Dowsett J in Worchild [2005] FCA 1792 unless I am satisfied that his Honour was clearly wrong. I am not so satisfied. 37 I will therefore approach the interpretation of s 60 upon the basis that the expression "in connection with" requires a direct connection between the conduct complained of and the actual or possible supply of goods or services to a consumer. I consider, however, that construing the expression in this way does not necessarily mean that, as a matter of law, in every case, the harassment of which complaint is made must be harassment of a consumer in that person's capacity as a consumer and can never be constituted by the harassment of another person (who may or may not also be a consumer) directed or aimed at a consumer under actual or possible arrangements of supply. 38 The respondent submitted that the harassment of a supplier can never be conduct which is caught by s 60 of the Act. I am not convinced that this submission is correct. I do not think I have to go as far as the respondent submits in order to decide the present application. 39 In the present case, the applicant alleges that Mr Hadley unduly harassed the applicant herself, unduly harassed and coerced GPT and unduly harassed and coerced the applicant's customers. 40 Coercion involves proximate compulsion, physical pressure or force. No facts or matters are pleaded in the present case which could conceivably be characterised as the use of coercion by Mr Hadley. Nothing has been put to me to suggest that such a complexion could be put upon Mr Hadley's conduct. 41 Rather, the focus of the argument was on the concept of "undue harassment". Harassment also involves conduct directed at the person harassed in an immediate and direct fashion. It usually involves repetition. The assessment of whether conduct is properly characterised as harassment involves an evaluative judgment (per French J in McCaskey 104 FCR 8 at [48] (p 27)). The word "undue" adds an extra layer of evaluation (per French J in McCaskey 104 FCR 8 at [48] (p 27)). To be "undue", the harassment must be disproportionate and patently unreasonable. These views as to the meaning of the core expressions in s 60 of the Act were supported by Hill J in Australian Competition and Consumer Commission v Maritime Union of Australia 114 FCR 472 at [60]-[62] (pp 485-486). 42 The respondent submitted that Mr Hadley's conduct could not conceivably constitute harassment or undue harassment of GPT, the applicant or the customers of the Seafood Lovers business. It was submitted that the quality of his conduct just does not fit the meaning of the expression "undue harassment" as used in s 60 of the Act. 43 The respondent also submitted that the necessary connection between Mr Hadley's conduct and the supply or possible supply of goods or services to one or more consumers or the payment for such goods or services by one or more consumers was not pleaded and could not be pleaded. This second point depends to a large extent upon my accepting Dowsett J's relatively narrow interpretation of the expression "in connection with" in s 60. 44 The respondent submitted that the applicant's case based upon s 60 of the Act was hopeless and was also colourable. Were I to conclude that the case was colourable, the proceedings should be dismissed with costs. 45 The essence of Mr Hadley's on air remarks was the repeated denigration of the applicant and her husband and the repeated exhortation of their customers to boycott the Seafood Lovers business. In the pleading, the applicant also alleges that, in his on air remarks, Mr Hadley harassed and coerced GPT to terminate the lease. 46 Mr Hadley's broadcasts were made to those members of the public at large who were able to receive a signal from Radio 2GB. Those broadcasts could be heard by any member of the public who could receive 2GB's broadcasts and who might care to turn on his or her radio and listen to Mr Hadley. That class of persons might well have included the applicant, officers or employees of GPT and customers and potential customers of the Seafood Lovers business. It might also have included other persons who, in some way, might have interacted with the applicant, her customers or GPT personnel in a way which could be appropriately described as harassment of one or more of them. This harassment by intermediaries could conceivably be attributable to Mr Hadley although such a case would be extremely difficult to plead and make good. 47 In the present case, the applicant has not pleaded any facts or matters that would enable the Court to assess whether Mr Hadley's conduct was capable of constituting undue harassment in any of the three ways in which the s 60 case was, in general terms, put on behalf of the applicant in the submissions made by her Counsel. More importantly, the applicant has not pleaded facts and matters that are capable of establishing the necessary connection between Mr Hadley's conduct and any of: (a) The termination of the lease by GPT; (b) Some conduct (as yet unspecified) engaged in by the applicant which caused the loss for which she seeks damages; or (c) The boycotting of the Seafood Lovers business by customers or potential customers of that business. Nor has the applicant pleaded facts and matters which link the impugned conduct in a direct way to the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer. 48 At the very least, insofar as the case based upon the undue harassment of GPT is concerned, the applicant would need to plead that officers or employees of GPT heard the relevant broadcasts; that those personnel were repeatedly bombarded by Mr Hadley in a way that amounted to undue harassment; that, in response to Mr Hadley's campaign, GPT terminated the lease in circumstances where it was not lawfully entitled to do so; and, as a result of the termination of the lease, the Seafood Lovers business was destroyed. No attempt has been made to plead any such facts and matters. The pleading does not make clear which of Mr Hadley's remarks were communicated to GPT, how or when they were communicated to GPT, how those remarks led to GPT terminating the lease or how the termination of the lease resulted in the loss claimed. The pleading does not make clear what connection (if any) between Mr Hadley's remarks and the supply of services under the lease is said to exist and thus does not enable the Court or the respondent to come to a view as to whether that connection is sufficiently close as to constitute an appropriate link for the purposes of s 60 of the Act. 49 Furthermore, it is obvious that GPT is not relevantly a consumer of any goods or services in the circumstances of the present case. Rather, it is a supplier of services under the lease. The respondent argued that the harassment or coercion of a supplier of goods or services or directed at a supplier of goods or services cannot be conduct proscribed by s 60 of the Act. I do not need to come to a final view on this point because the pleading is, in any event, deficient. 50 Insofar as the case based upon harassment of the applicant herself is concerned, the only supply relied upon by the applicant as being the relevant supply connected to Mr Hadley's broadcasts is the supply of services by GPT under the lease. Even if the applicant were able to plead facts and matters that would arguably show that she was directly harassed by Mr Hadley's on air remarks, she would need to confront the problem that the alleged harassment of her was not engaged in by Mr Hadley in connection with the supply of services by GPT under the lease. He was not putting pressure on her in relation to that supply. As with the case based upon the alleged harassment of GPT, no facts or matters are pleaded which articulate an appropriate connection between Mr Hadley's remarks and the relevant supply. Furthermore, the pleading does not articulate how the harassment of the applicant herself led to the destruction of the Seafood Lovers business. 51 The potential (but, as yet, not pleaded) case based upon the undue harassment of customers and potential customers of the Seafood Lovers business suffers from similar defects. It is not sufficient for the applicant simply to refer to the broadcasts (including Mr Hadley's urgings that the Seafood Lovers business be boycotted) and to rely upon the mere fact that each of the broadcasts took place. The applicant would have to allege that particular persons listened to the broadcasts, were unduly badgered and tormented by them and, as a result, boycotted the business, thus causing financial loss to the applicant. Not only does the applicant not plead such a case but, in my view, having regard both to the particulars of the s 60 case currently relied upon by the applicant in the Statement of Claim and to the undisputed facts of the matter, it would be impossible for the applicant to produce a satisfactory s 60 pleading based upon the harassment of existing and/or potential customers. It seems clear that Mr Hadley urged, cajoled and exhorted the customers and potential customers of the Seafood Lovers business to boycott the business. He did not harass them, let alone unduly harass them. In the pleading, the applicant currently characterises his conduct as an "invitation" to the customers to boycott the Seafood Lovers business. 52 The respondent submitted that the Court should be slow to curtail freedom of speech by allowing s 60 of the Act to be used to gag public discussion of matters of public concern. The concept of undue harassment could, in an appropriate case, cover verbal abuse or conduct falling well short of physical interaction. Indeed, the language of the section itself contemplates that the prohibition contained in the section encompasses more than the application of physical force. 53 However, remarks made during a radio broadcast accessible by a large part of the public would generally not generate a sufficiently direct connection between those remarks and the supply or possible supply of goods or services to a consumer as to constitute harassment or coercion in connection with such supply. Much more would usually be required. 54 There is nothing more relied upon in the current pleading. The supply focussed on by the applicant in her pleading is the supply of services under the lease. Even if that supply is properly characterised as a supply of services to a consumer, as the pleading currently stands, the remarks made in the 17 radio broadcasts relied upon do not have a sufficiently direct connection to that supply to constitute harassment or coercion in connection with that supply within the meaning of s 60. 55 The applicant's pleaded case based upon s 60 of the Act is bound to fail and should be struck out. The potential s 60 case based upon the alleged harassment of customers is hopeless. I would not give leave to the applicant to re-plead her s 60 case so as to include a case based upon that subject matter. My present view is that the applicant would almost certainly be unable to plead a s 60 case based upon the undue harassment or coercion of the applicant herself or of GPT were I to grant leave to her to re-plead such a case. She did not seek leave to re-plead such a case and appeared to be content for the Court to proceed upon the basis that she had put her best foot forward in pars 5 and 6 of the Statement of Claim read with the particulars extracted at [19] above. In the circumstances, I propose not to give to the applicant leave to re-plead her s 60 case. This conclusion does not prevent the applicant from seeking to plead such a case in the future by seeking leave to amend her Statement of Claim were she minded and able to do so. 56 For these reasons, I propose to strike out pars 5 and 6 of the Statement of Claim and the following words in the heading to the Particulars on p 3 of the Statement of Claim, namely, "Breaches of Section 60 TPA". My intention in striking out that matter is to strike out the s 60 claims in their entirety.

Was the Section 60 Claim Colourable? 57 In Cook v Pasminco Ltd (2000) 99 FCR 548 at [15]-[17] (pp 550-551), Lindgren J held that, because the federal claims pleaded in the case before him were hopeless and clearly untenable, those claims were not genuine and were colourable or fabricated in order to engage the jurisdiction of this Court and for no other purpose, there being no evidence to the contrary. 58 The expressions used by his Honour in respect of the federal claims with which he was dealing were "obviously doomed to fail", "clearly untenable" and "quite hopeless". In using those expressions, his Honour was seeking to convey the notions that: (a) The claims were not arguable; and (b) The hopelessness of the claims was obvious and must have been obvious to those who propounded them. 59 In Cook v Pasminco Ltd 99 FCR 548, his Honour held, amongst other things, that toxic emissions from plants were not "supplied" by the respondents. The claim was that those emissions had been supplied by the respondents with a defect, in breach of s 75AD and s 75AG of the Act. His Honour had no difficulty in concluding that the claims were colourable. He did so because they were very obviously untenable. 60 Not every claim which is ultimately held to have failed or which is struck out as untenable would justify the conclusion that it was colourable. 61 In Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212, a Full Court of this Court held that the Northern Territory and a statutory authority of the Territory were not bound by the Act. Nonetheless, the Court held that there was accrued jurisdiction in this Court in respect of the common law claims brought against them. The Court said (18 FCR at 219): It is true that in answering questions 1 and 2 in the negative, we have determined preliminary points of law in the claims under the Act brought against the second and third respondents; and that, in consequence, there will be no further trial of those issues. But it does not follow that the Court ever lacked jurisdiction to deal with such claims. Nor does it follow that the Court now loses its jurisdiction to deal with the attached common law claims: see Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 469, 472, 477; Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) ATPR 40-795; 75 ALR 271, and Dorotea Pty Ltd v Vancleve Pty Ltd (1987) ATPR 40-807; 75 ALR 629. In principle, the position is no different than it would have been if the claims under the Act had proceeded to trial and had been dismissed on the merits. In that situation, it could not seriously be suggested that the dismissal of the claims under the Act had the effect of depriving the Court of jurisdiction to deal with any attached non-federal claim.

The position may have been different if the claims under the Act had been "colourable" in the sense that they were made for the improper purpose of "fabricating" jurisdiction: see P H Lane, Lane's Commentary on the Australian Constitution (1986), pp 367-368 and the cases there cited. There is no room for such a suggestion here. The applicants' case that the second and third respondents were bound by the Act cannot be said to be unarguable; and we think it was pursued bona fide: cf R v Cook; Ex parte Twigg (1980) 147 CLR 15 per Gibbs J at 26.

62 Those statements were entirely in line with observations to the same effect made in Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629 at 632 and in Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410 at 415-416 (per Gummow J). 63 In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564, after referring to Burgundy Royale Investments Pty Ltd 18 FCR 212, French J (as he then was) (with whom Beaumont and Finkelstein JJ agreed) said (at [86]-[88]) (pp 598-599): 86 … It is also the case, on authority previously discussed, that the point of law could have been determined on a motion to strike out portions of the statement of claim raising the federal causes of action against the Territory respondents. In that sense it could properly have been said that the claim was not tenable as a matter of law. No relevant distinction could be drawn between the process of determining the point of law as a case stated or on a preliminary issue and determining it on a strike out motion. Indeed Burgundy Royale was cited by the Full Court in Unilan Holdings Pty Ltd v Kerin at 481 as authority for the proposition that the striking out of a portion of a pleading relating to a claim under the Trade Practices Act did not thereby deprive the Court of jurisdiction to hear a related claim in negligent mis-statement. See also Hooper v Kirella Pty Ltd at 15. The mere fact that a claim is found not to be tenable does not of itself deprive the Court of jurisdiction in non-federal claims comprising part of the same matter.

87 If there be no federal jurisdiction properly invoked then there can be no accrued jurisdiction - Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553 and see the discussion by Professor Zines, "Federal Associated and Accrued Jurisdiction", in B Opeskin and F Wheeler (eds) - The Australian Federal Judicial System (2000), pp 294-295 and the apparent tension between Vietnam Veterans' Affairs Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419 on the one hand and Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 at 565 (Davies J) and Buck v Comcare (1996) 66 FCR 359 at 370 (Finn J). The Court in such a case of course does have a limited jurisdiction to determine whether its jurisdiction is properly invoked - Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd (1999) 94 FCR 384; Khatri v Price (1999) 95 FCR 287.

88 In the ordinary course the contention that a claim is not tenable will not go to jurisdiction unless dependent upon a submission that the claim is outside jurisdiction. And indeed, within that class a claim may be untenable because its very nature denies its character as an element of any matter or controversy in respect of which the Court can exercise jurisdiction. So a proceeding based upon the proposition that the Commonwealth Constitution is invalid does not disclose a matter arising under the Constitution or involving its interpretation - Nikolic v MGICA Ltd [1999] FCA 849. A claim may also be a sham reflecting no genuine controversy and therefore establishing no matter in respect of which the Court may exercise its jurisdiction. There has been discussion of so called "colourable" claims made under the Trade Practices Act for the improper purpose of fabricating jurisdiction. The mere fact that a claim is struck out as untenable does not mean it is colourable in that sense. The pleading of the s 52 claim in this case advanced the legitimate forensic purpose of endeavouring to establish a cause of action which would not require proof of a duty of care. Notwithstanding its precipitate initiation and chequered history, I am not satisfied that it was colourable in the sense that would deprive this Court of jurisdiction to deal with the matter including any non-federal claims that may form part of it. 64 I agree with French J that the mere fact that a claim is struck out as untenable does not mean that it is colourable in the sense that it was made for the improper purpose of fabricating jurisdiction. 65 The respondent accepted these propositions. It nonetheless submitted that the applicant's claim was colourable because: (a) It was very obviously doomed to fail; (b) The applicant failed to respond to the respondent's solicitor's correspondence in which assertions to the effect that the claim was colourable were made; (c) The common law claims made by the applicant (other than her defamation claim) are based on identical facts to those relied upon in support of her s 60 claim; and (d) The common law actions dominate the pleading. 66 Factors (b), (c) and (d) seem to me to be, at best, neutral. None of them, whether looked at on its own or in combination with one or more of the others, advances the respondent's submission. 67 Further, I do not think that the flaws in the applicant's s 60 claim were or are so obvious that its untenability should weigh so heavily in the balance against the applicant as to lead me to conclude that her s 60 claim was colourable. There is a limited amount of authority on the correct interpretation of s 60 of the Act. There is only one case that expressly comes to grips with the meaning of the expression "in connection with" in s 60. The observations of Dowsett J in Worchild [2005] FCA 1792 were brief and made in the context of a strike out application. I am not necessarily in agreement with one of the respondent's principal legal submissions, namely, its submission that the harassment contemplated by s 60 must be of a consumer in that person's capacity as a consumer. The applicant was entitled to test the boundaries of s 60 for her own legitimate forensic advantage. In my view, that is what she did. The s 60 case was not colourable. 68 I therefore reject the respondent's argument that the applicant's s 60 claims were colourable.

The Appropriate Order 69 It follows from the conclusions which I have so far reached that, notwithstanding that I have struck out the applicant's s 60 claims, I consider that the Court has jurisdiction to deal with the remaining claims made by her. They are all common law claims, the most dominant of which is her claim in defamation. They remain within the accrued jurisdiction of this Court. 70 The question which now arises for consideration is: Should this Court proceed to hear and determine those claims or should they be transferred to the Supreme Court of New South Wales? 71 The only claim for relief made by the applicant is her claim in damages. The Supreme Court can more than adequately deal with a damages claim. All of the remaining causes of action relied upon by the applicant are common law claims in tort. These are clearly within the jurisdiction of the Supreme Court. Should the applicant seek to include a s 60 claim at some time in the future, the Supreme Court would have jurisdiction to determine that claim as well. 72 This Court has the power to transfer the whole of the proceedings to the Supreme Court. That power is specifically conferred by s 86A of the Act. Section 86A(1), (2) and (3) are in the following terms: 86A Transfer of matters

(a) a civil proceeding instituted (whether before or after the commencement of this section) by a person other than the Minister or the Commission is pending in the Federal Court; and

(b) a matter for determination in the proceeding arose under Part IVA or IVB or Division 1, 1A or 1AA of Part V;

the Federal Court may, subject to subsection (2), upon the application of a party or of the Federal Court's own motion, transfer to a court of a State or Territory the matter referred to in paragraph (b) and may also transfer to that court any other matter for determination in the proceeding.

(2) The Federal Court shall not transfer a matter to another court under subsection (1) unless the other court has power to grant the remedies sought before the Federal Court in the matter and it appears to the Federal Court that:

(a) the matter arises out of or is related to a proceeding that is pending in the other court; or

(b) it is otherwise in the interests of justice that the matter be determined by the other court.

(3) Where the Federal Court transfers a matter to another court under subsection (1):

(a) further proceedings in the matter shall be as directed by the other court; and

(b) the judgment of the other court in the matter is enforceable throughout Australia and the external Territories as if it were a judgment of the Federal Court. 73 The respondent accepted that, were I of the opinion that the applicant's s 60 case was not colourable but that it should nonetheless be struck out, the Court retained jurisdiction in the matter. The respondent submitted that, in that event, the Court could and should transfer the whole of the proceedings to the Supreme Court. Counsel for the applicant did not really argue against transfer should I come to the conclusions hypothesised. Rather, he submitted that the proceedings should be transferred to the District Court of New South Wales. He did not seek to support that submission with any detailed reasons as to why that course should be adopted. I do not propose to transfer the proceedings to the District Court. 74 In the present case, I must not transfer the proceedings to the Supreme Court unless it appears to me that it is otherwise in the interests of justice that the matter be determined by the Supreme Court (s 86A(2)(b)). 75 In this context, the expression "interests of justice" should be given a wide interpretation. The Court is entitled to consider, in addition to issues concerning jurisdiction, remedies and enforcement: … adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. (per Wilcox J in Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394). 76 The respondent made the following submissions in support of its application that the whole of the proceedings be transferred to the Supreme Court: (a) The proceeding is fundamentally a common law proceeding and, as such, is more appropriately dealt with in a State court. The dominant cause of action is the cause of action in defamation; (b) All aspects of the proceeding, including the parties, the conduct alleged and the damage suffered are connected with New South Wales. There are no issues of a national character, nor any issues which would require consideration of the law of a place other than New South Wales. There are no factors referable to convenience which would render a hearing in New South Wales inappropriate. After all, were the matter to remain in this Court, the hearing would take place in Sydney; and (c) In substance, the proceeding is a defamation proceeding and, as such, is more appropriately dealt with in a State court which has specialist expertise. In particular, there are important procedural advantages available should the matter be transferred to the Supreme Court, including a specialist list for defamation matters, specialist defamation case management rules and a prima facie entitlement to a trial by jury. Were the matter transferred to the Supreme Court, the respondent would have an opportunity to elect to have a trial by jury, subject always to the overall control by the Supreme Court of whether, in fact, in any particular case, some or all of the issues involved should be tried with a jury. However, there was a strong likelihood that, if the respondent wished to have a trial with a jury, the trial would be with a jury. 77 These submissions are correct. The interests of justice will be best served by the applicant's common law claims being tried in the court where they are usually tried. This is particularly so when, as here, the dominant claim is her claim in defamation. The circumstances of this case may be contrasted with those considered by Tamberlin J in Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd [2002] ATPR 41-866. In that case, the federal claims were an important part of the case, remained on foot and, in part, involved parties not concerned with the alleged defamation. 78 This is not to say that, were the proceedings retained in this Court, the trial would not be with a jury. The real point is that the Supreme Court is best equipped in terms of its procedures and expertise to hear and determine the present proceedings when sensible regard is had to the substance of the claims made in the proceedings. 79 For these reasons, I propose to order that the whole of the proceedings be transferred to the Supreme Court of New South Wales.

Other Matters 80 Because I have decided to transfer the whole of the proceedings to the Supreme Court of New South Wales, I do not need to consider whether, were the proceedings retained in this Court, the trial should be with a jury. 81 In addition to the matters with which I have already dealt, the respondent made detailed submissions in its Written Submissions directed to its application that the balance of the Statement of Claim be struck out. Those Submissions raise pleading points. In particular, complaint is made as to the formulation of the imputations which the applicant contends arise from the defamatory matter. In answer to some of these submissions, the applicant suggested that she might amend her defamation pleading. 82 In light of the other decisions which I have made, I do not think that I should entertain the respondent's strike out application in respect of the common law claims made by the applicant. These matters are best dealt with by the court which will be called upon to hear and determine the matter on a final basis ie the Supreme Court. 83 The parties should confer with a view to resolving their differences in respect of the pleading of the common law causes of action. In the event that no sensible resolution is reached, it will be open to either party to make an appropriate application to the Supreme Court in respect of the pleading of those causes of action. I wish to make it quite clear that I have not determined the respondent's current strike out application in respect of the balance of the Statement of Claim and that my decision not to do so cannot operate prejudicially to the respondent should it wish to make a similar application to the Supreme Court in respect of the pleading of those causes of action. Similarly, nothing I have said should affect any entitlement which the applicant may have to seek leave from the Supreme Court to amend her pleading in such manner as she may be advised.

Conclusions 84 For all of the above reasons, I propose to strike out the applicant's s 60 claims, to transfer the whole of the proceedings to the Supreme Court of New South Wales and to make no other orders save an appropriate order as to costs. 85 The several applications made by the respondent were, to some extent, made in the alternative. They were advanced in a sensible and logical order. Although I have rejected the respondent's contention that the s 60 claims were colourable and declined to deal with the last group of strike-out applications made by the respondent in respect of the common law pleadings, the respondent has substantially succeeded in the applications which have been determined by these Reasons for Judgment. In a letter dated 26 September 2008 from the respondent's lawyers to the lawyers for the applicant, the respondent foreshadowed at least some of the arguments which it ultimately advanced in the present applications. They contended in that letter that the s 60 claims were unarguable. They asserted that those claims had been included only for the purpose of attempting to attract the Federal Court's jurisdiction. They offered to bear their own costs should the applicant discontinue the present proceedings promptly. The applicant's lawyers did not respond to that letter and the present applications were then made. 86 Given the substantial success achieved by the respondent, I think that the appropriate order for costs is that the applicant pay the respondent's costs of and incidental to the hearing of the respondent's Notice of Motion filed on 9 October 2008. I will make an order in those terms. The parties' costs otherwise incurred to date should abide the final determination of the proceedings in the Supreme Court of New South Wales. 87 The respondent seeks its costs on an indemnity basis. I do not think that the circumstances of the present case justify an order for costs on an indemnity basis. The respondent has not had complete success. In particular, it has not succeeded in its contention that the s 60 claims were colourable. The debate before me was not caused by manifestly unreasonable conduct on the part of the applicant or her lawyers. I think that the costs should be paid on the party/party basis. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate: Dated: 1 October 2009 Counsel for the Applicant: Mr CA Evatt with Mr R Rasmussen

Counsel for the Respondent: Mr RG McHugh SC with Ms M Nagy