been considered by the High Court on appeal in the matter of Muller v Fencott and Others, a decision of Toohey J. reporte

Federal Court of Australia|1983-02-22|Before: Fisher J, Toohey J

SOUTH AUSTRALIA DISTRICT REGISTRY No. S.A. G.38 of 1981

ROSS MELVILLE LUCAS and TREASUREWAY STORES PTY. LTD. and KFVIN THOMAS MAHONEY

ORDER JUDGE MAKING ORDER 3 Fisher J WHERE MADE : Adelaide DATE : 22 February 1983

The question of costs payable by the respondent Kevin Thomas

SOUTH AUSTRALIA DISTRICT REGISTRY No. S.A. G.38 of 1981

Applicants

and - ROSS LUCAS PTY. LTD. and ROSS MELVILLE LUCAS and

TREASUREWAY STORES PTY. LTD. and KEVIN THOMAS MAHONEY

Bearing in mind certain delays which have unavoidably occurred I propose to give my decision in this matter at once. On this occasion Mr. Lambert has appeared on behalf of Mr. Mahoney and has, to my mind, said everything that can be said in the circumstances on his behalf. The position 1s that the applicants have requested me to enter judgment now against the respondent Kevin Thomas Mahoney, as an aider and abettor or a party knowingly concerned under section 75B of the Trade Practices Act 1974 and are asking me to enter

judgment against him for the amount of the damages previously assessed.

Earlier I had at the suggestion of the parties refrained from considering the position of Mr. Mahoney because the provisions of

section 75B of the Trade Practices Act 1974 were to be and have now

been considered by the High Court on appeal in the matter of Muller v

Fencott and Others, a decision of Toohey J. reported (1982) A.T.P.R.

43,401. Judgment has not to date been delivered. In that matter there was a challenge to the jurisdiction of the Federal Court in circumstances somewhat similar to this. The essence of the challenge

was that the Trade Practices Act 1974 was invalid insofar as it

This jurisdictional point was not taken in the pleadings and there has been no compliance by Mr. Mahoney with the provisions of Order 51

of the Rules of this Court. However, this application is now before

me and it is before me no doubt because there is evidence that Mr. Mahoney has disposed of one of his assets by way of voluntary

In my principal reasors for judgment I have made all necessary findings of fact on the extent of Mr. Mahoney's involvement in the

contravention of the relevant section of the Trade Practices Act 1974,

and in my reasons for judgment in respect of the liability of the respondent Ross Melville Lucas I gave extensive consideration to section 75B of the Trade Practices Act 1974 and the circumstances in which it applied. I adopt my earlier reasoning and findings of fact

In my opinion the facts establish that there is no doubt Mr. Mahoney did aid and abet or, alternatively, was knowingly concerned in the contravention by Treasureway Stores Pty. Limited. He, in one instance, made a relevant representation concerning turnover, and on a number of other occasions gave instructions to Mr. Lucas to make these

representations. It seems to me, therefore, that the facts

abundantly establish that by virtue of the provisions of section 75B of the Act he is a person involved in that contravention and

therefore liable under section 82 of the Trade Practices Act 1974

On the matter of my jurisdiction in this matter I follow and

adopt the reasoning of Toohey J. at first instance in Muller v Fencott

and Others and I hold this Court has the necessary jurisdiction. I therefore enter judgment against the respondent Kevin Thomas Mahoney in the sum of $73,000, being the amount awarded against the respondent, Treasureway Stores Pty. Limited, in favour. of the applicants; and I so

I reserve for further consideration the question of the costs

| certify that this and the -Z preceding Pages are a true copy of the Reasons tor

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties