Dimension Data Aust Pty Ltd v Kepper

THE COURT: 1 This is an application for leave to appeal against a decision of Moore J. His Honour dismissed an application by PriceWaterhouseCoopers for an order striking out the cross-claim against them. The circumstances of this case relevant to the present application are set out in his Honour's judgment and it is not necessary to repeat them. Leave should be refused. It seems at least arguable that the state of mind required to establish accessorial liability under s 75B of the Trade Practices Act 1974 (Cth) does not necessarily involve actual subjective knowledge of contravention of s 52. 2 If that is so, it is conceivable a person could be liable under s 75B whilst still acting in good faith. The authorities referred to by his Honour: Wheeler Grace v Pierucci Pty Limited and Wright (1989) 16 IPR 189 at 209 and Paper Products Pty Limited v Tomlinson's Rockdale Limited (1994) ATPR 41,315 at 42,204, lend support to such a view. His Honour was, in our view, clearly right in declining to make a final determination on an important point of law without a full investigation of the factual basis. The application for leave to appeal is refused. There will be an order that the appellant pay the respondents' costs. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Heerey and Hely.