Case: Worchild v Queensland Television Ltd [2005] FCA 1792
Outcome: applied
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. 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. 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] FCA 1549 ; (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] FCA 1037 ; (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. 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. 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. 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. 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. 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. 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. 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. I therefore reject the respondent's argument that the applicant's s 60 claims were colourable. The Appropriate Order 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.