Case: Wong (as Executor of the Estate of the Late Casey Wong) v Citibank Limited [2004] NSWCA 396
Outcome: cited
The matter went on appeal to the Court of Appeal and is reported sub nomine Wong (as Executor of the Estate of the Late Casey Wong) v Citibank Limited [2004] NSWCA 396. 289 Mr Wong, who died subsequent to the trial, was the general manager of the corporation of which Ms Liu was the principal. His executor appealed against the finding of the trial judge that Mr Wong had breached s 42 of the Fair Trading Act (NSW). The Court of Appeal said at [17]-[19]: 'In the course of his reasons, the trial judge referred to John G. Glass Real Estate Pty. Limited v. Karawi Constructions Pty. Limited (1993) ATPR 41-249, where the Full Court held that an agent (in that case a real estate agent), who had transmitted a false misrepresentation to it by the owner, itself engaged in conduct that was misleading and deceptive. Here, his Honour held that it did not matter that the "agent" was an employee. In support of this proposition, he relied upon the decision of French J in Australian Competition and Consumer Commission v. McCaskey [2000] FCA 1037 ; (2000) 104 FCR 8 where French J made injunctive orders against an employee who had engaged in the misleading and deceptive conduct. Counsel for the appellant submitted that McCaskey was not binding on this Court and was of little persuasive authority in circumstances where the issue as to whether an employee could be liable under s.52 had not been fully argued. He submitted therefore that his Honour erred in placing reliance upon it. Although McCaskey is a first instance authority, French J is an experienced Federal Court judge who, in the Full Court system of that court, sits both at first instance and on appeal. His decision commands respect, and, if the appellant wishes this Court not to have regard to it, an attempt should have been made to establish that his Honour was wrong in some respect or that there was some reason why the case had no application or was irrelevant to the issue under consideration. No such attempt was made. But in any event, his Honour's acceptance that relief could be granted against an employee for breach, in that case of s.52 of the Trade Practices Act , is clearly correct. As a matter of law, an employee acts as agent for the employer. There is no basis in principle why different rules should apply to agents who are appointed in different circumstances. Provided that a party alleging the contravention is able to establish that the agent is liable within the principles state in Yorke v, Lucas , then liability under the section attaches, notwithstanding that the agent in question is an employee acting within authority in the course of employment.' 292 That matter went on appeal. The Full Court of the Federal Court in Arms v Houghton [2006] FCAFC 46 discussed the decisions in Arktos Pty Ltd v Idyllic Nominees Pty Ltd, Citibank Ltd v Liu , and Wong v Citibank and concluded at [38] that there was authority both in the Full Court of this Court and in the Court of Appeal in New South Wales that 'an employee can be found to have engaged in misleading or deceptive conduct for actions taken within the scope of his actual authority; that is, not independently of such authority'.