Case: Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (2007) ATPR 42-140
Outcome: cited
Save for the orders sought against Mr Chad Kim in relation to the alleged attempted contravention of the Code, the declaratory orders sought are within the power of the Court to make. There may be a question about their utility given that these reasons set out the findings of fact and the contraventions which underpin the injunctive relief which has been granted and the pecuniary penalties which are to be imposed. However, as Nicholson J pointed out in Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (2007) ATPR 42-140 at [6] such declarations: 1. Are an appropriate vehicle to record the Court's disapproval of the contravening conduct: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1993) 41 FCR 89 at 100; Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309 at [36] . 2. Serve to vindicate the ACCC's claim that the respondents contravened the Act: Australian Competition and Consumer Commission v Goldy Motors (2000) 23 ATPR 41-801 at [34]. 3. May be of assistance to the ACCC in the future in carrying out the duties conferred upon it by the Act: Goldy Motors 23 ATPR at [34]. 4. Are of assistance in clarifying the law: Goldy Motors 23 ATPR at [34]; Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liq) [2005] FCA 1212 at [146] . 5. May inform consumers of the dangers arising from a respondent's contravening conduct: Chen 132 FCR at [48]; and 6. May deter corporations from contravening the Act: Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd (2004) 207 ALR 329 at [22]. In that case in considering the appropriateness of declaratory relief, Nicholson J observed that the declarations sought, by consent, were directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The matters in issue had been identified, particularised and admitted by the respondents. The ACCC as a public body charged with enforcing the Act had a real interest in seeking the relief and the respondents were in the position of a proper contradictor in that they had a true interest in opposing the declarations sought. So much is true in this case. 49 In the circumstances of this case however, there is a question affecting the appropriateness of making the declarations sought at this time. There are other parties to these proceedings who are named in the declarations and against whom these proceedings are still pending. Although the declaratory orders are sought only against the first to fourth respondents, they involve formal declarations of the involvement of other respondents. True it is that the declarations are in personam as between the ACCC and the first to fourth respondents severally. They would not give rise to any issue estoppel against other parties any more than would the findings of fact based upon admissions made by the first to fourth respondents. Those findings of fact have been made only as against the first to fourth respondents. 50 In my opinion it is undesirable that the Court should, at this time, make formal declarations naming other respondents as parties to the contravening conduct. The question of declaratory relief will be stood over with liberty to the ACCC to apply for orders at an appropriate time in the terms sought. Apart from the declaration sought against Mr Chad Kim in relation to the alleged attempt to contravene the Code, the declaratory orders proposed are otherwise appropriate.