Case: Red Bull Australia Pty Ltd v Sydneywide Distributors Pty Ltd (2001) FCA 1228
Outcome: cited
Section 75B reflects the intention of Parliament to bring to account natural persons whose conduct brings about the contravention of the law by a corporation: Fencott v Miller [1983] HCA 12 ; (1983) 152 CLR 570 at 583; Red Bull Australia Pty Ltd v Sydneywide Distributors Pty Ltd (2001) FCA 1228 at [75] . However because s 75B imports the requirements of the criminal law ( Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661) , in order to establish accessorial liability pursuant to s 75B the applicant must establish the following: &#8226; in circumstances where the applicant contends that a person has aided and abetted the applicant must demonstrate that the relevant person was aware or ought to have been aware of the facts which gave rise to the contravention of the TPA, and intentionally participated in the contravention ( Yorke v Lucas [1985] HCA 65 ; 158 CLR 661) ; and &#8226; in circumstances where the applicant contends that a person was knowingly concerned in a contravention the applicant must demonstrate that the relevant person had actual knowledge of the essential elements of the contravention and intentional participation in it ( Yorke v Lucas [1985] HCA 65 ; 158 CLR 661). 98 In this case I consider that, had the applicant substantiated its claims against the first respondent with ss 52 and 53 TPA, Mr Cranitch similarly would have been personally liable pursuant to s 75B. I form this view because: &#8226; the applicant has pleaded actual knowledge by Mr Cranitch of the relevant contraventions of the TPA in the Amended Statement of Claim; &#8226; earlier in this judgment I described the relationship of Mr Cranitch to the first respondent and his management role with the first respondent. In my view it is clear that Mr Cranitch, in his role as managing director, secretary and Chief Executive Officer of the first respondent, and in effective control of the first respondent through an associated company, was the ultimate decision-maker of the first respondent and to that extent had actual knowledge through his personal involvement in conduct of the first respondent (cf Red Bull Australia (2001) FCA 1228 at [75] ). 99 As is clear from para 16A Amended Statement of Claim the applicant claims that the conduct of the first respondent had been carried out by Mr Cranitch. In para 16C Amended Statement of Claim the applicant claims further that Mr Cranitch was a person "involved in the said passing off". The applicant submitted that the activities of Mr Cranitch in: &#8226; making the decision to change the brand from "EasyMail" and looking for a new name; &#8226; conducting all negotiations with the seller of bing.com; &#8226; conducting background inquiries which revealed the existence of the applicant's registered trade mark; formed the basis for a finding that Mr Cranitch was jointly and severally liable with the first respondent. 100 Second, the applicant has pleaded that the conduct of the first respondent took place at the direction of and with the authority of Mr Cranitch, pursuant to a plan or design devised by Mr Cranitch (para 16A Amended Statement of Claim), and that Mr Cranitch has, inter alia , been knowingly concerned in or a party to the conduct of the first respondent (para 16B Amended Statement of Claim). Accordingly the pleadings support a claim by the applicant alleging liability of Mr Cranitch in respect of tortious conduct for which the first respondent is liable.