ss. 52, 53(c). Misleading and, or deceptive conduct and false representations
23 November 1998: The Australian Competition and Consumer Commission obtained interim orders in the Federal Court, Melbourne restraining Billbusters Pty Limited and its director Miles Kendrick-Smith from:
representing that it performs audit services on accounts or invoices of Telstra
using or dealing in any manner with moneys received from its customers for the purpose of paying accounts or invoices of Telstra
representing that the ACCC has the power to prevent Telstra from disconnecting telephones of Telstra customers.
Pending the trial of the matter Billbusters and Miles Kendrick-Smith were restrained from dealing with their assets.
8 May 2003: The court granted summary judgment declaring that Miles Kendrick-Smith, director of Billbusters Pty Ltd (now in liquidation), was knowingly concerned in, or party to contraventions of the misleading and deceptive conduct provisions of the Trade Practices Act by falsely representing:
Billbusters had developed methods of reviewing and checking telephone accounts issued by Telstra
Billbusters had reasonable grounds for believing that its systems, methods and procedures were able to identify errors in telephone accounts and to determine the nature and extent of the overcharging
its systems, methods and procedures could calculate the adjustments, credit and refunds to which customers were entitled for the identified errors and overcharging
its systems, methods and procedures could provide the necessary information to negotiate with Telstra on behalf of customers regarding the identified errors and overcharging
when any customer of Telstra engaged Billbusters to review and check his or her telephone account, its systems, methods and procedures were able to ascertain the net amount payable by the customer to Telstra or payable by Telstra to the customer, after proper allowance for the adjustments, credits or refunds which the customers were entitled to receive from Telstra for any identified errors or over-charging
Billbusters’ systems, methods and procedures involved collecting money from customers and holding the money on trust until due payment to Telstra
Billbusters’ systems, methods and procedures involved paying to Telstra all amounts properly due by the customers in respect of their telephone accounts.
The ACCC sought and obtained summary judgment from the court because Mr Kendrick-Smith failed to put any substantive defence before the court despite numerous opportunities.
Further, the court granted injunctive relief restraining Mr Kendrick-Smith from representing to members of the public that he performs audit services on accounts or invoices of Telstra unless giving the ACCC 14 days' written notice before first publishing details of:
the business name of each person intending to make the representation
the principal place of business of each such person
the intended mode of publication of the representation to members of the public.
29 May 2003: Miles Kendrick-Smith filed a Notice of Appeal against the decision of Justice Kenny made on 8 May 2003.
16 July 2003: Notice of Appeal and Notice of Motion hearing where the matter was adjourned to 21 July 2003.
21 July 2003: At the Full Court appeal hearing, Justices Ryan, Sundburg, Marshall ordered:
Notice of Appeal filed 29 May 2003 be struck out
the appeal embodied in said Notice be dismissed as incompetent
the above orders are made without prejudice to the right of the appellant to apply for leave to file and serve out of time or properly formulated notice of appeal from the orders of Justice Kenny of 8 May 2003.
15 August 2003: Miles Kendrick-Smith filed an application for special leave to appeal with the High Court of Australia.
12 September 2003: Applicant filed a summary of argument and draft notice of appeal.
1 October 2003: Respondents summary of argument filed.
