ss. 53(bb), 64(1). Misrepresentations, unsolicited goods: assert right to payment
15 December 2004: ACCC instituted proceedings in the Federal Court, Adelaide, against Globex Systems Pty Ltd.
The ACCC also instituted proceedings in the Federal Court against Globex directors, Mr David Skry and Mr Warren Skry, and two Globex employees, Ms Claire Trobe and Ms Emma Gourlay.
Globex supplies various industrial cleaning products, printer ribbons, laser printer and photocopier toner cartridges and ink cartridges to businesses and to schools throughout Australia by direct telephone marketing.
The ACCC has alleged that Globex:
made false representations that particular persons had agreed to acquire various cleaning products and office consumables
made false representations that the ink cartridges were new
asserted a right to payment for unsolicited goods
engaged in misleading and deceptive conduct.
The ACCC has also alleged that Ms Trobe, Ms Gourlay, and the Skrys were knowingly concerned in, or party to, or aided and abetted some of the contraventions by Globex.
The ACCC is seeking an interim injunction, final injunctions, declarations, corrective notices, compliance programs for the company and the individuals, findings of fact and costs.
18 January 2005: The application for interim injunctive relief will be heard by Justice Lander.
February 2005: Notice of motion for contempt scheduled to be heard on 18 April 2005.
18 April 2005: Penalty hearing for contempt of interim injunctive orders held.
10 May 2005: Justice Lander ordered that Globex pay a penalty in the sum of $4 900 and pay the ACCC's costs in relation to the notice of motion for contempt on an indemnity basis.
12 August 2005: The Federal Court made orders, by consent, against Globex Systems Pty Ltd, its directors and two former employees for contraventions of the TPA.
The court has now made final orders by consent as follows:
declarations that:
Globex engaged in misleading and deceptive conduct and made false representations in its dealings with various parties by making representations to the effect that they had entered into an agreement to purchase goods from Globex, were obliged to purchase goods from Globex, that the next order of goods was ready for delivery and/or that Globex had a right to payment for goods that were unsolicited, and
Globex asserted a right to payment for unsolicited goods in its dealings with various parties when it did not have reasonable cause to believe that there was a right to payment, and
Mr David Skry and Mr Warren Skry aided and abetted, counselled or procured or were knowingly concerned in the contraventions of the TPA by Globex, and Ms Gourlay and Ms Trobe engaged in misleading and deceptive conduct and made false representations when they were, on Globex's behalf, dealing with particular parties.
injunctions restraining:
Globex from making certain representations concerning whether a person has ordered goods from Globex, has entered into an agreement to buy goods from Globex or is obliged to buy goods from Globex where the representations are not correct
Globex from asserting or representing a right to payment for goods unless there are reasonable grounds for believing that Globex has a right to payment Mr David Skry and Mr Warren Skry from aiding, abetting, counselling or procuring or being in any way knowingly concerned in or party to conduct by Globex that the company is restrained from engaging in, and
Ms Trobe and Ms Gourlay from using telephonic services to make certain representations concerning, for example, whether a person has ordered any goods or has entered into an agreement to purchase goods where the representations are not correct
an order requiring Globex to publish a notice acknowledging its conduct in certain State daily newspapers and The Australian within 21 days, and
an order that Globex implement a Trade Practices compliance program, and
