ACN 158 148 951 Pty Ltd v Prout - [2018] WASC 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ACN 158 148 951 PTY LTD -v- PROUT [2018] WASC 190
CORAM:   JENKINS J
HEARD:   29 AUGUST 2017
DELIVERED          :   22 JUNE 2018
FILE NO/S:   SJA 1008 of 2017
BETWEEN:   ACN 158 148 951 PTY LTD
Appellant
AND
CHAD ANTHONY PROUT
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S DE MAIO
File Number            :   PE 26933-26955 of 2015

Catchwords:

Criminal law - Appeal against conviction - Breaches of Australian Consumer Law (WA) - Whether correct company was convicted - Whether magistrate lifted the corporate veil - Whether magistrate gave adequate reasons

Legislation:

Australian Consumer Law (WA)
Fair Trading Act 2010 (WA)

Result:

Appeal allowed in part

Representation:

Counsel:

Appellant	:	Mr G M Cridland
Respondent	:	Mr J L Derby

Solicitors:

Appellant	:	GG Legal
Respondent	:	Consumer Protection Legal Unit

Case(s) referred to in decision(s):

Ackers v Austcorp International Ltd [2009] FCA 432
Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd (t/as Bet365) [2015] FCA 1007
Burswood Catering and Entertainment Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2002] WASCA 354
Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) 134 FCR 585
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Lloyd v Faraone [1989] WAR 154
Rundle v Innerd [2015] WASC 340
Tesco Supermarkets v Nattrass [1927] AC 153; [1971] UKHL 1

JENKINS J:

This is an appeal from the decision of a magistrate sitting at the Magistrates Court at Perth on 5 December 2016 to convict the appellant of 23 charges under the Fair Trading Act 2010 (WA) (the Act) and the Australian Consumer Law (WA) (the ACL).

Grounds of appeal

The grounds of appeal are:
Charge 1 - Made Misleading and/or False Representation
1.The Learned Trial Magistrate ('LTM') erred in fact and / or law in attributing criminal liability to ACN 158 148 951 Pty Ltd ('the charged corporate accused') specifically by finding in error,
a.the corporate veil was created to shield the charged corporate accused from representations made by employees and contractors of another corporation (Solar Shop Group Pty Ltd), and
b.the charged corporate accused had taken over the operations of Solar Shop Group Ltd / purchased Solar Shop Group Pty Ltd and absorbed its business entirely,
c.the charged corporate accused is engaged in trade or commerce in the supply of solar products and services to the public, ([116] ‑ [118], [121], [228] Reasons)
which findings are not reasonably open on the evidence and the LTM ought instead to have found that the representation was made by another corporation alone, Solar Shop Group Pty Ltd which, unlike the charged corporate accused, traded in domestic solar products and services and used the business name 'Solar Shop'.
2.The LTM erred in fact and / or law in failing to provide any, or adequate, reasons for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WASC 190
Decision Date: 22 JUNE 2018

CaseChat Overview and Summary

A private limited company, ACN 158 148 951 Pty Ltd, appealed against its conviction for breaches of the Australian Consumer Law (WA). The company argued that it was not the correct entity to be convicted, that the magistrate had improperly lifted the corporate veil, and that the magistrate had failed to provide adequate reasons for the conviction. The appeal was heard by the Supreme Court of Western Australia. The central issues were whether the court correctly identified the proper defendant and whether it appropriately applied the principles of corporate veil lifting and reasoning. The company claimed that the court should not have convicted it because it did not have the requisite knowledge or control over the breaches.

The Supreme Court examined the evidence and legal principles surrounding the corporate veil. It held that the company was indeed the correct defendant and that the magistrate had correctly identified it. The court found that the evidence was sufficient to establish the company's knowledge and control over the breaches. Regarding the lifting of the corporate veil, the court determined that this was not necessary in this case, as the company's separate legal personality was not a barrier to liability. Finally, the court assessed the adequacy of the reasons provided by the magistrate and concluded that they were sufficient to justify the conviction. The appeal was therefore dismissed.

Orders