Allied Mills Industries Pty Ltd v Trade Practices Commission (No 1)

\ l

L- .	..	fN THE FEDERAL COURT OF AUSTRALIA	1
)

NORTHERN TERRITORY DISTRICT REGISTRY )

Nos. 7, 8, 9 & 10 o f 1980

DIVISION

GENERAL

)

BETGJEEN :

PETER JULIAN SULLY

Prosecutor

AND :

DARWIN BAKERY PTY. LIMITED

Defendant

13 February 1981

Coram. Gallop J

REASONS FOR JUDGMENT

Corrigendum

Page 10, line 8

delete section as quoted, and insert.

"(1)

Subject to sub-section

( Z ) ,

in a prosecution

under this Part in relation to

a contravention of

a Drovision of Part

V. it is a defence if the

establishes-

that the contravention in respect of

which the proceeding was instituted

was due to reasonable

mistake;

that the contravention in respect

which the proceeding was instituted

was due to reasonable reliance on

information supplied by another	person,
or

that

(i)

the contravention in respect

which the proceeding was instituted

was due to the act or default

another person, to an accident or to

some other cause beyond the defendant's

control,

and

(ii) the defendant took reasonable pre- cautions and exercised due deligence to avoid the contravention.

(2)

If a defence provided by sub-section

(1) involves an

allegation that a contravention was due to reliance on

information supplied by another person or to the act

default of another person, the defendant is

not, without

leave of the Court, entitled to rely

on that defence unless

he has, not later than

7 days before the day

on which the

hearing of the proceeding commences, served

on the person by

whom the proceeding was instituted

a notice in writing giving

such information that would identify or assist in the

identification of the other person as was then in his possession."

--7v

Arro eLC

20-3-81

I N THE FEDERAI. COURT OF AUSTRALIA	1
)

NORTHERN TERRITORY DISTRICT REGISTRY )

No. 7 of 1980

GENERAL DIVISION

)

BETWEEN.

PETER JULIAN SULLY

Prasecutor

AND

DARWIN BAKERY P R . LIMITED

-I__-

Defendant

Coram

Gallop J.

REASONS FOR JUDGMENT

GALLOP

J .

1 3 1

13 February 1981

recorded convictions against

the

defendant

for

four offences against

.53(e) of

the

Trlde

Practices

Act

1974.

h 6 March 1981

evidence was received on behalf of the

prosecutor and the defendant in respect

the question

penalty

and certain

submissions

were

made.

I t i s necessary

restate

b r i e f l y t h e	facts	giving rise	to the convic t ions	and	to add	some
f u r t h e r f a c t s .

In respec t of

two

offences

the defendant

was

convicted on

account of advertisements

i n

i d e n t i c a l

terms

which appeared

i n

the "Northern Territory

News"

newspaper on

December

1979 and i n

"The Star" newspaper

on 6 December 1979, which advertisements

were

misleading

i n

that bread products previously sold at weights

750 grams

and 500 grams respec t ive ly were o f f e red fo r

saie a t

680 grams and 450 grams respect ively, but they

were not

reduced

in pr ice to accord with the reduct ions in weight in the

way

the

adver t i sements

s ta ted

tha t

they

would be

reduced.

In respect of

2 .

the other two offences the defendant was convicted

on account of

notices displayed on

6 December 1979 at Woolworths Supermarket,

Cavenagh Street, Darwin, and Andrews Food Fair, Westralia Street.

Stuart Park, which advertisements were misleading in that bread

products previously sold at weights

of 750 grams and 500 grams

respectively were offered for sale at

680 grams and

450 grams

respectively, but they were

not reduced

ln price or according to

Gazette controlled prices as claimed

in the advertisements.

The Trade Practices Act is designed to permit conditions

trade which are fair and honest and in which reliance can be placed

on statements made which are material to transactions which are

being promoted. In consideration of the factors

releva~t

to the

assessment of the appropriate punishment for breaches

of the Act

it is important to consider the degree to which the misleading advertisements departed from the truth. The degree of wilfulness

or carelessness in the making

of the misleading statements is

another consideration (Juris Wilde v Mendville

---Pty. Ltd & Ors.,

an unreported decision

of Smithers J . delivered on

January

1 9 8 1 ) .

The penalty should constitute a real punishment proportionate

to the deliberation with which the defendant contravened the provisions of the Act It should be sufficiently high to have a deterrent quality and it should be kept in mind that the Act

Iperates in a commercial environment where deterrence

is not

likely

to be achieved by penalties which

are not realistic. It should

reflect the will

of Parliament that the commercial standards laid

down in the Act must be observed, but not be

so high as to be

oppressive (Trade Practices Commission v. Stihl Chain Saws (Aust.)

Pty Ltd.

(1978)

5 TPC 61 at 80, (1978)

ATPR 4 0 - 1 0 9 1 at 1 7 , 8 9 6 ) .

3 .

These

p r inc ip l e s

are

equally applicable

the

imposit

ion of

f ines for of fences aga ins t s .53(e) of the Act .

I n

re la t ion to

the advert

isements

the newspapers

the

defendant

has

admitted

through

i t s Nanaging Director and

Mr.

Graham Lewis , another Director

and Secretary of

the defendant,

that the advert isements

were

draf ted bv

the Managing Director

2nd

s e t t l e d by Mr.

Lewis .

Those Directors must

have

known

tha t

t he

advertisements

i n the newspapers

were

misleading and that

any

member

of the public reading the advertlsements

would

no t de t ec t

a concealed price

r i se in

the bread products .

The

not ices

which

were

displayed

the supermarkets were

likewise

draf ted by

the

Managing Director and he must have known

when

caused them t o

be displayed on

December

1979

tha t

any member

of the publ ic

would

not detect concealed pr ice

rises

in those supermarke ts for the

defendant's

bread

products.

In the penalties which I impose should constitute

view

the offences were quite dellberate and accordingly

real punishment

propor t iona te

the

de l ibera t ion .

not

the

statements

set out i n the Managing

Di rec to r ' s a f f idav i t

sworn on

19 Septenber

1980

to the e f fec t tha t the adver t i sements

and

not ices

were

not

intended

to mislead.

tha t

when the not ices

were draf ted

i t was

t o

meet

completely different purpose, but a t

the t ime

+ h f

publ ica t ion a l l the material

f a c t s were known

t o t h e

Managing

d l rec tqr and Mr.

Lewis , and

the notlces

had then become inappropriate

and

l i ke ly

to mis l ead

i f published without

amendment.

Furthermore,

t he

stutements

i n the newspaper advertisements and

the

notices

the supermarkets departed substantially

from

t h e t r u t h I n

v i t a l

4 .

respec ts .

large proport ion of

the defendant

bread products

except for milk bread unsliced,

which

remained

subjec t to pr ice

con t ro l ,

were

e i t h e r i n c r e a s e d i n p r i c e o r s o l d a t t h e

same

p r i c e

f o r a

lesser weight ,

which

i s i n e f f e c t

price increase because

the purchaser gets less bread for

t!le

o l d

p r i c e .

Cm	the respective dates of publication of the advertisements

the "Northern Terr i tory

News"

had

c i r cu la t ion of

15 ,314 and

"The Star" newspaper had a c i rcu la t ion of

8 ,189 .

The Woolworths

supermarket i n Cavenagh S t r e e t , Darwin,

i s , as a matter of common

knowledge,

large supermarket catering

la rge sec t ion

the

pub l i c .

Andrews

Food

Fair ,

Westral

Street

Stuar

Park

smaller

supermarket,

The

maximum

penalty

for

each offence

i s $50,000.

It was

urged on

behalf of the defendant in

a plea of

mitigation

tha t the

defendant 's sales

f igures

for

the per

iods

immediately af

ter

the

advertisements had been placed

in the

newspapers and supermarkets

respect ively were not increased

and

i n f a c t a s

r e s u l t o f

the

increases in pr ice the defendant

d i d not gain

any

addi t iona l

incons

It was

fur ther a rgued tha t

I should

take account of

the cos ts whicl

the defendant

w i l l have

to pay,

includmg the prosecutor

costs

defendant has

no pr ior convict ions

Taking

into account a l l

the c i rcumstances,

order

tha t

r c svec t

each offence

the defendant

pay

f i n e of

$4000, such

f ine

t o

pa id

to the Registrar of the Court within

days

o f

thin

date o r such

l a t e r d a t e a s

may

f ixed by

t h i s cour t .

I order

that the defendant

pay

the prosecutor 's costs

and

g ran t

l i b e r t y

t o app ly in

t h i s

r e spec t .

CATCHWORDS

Trade Practices - Consumer protection - Prosecution -

False or misleading statement with respect

to price of

goods or services - Sale of bread products - Meaning of

"Reduced" and "Misleading" - Mens rea - Mistake.

Trades Practices Act s.53(e)

FWERAL COURT OF

'	I N THE FEDERAL COURT OF AUSTRALIA	1
)

NORTHERN TERRITORY DISTRICT REGISTRY )

No. 7 of 1980

)

GENERAL

D I V I S I O N

)

BE?WEEN.

PETER JULIAN SULLY

Prosecutor

AND :

DARWIN BAKERY PTY. LIMITED

Defendant

13 February

1981

Coram:

Gallop J .

REASONS FOR JUDGMENT

GALLOP J . :

The	defendant has pleaded not guil ty to four informations

charging

contraventions

s.53(e)

the Trades Practices

Act

1974.

The informations may be d iv ided

in to

two p a i r s .

The f i r s t

p a i r charge two offences o f making

a misleading statement with

respec t to the pr ice of bread , in tha t the defendant caused to

publ ished in the "Northern Terr i tory

News"

December

1979

and

i n "The

Star"

newspaper on

December

1979 i d e n t i c a l

statements

the

following

terms:

"As

from Monday 3rd December,

1979 cer ta in products

the Darwin Bakery

P t y L t d previously packed in

and 500 gm weights w i l l b e a l t e r e d t o

680 gm

and

750 Y

50 gm weights. Prices

w i l l be adjusted

accordingly.

For

l imited per iod of t ime,

some

products

may

bear wrappers pre-printed with old welghts.

The Management of Darwin Bakery apologises for

t h i s t r a n s i t i o n a l d i f f i c u l t y .

Any

enquir ies as to weights

may

d i rec ted to

the Darwin Bakery on phone 843500."

Particulars of the offences in each case were:

"The

said s ta tement

was

mis leading in tha t

notwithstanding

that

products

previously

s o l d a t a weight of

750 grams were of fe red

f o r s a l e a f t e r t h e s a i d 3 r d

day

December

1979 a t a weight of

680 grams and

tha't

products previously sold at

weight of

500

grams

were

o f f e r e d f o r s a l e a f t e r t h e

said 3rd

day of December 1979 a t a weight

of 450 grams

the products

so o f f e red fo r

s a l e a t t he we igh t s

reduced were not

o f f e r e d f o r s a l e a t

reduced price adjusted

according to

the said reduct

ion in

weight

The 1979 a t Woolworths

second

pair of informations charge that

December

Supermarket, Cavenagh

S t r e e t , Darwin,

and

a t

Andrews Food the defendant caused to

Fa i r , West ra l ia S t ree t , S tuar t Park ,

respec t ive ly

displayed

the

following

statement

"We	are in the process of changing the s ize of

some	va r i e t i e s o f ou r p roduc t s t o f ac i l i t a t e

bagging

in the nea r fu tu re

when

the bagging

machine

o rde r a r r ives .

The

750

gram loaf becomes 680 gram and the

500 gram loa f t o

450 gram.

Prices

have been reduced according to

the

gaze t t ed con t ro l l ed p r i ces .

. . . . . . . .

apologises

for

any

inconvenience."

was

al leged that in each case the said s ta tement

was

misleading

t h a t :

"(a)

notwithstanding

that

products

previously

sold

a t a

weight of

750

grams

were

o f f e r e d f o r s a l e

a f t e r t he sa id 6 th

day

December

1979 a t a

weight of

680

grams

and

that products previously

s o l d a t

weight of

500

grams

were offered for

sale

a f t e r t h e s a i d 6 t h

day

December

1979 a t

weight of

450

grams

the products (save

and

except milk bread unsliced)

of fe red €or sa le

a t

the weights

so reduced were

no t o f f e red fo r

s a l e a t

price reduced according to gazetted

con t ro l l ed

p r i ces

o r a t a l l ,

and

(b)

insofar

gaze t ted

cont ro l led

p r ices

were

appl

icable

the products

the defendant

they

were

appl icable only to

Milk Bread

Unsliced in weights of

680 grams

and 450 grams."

Pursuant

to directions given

on 27 June 1980 the

prosecutions came on for hear ing

on 27 October

1980.

consent a l l informations

were

heard

together.

The evidence

of both par t ies

was

i n a f f i d a v i t

form.

In re lat ion to a l l

informations the informant had to

e s t a b l i s h beyond

reasonable doubt that:

(1)

the

defendant

was

a corporat ion;

(2 )

i n

t r a d e o r

commerce

connect

ion with

the possible supply of goods,

namely

bread,

(3)

the

defendant

d i d ,

the

occasion

leged,

make

s ta tement with respect to the pr ice

the

said

goods,

and

( 4 )

the

said

statement

was misleading.

A t d i spu te tha t t he f i r s t t h ree e l emen t s

the conclusion of

the evidence the defendant

d i d

no t

had been established

beyond reasonable doubt in re la t ion to each information. In respect of the fourth element the defendant submitted that

the cour t could not be sa t i s f ied

beyond

reasonable doubt that

the s ta tements re fer red to in each pa i r

of	informations were

misleading.

It was

fu r the r a rgued

tha t

i n

r e l a t ion

to o f f ences

against s .53(e) of the

Act

mens

r ea

i s

an element

and

i n a l l

the c i rcumstances the court could not be sat isf ied

beyond

reasonable doubt that

the defendant had the necessary guilty

s t a t e o f

mind

in r e spec t o f

any

s ta tement re fer red to in the

informations .

turn to consider

the evidence proved

a f f i d a v i t

and

no t

i n d i spu te .

a l l mater ia l

t imes

the defendant

was

manufacturer and

suppl ie r

of bread products in the

Darwin

a r e a ,

having been most of the defendant's bread products were sold

incorporated

on 31 May

1974.

P r i o r

t o

December 1979

weights of

750 grams

and 500 grams.

A l l o ther baker ies

the

Darwin

a rea

made

the i r b read in

680

gram

and

o ther s izes inc luding

450

gram

weights. For of the Northern Terri tory

reasons

connected

with

the

Prices

Regulation

Act

and

the

powers

of the Controller of

Prices thereunder the defendant decided to

'change

the weights

of i t s bread products

from 750 grams and 500 grams t o 680 grams

and 450

grams r e spec t ive ly .

A new bagging

machine

was

ordered

and

other equipment purchased

the defendant for that purpose.

Pr ior to

December

1979

the defendant distributed bread to various

r e t a i l o u t l e t s ,

i n c l u d i n g

Woolworths

Supermarket,

Cavenagh

S t r e e t ,

Darwin and Andrews

Food

Fa i r , West ra l ia S t ree t , S tuar t Park ,

and

c i r cu la t ed

r e t a i l p r i c e

l i s t

ident i fying the var ious

types

bread by During 1979 Mark Finocchiarowas the

descr ip t ion and weight.

Managing Director of

the

defendant

In an t ic ipa t ion of

the

in t roduct ion of

the

new

bread products weighing

680 grams

and 450 grams

respec t ive ly

Finocchiaro

arranged

in October

1979

f o r s i g n s t o

p r in t ed

f o r

d i s t r i b u t i o n t o r e t a i l e r s

and

p u b l i c d i s p l a y i n t h e r e t a i l

o u t l e t s . In October 1979 there was in force Order

No. 5 of 1979

made by Controller") on 7 September 1979 which f ixed the

the Control ler

P r i ces (he re ina f t e r ca l l ed " the

maximum p r i c e

a t which bread could

be sold within the

Darwin a rea by reference

to type and weight.

It was a f a i r ly ex tens ive

l i s t of

fixed

p r i ces .

a news

re lease da ted

13 November

1979 the Control ler

announced

tha t t he p r i ce con t ro l e s t ab l i shed

Order

No.

1979 was t o be relaxed and t h a t a new pr ices order

was

contemplated whereby

a maximum

r e t a i l p r i c e

would

s e t f o r

what

was

r e fe r r ed to a s

"standard loaf", being

wrapped

uns l iced mi lk

loaf

two

s i z e s .

It was

s t a t e d t h a t

t h e

new

order

would

s e t

maximum

r e t a i l p r i c e f o r t h e c o n t r o l l e d l o a f

a t 63c f o r 680 gram loaves

and

5 0 ~

f o r 4 5 0 gram loaves.

The

Controller advised the defendant to the

same

e f f e c t

l e t t e r

the

same da te .

By Gazette on 30 November 1 9 7 9 , the

Order No.

8 of

1979 publ ished in the Northern Terr i tory

Controller

revoked

Order

and

f ixed the

maximum

p r i c e a t

which milk bread unsliced could

s o l d i n t h e

Darwin

Town

Area

(as defined)

r e t a i l ( i n t e r

a l i a ) a t

63 cen t s fo r

680 grams

and 50 cen t s fo r

4 5 0 grams.

revocation of Order

No.

5 ,

p r i ce con t ro l

a l l o t h e r

types

of bread

was

e f f e c t i v e l y

removed

a t l e a s t w i t h e f f e c t

from

Friday, 30 November 1979. It was agreed, on the

hear

ing

before

me,

t ha t fo r p rac t i ca l pu rposes

Order

No.

8 of

1979 would

have

app l i ed to sa l e s

and

a f t e r Monday

3 December 1 9 7 9 .

December

1979

the defendant caused to be published

in the "Northern Terr i tory

News"

newspaper the statement set

out in information

numbered

1980 and on

December

1979

i n "The

Star" newspaper the identical statement

set

out

i n

information numbered 10 of

1980.

6 December 1979 t he

defendant caused to

displayed a t Woolworths

Supermarket,

Cavenagh

Street ,

Darwin

and

Andrews

Food

Fa i r , Wes t r a l i a S t r ee t

S t u a r t

Park,

i den t i ca l s t a t emen t s i n the

form

s e t o u t i n

informations numbered 8 and 9 of 1980 r e spec t ive ly .

Notwithstanding

the

terms

the

statements

the

prices

the defendant 's products

and

a f t e r

December

1 9 7 9 ,

except

for milk bread unsliced in weights

680

grams

and 4 5 0 grams

i n r e spec t o f

which

the defendant adopted the

maximum

f ixed pr ice

cents

and

cents respec t ive ly ,

d i d n o t a l t e r

s o a s t o

r e f l ec t

t he r educ t ion

in we igh t

the par t icular products .

The

p r i c e s

some

products were actually incre 'ased, e.g. milk bread

s l i c e d , which

sold before

3 December 1979 in weights of

500

grams

a t 54

cents

and

a f t e r t h a t d a t e i n w e i g h t s

450

grams

a t 57

cents .

It i s c l e a r t h a t

and

a f t e r 3

December

1979 the defendant

s t r i c t ly app l i ed the gaze t t ed

maximum

price for the only product

f ca l cu la t ed p r i ces fo r

under price control, namely, milk bread unsliced,

and

i t s

other products not under pr ice control

re ference

tha t p roduct .

The

defendant

was

e n t i t l e d

i n

law

t o do

so ,

there being

r e s t r i c t i o n by

way

of pr ice cont ro l

t h e d i s t r i b u t i o n

those

products.

The

question i s whether

the

statements

the newspapers

and

supermarkets were,

the

circumstances,

misleading.

The

d e f e n d a n t ' s f i r s t

argument

was

that the s ta tements

were

not

mis leading

fac t .

was

s u b m i t t e d

t h a t

i n

r e l a t i o n

t o a l l

informations the

gravamen

of the prosecut ion 's case

was

t h a t t h e

products of fe red for sa le

were

no t r educed o r o f f e red fo r s a l e

the reduced pr ice adjusted according to their reduct ion in

weight and defendant's argument

tha t

th i s

a l lega t ion

was

n o t ,

i n

f a c t ,

t r u e .

The

was	tha t i n r e l a t ion to mi lk b read uns l i ced

there was

reduction

i n p r i ce

and

t h a t a l l the defendant ' s o ther

products were "reduced" in price according to

one

of the ordinary

meanings

t h a t word.

I was

r e f e r r e d t o t h e

meaning

"reduced"

as i t appears

the Concise Oxford Dictionary

New

Edit ion

1976-1978

Reprint .

Counsel r e l i e d upon meanings

"converted",

"altered",

"calculated".

Thus,

so the argument r an ,

wh i l s t

t he

p r i ces

t h e non pr ice-control led products

were not the

same as before

3 December conver ted , a l te red or ca lcu la ted in accordance wi th the order

1979,

they were , in fac t , p r ices

which

had

been

of the Control ler

which

came

i n t o e f f e c t

tha t da t e

and

i n

that

sense

they

were "reduced".

my view,

t h i s argument

misconceives

the nature

the

al legat ion

each case.

The

a l l ega t ion

i s

tha t the subjec t s ta tements were mis leading in

tha t

they asser ted (a )

the

case

in format ions

numbered

7 and 10 wi th the d i f f e ren t

1980, tha t the pr ices

would

adjusted to

accord

and

lesser weight

the bread products to

be sold

the defendant as

from 3 December 1979 , and (b)

the case

informations

numbered 8 and 9 of 1980,

that

the

p r i ces had , i n f ac t ,

been

reduced

accord

with

the

different

and

lesser weights of the bread products as

from

the

same

da te .

I n r e l a t i o n t o t h e

meaning

of "misleading",

Mason

s a i d

in re Credi t Tr ibunal ex Par te Genera l

Motors Acceptance

Corporation Australia

(1977) 14 A . L . R .

257 a t pp.267-8

with

respec t to	i t s	meaning	in section 52(1) of	the	Trade	Practices
-	Act -

"'Misleading'

i s a word which i s capable of

expressing

various

shades of meaning,

some-

times

s ign i fy ing tha t

which

i s subjec t ive ly

misleading

and

a t o the r t imes tha t

which

i s

objectively misleading.

I ts meaning

therefore i s ap t t o

influenced,

indeed

decisively

influenced,

the context

i n which

i t i s found.

Here

the

t t ing

which s.52(1) appears

i s shown by the headings

' P a r t V - Consumer Pro tec t ion '

and

'Division 1

Unfai r Prac t ices ' .

I n t h i s

context the

prohibi t ion contained

in the

sub-section

emerges

a s

an important general prohibit ion

aga ins t

corporat ion in the course of t rade

or commerce engaged

i n a

form of conduct,

t r ade p rac t i ce ,

which

i s

un fa i r . "

Hornsby

Building Information Centre

P t y .

Limited v.

Sydney Building

Information

Centre

Limited

(1978)

A . L . R ,

639

Stephen J. s a i d a t

p.647

“When a s i n

s .52(1)

the

focus

i s upon the

misleading of others ra ther than

upon

the

in ju ry to

a competitor i t becomes of

par t icu lar

impor tance to

ident i fy

the

r e s p e c t i n

which

there

i s sa id to

any

misleading or deception.

His Honour went on

to exp la in tha t

a statement which

i s l i t e r a l l y

true and accurate may nevertheless be misleading because

i t

conveyed

to others something

t h a n t h e l i t e r a l

meaning which

the

words

spe l l ed ou t .

adopt, with

respect,

the approach

Northrop

J . i n

Annand

& Thompson P t y .

L t d . v. Trade Practices

Commission

(1979)

25 A . L . R . considered in the context of the business being conducted

9 1 a t p . 1 1 3 ,

where

said

that

the conduct

i s

t o

the defendant and as being understood

persons contemplating

purchase

bread products.

See

a l so Weitmann

Katies L t d .

(1977) 29 F.L.R.

336 per Franki

J . a t p.343 and Keehn v. Medical

Benefi ts

Fund

of Australia Limited

(1977)

1 4 A . L . R .

a t p . 8 1 .

In th i s contex t

i t seems

t o me

t h a t on the undisputed

evidence

person contemplating purchasing the defendant’s bread

products a f te r the publ ica t ion of the s ta tements se t ou t in the

respective informations

would be

misled

in to be l i ev ing tha t t he re

had been

reduct ion in the pr ice of the products to accord with

the reduct

ion

packaging s

izes

and,

fur thermore,

that

re la t ion

to the s ta tements referred to in informations

numbered

and

9 ,

those pr ices

d i d

not exceed the gazet ted control led pr ices .

In re la t ion to informat ions

numbered

and 10 of

1980,

considered whether the statement “prices

w i l l be adjusted

accordingly“ appearing in the statements could

sa id to be

misleading

o r whether

i t should merely be construed as

statement

of fu ture in ten t ion

and

t h a t

change of

intent ion took place

before the pr ices

were

implemented

(See

for example,

ex parte

Calv in ; re

Watson -

(1961)

F .L .R.

269). But,

t h e f a c t s ,

these statements were made, in the case of both informations, af ter the adjustment of pr ices in accordanc 'e with the al terat ion

of the i n e f f e c t t h a t t h e p r i c e s

packaging

sizes.

They

were,

therefore ,

c lear

s ta tement

had

been

adjusted accordingly

and

t o

tha t ex ten t

they

d i d not

accord

with

fact. There

i s no

quest ion,

t o my mind,

tha t

they

were

even

l i t e r a l l y t r u e .

s a t i s f i e d

beyond

reasonable doubt that

ion to

each information the

statements

were misleading.

The

defendant next argued

that

mens r ea was a necessary

ingredient of

contravention of s.53(e) of the Trades Practices

Act

1974. Counsel

for the defendant

was

undeterred by

t h e f a c t

t h a t Given

Holland

(1977)

A . L . R .

439,

i s

au tho r i ty of

this

Court

d i rect ly

against

the

argument

that

mat

ter

Franki

he ld tha t

mens

r e a

i s not an element of an offence

against

s Counsel submitted that the matter

.53(a)

the Act

i s now

governed

Cameron v.

Holt

28 A . L . R .

490.

I re jec t

th i s

submiss ion .

Cameron v . -

Holt

i s

c lear au thor i ty for the p ropos i t ion tha t

mens

r ea

i s

an element of the offence created

s . l 3 8 ( l ) ( d )

the Social Services Act.

The

High

Court,

on my

reading

the

respective

judgments,

d i d

not a t tempt to lay

down

any

pr inciples

respect

the Trade Pract

ices

Act

Indeed

there

some

sugges t ion in the

judgment

Murphy J . , a t p .496,

that

mens

r ea

i s

not an element of offences found under

consumer

pro tec t ion

leg is la t ion .

I f

anyth ing ,

tha t

d ic tum

i s

d i r e c t l y

against

the defendant

argument also.

. .

have considered the reasons of Franki

J .

i n

Given

v .

C . V .

Holland Holdings

P t y .

Limited,

and

adopt with respect his

reasoning and conclusion that

mens

r e a

n o t

an element of an

offence against

s . 5 3 .

The the s ta tements in each case

defendant f inal ly submit ted that the publ icat ion of

was

due

to mistake

and

r a i sed the

s ta tutory	defence	created	by	s . 8 5	of	the	Act.	This	sec t ion
reads :

"(1)

Subject

sub-section

(2 ) ,

i n a prosecution

under

t h i s P a r t i n r e l a t i o n t o

contravention of

provis ion of Par t

V ,

i t

i s a

defence

i f t h e

defendant es tabl ishes

( a )

t ha t

t he

con t r aven t ion

i n

r e spec t

of which

the proceedmg

was

i n s t i t u t e d

was due t o a mistake,

re l iance

information supplied

by another person,

to the act or defaul t of another person,

to an accident or to

some

other cause

beyond

h i s

c o n t r o l ,

and

(b)	tha t he took reasonable precautions

and

exercised due

d i l igence

to avold the

contravention.

(2) If a defence

provided

by sub-section (1) involves

an. a l l ega t ion tha t -

contravention was

due

to r e l i ance

information supplied

another person or to the act

or default

of another person,

the defendant

1 s

n o t ,

without leave of the Court , ent i t led to re ly

t h a t

defence unless he has,

not

later

than seven

days

before

the

day

on which

the hearing of the proceeding

commences,

served on the person by whom the proceeding was

i n s t i t u t e d

notice in writ ing giving such information

t h a t

would

i d e n t i f y o r a s s i s t i n t h e i d e n t i f i c a t l o n

the other person as

was

then in h is possess ion ."

This	submission misconceives the nature of the s ta tutory

defence.

The

publ icat ion of

the

s ta tements

each case

was

qu i t e de l ibe ra t e

and

not

due

t o

any

mistake in the sense of an

adminis t ra t ive

s l i p o r mishap

o r breach of authority

one

the

defendant 's

employees.

Ultimately,

counsel

for

the

defendant

abandoned the

defence

for

mistake.

any event ,

r e j e c t any

such defence as	i t	has no factual basis whatever in the present
case.

. . I .

11.

record

convict ion against the defendant in respect

of each

information.

I adjourn

the

fur ther hear ing

o f

the

proceedings for consideration of the question

pena l ty .

[1981] FCA 11

13 Feb 1981