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

[1981] FCA 11

\ l

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

NORTHERN TERRITORY DISTRICT REGISTRY ) Nos. 7, 8, 9 & 10 o f 1980

1

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 of

which the proceeding was instituted

was due to reasonable reliance on

information supplied by another	person,
or

that -

(i) the contravention in respect of

which the proceeding was instituted

was due to the act or default of

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 or

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

1

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 I recorded convictions against the

defendant for four offences against s .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 of the question of penalty

and certain submissions were made. I t i s necessary to 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 3 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 of

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 of

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 9 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 to 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 In 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 in the supermarkets were likewise draf ted by the

Managing Director and he must have known when he caused them t o

be displayed on 6 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 my view the offences were quite dellberate and accordingly

real punishment

propor t iona te to the de l ibera t ion . I do not accept 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. I accept tha t when the not ices were draf ted

i t was t o meet a completely different purpose, but a t the t ime of

+ 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 in

the supermarkets departed substantially from t h e t r u t h I n v i t a l

4 .

respec ts . A large proport ion of the defendant 's 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 a 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 a 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, a large supermarket catering to a la rge sec t ion of the

pub l i c . Andrews Food Fair , Westral ia Street , Stuar t Park is a

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 a 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 's costs

ne defendant has no pr ior convict ions

Taking into account a l l the c i rcumstances, I order tha t In

r c svec t of each offence the defendant pay a f i n e of $4000, such

f ine t o be pa id to the Registrar of the Court within 30 days o f

thin date o r such l a t e r d a t e a s may be 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 of s.53(e) of 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

be publ ished in the "Northern Terr i tory News" on 3 December 1979

and i n "The Star" newspaper on 6 December 1979 i d e n t i c a l

statements in the following terms:

"As from Monday 3rd December, 1979 cer ta in products

of 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 a 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 be d i rec ted to

the Darwin Bakery on phone 843500."

2.

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 of December

1979 a t a weight of 680 grams and tha't

products previously sold at a 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 so reduced were not

o f f e r e d f o r s a l e a t a reduced price adjusted

according to the said reduct ion in weight ."

The 1979 a t Woolworths second pair of informations charge that on 6 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

be 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 on 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."

It was al leged that in each case the said s ta tement was misleading

in 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 of December 1979 a t a

weight of 680 grams and that products previously

s o l d a t a weight of 500 grams were offered for

sale a f t e r t h e s a i d 6 t h day of December 1979 a t

a weight of 450 grams the products (save and

except milk bread unsliced) so 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 a 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 as gaze t ted cont ro l led p r ices were

appl icable to the products of the defendant

they were so appl icable only to Milk Bread

Unsliced in weights of 680 grams and 450 grams."

3.

Pursuant to directions given on 27 June 1980 the

prosecutions came on for hear ing on 27 October 1980. By

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 in connect ion with

the possible supply of goods, namely bread,

(3) the defendant d i d , on the occasion a l leged,

make a s ta tement with respect to the pr ice

of 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 .

I turn to consider the evidence proved by a f f i d a v i t and

no t i n d i spu te . A t a l l mater ia l t imes the defendant was a

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

a t weights of

750 grams and 500 grams. A l l o ther baker ies in the Darwin a rea

4.

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 by 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 a r e t a i l p r i c e l i s t ident i fying the var ious types of

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 be 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 of 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 . In 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 by Order No. 5 of

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 be s e t f o r

what was r e fe r r ed to a s a "standard loaf", being a wrapped

3.

5

uns l iced mi lk loaf in 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 a 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 by l e t t e r

of 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 No 5

and f ixed the maximum p r i c e a t which milk bread unsliced could

be s o l d i n t h e Darwin Town Area (as defined) by 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.

By revocation of Order No. 5 , p r i ce con t ro l on 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 on and a f t e r Monday 3 December 1 9 7 9 .

On 3 December 1979 the defendant caused to be published

in the "Northern Terr i tory News" newspaper the statement set

out in information numbered 7 of 1980 and on 6 December 1979

i n "The Star" newspaper the identical statement set out i n

information numbered 10 of 1980. On 6 December 1979 t he

defendant caused to be 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 of the statements the prices of

the defendant 's products on and a f t e r 3 December 1 9 7 9 , except

for milk bread unsliced in weights of 680 grams and 4 5 0 grams

!

6.

i n r e spec t o f which the defendant adopted the maximum f ixed pr ice

of 63 cents and 50 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 of the par t icular products . The

p r i c e s of 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 of 450 grams a t 57 cents .

It i s c l e a r t h a t on 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 t under price control, namely, milk bread unsliced, and

l e

i t s other products not under pr ice control

by re ference to tha t p roduct . The defendant was e n t i t l e d i n law

t o do so , there being no r e s t r i c t i o n by way of pr ice cont ro l on

t h e d i s t r i b u t i o n of those products. The question i s whether the

statements in the newspapers and supermarkets were, in 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 in fac t . It 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

a t 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 a 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 of t h a t word. I was r e f e r r e d t o t h e meaning of "reduced"

as i t appears in the Concise Oxford Dictionary New Edit ion 1976-1978

Reprint . Counsel r e l i e d upon meanings of "converted", "altered",

or "calculated". Thus, so the argument r an , wh i l s t t he p r i ces of

t h e non pr ice-control led products were not the same as before

7

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 on tha t da t e and i n

that sense they were "reduced". In my view, t h i s argument

misconceives the nature of the al legat ion in 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 ) in the case of in format ions numbered

7 and 10 wi th the d i f f e ren t of 1980, tha t the pr ices would be adjusted to accord

and lesser weight of the bread products to

be sold by the defendant as from 3 December 1979 , and (b) in

the case of informations numbered 8 and 9 of 1980, that the

p r i ces had , i n f ac t , been reduced to 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 J. 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 be influenced,

indeed decisively influenced, by the context

i n which i t i s found. Here the s t t ing in -

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 a corporat ion in the course of t rade

or commerce engaged i n a form of conduct, a

t r ade p rac t i ce , which i s un fa i r . "

In 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 -

8.

“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 be any

11

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 more t h a n t h e l i t e r a l meaning which

the words spe l l ed ou t .

I adopt, with respect, the approach of 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 he said that the conduct i s t o be

by

the defendant and as being understood by persons contemplating

purchase of bread products. See a l so Weitmann v. 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 . 77 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 a 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 a reduct ion in the pr ice of the products to accord with

the reduct ion in packaging s izes and, fur thermore, that in re la t ion

to the s ta tements referred to in informations numbered 8 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 7 and 10 of 1980,

I considered whether the statement “prices w i l l be adjusted

accordingly“ appearing in the statements could be sa id to be

misleading o r whether i t should merely be construed as a statement

of fu ture in ten t ion and t h a t a change of intent ion took place

9.

before the pr ices were implemented (See for example, ex parte

Calv in ; re Watson - (1961) 2 F .L .R. 269). But, on 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 , a 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 . I am s a t i s f i e d

beyond reasonable doubt that in re la t ion to each information the

statements were misleading.

The defendant next argued that mens r ea was a necessary

ingredient of a 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 v. Holland (1977) 15 A . L . R . 439, i s an au tho r i ty of

this Court d i rect ly against the argument . In that mat ter

Franki J. 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) of the Act .

i s now governed by

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 by s . l 3 8 ( l ) ( d )

of the Social Services Act. The High Court, on my reading of

the respective judgments, d i d not a t tempt to lay down any

pr inciples in respect of the Trade Pract ices Act . Indeed there

is some sugges t ion in the judgment of 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 's argument also.

. . 10

I 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 is 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 o 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 a contravention of

a 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, to re l iance on

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 - a contravention was due to r e l i ance

on information supplied by 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 on 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 a 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 of

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 in 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 by one of

the defendant 's employees. Ultimately, counsel for the defendant

abandoned the defence for mistake. In any event , I r e j e c t any

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

C.

. . I . 11.

I record a 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 of pena l ty .