Ashwell v Commissioner for Consumer Protection
[2015] WASC 337
•11 SEPTEMBER 2015
ASHWELL -v- COMMISSIONER FOR CONSUMER PROTECTION [2015] WASC 337
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 337 | |
| Case No: | SJA:1086/2014 | 5 JUNE 2015 | |
| Coram: | JENKINS J | 11/09/15 | |
| 42 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time within which to appeal granted Leave to appeal on each proposed ground of appeal against convictions refused Appeal against convictions dismissed Leave to appeal on the proposed ground of appeal against the sentence imposed on David Michael Ashwell refused Appeal against the sentence imposed on David Michael Ashwell dismissed Leave to appeal on the proposed ground of appeal against the sentence imposed on Agrilube Fluid Management Pty Ltd granted Appeal against the sentence imposed on Agrilube Fluid Management Pty Ltd allowed Agrilube Fluid Management Pty Ltd resentenced | ||
| B | |||
| PDF Version |
| Parties: | DAVID MICHAEL ASHWELL AGRILUBE FLUID MANAGEMENT PTY LTD (ACN 134 118 844) COMMISSIONER FOR CONSUMER PROTECTION |
Catchwords: | Criminal law Appeal Convictions against company and individual for breaching the prescribed requirement for a warranty against defects and making a false or misleading representation concerning the existence of a right or remedy Appeal against convictions Whether magistrate erred in allowing prosecution to rely upon a document disclosed shortly before hearing Whether magistrate erred in refusing to allow appellants to tender an affidavit Whether prosecution failed to prove that the incorporated accused was connected with the alleged offence Whether prosecution discriminated against the appellants by prosecuting them and not other for similar offences Criminal law Appeal Convictions against company and individual for breaching the prescribed requirements for a warranty against defects and making a false or misleading representation concerning the existence of a right or remedy Appeal against sentences Whether the sentences imposed were manifestly excessive Criminal law Appeal Correct names of the parties to the appeal |
Legislation: | Competition and Consumer Regulations 2010 (Cth), r 90 Criminal Appeals Act 2004 (WA), s 7, s 14 Criminal Procedure Act 2004 (WA), s 126, s 144 Evidence Act 1906 (WA), s 97 Fair Trading Act 2010 (WA), s 17, s 19, s 23, s 24, s 32, s 64, s 102, s 151, s 192, s 214 Interpretation Act 1984 (WA), s 5 Justices Act 1902 (WA), s 185 Magistrates Court Act 2004 (WA), s 34 Oaths, Affidavits and Statutory Declarations Act 2003 (WA), s 5 Sentencing Act 1995 (WA), s 40, s 51 |
Case References: | Bennett v Carruthers [2010] WASCA 13 Chan v The Queen (1989) 38 A Crim R 337 Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289 Glew v Shire of Greenough [2006] WASCA 260 Hedley v Spivey [2012] WASCA 116 Johnson v Lapham (1992) 6 WAR 359 Kendall v Stewart [2005] WASCA 10 Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 Magaming v The Queen [2013] HCA 40 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Shaw v McGinty [2006] WASCA 231 Tey v Plotz [2010] WASC 163 The State of Western Australia v Gibbs [2009] WASCA 7 Wearne v Roberts [2001] WASCA 279 Wiltshire v Mafi [2010] WASCA 111 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
Prosecution Notice GN447449/2014
- First Appellant
AGRILUBE FLUID MANAGEMENT PTY LTD (ACN 134 118 844)
Second Appellant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B GLUESTEIN
File No : GN 447 of 2014, GN 448 of 2014, GN 449 of 2014
Catchwords:
Criminal law - Appeal - Convictions against company and individual for breaching the prescribed requirement for a warranty against defects and making a false or misleading representation concerning the existence of a right or remedy - Appeal against convictions - Whether magistrate erred in allowing prosecution to rely upon a document disclosed shortly before hearing - Whether magistrate erred in refusing to allow appellants to tender an affidavit - Whether prosecution failed to prove that the incorporated accused was connected with the alleged offence - Whether prosecution discriminated against the appellants by prosecuting them and not other for similar offences
Criminal law - Appeal - Convictions against company and individual for breaching the prescribed requirements for a warranty against defects and making a false or misleading representation concerning the existence of a right or remedy - Appeal against sentences - Whether the sentences imposed were manifestly excessive
Criminal law - Appeal - Correct names of the parties to the appeal
Legislation:
Competition and Consumer Regulations 2010 (Cth), r 90
Criminal Appeals Act 2004 (WA), s 7, s 14
Criminal Procedure Act 2004 (WA), s 126, s 144
Evidence Act 1906 (WA), s 97
Fair Trading Act 2010 (WA), s 17, s 19, s 23, s 24, s 32, s 64, s 102, s 151, s 192, s 214
Interpretation Act 1984 (WA), s 5
Justices Act 1902 (WA), s 185
Magistrates Court Act 2004 (WA), s 34
Oaths, Affidavits and Statutory Declarations Act 2003 (WA), s 5
Sentencing Act 1995 (WA), s 40, s 51
Result:
Extension of time within which to appeal granted
Leave to appeal on each proposed ground of appeal against convictions refused
Appeal against convictions dismissed
Leave to appeal on the proposed ground of appeal against the sentence imposed on David Michael Ashwell refused
Appeal against the sentence imposed on David Michael Ashwell dismissed
Leave to appeal on the proposed ground of appeal against the sentence imposed on Agrilube Fluid Management Pty Ltd granted
Appeal against the sentence imposed on Agrilube Fluid Management Pty Ltd allowed
Agrilube Fluid Management Pty Ltd resentenced
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : In person
Respondent : Ms K N King
Solicitors:
First Appellant : In person
Second Appellant : In person
Respondent : Department of Commerce
Case(s) referred to in judgment(s):
Bennett v Carruthers [2010] WASCA 13
Chan v The Queen (1989) 38 A Crim R 337
Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289
Glew v Shire of Greenough [2006] WASCA 260
Hedley v Spivey [2012] WASCA 116
Johnson v Lapham (1992) 6 WAR 359
Kendall v Stewart [2005] WASCA 10
Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168
Magaming v The Queen [2013] HCA 40
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shaw v McGinty [2006] WASCA 231
Tey v Plotz [2010] WASC 163
The State of Western Australia v Gibbs [2009] WASCA 7
Wearne v Roberts [2001] WASCA 279
Wiltshire v Mafi [2010] WASCA 111
1 JENKINS J: This is an appeal from the decisions of a magistrate sitting in the Magistrates Court at Geraldton on 28 August 2014. The appeal is against the magistrate's decisions on prosecution notice numbers GN447-449 of 2014 to convict Agrilube Fluid Management Pty Ltd (AFM) and David Michael Ashwell (together, the appellants) of two counts of breaching the prescribed requirements for warranties against defects and one count of making a false or misleading representation concerning the exclusion of a right or remedy. The appeal is also against the sentences imposed on each appellant. Although only one notice of appeal was filed it is clear that the appeal is against each conviction of, and sentence for, each appellant. I will determine it on that basis.
Parties to the appeal
2 The appeal notice is handwritten. It identifies the appellants as 'David Ashwell' and 'Agrilube - Fone-Fix'.1 It identifies the respondent as 'Dept of Commerce'.
3 The Department of Commerce filed a notice of respondent's intention dated 13 November 2014. It subsequently filed an application dated 18 November 2014 for orders that:
1. [T]he names of the Second Appellant and Respondent be amended as follows:
- Second Appellant - Agrilube Fluid Management Pty Ltd (ACN 134 118 844)
- Respondent - Commissioner for Consumer Protection
2. [T]he Third Appellant be removed as a party to the appeal.
3. [T]he costs of the application be reserved.
4 The appellants filed an affidavit of Mr Ashwell sworn 7 December 2014 in opposition to the respondent's application to change the names of the parties.
5 The affidavit refers to matters which are irrelevant to the question of the proper parties to the appeal. In respect of the relevant issue, the affidavit says that Fone Fix2 is a valid entity which operates without an Australian business number because it operates under a $150,000 turnover threshold and is non-profit bearing. The affidavit says that Fone Fix is 'a self-assessing entity, it is Not for Profit, it is a Non Government Organisation and carries its own private Articles of Association'. The affidavit says that the prosecutor and the magistrate failed to acknowledge the existence of Fone Fix and 'thus embroiled a separate and unrelated trust into the matter, ie AGRILUBE PTY LTD'.
6 In the affidavit, Mr Ashwell asserts that whatever acts were done and whatever representations were made, they were done and made by Fone Fix and that AFM had no connection with the offences.
7 The relevant prosecution notice named AFM and Mr Ashwell as the accused. The prosecution notice named the Commissioner for Consumer Protection as the prosecutor. It named Stefan Richard Reksmiss, Senior Investigator, Department of Commerce, as the person issuing the prosecution notice. The amended annexure to the prosecution notice which set out the description of the alleged offences stated that AFM, trading as FoneFix, and Mr Ashwell were charged with the offences. The names of the parties were not amended at any time during the prosecution.
8 The respondent says that Fone Fix was not a party to the proceedings in the Magistrates Court. Furthermore, it submits that Fone Fix is an unregistered business name and is not a person within the meaning of the Interpretation Act 1984 (WA) s 5 which states that a person includes a public body, company, association, or body of persons, corporate or unincorporated.
9 The Criminal Appeals Act 2004 (WA) (the Act) s 7(1) says that:
A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
10 The Act does not define the phrase 'a person who is aggrieved by a decision of a court of summary jurisdiction'. This leaves open the possibility that a person who was not a party to the proceedings in the Magistrates Court may be able to appeal against a decision of a court of summary jurisdiction.
11 The meaning of the phrase 'a person aggrieved' has been considered by many courts in the context of different pieces of legislation. However, I have been unable to find, and have not been referred to, a case dealing with the meaning of the phrase 'a person aggrieved' as defined in the Act s 7(1).
12 In Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, 184 - 185, Gibbs CJ said:
The words 'person aggrieved' have appeared in many statutes, English and Australian, and their meaning has been discussed in many cases. In the end of course the meaning of the words must depend on the context of the particular statute. It has often been said that the words connote a person with a legal grievance: see In re Sidebotham; Buxton v Minister of Housing and Local Government … However, in Attorney-General (Gambia) v N'Jie, Lord Denning, delivering the judgment of the Privy Council, said that the words are of wide import and should not be subjected to a restrictive interpretation. He added:
'They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.' (footnotes omitted)
14 Relevant to determining the respondent's application in this case is that Fone Fix was not a party to the proceedings in the Magistrates Court. Nothing that the magistrate said or ordered affected the rights or interests of any entity known as Fone Fix or 'Agrilube - Fone-Fix'. Further, apart from Mr Ashwell's assertions in his affidavit that Fone Fix exists, albeit it is not incorporated, there was no evidence before the magistrate and no evidence before me, as I will detail in due course, that Fone Fix exists as a person as defined by the Interpretation Act for the purposes of the Act s 7(1).
15 For these reasons, I find that 'Agrilube - Fone-Fix' or Fone Fix do not have standing to bring this appeal. Those names are removed from the title of the appeal. I substitute AFM as the second named appellant.
16 Next, I am required to determine whether the correct name of the respondent to the appeal is the Commissioner for Consumer Protection; rather than the Department of Commerce.
17 In Tey v Plotz [2010] WASC 163, I set out the relevant provisions relating to the identities of parties in appeals to this court from decisions of magistrates. In effect, there is no provision which states who is the appropriate respondent to an offender appeal from a criminal prosecution which the WA Police did not prosecute. However, by inference, the appropriate respondent will normally be the person named in the prosecution notice as the prosecutor. In this case, that was the Commissioner for Consumer Protection. The Commissioner for Consumer Protection is substituted as the respondent for the Department of Commerce.
18 Thus, I make the orders as sought in pars 1 and 2 of the respondent's application dated 18 November 2014.
The conduct of the oral appeal hearing
19 At the hearing of the appeal on 5 June 2015, I declined to allow Mr Ashwell to make oral submissions on behalf of the appellants. These are my reasons for doing so.
20 At a directions hearing on 3 March 2015, the appellants' submissions were made by Mr Ashwell by telephone, with the consent of Corboy J.
21 Mr Ashwell usually resides in Geraldton and he has limited mobility. At the end of the directions hearing, Corboy J said that it would be easier for Mr Ashwell and easier for him (his Honour believed that he would be hearing the appeal) if Mr Ashwell attended court personally at the hearing of the appeal. However, Corboy J said that he could hear Mr Ashwell by telephone if it was too expensive for Mr Ashwell to come to Perth. Corboy J asked Mr Ashwell to advise his associate if he wanted to appear at the appeal by telephone.
22 No such advice was provided to the court and on 5 June 2015 Mr Ashwell was in the public gallery of the court in which the appeal was listed to be heard before me. When the hearing commenced, I asked Mr Ashwell to come to the bar table. He said that he would make his submissions from the public gallery of the court. I repeatedly asked him whether there was any physical reason why he could not come to the bar table. He avoided answering the questions and said that he would make his submissions from the public gallery.
23 I asked the respondent's counsel whether the respondent knew of any reason why Mr Ashwell could not come to the bar table. The respondent's counsel referred me to copies of two documents which Mr Ashwell had previously provided to the respondent and to the court. The first was a report from Ms Margaret Denton, Regional Director Midwest, WA Country Health Services dated 25 November 2013, which briefly outlined Mr Ashwell's 'complex medical history'. On the basis of that document, Mr Ashwell has a broad range of serious medical conditions. As a consequence, he is reliant on a wheelchair when he moves outside of his home environment. However, there was nothing in that document to indicate that he could not move his wheelchair to the bar table to make his oral submissions.
24 The second document was an audiology report relating to Mr Ashwell. It indicated that Mr Ashwell has 'a mild sloping to severe hearing loss bilaterally'. This had already been noted by me in that Mr Ashwell had told me that he could not hear me clearly from his position in the public gallery. The audiology report supported my opinion that, for practical reasons, Mr Ashwell should be as close as possible to the other speakers in the court during the hearing of the appeal.
25 I then asked Mr Ashwell why he declined to come to the bar table. Mr Ashwell replied 'I don't believe in your court'. This comment was consistent with various statements made in the appellants' written submissions filed in the appeal. For example, those submissions include the following statements:
11. The man, David Ashwell, at no time, grants willing consent to being a party to these proceedings, but attends merely for the purpose of putting matters right.
12. Attendance is under duress:
a) to bring clarity to falsified information,
b) to serve compensation bills for harm and injury incurred
c) to hold accountability by those who chose to harm Mr Ashwell, his wife, and his livelihood to make a point out of a matter that was exploited beyond any rational proportion.
13. Attendance is under protest and as a result of injury incurred.
…
16. It is recognised and acknowledged that this court, the Supreme Court of Western Australia and the Magistrates Court of Geraldton Western Australia, is NOT following procedures under a Common Law Jurisdiction.
…
58. Silence is consent. Well not in this court room on June 5th 2015. Let it be clearly known and understood, that consent to this paradigm is NOT granted.
26 Mr Ashwell's comment was also consistent with comments he had made to the magistrate, including the comment 'I do not recognise the court' (ts 24, 28 August 2014).
27 I advised Mr Ashwell that I did not wish to deny him an opportunity to be heard orally in the appeal, but that unless he came forward to the bar table, I was not prepared to hear him. I said that the reason for this was that in order for him to prosecute the appeal he must submit to the authority of the court to hear and determine it. Mr Ashwell refused to come forward to the bar table then and again after the respondent's oral submissions were made. In those circumstances, I declined to permit him to make oral submissions on his appeal from the public gallery.
28 On the material before me, there was no practical reason why Mr Ashwell could not come forward to the bar table. Rather, because of his hearing disability, there were very good practical reasons why it was desirable for him to come forward to the bar table to make his submissions.
29 Fundamentally, Mr Ashwell refused to come to the bar table as a demonstration of his belief that the court does not have authority over him. Of course, this belief is inconsistent with the commencement and prosecution of the appeal. Putting that issue to one side, it seemed to me that by his actions Mr Ashwell was mocking the court's authority and demonstrating his refusal to recognise the court's jurisdiction. Whilst the court does not revel in exercising authority over litigants, it is important that litigants who seek redress from the court are prepared to acknowledge the authority of the court and to demonstrate that by appropriate behaviour in the court.
30 Given Mr Ashwell's refusal to come to the bar table and to submit to the authority and jurisdiction of the court I decided to proceed to determine the appeal without hearing orally from Mr Ashwell. In order to determine the appeal I have taken into account the evidence and documents from the Magistrate Court, the material filed in the appeal (subject to the qualification which follows), the transcript of proceedings before Corboy J on 3 March 2015 and the respondent's oral submissions on 5 June 2015.
31 The qualification relates to the appellants' written submissions which have been filed. The submissions are 20 pages long. The grounds of appeal were, in effect, settled by Corboy J at a directions hearing on 3 March 2015. Despite this, the appellant's written submissions include material entirely irrelevant to those grounds, such as:
[T]he Australian Government is an internal 'legal fiction' registered in a foreign land, thus violating Clause 8 of the Preamble of the Australian Constitution [36].
32 They also assert that AFM, Fone Fix and David Ashwell are 'trusts/avatars within the Estate of the man known as David Ashwell' and a claim for damages from the presiding magistrate, media outlets and a public servant.
33 In respect of the appellants' submissions which do not address the grounds of appeal, those submissions and variants of them have been held to be devoid of legal merit: Hedley v Spivey [2012] WASCA 116 and the cases cited at [7]. I have treated them as such and have not taken them into account in determining that appeal. A claim for damages cannot form part of an appeal from a magistrate's decision.
Proposed grounds of appeal
34 The grounds of appeal, settled by Corboy J on 3 March 2015, are as follows:
(1) the magistrate erred in imposing a sentence which was manifestly excessive compared with sentences imposed on other people for similar offences committed in similar circumstances;
(2) the magistrate erred in fact and law by refusing to accept into evidence or to take into account the affidavit of Mr Ashwell filed in the Geraldton Magistrates Court on 21 August 20143 (Mr Ashwell's affidavit);
(3) the magistrate erred in law and fact by finding that AFM was guilty because it did not trade as Fone Fix and it was not involved in the transactions which were the subject of the charges.
Particulars
(a) the magistrate ignored Mr Ashwell's affidavit which established that AFM had no connection with Fone Fix;
(b) the magistrate erroneously assumed that Fone Fix was part of AFM as its name was on the receipt given to the person who bought the phone which was the subject of the charges;
(c) the magistrate erroneously assumed that Fone Fix was part of AFM because Mr Ashwell's web address of [email protected] was on the paperwork relating to the transaction the subject of the charges;
(d) the magistrate erroneously believed that Mr Ashwell had admitted that he was the owner of AFM trading as Fone Fix whereas Mr Ashwell had not heard the magistrate correctly and had erroneously said 'yes' when the magistrate asked Mr Ashwell whether he was connected to AFM trading as Fone Fix.
(4) the magistrate erred in law because the Magistrates Court did not have jurisdiction over the charges;
(5) the magistrate erred in law in not delaying the commencement of the hearing or not adjourning the hearing to enable the appellants to have sufficient time to consider the documents which became exhibits 8 and 9; and
(6) the magistrate erred in law because the appellants could not be guilty of these offences unless others are also prosecuted for the same offence.
Extension of time within which to appeal
35 The appellants require an extension of time within which to appeal as the appeal was filed about four weeks out of time. I grant that extension of time given the explanation provided by the appellants, that is, that they initially thought that their appeal should be lodged with the District Court and it took some time for the misapprehension to be corrected.
Leave to appeal
36 The appellants need leave to appeal on each ground of appeal: the Act s 9(1). On 4 December 2014, Corboy J ordered that the application for leave to appeal be heard at the same time as the appeal.
37 I cannot give leave to appeal on a ground of appeal unless I am satisfied that the ground has a reasonable prospect of succeeding: the Act s 9(2). That is, 'a ground is required to have a rational and logical prospect of succeeding': Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. I will consider the merits of each ground of appeal before deciding whether leave to appeal ought to be granted on that ground of appeal.
The charges
38 The appellants were each charged with three offences in the following terms:4
Charge No 1
On 16 July 2013 at Geraldton AGRILUBE FLUID MANAGEMENT Pty Ltd ACN 134 118 844 trading as FoneFix5 and David Michael ASHWELL, in connection with the supply in trade or commerce of goods to a consumer, gave to a consumer a document that evidences a warranty against defects without complying with the requirements prescribed in section 102(1)(a) of the Australian Consumer Law (WA) and in regulation 90 Competition and Consumer Regulations 2010; contrary to section 192(1)(a) of the Australian Consumer Law (WA), and as such is guilty of an offence pursuant to section 32 Fair Trading Act 2010.
Particulars
(a) The consumer was Mrs Aleshia Grover
(b) The good was an Apple iPhone 4S
(c) The warranty against defects was a written representation in the Tax Invoice dated 16 July 2013.
Charge No 2
On 23 July 2013 at Geraldton AGRILUBE FLUID MANAGEMENT Pty Ltd ACN 134 118 844 trading as FoneFix and David Michael ASHWELL, in connection with the supply in trade or commerce of goods to the consumer, made a representation directly to the consumer that the goods were goods to which a warranty against defects, which did not comply with the prescribed requirements, relatedthat did not comply with the requirements prescribed in section 102(1)(a) of the Australian Consumer Law (WA) and in regulation 90 Competition and Consumer Regulations 2010, that the goods were goods wo which a warranty against defects w, related contrary to section 192(1)(b) of the Australian Consumer Law (WA), and as such is guilty of an offence pursuant to section 32 Fair Trading Act 2010.
Particulars
(a) The consumer was Mrs Aleshia Grover
(b) The good was an Apple iPhone 4S
(c) The warranty against defects was a written representation in an email dated 23 July 2013.
Charge No 3
On 23 July 2013 at Geraldton AGRILUBE FLUID MANAGEMENT Pty Ltd ACN 134 118 844 trading as FoneFix and David Michael ASHWELL, in trade or commerce in connection with the supply of goods made a false or misleading representation concerning the existence of a right or remedy, namely that in a document titled NOTICE TO ALL CUSTOMERS under the heading WARRANTY stated 'NO REFUNDS will be given on units sold' contrary to section 151(m) Australian Consumer Law (WA) and as such is guilty of an offence pursuant to section 32 Fair Trading Act 2010.
Particulars
(a) The consumer was Mrs Aleshia Grover
(b) The good was an Apple iPhone 4S
(c) The representation was a written representation in a document 'Notice to all Customers' attached to an email dated 23 July 2013 that the customer had no right to receive a refund in any circumstances.
(d) The representation was false or misleading as a refund was a right or remedy available to the consumer under Part 5.4 Division 1 of the Australian Consumer Law (WA).
Proceedings on the charges
39 The charges came on for hearing in the Magistrates Court at Geraldton on 28 August 2014. On an earlier date and when the appellants were legally represented, pleas of not guilty had been entered by both appellants. On 28 August 2014, Mr Ashwell appeared in person. Before the hearing commenced, the presiding magistrate had the following exchange with Mr Ashwell:
HIS HONOUR: Yes. I will just speak to Mr Ashwell first. Mr Ashwell, you're on the receiving end personally of three prosecutions by the Commissioner for Consumer Protection. Am I correct?
ASHWELL MR: Yes, Sir.
HIS HONOUR: And, also, a company, Agrilube Fluid Management Proprietary Limited, trading as Phone Fix. Are you connected to that company?
ASHWELL MR: I'm sorry, sir?
HIS HONOUR: Are you connected to that company?
ASHWELL MR: Agrilube?
HIS HONOUR: Yes.
ASHWELL MR: Yes, I am
HIS HONOUR: Yes. And what's your connection?
ASHWELL MR: I'm a director.
HIS HONOUR: Fine, okay, and - - -
40 Mr Ashwell told the magistrate that he had not pleaded to the charges and that he was 'not pleading at all'. He said that he was offering up Mr Ashwell's affidavit in defence. The magistrate refused to accept the affidavit at that point in the proceedings.
41 The magistrate proceeded on the basis that there were pleas of not guilty to all charges by both appellants. The magistrate's decision to enter pleas of not guilty was consistent with the Criminal Procedure Act 2004 (WA) s 126(5).
42 Briefly, the magistrate described to Mr Ashwell how the hearing would proceed. The magistrate told Mr Ashwell that he would have the opportunity to question the respondent's witnesses and if he had a different version of events that he ought to put that version to each witness.
43 Mr Ashwell told the magistrate that his story was in his affidavit. The magistrate told Mr Ashwell that there were reasons why he should not see Mr Ashwell's evidence before the prosecution had presented its case. The magistrate indicated that that was a rule of fairness to a litigant in person.
44 The prosecutor then opened the case for the respondent. The respondent called two witnesses, Ms Aleshia Ann Grover and Mr Stefan Richard Reksmiss. At the conclusion of the prosecution evidence, the magistrate asked Mr Ashwell whether he wished to give evidence. Mr Ashwell said that he wished to tender his affidavit. The magistrate asked Mr Ashwell again whether he would be giving evidence and he said that he was not going to give evidence. The magistrate told Mr Ashwell that unless he elected to give evidence he could not tender the affidavit. Again, Mr Ashwell attempted to tender the affidavit and the magistrate refused to accept it. The following exchange then took place between Mr Ashwell and the magistrate:
HIS HONOUR: If you wish to give evidence, you need to, as with any other witness, come into the witness box and - - -
ASHWELL, MR: I do not recognise the court, sir.
HIS HONOUR: - - - be sworn and - - -
ASHWELL, MR: I will not be sworn. I do not recognise your court.
HIS HONOUR: Now, I understand your position. You've got an argument about section 98 of the Constitution?
ASHWELL, MR: I don't recognise the Constitution, sir.
HIS HONOUR: Right.
ASHWELL, MR: I would have prior to 1972, I think it is.
HIS HONOUR: And the - - -
ASHWELL, MR: Before Gough Whitlam changed it.
HIS HONOUR: And the Magna Carta, you wish to argue about?
ASHWELL, MR: No. I know - I know the Magna Carta, sir.
HIS HONOUR: No?
ASHWELL, MR: I know the Magna Carta.
HIS HONOUR: Yes. And so you don't recognise this court, the authority of this court?
ASHWELL, MR: No, I do not.
HIS HONOUR: Yes. Which is why you don't want to give evidence because - - -
ASHWELL, MR: No, it isn't. No, it isn't.
HIS HONOUR: - - - you would be acknowledging the - - -
ASHWELL, MR: Sir, look, I will - if, you know, you guys could please yourself what you do. I will be taking this to the common law court which is now (indistinct) impact.
HIS HONOUR: Sure. You need to be aware there's a long, long line of single judge and full Court of Appeal decisions on, I think, the point that you want to raise about the Constitution and the Magna Carta and all of those have gone against the appellants. And in one of them leave to appeal to the High Court was rejected.
ASHWELL, MR: Sir, the Crown of England, the Vatican and their affiliate bodies are lawfully dissolved - and this is the preamble which I would like to hand up to you. Right.
HIS HONOUR: Is that would you want to hand up?
ASHWELL, MR: And my evidence.
HIS HONOUR: No.
ASHWELL, MR: My affidavit.
HIS HONOUR: You're not giving - if you're not giving evidence in the witness box, you're not - - -
ASHWELL, MR: Okay. Well, forget it. We will forget it. You go for your life and do what you want to do and I will - - -
HIS HONOUR: Just so that - Mr Ashwell, just so that the Appeal Court can see that I've given you plenty of leeway, I will ask you one more time; as a person accused of three charges, and your company accused of three charges, you have an election to give evidence or not to give evidence.
ASHWELL, MR: I have not been sworn in, sir. I have not pleaded and that is the way it is.
HIS HONOUR: You're not wishing - the answer is you're not wishing to give evidence in this court - - -
ASHWELL, MR: No.
HIS HONOUR: - - - because you don't recognise - - -
ASHWELL, MR: No, I do not.
HIS HONOUR: - - - the authority of this or any other court.
ASHWELL, MR: Correct (ts 24 - 26, 28 August 2014).
45 The prosecutor then made a closing address to the court. At the end of that address, the magistrate asked Mr Ashwell whether he wanted to say anything by way of a final address. The transcript does not disclose that Mr Ashwell made an audible reply. Mr Ashwell does not complain that at that point he indicated that he wished to make a final address and was refused the opportunity to do so. Therefore, I infer that Mr Ashwell indicated to the court that he did not wish to give a closing address. The magistrate then gave his reasons for convicting the appellants of the three charges.
46 After the magistrate convicted the appellants, the prosecutor made some brief sentencing submissions. Again, the magistrate asked Mr Ashwell whether he wanted to say something to him about a proposed fine and costs but there is no audible reply recorded. The magistrate then proceeded to sentence the appellants. The magistrate imposed a global penalty of $2,000 on Mr Ashwell and ordered him to pay costs of $2,000. The magistrate imposed a global penalty of $4,000 on AFM and ordered it to pay costs of $2,000. The magistrate also ordered the appellants to pay compensation of $506 to Ms Grover.
Statutory provisions
47 Each of the charges against the appellants alleged an offence against the Fair Trading Act 2010 (WA) s 32. The Fair Trading Act s 32(2) states that a person who commits an offence against the Australian Consumer Law (WA) (ACLWA) or is involved in the commission of an offence against the ACLWA is guilty of a crime. The summary conviction penalty for such an offence is the lesser of a fine of $36,000 or the maximum penalty provided by the ACLWA for the offence.
48 The Fair Trading Act s 17 defines ACLWA to mean the provisions applying in the State of Western Australia because of The Fair Trading Act s 19. Section 19 states:
Australian Consumer Law text, application of
(1) For the purposes of this section, the Australian Consumer Law text consists of -
(a) Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth), as in force on 1 January 2013 (but as modified by section 36); and
(b) the regulations made under section 139G of that Act, as those regulations are in force from time to time.
(2) The Australian Consumer Law text -
(a) applies as a law of this jurisdiction; and
(b) as so applying, may be referred to as the [ACLWA]; and
(c) in so far as it constitutes Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth), is part of this Act; and
(d) in so far as it constitutes regulations made under section 139G of the Competition and Consumer Act 2010 (Commonwealth), is subsidiary legislation for the purposes of this Act.
(3) This section has effect subject to sections 21, 22, 23 and 116(3).
49 The Fair Trading Act s 24(1) provides that:
(1) The Australian Consumer Law (WA) applies to and in relation to -
(a) persons carrying on businesses within Western Australia; or
(b) body corporate incorporated or registered under Western Australian laws; or
...
Prescribed requirements for warranties against defects
(1) A person commits an offence if the person, in connection with the supply, in trade or commerce, of goods or services to a consumer:
(a) gives to the consumer a document that evidences a warranty against defects and that does not comply with the requirements prescribed for the purposes of section 102(1); or
(b) represents directly to the consumer that the goods or services are goods or services to which such a warranty against defects relates.
Penalty:
(a) if the person is a body corporate - $50,000; or
(b) if the person is not a body corporate - $10,000.
(2) Subsection (1) is an offence of strict liability.
51 The ACLWA s 102 is relevant also to charges 1 and 2. It states:
Prescribed requirements for warranties against defects
(1) The regulations may prescribe requirements relating to the form and content of warranties against defects.
(2) A person must not, in connection with the supply, in trade or commerce, of goods or services to a consumer:
(a) give to the consumer a document that evidences a warranty against defects that does not comply with the requirements prescribed for the purposes of subsection (1); or
(b) represent directly to the consumer that the goods or services are goods or services to which such a warranty against defect relates.
(3) A warranty against defects is a representation communicated to a consumer in connection with the supply of goods or services, at or about the time of supply, to the effect that a person will (unconditionally or on specified conditions):
(a) repair or replace the goods or part of them; or
(b) provide again or rectify the services or part of them; or
(c) wholly or partly recompense the consumer;
if the goods or services or part of them are defective, and includes any document by which such a representation is evidenced.
53 The form and content of warranties against defects are prescribed in the Competition and Consumer Regulations 2010 (Cth), r 90, which states:
Requirements for warranties against defects
(1) For subsection 102(1) of the Australian Consumer Law, the following requirements are prescribed:
(a) a warranty against defects must be in a document that is transparent;
(b) a warranty against defects must concisely state:
(i) what the person who gives the warranty must do so that the warranty may be honoured; and
(ii) what the consumer must do to entitle the consumer to claim the warranty;
(c) a warranty against defects must include the text mentioned in sub regulation (2);
(d) a warranty against defects must prominently state the following information about the person who gives the warranty;
(i) the person's name;
(ii) the person's business address;
(iii) the person's telephone number;
(iv) the person's email address (if any);
(e) a warranty against defects must state the period or periods within which a defect in the goods or services to which the warranty relates must appear if the consumer is to be entitled to claim the warranty;
(f) a warranty against defects must set out the procedure for the consumer to claim the warranty including the address to which a claim may be sent;
(g) a warranty against defects must state who will bear the expense of claiming the warranty and if the expense is to be borne by the person who gives the warranty—how the consumer can claim expenses incurred in making the claim;
(h) a warranty against defects must state that the benefits to the consumer given by the warranty are in addition to other rights and remedies of the consumer under a law in relation to the goods or services to which the warranty relates.
(2) For paragraph (1)(c), the text is 'Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure'.
54 Charge 3 alleged that the appellants made a false or misleading representation concerning the existence of the exclusion of a warranty contrary to the ACLWA s 151(1)(m) which states:
(1) a person commits an offence if the person, in trade or commerce, in connection with the supply or possible supply of goods ...;
...
(m) makes a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under division 1 of part 3 - 2); or
55 I have detailed the respondent's case against the appellants and how the appellants committed these offences when determining the ground of appeal against sentence, later in these reasons.
The evidence
56 Ms Grover gave evidence that in July 2013 she was looking to buy a replacement iPhone for her husband to use in connection with his business. She saw an advertisement on a page on Facebook for a business purportedly called Fone Fix. The page included an advertisement for phones and information about iPhone repairs. She made a telephone call to the number listed on the Facebook page and spoke to Mr Ashwell. Ms Grover explained to Mr Ashwell that she was looking for a replacement iPhone for her husband. Mr Ashwell told her that he had phones available and he gave her his business address. He quoted $460 and said that if she attended now he would be able to see her.
57 Ms Grover withdrew $500 from the bank and drove directly to the address which Mr Ashwell had given to her. There she pressed a buzzer near a garage door. A lady showed Ms Grover through a house into a room which was set up like a small repair shop. There, Mr Ashwell showed her the iPhone he had available to purchase. She agreed to buy it. She put her husband's sim card into the iPhone and Mr Ashwell used it to call his wife and tested the iPhone to confirm that it was working. Mr Ashwell told her that it was working and so she agreed to purchase the iPhone for $460 plus GST. She gave Mr Ashworth $506 and he gave her a receipt which he told her to keep as proof of purchase. That document was tendered in evidence (Invoice 10945).
58 Invoice 10945 is headed 'Tax Invoice'. It is a colour printed document which gives the appearance of being a tax invoice provided to a customer by a business. At the top of the document is a printed banner which reads, in part, 'Fone Fix' of 1/71 Dorothy Street Geraldton, WA, 6530. The email address is stated to be '[email protected]'.
59 Invoice 10945 also has typed on it the customer's name, address and telephone number. It states that the date of sale is 16 July 2013. It records the sale of an iPhone 4S for a total amount of $506. After that information, Invoice 10945 contains the following statement:
WARRANTY. Six months warranty of defective parts and labour. Does NOT include broken screens or parts not replaced at the time of repair.
- There is a space for a signature and Invoice 10945 has been illegibly signed.
60 At the bottom of the page there is printed a banner which states:
Agrilube Fluid Management
PO Box 2757 GERALDTON 6530 1-3 Cassin Place, Geraldton 6530
- Kirk XXXX-XXX-XXX Dave XXXX-XXX-XXX
61 A couple of days later Ms Grover's husband told her that the sound on the iPhone was not adequate. On the following Sunday morning, Ms Grover sent an email to Mr Ashwell explaining that there was an issue with the iPhone and could he please contact her. Ms Grover missed Mr Ashwell's return call.
62 Ms Grover also sent an email to Mr Ashwell at [email protected]. On the same day Ms Grover received an email response telling her to bring the iPhone back to Mr Ashwell and he would fix it. The message Ms Grover received stated that it was from 'David Ashwell (Agrilube)' and from [email protected].
63 The following Monday, Ms Grover went back to see Mr Ashwell. He apologised and exchanged the iPhone. He did not provide Ms Grover with any new documentation.
64 Ms Grover's husband again complained to her that the sound on the second iPhone was faulty. Ms Grover checked and also found that it was faulty.
65 Ms Grover then sent an email to Mr Ashwell requesting a refund because she had been provided with two faulty iPhones within the space of a week.
66 Ms Grover did not receive a response from Mr Ashwell and so she telephoned him. Mr Ashwell told her that he had replied to her by email. Mr Ashwell told Ms Grover that he did not provide refunds. He said that it sounded like the iPhone needed to go to Perth for repair and that if she returned the iPhone to him he would provide a loan phone whilst the iPhone was being repaired.
67 Ms Grover agreed to meet Mr Ashwell again at his premises but before doing so she went to the office of consumer protection and spoke to an officer about her rights in respect of requesting a refund. She was provided with an information sheet on consumer rights. Ms Grover read the sheet and formed the opinion that she was within her rights to request a refund. Ms Grover then returned home and sent Mr Ashwell an additional email explaining that she did not want a loan phone but rather she wanted a refund.
68 Mr Ashwell responded by email. The address banner on the email stated that the email was from 'David Ashwell (Agrilube) [mailto:[email protected]]'. The email said:
Dear Alishia
I DO HAVE OTHER COMMITMENTS. I STAND BY MY WARRANTY and that warranty is that I REPLACE or REPAIR ANY faulty Mobile device that I sell to a member of the public. I have attached this warranty.
I DO NOT refund money as my warranty does not cover a money back guarantee. However I have ALSO offered you a loan phone, at no charge to you. This is far more than my warranty offers.
Please make arrangements to have the iPhone brought to me under the warranty terms.
Regards
Dave Ashwell
- Attached to the email was another document. It had the same banner heading as the Invoice 10945. It was dated 1 January 2011 and headed 'Notice to all Customers'. The first part of the notice related to electronic items which had their screens replaced. The latter half of the notice said as follows:
WARRANTY
ALL iPhones, iPads, iPods, or other glass screened mobile telephones carry a six (6) months replacement warranty against faulty parts and or workmanship for a period of six months from the date of repair. Other warranty details are as the above. As well, all refurbished units sole also carry this warranty. NO REFUNDS will be given on units sold, however, any unit giving after sales trouble will be repaired, or replaced, at our expense, and a new six (6) months warranty given.
The warranted item must NOT have been:
Opened by anyone other than our technicians.
Inspected by anyone other than our technicians.
Repaired by anyone other than our technicians.
Agrilube Fluid Management, reserves the right to honour or reject any warranted item it feels have been tampered with. ALL items repaired carry tamper proof evidence against the above.
I have read and understand this disclaimer.
Signed...................... Date.............../................/2013.
Customers name and address............................................................................
Signed...............................................................
For and on behalf of Agrilube Fluid Management Pty Ltd ABN 211-341-18844
70 At the conclusion of Ms Grover's evidence-in-chief, the magistrate told Mr Ashwell that this was his opportunity to question Ms Grover. Mr Ashwell said that he had no questions. The magistrate then said:
HIS HONOUR: Then I accept all of her evidence - -
ASHWELL MR: Yes.
HIS HONOUR: - - - without any - - -
ASHWELL MR: That's correct. What she says is correct, sir.
71 Mr Reksmiss gave evidence that he was a senior investigator with Consumer Protection at the Department of Commerce. He said that he was authorised under the Fair Trading Act s 64 to conduct investigations after being delegated by the Commissioner of Consumer Protection. He produced a copy of his delegation as an investigator for the purposes of the Fair Trading Act pt 6.
72 The respondent tendered through Mr Reksmiss Historical Company Extracts in respect of the only four Australian companies which Mr Reksmiss could find on the Australian Securities and Investment Commission (ASIC) database which related to companies using the name Fone Fix or a similar name. One of these was registered in May 2014 and had a registered office in Bondi Junction, NSW. Another had been de-registered on 17 January 2008 and had been registered in NSW. The third was de-registered on 30 September 2002 and had also been registered in NSW and the fourth was registered on 2 April 2002 in Victoria. The name of that company was Supreme Fone Fix Pty Ltd. The directors of that company were not related to Mr Ashwell or AFM.
73 Mr Reksmiss also searched the register of business names and located two business name registrations for Fone Fix. One of these was current. It was registration no 164674042 which was registered on 5 July 2013 and the person who registered that name was a Shaun Moffatt from NSW who was also a director of the company Fone Fix Australia Pty Ltd which started on 23 May 2014. The second registered business name was Fone Fix Australia Pty Ltd and the Australian Business Number was 33169714381. It was registered in NSW on 23 May 2014. It is currently registered and the director is Shaun Moffatt from NSW. It was plain that none of these businesses were connected with Mr Ashwell or AFM.
74 The respondent tendered through Mr Reksmiss the Historical Company Extract for AFM. It records that the name start was 11 November 2008 and that AFM is registered as an Australian proprietary company, limited by shares. Its registered office was at Midwest Financial Pty Ltd, suite 2, 201 Foreshore Drive, Geraldton. Its principal place of business is stated to be unit 1, 71 Dorothy Street, Geraldton. Its directors are David Michael Ashwell and Mary Josephine Ashwell, both of unit 1, 71 Dorothy Street, Geraldton. The directors are the only shareholders recorded for the company.
75 The magistrate asked Mr Ashwell whether he had any questions for Mr Reksmiss. Mr Ashwell cross-examined Mr Reksmiss about a supplementary statement which he had signed on 27 August 2014 which had attached to it the ASIC searches for Fone Fix. There was an exchange between the witness, Mr Ashwell, Ms Nevill (counsel for the respondent) and the magistrate which established that the searches and Mr Reksmiss' supplementary statement had only been provided to Mr Ashwell the previous day because that was the date on which Mr Reksmiss had made the supplementary statement.
76 Ms Nevill submitted to the magistrate that the supplementary statement did not prejudice Mr Ashwell in any way because the evidence did not change the subject of the charges. She said that it clarified the reason why the prosecution was against AFM rather than Fone Fix which she said 'does not exist as an entity to be prosecuted'.
77 Mr Ashwell told the magistrate that the additional material from Mr Reksmiss caught him unawares. He said that AFM had nothing to do with Fone Fix and that Fone Fix was a hobby. Mr Ashwell said that it was both a 'hobby company' and a 'hobby business'. The magistrate told Mr Ashwell that he was not going to cross-examine him but he needed to be aware of the import of Invoice 10945 which included the name Fone Fix, Mr Ashwell's address, and at the bottom the name and details of AFM. Mr Ashwell said that the document was a mistake.
78 Mr Ashwell said 'my people' had not had a chance to see the addendum statement and he thought that was unfair. The magistrate asked Mr Ashwell whether his 'people' were at court and Mr Ashwell advised that they were not. Mr Ashwell acknowledged that he was aware of that day's hearing. He said:
I mean, if I'd known about this, it would have changed the matter altogether I would imagine. I don't know. I haven't (indistinct) counsel on that (ts 23, 28 August 2014).
79 The magistrate told Mr Ashwell that Fone Fix was not being prosecuted. Rather, AFM and he, Mr Ashwell, were being prosecuted. Mr Ashwell was then invited to continue his questioning. Mr Ashwell said that that concluded his questions.
80 The prosecutor then closed prosecution case. The magistrate asked whether Mr Ashwell wanted to give evidence. Mr Ashwell said that he wished to tender his affidavit but that he was not going to give evidence. The magistrate told him that he could not tender the affidavit unless he elected to give evidence and that he could not tender the affidavit by way of evidence. The exchange, which I quoted earlier in these reasons, then took place between the magistrate and Mr Ashwell.
Magistrate's reasons
81 The magistrate found that Ms Grover had purchased an iPhone from Mr Ashwell and AFM. He said that she had been given Invoice 10945 when she paid for the iPhone. The magistrate summarised the information on Invoice 10945 and when doing so, he said that Mr Reksmiss had told him that Fone Fix did not exist.
82 The magistrate found that the sale of the iPhone was a transaction involving trade or commerce, as it was the purchase by Ms Grover of an iPhone from a business involved in advertising on the internet for the sale of phones among other things.
83 The magistrate identified that the first charge related to the issue of a warranty. He found that the warranty was not in the prescribed form. In respect of the second charge, the magistrate said that this related to the 'bold assertion' by both appellants that there would be no refunds. The magistrate referred to the third charge as relating more broadly to what is classified as false and misleading information and that it particularly related to the statement given to Ms Grover that there would be no refunds in the notice that she was sent with the email of 23 July 2013.
84 The magistrate correctly noted the onus and standard of proof.
85 The magistrate then referred to Mr Ashwell's failure to recognise the authority of the court. The magistrate said that those arguments had been rejected by the court and had been found to have no merit.
86 The magistrate found that he was easily satisfied that the three charges against Mr Ashwell and against AFM had been proved. He said that the transaction with Ms Grover fitted the classification that Mr Ashwell and AFM were involved in trade or commerce of goods. He said that Mr Ashwell was in breach of the ACLWA as well as the Competition and Consumer Regulations and the Fair Trading Act. The magistrate said that 'his policy stated a policy of not providing any refunds breaches the law and I therefore find the three charges proved'.
Sentencing
87 The magistrate proceeded to sentence the appellants. He was advised by the prosecutor that each of the offences had a maximum summary penalty of $36,000 for an individual and $180,000 for a corporation.
88 Ms Nevill submitted to the magistrate that the respondent received many complaints from consumers who were sold defective goods. She submitted that the failure of a trader to advise customers of rights under the ACLWA, left the consumer with the impression that the trader was adding value to the purchase by volunteering to fix a defective product. In fact, Ms Nevill submitted that the trader was obliged, under the legislation, to address any defects.
89 Ms Nevill noted that Parliament had seen fit to prescribe a notice that alerted consumers to their rights under the ACLWA. She submitted that Mr Ashwell, who ran his own business, should be aware of his obligations to comply with the ACLWA. She noted that he continued to carry on the business and therefore the circumstances that existed at the time of the offences continued to exist. She said that as a business owner, Mr Ashwell chose to implement a no refund policy which was directly inconsistent with the rights provided in the ACLWA. Therefore, the sentence imposed on the appellants should reflect the need to deter Mr Ashwell personally as well as the need to send a message to the community. Ms Nevill noted that there was also direct evidence of financial loss to Ms Grover who had not been offered a refund for the faulty iPhone. Consequently, the respondent sought an order for compensation to her in the sum of $506.
90 Ms Nevill then referred to the ACLWA s 214 which states that if a person is convicted of two or more offences constituted by, or relating to, contraventions of the same provision of the ACLWA ch 4 and the contraventions appear to the court to have been of the same nature or a substantially similar nature and to have occurred at or about the same time, the court must not, in respect of those offences, impose on the person fines that, in the aggregate, exceed the maximum fine that would be applicable in respect of one offence by that person against the relevant provisions. Ms Nevill submitted that the respondent conceded that the first two offences arose out of the one transaction.
91 The prosecution also sought costs in the sum of $8,230.
92 As Mr Ashwell declined to make any submissions on sentence, the magistrate proceeded to sentence the appellants.
93 Taking proportionality into account, the magistrate made the costs order as referred to at the beginning of these reasons.
94 In respect of setting the fine for Mr Ashwell, the magistrate noted that there needed to be a personally deterrent element to sentencing. He then proceeded to impose a global fine of $2,000 on Mr Ashwell, and a global fine of $4,000 on AFM. His Honour also made the compensation order.
Determination of the grounds of appeal
95 I will deal with the grounds of appeal against conviction before that against sentence.
Ground of appeal 2
96 The magistrate was correct to hold that Mr Ashwell's affidavit was inadmissible in evidence.
97 If Mr Ashwell had chosen to give oral evidence, he could have given evidence orally of some of the matters in the affidavit. However, there is also material in the affidavit which was irrelevant to any issue before the magistrate or relevant only to sentence.
98 The Criminal Procedure Act s 144 applied to the trial in the Magistrates Court. The appellants were entitled to defend the charges and to cross-examine any witnesses called by the respondent and to call, examine and re-examine any witness.
99 The appellants were not entitled to tender Mr Ashwell's affidavit at the commencement of the trial.
100 In accordance with the Criminal Procedure Act s 144(3), after the close of the respondent's case, the magistrate asked Mr Ashwell if he intended to give evidence. This question must be seen in light of the exchange between the magistrate and Mr Ashwell at the commencement of the trial when Mr Ashwell advised the court that he did not have any witnesses. Mr Ashwell said that he wished to tender the affidavit but made it clear that he was not going to give evidence.
101 The Evidence Act 1906 (WA)s 97(2) provides that in any criminal proceeding, no accused person shall be entitled to make a statement of fact at his trial, otherwise than by way of admission of a fact alleged against him so as to dispense with proof of that fact, unless such statement is made by him as a witness. The Evidence Act s 97(1) provides that, subject to any other Act in which express provision is made to the contrary, in any criminal proceeding, every competent witness as to fact shall give evidence on oath. The form of oath is set out and it is not the same form as in the affidavit.6
102 These statutory provisions make it clear that, except with the consent of the prosecution, an accused person cannot make a defence to a charge by tendering an affidavit. The respondent did not consent to the appellants tendering Mr Ashwell's affidavit. Consequently, the magistrate did not err by refusing to admit Mr Ashwell's affidavit into evidence.
103 The appellants' written submissions do not address this ground of appeal. There is no evidence or material before me which would justify me finding that the appellants misunderstood the magistrate's comment that Mr Ashwell's evidence could only be given as a witness on oath.
104 Neither is there any material which would justify me concluding that if I allowed this ground of appeal, set aside the convictions and remitted the charges to the Magistrates Court for rehearing that the appellants would elect to call evidence in relation to any relevant matters contained in the affidavit.
105 For these reasons it is not appropriate or necessary for me to consider whether the material in the affidavit, if given in evidence, would provide an arguable defence to the appellants to these charges.
Ground of appeal 3
106 As the appellants did not call evidence and chose not to make submissions to the court, the only evidence for the magistrate to consider was that called by the respondent.
107 The evidence called by the respondent which related to the issue as to whether AFM was guilty of the charges because it was a party to giving the defective warranty in Invoice 10945 and making the unlawful representations to Ms Grover was the following:
(1) Invoice 10945, which evidenced a non-prescribed warranty, was provided to Ms Grover when she purchased the i Phone;(2) Invoice 10945 included the details of Fone Fix and AFM in the header and footer of the invoice, respectively;
(3) the emails between Ms Grover and Mr Ashwell which were sent to and from the email address, [email protected], which email address is also stated in Invoice 10945 to be that of Fone Fix and AFM;
(4) the email sent from Mr Ashwell of '(Agrilube)' to Ms Grover on 23 July 2013 which contained a representation that no refund was provided for a faulty phone;
(5) the contents of the 'Notice to all Customers' which was attached by Mr Ashwell to the email to Ms Grover on 23 July 2013 as being the warranty which applied to the iPhone sold to her. The warranty represented that no refunds would be given and said that AFM 'reserves the right to honour or reject any warranted item it feels has been tampered with'. That disclaimer was then to be signed on behalf of the customer and on behalf of AFM;
(6) the address which Ms Grover attended at on two occasions to transact business in respect of the purchase of the iPhone was unit 1, 71 Dorothy Street, Geraldton which was the same address as the principle place of business of AFM recorded in the ASIC Historical Company Extract for AFM;
(7) that Fone Fix did not exist as a corporation or a registered trading name; and
(8) that Mr Ashwell conducted all negotiations with Ms Grover and he is a director of AFM.
108 It was open to the magistrate, and in my opinion, inevitable in the absence of evidence to the contrary, that the magistrate would find that the prosecution had proved that AFM was a party to the transaction involving the purchase of the iPhone by Ms Grover and that AFM was guilty of the charges. Even if it could be successfully argued that the magistrate did not make all necessary findings of fact, the evidence overwhelmingly supported the guilt of AFM. Thus, I would not allow the appeal on this ground: The Criminal Appeals Act, s 14(3) and Bennett v Carruthers [2010] WASCA 13 [37] - [40].
109 In relation to particular (a) to this ground of appeal, for the reasons given when determining ground of appeal 2, the magistrate was correct not to take Mr Ashwell's affidavit into account.
110 In relation to particulars (b) and (c), the magistrate was entitled to use Invoice 10945 and the email address of Mr Ashwell as evidence to support a finding that AFM was a party to these offences.
111 Even if, as Mr Ashwell asserts in particular (d) to this ground of appeal, he did not hear the magistrate properly and incorrectly acknowledged that he was a director of AFM trading as Fone Fix, the communication, or lack of communication, between the magistrate and Mr Ashwell at that point did not result in a miscarriage of justice.
112 Mr Ashwell did not and has never denied that he was a director of AFM at all relevant times. The issue between the parties was whether the prosecution could prove that AFM was a party to the transaction with Ms Grover.
113 There is nothing in the transcript to indicate that the magistrate relied on Mr Ashwell's comment at the commencement of the proceedings to find that AFM was guilty of these offences. At the commencement of the proceedings, all that the magistrate did was satisfy himself that there was an authorised representative of AFM at the hearing.
Ground of appeal 4
114 At the trial in the Magistrates Court, Mr Ashwell submitted:
(1) he did not recognise the court;
(2) he did not recognise the Constitution; and
(3) the Crown of England, the Vatican and their affiliate bodies have been lawfully dissolved.
115 In their written submissions the appellants have elaborated in detail, but incoherently and illogically, upon these submissions. The most that I can discern is that their submissions appear to be variations of arguments, or confused conglomerations of different parts of arguments, which were found to be without merit in other cases such as Shaw v McGinty [2006] WASCA 231; Glew v Shire of Greenough [2006] WASCA 260; Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289 and Hedley v Spivey.
116 Because of the incoherence and illogicality of the written submissions, I cannot deal directly with each issue raised in them. It is sufficient for me to say that pursuant to the Magistrates Court Act 2004 (WA) s 34 there is a presumption that the Magistrates Court, which heard the charges the subject of this appeal, was constituted according to law and had jurisdiction to deal with the case. Neither the material in the written submissions or in Mr Ashwell's oral submissions to the Magistrates Court rebuts that presumption.
Ground of appeal 5
117 The magistrate did not err in failing to grant an adjournment for Mr Ashwell to give further consideration to or to receive advice in respect of exhibits 8 or 9 because Mr Ashwell did not ask for an adjournment.
118 Neither was there a miscarriage of justice as a result of the magistrate not providing Mr Ashwell with more time to consider those documents. That is because the documents proved matters which were not in dispute in the hearing. The appellants have never disputed that Fone Fix was not a registered company or business name or that AFM existed or the details of the company. Those were all the matters which exhibits 8 and 9 proved.
Ground of appeal 6
119 It is for the prosecuting authority, rather than the court, to decide who will be prosecuted and the charges which will be laid: Magaming v The Queen [2013] HCA 40 [20]. It is then for the court to decide whether the evidence presented establishes that an accused is guilty of an offence with which they are charged. That is what has occurred in this case. Mr Ashwell's sense of grievance about being prosecuted over what he regards as a minor matter is not a valid ground of appeal.
Ground of appeal 1 against sentence
120 A ground of appeal which alleges that a sentence was manifestly excessive alleges that error can be inferred if the appeal court finds that the sentence was excessive. In considering such a ground of appeal, it is necessary to consider the sentence against the maximum sentence prescribed by law, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the same type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
121 When determining a ground of appeal of this nature, I must bear in mind that I may not substitute my own opinion for that of the magistrate, merely because I would have exercised the sentencing discretion in a different way. The sentence must be so excessive that the error justifies and authorises my intervention: The State of Western Australia v Gibbs [2009] WASCA 7 [54].
Sentence - the appellants' submissions
122 The appellants' written submissions include material which is relevant to this ground of appeal. Using the paragraph numbers in the written submissions the appellants say:
(127) Attempts were in progress to bring to honourable completion to the phone transaction, as per the primal standards of all trade.
…
(131) Consumer Protection never issued advice.
(132) It simply took action to harm, including:
(a) court action, incurring considerable financial penalty to an elderly pensioner couple, harm to a hearing impaired elderly disabled person,
(b) it then partook in a media launch to further harm and slander the situation throughout the community.
(c) thus resulting in a massive contraction in business for Fone-Fix, thus causing further economic harm and injury of reputation.
…
(134) It is quite obvious that this was an isolated event and not a blatant breach of the law.
(135) In fact Mr Ashwell did his best to satisfy the customer through offering to make good any repairs that were deemed necessary.
(136) At no time was Mr Ashwell ever given the opportunity of a warning or mediation [by] the department (sic) of Consumer Protection.
Sentence - the respondent's submissions
123 The respondent concedes that at the trial, the prosecutor erroneously informed the magistrate that the maximum summary conviction penalty for each of charges 1 and 2 was $36,000 for an individual and $180,000 for a corporation. The respondent now says that the maximum summary conviction penalty for charges 1 and 2 was $10,000 for an individual and $50,000 for a corporation. Despite this error, the respondent submits that the global sentences imposed on the appellants were not manifestly excessive. I will discuss the issue of the maximum penalties after concluding the summary of the respondent's submissions on sentence.
124 The respondent submits that the essence of the offending conduct is the fact of misrepresentation. It submits that it is not relevant for the purpose of conviction under these provisions whether or not a trader intended to make the representation contrary to the ACLWA.
125 The respondent refers to the magistrate's finding that there was a clear contravention of the ACLWA and the need for a personally deterrent sentence.
126 The respondent says that given that Mr Ashwell was liable for a combined maximum penalty of $46,000 and AFM was liable for a combined maximum penalty of $230,000, the global sentences imposed by the magistrate represents a relatively low proportion of the maximum available, namely 4% and 2%, respectively.
127 The respondent also submits that as the appellants chose not to provide any information to the magistrate for the purpose of sentencing, the magistrate was not capable of taking any such factors in favour of the appellants into account when determining the appropriate sentences for them. That submission is correct. However, the evidence led at the trial did provide the magistrate with some evidence which was relevant to sentencing. For example, the evidence made it abundantly clear that Mr Ashwell was an older and relatively unsophisticated man who operated a small business from his home in Geraldton. The magistrate was also aware from the evidence that AFM was a company owned and operated by Mr Ashwell, and his wife.
Maximum penalties
128 For the purpose of determining the maximum penalty for each offence and the offences together, and for deciding the extent to which totality affected the appropriate sentences to be imposed on the appellants, it is necessary to have regard to the facts of each offence and to the statutory provisions relating to the maximum penalties available for each offence.
129 Charge 1 was an offence against the ACLWA s 192(1)(a) which made it an offence, if a person, in connection with the supply, in trade or commerce, of goods to a consumer, gave to the consumer a document that evidenced a warranty against defects and that document did not comply with the requirements prescribed for the purposes of s 102(1).
130 The ACLWA s 102(1) provides that the regulations may prescribe requirements relating to the form and content of warranties against defects. The appellants were guilty of charge 1 because the warranty provided by the appellants in Invoice 10945 did not comply with the prescribed requirements relating to the form and content of warranties against defects in that it failed to include the following prescribed statement:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
131 The Fair Trading Act s 32(2) says that a person who commits an offence against the ACLWA or is involved in the commission of such an offence is guilty of a crime, the maximum penalty for which is set out in the ACLWA. In the case of an offence against the ACLWA s 192, the maximum fine is $50,000 for a body corporate and $10,000 for an individual. The Fair Trading Act s 32 provides that the summary conviction penalty for such an offence is the lesser of a fine of $36,000 or the maximum penalty provided by the ACLWA for the offence.
132 Consequently, the maximum penalty for Mr Ashwell for charge 1 was $10,000 and for AFM it was $50,000. The summary conviction penalty for Mr Ashwell for charge 1 was also $10,000 and for AFM it was $36,000.7
133 Charge 2 was an offence against the ACLWA s 192(1)(b). That provision makes it an offence for a person, in connection with the supply, in trade or commerce, of goods to a consumer to represent directly to the consumer that the goods are goods 'to which such a warranty against defects relates'. The reference to 'such a warranty' is a reference to a warranty against defects which does not comply with the requirements prescribed for the purposes of the ACLWA s 102(1).
134 Thus, charge 2 was committed when a week after purchase, in an email dated 23 July 2013, the appellants represented to Ms Grover that the applicable warranty to her purchase of the iPhone was that a faulty mobile phone would be replaced or repaired but that a refund would not be provided as the applicable warranty did not cover a money back guarantee.
135 An offence against s 192(1)(b) has the same maximum penalty and the same summary conviction penalty as an offence against s 192(1)(a).
136 Charge 3 was committed at the same time as charge 2. It was an offence against the ACLWA s 151(1)(m). That section makes it an offence for a person, in trade or commerce, in connection with the supply of goods, to make a false or misleading representation concerning the existence, exclusion or effect of any warranty.
137 The appellants committed charge 3 when they attached to the email of 23 July 2013 the document entitled 'Notice to all Customers', which said that no refunds would be given and that any unit giving aftersales trouble would be repaired and replaced at the appellants' expense and a new six month warranty given. This was a false or misleading representation as a refund is the statutory remedy for a good which is not fit for purpose. It is not possible to contract out of the statutory remedy.
138 The maximum penalty for an offence under the ACLWA s 151 if the offender is a body corporate is $1,100,000 or if the offender is not a body corporate is $220,000. However, the Fair Trading Act s 32(2) applied to this offence also so that the maximum summary conviction penalty for both appellants, was that provided for in the Fair Trading Act s 32, being $36,000, because it was less than the fine in the ACLWA s 151.
139 The Fair Trading Act s 214 also applied to limit the amount of fines that could be imposed on the appellants. Section 214(1) provides that if a person is convicted of two or more offences constituted by, or relating to, contraventions of the same provisions of the ACLWA ch 4 (all three offences fell within ch 4) and the contraventions appear to the court:
(i) to have been of the same nature or a substantially similar nature; and
(ii) to have occurred at or about the same time;
the court must not, in respect of the offences, impose on the person fines that, in the aggregate, exceed the maximum fine that would be applicable in respect of one offence by that person against that provision.
140 The respondent told the magistrate that charges 1 and 2, both being offences against the ACLWA s 192(1), meet the criteria in s 214 and his Honour could not impose a total fine on an appellant for charges 1 and 2 which exceeded the maximum fine that could be imposed in respect of one offence against that provision. Relevantly, the total aggregate penalty for charges 1 and 2 for Mr Ashwell was $10,000 and for AFM it was $50,000.
Standards of sentencing customarily observed with respect to these offences
141 The respondent has provided a table which provides the basic details of, and the sentences imposed on, offenders convicted of the offence of false and misleading representations under the ACLWA s 151(1) and the Fair Trading Act 1987 (WA), s 12(1) (repealed).
142 There are four matters in the respondent's table which relate to convictions under s 151(1)(m). None of those sentences have been reviewed on appeal. The sentences range from a fine of $1,000 for each of an individual and a company after pleas of not guilty to one offence each, to a fine of $50,000 for a company and $14,000 for a related individual after pleas of guilty to 29 offences relating to second hand vehicles.
143 The range of fines imposed in the cases in the table indicates that the particular circumstances of an offence or group of offences and the personal circumstances of the offender will largely dictate the appropriate fine or fines. Thus, I conclude that there is no range of sentences customarily imposed for charge 3. The respondent did not refer me to any comparable sentences for charges 1 and 2.
The seriousness of the offences
144 Whilst no customer ought to be deceived about the existence of their statutory rights, these offences should be put into context. They related to the sale of one iPhone for approximately $500. The appellants operate a small home based business. There was no evidence before the magistrate that other customers had suffered loss or damage as a result of an ongoing course of conduct by the appellants. The prosecution had no doubt made clear to the appellants their statutory duties and there was no evidence that there was an ongoing breach of the relevant statutory provisions by the appellants. On the other hand, I acknowledge there was evidence by way of the date on the 'Notice to all Customers' that the appellants had been making false representations about the lack of a refund to their customers since 2011.
Personal circumstances of the offenders
145 Mr Ashwell is a pensioner. There was little information before the magistrate or me about Mr Ashwell's capacity to pay fines. On the other hand, there is no material to indicate that the appellants have a substantial capacities to pay substantial fines.
146 As has been said in cases involving the imposition of civil pecuniary penalties for offences against the ACLWA, the courts must ensure that the fines imposed for offences of this type are not considered as a cost of doing business by offenders. In other words, the fines must be of a significant size to deter the offenders and like-minded offenders from committing such offences. However, in sentencing small home business owners, a court cannot impose a large fine because only a large fine is likely to deter a large business. It is a requirement of justice that the fine imposed on the offender takes into account that offender's ability to pay the fine: Sentencing Act s 51(1).
147 The appellants' circumstances indicated that the penalties should be substantially less than those that would be imposed upon viable larger commercial enterprises for the same sort of conduct.
Other matters relevant to sentence
148 There are some other aspects of the case which are relevant to the determination of the appeal against sentence. First, it was very important for the magistrate to avoid any double punishment of an appellant which could arise because there was a factual overlap between each of the three offences which each appellant was convicted of. All three charges arose out of the same transaction. Also, there was a significant overlap between charges 2 and 3. They were committed at the same time and, in effect, there was little difference between the non-statutory warranty which was contained in the email the subject of charge 2 and the false or misleading representation contained in the 'Notice to all Customers', the subject of charge 3. This overlap in the facts was a significant matter, which had to be reflected in the sentence. The magistrate's sentencing remarks did not refer to this issue, except inferentially by the imposition of a global fine.
149 Secondly, in determining the appropriate sentence for each appellant it was important to take into account the factual overlap between the offences of which both appellants were convicted. That is, the appellants were convicted of the same offences which were committed by the same representations. In sentencing care had to be taken to avoid any double punishment which may arise from imposing separate sentences on both appellants. This is because of the close connection between the two appellants. The offences committed by AFM were committed only because Mr Ashwell controls AFM. Because of the close connection between the two appellants, they should not have been punished as if their offences were committed by unrelated offenders who required independently deterrent sentences.
150 Thirdly, it is relevant to take into account that the appellants were also ordered to pay compensation in the sum of $500 to Ms Grover.
Resolution of the ground of appeal against sentence
151 Taking into account all of the above matters, I consider that the magistrate did not err in imposing a global fine of $2,000 on Mr Ashwell. Such a fine properly reflected the objective seriousness of his offences, as well as the little which was, and is, known of his personal circumstances. However, the fine of $4,000 imposed on AFM is so significantly higher than that imposed on Mr Ashwell, the controlling mind of AFM, that I conclude that it exceeded the limits of a sound exercise of the sentencing discretion. I particularly have taken into account the role that AFM played in the commission of the offences as compared to Mr Ashwell, the relationship between the appellants and the factual overlap between the offences.
152 I therefore set aside the fine imposed on AFM and resentence it. Taking into account the role which it played in the commission of the offences, I impose a global fine of $500 on AFM.
Conclusion
153 None of the grounds of appeal against conviction are arguable. I refuse leave to appeal on any of the grounds of appeal and dismiss the appeal against conviction.
154 Similarly, I refuse leave to appeal in respect of Mr Ashwell's appeal against sentence and I dismiss that appeal.
155 I grant leave to AFM to appeal against sentence on ground of appeal 1. I allow the appeal against sentence in respect of AFM. I set aside the fine of $4,000 imposed on AFM and impose a fine of $500. The order for costs and compensation are not set aside or varied.
1 It is not clear whether this was a reference to two or three appellants. The respondent read it as a reference to three appellants; the first being Mr Ashwell; the second being AFM and the third being Fone Fix. This interpretation has not been challenged by the appellants.
2 The parties have used variable spellings. I will use Fone Fix unless I am quoting another source, which has used a different spelling.
3 I will refer to the document as an affidavit, although it has characteristics consistent with it being either an affidavit or a statutory declaration. It is unnecessary for me to decide which it is.
4 At the commencement of the hearing charge 2 was amended as indicated. It is not alleged that the amendments prejudiced the appellants.
5 The prosecution notice named the accused as AFM but the substance of each charge referred to AFM trading as Fone Fix. It was not part of the respondent's case that Fone Fix was a registered business name. Indeed, the respondent led evidence that AFM had not registered Fone Fix or any variant as a business name. It is unclear why it was included in the charges as AFM's trading name, in a formal sense, however its inclusion does not affect the determination of the appeal.
6 Neither is the attestation clause in the affidavit consistent with the form of affirmation, which may be instead of the oath: Oaths, Affidavits and Statutory Declarations Act 2005 (WA) s 5.
7 I have decided not to determine whether the Fair Trading Act s 214 and the Sentencing Act s 40(5) applies to the Fair Trading Act summary conviction penalty for two reasons. First I have not heard competent submissions from the appellants on the issue. Secondly, the relevant statutory penalties to be taken into account in deciding whether the sentences imposed on the appellants are manifestly excessive are the maximum statutory penalties, rather than the summary conviction penalties. The summary conviction penalties are a jurisdictional limit on the power of the Magistrates Court to sentence; rather than a determination by Parliament of the appropriate maximum penalty for the worst kind of offence of that type: Kendall v Stewart [2005] WASCA 10 [13] and the cases cited therein; Wiltshire v Mafi [2010] WASCA 111.
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