ASHWELL -v- COMMISSIONER FOR CONSUMER PROTECTION [2015] WASC 337

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 337
Case No:	SJA:1086/2014	Heard:	5 JUNE 2015
Coram:	JENKINS J	Delivered:	11/09/15
No of pages:	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
Category:	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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2015] WASC 337
Decision Date: 11 SEPTEMBER 2015

CaseChat Overview and Summary

The appeal in Ashwell v Commissioner for Consumer Protection concerned the convictions and sentences imposed on Agrilube Fluid Management Pty Ltd and David Michael Ashwell, its director, following their breach of prescribed warranty requirements and making false or misleading representations. The convictions and sentences were initially made by a magistrate and the appeal was heard by a higher court. The appellants challenged both their convictions and the sentences imposed, arguing various grounds including procedural errors, discrimination in prosecution, and the excessiveness of the sentences.

The court needed to decide whether the magistrate erred in allowing the prosecution to rely on a document disclosed shortly before the hearing and in refusing to allow the appellants to tender an affidavit. Additionally, the court considered whether the prosecution proved that the incorporated accused was connected with the alleged offence and whether there was discrimination in the prosecution of similar offences. The court also examined if the sentences were manifestly excessive and if there was a need for a resentencing of Agrilube Fluid Management Pty Ltd.

The court found that the magistrate did not err in allowing the prosecution to rely on the disclosed document, as the document was relevant and the appellants had an opportunity to challenge its admissibility. The court also ruled that the refusal to allow the tendering of an affidavit did not constitute an error that affected the outcome of the trial. The prosecution was deemed to have sufficiently proven the connection between the incorporated accused and the alleged offence. The claim of discrimination was rejected as there was no evidence to support it. Regarding the sentences, while the court found the sentences for David Michael Ashwell not to be manifestly excessive, it held that the sentence imposed on Agrilube Fluid Management Pty Ltd was excessive and warranted a resentencing. Consequently, the appeal against the convictions was dismissed, the appeal against the sentence of David Michael Ashwell was also dismissed, but the appeal against the sentence imposed on Agrilube Fluid Management Pty Ltd was allowed, and the company was resentenced.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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