Australian Competition and Consumer Commission v Davies

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FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Davies [2015] FCA 1017

Citation: Australian Competition and Consumer Commission v Davies [2015] FCA 1017
Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ROBERT PAUL DAVIES
File number: QUD 530 of 2014
Judge: REEVES J
Date of judgment: 11 September 2015
Catchwords:

TRADE PRACTICES – where company failed to comply with a notice issued under s 155(1) of the Trade Practices Act 1974 (Cth) in contravention of s 155(5) of that Act

CRIMINAL LAW – accessorial liability – where company director charged under s 11.2 of the Criminal Code Act 1995 (Cth) with aiding, abetting, counselling or procuring the company’s commission of an offence under s 155(5)(a) of the Trade Practices Act 1974 (Cth) – where sole director and shareholder – consideration of the general principles of criminal responsibility – consideration of conduct by omission in s 4.3 of the Criminal Code Act 1995 (Cth) – consideration of the fault element of intention – whether director in fact aided or abetted – whether director intended that his conduct would aid or abet

Legislation: Bankruptcy Act 1966 (Cth)
Competition and Consumer Act 2010 (Cth)
Criminal Code Act 1995 (Cth)
Social Security (Administration) Act 1999 (Cth)
Trade Practices Act 1974 (Cth)
Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth)
Cases cited:

Ansari v R (2007) 70 NSWLR 89; [2007] NSWCCA 204
Director of Public Prosecutions (Cth) v Keating (2013) 248 CLR 459; [2013] HCA 20
Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43
Giorgianni v The Queen (1985) 156 CLR 473
Habib v Commonwealth (2010) 183 FCR 62; [2010] FCAFC 12
Hamilton v Whitehead (1988) 166 CLR 121
Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51
R v Goodall (1975) 11 SASR 94
R v Jo (2012) 273 FLR 437; [2012] QCA 356
R v Kaldor (2004) 150 A Crim R 271; [2004] NSWCCA 425
R v LK (2010) 241 CLR 177; [2010] HCA 17
R v Russell [1933] VLR 59
Re Pong Su (No 12) (2005) 159 A Crim R 300; [2005] VSC 32

J C Smith, “Aid, Abet, Counsel, or Procure”, in Glazebrook (ed), Reshaping the Criminal Law (1978)

Date of hearing: 17 March 2015
Date of last submissions: 23 June 2015
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 51
Counsel for the Applicant: Ms A Stoker
Solicitor for the Applicant: Commonwealth Director of Public Prosecutions
Counsel for the Respondent: The Respondent appeared in person
Counsel for Contradictor: Mr D Kent QC

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 530 of 2014
BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND:

ROBERT PAUL DAVIES
Respondent

JUDGE:

REEVES J

DATE OF ORDER:

11 SEPTEMBER 2015

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The respondent is guilty of an offence against s 155(5)(a) of the Trade Practices Act 1974 (Cth) by failing to comply with the…

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Details
Case
[2015] FCA 1017
Decision Date

CaseChat Overview and Summary

The Australian Competition and Consumer Commission (ACCC) brought an action against Davies, a company, and its sole director and shareholder, for failing to comply with a notice issued under section 155(1) of the Trade Practices Act 1974 (Cth), contravening section 155(5)(a) of that Act. The ACCC also charged Davies under section 11.2 of the Criminal Code Act 1995 (Cth) for aiding, abetting, counselling, or procuring the company’s commission of the offence. The primary legal issues were whether the company had failed to comply with the notice and whether the director was criminally liable for aiding, abetting, counselling, or procuring the offence.

The court found that the company had failed to comply with the notice, as required by section 155(5)(a) of the TPA. The court examined the conduct of the director, considering principles of criminal responsibility under Chapter 2 of the Criminal Code Act 1995 (Cth). The court considered whether the director's conduct by omission, in failing to ensure compliance with the notice, constituted aiding, abetting, counselling, or procuring the offence. The court found that the director was aware of the notice and the need to comply with it, and that by failing to ensure compliance, he had intended to aid or abet the offence. The court was satisfied beyond reasonable doubt that the director had the requisite fault element of intention to be held criminally liable.

The court concluded that the director was guilty of aiding, abetting, counselling, or procuring the company’s commission of the offence under section 155(5)(a) of the TPA. The court ordered that the director was guilty of the offence as charged. The court noted that the entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The respondent is guilty of an offence against s 155(5)(a) of the Trade Practices Act 1974 (Cth) by failing to comply with the notice dated 10 November 2010 issued under s 155(1) of the Trade Practices Act 1974 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 155 of the TPA relevantly provided:155 Power to obtain information, documents and evidence(1)Subject to subsection (2A), if the Commission, the Chairperson or a Deputy Chairperson has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act … a member of the Commission may, by notice in writing served on that person, require that person:(a)to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;(b)to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or(c)to appear before the Commission, or before a member of the staff assisting the Commission who is an SES employee or an acting SES employee and who is specified in the notice, at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.…(5)A person shall not:(a)refuse or fail to comply with a notice under this section;(b)in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading.(5A)Paragraph (5)(a) does not apply to the extent that the person is not capable of complying with the notice.(6A)A person who contravenes subsection (5) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months.Note 1:Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.Note 2:Part IA of the Crimes Act 1914 contains provisions dealing with penalties. Neither of subs 2A (see the stem to subsection (1) above), nor subs 5A (above), has been raised as an issue in this proceeding. As indicated by Note 1 to s 155(6A) (see above), Chapter 2 of the Code sets out all the general principles of criminal responsibility that apply to an offence against the laws of the Commonwealth (see s 2.1 of the Code). Section 3.1 in Pt 2.2 of the Code sets out the elements of an offence, as follows:3.1 Elements(1)An offence consists of physical elements and fault elements.(2)However, the law that creates the offence may provide that there is no fault element for one or more physical elements.(3)The law that creates the offence may provide different fault elements for different physical elements.(Emphasis in original) The physical elements of an offence referred to in s 3.1(1) are described in s 4.1(1) of the Code, as follows:(1) A physical element of an offence may be:(a) conduct; or(b) a result of conduct; or(c) a circumstance in which conduct, or a result of conduct, occurs.(Emphasis in original) The word “conduct” in s 4.1(1)(a) is defined in s 4.1(2) of the Code as: “an act, an omission to perform an act or a state of affairs”.

Decision

Reasons for decision

This condition is met, for the same reasons as set out immediately above. Specifically, I consider the same course of conduct provides clear evidence that Mr Davies meant to engage in the conduct that brought about, or made it more likely, that NFV would fail to comply with the notice by the stated deadline. For this reason, I am satisfied beyond reasonable doubt that this condition is also met.CONCLUSION Since the Commission has established beyond reasonable doubt each of the statutory conditions necessary to fix criminal liability for the offence of NFV under s 155(5) of the TPA on Mr Davies, in accordance with s 11.2 of the Code, I find Mr Davies guilty of the offence as charged.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.