Barton, Edwina Alice v Westpac Banking Corporation

[1983] FCA 211

I N TFE FEDERiL CCURT OF AUSTPALIA	)
1

N W SOUTH '~ALZS	D I S T X I C T	R E G I S T R Y	)	No.	G	222 of	1982
GENZRAL GI',IISION

ED1:!INA P.LICE EARTON

Prosecutor

:';ESTPk.C BANKING CORFORATIL'N

Defendant

CORAN: SHEPPARD J .

REASONS FOR JUXCMENT

Thls p rosecu to r fo r a l l eged b reach i s a p r o s e c u t l o n l n s t l t u t e d by xhe

by the defendant

of s.58 of the Trade Pracxlces I?ct 1974 ("the Act").

Sect ion 58 1 s as fo l lows:

"A c o r p o r a t i o n s h a l l n o t , I n t r a d e or commerce,

accept payment or other cons ide ra t ion fo r goods

o r s e r v l c e s where a t t h e t i m e of the acceptance

i t ln t ends -

(a) n o t t o supply goods o r s e rvzces the goods o r s e r v l c e s ; o r

(b) t o supp ly ma te r i a l ly

d l f f e r e n t from the goods or s e r v i c e s i n

r e s p e c t o f which the payment or o the r

cons ldera t lon i s accepted."

The defendant 1 s a banklng corporenon. 4 s zn

adJunct to Its baRklng buslness iT; conducxs a l a r g e

t r ave l bus iness . Pa r t o f t h l s bus lness l nvo lves

I t In wholesa l ing tours , mos t ly overseas tours , to

t r a v e l a g e n t s who r e t a i l t h e t o u r s t o t h e l r c u s t o m e r s .

I n 1981-82 one s e r l e s o f t o u r s whlch was a v a i l a b l e

was knovm as the "Dlscovery" series. These were

tours to var ious places In Asia , China and other

p l aces In what 1s known a s T;he Orient . One such

tou r was known as "Dlscovery Holiday 526" . I t was

lncluded In a brochure contalnlng a number of

"Discoveryt1 tours. Lumpur, Kuentan The l t i n e r a r y was t o Hong Kong,

Penang, Kuala and Slngapore. I t

was s a l d t o be a t o u r whlck! would ex tend for 16 days

and 14 n lgh t s . IT; Involved departure on a Saturday,

t h a t b e m g t h e flrst aay of m e t o u r , ar.d r e t u r n or,

a Sunday mornlng, the Sunday being the s lxteenth day.

A person zak lng th l s tour woula be away on 15 n l g h t s

b u t t h e f l f t e e n t h would be spent In overnlght

t r a v e l from Singapore to Australia. On t h l s b a s l s

It was In c i rcumstances apparent ly no t lnc luded as one of t he 14 n i g h t s .

more f u l l y t o be descr ibed a

Mrs. S p e l r s I n August 1981, through a 'cour t o deparr: on t r a v e l a g e n t ,

Century Plaza Travel, orderec the

Saturday, 6 Fecrcary, 1962, a 2 to rexur? on

2 .

Sunday, 20 tour on o r about 3 December, 1961. February, 1982. She p a l d f o r t h e

In t he even t s whlch t ranspl red she was booked

t o t r a v e l home from Slngapore, not on the Saturday

evening but on the Friday evening 19 February, 1982.

She was thus away, no t f o r 16 days and 14 n lgh t s bu t

f o r 15 days and 13 n lgh t s . Her s t ay i n S lngapore

was reduced from three days to two.

The way the case 1s put agamst the defendant

is t h a t w i t h l n t h e meaning of s.58 I t , a corpora t lon ,

i n t r a d e o r commerce accepted payment for s e r v i c e s ,

namely the 526 tour o rdered by Ivrs. S p e i r s , a t a tlme

when It inzended to supply a s e r v l c e m a t e r l a l l y

d i f f e r e n t from the s e rv l ce In r e spec t o f whlch h e r

payment was accepted. The m a t e r i a l d i f f e r e n c e i s

sa ld t o whlch to be in the reduct ion of the t lme of the tour

I have referred.

There i s no Issue tha t the defendant 1s a cor-

po ra t lon no r t ha t t he t r ansac t lon was en te red In to

I n t r a d e tha t t he de fendan t d id accep t o r commerce. Nor 1s there any quest ion

payment f o r t h e t o u r

o r t h a t Mrs. S p e i r s t r a v e l l e d home on 19 Fecruary,

1982, ra ther than 20 February, 1982.

3.

r

But l n the defendant 's submisslon:

( a ) The informant has not es tabl ished that che

de fendan t , a t t ne t lme of cne acceptance of

Mrs. S p e l r s ' money, lntended to supply a s e r v i c e ,

i . e . a r e spec t o i bhlch the t o u r , m a t e r i a l l y d l f f e r e n t Trom t h a t I n

payment was accepted;

( b ) If t h a t s u b m l s s l m be r e J e c t e d , che defendant

has es tabl lshed one or more of the defences

provlded f o r i n s.85 of the Act.

I t should be no t lced tha t there a re two a spec t s

of ( a ) . c u t s h o r t by The f lrst 1s the question of whether a t o u r

one day was materially d l f f e r e n t from

the t o u r adve r t l s ed . l n che brocnure and f o r which

Mrs. Spe l r s p a l d h e r money. The secona questlon 1s

whether, l f cha t be s o , t h& ev ldence e s t ab l i shes t ha t

a t t h e cime of che acceptance of the payrnent che

defendant lntended to provide the shortened tour.

The reso lu t lon of these submlss lons necess l ta tes a

detailed review of the evldence.

A s rnentloned, the brochure advertlsed the tour

a s one which m g , t h e t o u r i s t s h z v l n g l e f t	would	r e t u r n S m g a p o r e t h s p r e v l o u s	t o Australia on Sunday morn-	.
-r.	1.

c

evenlng. The a l r l l n e v.hlch was t o f l y t h e l a s t

l e g o f t h e t o u r was uantas Llmlted. The e a r l l e r

l e g s were flown e l t h e r by Cathay Paclf ic o r Malayslan

Airline Systems. At a l l mater la l tlmes Gantas had

a f l l g h t , QF2 (sometlmes referred to In the evldence

a s ~ F 0 8 0 2 ) which t r a v e l l e d d a i l y from Slngapore to

Sydney and Melbourne. The f l l g h t o r l g l n a t e d i n

London and s e t down and plcked up passenFer s a t

Singapore on I ts way to Aus t r a l i a . Qan tas a l s o operated

a n o t h e r f l i g h t , QF96 (otherwlse uF0896) whlch was

descr lbed as a t e r m m a t o r f l l g h t . I t t r a v e l l e d a s

UF95 from Sydney and Melbourne to Slngapore and then

re turned to Sydney and Melbourne as dF96. I t

operated on Saturday evenlngs from Slogepore and was

The f l ighz incended by rhose who cons t ruc ted the

t o u r t o c a r r y t h e p a s s m g e r s b a c k - t o	Sydney	o r
Melbourne.

For clear Qantas Limited declded In June reasons whlch the evldence does not make

1981 t o cnange

the day	upon which i t would opera te UF95 and GF96 from
Sa tu rday	t o F r iday . Th i t l e f t QF2 as the on ly wantas

f l l gh r ; r e tu rn lng from Singapore t o Sydney and Melbourne.

5.

S m c e I t was a f11ghr whlch had o r ig lna red In London

the re was no t ce r t a in ty t ha t pas senge r s on the sub-

J e c t t o u r s and on other tours could be found seats

on t h e lnformed Catiay Paclflc and the defendant a i r c r a f t . Ir. June 1981 ilantas Llmlted

of the change.

I t said thar ; passengers from Lour 526 would have t o

leave on the Fr lday ra ther than the Sa turday .

S t rong representa t lons to Ciantas Limlted were

made both by Cathay Paclf lc and the defendant to the

end tha t Clantas would e l ther a l low the passengers to

t r a v e l on f l l z h t CiF2 on the Saturday o r would r e s t o r e

1r;s te rmmaror se rv lce to Sa turday .

One of Department. the defendant 's tour departments was Its

Tour ?!holesale T h l s department was broken

up In to and s a l e s . th ree sec t ions , namely , marke t ing , opera t lons

A Mr. Bally was, a t t h e r e l e v a n t t i m e ,

manager of the marke tmg sec t lon and a Mr. Woodcock the

manager of representa t lons to Qantas L lmi ted t he ope ra t lons s ec t ion . The p r l n c l p a l

made on behalf of

the defendant t o a Mr. were made by Mr. Bai ly . He made them

P l a i s t e r who, a t t h e r e l e v a n t t l m e , was

na t lona l account manager a t tached t o dan ta s ' Sydney

o f f l c e .	BoTh	C i r .	€ 2 1 1 ~	an3 Xr.	P l a l s t e r gave	evldence
6 .

of their discusslons. Understandably cheir

recollectlons of the conversatlons have dlmmed.

Nelther now holds the positlon he had in 1981.

Mr. Baily 1s no longer with the defendant. He

now lives In Californla and is the marketing

manager for an American tours company. Mr.?laister

1 s stationed in Bahrain and 1s Qentas’ sales

manager for the Middle East. Both wlrnesses were

brought to Australia especially Tor the case.

This is an indication	of the importance that the
partles attach to it.

Pir. Plalster sald that his recollectlon was

that after representatlons were made, not only by

the defendant bux by other tour operators as well,

Uantas agreed to accept passengers on GF2 on the

relevan-c Saturday evenmgs, firstly until 31 December,

1981, and then untll 31 January, 1982. Mr. Plalster

remembered representatlons being mede to him by Mr.

Baily and also a letter which Mr. Bally had wrltten.

He thought that the prlnclpal problem was not the

change from Saturday CO Frlday but the fact rhat

GF96 would no longer operate	to ?4elbourne; it was
to operate to Sydne:, on ly .	rir. Plalsxer’s recollectlon

7 .

c

was tha t t he nego t l a t lons went on In June and

p o s s i b l y I n t h e e a r l y p a r t of J u l y 1981.

The programme f o r t ou r 526 extended from

the flrst depar ture on 18 Apr i l , 1981, t o t h e

las t depar ture on 27 March, 1982. The f l r s t

r e t u r n was on 2 May, 1981 and the las t on 10

Aprl l , 1982. There were only f ive re turns af ter

31 December, 1981, and on ly t h ree a f t e r 31 January,

1982. kccordlng to M r . P la l s te r the p roblem was

e n t i r e l y overcome except a s t o t h e l a s t t h r e e

tou r s which were due to r e t u r n on 20 February,

20 March and 10 A p r i l , 1982. M r . P l a i s t e r s a l d

tha t a l lowed to r rave l the defendant d ld reques t tha t passengers be

on SF2 on the Saturday up t o t h e

end of the programme on 10 Aprl l , 1982. But he

s a i d t h a t i t was not poss lb le to a l low th i s beyond

31 January, 1982. He thought there might have been

some d i scuss lon abou t wa i t l l s t l ng t he pas seoge r s on

t h e r e t u r n s t o t a k e p l a c e a f t e r 31 Jaouary, 1982,

b u t h i s r e c o l l e c t i o n was vague. He s t r e s s e d t h a t

t he problem did not only concern rhe defendant 's

Discovery- tours bu t the tours of o the r ope ra to r s a s

well . The maxlmum Rumber o f booklngs on any of t he

8.

defendant ' s 526 tou r s was 25. Orher operators

required many more sea t s t han t h i s , w l th t he

r e s u l t t h a t t h e problem was one o f f indlng perhaps

100 s e a t s on an a i r c ra f t no t o r ig ina tmg In S ingapore

but picklng up passengers on I ts way through from

London t o A u s t r a l i a . The maxmum number of s e a t s

on an a i r c r a f t was 401.

M r . P l a i s t e r ' s r e c o l l e c t i o n was t h a t h i s d l s -

cussions wlth Mr. Bal ly came to an end certainly by

August. He l e f t h ls t h e n p o s l t i o n i n November 1981

and has those which I have no r e c o l l e c t l o n o f any d lscuss lons beyond

described. i t hard t o remember Itany specifics" O f w a i t l i s t l n g he

s a l d t h a t he found

He added, "Ic may have been dlscussed as a genera l lcy .

There was a p o s s i b l l l t y of Lvalt l l s t l n g , bur: I cer-

t a l n l y would have dlscouraged chat sort of approach.

Ce r t a in ly , a s f a r a s I am aware, there was no attempt

to wai t l oca t e pas senge r s f rom f l l gh t l lst. 'I He said he had no zu tho r l ty t o r e -

96 KO f l l g h t 2 beyond

31 January, 1982. He s a i d t h a t he held out no hope

tha t t ha t cou ld be aone.

According CO Mr. Eally,ne mede r eg resen ta t lons

t o ivir. P l a l s t e r abou t over a per lod of monchs. The problem on m2r.y occEs1ons

I t was h l s h a b l r t o speak

h

Y

t o Mr. Pla l s t e r a lmosc on a d a l l y b a s l s . The

lmpression I have from h l s evldence i s That on

most days the problem was mentloned. He d l d

n o t , o f course, only speak to Nr. P l a l s t e r a b o u t

t h i s problem. They had many ma t t e r s t o d i scuss ,

but Mr. B a l l y ' s r e c o l l e c t i o n 1s t h a t t h i s problem

was r a i s e d many tunes. Cf t h i s he s a i d , "It was

an ongoing propos l t lon ( s lc ) . Ir; wes somethmg

which would n o t be reso lved concre te ly on any glven

day. It was a r o l l l n g p r o p o s l t i o n 1:rhlch had t o

be introduced over a per lod of time". He enaeavour a l s o s a d ,

"He (Mr.Flals ter) advised me that every

would be made t o accommodate our tour passengers on

the QF2 f l l g h t f o r t h e d u r a t l o n o f t h e progrsmme and

I t would be,, o f course, SubJect to space being avail-

able" . Mr. B a l l y s a l d t h a t no re ference WES made

t o 31 January but he recal led tha t t h e r e was a d a t e

given of 31 December, "but I d id no t ab ide by It

because I sald. the programme had been brochured and

was I n f a c t due to opera te th rough to r;he end of March".

Mr. Bai l ey a l so s a ld t ha t he underszood the problem

was resolved "and i n f a c t b e i n g r e s o l v e d " . tnar; as ar! ongolng rhlng I t was

L

Senior counsel f o r the defendant pur: t h e

substance o f Mr. Eal ly ' s ev ldence to Mr. P l a i s t e r

in cross-examinat lon. Mr. Pla l s t e r r emamed f i r m

i n h i s r e c o l l e c t i o n t h a t t h e t r a n s f e r t o QF2 from

CF96 was firm even tua l ly t o t he end of January 1982.

Nothlng was done In respec t o f the l a te r re turns .

He s a l d passengers could not t ha t once t he d i r ec t lve was l s sued t ha t t he

be accommodated on f l l g h t 96

a f t e r t h e end of January It ceased to be a problem.

I n t h e words he used, "that was the end of the mat te r" .

The common ground between the two wltnesses 1s

t ha t d l scuss ions between them went on no l a t e r t h a n

September 1981; t h e p r o b a b l l i t l e s a r e t h a t t h e y

c e a s e d e a r l i e r t h a n t h a t month. There was no problem

about re turns up t o t h e end of December 1981. I n t h e

rnlnds of the two wl tnesses there was no problem e l t h e r

about re turns In January 1982. The essential d i f f e r -

ence between them 1s t h a t W. P l a i s t e r ' s r e c o l l e c t l o n

i s t h a t t h e r e a b o u t t h e t h r e e r e t u r n s t o t a k e p l a c e a f t e r t h e was no p o s s i b l l l t y of dolng anythlng

end

-

of January 1982. aztempt, I n Mr. B a l l y ' s r e c o l l e c t l o n t h e r e

was an ongolng alzhough so far as he was

7

personally concerned i t came t o a n end by September

1981, t o accommodate passengers on GF2 on Saturday

i n r e s p e c t Llght 1 s shed on what of c h e r e t u r n s a f t e r 31 January, 1982.

re-arrangements were I n

f a c t made by the evidence o f two other wltnesses and

documents kept by them. The two wi tnesses a re Nrs,

Cree and Mrs. Croucher, formerly Miss Shlpway. VIrs.

Cree 1 s an employee of Cathay Paciflc. She nad a

schedule whlch was a compurer p r m K out whlch l i s t e d

t h e d e t a l l o f each of the tours in the programme. The

p r l n t o u t showed the day of departure and the day of

r e tu rn . The purpose of I t was t o enab le Ptrs. Cree t o

make reservar ions on t h e a l r l l n e s , two r e se rva t lons on

C a t h a y P a c l f i c I t s e l f , one on Nalayslan Alrl lnes Systems

and t h e Croucher, who was employed by rhe f o u r t h f o r zhe r e t u r n f l l g h t by uantas . i b l r s .

defendant , hed a

counterpar t of t h l s documenr;. Both Pks. Cree and Mrs.

Croucher made notations on t h e i r c o p l e s a s e v e n t s t r a n s -

p i red . Mrs. Croucher ' s no ta t ions were I n r e s p e c t of t he

Clantas r e t u r n f l l g h t s , t h e o n l y o n e s t ha t concerned

her. Her document 1s much c l ea re r t han Mrs. Creels .

Thac is no c r i t l c i sm o f Mrs. Cree. Only a pho tos t a t

COPY of her no ta t lons could be found and they

have suffered in rhe process . 4s bes t I can

read them no ta t lons which I propose they are In conformlty with Mrs. Croucher 's

to use as a gu ide a s t o

what happened.

I n o r d e r t h a t h e r n o t a t l o n s may be explained

I should mention that Mrs. C r e e l s c h r l s t l a n name

1s Inez and her mltlsls I.C. Both h e r c h r i s t l a n

name and her in i t l a l s appea r i n t he docurnen ta t lon

In t he ca se .

From Mrs. Croucher 's document one can s e e t h e

problem first a r l s l n g I n r e s p e c t of a r e t u r n

scheduled to l eave S lngapore on Saturday, 25 J u l y ,

1981. The r e t u r n was a c t u a l l y made on Frlday,

24 Ju ly . t o and lncludlng But In respec t o f r e t u r n s t h e r e a f t e r up

Saturday, 14 Kovember, 1981, t he

no ta t ions show t h a t a l l passengers were t r a n s f e r r e d

.

t o QF2 and were presumably carr led on this f l lght

on the scheduled Saturday. Furthermore, the notat-

i ons show that these changes were made and conflrmed

on e l the r 23 June , 1981, or 24 June, 1981; no

13.

.

quest ion o f walt l l s t l n g was involved. After

14 November, 1981, t h e r e was only one fur ther

r e tu rn be fo re 31 December, 1981, namely t h a t due

t o r e t u r n by a f l l gh t l eavmg S ingapore on 26

December, 1981. Mrs. Croucher 's note shows t h a t

the passengers were due to leave on QF96, presum-

ably on the Fr iday , bu t were w a l t l i s t e d on QF2 f o r

the Sa QF2 on the Saturday turday . That they In fac t t rave l led on t h e

1s confirmed, so f a r a s I can

make out from Mrs. Creels documenr, by he r no ta t lon

thereon. J u s t when the passengers were wal t l l s ted

on QF2 and when tne booKln& became f l rm I am unable

to s ay .

The f lrst r e tu rn l eav lng S lngapore a f t e r 31

December, 1981, was t h a t d e p a r t m g on 9 January, 1982.

A s m Croucher 's the case o f the 26 December depar ture Mrs.

entry shows thar the passengers were

booked on f l i g h t QF96 but were wait l i s t e d on GF2,

presumably for the Saturday. Agam they appear to

have t r a v e l l e d on QF2 on the Sarurday. In respect

of the next January deparrure from Slngapore on

Saturday, 23 January, 1582, Mrs. Croucher 's note

14.

shows 23 January crossed out and 22 January,

t h a t i s t h e F r l d a y , s u b s t l t u t e a . I t a l s o

shows tha t the passengers were t o t r a v e l on

QF96. There 1 s no no te made by he r t o sugges t

t ha t t hese pas senge r s were ever walt l i s t e d on

QF2. That xhey i n facr ; t rave l led on Fr lday ,

22 January, and not Saturday, 23 January, 1s con-

firmed by other evldence to whlch I s h a l l l a t e r

r e f e r . Mrs. Cree l s no ta t lon on her document

coincides wlth ' that of Mrs. Croucher' S.

The f o r Saturday, 20 February, 1982. c r i t i c a l d e p a r t u r e was that Bozh Mrs. scheduled

Cree ls

document and Mrs. Croucher 's document show t h a t

t h i s r e t u r n f l i g h t was changed from 20 February t o

19 February and t h a t t h e f l l g h t was t o be lxhough QF96.

Furthermore, Mrs. Croucher 's notat ion, a

w r i t t e n i n v e r y s m a l l p r i n t , p l a l n l y indicates t h a t

the change was made on 24 June, 1981, when a number

of the other changes were made.

The re turn due to l eave Smgapore on 20 March

has above I t In rea the abbrevla t ion "'h/L." This

1s not in Mrs. Croucher 's nzndlwlting b u t Ind lcaces

walt l i s t . Underneath the entry i s w r l t t e n

"1911 xhe 20 bemg s t ruck ou t , and QF56. I am

unable t o say whether r:he passengers t rave l led

home on 20 March o r 19 March, bur: t h e f a c t t h a t

t he symbols IIW/LI1 a re c rossed ou t would suggest

tha t they f l n a l r e t u r n must have come back on 19 March. The

was that leaving Singapore on 10

Apri l , 1982. It has above It the abbrevla t lon

I1 opl . The abbrevia t ion 1s not crossed out .

Underneath i t a r e t h e l e t t e r s and f l g u r e s "OF2

KK' Inez 24/6". Thus on 24 June, 1961, Mrs. Cree The symbol KK s tands f o r confirmed.

conflrmed :/lth

Mrs. Croucher xhat passengers leaving Slngapore

on 10 April , 1962, would leave on that day but on

QF2 r a t h e r t h a n on GF96.

The documentatlon to which I have r e f e r r e d i s ,

t o a degree , a t odds with both the recol lec t lon of

Mr. P l a i s t e r and Mr. Bally. I t i s a t odds with

t h e r e c o l l e c t i o n o f Mr. Pla is te r because It does

n o t s u g g e s t t h a t a l l f l l g h t s b e f o r e 31 December,

1981, were conflrmed i n J u n e 1981 for the Sa turday

r e t u r n . The re turn l eav lng Smgapore on 26 December,

1981, must have been under a cloud because of t he Feed

to walc l l s t the passengers . More m p o r c a n t l y

the documentation January return due to leave Singapore establishes chat the second

on 23 January

d ld no t l eave on thac day but lefr : a day e a r l y on

22 January. Accordlng t o The notat lon of both

Mrs. Cree and F i r s . Croucher there was never any

ques t lon of the passengers t rave l l ing o therwise

than on the Fr lday . I t was wrong, t h e r e f o r e , t o

say that the passengers were a l l confirmed on QF2

on the Saturday up to t h? end of January 1982.

The documenta t lon a l so es tab l l shes tha t on

24 June, 1981, Mrs. Cree, through Mrs. Croucher,

was a b l e CO book t h e r e t u r n m g t o u r i s t s f o r 10

Apr i l , 1982, f l r m l y on SF2 depart ing Smgapore on

that day. Thus Mr. P l a l s t e r ' s r e c o l l e c c l o n t h a t

nothlng could be done f o r che f l n a l t h r e e r e t u r n s ,

t h a t 1s t h o s e o c c u r r i n g a f t e r 31 January, 1982, 1s

wrong. The matter did not develop out o f l a t e r

events. The r e t u r n was f i r m l y booked some t en

months prev ious ly on 24 June, 1961.

The documentatlon i s a t odds wl th Mr. B a i l y ' s

recol lec t lon because i t does nor suggest any ongolng

at tempts to have the passengers t ransferred to

QF2 on the Saturday. Thls does not es tebl ish

conclus ive ly thar a t tempts were not belng made, but

I t t ends t o sugges t %ha t , i f they were, they were

not meeting wlth any success .

The problem was solved by 24 June, 1951. documenta t lon d l sc loses tha t most of the

The only

r e t u r n s whlch were tnen l e f t m a doubtful situ-

ation were those leavlng Slngapore on 26 Decenber,

1981, 9 January, 1982, 23 January, 1982,

20 February, 1982 and 20 Narch, 1982. BUT t h e

returns due to leave Slngapore on 23 Jawary , 1982 ,

and 20 February, 1982, were booked f l r m l y , t h e l a t r e r

c e r t a i n l y on 24 June , 1981, t o come back on the

Friday on QF96. There 1s some doubt about the

return due because the notat lon concernlng to leeve Singapore on 20 Plarcn, 1982,

QF96 1s I n p e n c l l and

t h e l e t t e r s W/L whlch have been c rossed ou t l nd lca t e

t h a t t h e r e was an e t tempt to wal t llst passengers

on QF2 f o r t h i s r e t u r n . Although the evldence does

not	enable	me	to say	s o	i t	1s p o s s l b l e t h a t t h e
18.

attempt TO wa?t l l s t these passengers arose beceuse

of the complalnts whlch were made I n r e s p e c t of t he

two prevlous tours , cha t 1s those due to re turn on

23 January and 20 February, 1382.

I should say o f both Nrs. Cree and Mrs. Croucher

that they qnpressed rhe as witnesses . They are bo th

young and In comparat lvely Junlor posi t ions In c h e l r

r e spec t lve o rgan i sa t lons . But they both displayed

a degree of e f f l c l e n c y and knowledge about che system

which impressed me. change and she Mrs. Cree was p a r t l c u l a r l y con-

cerned about doubt a t a comparatlvely che herself, although no

Junlor level, endeavoured

t o have representat lons	made which would overcome the
problem.

It i s agalnsr: t h i s background t h a t Mrs. Spe i r s

and Cen-cury Plaza Travel come i n t o t h e p l c t u r e . I

should mention that It was common ground between

counsel that Century Plaza Travel ected as an agent

for the defendant so t h a t t h e t r a n s a c t i o n was between

the defendant and Mrs. Spel rs . I have not turned my

mlnd t o t h a t question. In the light of che common

19.

ground whlch t h e r e 1s between counsel about the

matter I do n o t f l n d i t necessary to do so .

Mrs. S p e i r s had a copy of t'ne brochure. On

17 h g u s t , J981, she paid a depos i t o f $50 f o r

the tour . conf l rmed , On 18 August, 1981, her booklng was

t he l e t t e r t o he r from Century Plaza

Travel of t ha t da t e s ay lng , amongst or;her t h lngs ,

t h a t a r e s e r v a t l o n hed beer! maae f o r h e r I n r e s p e c t

o f a tour , "Sa turday , 6 February, ':l. Tours 'Discovery

Hollday 526' - 16 days / l4 n igh t s t o Hong Kong/Peneng/

Kuala Lumpur/Kuantan/Slngapore."

The booking was conflrmed by the defendant on

20 August, 1981. A t t he same n m e a change KO The

itinerary was advlsed. This resul ted In there being

one more n i g h t I n Hong Kong and one l e s s n l g h t 13

Penang. On 28 November, 1981, the Nothing t u r n s on t h i s . defendanr; mvoiced

Century Plaza Travel for the tour . The t o t 2 1 p r i c e

was t o be $1,648. On 3 December, 1981, Mrs. S p e l r s

paid what was due. El ther on t h a t day or a day o r

so la ter Century Tlaza Travel accounted to the

20.

defendant for r;he payment. On 9 December, 1961,

Cathay Paclf ic Issued t ickets f o r a l l legs o f xhe

tou r i nc lud ing t he r e tu rn . The r e t u r n was booked

on Friday, 19 February on Q a n t a s f l l g h t 96. The

n c k e t s were not then sent to Century Plaza Travel

t o be g i v e n t o d e f e n d a n t h a d t o b e s a t l s f l e d t h a t a t l e a s t t e n Mrs. Spel rs , apparent ly because the

persons would t r a v e l on the tou r I n order t o o b t a i n

t h e b e n e f l t o f t he l ower a i r f a r e s t ha t a r e payab le

f o r a group of ten o r more.

The t l c k e t s , o t h e r documenr;atlon and an i t i n e r a r y

were sent to Century Plaza Travel on o r about 15

January, 1982. Accompanymy them was zn mvoice

which sald, amongst o t h e r t h l n s s , "Reauced land cost

due t o f l i gh t t h a t a refund was payable. r e schedu l iog" . The lnvolce lnd lca ted

Mlss Gollan, an employee

of Century Plaza Travel, was handl ing tne mat ter .

She d l d nor; understand The lnvoice 2nd rang the

defendant to f lnd ou t what i t meant. She was advised

t h a t w e S i n g a p o r e s t o p o v e r had been reduced by one

n igh t from t h r e e nl_ehxs T;O two n lgh t s and t h a t t h e

passengers were due to return on Friday evenlng,

21.

19 February rather than Saturday evenlng, 2C February.

Neither Century Plaza Travel nor Mrs. S p e l r s hed heerd

anythmg of the reduced Singapore s t a y or t h e e a r l l e r

r e t u r n u n t i l t h i s t i m e .

Mrs. S p e i r s was advised of the posl t ion on or

about 22 January, 1982. She was t o l d t h a t Fir. Bandy

who 1s t h e p r o p r i e t o r of Century Plaza Travel had tsken

l

s t e p s t o t r y t o have the ex t ra n lght res tored . She

was t o l d t h a t i f I t were not she would r ece ive a refund.

The day before, 21 January, 1982, Mr. Bandy had te lexed

the defendant In s t rong te rms pro tes rng a t vihar; had

happened.

Mrs. S p e i r s was content to accept the change.

She may have thought she had no other cholce. The

evidence does not dlsclose	what	t h e p o s l t l o n	was.
I	jur

ing her Travel apologis ing for the inconvenlence absence the defendant wrote to Century Plaza

cau'sed by the

reduct ion of the tour . The l e t t e r acknowledged t h a t

the advice of the change should have reached Cenrury

P laza T rave l ea r l i e r . Any embarrassment caused was

r eg re t t ed .	On	2 June,	1982, tne	defendant	wrote	both
22.

*

to Century Plaza Travel and t o Mrs. Spe l r s aga in

apo log i s lng fo r wher had happened. i t was s a i d

tha t t he change l n i t i ne ra ry "was a resu l r ; o f Al r l lne

reschedullng". An ex g r a t l a payment of G100 was

made. It should be observed In passlng that al though,

I n a sense, i t was co r rec t t o s ay Khat the problem was

caused by a i r c r a f t r e s c h e d u l l n g , t h l s had occurred l n

June 1981 long before Mrs. Spe l r s had booked. The

l e t t e r 1 s open a t a recent t o t h e m f e r e n c e t h a t t h e r e s c h e d u l l n g

had occurred t ime. i f i t had occurred

a t a by condl t ion r ecen t t une , t ne pos i t i on may have been covered

6 on the back of the brochure which 1s

headed "Tour expressly declined to put any submission based Changes". B u t counsel for the defendent

on that

provlslon. That was no doubt because the reschedullng

had occurred long before the booklng. In my oplnion

counsel was r i g h r ; I n t h e s t a n ~ which he took.

No problem would have ar lsen l f rhe defendenr;

had made P laza T rave l , t ha t t he re lt c lea r t o t r ave l agen t s , l nc lud ing Cen tu ry

was a problem abour returns

a t l ea s t a f t e r 31 December,	1981.	i n t h e	l i g h t	of
/

I qsI

2 3 .

Y

t h e h i s t o r y which I have recounted t h i s could have

been done, i f necessary on a p rov i s lona l basls,

long before 17 August, 1981, when Nrs. S p e i r s

booked the t ou r . Particularly 1s t h a t so I n zhe

l i g h t o f t h e f a c t t h a t Mrs. Croucher's documentation

shows t h a t t h e r e t u r n was f i r m l y booked on 24 June, 1981. on Frlday, 19 February, 1982,

Further evidence TO which I should re fe r a rose

out of a complaint made by the Consumer A f f a i r s

Bureau (N.S.W.) on o r abouz 4 January, 1982. I t had

recelved complalnzs from two passengers booked on

the tour scheduled to depar t ear l le r tnan Nrs. S p e l r s '

tour . I t was on 23 January, 1982. scheduled to leave on 9 January, 1982,

and t o r e t u r n The passengers

had complained of a snor tened of the need t o r e t u r n a day e a r l y and

s tay in S lngapore . I t wlll be

r e c a l l e d t h a t I e a r l i e r s a l d t h a t I was sar ; i s f ied

tha t the passengers on t h l s t o u r d id r e t u r n a day

e a r l i e r . The c o m p l a k t was made t o a Mr. Byrne. He

brought i t t o t h e a t t e n t i o n o f Mr. Koodcock, t he

24.

manager of tine opera t lons sec t lon . Mr. Moodcock

was unaware of tne problem. The inquiries he

made l e d reschedul lng of an aircraft, a stetement	hlm	t o s a y t h a t t h e	problem	was	due Irhlch	t o t h e
the

Consumer Affairs Bureau appears to have accepted,

a t l e a s t t l o n s , a t t h a t t u n e . Mr. 'Noodcock gave ins t ruc-

so he sa ld , cha t a l l pas senge r s on l a t e r

tours were t o be no t l f i ed o f t he problem. E i t h e r

h l s r e c o l l e c t l o n 1 s a t f a u l t o r h i s l n s t r u c t i o n s

were not car r ied ou t because there was no p a r t i c u l a r

n o t l i i c a t l o n t o Nrs. Spe i r s of the change. The

terms of the lnvolce referr lng t o "reduced land cost"

would sugges t tha t lt w2s s e n t on t h e b z s l s t h a t s h e

knew. I n f e c t , a s I nave seld, nel ther Century

Plaze Travel nor she knew anythlng o f rhe sendlng of the change un t l l

the lnqul ry	was	made	a s a	result	of
t ha t i nvo ice .

Other a Mr. Mitchel l of Qantas and a Mr. Holloway who was evidence whlch I should mentlon 1s t h a t of

I n t h e evidence employ of the defendant . I have taken thelr

generally Into account b u t do nor; f m d i t

necessa ry t o r e f e r r;o t h e d e t a l l o f I t .

F ina l ly , mer?tion t h a t Mrs. In r e l a t lon t o t he ev l c i enco , I s.tioulb

+e l rs does no t seem t o have been

25.

a t a l l upset by the change. The renor o f her

evldence was t h a t s h e was q u i t e s a t l s f l e d wlth

t h e t o u r and appears to have enJoyed it . If

mat ters had been l e f t t o h e r s h e would not have

taken any act lon o r done anythmg abouc I t .

However, Mr. Bandy took a most s e r i o u s view of the

pos l t l on . H l s t e l e x CO the defendant 1 s In t he

s t ronges t t e rms . Mr. Bally was obvlously concerned

a b o u t t h e c k n g e a t a n e a r l l e r s t a g e b u t t h l s may

have been more because the cermmator f l l ,chx no

longer went t o Melbourne rather than because o f any

shor ten ing o f t he Tour I t s e l f o r the s tay In Slngapore.

Mrs. Cree was concerned about It and herself enaeav-

oured t o do someth lng to res tore the pos l t ion . Two

passengers on t h e e a r l l e r t o u r were also concerned

a t t h e s h o r t e n l n g .

It 1 s now a p p r o p r l a t e t o s t a t e my f ind ings of

f a c t . They a r e :

1. Notice of the change from the Saturday to the

Friday Singapore departure was glven the defendanc

by Qantas In June 1981.

26 .

2. By 24 June 1981, a l l departures between August

and November l981 l n c l u s l v e had been booked f i rmly

on QF2 to depart on che relevanr; Saturday. Passengers

f o r the one remalnmg re turn in 1981 were walt l l s t e d

f o r t h e CF2 S a t u r d a y f l i g h t . I am unable to say

when the booking became ava l l ab le , bu t I would i n f e r

t h a t t h l s occurred well before the end o f the year .

I n l l k e c a s e 1 s the depar ture scheduled to l eave

Singapore on Saturday, 9 January, 1982. The passengers

were booked on OF96 but wair; l i s t e d on QF2.

3. On 24 June 1981 a l s o , t h e f i n a l d e p a r t u r e on

10 Aprl l , 1382, was booked f i r m l y t o r e t u r n o n t h a t

day ( the Sa turday) on CF2.

4 . Agaln on 24 June 1981, the departures scheduled

LO leave Smgapore on Saturday, 23 January and

20 February, 1982, were rescheduled 10 leave on Fr lday,

22 January and l 9 February respect lvely. The

passengers were never w 2 1 t l l s t ed on QF2 t o d e p a r t

on the Saturday.

5. I am unable t 3 make any flrm flndlng concernlng

the depar ture scheduled to l eave Smgapore on Sa turday ,

2G March, 1982. I t is unnecessEry to do so .

27.

6. Although Mr. Plaiscer gave hls evidence

hones t ly , I do no t accep t h i s ev ldence tha t there

were,by ear ly July 1981 o r a t a l l , flrm statemenm

on behalf January, 1982, would of Q a n t a s t h a t a l l d e p a r t u r e s up t o 31

be c a r r i e d on the Saturday on

QF2, and t h a t c h e r e a f t e r a l l d e p a r c u r e s would have

to l eave on the Fr lday on GF96. The documentatlon

1s s g a i n s t h l s r e c o l l e c t i o n b e i n g a c c u r a t e i n c h e s e

respec ts .

7. I do accept M r . Bai ly 's evldence t h a t u n t i l

about September 1981 he nentloned the matter from

tune to t a ln t he o r ig ina l Sa tu rday depa r tu re s In r e spec t t ime t o Mr. Plals ter In an endeavour EO mam-

of

a l l t o u r s . But I an nor ab le t o say wrth c e r t a l n t y

how the mat te r was l e f t . I think The p r o b a b l l i t l e s

a r e t h a t m the mmds of the two men, the problem &as

solved, a l though not in the way Mr. P l a l s t e r r e c a l l e d ,

t o a degree l n t he ea r ly s t ages 2nd the mat te r wss

then overlooked. pressure he Mr. B a l l y ceased to exer t the

appl ied i*Jhen the problem flrst a r o s s s o

thaz nothlng vas	done	about	the	l a t e r s e p a r t u r e s
26.

which, on 24 June, 1981, had been booked r o r e t u r n

on the Fr iday. kept by Mrs. Cree A s ear l ler ment ioned, the schedules

and Mrs. Croucher tend to show,

because of the absence of any reference to wait

l l s t i n g on GF2, t h a t Mr. B a l l y ' s e f f o r t s were not

l ead lng ve ry f a r .

8. So f a r %S the records of dantas and tne defendant

d l sc lose , the tour o r lg lna l ly In tended to l eave S lngapore

on Saturday, 20 February, 1982, was rescheduled to

depar t on Fr iday , 19 February, 1982. metter stood. The That change was

made on 24 June, 1981. There the

f a c t t h a t t h e chenge had been nede ivas known t o Mrs.

Croucher and t o o t h e r employees of the defendant . In

t h e l l g h t o f Mr. Sa l ly ' s ev ldence , I do noc accept chat

I t was i n f a c r known t o hlm, b c t a s a matter of proper

b u s m e s s p r a c t l c e it ought to have been.

9. The defendant dld not not i fy any of I ts agents of

t he change . In pa r t l cu la r I t ald nor not i fy Century

Plaza Travel.

10. The alteration had already been made lwhen Mrs.

Spe l r s made her booklng on 17 August, 1981. The

position was upchanged .*.hell sne pald f o r t he t ou r

on 3 December, 1981, and when Century Plaza Travel

on t h a t dey , o r a day o r so l a t e r , a ccoun ted t o

the de fenaen t fo r t ha t payment. A t the time she

pa id her money Mrs. Spelrs expected t o leave

Singapore on Saturday, 20 February, 1982.

11. On 9 December, 1981, the defendant caused

t i c k e t s t o be I s s u e d f o r Mrs. S p e l r s ' f l l s h t s .

These lncluded a t l c k e t e n t l t l l n g Mrs. S p e l r s t o

t r a v e l t o Sydney on CF96 departing Slngapore on

Frlday, 19 February, 1982.

12. The t l c k e t s anci an l t lnerary reached ivirs. Spe i r s

middle l ea rned fo r t he of January 1982. It was then tna t she

In the

!

f i r s t tlme of the shor tened tour .

The f l r s t ques t lon i s whether there ls, f o r t h e

purposes of s .58 , a ma te r l a l d l f f e rence between t h e

tou r f o r which Mrs. Spel rs pa id and t h a t whlch she In

f a c t had. I leave as lde , for the purpose o f dea lmg

with t h l s submlsslon, any question o f m t e n t l o n .

Both counsel were agreed thar: the test 1 s an obJect lve

one. I s h a r e t h e i r common view. But I thlnk lt

mate r i a l , I n o r d e r xo come LO a conclus lon , to t ake

30.

into account tne var lous views which t h e r e a r e

In the evidence as to the mater la l l ry o f rhe

d i f f e rence whlch t h e r e 1s. Or? the one hand

Mrs. Spe l r s d id no t appa ren t ly cons lde r t he re

t o be any problem about what happened. On the

o the r hand a travel agent, presumably experlenced

I n the Inausz ry ?f one has regard to The number

of t ransac t ions rhrough the two r e c e l p t books

which a r e lr? evidence, consldered the matter ':/as

se r lous . The concern i n the defendant ' s o f f lce

l t s e l f shows t h l s t o be the case as does the con-

cern of the Consumer A f f a l r s Eureau on behelf of

two	o ther	passengers .	In
the tuat?on as eod one has to make

an assessment Obviously a of the sl best one can.

questlon of degree 1s lnvolved ar?d an

eva lua t ion 1s necessary. I need t o be s a t l s f l e d

to t he r equ l s l t e s t anda rd t ha t t he d i f f e rence was

m a t e r i a l , t h a t i s , the mat ter i s an element i n the

offence whlch 1s charged and must be proved beyond

reasonable doubt.

Havmg the c lear conc lus lon tha t the d l r ' fe rence r e f l e c t e d on the mat ter I have reached

was

31.

mater ia l . If one looks ar the brochure wnlch

contains the vsrious I j lscovery Tours whlch were

then ava l lab le one can see h lghl lghted a t the

top of each page the length of the tour s ta ted

in days and n i g n t s . Those who formulatea the

brochure thought t i e le..gth of the tour Important .

The o v e r a l l p e r l o a o r a l l t t l e more. 1 6 , I n round cerms, fourteen

24 hour perlods The reduct lon

was t o t h l r t e e n 24 hour perlods o r a l l t t l e more.

Furthermore, a s t a y of tnree days and t h r e e n l g h t s

i n Slngapore was curtailed by one 2& hour perlod.

Many people v 1 1 1 1 have different reasons f o r thlnklng

t h a t a reductlon of one day was o r was no t ma te r l a l .

To some It may have sul ted tnem t o r e t u r n a dey

e e r l l e r . But one must bear In mlnd t h a t t h e

r e se rva t lon was for E tour of r;he adver t l sed l ength .

Some would have been a t t r acxed by t h e f a c t t h a t t h e y

would be away from Australia f o r a f u l l 14 days.

Others would have regarded I t a s important tha t t hey

have t h r e e f u l l d a y s , r a r h e r t h a n two, in Slngapore.

32.

-?

P

They may have f e l t t h a t Lhey d l d not have enough

t lme to see It properly o r to shop adequately I n

wnat 1s recognlsed as one o f t h e a t t r a c n v e

shopping places In the Easr;. Yet o t h e r s , on

hear lng of the reduct lon, may have wlshed they had

been Informed money so that before they booked o r pa ld t he i r

they could nave reconsidered c h e r

d e c i s l o n t o t a k e Tour 526 ra ther than a different

one. The reasons wlll be many and varled and r;he

m p a c t of the problem on people will provoke dlfr^-

e r en t r eac t lons . Bur: I n a l l che clrcumstances I

have a c l ea r conv lc t lon t ha t t he d i f f e rence was

mater ia l . The f irst submlsslon made on behalf of

che defendent 1 s accordingly reJected,

In re la t ion to the second submlsslon ment lon the course of rhe argument That occurred In

was made

of whether , In addl t lon t o havlng to es tab l i sh the

i n t e n t f o r which the sec t lon provldes , the Informant

had t o e s t a b l i s h a l s o mens r e a , 1 . e . a g u l l t y mlnd

on t h e p a r t of the defendant. I was r e f e r r e d t o t h e

33.

c

g e n e r a l p r l n c i p l e s vJnich a r e s t a t e d I n a number of

cases, che most recent of I h k l C h 1s Cameron v. Holt

(1980) 142 C.L.R. 342. O f more d i r ec t r e l evance

a re dec i s lons o f th l s Cour t dea l ing u t h che problem

.m r e l a t l o n t o c e r t a i n o f the provls lons of Dlvls ion

1 of P a r t V of che Act. The only one of t hese t o

whxh I need r e f e r 1s Darwm Bakery P t y . L l m l ted v.

S u l l y (1981) 36 A.L.R. 371, a dec is ion of a Ful l Court

of thls Court . There the Court was concerned with

e submlss ion t ha t t he l l ab i l l t y lmposed by s.53 of

t he Act was s t r l c t and t h a t It was not necessary for

a prosecutlon to prove a g u i l t y mind. The submlsslon

was upheld. The Court said (p.376):

"While i t 1s r e l even t t o s ee P t V o f t h e n c t

a s a p l ece of cor?sumer p r o t e c n o n l e g l s l a t l o n ,

we do r?ot regard rhzt a s s u f f l c l e n t of l t s e l f

to dlsplace the oralnary requlrement o f mens

rea . Sec t lon 53 does use language comparable i n

ce r t a ln r e spec t s t o t ha t cons lde red by the High

Court i n Cameron v. Hol t , supra, and there can

be no doubt that s.79 prescr lbed a pena l ty ,

lndeed a very heavy one. Nor can there be any

doubt tha t a contravent ion of a provis lon of

P t V , o ther than s.52, resulcs I n a 'conv1ct lon ' .

But we a re o f che oplnlon that the exls tence

of s.85 in regard to cont ravent lons of P t V of

the .4ct po lnzs t o a po l lcy on t h e p a r t of t he

leg is la ture t ' na t ln the absence of one of che

defences there ment lonea the l i ab l l lcy lmposed

34.

I

P

"by s.53 1s s t r l c t . iqore p e r t l c u l a r l y , i n

t he case of s .53(e) , i t is unnecessary t o

e s t a b l i s h knowledge of xhe f a l s l t y of The

statement or r eck le s s l nd l f f e rence a s t o I ts

t r u t h o r falsehood. The range of defences

i n s.85 1s wide - reasonable mistake; reason-

a b l e r e l l a n c e on information supplied by

another ; contravent ion due to the act or d e f a u l t

of another o r to an acc ident o r some cause beyond

the de fendan t ' s con t ro l where the defendent has

taken reasonable precaut lons and exerclsed due

d l l lgence . There a re par t lcu lar defences In the

case o f pub l l ce t lon of an advertlsement and I n

t he case o f goods not complying with a s tandard.

I n a d d l t i o n , s . 8 5 ( 6 ) confers upon the cour t a

general exculpatory power where a persor! other

than a body corporate has acted honest ly and

reasonably and ought f a i r l y , I n a l l t h e c l r c u m -

s t ances of the case, to be excused.

The breadth of these defences hardly accords

wlth a s l tua t io r? m whlch l l a b l l l t y depends i n

any event upon e s t a b l l s h i n g mens rea. Rather ,

It assumes a liability a r l s i n g from conduct

objectively measured, but which may be evolded

by the proof of mat te rs pecul la r ly wl th in the

knowledge o f the defendant . I'

A ques t ion a r i ses as to whether I should apply thls

approech i n r e l a t l o n t o an offence whlch p la ln ly lnvolves

a mental element In that It will not be committed unless

the defendant t h e p r i n c l p l s s t a t e d had t n e r e q u l s l t e i n t e n t . I n my opinion

by the Ful l Court have equal

appl lcat ion to an offence under s.58. What t h e

prosecut ion must e s t a b l i s h beyond reasonable doubt 1 s

the exls tence of the intenx for wmch t h e s e c t l o n

provldes. If t h a t l n t e n t 1s es t ab l l shed no

fur ther Nevertheless It 1s the submlsslon mental e lement i s Involved.

of s en lo r

counse l for the defendant tha t the p rosecut lon has

n o t e s t a b l l s h e d submlssion It 1 s necessary, t h e r e q u l s l t e I n t e n t . i f the prosecut lon I n h i s

i s

to succeed, ab le doubt tha t for l t t o be e s t ab l i shed beyond reason-

r;he defendant by one o r more of i t s

se rvan t s o r a g e n t s , a c t u a l l y a d v e r t e d , a t zhe t m e

I t accepted Mrs. S p e l r s ' money e a r l y m December,

1981, to t he c i r cums tance t ha t Mrs. Spelrs. was paying

her money f o r a 1 4 day tour, but would, and was

ln tended to , rece ive lns tead a 13 day tour.

In the submlsslon of senlor counsel f o r the

prosecutlon i t was unnecessmy for xhe prosecutor

t o e s t a b l l s h more defendant , r h a n t h a t , a t t h e t l m e t h e money

was accepted, the by I ts se rvan t s and

agents , ln tended to provide a 13 'day tou r . I t was

not necessary that Lhose se rvan t s and 2gents should

be shown, as well, to have in tended , a t tne t ime of

the acceptance of t he money, to p rovlde a t o u r which

would be they knew the money was pald. ma te r i a l ly d lTfe ren t from t h a t f o r which

36.

Al te rna t ive ly lt was submitted chat I should

ln fe r , because no no t l f lca t lon of the shor ten lng

of the t o u r had been giver? Mrs. S p e l r s a c the tune

she pa id her money, the t t h e r e were t h o s e i n t h e

defendant who knew t h a t s h e was paylng f o r t h e 14

day tour and who accepted her money on t h a t f o o t i n g .

The fac t cha t those se rvants and agents may nor: have

been t h e same tnus provldlng her wlth as those ?vho effected her booklngs,

a 13 day tour , was sald not

t o be t o t h e p o l n t . Looked. a t obJect lvely che

defendent by a v a r l e t y o f s e rven t s and agents was,

s o i t was	submltred,	shown	to have	.had	the r e q u l s l t e
In t en t .

A fur ther a l te rnaz lve submlss ior . was t h z t I

should flfli. che resuls l te Intent because zne evldence

e s t a b l i s h e d t h a t t he d e f e n d a n t ' s s e r v m t s an@ agenr:s

had acted wlth sucr! reckless lndlfference tha t It

was apparenc that the defendant d ld noc care hhether

the money was acceptea f o r somethlng ,,\hlcn was t h e

same o r materially different from t h a t for which I t

was pald.

I t h n k t'nese vsr lous .Jays of pu tc lng the

prosecut lon 's case throw U? w r ? d l f f l cu lL les vh lch

37.

t h e r e a r e In acceptlng any view of r.he proper

consxrucxlon of cne sect lor! orher than thet

contended f o r by senlor counsel for the defendenr. .

He described lng m a commerclal t h e s e c t l o n a s one to p roh lb i t chea t -

context. I n my view tha t 1s

an ap t desc r lp t ion o f it.

What must corpora t lon adver ted to be e s t e b l l s n e a 1s tnat the defendape

The gravamen of The metter

whlch t h e s e c t l o n makes ar! offence. Slnce It can

only form an intention through the mlnd or minds of

I ts agent o r agents , the o f fence m11 r?ot be committed

unless it 1s proved beyond reasonable doubt that

one o r more a t r;he time of agents turned h l s o r t h e i r a t t e n t i o n ,

the accepthnce of a customer's mcney,

n o t o n l y t o what lr. was t h a t would be suppl ied bu t

a l s o t o whecher thax was m a t e r l a l l y d l f f e r e n t from

tha t f o r whlch t h e money was belng accepted. Only

13 they knew t h a t what was or uould De suDplled was

o r would be m a t e r l a l l y d i f f e r e n t from t h a t for h u c h

t h e	money	was	accepted,	will	t h e r e q u l s l c e i n t e n t i o n
_.

be e s t ab l i shed . Suppor t fo r t ha t vlew is, I n ny

..

oplnlon, to be found In the Judgment of Srni-ihers J .

I n - Reardon v. Norley Ford Pty. Llrnlced (1960) 33

A.L.R. 417 p a r t l c u l a r l y a t p.424. That was a

case under s.56 d e a l l n g x l t h b a l t a d v e r t l s m g .

The p rov l s lon In ques t lon was sub-sec.56(1) whlch,

l l k e s.56, has a s one of I t s e l emen t s t he i n t en t

of	a	corpora t ion .
I t fol lows tha t I t is n o t s u f f l c l e n t , I n my

oplnlon, CO e s t a b l l s h , as the evldence here

c l ea r ly does e scab l l sn , no more thar? t h a t a t t h e

tune the money w2s accepted the defendent by I ts

agents intended CO provlde a 13 day tcur . ,vvhat

must be e s t ab l l shed ada l t l ona l ly IS t ha t che

defendant by t h e same agen t s , o r by o the r agen t s

_.

pr ivy t o the knowledge t h e t t h e t o u r t o b e

suppl led was lntended to be a 13 day t o u r ,

accepted the cusr;omer’ S money knowing It was paid f o r a 14 day tour. Otherwlse The corpora t lon 1s

39.

not shown to have lnrended to supply someEhlng

whlcn was mater ia l ly d1ffere .n .z f rom that for wnich

the money was p a i d . I n o r d e r t h a t a corpora t ion

may be Show to have had the re?uls i te InKention,

t h o s e a c t l n g f o r i t must be shown t o have been i n

a p o s i t i o n t o a p p l y t h e l r mlnds to t he ques t ion of

whether what was t o be supplied would be somethlng

mace r l a l ly d i f f e ren t from That f o r whlch t h e

customer's money was accepted. Hov~ can one intend

to supply one accepts a cus tomer ' s money, somethlng different from t h a t f o r whlch

lf one does not

apprec l a t e mar I t 1 s for whlch the cus tomer ' s

noney The ques t ion 1 s whether 1s belng paldv

I should be s a t l s f l e d

t h a t p e r s o n s a c t l n g f o r t'ne defendant dla heve

the requisite i n t e n t l o n . Undoubtedly Mrs. S p e w s

paid Miss Gollan of The booking advlce Century Plaza Travel for a 14

day tour. dated 3 December,

1981, s e n t by Mlss Gol lan to the defendant on t h a t day

o r a day o r s o l a t e r des igna ted t he t ou r ah l ch was

40.

I

p a d f o r as " ihscovery 3o l lday 526 16 days".

The a d v l c e c e r t a m l y wenr t o t h e defenaant but

to whlch Undoubtedly of I t s se rvan t s o r agenrs I am unable

to say. I t l e d t o t h e maklng by

the defendant of the var lous reservat lons on 9

December, 1981, l nc lud lng t he r e se rva t lon of a

s e a t for Xrs.	S p e l r s on &F96 departing Singapore
on 19 February,	nor 20 February, 1982. But m e

c r l c l c a l ques t ion 1 s whether I should be sat is-

f i e d beyond agents o f xh2 defendant , o r any reasonable douDt thex s e rvzn t s o r

one of them,

advertec? TO what was k p p e n l n g I n t n ~ sense of

formmg an In ten t ion pos i t lve ly xo supply a t o u r

mater la l ly d l f f s renr ; from t h a t f o r X F . ~ C ~ t h e pay--

ment was accepted. If t n l s ,nrere a c l v l l c a s e 2nd

the s tandard o f proof +:ere on a balance 3f p r o k a b l l l t l e s ,

one mlght conclude t n a t an mference should be drawn

t h a t the r e q u l s l t e I n t e n t i o n was es t ab l l shed . But

t h e case 1s a cr lmlnal one. The s tandard of proof

1 s proof beyond reasonable doubt . Havlng ref lected

on tne ma t t e r , I am unpersuadea chat xhe prosecut lon

has es tab l l shed c h s essential naxter .

41.

?

I should add that I have taker? Inco con-

s l d e r a t l o n , m thls respect , che agreement of

counsel that Century Plaza Travel acted throughout

a s an agent and noc a s a p r m c l p a l . Thus i t nay

be t h a t gc t lng as che defendent ' s agent Niss Gollan o r Century Plaza Travel was

wher? Dllss Collan

accepted Firs. S p e l r s ' money on 3 Decembsr, 1981.

Assuming r h a t t o have oeen s o , t he p rosecu t lon ' s

case i s no fur ther advanced. Hiss Gollan accepted

the money for a 14 day cour and intended Mrs.

Spe i r s t o have such a tour . That 1 s the purpor t

of her bookmg problems which then aavlce. She knew nothing of the

exlstecl In r e l e t lo r . xo t h e d a t e

of departure from Singapore.

The t o t a l l t y of the evldence tends to suggest

t h a t t h i s unfortunate problem was not brought about

by any d e l i b e r a t e o r Intended conduct on t h e p a r t o f

the defendant. not l fy Century Plaza Travel I t was caused by i t s f a l l u r e t o

of the problem before

Mrs. Spelrs ' what happened was t h a t Nr. booklng was made and her money accepted.

2a1ly rnougfit t h a t he

could overcome t n e ?robl?q. To E subs t an t i a l deg ree

42.

he did. But through overslghc ne neglected t o

mlalntaln the p re s su re he e f f o r z s o r lg lna l ly exe r t ed on

Qantas. And, I n c a s e h i s f a l l e d , h e advised

neglected to have the defendant 's agents

t h a t t h e r e was o r m z h t be a problen I n r e l a t i o n

t o t o u r s sure he would be r e t u r n l n g a f t e r t h e end of 1981. I an

che f i r s t co concede t h a t he

should have seen to 1; t ha t agen t s were n o t l f i e d

s o that people such as Mrs. S p e l r s relying on the

brochure would not be mlsled. Thus the ca se i s

i n the realm o f ove r s lgh t , neg lec t and ca re l e s sness .

I t 1s noz i n the ca tegory of p o s l t l v e i n c e n t t o

f o i s t on a customer somethlng materially d l f f e r e n t

from thaz for whicn h l s money has been accepted.

The th l rd a l t e rna t lve submlss lon r e l l ea upon

by t h e p r o s e c n o n 1s based on a l leged recklessness

and Ind i f f e rence of che de fenamt In accep t ing t he

money so a s t o i n d l c a t e t h a t It did not care whether

t he t ou r the re i s a was t o be f o r 14 days or 13 days. I chink

ques t ion as to whether the requisite

intention could be es tabl ished I n t h i s way. I

express no n e w . I do say, however, a a t If reck-

l e s sness and Indifference could establish che

43.

r e q u l s l x e i n t e n t l o n , chey would need t o be of

a hlgh order. I am noT; s a t l s f l e d t h a t tohat

happened here was due t o more tnan neg lec t o r

c a r e l e s s n e s s f a l l l n g f a r s h o r t of recklessness

o r Ind i f f e rence . a l l t h e d e f e n d a n t ' s f a l l u r e I do n o t wlsh to min imlse a t

TO n o t i f y i t s agents

of the problem when I t became aware of I t . But

I am t h i s r e s p e c t c e r t a l n l y n o t s a t l s l l e d t h a t I ts d e f a u l t m

amounts t o The gross mlsconduct

a l l eged by the prosecut lon.

I t was s a d by senlor counsel For the prosec-

u t lon t ha t t o cons t rue che s e c t l o n a s I be l l eve It snould be construed would be CO defez t I ts obJecc.

But that of considering submlsslon is of no he lp ; l t 1 s a ques t ion

I t s terms and a r r l v l n g 2 t I t s t r u e

rneanlng. That 1s what I have endeavoured to do.

I n t h e same ve in sen lor counse l sa ld tha t my con-

s t r u c t i o n of I t Imported an additional mental element

Into che quest lon 1s one offence whlch 1s not chere . But agaln the

of the conscructlon of the ivords

whlch the draftsman has used. The g l s t of the o f fence

i s to i n t end t o supp ly somechlng materially d i f f e r e n c

from t h a t f o r w n c h a payment 1s acceptea. I t

1s t h a t i n t e a t r o n w h l c h , i n my oplnlon, 1 s absent

from t h e p r o s e c u n o n ’ s proof i n t h l s c a s e .

Ny concluslons make I t unnecessary to consider

the defences based upcn the provls ions of s.85 of

the Act. I express no v i , ., on the cons ldera t ions

which they raise. I shb- J l d a l so nenc ion tha t

reference vas made In the argument from tlme to t lme

t o s.84 of the Act eea l ing m t n rhe f l x l n g o f a

c o r p o r a t i o n ~ 1 1 t h t h e m t e n t l o n s of i t s se rvan t s o r

agents. I nave taken the sec t lon genera l ly ln to

account In deal lng wlrh che various submlsslons whlch

have a r l s e n for cons ldera t lon .

For the reasons I nave g v e n lr 1s my oplnlon

t h a t The lnformatlon should be alsmlssed. However,

sen lor counse l for me prosecut lon hes asked me, i f

that should be my view, n o t now t o e n t e r Judgment EO

g i v e e f f e c t t o my concluslon, b u t t o s t a t e a case or

reserve a ques t ion o r questions fo r cons ide ra t lon by

a F u l l Court pursuant t o sub-sec.25(6) of the Federal

Court of quest ions would Australia 4 c t 1976. The case or t he

r a s e for cons ld f ra t lon by a F u l l

45.

Cour t t he p rope r cons t ruc t lon of s.58 o f t h e Act

m the cor . text of thls case. The course proposed

by the p rosecut lon 1s strongly opposed by che

defendant.

The ef fec t t o my conclusion by dlsmlsslng xhe mforrnatlon, r eason fo r t he r eques t 1s t h a t i f I give

the p rosecut ion wlll have no r l g h t of appea l , my p d g -

rnent amounting CO 2n acquittal of r;he defendant on a

crlmlnal charge; Thompson v. Mastertouch TV Serv lces

Pty. Llmlted (1978) 19 A.L.R. 547 and Ausxralian

Bulldlng Construct ion ErnDloyees e tc . Feaera t lon v.

Davld Syme & Co. (1982) 40 A.L.R.519 a t pp.520-521.

I d ld no t s ay what vlew of t he r eques t I would

take I n t h e event t h e t my dec ls lon w2s a d v e r s e t c t h e

prosecut lon. I sala t h a t I thoughr; I t b e t t e r t o p u b l l s h

my reasons and proposed conclusion bhlch I nob do. I

wlll allow an adJournment so t h e t t h e p a r t i e s and t h e i r

l e g a l a d v i s e r s may conslder m a t I have sald. If,

when t h e matter 1 s a g a m In the l i s t , the r eques t i s

t o be pressed , It wlll asslst lf the case whlch -,he prosecut lon wishes s ta ted or t he quesuons which it

wishes reserved for a Full Courr be formulated ar.d

p rev lous ly no t i f led to counse l for The defendam. I

k 6 .

do n o t m s h KO pre-empt my decls lon on the

reques t , bu t f o r t he a s s i s t a n c e o f t h e p a r t l e s

I do say tha t I t i s u n l l k e l y t h a t I wlll form-

u l a t e any ques t lon for a Ful l Cour t whlch 1 s a

i

quest lon of f ac t ra ther than of law.

47.