Barton v Croner Trading Pty Ltd

[1984] FCA 206

Re: EDWINA ALICE BARTON
And: CRONER TRADING PTY. LIMITED
Nos. G199 to G216 of 1983
Trade Practices
3 FCR 95

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Beaumont(1) and Wilcox(1) JJ.

CATCHWORDS

Trade Practices - False representations - History, standard and sponsorship of goods - Labels attached to goods by wholesaler - Time of representation - Whether representation by wholesaler made when goods displayed by or purchased from retailer - Whether prosecution commenced out of time - Representation concerning non-existent standard - Consent of Minister or authorised person to prosecution required - Whether power to consent can be delegated to a holder of an office.

Acts Interpretation Act, 1901, ss. 34AA, 36, 46 (b)

Crimes Act, 1914, s. 21

Federal Court of Australia Act, 1976, s. 25 (6)

Trade Practices Act, 1974, ss. 53 (a), 53 (c), 79, 85 (4) 163 (4) (b)

Thompson v. Riley McKay Pty. Ltd. (No. 2) (1980) 42 F.L.R. 279 - dist.

Korczynski v. Quik Foods Pty. Ltd. 3 May, 1984, unreported decision of Keely, J. - rev.

Trade Practices - False representations - Labels attached to goods by wholesaler - Whether representation by wholesaler when goods displayed to or purchased by consumer - Representation concerning non-existent standard - Consent of Minister or authorised person to prosecution required - Trade Practices Act 1974 (Cth), ss 53(a), 53(c), 79, 85(4), 163(4)(b).

HEADNOTE

Held: (1) Where the defendant, a wholesale supplier, supplied toys to a large national retailer and such toys had attached to them a label upon which appeared representations, such representations were made by the supplier both at the time of display of the toys by the retailer and at the time of sale of the toys by the retailer to consumers. The surrounding circumstances indicated that the defendant was seeking to implement a scheme for the marketing of the goods, a central feature of which was the display for sale to the public of goods bearing labels intended to be read by the public. The defendant required a retail outlet to market its product and the retailer, by assuming that role in the defendant's marketing plan, acted as an intermediary between the defendant and the ultimate purchasers. In that sense the defendant's conduct could be seen as the projection by it of the goods into the course of trade accompanied by representations as to their history, standard and sponsorship intended for publication not to its retailer or to some other reseller but to potential purchasers in the form of members of the public who might be expected to see the labels on display with the goods at the retail outlet. Representations made under those circumstances may properly be characterised as representations of the kind contemplated by s. 53(a) and (c) of the Trade Practices Act 1974 (Cth) and such representations should be regarded as having been made whenever they are communicated to consumers.

(2) A representation that "this item exceeds all Australian Safety Regulations including the Inflammability Act" was a statement at least by implication to the effect that legislation requiring a specific standard did exist and applied to the goods. Where the pretended standard did not exist, the statement was false and a contravention of s. 53(a). The statement was also false in that it represented that the goods achieved or were of a particular safety standard when in truth no such safety standard existed.

(3) A consent to prosecution addressed to "the Minister for Home Affairs and Environment" was an authorisation within s. 163(4)(b) of the Trade Practices Act 1974 "of a person".

Owendale Pty Ltd v. Anthony (1967) 117 CLR 539; Noble and Bear v. Commonwealth (1943) 17 ALJ 184, applied.

Korczynski v. Quik Foods Pty Ltd (0000) 54 ALR 278, Thompson v. Ril ey McKay Pty Ltd (No. 2) (1980) 42 FLR 279; R v. Thomson Holidays Ltd (1974) 1 QB 529; International Harvester Co. of Australia Pty Ltd v. Carrigan's Hazeldene Pastoral Co. (1958) 100 CLR 644; Prints for Pleasure Ltd v. Oswald-Sealy (Overseas) Ltd (1968) 3 NSWR 761; Riley McKay Pty Ltd v. Bannerman (1977) 31 FLR 129; McRae v. Commonwealth Disposals Commission (1951) 84

CLR 377; R. v. Kylsant (Lord) (1932) 1 KB 442; R. v. Poole; Ex parte Henry (1939) 61 CLR 634, referred to.

HEARING

Sydney, 1984, July 5, 19. #DATE 19:7:1984

CASE STATED.

Case stated pursuant to s. 25(6) of the Federal Court of Australia Act 1976.

D. M. J. Bennett Q.C. and P. W. Neil, for the prosecutor.

J. Bryson, for the defendant.

Cur. adv. vult.

Solicitor for the prosecutor: Australian Government Solicitor.

Solicitors for the defendant: Smithers Warren Davenport & Mant.

G.F.V.

ORDER

The questions in the Special Case be answered as follows:

(1) Is the document set out in paragraph 23 hereof a valid authorisation for the purposes of s. 163 (4) (b) of the Trade Practices Act, 1974?

Answer: Yes.

(2) Upon the facts stated herein did the defendant commit the offences charged in the informations or any of them at the times and places charged therein?

Answer: Yes.

(3) Upon the facts stated herein were the prosecutions for the offences or any of them barred at the date of the informations by s. 21 of the Crimes Act, 1914? Answer: No.

The proceedings be remitted to Beaumont, J. for the entry of formal convictions and for consideration of penalties.

Croner Trading Pty. Limited pay to Edwina Alice Barton her costs of the Special Case.

Orders accordingly.

JUDGE1

This is a special case stated pursuant to s. 25 (6) of the Federal Court of Australia Act, 1976 in proceedings in the Court instituted by informations in which the defendant is charged with offences constituted by s. 79 of the Trade Practices Act, 1976 ("the Act") arising out of alleged contraventions of s. 53 (a) and (c) of the Act. In all, eighteen informations were laid.

The contraventions of the Act are said to arise out of false representations made by the defendant in connection with the supply or possible supply of certain toy koalas and toy kangaroos: the prosecution alleges that a number of false representations were made as to the history, sponsorship and standard of the toy products in contravention of s. 53 (a) and (c) which provide as follows:

"53. A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services-

(a) falsely represent that goods are of a particular standard, quality, grade, composition, style or model or have had a particular history or particular previous use;

. . .

(c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;

. . . "

At all material times, the defendant carried on business as an importer and distributor of toys. From about April 1981, the defendant carried on a toy manufacturing operation in New South Wales. It marketed its products under the name "Joy Toys". During 1981, the defendant conducted negotiations with Westwood Rogers Marketing Pty. Limited, trading as "Advance Australia Marketing", with a view to obtaining a product and corporate licence to use the name "Advance Australia" in respect of soft toys sold under the name "Joy Toys". By letter dated 19 October 1981, such a licence was granted to the defendant subject to the condition, inter alia, that:

"Usage relates to Australian made products only."

In or about March, 1982 a representative of Croner had discussions with a representative of one of that company's major customers, Woolworths Limited, in connection with the possible supply by Croner to Woolworths of plush toys to be supplied as part of a promotion which that company was having in July 1982. Such toys were to include a koala and a kangaroo. The kangaroo was to be named "Matilda" after a kangaroo of the same name which by that time had become the mascot of the XII Commonwealth Games. It was also intended that the koala should form some kind of Commonwealth Games souvenir.

As a result of these discussions, written orders were placed with Croner by Woolworths as follows:

(a) Order 88891470 on 4 May 1982 in respect of 3,576 "plush Matilda Kangaroos" to be supplied no earlier than 31 May 1982 and no later than 4 June 1982 with 1,800 to be delivered into Woolworths' warehouse Sydney, 1,224 in Brisbane, 96 in Fremantle, 96 in Adelaide and 360 in Melbourne;

(b) Order 88887468 dated 7 May 1982 in respect of 3588 "plush Koala Comm Games" to be delivered no earlier than 31 May 1982 and no later than 4 June 1982 with 1,800 to be delivered into Woolworths' warehouse in Sydney, 1,224 in Brisbane, 96 in Fremantle, 108 in Adelaide and 360 in Melbourne;

(c) Order 88887471 dated 12 May 1982 in respect of 1,836 "plush Matilda Kangaroos" to be delivered no earlier than 13 June 1982 and no later than 18 June 1982 with 528 to be delivered into Woolworths' warehouse in Sydney, 780 in Brisbane, 144 in Fremantle, 144 in Adelaide and 240 in Melbourne; and

(d) Order 88887469 dated 12 May 1982 in respect of 1,632 "plush Koala Comm Games" to be delivered no earlier than 13 June 1982 and no later than 18 June 1982 with 540 to be delivered into Woolworths' warehouse in Sydney, 624 in Brisbane, 132 in Fremantle, 144 in Adelaide, 192 in Melbourne.

A total of 5411 kangaroos were supplied by Croner but were not received by Woolworths warehouses until 16, 17, 18, 21, 30 June 1982 and 1 July, 1982. A total of 5205 koalas were also supplied but were not received by Woolworths warehouses until 4, 7, 8, 15, 16, 17, and 21 June 1982. Woolworths stores advertised a sale of the toys so supplied to commence on 12 July 1982.

To each koala supplied there was affixed the following:

(a) A label reading "made in Australia";

(b) A label reading "Advance Australia" and bearing a representation of the flag of the Commonwealth, being an emblem of Advance Australia;

(c) A label reading "this item exceeds all Australian Safety Regulations including the Inflammability Act"; and

(d) A T-shirt upon which appeared the legend "XII Commonwealth Games Brisbane 1982".

To each kangaroo supplied there was affixed the following:

(a) A label reading "made in Australia";

(b) A label reading "Advance Australia" and bearing a representation of the flag of the Commonwealth, being an emblem of Advance Australia;

(c) A label reading "this item exceeds all Australian Safety Regulations including the Inflammability Act"; and

(d) Coloured ribbon to which was attached a XII Commonwealth Games medal.

The further history of the matter is recited in the Special Case as follows. (For reasons which will be developed later, because of the time limit of one year for the commencement of the prosecutions imposed by s.21 of the Crimes Act, 1914, it is necessary to refer with some precision to the times at which the events in question occurred, since the prosecutions were not commenced until either 1 or 3 August 1983 and certain of the conduct charged against the defendant is said to have occurred on Monday, 2 August 1982 and, on the defendant's argument, occurred well before that date.)

"12 (a) On Monday, 2 August 1982, Pamela Elizabeth Ross of 10 Lomar Court, Frankston, Victoria, purchased from Woolworths (Victoria) Limited's Big W store at Frankston, Victoria, one of the toy koalas which had been supplied to Woolworths by Croner pursuant to one or other of the orders referred to . . . (above).

(b) This toy koala had not been displayed and offered for sale by Woolworths' Frankston Big W store prior to Friday, 30 July 1982.

(c) This is the toy koala referred to in summonses Nos. G199, G200 and G202 of 1983.

13 (a) On 30 August 1982, Mervyn Reilly of 55 Waterview Street, Mona Vale, purchased from Woolworths Limited's Big W store at Chullora, New South Wales, one of the toy kangaroos which had been supplied by Croner to Woolworths pursuant to one or other of the orders referred to . . . (above).

(b) This toy kangaroo had not been displayed and offered for sale by Woolworths' Chullora Big W store prior to 2 August 1982.

(c) This is the toy kangaroo referred to in summonses Nos. G201, G203 and G204 of 1983.

14 (a) On 16 September 1982, Stephen James Carbery, an employee of the Trade Practices Commission, inspected at Woolworths Limited's Variety store at Campsie, New South Wales, a number of toy koalas which had been supplied to Woolworths by Croner pursuant to one or other of the orders referred to . . . (above).

(b) These toy koalas had not been displayed and offered for sale by Woolworths Campsie Variety store prior to 5 July 1982.

(c) Included among these toy koalas were those referred to in summonses Nos. G211, G212 and G213.

15 (a) On 16 September 1982, the said Stephen James Carbery inspected at Woolworths Limited's Family Centre store at Bankstown Square, Bankstown, New South Wales, a number of toy koalas which had been supplied to Woolworths by Croner pursuant to one or other of the orders referred to . . . (above).

(b) These toy koalas had not been displayed and offered for sale by Woolworths' Bankstown Square Family Centre Store prior to 28 June 1982.

(c) Included among these toy koalas were those referred to in summonses Nos. G205, G206 and G210 of 1983.

16 (a) On 17 September 1982, the said Stephen James Carbery inspected at Woolworths Limited's Variety Store at Chatswood, New South Wales, a number of toy kangaroos which had been supplied to Woolworths Limited by Croner pursuant to one or other of the orders referred to . . . (above).

(b) These toy kangaroos had not been displayed or offered for sale by Woolworths' Chatswood Variety store prior to 12 July 1982.

(c) Included among these toy kangaroos were those referred to in summonses Nos. G214, G215 and G216 of 1983.

17 (a) On 17 September 1982, the said Stephen James Carbery purchased from Woolworths Limited's Variety store at Chatswood, New South Wales, one of the toy koalas which had been supplied to Woolworths by Croner pursuant to one or other of the orders referred to . . . (above).

(b) This toy koala had not been displayed or offered for sale by Woolworths Chatswood Variety store prior to 12 July 1982.

(c) This is the toy koala referred to in summonses Nos. G207, G208 and G209 of 1983.

18. After dispatching the toys to Woolworths as set forth (above), Croner took no part at all in handling, displaying or selling the toys. Ross, Reilly and Carbery dealt only with employees of Woolworths: Croner had no servant or agent or other representative at any of the stores at which Ross, Reilly and Carbery purchased toys.

19. Each of the toy koalas and kangaroos supplied by Croner to Woolworths Limited pursuant to the orders referred to (above) were made in the Republic of Korea and imported into Australia by Croner.

20. There is not in force in the Commonwealth of Australia nor was there in force in 1981 and/or 1982 and at any material time any statute known as Inflammability Act nor any State or Commonwealth legislation or regulation dealing with the flammability of the toys referred to (above)."

The informations were laid in matters Nos. G199 to G204 inclusive on 1 August 1983; the informations in the remaining matters were laid on 3 August 1983.

It is not necessary to describe or even to summarise all of the charges laid at this stage. It will suffice, for present purposes, to refer to the charges made in Summonses No's G199, G200 and G202 as a representative sample of the contraventions alleged. So far as material, they charge the defendant in these terms:

"(G.199) 1. You . . . did commit an offence constituted by section 79 of the said Act in that in contravention of section 53(a) of the said Act you did in trade or commerce in connexion with the supply of goods falsely represent that the goods had had a particular history.

2. The particulars of the charge are that on or about 2 August 1982 at the Big W store operated by Woolworths (Vic) Limited at the Karingal Hub Shopping Centre situated on the corner of Karingal Drive and Cranbourne Road, Frankston in the State of Victoria you did falsely represent to Pamela Elizabeth Ross that the goods namely a soft stuffed toy koala had been made in Australia by means of a label attached to the said goods which label stated, inter alia, 'Made in Australia' and 'Advance Australia' and depicted thereon a triangular shape containing a stylised version of the Australian National Flag.

(G.200) 1. You . . . did commit an offence constituted by section 79 of the said Act in that in contravention of section 53(a) of the said Act you did in trade or commerce in connexion with the supply of goods falsely represent that the goods were of a particular standard.

2. The particulars of the charge are that on or about 2 August 1982 at the Big W store operated by Woolworths (Vic) Limited at the Karingal Hub Shopping Centre situated at the corner of Karingal Drive and Cranbourne Road, Frankston in the State of Victoria you did falsely represent to Pamela Elizabeth Ross that the goods namely a soft stuffed toy koala were of a particular standard by means of a label attached to the said goods which label stated, inter alia. This item exceeds all Australian Safety Regulations including the Inflammability Act.

(G202) 1. You . . . did commit an offence constituted by section 79 of the said Act in that in contravention of section 53(c) of the said Act you did in trade or commerce in connexion with the supply of goods represent that the goods had sponsorship they did not have.

2. The particulars of the charge are that on or about 2 August 1982 at the Big W store operated by Woolworths Vic Limited at Karingal Hub Shopping Centre situated on the corner of Karingal Drive and Cranbourne Road, Frankston in the State of Victoria did falsely represent to Pamela Elizabeth Ross on that date that the goods namely a soft stuffed toy koala had the sponsorship of Advance Australia (a company limited by guarantee and incorporated under the Companies Ordinance of the Australian Capital Territory) which sponsorship they did not have by means of a label attached to the said goods which label stated, inter alia, 'Advance Australia' and depicted thereon a triangular shape containing a stylised version of the Australian National Flag."

A separate question arises as to the validity of the consent purportedly given pursuant to s.163(4)(b) of the Act to the institution of these proceedings. We shall defer consideration of this point for the time being.

The questions in the Special Case are as follows:

"(1) Is the document set out in paragraph 23 hereof a valid authorisation for the purposes of s.163(4)(b) of the Trade Practices Act, 1974?

(2) Upon the facts stated herein did the defendant commit the offences charged in the informations or any of them at the times and places charged therein?

(3) Upon the facts stated herein were the prosecutions for the offences or any of them barred at the date of the informations by s.21 of the Crimes Act, 1914?"

We shall deal first with questions (2) and (3). It is convenient to deal with these questions together, since, subject to a legal argument on one matter, to be dealt with later, the falsity of the representations complained of is not in dispute: the contest between the parties centres on the time at which the contravention, if any, occurred as a matter of construction of s.53(a) and (c). In particular, the question arises whether, as the defendant contends, the defendant made only one relevant representation in the present context, that is, a representation to Woolworths as to the standard, history and sponsorship of the toys in question, such representation being made, once and for all, no later than the time of the sale and delivery of such goods, that is, at a date well outside the one year time limit imposed by s.21 of the Crimes Act; or whether, as the prosecutor argues, a relevant representation occurred at a much later point of time, being no earlier than the date at which the goods were first displayed and offered for sale to the public by Woolworths or, alternatively, the date upon which the goods were inspected at Woolworths' premises by an officer of the Trade Practices Commission or a member of the public (or were purchased where that occurred).

The position is that if the relevant date, being the date of the false representation charged, is the date upon which the defendant affixed the labels to the goods or even the date upon which the goods were delivered to Woolworths, the charges are all out of time. If the relevant date is the date of first display to the public by Woolworths, the charges in matters G201, 203 and 204 are within time; and, on that hypothesis, the charges in matters G199, 200 and 202 are also within time, having regard to s.36 of the Acts Interpretation Act, 1901 (see below). On the other hand, if the relevant date is the date of inspection by the officer of the Commission or by a member of the public (or of purchase, where that occurred), all the charges are within time.

In order to determine whether any of the prosecutions are statute-barred, it is first necessary to consider precisely how and when, as a matter of law, the defendant made the representations charged.

To illustrate the point, we take, as a random example, matter G200. As has been mentioned, the prosecutor here relies upon a representation as to standard made to a purchaser of a toy koala at the Frankston store on or about 2 August 1982. The information was laid and the summons was filed on 1 August 1983. The toy koala was part of an order placed on either 7 or 12 May 1982 for delivery between 31 May and 18 June 1983 (Special Case para.7(b) and (d)). In fact, the koalas so ordered were received by Woolworths' warehouses on a number of dates between 4 and 21 June 1982 (Special Case para.9). Woolworths advertised a sale of such toys to commence on 12 July 1982 (ibid.). The toy koala here in question was first displayed and offered for sale by Woolworths on Friday, 30 July 1982 (Special Case para.12(a) and (b)). (It is common ground that, if the representation relied upon did otherwise constitute a contravention of s.53(c) of the Act, s.36(2) of the Acts Interpretation Act, 1901, may be applied to extend the time limit imposed by s.21 of the Crimes Act, to avoid any difficulty arising from the intervention of the weekend of Saturday, 31 July and Sunday, 1 August 1982.)

Did the defendant, in the circumstances, make the representation at the time and in the manner charged or was the only representation made by it made at some anterior point of time with the result that the prosecution is now statute-barred? A number of possible positions emerged during argument. According to the defendant, no representation could have been made by it after it ceased to handle the goods, that is, at the latest, 21 June 1982 (Special Case paras. 9 and 18) and thus the information is out of time. Further, the defendant says that neither s.53(a) nor s.53(c) contemplates the concept of a continuing representation operating on each occasion a retail sale is invited by a reseller who is not the defendant's agent for that purpose. Reliance is placed, in this respect, upon the reasoning of Franki, Deane and Fisher, JJ. in Thompson v. Riley McKay Pty. Ltd. (No. 2) (1980) 42 F.L.R. 279, especially some observations of Deane, J., to which reference will be made later. On the other hand, according to the prosecutor, a number of representations of the kind now charged were made by the defendant on a number of occasions, commencing at the wholesale level in the transaction with Woolworths but, importantly for present purposes, continuing representations were made by the defendant on each occasion when the goods were offered for sale to the public by Woolworths. In this connection, the prosecutor relies upon the decision of the English Court of Appeal in Regina v. Thomson Holidays Limited (1974) 1 Q.B. 592.

In Thomson Holidays, the defendants were charged with a breach of s.14(1)(b) of the Trade Descriptions Act, 1968 (U.K.) which makes it an offence for "any person in the course of trade or business . . . (b) recklessly to make a statement which is false as to any of the (specified) matters . . . ". The defendants conducted the business of organising and selling packaged holidays. In 1972, the defendants pleaded guilty to contravening s.14(1)(b) of the Trade Descriptions Act by statements made in a travel brochure. In 1973, the defendants were charged with making the same false statements in the same edition of the brochure. The two prosecutions arose but of separate complaints by persons who had booked holidays relying on the travel brochure. It was held that a plea of autrefois convict was properly rejected because, on the true construction of the Act, the false statements in the brochure were made when the brochure was read by the persons for whom it was intended, so that as many offences were committed as there were readers.

The defendant there argued that, as the offence was committed when a false statement was recklessly made in the course of a trade or business, the task of the court must be to find out what was the act which constituted the making of a false statement in the specified circumstances, and also when it was made, because under the Trade Descriptions Act 1968 time runs against the Crown (see s.19); as a matter of the ordinary meaning of English words a statement is made when, if oral, it is uttered and if in writing when it is published; that the words "in the course of any trade or business" showed that the uttering or publication had to be appropriated to a trade or business; that the fact that a statement when made was communicated to two or more million people did not affect the act of making it; that there was still only one act, even though its effect might be felt over a wide area and for a long time; and that publication to a particular person was relevant solely to prove that the statement had been made and was not an essential ingredient of the offence (see the statement of the argument in the Court's reasons at p.596).

The Court of Appeal did not accept this construction which bears some resemblance to that now advanced by the defendant here. Lawton, L.J., delivering the judgment of the Court said (at p.597):

"In our judgment, when the phrases 'in the course of any trade or business' and 'recklessly to make a statement which is false' are construed in their context, the factor of communication must be considered. The words 'in the course of trade or business' connote dealings between people, and the object of the Act is to prohibit certain kinds of misdescription in the course of dealings between people. Further, anyone who in the course of any trade or business makes a statement does so to people: there would be no point in makeingit unless there was someone upon whom it could have some effect. It follows in our judgment that a statement is made when it is communicated to someone. When that will be will depend on the facts of each case. A travel firm which employed door-to-door salesmen to peddle misleading information about package holidays might make a false statement at every house at which they called; another such firm, putting out misleading information in a television advertisement, would make the statement at the time of the broadcast, which would probably be seen by millions of people. Now the defendants put into circulation amongst the public two million copies of a brochure, each of which contained false statements intended by the defendants to be read by, and to influence, one or more readers. The brochures were intended to do what a door-to-door salesman would do, namely, to give information about holidays; but with the printed word the information would be given when the brochures were read. In our judgment that was when the false statements were made, and they were made to each reader."

A rather different result, although dealing with differently worded legislation, was arrived at by a Full Court of this Court (Franki, Deane and Fisher, JJ.) in Thompson v. Riley Mckay Pty. Ltd. (N0. 2), supra, in a case stated in proceedings alleging contraventions of s.53(a) and (c) of the Act. The decision, and in particular, the reasoning of Deane, J., are much relied on by the defendant here. The informations there related to advertisements of the defendant's goods placed in widely circulated magazines. The informant did not, in one information, allege that the advertisement had been read by any particular person. One question in the case stated asked: "Is it essential in order to make out a charge under s.53(a) . . . to prove that the alleged written false representation was communicated to a specific person?" The question was answered in the negative.

Franki, J. after referring to a number of authorities, including Thomson Holidays, said (at pp. 285-6):

"The section does not specify that the representation must be communicated to a specific person. . . .

However, what must be proved to establish an offence depends on the facts of each particular case. In the case of an advertisement in a journal having sufficient circulation for the court to be satisfied beyond reasonable doubt that it was likely to have been seen by a significant number of readers I do not think that it is necessary to prove that the alleged false representation was communicated to any particular person or persons.

In general, the position might be expected to be different with a brochure. The question of communication is one to be considered."

In our view, his Honour's observations, concerned as they are with the inference of communication to be drawn in the case of an advertisement in a journal, do not assist the defendant in the present case.

Deane, J., agreeing with Franki, J. said (at pp.289-290):

"There is not, however, implicit in the word 'represent' any requirement that the representation actually reach, or be understood by, the intended representee. The act of representing is complete once the subject matter is irrevocably set forth or disseminated upon the course which is intended to lead to the intended representee or representees.

. . .

Where, . . . the initial making of the statement of fact is but a step in a process which is intended to lead up to the ultimate means of communication to the intended representee or representees, the making of the statement will not, in itself, constitute a representation until the statement of fact is set forth or disseminated upon the path of actual communication to the intended representee or representees.< . . . In each of the present matters, the alleged act of representing was complete either at the time when the relevant magazine was first offered for sale to the public or at the time when the relevant magazine, having been so offered for sale, was first purchased by a member of the public. It is unnecessary, for the purposes of the present matter, to form or express any view as to which of those alternatives is to be preferred since it would appear to be common ground that the relevant journal was, in each case, sold in substantial quantities to the public. The alleged representation being completed, at the latest, at the time of such sale, it is unnecessary for the purposes of establishing an offence against s.53(a) or (c) to establish that the allegedly false material was in fact read by anyone at all. Nor does establishing that more than one person read one of the advertisements in the particular issue of the relevant journal provide the basis for a finding of more than one contravention of the relevant paragraph of s.53. The act of representing being complete, at the latest, when the particular issue of the journal was offered for sale and sold, the fact that the advertisement may subsequently have been read by thousands of readers did not involve a new and independent act of representing on either the first or on each occasion that a particular reader happened to read it." (emphasis added)

These observations, particularly the emphasised passage, call for careful consideration in the present case. We shall return to them later.

Fisher, J., in referring to Thomson Holidays, observed (at pp.296-8):

"In my opinion, this statement of the law should not be read as having universal application to all representations, and in particular to alleged contraventions of s.53 of the Act in newspaper advertisements. It was given in a case dealing with representations in a brochure, and whilst there is much to be said for the view that in these circumstances a representation (or statement) is not made until it is read, I see no justification for necessarily applying the reasoning to other situations. In so far as the Court of Appeal considered representations conveyed otherwise than by brochure, its statements are obiter. Moreover I see a number of reasons why it should not be extended to cover the making of allegedly false statements or representations in the course of promoting by advertisement the sale of goods.

. . .

It is my opinion that the specifying in the Australian legislation of the two circumstances in which the false representation may be made is of significance in determining the context in which the word 'represent' is to be construed. A representation may have a different connotation in the context of the supply or possible supply of goods than it has in the context of promoting the supply thereof by any means. Many and varied are the means used in the commercial world to promote and keep in the public eye the trade name and qualities of the trader's goods, and advertisements, whether made by word of mouth, in written material or pictorial representation, sponsorship of sporting and other activities, conduct of competitions and outright donations are but a few of the means used.

The realm of promotion of goods is to my mind far removed from the situation of a seller and possible purchaser, and, in respect of promotion by advertising in particular, I do not see the necessity or justification for requiring proof that the representation came to the notice of a specified representee. A merchant promotes by arranging for an advertisement to be inserted in a newspaper or journal. He does so on a number of assumptions, not necessarily all justified, i.e. that a number of newspapers will be purchased, that some of the purchasers will read his advertisement, and that, in consequence of reading, some of the readers may at some stage be induced to buy his goods."

His Honour then referred to a number of authorities which, he said, confirmed his view that "to the extent that it is correct to equate a representation with an offer, it is not always necessary to establish that the representation reaches the intended representee.".

Here also, his Honour's observations are primarily directed to the question whether, in the case of a newspaper advertisement, communication should be inferred. This point does not arise for decision here.

In the present case, the defendant submits that, on the facts stated, it did not make representations at the times and places charged in the informations to the persons therein named, so that, even if the correct view were that the defendant made false representations as to the matters complained of, it did so at an earlier point of time and in a different context, and the charges are not made out: with the exception of the charges in G201, G203 and G204 (Special Case, para. 13), and, (by virtue of s. 36(2) of the Acts Interpretation Act), with the exception of the charges in G199, G200 and G202 (Special Case para. 12)), the goods in question had all been displayed in Woolworths' stores in June 1982 or at least prior to 30 July 1982, being more than twelve months before the institution of the prosecutions on either 1 or 3 August 1983.

The defendant argues that, since Woolworths was not in any sense its agent, it cannot be vicariously liable for Woolworths' conduct in offering the goods for sale; and that it is wrong to describe or characterise the display or offer of the goods by Woolworths on, for example, 2 August 1982, as a representation made then by the defendant. The defendant says that it last handled the goods on or before 1 July 1982 (Special Case, paras. 9 and 18); that the handling of the goods thereafter by Woolworths or by anybody else on behalf of Woolworths could not be conduct engaged in by the defendant or its agent: and that such conduct should not, therefore, be attributable to the defendant. It submits that, insofar as the charges now made suggest that, on each of the occasions of the display of goods for sale by Woolworths, a representation was made by the defendant, no such representation was made by the defendant in fact or in law. Foresight or contemplation of a possible course of events is not, the argument runs, the same as performing the acts themselves: while it was highly probable that the toys would be displayed in stores and sold, nonetheless, at the time when the defendant delivered the goods to Woolworths, nothing gave the defendant any right, or any kind of power to control whether Woolworths did or did not offer or display the goods to the public with the offending labels affixed; and in the absence of any such power, it would be wrong to attribute that conduct, being the conduct of Woolworths alone, to the defendant.

In our opinion, the defendant is correct in its submission that no agency relationship subsisted between it and Woolworths (see International Harvester Co. of Australia Pty. Limited v. Carrigan's Hazeldene Pastoral Co. (1958) 100 C.L.R. 644 at pp.652-3): their relationship was that of wholesale distributor and retailer of the goods respectively. It was thus primarily a transaction involving the sale of goods rather than agency, although it is possible that a marketing agreement of a more general application could also have come into existence (see Prints for Pleasure Limited v. Oswald-Sealy (Overseas) Limited (1968) 88 W.N. (Pt. 1) (N.S.W.) 375). But, even if the absence of a relationship of principal and agent means that the defendant cannot be vicariously responsible for the actions of Woolworths, it does not necessarily follow that the display of the goods by Woolworths was not part of a matrix of facts which, when taken together, constitute a representation on the part of the defendant of the kind now charged against it.

In our opinion, the determination of the question whether any, and, if so, when a representation of the kind proscribed by s.53(a) or (c) has been made is essentially one of fact. In a case such as this, it is possible that a number of representations as to the goods will be made to a number of persons by the wholesale distributor: he may make representations to the reseller on their wholesale acquisition, although no charge is made here on this account; and he may make representations to the ultimate purchaser even if, as a matter of contract, that purchaser deals only with the retailer. In our opinion, there is no reason of principle, derived from the construction of the statute or otherwise, why the defendant may not be liable for contraventions of s.53(a) and (c) in the event that it be established that it made representations of the proscribed kind to prospective retail purchasers, even if it were also previously engaged in a transaction with Woolworths for the sale by wholesale of those goods and whether or not it made similar representations to Woolworths: the question is whether the defendant made a representation to prospective purchasers by means of the label affixed to the goods upon the occasion when Woolworths displayed them for sale. In this connection, the circumstance that Woolworths may be making a concurrent representation to the same effect is, in our view, irrelevant to the question whether the defendant made such a representation. This is not to say that, ultimately, the position under the Act of Woolworths would be the same as that of the defendant: for example, Woolworths may have the benefit of a defence under s.85(4) of the Act.

In our opinion, when the conduct of the defendant is looked at as a whole and all the surrounding circumstances are taken into account, the statements made in the labels affixed by the defendant to the goods displayed for sale to the public by Woolworths can properly be treated as representations made by the defendant at that point of time. We see nothing artificial or oppressive in such a result: it was the very thing the defendant wished to happen.

It is true, as the defendant submits, that the prospective purchaser never made any direct contact with the defendant. It may also be accepted, for present purposes, as the defendant contends, that Woolworths was at liberty to do what it liked with the goods and that the defendant had no control over Woolworths in this respect. It is also true, as the defendant argues, that the defendant cannot be held vicariously liable for the actions of Woolworths: the parties were at arms length, there was no joint enterprise between them and the defendant had no claim to share in any part of the proceeds of sale of the goods by Woolworths. Nonetheless, the surrounding circumstances indicate that the defendant was seeking to implement a scheme for the marketing of the goods, a central feature of which was the display for sale to the public of goods bearing labels intended to be read by the public. The defendant required a retail outlet to market its product, and Woolworths, by assuming that role in the defendant's marketing plan, acted as an intermediary between the defendant and the ultimate purchasers.

In this sense, the defendant's conduct may be seen as the projection by it of the goods into the course of trade accompanied by representations as to their history, standard and sponsorship, intended for publication, not to its retail outlet, Woolworths, or some other reseller, but to potential purchasers in the form of members of the public who might be expected to see the labels on display with the goods at the retail outlet. In this sense also, the position of Woolworths may be seen, not as the agent of the defendant in any strict sense, but rather as a convenient medium through which the defendant chose to pass its message -- as a channel for communication between the defendant and consumers, the class of persons primarily intended to be protected by s. 53. We think that representations made under these circumstances may properly be characterised as a representation of the kind contemplated by s. 53(a) and (c) and that such representations should be regarded as having been made whenever they are communicated to consumers. In the present case, since Woolworths was chosen by the defendant as its vehicle for the purpose of communicating with the public, the representations in question should be regarded as having occurred whenever Woolworths offered the goods to the public for sale.

Such a conclusion is not, in our view, inconsistent with the decision in Riley McKay. There, as we have noted, the question was whether it was appropriate that an inference be drawn that communication of an advertisement in a newspaper to at least one person occurred upon publication. No doubt, the publication of a newspaper with a mass circulation does pose special problems in the context of a provision such as s.53 (cf. Riley McKay Pty. Ltd. v. Bannerman (1977) 15 A.L.R. 561 per Bowen, C.J., at pp.569-70). This is so notwithstanding that s.79(2) of the Act provides that where a person is convicted of two or more offences of the same or substantially the same nature which occurred at or about the same time, the Court is not entitled to impose fines that in aggregate exceed the maximum fine that would be applicable in respect of one offence by that person. And whilst we can readily appreciate the force of the view expressed by Deane, J. that, in such a case, the act of making the representation complained of should be seen as having been completed on the day of publication, we do not think that such reasoning should be applied here. The present case is concerned with the sale by retail of individual objects over a period of time and can thus be distinguished from the act of placement of an advertisement in a newspaper with a fixed publication date.

In the present proceedings, subject to the application of s.36 of the Acts Interpretation Act, the facts stated in the Special Case indicate that, in every case, the goods in question were either offered for sale to a possible purchaser or sold to an actual purchaser at a time within the period specified by s.21 of the Crimes Act. It is true that, in some cases, the goods were first displayed for sale earlier, at a date outside the one year time limit. But, as has been said, this is immaterial since, in our opinion, the defendant should be seen as making a representation of the kind now impugned on each occasion the goods are offered for sale. Thus, whilst, in such a case, it may be possible to infer communication of the representation to a member of the public at the time when the goods were first offered for sale, it is still open to the prosecution to establish, as it did here, that, on a subsequent date, another representation to the same effect was made to another member of the public.

We have analysed the details of each of the charges now made in the appendix to these reasons.

As has been mentioned, the defendant puts in issue the allegation of falsity in those charges alleging a contravention of s.53(a), the charge being that the defendant "did. . . falsely represent that the goods were of a particular standard." Particulars of the charge are that the label complained of states that "this item exceeds all Australian Safety Regulations including the Inflammability Act". There is no Inflammability Act; and there is no comparable legislation in point (Special Case, para.20). Nonetheless, the defendant says, the statement made in the label is not false: since there is no standard, the position is as if the standard were a nullity and thus nil; and, so the argument runs, the subject goods did exceed such a standard, albeit a nullity.

Two distinct questions arise here: first, did the defendant contravene s.53(a) in these circumstances?; secondly, if so, are the circumstances now relied on within the charge as particularised?

As to the first question, in our opinion, the label should be construed as making, by implication at least, a statement to the effect that legislation requiring a specific standard did exist and applied to the goods (cf. McRae v. Commonwealth Disposals Commission (1951) 84 C.L.R. 377 per Dixon, C.J. and Fullagar, J. at pp.404-410). Insofar as the pretended standard did not exist, the statement was false and, in our view, a contravention of s.53(a) may be committed notwithstanding that a statement is not made explicitly (see Rex v. Kylsant (Lord) (1932) 1 K.B. 442 at pp.448-9).

Secondly, in our view, the statement made on the label is false in the sense particularised, that is, it represents that the goods achieve or are "of" a particular safety standard when, in truth, no such standard exists.

In our opinion, the prosecution has established a contravention of s.53(a) as charged.

Finally, the defendant argues that all of the information must be dismissed by reason of the failure of the informant to comply with s.163(4)(b) of the Act. This provision reads as follows:

"(4) Proceedings before the Court in accordance with this section -

(a) . . . .

(b) shall not be instituted except with the consent in writing of the Minister or of a person authorised by the Minister, by writing under his hand, to give such consents".

The facts relevant to this matter are set out in paras 21 to 24 of the Special Case:

"21. Pursuant to the administrative arrangements ordered by His Excellency the Governor-General and notified in Commonwealth of Australia Gazette No. S46 dated 11 March 1983, Part V of the Trade Practices Act (which includes s.53) is administered by the Minister of State for Home Affairs and Environment whilst Part VI of the Act (which includes s.79) and Part XII (which includes s.163) is administered by the Attorney-General.

22. Commonwealth of Australia Gazette No. S47 dated 11 March 1983 notified the appointment of Senator The Honourable Gareth John Evans to hold the office of Attorney-General and the appointment of The Honourable Barry Cohen M.P. to hold the office of Minister of State for Home Affairs and Environment.

23. On 10 April 1983 Senator The Honourable Gareth John Evans signed a document published in the Commonwealth of Australia Gazette No. S129 dated 9 April 1984 in the following terms:

'I, Gareth John Evans, Attorney-General of Australia hereby authorise the Minister of State for Home Affairs and Environment to give consent, for the purposes of paragraph 163(4)(b) of the Trade Practices Act 1974, to the institution of proceedings in respect of offences against Part V of the Trade Practices Act 1974.'

24. On or about 25 July 1983, The Honourable Barry Cohen, M.P. Minister of State for Home Affairs and Environment, signed a consent to the subject prosecutions . . ."

The defendant submits that the consent was bad. On its proper construction, it says, the authorisation given by the Attorney-General was an authorisation in favour of any person who may, from time to time, hold the office of Minister of State for Home Affairs and Environment; and if it were intended to confer the authority only upon the incumbent Minister, Mr Cohen, he would have been named (see Korczynski v, Quik Foods Pty Limited, 3 May 1984, unreported, at p.7, where Keely, J. so construed this same document).

Paragraph (b) refers to "a person authorised by the Minister. The defendant argues that an ambulatory authority is not an authority to "a person". In Korczynski, Keely, J. accepted a concession to that effect made by counsel for the prosecutor, a concession not repeated in the present case. But, in any event, his Honour was not referred to Owendale Pty Limited v. Anthony (1967) 117 C.L.R. 539 which we regard as being a decisive authority to the contrary.

In Owendale, a question arose as to whether a power to determine a lease had validly been delegated to the departmental officer who signed the notice of termination. Section 22 of the City Area Leases Ordinance 1936 (A.C.T.) empowered the Minister to determine a lease under specified circumstances. Section 6 permitted the Minister to delegate "to any person or authority" all or any of his powers or functions under the Ordinance except the power of delegation. The delegation relied upon was a delegation "to the person for the time being holding or performing the duties of an office specified in the First Schedule to this Instrument all my powers and functions under this Ordinance except the power to make regulations . . . " The officer who signed the notice of termination of lease at that time held one of the offices specified in the first schedule.

Windeyer, J., the trial judge, (at pp.562-563) rejected the argument that the delegation must be to a named person rather than to the holder of an office or to a person performing the duties of an officer. He referred to the decision of Starke, J. in Noble and Bear v. Commonwealth reported only in summary form in (1943) 17 A.L.J. 184 at p.185 and commented:

"Since then, delegations to the holders of specified offices have become commonplace in the administrative system of the Commonwealth; and provided that there be an identifiable person the holder of the office, I consider they are a valid exercise of a statutory power to delegate 'to any person'".

It is true that Owendale did not involve criminal proceedings, but we do not regard this as a valid basis for distinction. The matter was considered in general terms, as a matter of construction. Moreover, the power then under consideration, to determine a lease, may well bear as heavily upon an affected person as the grant of an authority to prosecute, an act which in itself does not affect any rights or impose any liabilities.

There is an additional answer to the argument of invalidity. Section 46(b) of the Acts Interpretation Act provides that, where an Act confers upon any authority power to make an instrument, any instrument so made "shall be read and construed subject to the Act under which it is made, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power".

The word "instrument" is of wide import: see Halsbury's Laws of England, 4th Ed. Vol.12 para.1437, Stroud's Judicial Dictionary Vol.3 pp.1386-1388 and cases cited therein. In the Acts Interpretation Act the word is used to include, at least, any writing designed to carry into effect a statute: see, for example, ss. 33(3), 34B(2)(c), 46(a). The authorisation of the Attorney-General is therefore, an instrument to which s.46(b) applies. If it were otherwise beyond power, because ambulatory in operation, s.46(b) would require it to be read down so as to be a valid authorisation of the Minister holding the specified office at the date thereof. This can be done without distortion of the legal operation or effect of the document: see R. v. Poole ex parte Henry (1939) 61 C.L.R 634 per Dixon, J. at pp 652-653.

Reference was made during the argument to s.34AA of the Acts Interpretation Act which came into operation on 12 June 1984. As we are of the opinion that, for either of the above reasons, the authorisation - construed in an ambulatory fashion - was valid we do not enter into the question whether this section might have afforded yet another reason to support that conclusion. Of course if, contrary to the view of Keely, J. and our own inclination, the authorisation must be read as being limited to the Minister holding office at its date, no difficulty arises: that person was Mr. Cohen who signed the relevant consent.

The questions asked in the Special Case will be answered:

(1) Yes

(2) Yes

(3) No

The proceedings will be remitted to Beaumont, J. for the entry of formal convictions and for consideration of penalty. The defendant must pay the costs of the Special Case.