Bayswater Car Rental Pty Ltd v Department of Employment and Consumer Protection
[2008] WASCA 43
•4 MARCH 2008
BAYSWATER CAR RENTAL PTY LTD -v- DEPARTMENT OF EMPLOYMENT AND CONSUMER PROTECTION [2008] WASCA 43
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 43 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:46/2007 | 12 DECEMBER 2007 | |
| Coram: | McLURE JA PULLIN JA BUSS JA | 3/03/08 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused on grounds 3 and 4 Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BAYSWATER CAR RENTAL PTY LTD DEPARTMENT OF EMPLOYMENT AND CONSUMER PROTECTION |
Catchwords: | Trade practices Fair Trading Act prosecution False representations in advertisements Effect of statement in advertisement that 'conditions apply' Practice and procedure Submission of no case Turns on own facts No new point of principle |
Legislation: | Fair Trading Act 1987 (WA), s 12(1)(g), s 13(1)(a), s 69(1)(a) Criminal Appeals Act 2004 (WA), s 7, s 16 |
Case References: | Australian Competition and Consumer Commission v Dell Computers Pty Ltd [2002] FCA 847; (2002) ATPR 41-878 Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987; (2004) 208 ALR 459 Medical Benefits Fund of Australia v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Neilsen v Hempston Holdings Pty Ltd (1986) 65 ALR 302 R v Bilick (1984) 36 SASR 321 St Lukes Health Insurance v Medical Benefits Fund of Australia Ltd (1995) ATPR 41-428 Sutton v A J Thompson Pty Ltd (In liq) (1987) 73 ALR 233 Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BAYSWATER CAR RENTAL PTY LTD -v- DEPARTMENT OF EMPLOYMENT AND CONSUMER PROTECTION [2008] WASCA 43 CORAM : McLURE JA
- PULLIN JA
BUSS JA
- Appellant
AND
DEPARTMENT OF EMPLOYMENT AND CONSUMER PROTECTION
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JOHNSON J
Citation : DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION -v- BAYSWATER CAR RENTAL PTY LTD [2007] WASC 76
File No : SJA 1024 of 2006
(Page 2)
Catchwords:
Trade practices - Fair Trading Act prosecution - False representations in advertisements - Effect of statement in advertisement that 'conditions apply' - Practice and procedure - Submission of no case - Turns on own facts - No new point of principle
Legislation:
Fair Trading Act 1987 (WA), s 12(1)(g), s 13(1)(a), s 69(1)(a)
Criminal Appeals Act 2004 (WA), s 7, s 16
Result:
Leave to appeal refused on grounds 3 and 4
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M J McCusker QC & Mr C P Stokes
Respondent : Mr P J Urquhart & Mr S L Dworcan
Solicitors:
Appellant : Chris Stokes & Associates
Respondent : Department of Consumer & Employment Protection
Case(s) referred to in judgment(s):
Australian Competition and Consumer Commission v Dell Computers Pty Ltd [2002] FCA 847; (2002) ATPR 41-878
Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987; (2004) 208 ALR 459
Medical Benefits Fund of Australia v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
(Page 3)
Neilsen v Hempston Holdings Pty Ltd (1986) 65 ALR 302
R v Bilick (1984) 36 SASR 321
St Lukes Health Insurance v Medical Benefits Fund of Australia Ltd (1995) ATPR 41-428
Sutton v A J Thompson Pty Ltd (In liq) (1987) 73 ALR 233
Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326
(Page 4)
1 McLURE JA: I agree with Pullin JA that the appeal should be dismissed. I propose to state my own reasons for that conclusion. The facts, reasons for decision below and grounds of appeal are set out in the reasons for judgment of Pullin JA. Those matters are not repeated here unless required for an understanding of these reasons.
2 The appellant was charged with 18 breaches of s 12(1)(g) of the Fair Trading Act 1987 (WA) (FTA) arising from the publication of an advertisement in The West Australian newspaper on 17, 18, 21, 22, 23 and 24 March 2005.
3 Section 12(1)(g) of the FTA materially provides that 'a person shall not, in trade or commerce, in connection with the supply or possible supply of goods … make a false … representation concerning the price of goods or services'. The words 'supply', 'price', and the phrase 'false representation', are defined in the FTA. There was no suggestion in this case that the alleged representation did not concern the supply or price of goods.
4 The advertisement in question was under the heading 'Bayswater Car Rental' and was for '7 day specials'. The price of the 7 day specials varied according to whether (a) the hire was for unlimited kilometres or for city rates and (b) the hire car was a 1 year old or new Toyota Corolla Hatch or a new Corolla Sedan. There were three charges in relation to each advertisement on each date; the three charges related to the price of hiring a 1 year old Hatch, a new Hatch and a new Sedan. The respondent's case at trial was that the appellant had misrepresented the hire charge for city rates during the Easter holiday period. In 2005 that period fell on 25 to 28 March inclusive.
5 The learned magistrate upheld the appellant's no case submission on the basis that the appellant had not made a false representation in the advertisement. The learned judge upheld the respondent's appeal from the magistrate's decision that the appellant had no case to answer. She ordered the matter to be retried before a different magistrate. The appellant appeals from that decision.
6 The primary issue in this appeal, the substance of which emerges from grounds 1 and 2, is whether the evidence adduced by the respondent, taken at its highest, was capable of establishing beyond reasonable doubt that the advertisement contained a representation that was false. That in turn was seen to depend on the meaning of the expression 'Conditions apply' used in the advertisement.
(Page 5)
7 In order to avoid woolly and muddled thinking it is necessary to attempt to formulate with some precision the representation relied on by the respondent. Drawing together the various threads of the respondent's case, I take the claimed representation to have been to the following effect: the appellant's 7 day city rates special would be available to the public at all its nominated branches for a reasonable time after, and commencing from, the date of publication of the advertisement which 7 day period would include the whole or part of the Easter holiday period.
8 The representation in that form does not derive solely from the express words of the advertisement. It also relies on the date of publication of the advertisement the subject of the charge and its proximity to the Easter holiday period.
9 The appellant contended that the representation would not arise because the ordinary reasonable reader would infer from the phrase 'Conditions apply' that one of the conditions would or may be that the 7 day special rates did not apply when the hiring period included Easter or any part thereof.
10 Before addressing the merits of the parties' contentions it is necessary to refer to the legal principles to be applied in determining whether a person has made a false representation for the purposes of s 12(1)(g) of the FTA. In this case the respondent adduced evidence from witnesses relating to the meaning of the advertisement. There was no challenge to the admissibility of the evidence in the form in which it was adduced. However, whilst the evidence may in appropriate circumstances be persuasive, the fact finder (in this case the magistrate) has to determine the question for himself or herself: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177, 202. The court will have regard to the overall impression generated by the advertisement in the context of its publication to itself determine whether it conveys a false representation. That is to be determined objectively by reference to the relevant section of the public to whom it is to be published, in this case the public at large. The question is to be considered by reference to who or to all who come within it, 'including the astute and the gullible, the intelligent and the no so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations': Taco Bell at 202; Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326, 336 (TPC v Optus).
11 It is also necessary to consider how the 'no case to answer' principles in the criminal law apply to the determination of an objective question
(Page 6)
- arising from proven (unchallenged) facts. I agree for the reasons given by Johnson J that the magistrate made material errors of law in the course of his consideration of whether the appellant had made the false representations and failed to ask himself the correct question, namely whether the evidence, taken at its highest, was capable of establishing each element of the offence beyond reasonable doubt.
12 Whether a representation is capable of arising is a question of law. Whether a representation that is capable of arising actually arises, is a question of fact. The magistrate approached the question of whether the appellant had a case to answer as a pure question of fact. However, in situations where a representation has to be objectively proven beyond reasonable doubt, the conduct relied on as the source of the representation is proven and the representation depends on inferences and implications, there is little difference between the question of law (whether the representation is capable of arising) and the question of fact (whether it does arise). Where the scope of a representation depends on inferences and implications, the 'no case' test for circumstantial evidence applies. Accordingly, the no case submission must succeed unless the representation contended for by the respondent is the only reasonable representation capable of arising from the conduct in question. The prosecution witnesses' evidence of their understanding of the advertisement, even if accepted, is not determinative of that issue.
13 I understand the appellant's primary submission to be that a reasonable inference capable of arising from the conduct relied on was that it may be a condition that the advertised rates did not apply for the Easter holiday period. The uncertainty would be clarified on inquiry. Advertising which contains a false representation is caught by s 12(1)(g) of the FTA even if the effect of it is, or is likely to be, dispelled prior to any transaction being effected: Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987; (2004) 208 ALR 459 [58]. That principle applies if there is a relevant misrepresentation. It has no application if a reasonable reader would be left in doubt as to whether or not the offer applied to the Easter holiday period.
14 If the inference contended for by the appellant is capable of arising, there would be no case to answer and the magistrate's decision should stand. However, I do not accept that the phrase 'Conditions apply' is reasonably capable of having the effect contended for. The inference
(Page 7)
- contended for is inconsistent with and undermines the substance of the primary message of the advertisement. Rather, the words 'Conditions apply' prima facie indicate that fulfilment of the conditions will result in the availability of the 7 day special city rates hiring charge for a 7 day period that includes the whole or part of the Easter holiday period. That is, the representation would be to the following effect: upon satisfaction of the appellant's conditions, its 7 day city rates special would be available to the public at all its nominated branches for a reasonable time after and commencing from the date of publication of the advertisement including the whole or part of the Easter holiday period.
15 In this context it is necessary to address the real basis for the magistrate's decision which is to be found in his statement that he 'could almost take judicial notice of the fact that businesses do not usually give special deals at peak periods'. That is a matter for evidence not judicial notice. However, the magistrate asked himself the wrong question. The correct (objective) question is whether the non-availability of the deals at peak periods was capable on the facts in this case of being a condition. The answer to that question may be different if, for example, the advertisements were published in January. However, in answering the question, matters which may cause the relevant section of the public to be cynical or suspicious about the truthfulness of the objectively determined meaning cannot alter that meaning.
16 As to ground of appeal 2, whether or not the judge was correct in her analysis of TPC v Optus is of little consequence. The nature and scope of a representation critically depends on the particular facts of the case under consideration. In any event, her analysis of the case was correct. For these reasons I would dismiss grounds 1 and 2.
17 I agree with Pullin JA that there is no reasonable prospect of the appellant succeeding on ground 3 and leave to appeal should be refused. I also agree with Pullin JA that ground 4 has no reasonable prospects of succeeding. It is predicated on the erroneous assumption that the representation alleged by the respondent would not be false if the 7 day special for unlimited kilometres or city rates was available from at least one of its branches.
18 PULLIN JA: This is an appeal against the judgment of Johnson J allowing an appeal by the respondent in relation to a decision of his Honour Magistrate Tarr, who upheld a no case submission made on behalf of the appellant in relation to charges it was facing in the Magistrates Court.
(Page 8)
The charges
19 The appellant was charged with 18 offences which were in common form. The first charge read:
That on or about 17th March 2005, Bayswater Car Rental Pty Ltd did, in trade or commerce, in connection with the supply by hire of motor vehicles, namely Toyota Corolla 5-door Hatches that were 1 year old, falsely represented the price of hiring those vehicles for 7 days, contrary to s12(1)(g) of the Fair Trading Act 1987 (WA) and as such is guilty of a crime pursuant to s69(1)(a) of the Fair Trading Act 1987 (WA).
20 There were two other charges relating to 17 March 2005, and in relation to each of 18, 21, 22, 23 and 24 March 2005 there were three charges, making a total of 18 charges.
21 The six dates were chosen because they were the dates advertisements were placed in The West Australian newspaper, all under the heading 'Bayswater Car Rental' and followed by a table reading:
(Page 9)
22 The daily rates convert into totals for seven days as follows:
Unlimited km within 500km radius | City rates inc 100 km day | |
|
| $200 $165 |
| $228 $193 | |
|
| $256 $221 |
23 As the case was fought, the three charges in relation to each date related to the alleged falsity of the advertised city rate for each of the three types of vehicle referred to in each advertisement. Thus the six advertisements produced 18 charges.
Legislation
24 Section 12(1)(g) of the Fair Trading Act 1987 (WA) provides that a person should not in trade or commerce, in connection with the supply or possible supply of goods, make a false representation concerning the price of goods. Section 13(1)(a) provides that a statement should be taken to be a false representation if it is false and apparently intended to induce persons to make use of goods on payment of a price. Section 69(1)(a) of the Fair Trading Act provides that a person who contravenes a provision of the Act is guilty of a crime. Johnson J said that the elements of the offence were:
(1) That the appellant placed the advertisement;
(2) That it did so in trade or commerce, in connection with the supply of goods, in this case the hire of motor vehicles;
(3) That the advertisement falsely represented the price of hiring the vehicles for seven days.
25 It is important to note that there was no issue before Johnson J, and no issue before this court, about whether or not intention is a necessary element of the charge, and as a result, it has not been necessary for this court, and it was not necessary for Johnson J, to say anything about whether or not intention does have to be proved on such a charge.
(Page 10)
The evidence relating to the representation and as to the falsity of the representation
26 The advertisements were tendered into evidence and it was not in dispute that the representations referred to in the complaints were made and were made in trade or commerce.
27 Two officers of the respondent department, Mr Prout and Ms Eversden, were called to give evidence about telephone calls they made to each of the four Western Australian places of business referred to in the advertisement. The telephone calls made by Mr Prout were made on 17 March 2005 and the telephone calls made by Ms Eversden were made on 22 March 2005.
28 It is important to note that, in 2005, Easter fell between 25 and 28 March. The respondent's case was that the advertisements contained false representations because the city rate was not available at any of the Western Australian outlets over the Easter period. Johnson J, in her reasons for decision, explained at [63]:
The evidence of the timing of the advertisements is also significant in view of the fact that the special rates applied to a seven day hire. Advertisements placed in a daily newspaper cannot reasonably be expected to be viewed for more than a day or so. Therefore, a newspaper advertisement for a special rate that does not have a specific commencement date can reasonably be expected by the consumer to apply from the date it appeared in the newspaper and to extend for a reasonable time depending on the nature of the product or service being advertised. … the respondent was advertising at a time when the seven day hire special rate would necessarily encroach on some part of the Easter break. In such circumstances, in the absence of a specific commencement date of the offer outside the dates of the Easter period, it is unlikely that any reasonable person would consider that the rates did not apply to Easter, irrespective of the inclusion of the words 'conditions apply'.
(Page 11)
29 The evidence of Mr Prout and Ms Eversden can be summarised as follows:
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Advised that no 'city rates' available over Easter. |
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Informed that 'seven day specials' were not available at Easter. |
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Advised that no 'city rates' available for Easter, December or January as those are 'peak periods'. |
The evidence concerning the appellant's responsibility for placing the advertisement
30 Whether the appellant authorised the advertisements is an issue in the appeal and the evidence on this aspect consisted of:
(a) the advertisements themselves;
(b) the evidence of Ms Eversden that, on 22 March 2005, she commenced each conversation with a branch representative of the
- appellant, with the words that she was looking at the advertisement 'in today's newspaper';
- (c) representatives of the appellant were aware of and quoted the seven day hire rates and the phrase 'city rates' referred to in the advertisements;
(d) the company extract for the appellant which was tendered into evidence and which identified the principal place of business for the company has the same address as one of the branches referred to in the advertisement;
(e) that the directors of the appellant included one Arnoldus Kluck who was a person with whom Mr Prout, an officer of the respondent, had spoken to previously about an almost identical advertisement.
The submission of no case in the trial before the magistrate
31 At the close of the prosecution case, the appellant submitted that there was no case to answer. The submission in summary was:
(a) that there was no evidence that the appellant had authorised the advertisements;
(b) that the evidence revealed that at two of the four branches, vehicles as advertised were available; and
(c) that the advertisements stated that 'conditions apply' and that this meant that a consumer could not necessarily obtain a vehicle at the advertised rates.
The law applicable to a submission of no case to answer
32 The question to be answered on a no case submission is whether the evidence adduced by the prosecution, taken at its highest, is capable of sustaining a verdict of guilty by proof beyond reasonable doubt: Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482, 490 (Malcolm CJ). In cases where circumstantial evidence is relied upon, King CJ in R v Bilick (1984) 36 SASR 321, 337, said that the question becomes:
[O]n the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case of the prosecution, is accurate and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?'
(Page 13)
The magistrate's decision
33 The magistrate rejected the first argument advanced by the appellant; namely, that the appellant was not responsible for the placing of the advertisements. His Honour said:
In relation to the first issue it is clear that the accused is in the car rental business and any objective assessment of the advertisement would lead to the belief that they were made on behalf of the accused and its car rental business. There is no evidence to suggest they were inserted by someone other than the accused and the evidence suggests that the 4 Branches were aware of them and quoted in some cases the rate advertised for the vehicle indicated.
In my view there is an irresistible inference that the accused was responsible for the advertisements.
34 The magistrate perceived that the other two points were encompassed in the third submission made by the appellant and referred to above, that is a submission based on the fact that the words 'conditions apply' appeared in the advertisements. His Honour first referred to some earlier advertisements which had been placed by the appellant in similar form, but which contained alongside the phrase 'conditions apply' the words 'special N/A Dec Jan and Easter'. Advertisements placed in August, September and October 2005 included 'specials N/A peak periods'.
35 His Honour then said:
Although the advertisements the subject [of] these charges do not have a similar provision they are not unconditional.
One obvious condition would have to be availability and the evidence is that at least one branch was fully booked over Easter and another only had one vehicle available.
It seems to me that I could almost take judicial notice of the fact that businesses do not usually give special deals at peak periods when there is a demand for their services. The travel, accommodation and airline industries are good examples.
In this case there was a run of advertisements offering 7 day specials with conditions applying and I would have thought even without the qualification in earlier and later advertisements any interested consumer would be put on notice that conditions applied. There is in my view no distinction between the conditions that might have applied and it would be prudent for any consumer to ask what the conditions were. It would be a nonsense to suggest that the advertisement falsely represented the price of
(Page 14)
- hiring when the rates did not apply to hirers under 25 years for example. When the officers telephoned those branches which the complaints are about they were either told or it was implied that the special rates did not apply to Easter.
There is no suggestion in the evidence that the rates would not have applied for any 7 day period after Easter until December or January. It would not be uncommon for people planning to hire a motor vehicle for a 7 day period to make a booking some time in advance to ensure availability.
I have been referred to an unreported Federal Court case Trade Practices Commission v Optus communication and Optus Mobile Pty Ltd. No NG 459 of 1995 [sic]. That case involved both press and television advertisements where a statement 'in fine print "some exclusions apply" was not sufficient to overcome a misleading impression conveyed by the large headlines in the press and television advertisement'.
This case can be distinguished in my view. The words 'conditions apply' were not in fine print compared with other print in the advertisement.
It is my view that any objective assessment of the advertisements, the subject of these charges, would conclude that the rates advertised were subject to unspecified conditions and not unconditional.
Section 13 of the Act categorises 'False representation' and provides that a statement shall be taken to be a false representation if (a) it is false, or deceives, or if it or any information thereby provided is materially inaccurate.
In my view the information provided in the advertisement was not false, could not deceive and was not materially inaccurate. It was subject to conditions.
- The magistrate therefore upheld the no case submission and dismissed all charges.
The appeal to Johnson J
36 The respondent then appealed to the Supreme Court pursuant to s 7 of the Criminal Appeals Act 2004. The appellant filed a notice of contention, arguing that the magistrate erred in his conclusion about there being evidence of authority on the part of the appellant in relation to the placement of the advertisements. That contention was dismissed by Johnson J. Johnson J upheld the appeal and ordered that the magistrate's decision should be set aside and the matter be remitted for hearing before another magistrate. In relation to the notice of contention, her Honour concluded that the content and number of the advertisements constituted
(Page 15)
- prima facie evidence that they were advertisements of the respondent. Her Honour observed that Ms Eversden referred to the advertisement in every telephone call, that Mr Prout mentioned the advertisement in some of the calls, that on no occasion did any of the respondent's representatives indicate that they were unaware of the advertisements or that they had been lodged by someone other than the respondent. On some occasions the representatives were familiar with the advertisement and aware of the special rates, the company extract indicated that the appellant was registered at one of the addresses shown in the advertisement and Mr Kluck, to whom Mr Prout spoke in relation to earlier advertisements of an almost identical nature, was a director of the respondent. Her Honour concluded that the evidence collectively could support a finding that the appellant was responsible for the advertisements. The notice of contention was therefore dismissed.
37 The respondent in its grounds of appeal challenged the magistrate's conclusion about the effect of the words. Her Honour said that the respondent's or compliance officers' understanding of the term 'conditions apply' was not the issue. Her Honour held that the meaning of the advertisement was to be determined by reference to how a reasonable person would read the advertisement. Her Honour concluded that the decision of Northrop J in St Lukes Health Insurance v Medical Benefits Fund of Australia Ltd (1995) ATPR 41-428, 40,823 made it clear that later advice to those who make inquiry did not alter the misleading nature of a statement. Her Honour concluded that the magistrate erred when he held that an interested consumer would have been put on notice by the expression 'conditions apply' and that a prudent consumer would have asked what they were. Her Honour also said:
I am also of the view that the Magistrate did not understand the effect of the decision in TPC v Optus (supra) and hence its relevance to the decision he was required to make. It was certainly a factor in the Federal Court's determination that the words "some exclusions apply" appeared only in small print and dissolved almost immediately after they could be read. However, it is also the case that the adequacy of that phrase was an equally significant factor. It is not apparent that the Magistrate actually appreciated that, irrespective of the size of the print, a disclaimer of that type was still found to be inadequate for the purposes of alerting the target audience to a significant factor affecting advertised product. I believe that if the Magistrate had properly understood the evidence available on a no case submission as well as the real significance of the decision in TPC v Optus (supra), he may have understood that he was required to consider whether in circumstances where the respondent was offering vehicles for hire for seven days at a special rate where, from the date of the advertisement part of the Easter period would have been included in those
(Page 16)
- seven days, it was necessary to do more than state "conditions apply" to alert prospective customers to the fact that the special rate was not available for the next seven days [59].
- Johnson J therefore allowed the appeal by the present respondent.
Appeal to this court
38 The appellant has been granted leave to appeal pursuant to s 16 of the Criminal Appeals Act 2004 on two grounds which read:
1. Her Honour erred in fact and law in failing to hold that it followed, from the Learned Magistrate's finding that the 'conditions apply' disclaimer included some unstated applicable conditions to the advertised '7 day special' rates, that member of the public were put on notice to enquire what conditions did apply and that those conditions were capable of including that the advertised rates did not apply for the Easter holiday period.
2. Her Honour erred in principle in her consideration of the decision in Trade Practices Commission v Optus communications Pty Ltd (1996) 64 FCR 326 in that she failed to find that
a) it was the manner in which the words 'exclusions apply' appeared in the television advertisements in the decision (appearing only once, at the conclusion of the advertisement, in small print, and as a momentary and fleeting message) that determined that the words of disclaimer failed to alert the reasonable reader that there were significant exclusions
b) the disclaimer 'conditions apply' appeared in the printed versions of the appellant's advertisement in the same size typeface as the balance of the advertisement and thereby the decision had no application
c) it was common cause that some unstated conditions did fall within the appellant's 'conditions apply' disclaimer and in those circumstances the adequacy of the prima facie adequacy of the disclaimer was not disputed
3. Her Honour erred in fact and law in holding that the respondent had produced evidence which, if accepted, established the appellant's responsibility for the advertisements to the criminal standard
(Page 17)
- 4. Her Honour erred in failing to find that even if the Learned Magistrate had applied the correct test in determining a submission of no case to answer (namely, whether the prosecution evidence, taken at its highest, was capable of establishing guilt beyond reasonable doubt), the uncontroverted evidence that vehicles were available at the advertised rates at two of the four branches of the appellant company was conclusive that the advertisements did not constitute a false representation by the company and that the Learned Magistrate's decision that there was no case to answer was therefore correct.
Particulars
- (a) the prosecution witness Prout was advised by an employee of the company's Subiaco branch that a vehicle at the advertised rate was available (T16.5 - T16.7);
(b) the prosecution witness Prout was advised by an employee of the company's Fremantle branch that vehicles were available at the advertised rate (T18.3);
(c) the prosecution witness Eversden was advised by an employee of the company's Fremantle Branch that vehicles were available at the advertised rate (T31.6 - 33.10).
40 Ground 1 contends that her Honour erred in failing to find that the disclaimer 'conditions apply' put consumers on notice to inquire what conditions applied, and that the conditions were capable of including that the advertised rates (city rates) did not apply for the Easter holiday period.
41 That submission must be rejected. A consumer is not obliged or expected to make inquiries to ascertain whether a representation is correct. The fact that a member of the public could have discovered the true position in relation to the representation had he or she made proper inquiries, does not absolve the maker of a false representation from liability. See Neilsen v Hempston Holdings Pty Ltd (1986) 65 ALR 302, 309 and Sutton v A J Thompson Pty Ltd (In liq) (1987) 73 ALR 233, 241. Her Honour was correct in the reasons she gave at [59] as set out above. Other authorities support what her Honour said in that paragraph. See Australian Competition and Consumer Commission v Dell Computers Pty Ltd [2002] FCA 847; (2002) ATPR 41-878 [33]; Medical Benefits Fund of Australia v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1 [42] - [44] and Australian Competition and Consumer
(Page 18)
- Commission v Telstra Corporation Ltd [2004] FCA 987; (2004) 208 ALR 459 [58]. Ground 1 must be dismissed.
42 The second ground of appeal alleges that her Honour erred in her consideration of the decision in Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326. The appellant submits that that case turned on the fact that the word 'exclusions apply' was only in small print and a momentary and fleeting message in a television advertisement. It is true that the Optus case was concerned in one respect with the size of the print and the short time that the words were on the screen. However, Tamberlin J also dealt with the effectiveness of the words 'some exclusions'. His Honour said:
In my view, the reference to 'some exclusions' on the screen is inadequate to alert a reasonable viewer to the fact that mobile to mobile calls are not included or to lead a viewer to investigate such conditions and exclusions.
The 'disclaimer' in the advertisement does not refer to any specific qualification to the offer of 'free local calls' to suggest that it may not cover mobile to mobile calls. The viewer is left with the clear and dominant impression that the advertisement means what it says, namely that up to $52 worth of 'local calls' made on weekends will be without charge (338).
43 At 339 and 340, and at several other places, his Honour referred to the fact that a reasonable viewer would not have appreciated that there was an exclusion which flew in the face of the dominant representation about free local calls or no hint of any exclusion in relation to mobile calls. It is therefore not correct to say, as the appellant does, that her Honour misunderstood the Optus case.
44 Ground 2 must be dismissed.
Ground 3
45 The appellant contends that there was no evidence that the company lodged the advertisements or authorised the lodgement of the advertisements and in oral submissions counsel for the appellant submitted that a 'copywriter' may have left out the type of qualification which had appeared in other advertisements about quoted rates not being available over the Easter period. That, with respect, is speculation. The prosecution case at its highest and including the drawing of all reasonable inferences in favour of the prosecution, did afford evidence capable of establishing beyond reasonable doubt that the appellant caused the advertisements to be published. No error in her Honour's reasons has been demonstrated. There is therefore no reasonable prospect of success
(Page 19)
- in relation to ground 3 and the application for leave to appeal on that ground should be dismissed.
Ground 4
46 Ground 4, and the submissions made in relation to it, appear to have been based on a misapprehension about what the evidence revealed. The contention was that vehicles were available at the advertised rates at two of the four branches, but the submissions appear to have been directed to the availability of vehicles not at 'city rates' but at the 'unlimited km rate'. From the table summarising the evidence given by Mr Prout and Ms Eversden, which is set out above, it is evident that there was evidence given, first by Ms Eversden, that she was told by the Fremantle branch on 22 March that there were no city rates available, told by the Subiaco branch that no city rates were available over Easter and told by the Perth branch that no city rates were available for Easter. Mr Prout was told by the Fremantle branch that a Corolla hatch was only available at the rate applicable to the unlimited rate (not the city rate) at Easter. Mr Prout was told, when he telephoned the Perth office, that the Easter rate was more expensive than another rate which had been quoted and which was greater than any of the advertised rates in the advertisement. He was told by the Bayswater branch that 'seven day specials' were not available at Easter and that to hire a vehicle over Easter would cost $270 for seven days. There was therefore evidence, taking the respondent's case at its highest, that city rate prices were not available at Easter at any of the outlets. Appellant's counsel contended that the evidence of Mr Prout and Ms Eversden was that they were told that vehicles were not available, but the evidence was that while cars were available over Easter, they were not available at city rates. The fact that Mr Prout was told that there were no vehicles available at Bayswater does not neutralise the effect of Ms Eversden's evidence (on a no case submission) about what she was told. Ground 4 therefore has no reasonable prospects of success and the application for leave to appeal on that ground should be dismissed.
47 As a result, the appeal should be dismissed.
48 BUSS JA: I agree with McLure JA.
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