Bluesky Healthcare Pty Ltd v Commissioner for Consumer Protection - [2010] WASCA 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BLUESKY HEALTHCARE PTY LTD -v- COMMISSIONER FOR CONSUMER PROTECTION [2010] WASCA 112

CORAM: BUSS JA
NEWNES JA
JENKINS J

HEARD: 10 FEBRUARY 2010

DELIVERED : 28 JUNE 2010

FILE NO/S: CACR 91 of 2009

BETWEEN: BLUESKY HEALTHCARE PTY LTD
First appellant
DAMIAN BRUCE RYAN
Second appellant
GEORGE MICHAEL PAPOS
Third appellant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BLAXELL J
Citation  :COMMISSIONER FOR CONSUMER PROTECTION -v- BLUESKY HEALTHCARE PTY LTD [2009] WASC 159
File No  :SJA 1104 of 2008

Catchwords:

Statutes - Door to Door Trading Act 1987 (WA) - Consumer expressed interest in product supplied by first appellant and provided telephone number to first appellant's representative at shopping centre display stand - Subsequent telephone call by first appellant to consumer regarding the product - Home visit arranged at which contract of sale entered into - Whether telephone call constituted door to door trading - Whether home visit was 'otherwise than at the unsolicited invitation' of consumer within s 4(1)(b)(ii) of Act

Legislation:

Door to Door Trading Act 1987 (WA), s 3, s 4

Result:

Appeal allowed

Category: A

Representation:

Counsel:

First appellant                :     Mr R J Nash
Second appellant           :     Mr R J Nash
Third appellant              :     Mr R J Nash
Respondent:     Mr J Garas & Ms H L Kerr

Solicitors:

First appellant                :     Wojtowicz Kelly
Second appellant           :     Wojtowicz Kelly
Third appellant              :     Wojtowicz Kelly
Respondent:     Department of Consumer & Employment Protection

Case(s) referred to in judgment(s):

Beckwith v The Queen (1976) 135 CLR 569
Bull v The Attorney‑General for New South Wales (1913) 17 CLR 370
Commissioner for Consumer Protection v Bluesky Healthcare Pty Ltd [2009] WASC 159
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156

BUSS JA: The appellants were charged in a prosecution notice dated 15 May 2008 with offences under the Door to Door Trading Act 1987 (WA) (the Act) in relation to goods supplied by the first appellant (Bluesky) to Mrs Muriel Bacon pursuant to a prescribed contract.
It was alleged that:
(a)the contract did not contain, immediately above the place provided for her signature, the statement, 'This contract is subject to a cooling‑off period of ten days', contrary to s 7(1)(f) of the Act;
(b)Mrs Bacon was not given, at or immediately before the making of the contract, a notice in the prescribed form explaining her right to rescind the contract, contrary to s 7(1)(g)(i) of the Act;
(c)Mrs Bacon was not given, at or immediately before the making of the contract, a notice in the prescribed form that may be used by her to rescind the contract, contrary to s 7(1)(g)(ii) of the Act; and
(d)Bluesky accepted consideration for the goods before the expiration of the cooling‑off period, contrary to s 8(1) of the Act.
The appellants denied having committed any of the offences.
Although they admitted that Bluesky had supplied goods to Mrs Bacon under a contract, the appellants argued that the contract was not entered into in the course of 'door to door trading', as defined in s 3(1) of the Act, and was therefore not a prescribed contract for the purposes of the Act.
After a trial in the Magistrates Court at Perth, Magistrate Calder found each of the appellants not guilty on each of the charges.
The respondent was dissatisfied with the magistrate's decision and appealed to the Supreme Court. Blaxell J heard and allowed the appeal. His Honour decided that the Act did apply to the contract between Bluesky and Mrs Bacon. He remitted the case to the magistrate to be dealt with according to law and for the imposition of penalties.
The appellants have appealed to this court against Blaxell J's judgment.

An overview of the magistrate's findings of fact and the uncontested evidence

An overview of the magistrate's findings of fact and the uncontested evidence at the trial is, relevantly, as follows.
Bluesky manufactures and sells, by retail, electrical adjustable beds and electrical lift and recliner chairs. It carries on business from a showroom in Osborne Park. It also uses, as part of its business operations, a mobile display stand to attract potential customers. Bluesky takes the stand to major shopping centres. The stand remains at a centre for about one week, and is then moved to another centre.
On 31 October 2007, the mobile display stand was at the Park Shopping Centre in Victoria Park. Mrs Bacon, an 82‑year‑old pensioner, spoke to Mrs Lenise Leopold, an employee of Bluesky who was operating the stand.
There was a lengthy conversation between Mrs Bacon and Mrs Leopold. Mrs Bacon expressed an interest in acquiring an electrical lift chair. At Mrs Leopold's request, Mrs Bacon supplied Mrs Leopold with her address and telephone number. Mrs Leopold made a note of these details on a form. She also wrote the word 'keen' to denote that Mrs Bacon was enthusiastic about Bluesky's goods. Mrs Leopold informed Mrs Bacon that she would be contacted by another employee of Bluesky. Mrs Bacon provided her telephone number to Mrs Leopold so that Bluesky could contact her by telephone.
Mrs Leopold sent Mrs Bacon's contact details to Bluesky's office. On 2 November 2007, Mrs Julia McDonald, Bluesky's client service manager, telephoned Mrs Bacon. There was a conversation between them for about 20 minutes. Mrs Bacon sought additional information about Bluesky's goods, and indicated particular interest in an electrical lift chair. She asked Mrs McDonald about the cost of the chair. Mrs McDonald informed her that there were numerous variations and that information as to price could not be given by telephone. Also, Mrs McDonald informed her that there were three options available; that is, a Bluesky representative could attend her home by appointment, Mrs Bacon could come to the Bluesky showroom in Osborne Park by appointment, or brochures with further information about Bluesky's goods could be sent to her by post. Mrs Bacon decided upon a home visit. Mrs McDonald then arranged with Mrs Bacon a time and date for Mr Damian Ryan, the second appellant, to call at her home.
The magistrate found that, as a result of the conversation between Mrs Bacon and Mrs McDonald, Mrs Bacon 'did invite the company to attend on her other than at trade premises for the purpose of enabling the company, through Mr Ryan, to discuss and negotiate the making of a contract for the purpose of … the chair that she did end up choosing'.
Mr Ryan attended at Mrs Bacon's home, as arranged, and brought with him, for demonstration purposes, an electrical lift chair. After negotiations concerning adjustments to the chair and as to the price, Mrs Bacon signed a written contract with Bluesky for the purchase of a similar chair. The contract did not contain the statements and notices required for a prescribed contract under the Act. Mr Ryan accepted payment of a deposit by Mrs Bacon.
Blaxell J set out in his reasons the relevant evidence from the appellants' witnesses as to Bluesky's general trading practice in respect of potential customers who approached Mrs Leopold at the mobile display stand. His Honour said that although the magistrate did not make any particular findings in relation to this evidence, it was clear that he accepted that the appellants' witnesses were honest and reliable. This characterisation of the evidence of these witnesses was not challenged before this court.
Blaxell J summarised the evidence of the appellants' witnesses, as follows:
Their evidence shows that the contact details which Mrs Leopold obtained from any potential customer were recorded on a form which was faxed to Bluesky's office at the end of the day. There was no other communication or discussion between Mrs Leopold and anyone at the office, and the information contained in the form was very limited. Included in that information was a notation whether the person who had approached the display stand was interested in a Bluesky product personally, or for another person. According to Mrs Leopold, '50% of the time' the inquiry 'would be for someone else' (AB 122).
The faxed forms were received at Bluesky's office by Mrs McDonald and she would either distribute the forms to other staff for them to follow up, or telephone potential customers herself. On average, Mrs McDonald made between 10 and 30 such telephone calls per day (AB 137), and the purpose of each call was to:
[A]scertain that I am speaking to the individual that was making the inquiry, to try and get more details on what they were actually looking for; what information they wanted; what they wanted the product to do for them. (AB 132)
Mrs McDonald would also 'ascertain that they did show genuine interest in a product' (AB 137).
No pricings or costings for a particular product were given over the telephone. The reason for this was that there were very many options for the customisation of each product to meet the needs of particular customers (AB 134). Instead, and in response to any query about cost, Mrs McDonald would state:
You need to speak to someone more qualified than I am to be able to give you those details. (AB 139)
Mrs McDonald would then give the potential customer the three options of coming into the showroom, making an appointment for a home visit, or having brochures sent to them. The latter option was usually chosen if the individual 'just wanted more information', for example when 'they might be inquiring for a relative or a friend' or might need the product themselves 'five years down the track' (AB 133). There was also the fourth possible option that the person at the other end of the line was not interested in pursuing the matter at all which would 'be the end of it' (AB 79).
The majority of those who wanted an appointment with a company representative could not come to the showroom because they did not have transport, could not handle the traffic, or lived too far away (AB 137). Most of them would choose the option of a home visit, and the time that Mrs McDonald allocated for each such appointment was two hours (AB 28 ‑ 29). Accordingly, and in order to avoid a waste of valuable time and resources, it was important that the potential customer wanted the salesman to come (AB 95) [20] ‑ [25].
Mr Ryan gave evidence to the effect that Bluesky employees who operate the mobile display stand are instructed not to provide any information about price and only very limited information about the goods available for purchase. He said, relevantly, in evidence‑in‑chief:
NASH, MR: What's the authority given to the person who mans the booth or the stand … ? … [T]heir job is to try and help the clients with their inquiries, so they give them small amounts of information about the name of the company, how long it's been going, the sorts of things that we do and make and the services that we offer. They are not experienced or trained to prescribe equipment, so they can't say to someone, 'This is the type of bed you need or this is the type of chair you need.' If someone is wanting to know, you know, what type of equipment do you want to do, their job is to get their details and pass ‑ bring them back to the office so that our customer service manager can then follow through that inquiry. The same goes if they ask any questions about pricing, like, how much does a bed cost or how much does a chair cost. Again, the [sic] are not trained in the pricing of the equipment so again they would be required to take the person's contact details and make sure that someone followed them [up] to try and provide them with that information (ts 70 ‑ 71). (emphasis added)

The magistrate's decision and reasoning

The magistrate dismissed the charges on the basis of the following findings and reasoning:
(a)Mrs Bacon, of her own volition, knowingly and willingly attended Bluesky's display stand.
(b)Mrs Bacon gave her telephone number and other personal details to Mrs Leopold in the expectation that they would be used by Bluesky to contact her.
(c)When Mrs McDonald spoke to Mrs Bacon by telephone, Mrs McDonald informed her of the three options, but did not 'in any way ask Mrs Bacon whether if [sic] she wanted to take advantage of any of the options'.
(d)Mrs Bacon would have understood that she was being informed of three options, and she chose the option of a home visit.
(e)But for s 4(2)(b) of the Act, it could not be said that Mrs McDonald solicited an invitation from Mrs Bacon for a representative of Bluesky to attend at Mrs Bacon's home.
(f)Mrs McDonald's telephone call to Mrs Bacon constituted the initiation of a communication between Bluesky and Mrs Bacon that led to Mrs Bacon inviting Bluesky's representative to attend at her home and, accordingly, s 4(2)(b) applied. Therefore, the invitation could not be regarded as unsolicited.
(g)Mrs Bacon had already been identified by Bluesky as a person who may be prepared to enter into a contract with Bluesky as a result of her attendance at the display stand and her provision of her personal details.
(h)It could not be said that Mrs McDonald's telephone call to Mrs Bacon was for the purposes of 'seeking out' a person in the sense used in the definition of 'door to door trading' in s 3(1) of the Act.
(i)Bluesky's trading practice of making telephone calls was therefore not a trading practice within the scope of the definition of 'door to door trading'.

Blaxell J's decision and reasoning

Blaxell J allowed the respondent's appeal on the basis of the following findings and reasoning:
(a)The answer to the question whether Mr Ryan attended at Mrs Bacon's home in the course of a trading practice of Bluesky, under which a person makes telephone calls seeking out persons who may be prepared to enter, as consumers, into contracts for the supply of goods, did not turn on a consideration of the facts surrounding the transaction entered into with Mrs Bacon, but rather on a consideration of Bluesky's trading practice as a whole [39].
(b)Although sometimes it was determined before the making of the telephone call that the person being contacted may be a person prepared to enter into a contract, often it was the case that it was the telephone call itself which established whether there was a genuine interest in the product [41].
(c)Bluesky's 'general trading practice' established that Mr Ryan attended at Mrs Bacon's home in the course of 'door to door trading' [43].
(d)On the basis of Mrs Bacon's personal circumstances, the offer of the three options was made in circumstances where she was likely to accept the option of a home visit and, accordingly, Bluesky, in effect, solicited from her the selection of that option [47].
(e)Bluesky's mobile display stand, or alternatively Mrs Leopold's request for Mrs Bacon's personal details, constituted the initiation of the communication between Mrs Bacon and Bluesky which resulted in the invitation from Mrs Bacon [50] ‑ [54].

The appellants' grounds of appeal

The appellants rely on three grounds of appeal.
Ground 1 alleges that Blaxell J erred at law in finding that the contract between Bluesky and Mrs Bacon was entered into in the course of 'door to door trading', as defined in s 3(1) of the Act, and was therefore a contract to which the Act applied by virtue of s 4.
Ground 2 alleges that Blaxell J erred at law and in fact in dismissing the appellants' contention that the magistrate should have found on the evidence that Mr Ryan attended at Mrs Bacon's home at her unsolicited invitation and therefore, by virtue of s 4(1)(b)(ii), the Act did not apply to the contract.
Ground 3 alleges that Blaxell J erred at law and in fact in rejecting the appellants' contention that the magistrate had erred at law and in fact in holding that s 4(2)(b) operated to deem that the invitation to attend Mrs Bacon's home was not unsolicited.

The respondent's notice of contention

The respondent has filed a notice of contention. In the notice, the respondent contends that even if Blaxell J erred:
(a)as alleged in ground 2 of the appeal, Blaxell J should have found (and allowed the appeal) on the basis that, as a matter of fact, the mere presentation by Mrs McDonald on behalf of Bluesky of the option of a home visit (even though presented with other options) solicited Mrs Bacon's invitation to attend at her home; and
(b)as alleged in ground 3 of the appeal, Blaxell J should have found (and allowed the appeal) on the basis that, as a matter of fact and law, Mrs Bacon's invitation to attend at her home should not have been regarded as unsolicited by reason of s 4(2)(b) because Mrs McDonald, on behalf of Bluesky, initiated the telephone communication from which the invitation arose.

An overview of the relevant provisions of the Act

Section 4 of the Act comprises subsections (1), (2), (3) and (4).
By s 4(1):
Subject to this section, this Act applies to a contract for the supply of goods or services to a consumer (whether or not the law of Western Australia is the proper law of the contract) if the following conditions are satisfied ‑
(a)negotiations leading to the formation of the contract (whether or not they are the only negotiations that precede the formation of the contract) take place between the consumer and a dealer in each other’s presence in Western Australia at a place other than trade premises of the supplier; and
(b)the dealer attends at that place ‑
(i)in the course of door to door trading; and
(ii)otherwise than at the unsolicited invitation of the consumer.
Section 4(2) provides:
For the purposes of subsection (1)(b) ‑
(a)in determining whether an invitation is solicited or unsolicited, any solicitation by way of advertisement addressed to the public or a substantial section of the public shall be disregarded; but
(b)except as provided in paragraph (a), where an invitation arises from a communication initiated by the supplier or dealer, or a person acting on behalf of the supplier or dealer, the invitation shall not be regarded as unsolicited.
Section 4(3) is not relevant for the purposes of this appeal.
By s 4(4), in proceedings in which it is alleged that a contract for the supply of goods or services is a contract to which the Act applies, the contract shall be presumed to be such a contract in the absence of proof to the contrary.
The definitions of 'dealer', 'door to door trading', 'supplier' and 'trade premises' in s 3(1) of the Act read:
dealer means a person who, in the course of door to door trading ‑
(a)enters into negotiations with another person with a view to the making of a contract for the supply of goods or services to that other person; or
(b)calls on another person for the purpose of entering into such negotiations,
(whether or not that person is or is to be the supplier of the goods or services);
door to door trading means the trading practice under which ‑
(a)a person ‑
(i)goes from place to place; or
(ii)makes telephone calls,
seeking out persons who may be prepared to enter, as consumers, into contracts for the supply of goods or services; and
(b)that person or some other person then or subsequently enters into negotiations with those prospective consumers with a view to the making of such contracts;
supplier in relation to a contract or proposed contract for the supply of goods or services, means the person by whom the goods or services are, or are to be, supplied under the contract or proposed contract;
trade premises, of a supplier, means premises that constitute an established place of business of the supplier, or an agent of the supplier.

By s 3(2), in the Act, a reference to negotiation of a contract to which the Act applies is a reference to negotiation of a contract that would, on its formation, be a contract to which the Act applies.
The definitions of 'dealer' and 'door to door trading' in s 3(1) are interrelated in that a 'dealer' is defined to mean a person who, 'in the course of door to door trading', engages in specified conduct.
The definition of 'door to door trading' refers to the 'trading practice' under which, amongst other things, a person 'goes from place to place' or 'makes telephone calls' seeking out persons who may be prepared to enter, as consumers, into contracts for the supply of goods.
However, the criteria in s 4(1) for determining whether, relevantly, a contract is one to which the Act applies, are not concerned with the making of telephone calls. Rather, the focus of the criteria is upon, relevantly, whether:
(a)negotiations leading to the formation of the contract take place between the consumer and a dealer in each other's presence at a place other than the trade premises of the supplier; and
(b)the dealer attends at that place in the course of 'door to door trading' and otherwise than at the unsolicited invitation of the consumer.
It is common cause between the parties that Bluesky entered into a contract with Mrs Bacon for the supply of goods to her, Bluesky was a 'supplier' and Mrs Bacon was a 'consumer' (each as defined in s 3(1) of the Act), and negotiations leading to the formation of the contract took place between Mrs Bacon and Bluesky in each other's presence in Western Australia at a place other than trade premises of Bluesky (namely, at Mrs Bacon's home).
Accordingly, subject to s 4, the Act applied to the contract between Bluesky and Mrs Bacon if:
(a)Bluesky was a 'dealer', as defined in s 3(1); and
(b)Bluesky attended at Mrs Bacon's home:
(i)in the course of 'door to door trading', as defined in s 3(1); and
(ii)otherwise than at the unsolicited invitation of Mrs Bacon.

Was Bluesky a 'dealer' as defined in s 3(1)?

The definition of 'dealer' in s 3(1) means a person who, in the course of the trading practice of 'door to door trading', as defined, enters into negotiations with a specific person with a view to the making of a contract for the supply of, relevantly, goods to that person or calls on a specific person for the purpose of entering into such negotiations. That is, a 'dealer' is defined by reference to negotiations or proposed negotiations entered into by a person in the course of the trading practice of 'door to door trading' with a specific person, with a view to the making of a contract.
Bluesky was a 'dealer' as defined in s 3(1) if, relevantly, in the course of 'door to door trading' it:
(a)entered into negotiations with Mrs Bacon with a view to the making of the contract which was in fact made between them; or
(b)called on Mrs Bacon for the purpose of entering into such negotiations.
There is no doubt that Bluesky entered into negotiations with Mrs Bacon with a view to the making of the contract which was in fact made between them and that it called on her for that purpose.
The crucial question, for the purposes of the definition of 'dealer', is whether Bluesky attended at Mrs Bacon's home in the course of 'door to door trading', as defined in s 3(1).

Did Bluesky attend at Mrs Bacon's home in the course of 'door to door trading' as defined in s 3(1)?

The definition of 'door to door trading' in s 3(1) means a trading practice under which a person goes from place to place or makes telephone calls seeking out persons who may be prepared to enter, as consumers, into contracts for the supply of, relevantly, goods, and that person or some other person then or subsequently enters into negotiations with those prospective consumers with a view to the making of such contracts.
The trading practice in question has features which operate before any contracts for the supply of, relevantly, goods are entered into.
The definition of 'door to door trading' is general in its description of the trading practice. It is not concerned with seeking out a specific person or entering into negotiations with a specific person in the course of the trading practice.
The determination of whether Bluesky attended at Mrs Bacon's home in the course of 'door to door trading' requires the consideration of two issues.
First, when Bluesky attended at Mrs Bacon's home, did its business of selling, by retail, electrical adjustable beds and electrical lift and recliner chairs include a 'trading practice' under which, relevantly:
(a)a representative(s) made telephone calls 'seeking out persons who may be prepared to enter, as consumers, into contracts for the supply of goods'; and
(b)that representative(s), or some other person(s), then or subsequently, entered into negotiations with those prospective consumers with a view to the making of such contracts.
This issue is general in its nature (that is, not specific to Mrs Bacon) and involves an analysis of Bluesky's business operations to determine whether its business included the 'trading practice' in question. This trading practice need not have been the sole or predominant means by which Bluesky carried on its business.
Secondly, if, at the material time, Bluesky's business included such a trading practice, did Bluesky, 'in the course of' that practice:
(a)by Mrs McDonald, in her telephone call to Mrs Bacon, 'seek out' Mrs Bacon as a person 'who may be prepared to enter', as a consumer, into a contract for the supply of goods; and
(b)by Mr Ryan, enter into negotiations with Mrs Bacon, at her home, with a view to the making of such a contract.
This issue is specific in its nature (that is, specific to Mrs Bacon) and involves an analysis of the interaction between Bluesky and its representatives on the one hand and Mrs Bacon on the other, to determine whether the conditions in pars (a) and (b) of the definition of 'door to door trading' were satisfied in relation to the contract made between Bluesky and Mrs Bacon.
Central to the consideration of both issues is the meaning to be ascribed to the words 'seeking out' in par (a) of the definition of 'door to door trading'. The relevant ordinary meaning of those words, in isolation, is 'to make search or inquiry'. See The Macquarie Dictionary, (4th ed 1280); Shorter Oxford English Dictionary (5th ed, 2738).
The words 'seeking out' in par (a) of the definition must not, however, be construed in isolation, but in the context of a person going from place to place or making telephone calls 'seeking out persons who may be prepared to enter, as consumers, into contracts for the supply of goods … ' (within par (a)) and negotiations being entered into with those potential consumers with a view to the making of such contracts (within par (b)), and by reference to the underlying purpose or object of the Parliament in regulating this trading practice.
The 'seeking out' with which the definition of 'door to door trading' is concerned is searching for or inquiring of persons who 'may be prepared' to enter, as consumers, into contracts for the supply of, relevantly, goods.
Whether a person 'may be prepared' (that is, may be willing) to enter, as a consumer, into a contract for the supply of goods will often depend on the particular terms of the contract. The price payable for the goods will frequently be the most significant term.
If a person contacts, or is contacted by, a dealer, and the person expresses a degree of interest in entering, as a consumer, into a contract for the supply of goods, the person may then be regarded, in a sense, as having been 'sought out'. But, in my opinion, that is not the sense in which the words 'seeking out' in par (a) of the definition of 'door to door trading' are used.
I consider that an initial contact with a person, and his or her expression of a degree of interest in acquiring goods, does not preclude any subsequent contact by the dealer with the person, by telephone or by going to the person's place, from being characterised as 'seeking out' that person as someone who may be prepared to enter, as a consumer, into a contract for the supply of goods. In other words, in my opinion, a dealer may seek out a person on further or additional occasions after an earlier occasion on which the person has contacted, or has been contacted by, the dealer, and he or she has on the earlier occasion expressed a degree of interest in entering, as a consumer, into a contract for the supply of goods. My reasons are as follows.
First, the definition of 'door to door trading' is not concerned merely with identifying persons who may be prepared to enter, as consumers, into contracts for the supply of, relevantly, goods. It is also concerned with those persons entering into negotiations with a view to the making of such contracts. Secondly, negotiations for this purpose may differ significantly, from case to case, in their nature and characteristics. Some negotiations may be brief and culminate almost immediately in the formation of contractual relations. Some negotiations may be protracted and involve substantial haggling before a final agreement is concluded. And some negotiations may be intermittent, fluctuating in their progression, and ultimately come to nothing. Thirdly, a narrow construction of the definition, which excludes from its ambit and the protection of the Act a person who has expressed to a dealer some limited or passing interest in entering, as a consumer, into a contract for the supply of goods, would significantly circumscribe the beneficial purpose and operation of the Act. This is especially the case where the person who has expressed some limited or passing interest has not been informed by the dealer of the terms on which the supplier is willing to sell the goods, including the price. Fourthly, the apparent object of the Parliament was to extend the protection afforded by the Act to a prospective consumer who has previously expressed to a dealer a degree of interest in entering into a contract for the supply of goods, and the dealer then acts on that knowledge (perhaps repeatedly) by going to the consumer's place or making a telephone call to the consumer for the purpose of entering into negotiations with a view to the making of such a contract. The general scheme of the Act including, in particular, the protection for consumers embodied in pt II in relation to prescribed contracts, recognises that consumers who enter into contracts for goods or services at a place other than the trade premises of the supplier are at a disadvantage in deciding whether and, if so, on what terms to acquire the goods or services. For example, greater assertiveness may be required for a consumer to terminate negotiations in his or her home and demand that the representative of the dealer leave and not return than for the consumer to terminate negotiations at the supplier's trade premises by walking out the door.
As to the first issue, in my opinion, when Bluesky attended at Mrs Bacon's home, its business of selling, by retail, electrical adjustable beds and electrical lift and recliner chairs did include a 'trading practice' of the kind described in the definition of 'door to door trading'.
Its representatives made telephone calls 'seeking out', in the sense which I have decided is correct, persons who may be prepared to enter, as consumers, into contracts for the supply of goods. The class of persons in question were those who attended from time to time at Bluesky's mobile display stand and provided their personal details to Bluesky's employee in circumstances where Bluesky's business method involved not providing any information at that stage about the likely terms of any contract for the supply of its goods, including any information as to price.
Also, some other representatives of Bluesky subsequently entered into negotiations with those prospective consumers who had attended the mobile display stand, with a view to the making of such contracts.
As to the second issue, Bluesky, 'in the course of' this trading practice:
(a)by Mrs McDonald, in her telephone call to Mrs Bacon, 'sought out' (in the sense which I have decided is correct) Mrs Bacon as a person 'who may be prepared to enter', as a consumer, into a contract for the supply of goods; and
(b)by Mr Ryan, entered into negotiations with Mrs Bacon, at her home, with a view to the making of such a contract.
The telephone call and the negotiations occurred 'in the course of' the relevant trading practice (that is, they were aspects of that practice) in that when Mrs Bacon attended at the mobile display stand Mrs Leopold, in accordance with Bluesky's business method, did not provide any information to Mrs Bacon about the terms on which it would or might be willing to supply an electrical lift chair, including any information as to price. As a result, whether Mrs Bacon was a person who was prepared (or willing) to enter into the relevant contract was not established, for the purposes of the definition of 'door to door trading', until Mr Ryan attended at Mrs Bacon's home and provided her with that information, and an agreement was made. Before this time, Bluesky continued 'seeking out' Mrs Bacon as a person who 'may be prepared' to enter, as a consumer, into a contract for the supply of an electrical lift chair.

Did Bluesky attend at Mrs Bacon's home otherwise than at the unsolicited invitation of Mrs Bacon?

The determination of whether Bluesky attended at Mrs Bacon's home otherwise than at her unsolicited invitation requires the examination of two questions.
First, whether Bluesky, by Mr Ryan, attended at Mrs Bacon's home 'otherwise than at the unsolicited invitation' of Mrs Bacon, within the ordinary meaning of those words in s 4(1)(b)(ii).
Secondly, if Bluesky, by Mr Ryan, attended at Mrs Bacon's home 'at the unsolicited invitation' of Mrs Bacon, within the ordinary meaning of those words in s 4(1)(b)(ii), did that invitation to Bluesky to attend at Mrs Bacon's home arise from a communication initiated by Mrs McDonald, on behalf of Bluesky, within the meaning of s 4(2)(b)?
As to the first question, in my opinion, the ordinary meaning of the words 'otherwise than at the unsolicited invitation' of the consumer is that the invitation in question was not asked for by the dealer.
In my opinion, the proper interpretation of the content of the telephone call from Mrs McDonald to Mrs Bacon, for the purpose of determining whether Mr Ryan attended at Mrs Bacon's home 'otherwise than at the unsolicited invitation' of Mrs Bacon, within the ordinary meaning of those words, is to be carried out by ascertaining what a reasonable person would have understood from the language used by the parties. The fact that, as a result of Mrs Bacon's age, mobility difficulties and other personal circumstances, she was likely to select the home visit does not, in my opinion, require that Mr Ryan's attendance at her home be characterised as 'otherwise than at the unsolicited invitation' of Mrs Bacon, within the ordinary meaning of those words. The proper interpretation of the content of the telephone call is that Mrs McDonald, on behalf of Bluesky, did not ask Mrs Bacon for an invitation for Mr Ryan to attend at her home. Mrs McDonald merely conveyed to Mrs Bacon three options. The option of a home visit was one of these options but, critically, Mrs McDonald did not suggest that Bluesky had any preference for this over the other options.
I am therefore of the opinion that Bluesky, by Mr Ryan, attended at Mrs Bacon's home 'at the unsolicited invitation' of Mrs Bacon, within the ordinary meaning of those words in s 4(1)(b)(ii).
As to the second question, by s 4(2)(b), relevantly, for the purposes of s 4(1)(b), where an invitation 'arises from a communication initiated by the supplier or dealer, or a person acting on behalf of the supplier or dealer, the invitation shall not be regarded as unsolicited'.
The telephone call from Mrs McDonald to Mrs Bacon was a communication initiated by Mrs McDonald on behalf of Bluesky as the supplier or dealer. In my opinion, Mrs Bacon's invitation for Mr Ryan to attend at her home 'arose from' this communication, in that the invitation resulted or proceeded from the content of the communication initiated by Mrs McDonald; in particular, from the three options which she outlined and offered to Mrs Bacon.
I am therefore of the opinion that, pursuant to s 4(2)(b), Bluesky, by Mr Ryan, attended at Mrs Bacon's home otherwise than at her unsolicited invitation, for the purposes of s 4(1)(b).
For completeness, I should add that Mrs Bacon's invitation for Mr Ryan to attend at her home did not, in my opinion, 'arise from' the interaction between Mrs Leopold and Mrs Bacon at the mobile display stand, within s 4(2)(b). It is true that Mrs Leopold's request for Mrs Bacon's personal details, and Mrs Bacon's provision of her telephone number and other personal details to Mrs Leopold, enabled Mrs McDonald to make the telephone call to Mrs Bacon. But it was Mrs McDonald's telephone call, rather than Mrs Bacon's invitation, which resulted or proceeded from the interaction at the mobile display stand. Any connection between the invitation and that interaction was, at best, indirect and tenuous. It is not reasonable, either in the ordinary use of language or as a matter of common sense, to regard the invitation as having 'arisen from' the interaction at the mobile display stand, especially where there is a direct and strong connection between the invitation and the three options outlined and offered by Mrs McDonald to Mrs Bacon in the subsequent telephone conversation.

Conclusion

For the reasons I have given, Blaxell J was, with respect, correct in allowing the respondent's appeal.

It will be apparent from my reasons that ground 1 and ground 3 fail, although ground 2 has been made out. However, the appellants' success on ground 2 is insufficient to enable it to succeed on the appeal to this court.
Also, it will be apparent from my reasons that par (a) of the respondent's notice of contention, in relation to ground 2 of the appeal, fails, but that par (b) of the notice, in relation to ground 3 of the appeal, has been made out.
I would dismiss the appeal.
NEWNES JA: This is an appeal against a decision of Blaxell J who upheld an appeal by the Commissioner for Consumer Protection against the decision of a magistrate to dismiss four charges against the appellants under the Door to Door Trading Act 1987 (WA) (the Act). The primary judge set aside the decision of the magistrate, convicted the appellants of the charges, and remitted the matter to the magistrate to impose appropriate penalties: Commissioner for Consumer Protection v Bluesky Healthcare Pty Ltd [2009] WASC 159. The appellants contend that the primary judge erred in setting aside the decision of the magistrate.

Background

The material facts are not in dispute and the following account is taken essentially from the facts set out in the decision of the primary judge.
The first appellant (Bluesky) is a manufacturer and retailer of electrical adjustable beds and electrical lift and recliner chairs. The second and third appellants are directors of Bluesky. Bluesky conducts its business from a showroom in Osborne Park and also seeks to attract potential customers by means of a mobile display stand which is placed on a rotational basis in various major shopping centres for approximately one week at a time. The display stand was at the relevant time attended by a Bluesky employee, Mrs Lenise Leopold.
The arrangement was that contact details obtained by Mrs Leopold from any potential customer who approached her at the display stand were recorded on a form which Mrs Leopold faxed to Bluesky's office at the end of the day. There was no other communication or discussion between Mrs Leopold and anyone at the office, and the information contained in the form was quite limited. That information generally included a notation to indicate whether the person who had approached the display

stand was interested in a Bluesky product personally or for another person. According to Mrs Leopold, about half of the enquiries were for another person.

The faxed forms were received at Bluesky's office by the company's client service manager, Mrs Julia McDonald. Mrs McDonald then either distributed the forms to other staff members to follow up or telephoned potential customers herself. On average, Mrs McDonald made between 10 and 30 such telephone calls per day. Mrs McDonald said that after ascertaining that she was speaking to the person who made the enquiry, she would try to obtain more details about what they were looking for, what information they wanted and what they wanted the product to do for them. Mrs McDonald would also ascertain that the person showed a genuine interest in a product. No pricings or costings for a particular product were given over the telephone. Mrs McDonald and Mr Ryan gave evidence that the chairs have to be customised to suit each customer's particular requirements, including such things as the size and shape of the chair, the lifting mechanism, massage and heat options, and fabric (ts 59, 62, 111, 115). In response to any query about cost, Mrs McDonald would tell the person they needed to speak to someone more qualified than she was to provide those details.
If the person called showed genuine interest in a product, Mrs McDonald would give them three options; namely, to come into the showroom, to make an appointment for a home visit, or to have brochures sent to them. The last of those options was usually chosen if the individual simply wanted more information, typically when they were enquiring for a relative or a friend or might need the product themselves only in future years.
The majority of those who chose an appointment for a home visit declined the option of coming to the showroom because they did not have transport, could not cope with the traffic, or lived too far away. Mrs McDonald allocated two hours for each such appointment.
At the material time, the display stand was set up in the Park Shopping Centre in Victoria Park.
On 31 October 2007, one of the people attracted to Bluesky's stand at the Park Shopping Centre was Mrs Muriel Bacon, an 82‑year‑old pensioner. She spoke to Mrs Leopold. During that conversation Mrs Bacon outlined her mobility difficulties, including the fact that she had undergone hip and knee surgery. She expressed interest in acquiring a lift chair. At Mrs Leopold's request, Mrs Bacon provided her contact details, including her address and telephone number. Mrs Leopold recorded these details on the form provided for that purpose and also wrote on the form the word 'keen' to denote that Mrs Bacon had shown enthusiasm for Bluesky's products. Mrs Leopold's evidence that Mrs Bacon was very interested in Bluesky's lift chair (ts 16, 17, 25/11/08) was not challenged in cross‑examination.
Although neither could recall the exact conversation, the magistrate was satisfied that Mrs Leopold informed Mrs Bacon that she would be contacted by someone else from Bluesky. The magistrate found that Mrs Bacon was well aware that Mrs Leopold was the first point of contact and provided her telephone number so that someone from Bluesky could contact her.
The contact details were passed on to Bluesky's office, and Mrs Bacon was telephoned soon afterwards by Mrs McDonald. During that conversation Mrs Bacon sought further information from Mrs McDonald about Bluesky's products and indicated that she was particularly interested in a lift chair. In the course of the conversation, Mrs Bacon said that she was an odd shape and that previous chairs she had purchased had not suited her; she was looking for something specifically to suit her (ts 26, 25/11/08). When Mrs Bacon asked about the cost of a lift chair, Mrs McDonald informed her that there were many variations and that a price could not be given over the telephone. Mrs McDonald informed Mrs Bacon of the three options of a company representative attending her home by appointment, an appointment being made for Mrs Bacon to come into the showroom, or brochures being sent to her by post. Mrs Bacon chose a home visit, and Mrs McDonald then arranged a date and time for the second respondent (Mr Ryan) to call.
Mr Ryan subsequently attended the appointment at Mrs Bacon's home and brought with him a lift chair to demonstrate to Mrs Bacon. Following negotiations as to customisation of the chair and price, Mrs Bacon entered into a written contract for the purchase of a similar chair and paid a deposit. The contract did not contain the statements and notices specified in s 7 of the Act.
Each of the appellants was subsequently charged with four counts under the Act, those being, in effect, that Bluesky supplied goods under a prescribed contract to Mrs Bacon when:
1.the contract did not contain a statement, in the prescribed manner, that the contract was subject to a cooling‑off period of 10 days, contrary to s 7(1)(f) of the Act;
2.Mrs Bacon was not given at or immediately before the making of the contract a notice in the prescribed form explaining her right to rescind the contract, contrary to s 7(1)(g) (i) of the Act;
3.Mrs Bacon was not given at or immediately before the making of the contract a notice in the prescribed form that may be used by her to rescind the contract, contrary to s 7(1)(g) (ii) of the Act; and
4.Bluesky accepted consideration for the goods before the expiration of the cooling‑off period, contrary to s 8(1) of the Act.
The second and third appellants, as directors of Bluesky at the material time, were alleged to be guilty of those offences pursuant to s 20(2) of the Act. It was not in issue on the appeal that if Bluesky was guilty then the second and third appellants were also guilty by virtue of s 20(2).

The relevant statutory provisions

Section 4 of the Act, contained in div 1, provides (relevantly) as follows:
(1)Subject to this section, this Act applies to a contract for the supply of goods or services to a consumer (whether or not the law of Western Australia is the proper law of the contract) if the following conditions are satisfied -
(a)negotiations leading to the formation of the contract (whether or not they are the only negotiations that precede the formation of the contract) take place between the consumer and a dealer in each other's presence in Western Australia at a place other than trade premises of the supplier; and
(b)the dealer attends at that place -
(i)in the course of door to door trading; and
(ii)otherwise than at the unsolicited invitation of the consumer.
(2)For the purposes of subsection (1)(b) -
(a)in determining whether an invitation is solicited or unsolicited, any solicitation by way of advertisement addressed to the public or a substantial section of the public shall be disregarded; but
(b)except as provided in paragraph (a), where an invitation arises from a communication initiated by the supplier or dealer, or a person acting on behalf of the supplier or dealer, the invitation shall not be regarded as unsolicited.
In s 3 of the Act, 'door to door trading' is defined to mean:
the trading practice under which -
(a)a person -
(i)goes from place to place; or
(ii)makes telephone calls,
seeking out persons who may be prepared to enter, as consumers, into contracts for the supply of goods or services; and
(b)that person or some other person then or subsequently enters into negotiations with those prospective consumers with a view to the making of such contracts.
Division 2 of the Act deals with prescribed contracts. A 'prescribed contract' is defined in s 6 to mean (relevantly) a contract to which the Act applies where the total consideration payable by the consumer either was not ascertainable at the time of making the contract or, if ascertainable, exceeded the prescribed amount. It was not in issue that the contract entered into with Mrs Bacon fell within s 6.
Section 7 sets out certain mandatory requirements in respect of a prescribed contract. The relevant provisions are as follows:
(1)The following requirements must be complied with in relation to a prescribed contract -
…
(f)the contract must contain immediately above the place provided for the signature of the consumer the statement
'THIS CONTRACT IS SUBJECT TO A COOLING‑OFF PERIOD OF TEN DAYS' printed in upper case in type not smaller than 18‑point;
(g)the consumer must be given 2 notices at or immediately before the making of the contract -
(i)one being a notice, in the prescribed form, explaining the right of the consumer to rescind the contract; and
(ii)the other being a notice, in the prescribed form, that may be used by the consumer to rescind the contract;
…
(2)If any of the requirements of subsection (1) is not complied with, the supplier and the dealer are each guilty of an offence.
Penalty: $1000
Section 8 provides, relevantly:
(1)If a supplier or dealer accepts any money or other consideration from a consumer under a prescribed contract … before the expiration of the cooling-off period, the supplier and dealer are each guilty of an offence.
Penalty: $1000
It was not in issue that the contract entered into with Mrs Bacon did not contain the requirements specified in s 7(1)(f), s 7(1)(g)(i), or s 7(1)(g)(ii) and nor was it in issue that, if any relevant cooling‑off period applied, Bluesky had accepted money from Mrs Bacon before the expiration of that cooling‑off period, contrary to s 8. The sole issue was whether the contract was one to which the Act applied.

Decision of the magistrate

The magistrate rejected an argument by Bluesky that the invitation to attend Mrs Bacon's home was an 'unsolicited invitation' within the meaning of s 4(1)(b)(ii) and that therefore the Act did not apply.
The magistrate accepted that the invitation by Mrs Bacon to attend her home was not 'solicited' in the ordinary sense of that word. The magistrate found that as a result of the conversation with Mrs McDonald, Mrs Bacon had invited Bluesky to attend at her home for the purpose of negotiating a contract for the purchase of the chair that she ultimately contracted to purchase.
His Honour found, however, that the invitation arose from a communication initiated by Bluesky, being the telephone call made by Mrs McDonald, and therefore, pursuant to s 4(2)(b), the invitation could not be regarded as unsolicited. His Honour rejected an argument that the communication from which the invitation arose was initiated by Mrs Bacon by providing her contact details to Mrs Leopold with an implicit invitation to telephone her. His Honour concluded that the relevant communication was the telephone call from Mrs McDonald which led to the invitation being extended by Mrs Bacon and that telephone call was initiated by Mrs McDonald, on behalf of Bluesky.
His Honour found, however, that Bluesky did not attend Mrs Bacon's home 'in the course of door to door trading' within the meaning of s 4(1)(b)(i). He found that telephone calls made to persons such as Mrs Bacon who had previously attended the mobile stand and provided contact details were not telephone calls 'seeking out persons who may be prepared to enter, as consumers, into contracts for the supply of goods' within the meaning of 'door to door trading' as defined in s 3 of the Act. At the time the call was made those persons had already been identified by their attendance at the mobile stand and by the provision of their contact details to Bluesky as persons who may be prepared to enter into such a contract. Accordingly, the Act did not apply to the contract.
The magistrate dismissed the charges.

Decision of Blaxell J

An appeal by the Commissioner for Consumer Protection against that decision was upheld by the primary judge. His Honour held that the contract was one to which the Act applied.
The primary judge rejected the finding of the magistrate that the contract was not made in the course of door to door trading because the 'seeking out' of Mrs Bacon was at an end before the telephone call was made by Mrs McDonald. The primary judge considered that that reasoning was flawed because there could be continued seeking out. His Honour said:
[The magistrate] construed the definition in such a way that the seeking out of persons who may be prepared to enter into relevant contracts necessarily comes to an end as soon as they are identified as falling into that category. Put another way, there can be no continued 'seeking out' once a person indicates that he or she may be prepared to enter into a contract for the supply of goods.
It seems to me that there is an obvious problem with this construction because it focuses upon the response of each individual person who is sought out rather than on the dealer's trade practice generally. If the construction is correct, it would mean that the question whether the dealer's subsequent conduct was 'door to door trading' would vary from contract to contract dependent upon the initial response of each consumer [34] ‑ [35].
His Honour went on to say that the problem could be illustrated by cases where enquiries were made on behalf of a relative or friend whom the enquirer thinks might be interested in a Bluesky product. In such a case the relative or friend could not be regarded as a person who may be prepared to enter into a contract for the supply of the product. Until Bluesky conducted some further 'seeking out' it could not be known whether the relative or friend may be prepared to enter into a contract. Similarly, where the enquirer might be interested in acquiring a product some years in the future it would be difficult to regard them as a person who may be prepared to enter into a contract.
His Honour considered that the question in this case was whether Mr Ryan had attended Mrs Bacon's house in the course of a trading practice by Bluesky under which it made telephone calls seeking out persons who may be prepared to enter into a contract for a Bluesky product. That did not turn upon the particular facts of the transaction with Mrs Bacon, but on a consideration of Bluesky's trading practice as a whole.
The primary judge noted that on the evidence many people who left their details at the display stand were not prepared to enter into a contract. Some were enquiring on behalf of others, some were thinking of years ahead and others subsequently decided not to pursue the matter. His Honour found that an important purpose of the telephone calls made by Bluesky to a person who had provided their contact details at the mobile stand was to ascertain whether the person had a genuine interest in a product. It was only when that had been ascertained that the options, including a home visit, were offered. His Honour concluded that the role of the telephone calls 'was to form part of a sifting process to determine which persons may be prepared to enter into a contract' [41].
The primary judge concluded that the evidence as to Bluesky's general trading practice clearly established that Mr Ryan called at Mrs Bacon's home 'in the course of door to door trading' within the meaning of the Act.
His Honour dismissed a notice of contention by the current appellants that, contrary to the finding of the magistrate, the telephone call in which the invitation by Mrs Bacon to attend her home arose was 'initiated' by the acts of Mrs Bacon in attending the mobile stand and providing her contact details so that she could be contacted by Bluesky.
His Honour considered that the meaning of 'solicited' had to be determined in light of the relevant circumstances that applied at the time that Mrs Bacon was offered the home visit. His Honour continued:
Those circumstances included the facts that Mrs Bacon was an 82‑year‑old pensioner with mobility difficulties. She was 'keen' to acquire a lift chair, and quite obviously was interested in acquiring it immediately rather than sometime 'down the track'. She lived in Bentley, and because of her age and mobility difficulties, would have experienced some trouble in getting to Bluesky's showroom at Osborne Park.
In all of those circumstances, it was highly unlikely that Mrs Bacon would choose either of the options of attending at the showroom or of having brochures posted to her. These same circumstances were known to Bluesky, and viewed objectively, it was reasonably obvious that Mrs Bacon would end up choosing the option of the home visit.
In my view, it necessarily follows that by offering three options which included two that were likely to be rejected, Bluesky solicited the option that Mrs Bacon in fact chose. For these reasons, I respectfully disagree with the Magistrate's conclusion that the invitation for the home visit was not 'solicited' in the ordinary sense of that word [47] ‑ [49].
The primary judge then turned to the effect of s 4(2)(b) of the Act. His Honour considered that in order to determine who 'initiated' the telephone call in which the invitation to attend Mrs Bacon's home was made, it was necessary to identify the very beginning of the process which resulted in the invitation. He found that the process commenced with the mobile stand which was designed to attract potential customers. His Honour, however, considered it was arguable that the display stand constituted an advertisement addressed to the public within the meaning of s 4(2)(a) and that it should therefore be disregarded. If that were the case, the process was initiated by Mrs Leopold in requesting Mrs Bacon's contact details. His Honour concluded that, in any event, it followed that the telephone call from which the invitation arose was 'initiated' by Bluesky, either by the use of the display stand or by Mrs McDonald's request for Mrs Bacon's contact details so she could be telephoned. His Honour therefore found that by virtue of s 4(2)(b) the invitation could not be regarded as 'unsolicited'.
The primary judge set aside the decision of the magistrate dismissing the charges and convicted the appellants on each charge. His Honour remitted the matter to the magistrate to impose appropriate penalties. The appellants appeal against the decision of the primary judge.

Grounds of appeal

The appellants relied on the following grounds of appeal:
1.The learned judge on appeal erred at law in finding that the contract entered into by the First Appellant with the consumer Mrs Bacon was one entered into in the course of door to door trading as defined by section 3 of the Door to Door Trading Act 1987 ('the Act') and was therefore a contract to which the Act applied by virtue of section 4 of the Act.
2.The learned judge on appeal erred at law and in fact in dismissing the Appellants' contention that the learned magistrate should have found on the evidence that the Second Appellant attended at Mrs Bacon's home at her unsolicited invitation and therefore the Act did not apply to the contract entered into with Mrs Bacon by virtue of section 4(1)(b)(ii) of the Act.
3.The learned judge on appeal erred at law and in fact in rejecting the Appellants' contention that the learned magistrate had erred at law and in fact in holding that the deeming provision in section 4(2)(b) operated to deem that the invitation to attend Mrs Bacon's home was not unsolicited.

Disposition of the appeal

The appeal involves questions as to the proper construction of the Act. The general principles of statutory construction are well‑established and for present purposes can be shortly stated. A statutory provision is to be construed so as to give it the meaning the legislature is taken to have intended it to have. Ordinarily, the words of a statutory provision are to be construed according to their literal or grammatical meaning, but that principle is not to be applied inflexibly. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute, or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].

The Act is clearly of a remedial nature, the dominant purpose being to protect consumers who enter into contracts with dealers or suppliers engaged in door to door trading. On the other hand, the relevant provisions of s 7 and s 8 of the Act are of a penal nature. That brings into conflict two principles of statutory construction; one, the rule that remedial legislation should be construed so as to give the fullest relief which the fair meaning of the language will allow: Bull v The Attorney‑General for New South Wales (1913) 17 CLR 370, 384; and the other, that penal legislation should be strictly construed - albeit, that rule is now perhaps one of last resort: Beckwith v The Queen (1976) 135 CLR 569, 576.
In Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156, - 60#60 the majority of the High Court held (in the context of industrial safety legislation) that in such cases the proper approach is as follows:
[Where] the two principles of interpretation … come into conflict … the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have … In such a context the strict construction rule is indeed one of last resort [11].
Against that background, I turn to consideration of the grounds of appeal.

Ground 1 - Door to door trading

In this case, the Act applied to the contract with Mrs Bacon only if (among other things) Mr Ryan, on behalf of Bluesky, attended Mrs Bacon's home 'in the course of door to door trading' under s 4(1)(b)(i). As set out above, 'door to door trading' is defined to mean, in substance, a trading practice under which a person either physically goes from place to place or makes telephone calls seeking out persons who may be prepared to enter into contracts for the supply of goods, and either then or subsequently enters into contract negotiations with those prospective consumers. In order for the contract with Mrs Bacon to fall within the Act it is therefore necessary that Mr Ryan attended her home pursuant to such a practice. I should say that it was common ground that such a trading practice need not be Bluesky's only, or even predominant, trading practice.
As I have mentioned, the magistrate found that the telephone call made by Mrs McDonald was not 'seeking out persons who may be prepared to enter into a contract for the supply of goods' because at the time the call was made Mrs Bacon had already been identified by her attendance at the mobile stand and by the provision of her contact details to Bluesky as a person who may be prepared to enter into such a contract. The primary judge took a different view. His Honour considered that it was not to the point that Mrs Bacon may have been so identified. The question was whether Mr Ryan attended Mrs Bacon's house in the course of a trading practice under which calls were made to seek out persons who may be prepared to enter into a contract. In order to determine that, it was necessary to have regard, not to the particular case, but the overall trading practice of Bluesky. In this case, calls were made to everyone who had left their contact details at the display stand whether or not they had indicated they may be prepared to enter into a contract. His Honour said:
To my mind, it necessarily follows that the role of the telephone calls within Bluesky's trade practice, was to form part of a sifting process to determine which persons may be prepared to enter into a contract. Sometimes it was determined prior to the telephone call that a person may be prepared to enter into a contract. However, very often, it was the telephone call itself which established that there was sufficient 'genuine interest in a product' to justify the offer of the three options including a home visit [41].
The primary judge considered that the evidence that Bluesky engaged in such a trading practice established that Mr Ryan attended Mrs Bacon's home 'in the course of door to door trading', notwithstanding that Mrs Bacon had already indicated that she may be prepared to enter into a contract. In other words, as I understand it, where there is a trading practice of making telephone calls to seek out prospective customers it is sufficient to show that the telephone call to the consumer in question was made in the course of that overall trading practice, and it is unnecessary to show that the telephone call to that consumer was itself seeking out a prospective customer.
The finding of the primary judge that Bluesky engaged in a practice of making telephone calls seeking out consumers was not the subject of argument on the present appeal. The issue on appeal was confined to the question of whether (contrary to his Honour's conclusion) it was necessary for the respondent to show that Bluesky had attended Mrs Bacon's home in connection with a telephone call to her of that nature.
I consider, with respect, that the primary judge erred in the approach he took. The effect of s 4(1) is that the Act will apply to a particular contract where each of the conditions of s 4(1) are satisfied in respect of that contract. One of those conditions is contained in s 4(1)(b)(i). As I have said, that condition requires (among other things) that the dealer attended the place at which the negotiations leading to the contract took place in the course of a trading practice under which (relevantly) the dealer makes telephone calls seeking out persons who may be prepared to enter into a contract and, then or later, enters into contract negotiations with such of the persons called who show an interest in doing so.
In the present case, it was therefore necessary for the purposes of s 4(1)(b)(i) to show both that Bluesky engaged in a trading practice under which telephone calls were made for the purpose of seeking out persons who may be prepared to enter into a contract, and that Mr Ryan attended Mrs Bacon's home as a result of a telephone call that had been made to Mrs Bacon for that purpose. In my view, it is not to the point that Bluesky engaged in a trading practice of making telephone calls seeking out prospective customers if the telephone call to Mrs Bacon was not itself of that nature. If the telephone call to Mrs Bacon was not made for the purpose of 'seeking out persons who may be prepared to enter into a contract', the contract with her will not fall within s 4(1)(b)(i). In my respectful view, it was not made for that purpose.
In the New Shorter Oxford English Dictionary, to 'seek', as in to 'seek out', is defined to mean 'make a search or inquiry', 'look for, try to obtain'. In the Macquarie Dictionary, 'seek' is defined (relevantly) to mean 'to go in search or quest of', 'to try to find by searching or endeavour', 'to try to obtain', 'to make search or inquiry'. There is nothing to suggest that in the present context 'seek out' bears anything other than its ordinary meaning.
In the present case, Mrs Bacon had attended the display stand and expressed interest in purchasing a lift chair from Bluesky. She was, as described by Mrs Leopold, 'keen'. Mrs Bacon understood, however, that Mrs Leopold was a first point of contact and was able to provide only limited information about the lift chair. The magistrate found, correctly in my view, that the only inference that could be drawn is that Mrs Bacon had provided Mrs Leopold with her telephone number and other contact details so she could be contacted by Bluesky about the provision of such a chair (ts 4). In the circumstances, the subsequent telephone call by Mrs McDonald to Mrs Bacon cannot, in my view, be considered to be a call which was 'seeking out' persons who may be prepared to enter into a contract for a Bluesky product. By the time the telephone call was made, Bluesky was not 'seeking out' Mrs Bacon as a person who may be prepared to enter into a contract; Mrs Bacon had already identified herself as such a person.
It is unnecessary to consider whether, as the magistrate appears to have suggested, the attendance of a person at the display stand and the provision of their telephone number would be sufficient to establish that a subsequent telephone call to that person would not be a telephone call 'seeking out' a person who may be prepared to enter into a contract. Similarly, it is unnecessary to consider whether, as the primary judge appears to have suggested, a telephone call made to a person whose contact details had been provided to Bluesky by a third party would necessarily be a telephone call 'seeking out' a person who may be prepared to enter into a contract. Whether a telephone call is 'seeking out' potential customers, or whether the person called has already made it known that they may be prepared to enter into a contract with the caller for the goods or services, will turn on the particular facts of the case. In light of the myriad of different factual situations which may arise, I think it would be unwise to attempt to state principles of general application.
I should add that I do not consider anything turns on the fact that at the time the telephone call was made Mrs Bacon had little information on the terms of any contract that might be offered by Bluesky for the purchase of the lift chair. That, in my view, was a matter for the subsequent negotiations referred to in subpar (b) of the definition of 'door to door trading'. Nor do I consider that anything turns on the fact that Mrs Bacon expressed her interest in the lift chair and provided her contact details at a display stand rather than at Bluesky's showrooms. It seems to me that as a matter of principle, the result would be no different.
The position may well have been otherwise, however, had the telephone call been made, not about the type of product in which Mrs Bacon had expressed interest, but about other, unrelated goods or services.
In my respectful view, Mr Ryan did not attend Mrs Bacon's home 'in the course of door to door trading' within the meaning of s 4(1)(b)(i) of the Act. Accordingly, the Act did not apply to the contract.
I would uphold the first ground of appeal. In light of that conclusion it is, strictly speaking, unnecessary to deal with the other grounds of appeal, but as those grounds were fully argued it is appropriate to consider them.

Grounds 2 and 3

These grounds can conveniently be considered together. The essential issues are whether the primary judge erred in finding, first, that the invitation by Mrs Bacon to attend her home was otherwise than at Mrs Bacon's 'unsolicited' invitation and, secondly, that in any event, the invitation arose from a communication initiated by Bluesky and therefore pursuant to s 4(2)(b) it was not to be regarded as unsolicited.
Putting aside s 4(2)(b) for the moment, the primary judge concluded that the invitation was not unsolicited because Bluesky knew that it was highly unlikely Mrs Bacon would accept either of the other two options provided to her, namely attending Bluesky's showrooms or having brochures posted to her, and it was therefore reasonably obvious that she would choose a home visit. His Honour found that to be the case because he concluded that Mrs Bacon's age and mobility difficulties would have made it difficult for her to attend Bluesky's showrooms and, I infer from his Honour's reasons, that because she had indicated she was keen to acquire a lift chair which might have to be customised, brochures would not have been of sufficient assistance to her. His Honour held that by offering the three options in circumstances where it was reasonably obvious that two of them were likely to be rejected, Bluesky was in fact soliciting the third option, a home visit.
There was, however, no direct evidence to support the finding that attending the showroom posed particular difficulties for Mrs Bacon such that it was highly likely she would decline to do so and, particularly given that she attended the Park Shopping Centre and walked through that Centre (ts 11, 12, 24/11/08), I do not, with respect, consider that that was an inference that was open to his Honour on the evidence. I would add that, if such difficulties did exist, there was, in my respectful opinion, no evidence from which it could be concluded that they were known to Bluesky. I also do not consider that the evidence supported a finding, in effect, that the offer to send brochures was also likely to be rejected. In my respectful view, the primary judge erred in finding that in making the offer of the three options Bluesky was soliciting an invitation to attend Mrs Bacon's home.
The question then is whether on the evidence the invitation was unsolicited. In my view, it was. In the Macquarie Dictionary, 'unsolicited' is defined as meaning 'not asked for'. In the New Shorter Oxford English Dictionary, 'unsolicited' is defined as meaning 'not asked for', 'given or done voluntarily'. Again, putting aside s 4(1)(2)(b), there is nothing to suggest that in this context the word is used other than in its ordinary sense.
I consider that the invitation by Mrs Bacon for someone from Bluesky to attend her home is properly to be regarded as having been unsolicited. I do not consider that it is to be regarded as otherwise than 'unsolicited' merely because it was one of the options suggested by Bluesky. On the evidence, Mrs Bacon was simply given three options, one of which was a home visit. There is no evidence that Mrs Bacon was asked to agree to a home visit and nor is there any evidence that she was pressed or encouraged to select, or otherwise directed to, that option. Nor, as I have said, is there any evidence that the other options were not genuine alternatives. In my view, the invitation was 'unsolicited' within the meaning of s 4(1)(b)(ii) of the Act.
It is necessary then to turn to s 4(1)(2)(b), which provides, in effect, that an invitation shall not be regarded as unsolicited if it arises from a communication 'initiated' by the supplier or dealer. The New Shorter Oxford English Dictionary gives the meaning of 'initiate' as (relevantly) 'begin, introduce, set going, originate'. The Macquarie Dictionary meaning is the same.
I respectfully agree with his Honour that the relevant communication was the telephone call made by Mrs McDonald in which Mrs Bacon extended the invitation. It is, I think, plain that whether a telephone communication is to be regarded as having been initiated by the consumer or by the dealer does not depend upon who physically made the telephone call itself. If it were otherwise it would have the odd result, for instance, that a dealer who responded to an unsolicited request from a consumer to telephone them would be regarded as having initiated the communication. The real question, in substance, is which party caused the call to be made.
In the present case, as I have mentioned, the primary judge found that the telephone call by Mrs McDonald was 'initiated' by Bluesky either by the use of the display stand or by Mrs Leopold asking Mrs Bacon for her contact details. With respect, I do not agree. Mrs Bacon was, of course, under no obligation to supply her contact details to Mrs Leopold. Indeed, Mrs Leopold gave evidence that many people declined to do so and others gave their address but declined to provide their telephone number (ts 17, 25/11/08). The magistrate found as a fact that Mrs Bacon was interested in purchasing a lift chair and she provided her contact details for the purpose of enabling someone from Bluesky to telephone her to provide further information about the lift chair (ts 4, 26/11/08). Mrs Bacon left the discussion with Mrs Leopold on the basis that someone from Bluesky would contact her for that purpose. It seems to me that in the circumstances there was inherent in that arrangement an implied request by Mrs Bacon for Bluesky to telephone her about the lift chair. Again, the position may well have been different had the telephone call been made, not about the type of product in which Mrs Bacon had

expressed interest, but about other, unrelated goods or services where no such invitation could be implied.

In the circumstances, I consider that the telephone call was 'initiated' by Mrs Bacon within the meaning of s 4(1)(2)(b). Accordingly, I would also uphold this ground of appeal.

Notice of contention

By its notice of contention, the respondent contends that even if the primary judge erred as set out in the notice of appeal, the decision should be upheld on the following grounds:
1.[I]n relation to ground 2, the learned judge should have found (and upheld the appeal on the basis) that, as a matter of fact, the mere presentation by Mrs McDonald of the option of a home visit (even though presented with other options), solicited Mrs Bacon's invitation to attend her home; and
2.[I]n relation to ground 3, the learned judge should have dismissed the notice of contention (and upheld the appeal) on the basis that, as a matter of fact and law, Mrs Bacon's invitation to attend at her home should not have been regarded as unsolicited by reason of s.4(2)(b) of the Act, because Mrs McDonald (on behalf of the Appellant) initiated the telephone communication from which the invitation arose.
For the reasons I have given in respect of grounds 2 and 3 of the appeal, I would dismiss the notice of contention.

Conclusion

I would allow the appeal, set aside the decision of the primary judge, and restore the order of the magistrate dismissing the charges against all of the appellants.
JENKINS J: I have had the advantage of reading Newnes JA's and Buss JA's separate draft reasons. I adopt Newnes JA's recitation of the background to the appeal.

Ground 1

I agree with Newnes JA's construction of s 4(1). Consequently, I respectfully agree with his Honour, for the reasons which he gives, that Blaxell J (the primary judge) erred in the approach that he took to that provision.

The issue for this court is whether the attendance by a Bluesky representative on Mrs Bacon in her home was in the course of door to door trading. By virtue of the statutory definition of door to door trading, that issue devolves into whether the attendance was a consequence of Bluesky's trading practice under which Mrs McDonald, on behalf of Bluesky, made telephone calls seeking out persons who may be prepared to enter, as consumers, into contracts for the supply of goods or services (a consumer contract).
As Newnes JA has said, each case will turn on its particular facts. Like Buss JA, I am satisfied that Bluesky had a trading practice which amounted to door to door trading. However, the question as to whether a particular attendance at a potential customer's home occurred in the course of door to door trading is a different question and requires a much closer examination of the facts of the relevant case.
I agree that this question also turns on what 'seeking out persons who may be prepared to enter' into a consumer contract means in the statutory definition of 'door to door trading'. I agree with Newnes JA that there is nothing in the statutory context which warrants giving 'seeking out' anything other than its ordinary meaning.
After careful consideration of the evidence and the magistrate's unchallenged findings of fact, I have concluded that the magistrate was correct in finding that the respondent failed to prove that the attendance of a Bluesky representative on Mrs Bacon was a consequence of Bluesky's trading practice under which Mrs McDonald, on behalf of Bluesky, made telephone calls seeking out persons who may be prepared to enter a consumer contract. My reasons for this finding only differ slightly from those of Newnes JA and the magistrate. My reasons differ in that I do not agree with the view, which appears to have been expressed by the magistrate and which Newnes JA finds unnecessary to consider, that Mrs Bacon's provision of her telephone number to Mrs Leopold at the display stand was sufficient to establish that the subsequent telephone call by Mrs McDonald was not a call 'seeking out' Mrs Bacon as a person who may be prepared to enter into a consumer contract.

Although I agree with the magistrate that the seeking out of Mrs Bacon as a person who may be prepared to enter in to a consumer contract had occurred at the display stand. I do not think that this finding follows from the fact that Mrs Bacon supplied her phone number to Mrs Leopold. Neither do I accept that simply because Mrs Bacon supplied her telephone number that she had an expectation that someone from Bluesky would call her. As I explain below, the magistrate's findings in this regard are inconsistent.
The magistrate found that Mrs Bacon gave her telephone number and other particulars to Mrs Leopold with the expectation that those details 'in particular, the phone number' would be used as a means of contact being made by Bluesky. His Honour said that he found that the only inference that could be drawn from the fact that Mrs Bacon gave her phone number was so that she could be contacted by Bluesky.
I pause in my summary of the magistrate's findings to note that there is a difference between a person giving their phone number in an expectation that it will be used to call them in order to negotiate the purchase of a product they may be prepared to purchase and a person giving a phone number out of politeness because it was asked for or so that they could be called on the off chance that the dealer needed to clarify something connected with posting information about a product. For example, a person may provide a number so that a supplier can call to clarify their name, address and product about which they wanted to receive written information or to ascertain whether they had received information about a product which was sent by mail.
The magistrate went on to say that he had no doubt that Mrs Leopold did inform Mrs Bacon that contact could be made by Bluesky. However, he said:
[W]hether that was in the form of a telephone call or simply brochures being sent out I am unable to conclude. Neither of the women recalled, I find, precisely what was said. I find, however, that Mrs Bacon was aware that from what she learned during the discussion with Ms Leopold, that Ms Leopold was essentially a point of first contact (GAB 165).
The magistrate found that he, in general, preferred the evidence of Mrs Leopold to that of Mrs Bacon. Mrs Leopold's evidence on this issue was that Mrs Bacon was 'very interested in the chair. She had a lot of questions' (GAB 101). Mrs Leopold was then asked whether she took some details from Mrs Bacon. She said that she did and she was asked how she did that. Mrs Leopold answered:
Usually the person, like Mrs Bacon, was looking at the chair. After them asking a lot of questions - she asked a lot of questions- then I said to her - yeah. I don't know whether she asked me for more information, or whether I said would you like some brochures? Usually they say they want more information.
Yes?‑‑‑So, I said, 'Well, can I post the information?' She gave me the information. I filled it out (GAB 101).
Mrs Leopold filled out the standard form provided by Bluesky for her to complete in respect of any person who showed an interest in Bluesky products at the shopping centre display (the contact slip). This information included Mrs Bacon's name, her address, her telephone number, the product she was interested in, and the reason why she was interested in it. This information included that Mrs Bacon wanted a lift chair for herself and that she was 'keen'.
Mrs Leopold said that some people would not give her their telephone number and told her that they only wanted brochures. I do not accept that this means that everybody who supplies a telephone number wants to be telephoned, expects to be telephoned or may be interested in purchasing a product. Further, there does not seem to me to be anything in Mrs Leopold's evidence to justify a finding that Mrs Bacon gave her telephone number for the purpose of somebody from Bluesky ringing her to further discuss her purchase of a Bluesky product. The evidence of Mrs Leopold is, at least, equally consistent with Mrs Bacon saying that she would like more information in the form of brochures and Mrs Bacon's telephone number being obtained by the process of Mrs Leopold filling out the contact slip. The contact slip provided a space for a telephone number. Consequently, I am not satisfied that by Mrs Bacon giving her address and telephone number to Mrs Leopold, she had been sought out as a person who may be prepared to enter in to a consumer contract with Bluesky.
Rather, in my view, Mrs Bacon was identified as such a person by the nature of the whole conversation which she had had with Mrs Leopold. Mrs Leopold said that, in essence, her job was to 'collect the leads. Contacts' (GAB 108). I interpret that evidence as meaning that it was her job to collect the details of people who may be interested in purchasing a Bluesky product within any timeframe or who may be persuaded by further information to purchase a Bluesky product (again within any timeframe), or who may lead to a person who may be interested in purchasing such a product. It is not the case that every contact or lead whose name and details Mrs Leopold recorded would be such a person. However, I am satisfied that Mrs Bacon did identify herself to Mrs Leopold as someone who may be prepared to enter into a consumer contract with Bluesky. Mrs Leopold described Mrs Bacon in evidence as being someone who was 'very interested', someone who 'asked a lot of questions' and who she subsequently described in writing as 'keen'. Mrs Bacon, without demur, provided her contact details to Mrs Leopold. I must act on this evidence as the magistrate made unchallenged findings that Mrs Leopold was a credible witness and that her evidence was to be preferred to that of Mrs Bacon.
Thus, I am of the view that by the time Mrs McDonald made the telephone call to Mrs Bacon, Mrs Bacon had already identified herself as a person who may be prepared to enter into a consumer contract with Bluesky. Consequently, the telephone call which Mrs McDonald made to Mrs Bacon was not part of Bluesky's door to door trading practice and neither was the Bluesky representative's attendance at Mrs Bacon's home in the course of door to door trading.
Buss JA has expressed the view that a dealer may seek out a person on further or additional occasions after an earlier occasion on which the person has contacted, or has been contacted by, the dealer and the person has expressed a degree of interest in entering into a consumer contract. As a general proposition, I am in agreement with His Honour. However, I am of the opinion that if a person has identified themselves to a dealer as a person who 'may be prepared' to enter into a consumer contract to purchase a product, other than in the course of door to door trading, it can not be said that further dealings by the dealer with the person amount to the dealer seeking them out or door to door trading.
The distinction between a person who has identified themselves as someone who 'may be prepared' to enter into a consumer contract and someone who has expressed a degree of interest in entering into such a contract may be fine and in some cases they may amount to the same thing. Each case depends on its own facts.
Based on the unchallenged factual findings made by the magistrate at first instance, I am satisfied that Mrs McDonald's telephone call to Mrs Bacon was not for the purpose of seeking Mrs Bacon out as a person who may be prepared to enter into a consumer contract but was rather for the purpose of providing Mrs Bacon, a person who had already identified herself as someone who may be prepared to enter into a consumer contract with Bluesky, with further information about the relevant product and to commence to negotiate the sale of such a product.

Grounds 2 and 3

In my view, the primary judge did not err in his finding that the attendance of a representative of Bluesky at Mrs Bacon's home was otherwise than at the unsolicited invitation of Mrs Bacon, having regard to the provisions of s 4(2).
Given the facts and my decision on ground 3, it is unnecessary for me to consider whether the attendance at Mr Bacon's home was otherwise than at her unsolicited invitation by virtue of s 4(1)(b)(ii), read without the deeming provision in s 4(2)(b). I also think that it is usually unnecessary to consider the meaning and application of a statutory provision without also considering the effect of a deeming provision to which it is subject. A deeming provision alters the meaning of the terms used in the primary section and, so, those terms do not have the meaning that they would have absent the deeming provision. Thus, I do not intend to traverse the issues involved in determining whether the magistrate or the primary judge were correct in their different determinations as to whether, absent s 4(2), the attendance at Mrs Bacon's home was otherwise than at her unsolicited invitation.
In respect of ground 3, the issue in s 4(1)(b)(ii), having regard to s 4(2)(b), is whether Bluesky's representative attended Mrs Bacon's home otherwise than at Mrs Bacon's unsolicited invitation and in making that determination, an unsolicited invitation does not include an invitation which arose from a communication initiated by Bluesky. In short, if the attendance was as a result of an unsolicited invitation from Mrs Bacon to Bluesky s 4(1)(b)(ii) would not be satisfied but an invitation that arose from a communication initiated by Bluesky can not be regarded as unsolicited. For the purpose of this ground I will assume that Mrs Bacon had issued an invitation to Mrs McDonald for someone from Bluesky to attend at her home.
In order for the respondent to satisfy s 4(2) it had to prove;
1.that Mrs Bacon's invitation to Mrs McDonald for a Bluesky representative to attend at her home arose from the telephone call from Mrs McDonald; and
2.that the telephone call was initiated by Bluesky.
As to the first issue, I agree with the magistrate's findings that if Mrs McDonald had not rung Mrs Bacon, there would have been no invitation from Mrs Bacon for somebody from Bluesky to attend on her. There was 'a direct and immediate connection' between Mrs McDonald's action in making the telephone call and Mrs Bacon's invitation for a Bluesky representative to call on her. Thus, the invitation to attend on Mrs Bacon arose from the telephone call.
As to the second issue, in essence, the appellants submit that Mrs Bacon initiated the telephone call from Mrs McDonald by attending at Bluesky's display stand and providing her telephone number to Mrs Leopold with the implicit invitation to ring her, in circumstances where she, Mrs Bacon, had expressed a keen interest in Bluesky's product. Thus, Mrs McDonald's telephone call to Mrs Bacon did not initiate the attendance.
I do not accept this submission.
In this regard, I accept Newnes JA's reasons that there is nothing in the statutory context to suggest that the word 'initiated' is to be given anything other than its ordinary dictionary definition.
The magistrate also preferred Mrs McDonald's evidence to that of Mrs Bacon. That finding is not challenged. Based on Mrs McDonald's and Mrs Leopold's evidence and for the reasons given in respect of ground 1, I am of the view that Mrs Bacon did not initiate Mrs McDonald's telephone call by providing her telephone number to Mrs Leopold. The provision of the telephone number was simply a by‑product of Mrs Leopold asking Mrs Bacon for the information prompted by the fields on the contact slip.
Mrs Leopold did not testify that Mrs Bacon offered her phone number so that someone from Bluesky could call her or that Mrs Leopold asked for the number and told Mrs Bacon that it was for that purpose. Even if Mrs Leopold had told Mrs Bacon that the telephone number was for the purpose of calling her to discuss her purchase of a chair, I find it hard to see how it could be said that Mrs Bacon had initiated the subsequent telephone call. In those circumstances Bluesky would have still initiated the call by asking for the number.
The appellants submit that to find that Bluesky initiated the telephone call ignores Mrs Leopold's evidence that Mrs Bacon approached the display stand, was attracted to the display of the recliner chair, embarked on a lengthy and chatty conversation with Mrs Leopold and thereafter freely and voluntarily provided contact details to Mrs Leopold.
I disagree that these matters are determinative of this issue. The crucial facts are that it was Mrs Leopold who asked Mrs Bacon if she wanted more information and mentioned posting it to her (not telephoning or visiting). It was also Mrs Leopold who asked for Mrs Bacon's telephone number, without advising her that it would be used to call her for any purpose. Mrs Bacon did not volunteer her number. Mrs Leopold then sent the contact slip with Mrs Bacon's telephone number on it to the Bluesky office where Mrs McDonald used it to ring Mrs Bacon. On the basis of these facts it was proven that Bluesky initiated the telephone call.
However, I do not agree with the respondent's submission that this issue can be determined simply by determining whether the dealer made the relevant communication, which in this case was the telephone call. 'Initiate' does not mean 'made'. I accept that a communication can be initiated by someone other than the person who made it.
Given the evidence of Mrs Leopold and the magistrate's findings, I am not satisfied that Mrs Bacon's conduct in attending the display stand and providing her telephone number, rendered Mrs McDonald's subsequent telephone call to her a communication initiated by Mrs Bacon, rather than by Bluesky. Rather, the magistrate and the primary judge were correct when they found that Mrs Bacon's invitation to attend her home arose from the phone call from Mrs McDonald which had been initiated by Bluesky. Hence, I respectfully disagree with Newnes JA's conclusion there was an implied request by Mrs Bacon for Bluesky to telephone her about the purchase of a lift chair.
I would not uphold ground 3 and I find it unnecessary to determine ground 2.

Notice of contention ‑ ground 1

The first ground of contention contends that the primary judge should have found and upheld the appeal on the basis that the mere presentation by Mrs McDonald of the option of a home visit (even though presented with other options) solicited Mrs Bacon's invitation to attend her home. Thus, it says that s 4(1)(b)(ii) was satisfied without having regard to the deeming provision in s 4(2). For the reasons given in respect of grounds 2 and 3, I find it unnecessary for me to determine this ground of contention.

Notice of contention ‑ ground 2

I have dealt with the issues raised in the second ground of the notice of contention, when considering ground 3 of the appeal.

Conclusion

I would allow the appeal on the basis of ground 1. I have not considered the issue raised in the first ground of the notice of contention but any decision by me in respect to it would not alter the result of the appeal. I would allow ground 2 of the notice of contention. The result is that I would set aside the decision of the primary judge and restore the order of the magistrate dismissing the charges against all of the appellants.