Brown, R.M. v Greg Cotton Motors Pty Ltd
[1986] FCA 462
•17 OCTOBER 1986
Re: RODNEY MICHAEL BROWN
And: GREG COTTON MOTORS PTY. LTD
Nos. VG316 and VG317 of 1986
Practice and Procedure
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.
CATCHWORDS
Practice and Procedure - Trade practices - Criminal prosecutions under Trade Practices Act - Bait advertising - Particulars of offences - Conversations between named persons - Whether substance of conversation constitutes a particular.
Trade Practices Act. 1974 - ss. 56 (1), 56 (2)
Marchesi v. Barnes (1970) VR 434
Sims v. Wran (1984) 1 NSWLR 317
HEARING
MELBOURNE
#DATE 17:10:1986
Counsel for Prosecutor: Mr. M. Pedley
Solicitor for Prosecutor: Director of Public Prosecutions
Counsel for Defendant: Mr. M.E.J. Black Q.C. and Mr. C. Scerri
Solicitors for Defendant: Freehill, Hollingdale and Page
JUDGE1
Applications for particulars of offences charged.
The parties are the same in each prosecution. In the proceeding VG316 of 1986 an information charging a contravention of s.56(1) of the Trade Practices Act 1974 is before the Court. The other proceeding (VG317 of 1986) comprehends an information charging a contravention of s.56(2) of that Act. Those sub-sections provide:
"56(1) A corporation shall not, in trade or commerce, advertise for supply at a special price goods or services that the corporation does not intend to offer for supply at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the corporation carries on business and the nature of the advertisement.
(2) A corporation that has, in trade or commerce, advertised goods or services for supply at a special price shall offer such goods or services for supply at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the corporation carries on business and the nature of the advertisement."
Each information is expressed in the language of the relevant sub-section. The contravention of s.56(1) is therein alleged to have been committed on 26 August 1985, the contravention of s.56(2) between that date and 28 August 1985. In the summons the contravention of s.56(1) is stated in the words of the sub-section and there follow these words:
"Particulars of the charge are: On the 26th day of August 1985 in an advertisement published in 'The Sun' newspaper under the heading 'Huge Savings]' which advertisement included the statement 'save $2,272 off new price' you did advertise that you would supply SL VK Commodore 6 cylinder demonstrator motor vehicles at the price of $9,990 and that you did not intend to so offer the goods for supply at that price for a period that was and in quantities that were, reasonable having regard to the nature of the market in which you carried on business and the nature of the advertisement.
Particulars of facts relied upon to establish intention of the defendant are:
1. That on the 26th day of August 1985 your new car sales manager Danny Paul Heffernan instructed your sales staff not to supply an SL VK Holden Commodore 6 cylinder demonstrator motor vehicle at the advertised price.
2. That on the 27th day of August 1985 you did fail to offer an SL VK Holden Commodore 6 cylinder demonstrator motor vehicle for supply at the advertised price to Anthony Gerard Mineely.
3. On the 27th day of August 1985 you did fail to offer an SL VK Holden Commodore 6 cylinder demonstrator motor vehicle for supply at the advertised price to Richard Allan Snow.
4. On the 28th day of August 1985 you did fail to offer an SL VK Holden Commodore 6 cylinder demonstrator motor vehicle for supply at the advertised price to Ivan Richard Sest.
5. During the period 26 August 1985 to 28 August 1985 the only motor vehicle of the description contained in the advertisement referred to in the particulars of the charge of which you were the registered proprietor was motor vehicle registered as CLI 492 which registration number was contained in the said advertisement.
6. In the period 16 May 1985 to 7 November 1985 you advertised SL VK Commodore 6 cylinder demonstrator motor vehicles for supply on 31 occasions and on each occasion the registration number CLI 492 was contained in the advertisements.
7. During the period 7 May 1985 to 23 December 1985 you were the registered owner of the motor vehicle registered as CLI 492.
8. On 27 August 1985 the vehicle registered as CLI 492 did not have attached to it a notice in the prescribed form as was required to be attached to a second hand motor car that was offered or displayed for sale by a motor car trader as required by section 40 of the Motor Car Traders Act (Vic) 1973.
9. On 6 December 1985 you entered into a contract of sale of the motor vehicle registered as CLI 492 to William Stephen Tuffnell at the price of $10,990."
(The words "and that you" which follow the figures $9,990 in the foregoing passage should be "and you".)
In the other summons the allegation of a contravention of s.56(2) is followed by these words:
"Particulars of the charge are:
2. On the 26th day of August 1985 in an advertisement published in 'The Sun' newspaper under the heading 'Huge Savings]' which advertisement included the statement 'save $2,722 off new price' you did advertise that you would supply SL VK Commodore 6 cylinder demonstrator motor vehicles at the price of $9,990.
3. That on the 27th day of August 1985 you being a corporation that had in trade or commerce advertised goods namely SL VK Holden Commodore 6 cylinder demonstrator motor vehicles for supply at a special price of $9,990 did fail to offer an SL VK Holden Commodore 6 cylinder demonstrator motor vehicle for supply at that price to Anthony Gerard Mineely.
4. That on the 27th day of August 1985 you being a corporation that had in trade or commerce advertised goods namely SL VK Holden Commodore 6 cylinder demonstrator motor vehicles for supply at a special price of $9,990 did fail to offer an SL VK Holden Commodore 6 cylinder demonstrator motor vehicle for supply at that price to Richard Allan Snow.
5. That on the 28th day of August 1985 you being a corporation that had in trade or commerce advertised goods namely SL VK Holden Commodore 6 cylinder demonstrator motor vehicles for supply at a special price of $9,990 did fail to offer an SL VK Holden Commodore 6 cylinder demonstrator motor vehicle for supply at that price to Ivan Richard Sest.
6. During the period 7 May 1985 to 23 December 1985 you were the registered owner of the motor vehicle registered as CLI 492.
7. On 6 December 1985 you entered into a contract of sale of the motor vehicle registered as CLI 492 to William Stephen Tuffnell at the price of $10,990."
The prosecutor has informed the defendant that the failure to which reference is made in the paragraph numbered 2 in the passage I have quoted from the first summons is alleged to have "occurred in a telephone conversation on 27 August 1985 between Anthony Gerard Mineely, public servant of 200 Queen Street, Melbourne, and Edward James Hanson, new car salesman and servant or agent of the defendant". The prosecutor has refused the defendant's request for a statement - as a further particular of the charge - of what is alleged to have been "the substance" of that telephone conversation. Mr. Black Q.C., who appeared with Mr. Scerri for the defendant, founded his submission that the statement should be made on the common law principle, expounded by Gowans J. in Marchesi v. Barnes (1970) VR 434, that a defendant should be furnished with such particulars of an information as it is necessary for him to have in the interests of justice in order to apprehend the case to be made against him. Gowans J. pointed out that "the source of the power" of a court to order the provision of particulars "is to be found in the right and duty of a court to prevent its procedure being made the medium of injustice. In its source is to be found the limits of the exercise of the power." ((1974) VR 434 at 439). In Mr. Black's submission the defendant could not apprehend how the conversation would be alleged to tend to show that the defendant lacked the intention specified in s.56(1) and in the information unless the defendant were informed of what was said.
Mr. Pedley, who appeared for the prosecutor, submitted that the substance of the conversation did not constitute a particular, but rather a summary of part of the evidence by which the prosecutor proposed to prove the defendant's lack of the specified intention, and for that reason ought not to be ordered to be disclosed.
The distinction between the ultimate facts, by findings of which the charge is to be made out, and the evidence, by adduction of which those findings are to be induced, may often provide a useful guide as to what ought to be required of a prosecutor by way of particulars : the ultimate facts ought to be disclosed by particulars, if the defendant seeks them, but it will commonly be found that the defendant will be able sufficiently to apprehend, and prepare to meet, the case to be made against him without prior disclosure to him of the evidence by which it is proposed to persuade the court of the existence of those facts. In this case, however, the numbered paragraphs under the heading, "Particulars of facts relied upon to establish intention of the defendant are", contain no ultimate fact, no statement of a constituent element of the charge. As the heading suggests, those numbered paragraphs contain summary statements of sequences of events, evidence of which the prosecutor proposes to adduce as tending to prove, not "intention", but the absence of the intention specified in the sub-section and in the charge. None of the acts, events and circumstances to which reference is made in the numbered paragraphs is a constituent element of that which is charged to have constituted a contravention of s.56(1). Yet I do not doubt that the contents of those paragraphs are particulars of a kind which observance of the principles expounded by Gowans J. may often require to be given. The observations of Hunt J. in Sims v. Wran (1984) 1 NSWLR 317 at 321-322, concerning particulars in a civil proceeding, are in my opinion apt in reference to particulars of a charge of a criminal offence : "There is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise; the starting point is not what can be said without disclosing the evidence to be led". Where the existence of a particular state of the accused's mind, whether intention or belief or the lack of either, is a constituent element of the offence charged, and that mental state is not a normal concomitant of one or more of the other constituent elements of the offence, there may be a need to disclose a broad outline of the evidence from which the prosecutor proposes to invite the court's inference that the mental state existed at the relevant time. That is what the prosecutor has done in the numbered paragraphs. So far as the paragraph numbered 2 is concerned, the prosecutor has identified the occasion during which the defendant's failure to offer the car to Mineely at the advertised price is alleged to have occurred, and has identified the transaction (a conversation between Mineely and a named person alleged to have been a servant or agent of the defendant) which involved that failure. From that the defendant will know that the evidence proposed to be called about the transaction will include no conversation disclosing an offer of the kind specified in paragraph 2. In my opinion nothing has appeared, by evidence or submission, to suggest that further knowledge of what the prosecutor intends to give in evidence concerning the conversation is necessary to enable the defendant to apprehend - or to meet - the case to be made against it. It is the failure to make the specified offer on the specified occasion, and not any other circumstance attending that occasion, which is alleged to tend to raise the inference of the alleged lack of the specified intention. No occasion has in my opinion been shown to order particulars of the substance of the conversation.
In the proceeding with respect to s.56 (2) of the Trade Practices Act, the transaction between Hanson and Mineely to which reference has been made was identified as that in the course of which the failure alleged in the paragraph numbered 3 in the summons occurred. Again the prosecutor has refused to comply with the defendant's request for particulars of the substance of the conversation.
It is the failure to make the specified offer, and not any other circumstance, which is alleged in paragraph 3. No occasion has in my opinion been shown to order particulars of the substance of the conversation in the proceeding VG317 of 1986.
Counsel indicated that a determination of the two questions with which I have now dealt would enable the parties to resolve all the differences between them concerning particulars, but they did not indicate what, if any, orders would be required. I therefore await the parties proposals in that regard.
I should perhaps observe, out of an abundance of caution, that I am not to be taken as having accepted that all that is contained in the numbered paragraphs of the summons in either proceeding is relevant to the charge in that proceeding.
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