Brown v Riverstone Meat Co Pty Ltd

[1985] FCA 205

CATCHWORDS

TRADE FPACTICES - Prosecution - False repre5entatlon as to composition qf goods - Description of nature of packaged meat

- Offal described as "beef head meat" contained ovlne ar.d

porcine meat - Offal described as "mutton skirts'' contained

bovine meat - Representations made to purchaser and to the

Department of Primary Industry, not to a cnnsumer - Inkether

relevant representation made - Whether representation to

Department is si representation "in trade cr commerce" -

Sufficiency of proof of analysis of samples - Availabillty as

admlssions of Correspondence and aureement for compensatlon -

Whether defendant has establlshed that contravention was due

to reasonable mistake - Meaning of "mistake" in 5.85 of Trade

Practices Act - Penalty - Multiple offences of substantially

similar nature - Meanlnq of "occurred at or about Lhe same

time" -- Circumstances affectlnq amount of penalty.

Trade Practices Act 1974 s s . 53(a), 79, 85

Bevanere Ptv Limlted v Lubidineuse (Full Court 24 April 1985)

applied. Westham Dredqina Companv Pty Limited v Koodside

Petroleum Development Ptv Limited ( 1 9 8 2 ) 66 A.L.R. 287 not

followed.

Bovle v Flrisht (1964) V.R. 699 discussed and applied.

Larmer v Power Machinerv Pty Limited !l9771 25' F.L.R. 490, Re

Kurrina-cfai Co-operative Buildinq Society	(No 1 7 1	Llmitecl
(1978) 36 F.L.R. 134 applled.

N.S.W. Nos. G 34-44, 47, 49-56 and 60-64 of 1983

WILLIAM ALBEP.T EROWN

v RIVERSTONE MEkT COMPANY PTY LIMITET)

Wilcox J.

Sydney

1 May and 30 Map 1985

IN THE FEDERAL COURT OF AUSTRALIA	1
I
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G 34-44, 47, 49-56
) and 60-64 of 1983
GENERAL DIVISION	)

BETkEEM : WILLIAM ALBERT BROWN

Appllcant

m: RIVERSTOME MEAT COMPANY PTY LIMITED

Respondent

CORAM :	WILCOX J.
m:	30 MAY 1985

PLACE : SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT IN RELATION T3 E X H OF THE EJt.TTERS G34,

G 3 5 , G 36, G 37, G 3 8 , G 3 9 , G 4 0 , G 41, G 43, G 43 , G 4 4 , G

4 7 , G 4 9 , G 50, G 51, G 52, G 5 3 , G 5 4 , G 55-and G 56 of 1983:

1. The defendant be convicted of a contravention of

s . 5 3 ( a ) of the Trade Practices Act 1974 being the

offence alleged in each of the respective

informatlons in those proceedings.

2.

2. The defendant pay a fine of one thousand dollars

($1.000.00) to the District Registrar of this Court

within twenty-one (21) days of this day.

3. The defendant pay the costs of the prosecutor in the proceedmgs.

THE C0UP.T FORTHER ORDERS THAT IN RELATION TO EACH OF THE

MATTERS G 60, 6 61 and G 62 of 1983:

1. The defendant be convicted of a contravention of

s.53(a) of the Trade Practices Act 1974 being the

offence alleged in each of the respective

informatlons in those proceedings.

2 . The defendant pay a fine of three thousand three

hundred and thirty-three dollars ($3,333.00) to the District Registrar of this Court within twenty-one

(21) days of this day PROVIDED HOWEVER that upon

payment to the said District Reqlstrar of the penalty

of ten thousand doilars C$lO,OOO.OO) required to be

paid pursuant to the order In matter G 63 each of the

said fines shall cease to be required to be pald.

3 .	The defendant Fay the costs	of the prosecutor in the
proceedings.

3 .

THE COURT FURTHER ORDERS THAT IN RELATION TO MATTER G 53 of

1983:

1. The defendant be convicted of a contravention of

s.53(a) of the Trade Practices Act 1974 being the

offence alleged in the information in that

proceeding.

2 . The defendant pay a fine of ten thousand dollars

($10,000.00) to the District Registrar of this Court

within twenty-one (21) days of thls day.

3 . The defendant pay the costs of the prosecutor in the

proceeding.

THE COURT FURTHER ORDERS IN THAT RELATION TO MATTER G 54 of

1983:

1. The information be dismissed.

L .	The prosecutor pay to the defendant its costs In
relation to that proceedmg, such costs being llmlted
to those costs (if any) which were incurred by the

defendant only in relation to that proceedlng and whlch would not have been Incurred by It in defendlng

the other proceedlngs heard simultaneously wlth that

proceeding.

NOTE :

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
I
NEW SOUTH WALES DISTRICT REGISTRY	) NOS. G 34-44, 47, 49-56
) and 60-64 of 1983

DIVISIbN GENERAL )

BETWEEN : WILLIAM ALBERT BRObil

Applicant

m: RIVERSTONE MEAT COMPANY

PTY LIMITED

Respondent

corn	:	WILCOX J.
W:	1 MAY 1985

PLACE : SYDNEY

REASONS €OR JUDGMENT ON LIABILITY

There are before the Court 25 informations laid by

William Albert Brown -- an officer of the Trade Practlces Commlssion -- against Riverstone Meat Company Proprletary

Llmlted. The informations -- which have, by consent, been

heard together -- are in substantially similar terms, each

alleging a contravention of s.53(a) of the Trade Practlces Act

1974 and, accordingly, an offence against 5.79 of that Act.

The necessary authority to institute proceedings has been

granted by the Minlster, as required by s.163(4) of the Act,

and no question arises as to that authority. Sectlon 53,

2.

which is contained within Part	V of the Act, insofar	as it is
presently relevant, provides:

"53. A corporation shall not, in trade or

commerce, in connexion with the supply or

possible supply of goods or services ... -

falsely represent that goods are of a

particular standard, quality, grade,

composition, style or model ...

... ...

...

... ... ...

...

relevantly provides:

" E , person who contravenes a provision of

Part V other than section 52 is guilty of an

offence punishable on conviction -

(a) ...

(b) In the case of a person belng a body

corporate - by a f m e not exceeding

$50,000."

It is admitted that the defendant is a company duly

incorporated in New South Wales and a "corporation" wlthln the

meaning of the Trade Practices Act. The evidence establlshes

that the company carries on the business of a livestock

slaughterer and meat processor, packer and distributor st

premises sltuate at Railway Terrace, Rlverstone near Sydney.

The establishment is of a substantial size, employing some 200

- 300 people on a single shift. It produces, although

apparently not exclusively, meat for export. Consequently, it

has become registered under the Exports (Meat) Requlations,

made under the Customs Act 1901, as an "export establishment"

and its operations -- at least in relevant respects -- are governed by the terms of those regulations. Pursuant to

reg.24 it has been alloted a number -- 503 -- whlch must

appear on the design bearing the words "Australia Approved"

prescrlbed by reg.33 to be affixed as an inspection stamp to

all meat produced at the factory which s intended for export.

That stamp may be affixed only to meat prepared under the supervision of officers of the Department of Primary Industry

("D.P.I.") and inspected, and passed fit for export,

export meats and making the necessary inspectlons the

by such

an officer. For the purpose of supervising the preparation of the defendant's premises. At the period to which these

informations relate, August and September 1982, a normal shift

of officers would have comprlsed a vetermary officer, a

supervising inspector and about 20 meat Inspectors.

Below the slaughter floor of the premises 1 an area

known as the offal room. At the relevant time, material was

passed down to the offal room through a chute or by means of a

small elevator. Within the offal room the macerial was packed

into cartons, about two feet six inches long by about 18

inches wide by six inches in depth, and taken to the scales

4.

for weighing. Near the scales were located a number of trays

containing various types of offal from which a carton could be

topped up, if it was underweight, or into which excess

material could be placed, if the carton was overweight. The

standard procedure at the time was that, after weighing, the

cartons were produced to a D.P.I. meat inspector, under whose

supervision an employee of the company put a pre-numbered

D.P.I. seal on the carton. Upon that seal was stamped the

prescribed wording "Australia Approved 503". The date of

production was stamped elsewhere on the carton. The carton

was then taken to a cold store pending distribution.

On 16 August 1982 Mr Jack Jolley, a truck drlver, took delivery from the defendant of a load of 713 cartons; of

whlch he understood approximately 356 cartons to contain "beef

head meat". Beef head meat was described in the evidence as

being "the skeletal muscle which is salvaged from the skull of

the bovine" with the exclusion of the cheeks, the tongue and

the brain. Such meat IS entirely bovine In origin. At the

time, Mr Jolley was handed a delivery receipt addressed to a

meat company carrying on business in Wagga Wagga. James Barnes Pty Limited, in which the contents of the load were itemised as follows:

I , - ctns B/L beef briskets S.P.

9 ctns brisket fat

308 ctns beef hearts

- ctns beef head meat

- ctns brisket trim

- ctns beef brlsket"

5.

James Barnes is itself a meat exporter, its premises being

registered under the number 39. It had, on 15 July 1982,

forwarded to the defendant a written order for 8.5 tonnes of

"boneless beef head meat" at 95 cents per kllogram. This order was numbered 458. Mr Jolley signed the original delivery receipt to acknowledge receipt of the load. He was

handed a delivery slip issued by the defendant, dated 16

August 1982 and addressed to "James Barnes Waqga N g ", which

described the load as containing: " 3 5 6 ctns frozen beef head

meat S.P.", "308 ctn frozen beef hearts" and "49 ctn frozen

beef brlsket fat S.P.". The 'slip quoted the order number 458.

Mr Jolley drove directly to Wagga Wagga and entered the

premlses of James Barnes Pty Limited shortly after midnight.

He parked the truck and went to sleep. At about 7 - 7.30 a.m.

Mr. James Simpson, a D.P.I. inspector at James Barnes'

premises, broke the seals on the doors f the truck and

employees of James Barnes unloaded Its contents. Mr Jolley

stated that the cartons were delivered in the same conditlon

as that in which they were received by him and that, to the

best of his knowledge, nobody interfered wlth them in any way.

His statement -- which 1 s not challenged by the defendant --

is supported by the far: that	Mr Simpson found the door seals
in an undamaged condition.

Mr Simpson inspected the load. Accompanying It was D.P.I. Meat Transfer Certificate issued by a

a D.P.I. officer at

Riverstone and identifying the consignment in the same manner

6.

as the delivery slip. Mr Simpson checked the details and

signed and returned to Riverstone a duplicate of that

certificate. He said that he did not himself count the

cartons; James Barnes employees did that. But he said that

he "did a spot check of all cartons coming in to see that they met with the -- what was written on the m.t.c.". He thought

that he would have looked at 75 per cent of the beef head meat

-

cartons. Each of the cartons which e examined bore the

appropriate D.P.I. numbered seal, the trade description

printed on the carton "Beef Head	Meat", and a date	of
production stamp.

The cartons were held in James Barnes' store. Eight

days later, on 25 August 1982, Mr David Schulz, another D.P.I. meat inspector, inspected some of the cartons in the store, including some of the batch of "beef head meat" cartons

received from the defendant on 17 August. Those cartons whlch

he inspected bore the various stamps and lnscriptions

described by Mr Simpson. He took samples from three separate

"beef head meat" cartons, following D.P.I. standard procedure.

This procedure involves breaking the D.P.I. seal on each

carton, collecting by a drill and three-quarter inch auger

bit a meat sample weighing not less than 50 grams, placing the

sample from each carton in a separate new plastic bag, and

sealing the bag with a numbered ta9 completed with

identification detalls. The collection equipment must be

cleaned between each carton so as to avoid cross-contarnmation

1 .

of samples. Mr Schulz then completed a D.P.I. form styled

"Specimen Advice Note - Species", generally referred to as

"S.A.N. note", in which he recorded the number of the

establishment of origin, the tag number, the stated productlon

date and the description of the meat. The S.A.N. note

completed by Mr Schulz on that day referred to ten samples, only three of which related to the product of the defendant.

In relation to those samples, the establishment of origin

number was shown as 503, the production dates as being 29

March 1982, 30 March 1982 and 31 March 1982 and the

descriptlon, in respect of each sample, a s "Beef Head Meat".

The samples taken by through departmental officers, to the Australian Government Mr Schulz were submitted,

Analytical Laboratory ("A.G.A.L.")in Pymble, Sydney. The

evidence discloses the intermediate handling of the samples.

The samples arrived at the laboratory with their seals intact.

There is no reason to suspect that they were tampered wlth

between the time that they were taken by Mr Schulz and the

day, 30 August 1982, upon which they were submitted to

analysis by one or both of two technlcal assistants employed

by the laboratory, MS Judith Thompson and Mr Domenico Rlitano.

Both of these assistants were experienced In carrying out

testlng to determine the species of animal from which meat was

taken, uslng a procedure called agar gel diffusion. Under this procedure the meat sample under investigatlon and an anti-serum are placed In adjacent wells cut in an agar gel,

8.

gelatinous substance obtained from seaweed. The meat extract

and anti-serum diffuse towards each other through the agar

until they meet. If matching proteins are present, a reaction

occurs which is apparent as one r more lines of precipitation

in the agar between the wells. The process involves an incubation period of about two hours, at the expiration of which the result is read off the sllde and recorded on the

S.A.N. note. The anti-sera used for the tests are tested,

upon receipt, against meat samples provided for that purpose

by D.P.I. and a control test is carried out in respect of each

slide. Although counsel for the defendant cross-examined In

some detail In regard to the procedure, there was In the end

no submisslon made that the procedure should be regarded as

ineffective for the purpose to which it is directed; and

within the limits claimed for it. I see no reason to doubt

the appropriateness of the analysis or the care with which it

was carried out in respect of the samples received from Wagga

Wagga .

The results of the three samples of "beef head meat"

received from Wagga Wagga were recorded on the S.A.N. note,

apparently by Mr Riitano, as being respectively "bovine and ovine", "bovine and porcine" and "bovine and porclne". The

word "ovlne" refers, of course, to sheep meat and "porcine" to

pig meat. Because the result did not tally with the claimed

species, the technical assistants repeated the tests, with the

same results. For the same reason a further test was carrled

9 .

out, a procedure called iso-electric focussing. This process

involves dissolving in water proteins out of the meat sample,

placing a tiny piece of the resultant solution onto an agarose

gel -- agarose gel being purified agar -- and subjecting It to

an electric current. The proteins of the various species of

meat migrate at a different rate between positive and negative

poles of the current and they stop when they reach their

neutral charge. The plate, therefore, provides a permanent

record of the proteins in the meat sample, with some

indication of the proportion of the various species. The

iso-electric focussing tests in relation to the three Wagga

Wagga samples were performed by MS Jill Slmpson, a technical

officer at the laboratory. MS Simpson explalned the procedure

in evidence. No critlcism has been made of It. The

iso-electrlc focussing tests revealed that one sample

contained between 20% and 30% ovine meat, the balance being

bovine meat, one sample contained 1 5 to 25% porcine meat, the

balance being bovine meat and the thlrd sample contained about

10% porcine meat, the balance being beef. Dr Kenneth Newton,

a microbiologist employed as a Senior Bacterlologlst in the

laboratories and who is in charge of meat species testlng, checked the resulLs of both the agar gel and iso-electric focussing tests, verifled the correctness of the result and

certified the S.A.N. note.

Apparently as a result of those tests, Mr Colin Macintyre, a D.P.I. veterinary officer at Riverstone, on 13

September 1982 exammed 95 cartons, each duly sealed and

10.

labelled "Beef Head Meat" which he had taken from the

defendant's cold store. He selected 25 cartons, each of which

bore a different date of production, the dates ranging from 23

July 1982 to 26 August 1982, and had a sample taken from each carton by a D.P.I. meat inspector, Mr Ronald Reay. Mr Reay

followed the D.P.I. standard procedure. The samples were

dispatched through departmental channels to A.G.A.L. where again Dr Newton checked, and confirmed, the results. The tests revealed that the meat in 1 6 of the 25 cartons was other than pure bovine meat. The impurities ranged from five cases of 5 - 10% ovine, balance beef though several cases of about

they were subjected to agar gel tests by MS Thompson and Mr

30% ovine and some cases where beef was less than	50% to two
cases where beef was not detected at all.

On 30 September 1982 Mr Barry Allison, another D.P.I. meat inspector statloned at Riverstone, examined 60 cartons in

the cold store which were marked with the trade description

"mutton skirts". "Mutton skirt" 1 s a term used to describe

the membraneous part of the diaphragm of sheep or lamb,

internal muscle separating the thoracic and abdominal

cavities. It is, of course, "ovine" meat. He took samples --

using the D.P.I. standard procedure -- from seven cartons,

produced on different dates in late July and early August

1982, and forwarded them to A.G.A.L. Agar gel tests were

carried out by MS Thompson and Mr Rlitano. They found that

11.

four of the samples were a mixture of ovine and porclne meat.

Dr Newton checked the agar gel tests but, on this occasion, no

iso-electric focussing tests were performed.

The three samples taken at the premises of James

Barnes have resulted in a total of flve lnformatlons being

laid against the defendant. Each information alleges that the

defendant "belng a corporation did in trade or commerce in

connexion with the supply of goods falsely represent that the

goods were of a particular composition In contravention of s.53(a) of the Trade Practices Act". The particulars in each

summons refer to a supply by the defendants "to one J. Jolley

for James Barnes Pty Limlted" of 356 cartons each labelled or

described as "beef head meat". The summons In matter G.60

refers to what was described as "carton 1" which, upon

analysls, was found to contain ovine meat mixed with beef head

meat. The summonses in matters G.61 and G.62 refer to the

cartons respectively described as "carton 3" and "carton 2 " ,

each of which was found to contain porcine meat mixed with

bovine meat. The relevant representations, in respect	of
matters G.60, G.61 and G.62 are said to be the trade

descrlption or label on the carton: "Beef head meat". The

summons in matter G.63 refers to the whole dellvery of beef

head meat, containing in all about 356 cartons, the relevant

representation being the descriptlon of that meat in the

delivery s11p as being 356 cartons of beef head meat. The

summons in matter G.64 also relates to the whole dellvery, the

12.

representati0n.m this case being that contained in the

delivery receipt form provided to, and signed by, Mr Jolley.

In respect of each information the prosecutor relles upon the

evidence of the analysis at A.G.A.L. to establish that each of

these three cartons -- and therefore the delivery as whole

-- contained meat other than beef head meat. The result is

said to be that the description "beef head meat" was	a f lse
representaion of the composition of the contents.

Two submissions have been made on behalf of the defendant in support of the proposition that, in respect of

First, it is said that no relevant representation was made.	these five informations, no contravention of s.53(a) occurred. head meat" is not contested. The wording of the delivery slip and of the delivery receipt -- both of which are in evidence
-- is beyond dispute. But it is said that the making of the
representations to Mr Jolley and, throyh him, to James Barnes was not a representation to which s.53(a) applied. Counsel
referred to the-view expressed by St. John J. In Westham
Dredsinu Companv Ptv Limited v. Woodside Petroleum Development Ptv Limited (1;82) 46 A.L.R. 287 at pp. 297-298 that the words
"trade or commerce" In s.52 of the Act -- and the position
under s.53 must be the same --imputed regularly of actlvity
and that they had no application to a c mmercial transaction
of a "private nature", by which his Honour meant a transaction
not involving a consumer. The application of that approach

13.

would create difficulties in a case such as this, in which the

sale was to a purchaser intending to further process the meat befoke sale to the ultimate consumer but in which, upon the

evidence, once the meat has been frozen it is not possible

visually to detect the presence of non-bovine offal in beef

head meat. However, in Lubidineuse v Bevanere Ptv Limited

(1984) 3 F.L.R. 1 at pp. 13-17, I explained my reasons f o r

concluding that the approach taken by St. John J. was unduly

restrictive in its application of the concept of

representations being made in trade or commerce. The view I

expressed was upheld by a Full Court upon appeal in that case:

see Bevanere Ptv Limited v. Lubldineuse (Morling, Neaves and

Spender JJ., 24 April 1985) pp. 16-17 wherein the Court said:

"It is true that conduct falling within s . 5 2

frequently occurs when statements are made by a

corporation to members of the publlc, but, ...

it does not follow that 5 .52 is confined to

statements directed to the public or some

identifiable section of it".

In the light of the Full Court decision, the submission that the relevant representations were not representations to which

s.53 relates must be rejected.

However, in one respect there is, in my view, difflculty about the representations made to James Barnes. a

I

see no problem about the three cartons from which the samples

were taken. It was proved that each of them bore the

descrlption "Beef Head Meat" -- a representation as to the

composition of their contents for all to see. In relation to

the delivery slip there was specific reference to 356

14.

cartons of frozen beef head meat, the order number quoted corresponding to that of the order for that type of meat. The

slip was clearly intended to be interpreted as'a statement

that, of the total delivery, the 356 cartons which represented

themselves as beef head meat were in fact beef head meat

delivered in satisfaction of that order. And the delivery

slip identified the remaining cartons, by number and

description, in a manner which clearly indicated that they

contained only bovine meat. The delivery receipt was not s

precise. It did not specify the number of cartons of beef

head meat and it did not describe the other items in the load

in such a way as clearly to indicate that they were bovlne

product. The receipt referred to "brlsket fat" and to

"brisket trim", without specification of the relevant species. not inconsistent with the terms of the delivery receipt. The evidence does not negate the possibillty that the three cartons contained mixed brisket trim. This, of course, is

unlikely but the lack of partlcularity in the receipt makes It

impossible to say that there was false representation In

relation to the three cartons which were sampled, or any of

them. I think that summons G.64 must be dismissed.

The defendant submits in relation to all of the

informations, including this group of flve "James Barnes" matters, that the prosecutor has not established beyond reasonable doubt that the cartons contained material other

15.

than bovine meat. The submission is that the evidence

relating to the agar gel tests is unsatisfactory because it

was not possible for MS Thompson or-Mr Riitano to say which of them carried out particular steps in the testing procedures. However, the evidence of each of these witnesses is that all

of the relevant steps were done by one or other of them. Each

of them were experienced in carrying out these tests. They were accustomed to working together. Mr Riitano apparently wrote down the results of the tests, either from his own

observations of the slides or from what was relayed to him by

MS Thompson. MS Simpson carried out iso-electric focussmg

tests which confirmed the results of the agar gel tests -- and

provided information as to thc extent of the intruslon of

other meats -- and Dr Newton checked the whole exercise.

Under those circumstances, I do not think that the fact that

it is not known which technical officer carried out which

particular actlon matters at all. The steps were carrled out

by a competent person and the slides checked by Dr Newton. On

the whole of the evidence there 1 s no room for doubt that each

sample contained meat other than beef head meat.

On the issue of

rely upon certaln documents obtained from the defendant

pursuant to a notice under 5.155 of the Trade Practices Act.

Thls material mcludes a letter dated 10 September 1982 from

falsity, counsel for the prosecutor

Mr A. P. Dyer, General Manager of James Barnes, to Mr R.

Golding, General Manager of the Angliss Group; of which group

16.

the defendant is a member. Mr. Golding is also a director of

the defendant. That letter dealt with the marketing

difficulties experienced by James Barnes as a result of the

analysis and sought compensation. In due course an agreement

was made for payment of compensation. A cheque for $21,163.80

was paid to James Barnes by the defendant in return for a Deed

of Release. However, the negotiatlons specifically proceeded

upon the basis that the defendant did not admit any liability

and this position was maintained in the recitals in the Deed

of Release. Evidence was given by Mr Dyer that his company

had enjoyed a lengthy and amicable business relationship with

the defendant, and with other members of the Angliss Group.

Particularly under those circumstances, the payment of

compensation -- even in such a significant sum -- 1s not

necessarily to be ascribed to a consciousness of gullt.

Counsel also rely upon the contents of a telex sent on 14 September 1982 by Mr T. P. Jones of the defendant

company to Mr K. R. Constantine, Chief Veterinary Officer of D.P.I., in which the statement was made:

"Upon receipt of this advice we immediately

investigated our procedure in the offal packing

departme,,t and as a result I am satisfied that

it was possiblz that the minute amount of pork

and lamb head meat saved at Riverstone could

have inadvertently been packed together wlth

beef present. I would stress that the content

of lamb and pork would be extemely small.

Nevertheless as from today procedures have been

instituted to absolutely ensure that such	an
error cannot occur again."

17.

Counsel for the prosecutor contend that this statement should

be regarded as an admission by the defendant of the falsity of

its representatiuns as to composition f the meat sold to

James Barnes. I do not think that it can be so regarded. In

the first place it is not certain that it relates to the meat

sold to James Barnes. The second batch of tests, from the

"beef head meat" samples collected by Mr Reay, had been

analyzed on that very day. Information as to the results may

have reached the defendant before the telex was dispatched.

Secondly, the admission made in the telex goes no further than

a concession of the possibility of an admixture. It falls

short of the unequivocal statement which would be necessary to

found an admlssion of the fact of admixture. I am satisfled

beyond reasonable doubt that each of the three cartons from

which samples were taken at James Barnes' premises by Mr

Schulz contained meat other than beef head meat but I reach

that conclusion solely by reference to the evidence as to the

results of the various analyses at A.G.A.L. I place no

reliance whatever upon either the payment by the defendant of

compensation to James Barnes or the content	of the telex to
Mr. Constantine.

I have considered for myself the chain of evidence

adduced by the prosecutor in support of his claim of

contravention of s.53(a) by the defendant in respect of the

"James Barnes" cartons. I think that the evidence is complete

and persuasive. I do not thmk that any other matter in

18.

defence of the claim of contravention is even arguable by the

defendant. The argued matters being rejected, it must be held

that contraventions have been proved.

In addition to arguing that the prosecutor had not

established a contravention of s.53(a) in relation to matters s.85(1)(a) of the Trade Practices Act. That provision reads:

"85(1) Subject to sub-section ( 2 ) , in a

prosecution under this Part in relation to a

contravention of a provision of Part V, it is a

defence if the defendant establishes -

(a) that the contravention in respect of which the proceeding was Instituted was due to reasonable mistake;"

Sub-section ( 2 ) requires prior notice to the prosecutor of the

intention to rely upon s.85(1); a requirement which was

satisfied in this case.

It will be noted that, under s.85(1), the defendant

carries the onus to establish the exculpatory facts relled

upon -- in this case reasonable mistake. The section does not

refer to the requisite standard of proof but, In accordance

with accepted principle, the defendant need only satisfy the

cvll standard: proof upon the balance of probabllitles. See

Ballard v Sperry Rand Australia Llmited (1975) 6 A.L.R. 696 at

p.706 and Guthrie v. Dovle Dane and Bernbach Pty Limited

(1977) 30 F.L.R. 116 at p.120.

19.

In connection with the meaning to be accorded to the

word "mistake" in s.85(l)(a) counsel for the defendant 'relled

upon a passage in the judgment of Smith J., of the Victorian

Supreme Court, in Bovle v. Wriqht (1969) V.R. 699. The

defendant was charged with selling loaves of bread below the

prescribed weight, in contravention of the Weishts and

Measures Act 1958 (Vict.). By 5.92 of that Act it was a

defence, inter alia, for the defendant to prove that the

commission of the offence was due to "a bona fide mlstake" and

that he had taken all due precautions and exercised all due

diligence to prevent the commission of the offence. In

relation to the defence of mistake, his Honour said at p.701:

"Upon the ordinary and natural meanlng of the language of the section it would be sufficient for the defendant to show that the cause must

have been a mistakeA or mistake B, though he

cannot say which it was. It would also be

sufficient for him to show that the cause must

have been a mlstake A or accldent B, and I see

no reason why it should not be sufficient for

him to show that it must have been some mistake

(or some accident) of a general description or

class. Of course it may happen, in a particular

case that the defendant's Inability to sh w what

was the precise cause of the underweight loaves being produced will result in the tribunal being unable to feel satisfied that the cause was, In

fact, a mistake or accident at all. And, in

general, the less specific the Inferences are

that can be drawn from the evidence, the more

risk the defendant runs that the tribunal will

feel unable to be satisfied that the clalm for

protection under s.92 has been made out."

The approach taken In Boyle v Wrisht 1 . I thlnk,

equally applicable to s.85(l)(a). However, It should be noted

that, although Smith J. said that It was not necessary for a

20.

defendant relying upon such a defence to demonstrate which one

out of two mistakes, or out of a class of mistakes, had caused

the short weight, he did insist that it was necessary for the

defendant to demonstrate that the cause of the short weight

was a bona fide mistake (or accident). It is not enough that

the defendant show a mere possibility of a bona fide mistake.

In the present case the defendant called no evidence. It did adduce, by way of cross-examination, evidence that there were

a number of topping up trays -- which apparently usually held

different types of meats -- near the scales. One may

speculate about the posslblllty that inadvertent mixing

occurred because of an employee reaching into a wrong tray for

topping up material but this is mere speculation; there is no

basis whatever to conclude that this was, in fact, the cause

of the various mixtures. It is equally possible that, for

some reason not explalned by the evidence, the mixing was the

result of deliberate actlon. I emphasise that, I make no

finding that the mixing was the result of deliberate action;

it would be proper to make such a finding only If there were

cogent evidence to that effect, and there is no evidence

whatever. The point, however, is that there is no evidence to

negative deliber,te action so that thls possibllity cannot be

ruled out; and, as counsel for the defendant concede, there

belng no evidence of mlstake, one can only reach a conclusion

of mistake by a process of elimination after findlng that the

hypothesis of deliberate action must be rejected as being

inconsistent with the evidence.

21.

There are three other difficulties about the defendant's submission. The evidence shows that several of

the samples contained a major proportion of the"foreign" meat;

indeed, in two cases, only the "foreign" meat -- being not

less that 90% of the whole -- was detected upon the analysls.

It is possible to understand that a packed carton, being

slightly underwelght, might be topped up from an Incorrect

tray so that it might contain say 5 - 10% of "foreign" meat.

It is difficult to see how inadvertent topping up could

account for a carton containing say 30% of "foreign" meat;

the initial packlng would have had to be very obvlously short.

It is even more difficult to see how faulty topping up of a

packed carton could account for the whole, or almost the

whole, of the meat in that carton being of the incorrect

species.

The second difficulty about the hypothesis is that the evidence shows that the mixtures occurred in relation to

packings carried out upon a total of 20 dlfferent days, mostly

in July and August 1982 but includlng three days in March

1982. The repetition of mixing upon so n m y dlfferent days is

inconsistent with a casual mistake upon a particular occasion.

If mixing was the product of carelessness rather than of

deliberation this could only have been because of some chronic

problem, some deficiency in the adopted system of work. But

not only was there no evidence of the existence of a de ective

2 2 .

system of work of such a nature as to create the problem;

counsel for the defendant took some trouble to obtain evidence

from the D.P.I. officers that they had no complaint about the

method of operations of the defendant. In the face of that

evidence -- and as there is no reason to doubt the competency

of the D.P.I. officers -- it is difficult to conclude that the

problem stemmed from a lay-out deficiency In the offal room.

Finally, If it were found that the mixing had Irpsulted from a deficiency in the system of operatlons in the

offal room, then questions would arise whether such a

deficiency constituted a "mistake" within the meaning of

s.B5(l)(a) and, if so, whether such a mistake was

"reasonable". In the absence of proved facts to which one may

apply the words of s.B5(l)(a) it is undesirable to offer any

firm view but it is not clear to me that the word "mistake"

should be regarded as apt to refer to a contraventlon

occasioned by a chronically defective system of operations in

a manufacturing establishment. The word "mistake", in thls

context, would appear to be lntended to refer to a casual and

isolated error in respect of a particular matter; whlch error

caused a contravention. Nor, if the system was so defective

as to result in the mixing of "foreign" meats on numerous days

over a slgnificant span of time, is t easy to say that the

"mistake" was "reasonable". I need not say more about the

application of the paragraph. The necessary substratum of

facts is not proved. The defendant has not made out	a defence
under s.85(l)(a).

23.

The offences alleged in each of the informations in proceedings G.60, G.61, G.62 and G.63 have been proved.

The remaining 20 matters may be discussed together.

They consist of 16 informations arising out of the samples

taken by Mr Reay from the "beef head meat" cartons on 13

September 1982 and four informations arising out of the "mutton sklrt" samples taken by Mr Allison on 30 September

1982. In relation to each of those matters the defendant repeats the submission based upon Westham Dredqinq, the

submission relating to the inability of MS Thompson and Mr

Riitano to say which of them carried out partlcular steps in the analysis and its reliance upon s.85(l)(a). For the

reasons already set out, I reject those submissions in

relation to each of those informations. It is true that, In

respect of the four "mutton skirt" informations, no

iso-electric focussing Lest was performed but the results of

the agar gel tests were verlfied and confirmed by	Dr Newton.
There is no reason to doubt their accuracy.

In respect of these 20 informatlons the defendant puts two additional arguments. The various informations alleqe

a representation to the D.P.I. as to the composition of each

carton. The case for the prosecutor is that there was such representation, by the trade description stencilled upon a

the

particular carton, at the time at which the carton was

24.

presented for sealing and stamping. The defendant says that

there is no evidence that the particular cartons were so

labelled at that time and that it is a possible view of the

facts that the trade description was affixed to the outside of

the cartons after they were sealed. It may be commented that

it is highly unlikely that the defendant would wish, or that

the D.P.I. would permit, such a procedure. It would be hard

to imagine a system more productive of confuslon and of the

possibility of the delivery to purchasers of incorrect orders.

Moreover, indifference by the D.P.I. to the existence of a

trade description upon cartons presented for sealing 1s

difficult to reconcile with the fact that, in his telex of 14

September 1982, Mr Jones thought it necessary to seek the

agreement of Mr Constantine "to alter the descriptlon" (of the

cartons found to contain other meats) "from 'beef head meat'

to 'head meat trimmings'". However, it is not necessary to

consider what conclusion should be drawn from these matters.

In his statement, admitted by consent into evidence as proof

of its contents, Mr McIntyre -- who has worked for the D.P.I.

at Riverstone since 1964 -- described the sequence of packing in the offal room. The first step in the sequence, he said, was "the trade description of the meat is usually stsncilled

on the cartons before packing on the day of packing but it 1 s

posslble that the stencilling could be done the day before

(e.g. a blg packing job may require thousands of cartons)".

The second step was the packing of meat Into a carton, the

third the production of the carton for approval by the D.P.I.

. 25.

and the fourth the closure of the cartons and the application

of the relevant stamp. This evldence was not challenged. It

is consistent with the oral evidence of Mr Allison that the

cartons "would be stencilled but they might do 50 or 60 at a

time, they can do any number of those 2nd leave them in the

carton room". It is inconsistent in detail wlth the evidence

U € Mr Reay that, to his knowledge, the stencilled matter was

-

applied at the time of manufacture of the carton, not at the

defendant's works. However, whether the stencilling was done

by the manufacturer or by the defendant, the evidence of all

three of these witnesses supports the common sense position

that the trade description was, as a matter of practice,

applied to each carton before it was packed, approved and

sealed.

Finally, the defendant submits that representation

to the D.P.I. IS not a representation "in trade or commerce".

The purpose of Part V of the Trade Practices Act, it is

submitted, is the protection of consumers and it is difficult

conceptually to treat the representations to the D.P.I. as

within its purview; those representations not being made t3 a

consumer or to a person who wlll purchase the food for re-sale

to a purchaser but to a government department havmg functlons

in relation to the control of exports. TG a substantial

extent, it seems to me, this submission is but a repetition of

the argument put In reliance upon the decislon of St. John J.

in Westham Dredqinq and it overlooks that one purpose for

. ..

26.

which the D.P.I. exercises export control is for the

protection of consumers; although another purpose, no doubt,

is the protection of the reputation of the Australian meat

industry. However, the answer to the submission is that s.53

contains no such qualification. The only limitations imposed by the section are that the representatlons must be made "In

trade or commerce" and "in connexion with the supply or

possible supply" of goods. The words "in trade or commerce" have a wide ambit: see Larmer v Power Machinery Pty Limited (1977) 29 F.L.R. 490 at p.493 and the Full Court decision in

Bevanere v Lubidineuse. In Re Ku-rinq-qai Co-operative Buildinq Society (No 12) Limited (1978) 36 F.L.R. 134 at

p.139, Bowen CJ., in referring to the matters comprised within the terms "trade" and "commerce", speclfically mentioned the

- transport and delivery of goods. The obtaining of a D.P.I.

seal is a condition precedent, under the Export (Meat)

Requlations, to the delivery for export of goods to whlch the

regulations relate. It would appear that the whole of the

activities of the defendant at its premlses at Riverstone were

undertaken in trade and commerce. The obtalning of D.P.I.

approvals was a fundamental part of those activities. And, of

course, the obtaining of approvals was something done in

connexion with the supply of the goods. Without the approval

and sealing of a particular carton there could be no supply that carton to the export market. The case falls squarely of

withln the openlng words of s.53.

In my view there is no substance In any of matters raised on behalf of the defendant In relation to the the

informations In proceedings numbers G.33 - G.44, G.47, and

G.49 - G.56. Once again, it appears to me upon a

consideration of the whole of the evidence that no other

sruuable question arises as to	its sufficiency. Each of these
offences is proved.

I will not, at this stage, enter any convl-tlons

Court Rules I propose to allow to the parties the opportunity

of filing affidavits in relation to any matters which they may

or

make an:; formal orders. Pursuant to 0 . 4 9 r . 5 of the Federal

wish to put before me, In addition to the existlng endence,

for consideration ln relation to the matter of penalty. After

discussion with cmnsel I will give directlonz as to the tlme

within which such affidavlts must	be filed ar.d fix a date for
hearin? of that matter.

I certify that this and the twenty-six	( 2 6 )
precedlnq pages are a true copy of the

Ressons for Judgment on Liabilltp	herem of
hls Honour Mr. Justice Wilcox

Date: 1 May 1985

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)	NOS. G 34-44, 4?, 49-56
)	and 60-64 of 1983

GENERAL DIT7ISION

BETWEEN : WILLISM ALBERT BROWN

Applicant

m: RIVERSTONE MEAT COMPANY

PTY LIMITED

Respondent

CORAM: WILCOX J.

m: 30 MAY 1985

PLACE : SYDNEY

REASONS FOR JTJDGMENT ON PENALTY

On 1 May I indlcated my view that, in relation to 24

out of the total 25 informations, the offences should be found to be proved. Pursuant to directions then made the defendant

has filed two affldavits dealing n t h matters ielevant to

penalty. One of those affldavits is made by Nqaire Macdonald,

a consultant dletitlan. who deposes that beef head meat, sheep

head meat, pork meat and mutton skirts are all edlbl? protein. She states that there is no dietary or nutritional

L .

disadvantage to any consumer arising out of the admixture of these meats, on the basls of an admixture ranging from as

little as 5-10% to as much as 90% of ovlne or porcine meat,

provided that the fat content of the meat species is broadly

the same.

The second affldavit is that Jones, New South Wales manager of the Analiss Group of Terence Patrick

of

companies, a partnership of which the defendant is a member.

That affidavlt deals in some detail with the system of

operations at the defendant's premises. It appears that, in the slaughtering area, there are separate chains for the

processmu of cattle, sheep and la.mbs (handled alternatively)

and pigs and calves (also handled alternatively). Offal 1s

removed, in each chain, at two separate polnts; one deallng

with internal organs and the other with head offal. Head

meat, when saved, is placed in a plastic bucket and lowered

throuah an enclosed shaft to the edible offal packing room

below. Offal of any partlcular species is supposed to be-kept

separate from that of any other species. Only one bucket --

and therefore the offal of only one species -- may be lowered

at a time. Mr. Jones states that only ovine and bovlne -- and

not porcine -- head meat is ~ 7 e r saved. The distinction

between ovine and bovine head meat is, he saps, "readilyr made

as the colour and size of beef headmeat is cm iderably darker

and larger than in the case of sheep headmeat". Head meat 1 s

packed into cartons each weighin? exactly 60 lbs.; exact

3 .

weight being a normal requirement of the processors who

purchase this material. There are separate tables for the

packing of the offal of each species but, at the relevant

time, there was a common scale area equipped with a rack

containing a serles of trays which held sundries required to make up the exact welght. The necessary weight adjustments

were made at that common scale. The carton was then strapped,

sealed and dispatched to the freezer section

It appears from Mr Jones' affidavit that the

production of beef head meat and mutton skirts was in 1982 a relatively minor part of the defendant's business. Buainst total sales of $91,939,525 beef head meat contrlbuted only

$25,393 and mutton skirts $9,286. B total of 29.3 tonnes of

beef head meat and -- by calculation from Mr Jones' flgures --

about 10.7 tonnes of mutton skirts were processed in that

year.

Mr Jones states that immediately after learnina of

the admlxture of the meat dellvered to James Barnes he went to

Riverstone and inspected the offal department. He says that

it became obvious to him upon such examination that "it was at

leasc possible" for product to be mlxed at the scale area in

the course of the addition or subtractlon process necessary to

achieve an exact weight of 60 lbs.. Mr Jones directed that,

as an immediate measure, the company should save only beef

head meat. About one week later he dlrected that the company

4.

revert to saving other species but that, until separate scales

for each species could be provided, the company discontlnue

the prartlce of welghing the cartons. By March 1983 separate

weighing stations had been provided for each species and the

company then reverted to exact weighing.

Mr Jones states that the policy always been, and continues of the defendant has

to be, that its products must be

true to label In all respects. He denies that the acts giving rlse to the present contraventions were deliberate upon the

part of management and states that he is not aware of any

matter or thing which would warrant the view that they were

deliberate upon the part of any employee or employees	of the
company.

-

Counsel for the defendant submlt that there is no

evidence to suggest that the contraventlons of the Trade accidental. The prosecutor does not submit to the contrary and I accept that the matter of penalty should be approached

upon the basis that there is nothlnu to indicate any

deliberate breach. Even so, there are a number of

circumstances whlch reflect poorly upon the company. Thls is

not a case I n which, upon a single occasion, meat of one

species has been mixed by an inadvertent employee with meat of

ancther. As I pointed out in my judgment on liability,

mixtures occurred in relation to packlnus carried out upon a

5.

total of 20 different days. If -- as Mr Jones suggests in his

affidavit -- the cause of the problem was at the wpiqhlng

station, there was a serious and persistent problem at that

point. According to Mr Jones, bovine head meat 1 s easily

distingulshable from ovine head meat. The employees

-.

responsible for the topping up and weighing of cartons must. upon Mr Jones' hypothesis, have been very careless indeed, and

persistently so. Their performance ralses questlons as to

their selection and supervision. Moreover, it would appear.

both from the fact of the numerous admixtures and from Mr

Jones' description of the processes adopted in the offal room,

that there was no syskem of checking the contents of the cartons before seallng. It is true that, assuminq that the meats inadvertently mixed with the "beef head meat" and

"mutton skirts" were edible ovine and porcine meat and edible

bovine meat respectively, with similar fat content, no dietary

or nutritional disadvantage would have been suffered by any

consumer as a result of the various mixtures. Nonetheless, as

Mr Jones himself recognizes, accurate labelllnq 1 s of prime

importance to purchasers of the company's product and,

ultimately, to the regutatlon and prosperlty of the Australian meat industry. A system of xork which permits the repetltion, over numerous working days, of unlntended mixcures wlth

consequent false labellmg is open to serious criticism. It

1 s also true that, as counsel for the defendant point out, the

D.P.I. officers at the premises had not complained of any

deficiency in the system of work. If Mr Jones' hypothesls 1 s

6

correct, they may have been at fault in failing to see the

potential problem but -- as counsel recognize -- the primary

responsibility for instituting and maintaining a proper system

of work which will, amongst other things, ensure accuracy to

label rested with the company. Its failure adequately to

discharge that responsibility is the cause of the various

contraventions.

The absence of any evidence to suggest that the

sub~ect contraventions were deliberate or that the foreign

material would have been deleterious to a consumer is a

powerful factor in favour of the defendant In relation to

penalty. Four other matters, which are not the subject of

dispute, were justifiably, in my view, relied upon by its

counsel: the prompt and effective action of Mr Jones to

".

identify and to rectify the apparent cause of the problem. the

payment of acceptable compensatlon to James Barnes, the

co-operation of the company wlth the D.P.I. in Its enqulry

into the contraventions and the previous good reccrd and hlgh

-

commercial reputation of the defendant. Counsel added a

further matter: the absence of any need to apprehend any

future contraventions by the defendant. As to that matter I

think that all that one can say is that, If Mr Jones'

diagnosls of the cause of the problem 1 s correct, the steps

taken by him would seem to have reduced significantly, if not

entirely eliminated, the likellhood of any repetition from

that cause. There is nothmg to indicate the likelihood of

7.

repetition from some other cause but it is perhaps too

sanguine a view to say that there definitely will be no future

contravention of this Act. No doubt the company will proflt by this experience but, as with any other company, the possibillty exists whilst trading continues.

The maximum penalty for a breach of 5 .53 of the Act

provided by s.79, in the case of a body corporate, is $50,000

- . -

for each offence. However, s . 7 9 ( 2 ) provides an important

qualification, upon whlch the defendant relies. It reads:

" 7 9 ( 2 ) Where a person is convicted of

two or more offences constituted bp, or

relating to, contraventions of the same

provision of Part V, being contraventions that

appear to the Court to have been of the same

nature or a substantially slmilar nature and

to have occurred at or about the same time

(whether or not the person is also convicted

of an offence or offences constituted by, or

relating to, another contravention or other

contraventions of that provision that were of

a different nature or occurred at different

time!, the Court shall not, in respect of the

first-mentioned offences, impose on the person

fines that, in the aggregate, exceed the

maxlmum fine that would be applicable in

respect of one offence by that person against

that provision. "

The various offences which I have found proved each

arise under the same provision of Part V, namely s.53(a).

They are of a substantially similar nature. In relatlon to

the four James Barnes' offences, each of the relevant facts

took place "at- or about the same time". The three cartons

of meat were packed upon three successive days, 29,30 and 31

8.

March 1982. The representations relied upon by the

prosecutor, that is the representations to James Barnes.

were made at the one time.' Section 7 9 ( 2 ) applies to these

four offences, considered as a group.

In relation to the 20 offences arising out of the

analysis of samples taken from the cartons still at

Riverstone a similar position applies. These cartons were

packed over a total of 1 7 different days between 2 3 July and

25 August 1982. The various representations relied upon by

the prosecutor, to the D.P.I., were made upon those days. I

thlnk that, within the meaning of s . 7 9 ( 2 ) , it may be said

that each of these 20 offences took place "at or about the

same time" ., It is true that in some cases the

representation was that the carton contained beef head meat

whilst in others it was that it contained mutton skirts but

this does not affect the substance of the matter. Each

offence was of a similar nature.

I do not accept the view that the four James

Barnes' offences must be treated as having been commlttzd

"at about the same tme" 1 s the other 20 offences. It 1s

true that the actual delivery to James Barnes took place on

16 August, within the period of the 20 offences, and that ir;

was upon that date that the charqed offences were complete.

But these three cartons had been packed nearly five months

earlier. It was at that time that the conduct occasioning

9 .

the breaches occurred. Indeed, to compare like with like, I

note that had the prosecutor elected to brlng a change

identical to.that in the 20 other cases, the offences in relation to the James Barnes' cartons would have been

complete in March. It seems to me that the purpose of

s . 7 9 ( 2 ) was to avoid a multiplication of the available

maximum penalty because of the circumstance that slmilar

actions or omissions made at a substantlally similar time

have given rise to a multiplicity of offences. It would

not, in my view, be consistent with that intention to treat

the contraventions arising out of the March processing as

having occurred at the same time as the contraventlons

arising out of the July-August processing simply because the

prosecutor has elected to rely upon a representatlon In

relation to the former made during the currency of the

latter. For the purposes of s . 7 9 ( 2 ) the James Barnes'

contraventions should be regarded as not havlng occurred at

or about the same time as the other 20 offences. It

follows, in my view, that the maximum penalty available to

be imposed in relation to the totality of the offences is

$lOO,OOO; belng $50,000 in respect of the four James

Barnes' offences and	a furthcr $50,000 In respect of the
other 20 offences.

For the reasons I have outlined in relation to

s 7 9 ( 2 ) it is appropriate to assess separately a penalty In

respect of the four James Barnes' offences and in relatlon

10.

to the other 20 offences. I take into account, in the

defendant's favour, each of the matters to which I have

already made reference. I take into account that the

production of beef head meat was a comparatively minor

aspect of the defendant's business; although that

consideration cuts two ways in that the James Barnes'

delivery of 16 August 1982 was of a quantity amounting to

almost 30% of che yearly production of beef head meat and

the small scale of the operation should have made

supervision easier. I also bear in mind the necesslty to

emphasize, both to this defendant and to other trading

companies, the necessity, in the interests of purchasers and

ultlmate consumers, to establish and to maintaln a system

which will ensure the accurate labelling of products. In

respect of the James Barnes' offences	I impose a total
penalty of $10,000.

It is important to ensure that there is no duplication of penalty because of a repetition of the false

representation to the same reclplent. It is equally

important to ensure that a proper penalty is not avoided by

the circumstance, if it should occur. of a successful appeal

against a particular convlctlon, to which the total penalty

has been attached, there being -- because of that

circumstance -- no penalty attached to the offence arlsmq

out of the second representation. The approprlate course

is, therefore, to fix a penalty in the full sum of $10,000

.

11.

in.relation to matter G 6 3 , which arises out of the false

representation upon the delivery sllp relatinq to the whole

consignment to James Barnes but to provide that, if that

penalty is paid, there be no additional penalty in matters

G 6 0 , G 61 and G 6 2 in respect of the repetition of the same

false representation upon each of the three cartons. If

however, for any reason the penalty in matter G 6 3 is not

paid, it would be inappropriate that the defendant escape

without penalty in relation to these last three matters. I

propose, therefore, to impose a penalty of $3,333 in

relation to each of these three matters but to provide that,

if the penalty in G 6 3 is in fact paid, those three smaller

penalties shall not be required to be paid.

The acts and omissions qivinq rise to the remalninq

20 offences are of a similar nature to those qlving rise to

the James Barnes' offences. But they are shown to have

extended over a much longer period. Any assumption that the

March contraventions may have been contributed to by the

pressures of work over a particular few days 1 s impossible

in relation to the July-August processing. On the contrary

the length of the period emphasizes the extent of the

deficiencies in system and supervlsion. Havlnq regard to

the length of the period, but agaln bearing in mind the

factors previously mentioned, it 1 s approprlate to impose a

total penalty of $20,000 in relation to these latter 20

offences. There 1 s here no element of duplicatlon -- as

12.

between a representation relating to the whole and

representations relating to part -- so that I propose to

distribute this total sum equally over all 20 offences,

resulting in a penalty of $1,000 in respect of each matter.

It follows that the total penalty required to be paid by the defendant, in relation to all 24 offences in

respect of which convictions will be entered, is $30,000.

The defendant must pay the costs of the prosecutor.

I certify that this and the eleven (11)

preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Wilcox.

Date : 30 May 1985

Counsel for prosecutor: Mr D Grieve Q.C.

with Mr J A McCarthy

Solicitor for prosecutor: Director of Public Prosecutlons

Counsel for defendant:	Mr B Sully Q.C.
with Mr D Conti

Solicitors for defendant: Messrs. Bell Cadoqan Couston &

Gengos

Dates of hearing: 2 2 , 2 3 , 24 April 1985 and

20 May 1985