JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: CAREY -v- COMMISSIONER FOR CONSUMER PROTECTION [2012] WASC 8
CORAM: MURRAY J
HEARD: 6 JULY 2011 & ON THE PAPERS
DELIVERED : 10 JANUARY 2012
FILE NO/S: SJA 1024 of 2011
BETWEEN: NORMAN PHILLIP CAREY
Appellant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P G MALONE
File No :PE 71897 - PE 71901 of 2008
Catchwords:
Criminal law and procedure - Unfair trading practices - False representations as to possible disposal of strata title interests in land - Whether defence available to director of offending corporation - Principle of incontrovertibility applied when convicted corporation not a party to appeal - Particulars of charges
Legislation:
Fair Trading Act 1987 (WA), s 12, s 81
Result:
Appeal dismissed with costs
Category: A
Representation:
Counsel:
Appellant: Mr M H Zilko SC & Mr M de Kerloy
Respondent: Mr W Brind Zichy-Woinarski QC & Mr M Crowley
Solicitors:
Appellant: Mony de Kerloy
Respondent: Mr M Crowley, Department of Commerce
Case(s) referred to in judgment(s):
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100
Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Lancee v Willert [2008] WASCA 120
R v Carroll [2002] HCA 55; (2002) 213 CLR 635
MURRAY J:
The charges
By a prosecution notice dated 10 November 2008, the respondent laid a number of charges of offences under s 12(2)(b) and s 81(1) of the Fair Trading Act 1987 (WA) (FTA). Five charges went to trial and they are identical in form. Each charge related to a particular lot on an identified strata plan, and each related to a particular date of offence.
A company, Westpoint Realty Pty Ltd (Westpoint) was alleged, in trade or commerce, in connection with the disposal or possible disposal of an interest in the identified piece of land, on the particular date given, to have made a false or misleading representation concerning the use to which the land was capable of being put, contrary to s 12(2)(b) and s 69 of the FTA.
It was alleged that the appellant, Mr Carey, and a Mr Niven, as directors of Westpoint, and a Mr Rundle, as the secretary of Westpoint, were guilty of the same offence pursuant to the FTA, s 81(1).
Factual matters
A subsidiary of the Westpoint group of companies, Lanepoint Enterprises Pty Ltd (Lanepoint) bought a piece of land in Rivervale, fronting on to the Great Eastern Highway. The land at that time, as I understand it, was occupied by a motel known as The Regency. The land, including a redevelopment of the original motel building, was to be developed in stages into residential units. Stage One…
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- Case
- [2012] WASC 8
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the defendant could be held liable for the actions of the corporation and, if so, whether a defence of incontrovertibility could be applied in this context. The court needed to determine whether the principle of incontrovertibility, which usually applies when a corporation is convicted of an offence and is not a party to the appeal, could be extended to this case. Additionally, the court had to consider the adequacy of the particulars of the charges against the defendant.
The court held that the defendant could indeed be held liable for the corporation's actions under the principles of vicarious liability. It was established that the director's role in the commission of the offences meant that he could be held accountable. However, the court found that the principle of incontrovertibility did not apply in this instance because the corporation was not a party to the appeal. The court also determined that the particulars of the charges were sufficient, as they provided a clear description of the alleged offences, including the specific instances of false representations and the timeframes involved. Consequently, the appeal was dismissed, and the defendant was held liable for the unfair trading practices.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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