Carey v Commissioner for Consumer Protection - [2012] WASC 8

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
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] WASC 8
Decision Date: 10 JANUARY 2012

CaseChat Overview and Summary

Carey v Commissioner for Consumer Protection concerned a dispute between the defendant, a director of a corporation, and the Commissioner for Consumer Protection. The defendant was charged with various counts of unfair trading practices under the Australian Consumer Law, specifically related to false representations about the disposal of strata title interests in land. The case was heard and determined by the Federal Court of Australia.

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