Commissioner for Consumer Protection v Bluesky Healthcare Pty Ltd - [2009] WASC 159

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: COMMISSIONER FOR CONSUMER PROTECTION -v- BLUESKY HEALTHCARE PTY LTD [2009] WASC 159

CORAM: BLAXELL J

HEARD: 25 FEBRUARY 2009

DELIVERED : 5 JUNE 2009

FILE NO/S: SJA 1104 of 2008

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

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G N CALDER
File No  :PE 37416 of 2008

Catchwords:

Consumer protection - Appeal from dismissal of charges under Door to Door Trading Act 1987 (WA) - Whether first respondent's trading practice was 'door to door trading' within the meaning of the Act - Whether the invitation to attend the consumer's house was unsolicited

Legislation:

Door to Door Trading Act 1987 (WA), s 3, s 4, s 6

Result:

Appeal upheld
Matters remitted back to Magistrate

Category: B

Representation:

Counsel:

Appellant:     Mr J Garas
First Respondent           :     Mr R J Nash
Second Respondent      :     Mr R J Nash
Third Respondent          :     Mr R J Nash

Solicitors:

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

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

Kelly v The Queen ( 2004) 218 CLR 216

BLAXELL J: This is an appeal from the decision of a Magistrate in the Perth Magistrates Court dismissing four charges against the respondents under the Door to Door Trading Act 1987 (WA) (the Act).
The charges were all in similar terms and alleged that between 1 and 27 November 2007, the first respondent (Bluesky) supplied goods under a prescribed contract to a consumer as defined by the Act. It was alleged that the contract documentation did not include the matters stipulated by s 7(1)(f), s 7(1)(g)(i) and s 7(1)(g)(ii). It was also alleged that monies were accepted within the 10 day 'cooling off period' contrary to s 8(1) of the Act. The second and third respondents (as directors of Bluesky) were said to be vicariously liable for each of the alleged offences pursuant to s 20(2) .
The primary facts as found by the Magistrate were largely common ground, and the issues between the parties essentially turned upon his Honour's secondary findings, as well as the proper construction of the Act. In this regard the Magistrate was required to determine whether Bluesky attended at the consumer's house in the course of 'door to door trading' (as defined in s 3), whether it did so 'otherwise than at the unsolicited invitation of the consumer' (as required by s 4), and whether the invitation to attend arose from 'a communication initiated by the supplier' (as also provided in s 4).
His Honour held that on the facts as found, the invitation from the consumer for Bluesky to attend her house was 'not unsolicited' within the meaning of the Act. This was because the invitation arose from a communication initiated by Bluesky. Nevertheless, the charges were dismissed because his Honour considered that the relevant trading practice of Bluesky did not constitute 'door to door trading'.
The appellant now appeals from this last determination and the respondents have lodged a notice of contention disputing the Magistrate's determinations in respect of the other issues.

The relevant legislation

The main purpose of the Act is to provide consumers with a right to rescind any contract they have made with a door to door seller of goods or services. It achieves this by stipulating various requirements in respect of 'prescribed contracts', (which term is defined by s 6 to cover nearly all contracts negotiated with consumers in the course of door to door trading). It is important to note that the Act includes within 'door to door trading' the trade practice of canvassing sales by telephone.
The most significant requirement of the Act is that a prescribed contract have a 'cooling off period' of 10 days. During this period the supplier is prohibited from delivering any services or accepting payment of any moneys under the contract, and the consumer has an unrestricted right of rescission. There are further requirements as to the contents of the contractual documentation, and the Act also contains numerous other provisions which regulate door to door trading generally.
Section 3 of the Act defines door to door trading as follows:
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;
The criteria which determine whether a particular contract is a 'prescribed contract' include those set out in s 4:
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.
(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.
The term 'dealer' is defined in s 3 as follows:
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);
Subject to s 6, a contract to which the Act applies is a 'prescribed contract' and it must contain certain provisions and notices as set out in s 7. The prohibitions against the supply of services or acceptance of money during the 'cooling off' period are to be found in s 8.

The evidence and the facts as found by the Magistrate

Bluesky is a manufacturer and retail seller of electrical adjustable beds and electrical lift and recliner chairs. The company conducts its business from a showroom in Osborne Park and also attracts potential customers by means of a mobile display stand which tours major shopping centres for approximately one week in turn. Relevant to the present matter, the display stand at the material time was set up at 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 Bluesky's employee who was operating the stand, Mrs Lenise Leopold.
During the lengthy conversation that followed, Mrs Bacon outlined her mobility difficulties including the fact that she had undergone hip and knee operations. She expressed interest in acquiring a lift chair and at Mrs Leopold's request voluntarily provided her contact details including her address and telephone number. Mrs Leopold recorded these details on a form in a book kept for the purpose and also wrote the word 'keen' to denote that Mrs Bacon had shown enthusiasm for Bluesky's products.
Although neither of those witnesses could recall their exact conversation, the Magistrate was satisfied that Mrs Leopold informed Mrs Bacon that she would be contacted by someone else from Bluesky. In that regard, Mrs Bacon was well aware that Mrs Leopold was the first point of contact, and provided her telephone number so that 'she could be contacted by phone by Bluesky' (AB 188).
The contact details were passed on to Bluesky's office, and Mrs Bacon was telephoned soon afterwards by the company's client service manager, Mrs Julia McDonald. During the 20 minute conversation that followed, Mrs Bacon sought further information from Mrs McDonald about Bluesky's products and indicated that she was particularly interested in a lift chair. When she asked about the cost of a lift chair, Mrs McDonald informed her that there were many variations and that a pricing could not be given over the telephone. Mrs McDonald also said that Mrs Bacon had three options, which were that a company representative could attend her home by appointment, an appointment could be made for Mrs Bacon to come into the showroom, or brochures providing further information on the company's products could be sent to her by post.
Mrs Bacon chose the option of a home visit, and Mrs McDonald then arranged a date and time for the second respondent (Mr Ryan) to call. The Magistrate found that as a result of that conversation 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 contact for the purchase of … the chair that she did end up choosing' (AB 191).
Mr Ryan kept the appointment as arranged and brought with him a lift chair to demonstrate to Mrs Bacon. Following negotiations as to customisation of the chair and as to price, Mrs Bacon entered into a written contract for the purchase of a similar chair. That contract did not contain the statements and notices which the appellant contends should have been included pursuant to s 7 of the Act. Mr Ryan also accepted payment of a deposit which the appellant contends was contrary to s 8 of the Act.
Apart from the specific circumstances surrounding the transaction with Mrs Bacon, the respondents' witnesses testified as to Bluesky's general trading practice in respect of potential customers who approached Mrs Leopold at the mobile display stand. Although the Magistrate did not make any particular findings in relation to this evidence, it is clear that his Honour accepted those witnesses as being honest and reliable.
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).

The Magistrate's reasons for decision

On the basis of the facts as found, it was the Magistrate's view that the invitation from Mrs Bacon for a Bluesky representative to visit her home was not 'solicited' in the ordinary sense of that word. In this regard, the home visit was just one of three options, and Mrs McDonald did not in any way urge Mrs Bacon to choose the particular option that she did.
Nevertheless, his Honour held that by reason of s 4(2)(b) of the Act, the invitation from Mrs Bacon was 'not unsolicited'. This was because the invitation arose from Mrs McDonald's telephone call which telephone call had been initiated by Bluesky. In that regard:
Initiated means commenced - originated perhaps to get going; get started. I think the Act requires that sort of connection; that sort of a nexus between the act on the part of the relevant person and the communication and that it couldn't be said there was any initiation of the communication. … by Mrs Bacon approaching the stand in the first place; speaking to Mrs Leopold in the second place or giving her personal details including her phone number knowing that there was a possibility at least that the company would use that phone number to contact her.
In essence, if Mrs McDonald hadn't rung then there would have been no invitation coming from Mrs Bacon and I therefore find that the invitation arose from the communication, namely, the phone call that was initiated by Mrs McDonald on the day when she rang. There's a direct and immediate connection between her actions, Mrs McDonald's actions and there is not such an immediate and in my view relevant connection between the earlier actions of Mrs Leopold at the stand in the shopping centre.
Notwithstanding these findings, his Honour held that the Act did not apply to the contract between Bluesky and Mrs Bacon because it was not made in the course of 'door to door trading' as defined in the Act. His Honour's reasons for coming to that conclusion were as follows:
My understanding is that the prosecution says that it's the telephone call made by Mrs McDonald that constitutes a seeking out for purposes of the definition of door to door trading and therefore constitutes the activities of the company in that context in relation to the chair and Mrs Bacon. …
In my view that is not correct. The established business practice. … that relates to the displays and the follow up calls, in my opinion, indicates a practice whereby the phone call is not a phone call that seeks out some other person; some person who may and I emphasise the word 'may' be prepared to enter as a consumer into a contract for the supply of goods and services.
… my view is in fact … that Mrs Bacon had already been identified as a person who may be prepared to enter into a relevant contract. That objective and it was an objective of the company had been achieved by means of the display stand; by means of the conversation with Mrs Leopold in which she informed Mrs Bacon of various things in answer to Mrs Bacon's questions and I am sure that she would have given her other information. The seeking out was completed; was at an end.
… The trading practice of the business in so far as it involved making telephone calls was not a practice which involved making telephone calls for the purpose of seeking out potential consumers who may enter into the relevant contract. (AB 195 ‑ 196)
His Honour also expressed the view that:
[I]n broad terms the intention of legislation is to - and I will use the vernacular perhaps - put restraints upon cold calling, either door knocking or telephone calling. I accept that is not the only thing the legislation is aimed at but I think one has to be careful in allowing too broad an ambit to be given to the act. (AB 196)

The grounds of appeal/contention

The appellant appeals from the Magistrate's decision on the following ground:
1.The Learned Magistrate erred in law in that:
(a)he misconstrued the phrase 'door to door trading', as used in s 4(1)(b)(i) of the Door to Door Trading Act 1987 and defined in s 3, as requiring him to consider the content of communications with particular consumers, and the First Accused's objective (or state of mind), anterior to the First Accused's practice of telephoning and/or attending customers' homes; and
(b)therefore, wrongly concluded that the 'trading practice' of the First Accused (not satisfying the definition of door to door trading) was not within the ambit of the Act.
The Learned Magistrate should have found that the 'trading practice' of the First Accused, as proved, did satisfy the definition of door to door trading, and together with the other material findings, that the charges against the First Accused and, therefore, the Second and Third Accused, were proved.
The respondents on the other hand contend that there were additional reasons why the Magistrate ought to have found that the contract between Bluesky and Mrs Bacon was not one to which the Act applied. In that regard their notice contends that:
A.The learned Magistrate erred as a matter of law, alternatively fact, in not finding that the Second Respondent attended at the place of Mrs Bacon, who was the consumer, otherwise than at the solicited invitation of Mrs Bacon.
B.The learned Magistrate, having found that Mrs Bacon had provided her telephone number to the First Respondent's display stand attendant with the expectation that it would be used as a basis for the First Respondent's staff to call her in relation to her expressed interest in the First Respondent's products, erred in law, alternatively fact, in finding that the invitation made by Mrs Bacon to the First Respondent following the First Respondent staff member's call to Mrs Bacon, was a communication initiated by the supplier within the meaning of section 4(2)(b) of the Act.

The merits of the appeal

In the particular circumstances of the present case, the only conduct by Bluesky which might amount to 'door to door trading' was the telephone call made to each person who had left contact details at the mobile display stand. This being so, the critical factual finding by the Magistrate was that under Bluesky's 'established business practice' each phone call was not 'a phone call that seeks out some other person who may be prepared to enter as a consumer into a contract for the supply of goods and services'. His Honour explained this finding by reference to the particular circumstances involving Mrs Bacon, and in this regard held that she already had been identified 'by means of the display stand' as a person who may be prepared to enter into a relevant contract. Accordingly, well before the telephone call from Mrs McDonald, the 'seeking out' in respect of Mrs Bacon 'was at an end'.

On the basis of these factual findings, the Magistrate determined that the contract between Bluesky and Mrs Bacon was not made in the course of 'door to door trading'. In coming to that conclusion, his Honour referred to the definition of 'door to door trading' and obviously made certain assumptions as to its proper construction.
In that regard, his Honour 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.
This problem can be readily illustrated by the particular facts of the present case. The evidence as to the relevant trading practice by Bluesky shows that approximately 50% of the persons who provide contact details at the display stand, are not interested in acquiring equipment for themselves. Their inquiries are on behalf of relatives or friends who they think might be interested. In these circumstances, the unidentified relative or friend can hardly be regarded as a person who may be prepared to enter into a contract for the supply of a Bluesky product. The relative or friend may be completely unaware of the approach to the display stand, and until Bluesky conducts some further 'seeking out' it cannot be known whether that person may be prepared to enter into a contract.
Similarly, it is difficult to regard those persons who might be interested in a Bluesky product 'five years down the track' as being persons who 'may be prepared to enter into a contract'. Furthermore, there were other persons telephoned by Mrs McDonald were not at all interested in acquiring a Bluesky product, and notwithstanding that they had left their contact details at the display stand, they were clearly not persons who 'may be prepared to enter into a contract'.
It is also apparent that his Honour construed the definition of 'door to door trading' in isolation from the substantive provisions of the Act. In that regard:
[T]he only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment. (Kelly v The Queen ( 2004) 218 CLR 216 per McHugh J [103])
In the present instance, the correct approach was to construe the substantive provisions of s 4 after importing into them the definition of 'door to door trading'. When this is done, it can be seen that the essential question in the present case was whether Mr Ryan attended at Mrs Bacon's house in the course of a trading practice by 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. The answer to this question does not turn upon the particular facts surrounding the transaction with Mrs Bacon, but on a consideration of Bluesky's trading practice as a whole.
In this regard, the evidence shows that while some people who leave contact details at the display stand may be prepared to enter into a contract at that time, there are many others who are not. Some are merely making inquiries on behalf of a relative or a friend whom they think might be interested in a Bluesky product. Others, by the time of the subsequent telephone call, have obviously reflected on whether or not they want a Bluesky product and have decided that they are not interested at all. It is consistent with these varying circumstances that an important purpose of the telephone call is to 'ascertain that they did show genuine interest in a product'. It is only when it is ascertained that the person telephoned does have such an interest that the three options, including a home visit, are then offered.
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.
For these reasons, I respectfully disagree with the relevant findings by the Magistrate. In my view, his Honour fell into error by construing the definition of 'door to door trading' without regard to its context within s 4 and the Act as a whole. His Honour also fell into error in determining the issue under s 4(1)(b)(i) by reference to the facts peculiar to Mrs Bacon's transaction, rather than to Bluesky's trading practice as a whole.
In my opinion, 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. The appellant's ground of appeal substantially accords with the above reasons, and therefore should be upheld.

The merits of the issues raised by the notice of contention

In deciding that Bluesky had solicited Mrs Bacon's invitation for a representative to attend her home, the Magistrate relied upon the deeming provision in s 4(2)(b). His Honour found in that regard that the invitation arose from the telephone call which had been initiated by Mrs McDonald. The respondents dispute this finding and the particulars in their notice essentially contend that:
Had it not been for Mrs Bacon attending at Bluesky's display stand and providing her telephone number to Ms Leopold with the implicit initiation to ring her, then there would have been no phone call from Mrs McDonald. The phone call from Mrs McDonald was not the invitation of the communication flow between the parties; rather it came about by reason of Mrs Bacon herself knowingly, willingly and of her own volition, attending at the Bluesky's display stand, at the Park Shopping Centre, and informing Ms Leopold of her 'keen' interest in Bluesky's product. That attendance was the initiation of the communication which ensued between the Mrs Bacon and Bluesky (Respondents' submissions at [28].)
The appellant on the other hand submits that the Magistrate should have found that Bluesky solicited the invitation regardless of the deeming provision. In that regard, the appellant contends that the presentation of the three options including the option of the home visit amounted to a 'solicitation' within the ordinary meaning of that word. It seems appropriate that I address this more general issue before turning to the effect of the deeming provision.
The Shorter Oxford Dictionary provides a meaning for 'solicit' of 'ask for or try to obtain something from someone'. The question whether Bluesky solicited the invitation in that sense should be determined objectively in light of all relevant circumstances that applied at the time that Mrs Bacon was offered the three options including a home visit.
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 these 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.
Nevertheless, I now turn to the question whether the invitation was in any event 'solicited' within the meaning of s 4(2)(b). The answer to that question turns upon whether or not the telephone conversation from which the invitation arose was 'initiated' by Bluesky.
The ordinary meaning of 'initiate' is to 'cause a process or action to begin' (see Shorter Oxford Dictionary). It is clear that as used within the Act, 'initiated' has a similarly wide meaning. In this regard, it is significant that but for the provisions in s 4(2)(a), a communication prompted by a public advertisement would be regarded as being initiated by the supplier.
It follows that in the present instance, it is necessary to identify the very beginning of the process which resulted in the invitation from Mrs Bacon for a representative of Bluesky to visit her home. The evidence shows that that process commenced with the mobile display stand which was specifically designed to attract potential customers to Bluesky.
Arguably, the display stand was an 'advertisement addressed to the public or a substantial section of the public' within the meaning of s 4(2)(a), and therefore should be disregarded. If so, then the next step in the process which resulted in the invitation, was the action of Mrs Leopold in requesting Mrs Bacon's contact details. Although neither Mrs Bacon nor Mrs Leopold could recall their exact conversation, the evidence shows that Bluesky's system was designed to extract the contact details of potential customers so that they could be telephoned. In that regard, Mrs Leopold was required to complete the form which made provision for such contact details.
It follows that whatever view one takes of the evidence, the telephone call from which the invitation arose was 'initiated' by Bluesky. It was either the mobile display stand which initiated the telephone call, or alternatively if that must be disregarded, then it was the action of Mrs Leopold in asking for Mrs Bacon's contact details so that she could be telephoned.

Conclusions

For all of the above reasons, I consider that the Act applied to the contract between Bluesky and Mrs Bacon. As the total consideration payable by Mrs Bacon exceeded the prescribed amount of $50, it was also a 'prescribed contract' within the meaning of s 6 which was subject to the requirements of s 7 and s 8. As it is common ground that those requirements were not complied with, it necessarily follows that Bluesky committed the offences alleged and that the second and third respondents are vicariously liable pursuant to s 20(2).
This outcome may seem surprising given the Magistrate's view that the ambit of the Act was essentially limited to 'cold calling'. However, the relevant provisions of the Act are unambiguous, and on their ordinary meaning, are fairly wide in scope. That Parliament intended the Act to have a broad impact is confirmed by an examination of the legislative history. In that regard, the Act substantially replicated the earlier Door to Door (Sales) Act 1964 (WA), and was enacted to give effect to uniform legislation throughout Australia. It is clear from the Second Reading Speech that Parliament also intended to increase the scope of the repealed Act. Accordingly, the fundamental thrust of the legislation remained as before, and as revealed by the Second Reading Speech at the time of enactment of the repealed Act:
[T]his Bill will meet what has become a real problem, where people who are not trained to resist specialised canvassers, frequently commit themselves to expenditure beyond their means and ability to pay, sometimes paying prices greatly in excess of the value of the purchases they intend to make. Where people are high‑pressured into contracts it is my considered opinion that they should be given an opportunity to deny the contracts upon reflection. (Hansard, 9th September 1984 (855)
For all of the above reasons, the appeal will be allowed and the notice of contention will be dismissed. The case will be remitted back to the Magistrate to be dealt with according to law and for his Honour to determine the penalties that should be imposed.