Commissioner for Consumer Protection v Weinthal
[2020] WASC 133
•30 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COMMISSIONER FOR CONSUMER PROTECTION -v- WEINTHAL [2020] WASC 133
CORAM: TOTTLE J
HEARD: 20 APRIL 2020
DELIVERED : 30 APRIL 2020
FILE NO/S: SJA 1092 of 2019
BETWEEN: COMMISSIONER FOR CONSUMER PROTECTION
Appellant
AND
SEAN ROBERT WEINTHAL
Respondent
ON APPEAL FROM:
For File No: SJA 1092 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G SMITH
File Number : PE 56608/18 - 56613/18
Catchwords:
Competition and consumer law - Australian Consumer Law (WA) - Unsolicited consumer agreements - Whether accused entered into unsolicited consumer agreement with complainant - Where complainant invited accused to her home for the purpose of providing a quote - Whether invitation for another purpose - Whether magistrate erred in construing legislation - Appeal allowed
Criminal law - Regulatory prosecutions - Australian Consumer Law (WA) - Appeal against acquittal - Whether evidence supported inferences of fact drawn by magistrate as to complainant's state of mind - Where magistrate's inferences not supported by unchallenged evidence
Legislation:
Australian Consumer Law (WA), s 2, s 69, s 71, s 72
Fair Trading Act 2010 (WA), s 19, s 32
Result:
Leave to appeal granted
Appeal allowed
Judgments of acquittal on charges PE 56608/18 - 56613/18 set aside
Judgments of conviction entered on charges PE 56608/18 - 56613/18
Category: B
Representation:
Counsel:
| Appellant | : | J Berson |
| Respondent | : | O Paxman |
Solicitors:
| Appellant | : | State Solicitor's Office |
| Respondent | : | Paxman & Paxman |
Case(s) referred to in decision(s):
Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90; [2013] ATPR 42-447
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Smart v Power [2019] WASCA 106
TOTTLE J:
Introduction
This is an application for leave to appeal against a decision of a magistrate to acquit the respondent of six charges alleging contraventions of the Australian Consumer Law (WA) (ACL).[1]
[1] See s 19(1) and s 19(2) of the Fair Trading Act 2010 (WA).
The charges arose from an agreement made between the respondent and the complainant for the removal of a tree in the complainant's garden. The appellant alleged that the agreement was an unsolicited consumer agreement as defined in s 69(1) of the ACL and that the respondent had not complied with various provisions of the ACL that applied to such an agreement. The magistrate found that the agreement was not an unsolicited consumer agreement and, as the existence of an unsolicited consumer agreement was an essential element of all of the charges, acquitted the respondent.
The agreement was made at the complainant's house early on the morning of 24 January 2017. At trial the critical issue was whether the complainant had invited the respondent's attendance at her home 'merely to quote a price' for the removal of the tree. A finding by the magistrate that the invitation was so confined would have led, in the circumstances of this case, to the conclusion that the agreement was an unsolicited consumer agreement. The magistrate held that the invitation was not merely to quote a price for the removal of the tree and held, in effect, that the invitation was for the purpose of a more general discussion about the removal of the tree. The appellant contends that in so concluding the magistrate erred in fact and law.
For the reasons I explain below I consider that the magistrate did err in the manner for which the appellant contends and leave to appeal should be granted and the appeal allowed. The judgments of acquittal entered by the magistrate should be set aside and judgments of conviction entered.
The statutory framework
Section 32 of the Fair Trading Act2010 (WA) renders offences against the ACL crimes.
The definition of unsolicited consumer agreement is contained in s 69 of the ACL. Relevantly, it provides:
69Meaning of unsolicited consumer agreement
(1)An agreement is an unsolicited consumer agreement if:
(a)it is for the supply, in trade or commerce, of goods or services to a consumer; and
(b)it is made as a result of negotiations between a dealer and the consumer:
(i)in each other's presence at a place other than the business or trade premises of the supplier of the goods or services; or
(ii)by telephone;
whether or not they are the only negotiations that precede the making of the agreement; and
(c)the consumer did not invite the dealer to come to that place, or to make a telephone call, for the purposes of entering into negotiations relating to the supply of those goods or services (whether or not the consumer made such an invitation in relation to a different supply); and
(d)the total price paid or payable by the consumer under the agreement:
(i)is not ascertainable at the time the agreement is made; or
(ii)if it is ascertainable at that time—is more than $100 or such other amount prescribed by the regulations.
(1AA)…
(1A)The consumer is not taken, for the purposes of subsection (1)(c), to have invited the dealer to come to that place, or to make a telephone call, merely because the consumer has:
(a)given his or her name or contact details other than for the predominant purpose of entering into negotiations relating to the supply of the goods or services referred to in subsection (1)(c); or
(b)contacted the dealer in connection with an unsuccessful attempt by the dealer to contact the consumer.
(2)An invitation merely to quote a price for a supply is not taken, for the purposes of subsection (1)(c), to be an invitation to enter into negotiations for a supply.
(3)…
(4)…
The effect of s 69(1)(c) is that if a consumer invites a dealer to come to a place, other than the premises of the supplier of the goods or services, for the particular purpose of entering into negotiations relating to the supply of services, then any agreement resulting from such negotiations is not an unsolicited consumer agreement.
The effect of s 69(2) is that an invitation, which may otherwise be considered an invitation to enter into negotiations for a supply, is not considered to be an invitation for the purposes of entering into negotiations, if it is an invitation merely to quote a price for a supply.
The definition of dealer is contained in s 71 of the ACL and it provides:
71Meaning of dealer
A dealer is a person who, in trade or commerce:
(a)enters into negotiations with a consumer with a view to making an agreement for the supply of goods or services to the consumer; or
(b)calls on, or telephones, a consumer 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.
'Supply' is defined by s 2 of the ACL to mean, in relation to a service, 'provide, grant or confer.' 'Supplier' is said to have a corresponding meaning.
The definition of negotiation is contained in s 72 of the ACL and it provides:
72 Meaning of negotiation
A negotiation, in relation to an agreement or a proposed agreement, includes any discussion or dealing directed towards the making of the agreement or proposed agreement (whether or not the terms of the agreement or proposed agreement are open to any discussion or dealing).
The breadth of the definition of negotiation is to be noted.
The charges
Charge 1 (PE 56608/2018) alleged the respondent, acting as a dealer within the meaning of the ACL, failed to provide the complainant with information in writing about her right to terminate the unsolicited consumer agreement, as required by s 173(1)(a) of the ACL.
Charges 2 to 4 (PE 56609 ‑ 56611/2018) alleged the respondent, acting as a supplier within the meaning of the ACL, failed to provide the complainant with information and notices, as required by s 175(1) of the ACL.
Charge 5 (PE 556612/2018) alleged the respondent failed to refund a payment made by the complainant pursuant to the unsolicited consumer agreement immediately upon termination of it, as required by s 178(1) of the ACL.
Charge 6 (PE 556613/2018) alleged the respondent accepted payment under the unsolicited consumer agreement within the mandatory 10 day cooling off period contrary to s 179(1) of the ACL.
At the commencement of the trial the respondent admitted a number of the elements of the first five charges, but did not admit that he was a dealer (in relation to charge 1) or a supplier (in relation to charges 2 through to 6) or, in respect of any of the charges, that the agreement he made with the complainant was an unsolicited consumer agreement.[2]
[2] ts 27 June 2019, 5 - 11; see also ts 28 June 2019, 16.
In relation to charge 6 the respondent did not admit that he had accepted payment within the mandatory cooling off period of 10 days.[3]
[3] ts 27 June 2019, 22, see also ts 28 June 2019, 16.
It was not in dispute that the complainant was a consumer.[4]
[4] ts 28 June 2019, 5.
The evidence
The evidence comprised the oral evidence of the complainant and a number of documentary exhibits. The magistrate accepted that the complainant was a truthful and believable witness. His Honour observed that the complainant's evidence was largely undisputed and was not contradicted by other evidence.[5] The documentary evidence generally went to establishing that the respondent was a dealer and supplier, had accepted payment from the complainant and had not refunded the payment when the agreement was terminated.
[5] ts 28 June 2019, 16.
Relevantly, the complainant's evidence was as a follows:
(a)A leaflet promoting the services of West Coast Trees was left in her letter box. The words 'FREE QUOTES' appeared prominently at the bottom of the leaflet. The complainant said the leaflet was timely as she had a palm tree in her driveway that was dropping a lot of fruit. The fruit was slippery and she 'sort of felt that it was unsafe, so [she] wanted to get a quote to have that removed'.[6]
[6] ts 27 June 2019, 29 - 31; Exhibit 11.
(b)The complainant called the number on the leaflet and spoke to a woman and said:[7]
[7] ts 27 June 2019, 31.
I had a palm tree in my driveway and I would like to get somebody to come and quote to remove it and, you know, grind it all away, but just completely remove it from sight.
In cross-examination the complainant said that she had told the woman to whom she spoke that the tree was dropping a lot of fruit and she 'wouldn't mind having it removed soon'. [8]
[8] ts 27 June 2019, 40.
(c)The complainant gave the following evidence concerning the impression she was left with following the conversation described above:[9]
[9] ts 27 June 2019, 32.
So when you finished the telephone conversation what was your understanding about what was going to happen next?---That a representative of West Coast Tree Services was going to call me the next day. They would be in the area. They would call me and come around to give me a quote.
So I will take you to 24 January 2017. What happened on 24 January 2017?---That was the day after I called West Coast Services – Tree Services. I was still asleep in the morning, it was before 7 o'clock and then I was woken up by my dog barking and making a – a big fuss. So I went to the door and answered the door and there was a – a Sean from West Coast Tree Services at the door and it was at that stage about 7 o'clock.
HIS HONOUR: So just to interrupt - sorry to interrupt. Ms Cunningham, you said your understanding was that someone would do something. Did you say 'would call me on the phone' or did you say 'would call on me', which are two different things?---Well, my understanding the day before was somebody would call me first to - - -
On the phone?---Yes, because I left my phone number.
So you were expecting a phone call, but instead what you got was someone at the door?---Correct. But - - -
Thank you. That's it?---But there were calls, missed calls, on my phone. I was just asleep. So - - -
(d)At about 7.00 am on the following day, 24 January 2017, the respondent attended at the complainant's premises. The complainant's evidence‑in‑chief about what took place was as follows:[10]
[10] ts 27 June 2019, 33.
[The respondent] told me that he was there to have a look at the tree that I want removed. And then I went out and walked up the driveway and showed him. He also looked around the garden at some other bushes and things and suggested that I should also have - an oleander bush removed because it was poisonous and I said, 'no, no, just – just give me a quote for the tree' and - that would be enough. At that point he then said that they were available to do the tree the next day. So on 25 January. And I was keen to have it done, so I just said, 'yes, great. That sounds good.' And that he asked me for my credit card so that they could be paid in case I am not home the next day. So I went and got my credit card and gave it to him. At that stage he then wrote out a – an invoice and marked on it 'paid in full' and gave it back to me.
(e)The complainant's evidence in cross-examination about the respondent's attendance at her home on 24 January 2017 was as follows:[11]
[11] ts 27 June 2019, 45 - 46.
You agree that he introduced himself as Sean?---Yes.
And he said – he told you he was from West Coast Trees?---Yes.
And he asked you what needed to be done?---Yes.
And you directed him to the palm tree in question up your driveway?---Yes.
Did you mention to him the flyer that you had received in the mailbox?---I don't recall.
Do you recall telling Sean that you were having some renovations done at that time?---I don't recall. No.
Don't recall. Okay. But nevertheless, you explained to him why you wanted the tree removed?---It – it was mainly to do with the fruit falling off.
Yes. And did you stress to him that you needed it removed as soon as possible?---I would like to have it removed as soon as possible. Yes.
Okay?---But I don't recall I had stress.
Okay. Did he explain to you that there would be some - three things involved, cutting, grinding and stump removal?---I don't recall that.
Okay. And did you further understand that there would be removal of the foliage as well?---I assumed that that would be done because it was written on the invoice - - -
Okay?--- - - - once it was given to me.
And did Sean explain to you that it would be done by a team of guys?---No.
No. But he didn't tell you that he would be doing it personally?---No.
Now, do you recall asking him when the job could be done?---Yes, I did. Well, I don't remember asking him, but I remember him telling me, 'We can do that for you tomorrow.'
Okay. Do you recall saying to him that you wanted it removed within 24 hours?---No. I would never put that sort of pressure on anybody.
Nevertheless, you wanted it removed as soon as possible because of the safety risk it posed?---Yes.
If Sean had told you he wasn't in a position to have it removed for, say, a month - - -?---Yes.
- - - would you have agreed?---No.
No?---I would have just looked at the quote and then I would have had another quote and decided after that.
Right.
HIS HONOUR: Sorry, I missed that. What did you say, Ms Cunningham?---I would have - - -
You wouldn't have agreed if he had said what?---He would do it in a month. In a month's time?---No.
I would have just said, 'Look, leave it with me,' and then I would have got another quote.
Okay. Thank you.
(f)The respondent had an EFTPOS machine available at the time he was provided with the credit card.[12]
(g)The complainant was cross-examined about whether she would have been prepared to pay a higher price if the removal of the tree involved a 'lot of work'. Her evidence was 'Not really because I had the option, which was the one I ended up using at the end of that, to have my gardener just cut the fruit off so that the little balls off the driveway (indistinct) were a problem'. The complainant was also cross‑examined as to whether she would have been prepared to pay 'a little more to have [the tree] removed sooner rather than later'. Her response was 'It depends on what gap you're talking about. So, no, not really because I was sweeping it every day … So if it meant I would sweep it for another 10 days rather than one day, it wasn't a big enough impact' though, '… once it was offered to me the next day, I thought, well, I may as well get it done … you know if was going to be the next day'.[13]
(h)In answer to a question from the magistrate the complainant said that the respondent was at her house for 'no more than 10 minutes'.[14]
(i)After the respondent left, the complainant reconsidered the agreement. She described how she felt in the following terms:[15]
After the meeting I sort of sat down and had breakfast and thought about it and thought, well, $480 seemed like a lot to me. So just sort of in view of, you know, resources and funds and whatnot I thought, you know what, I did not really have a chance to – I – I was sort of expecting to get a quote so I could get at least one other competitive quote, but I ended up with a service that I had actually kind of agreed to have done the following day. So I felt uneasy about it.
The complainant telephoned West Coast Tree services to cancel the service and requested a refund if her credit card had been charged. That same afternoon the complainant emailed West Coast Trees to confirm cancellation of the service.[16]
(j)The sum of $480 the complainant had agreed to pay was charged to her credit card.[17]
(k)The $480 was not refunded by the respondent. It was not credited back to the complainant's account until early May 2017 and that occurred as a result of her bank pursuing the matter through its own channels.[18]
[12] ts 27 June 2019, 47.
[13] ts 27 June 2019, 40.
[14] ts 27 June 2019, 49
[15] ts 27 June 2019, 35.
[16] ts 27 June 2019, 35; Exhibit 15.
[17] ts 27 June 2019, 37; Exhibit 16.
[18] ts 27 June 2019, 37.
In cross-examination, the complainant's evidence that she asked someone to attend to provide a quote was not disturbed.[19]
[19] ts 27 June 2019, 42, 46.
The magistrate's reasons
The magistrate found that the respondent was both a supplier and dealer for the purposes of the ACL,[20] and had accepted payment from the complainant for the removal of the tree.[21]
[20] ts 28 June 2019, 18.
[21] ts 28 June 2019, 18 - 19.
The magistrate identified the real issue as whether the agreement that was made was an unsolicited consumer agreement. His Honour found that subparagraphs (a), (b), and (d) of s 69(1) were satisfied,[22] and the main issue in contention was whether the prosecution had established subparagraph (c) - that the complainant did not invite the respondent to her home for the purpose of entering into negotiations.[23]
[22] ts 28 June 2019, 19.
[23] ts 28 June 2019, 22.
In considering the interaction between s 69(1)(c) and s 69(2), the magistrate considered that an invitation to provide a quote and an invitation to enter into negotiations for a supply were not mutually exclusive. His Honour stated:[24]
So the prosecution case is really dependent on the purpose of the invitation which was made by [the complainant], but, having looked at section 69, subsection (2), my view is that it does not state that it has to be one or the other or that one will exclude the other. My view is that it leaves open the possibility that an invitation could be for the purposes of a quote and for negotiations at the same time.
[24] ts 28 June 2019, 19.
The magistrate developed his reasoning by giving an example of a plumber called by a householder to assess and quote for work that had to be done quickly.[25] His Honour highlighted practical problems that he considered would result from such an arrangement being characterised as an unsolicited consumer agreement and said that it would be absurd if an agreement by the tradesperson made in such circumstances was an unsolicited consumer agreement. His Honour said it was:[26]
… Difficult for me to believe that this legislation was intended to lead to such a situation. My view is that this legislation is more designed to cover a situation which is more in keeping with the everyday meaning of the word 'unsolicited' such as when a person knocks on your door completely out of the blue trying to sell you something which you've never even previously contemplated, or perhaps you're at the shopping centre and you get bailed up by somebody in a situation where you are a bit more vulnerable than usual.
You have got something on your mind. You are distracted by your kids. That is the type of situation that I think this legislation is directed at, not a situation where you've actually asked someone to come to your house to discuss the matter.
[25] The magistrate noted that s 86 of the ACL contained a prohibition of doing the work or accepting payment within 10 working days where the agreement was an unsolicited consumer agreement.
[26] ts 28 June 2019, 21.
The magistrate expressed his view that: [27]
… commonsense tells you that you cannot give a quote to prune a tree or to remove a tree until you've had a discussion as to what's required. The person giving the quote has to look at the tree, has to think about what equipment is needed…
This view and his Honour's assessment of the legislature's intention appears to have informed his conclusion that that s 69(2) only applied to an invitation to quote where no negotiation was required.
[27] ts 28 June 28 2019, 21.
The magistrate acknowledged that the complainant said in evidence that she wanted someone to come around and give her a quote but said:[28]
… that is just her shorthand description of what she really wanted. My view is that commonsense dictates that what she wanted, particularly in the context of removing a large troublesome tree, was for someone to come around, have a look, discuss what she wanted done with it, explain the various options that were open to her and once all of that had been done then provide her with a quote, a quote which, in my view, is simply not possible to give until those discussions have taken place.
[28] ts 28 June 28 2019, 22.
The magistrate was 'not satisfied beyond a reasonable doubt that the only purpose for the invitation was a quote without a discussion.' His Honour found that one of the complainant's purposes in inviting the respondent to her house was to discuss the tree and what could be done with it and then find out how much that would cost. His Honour also expressed this finding in the negative, that is, he was not persuaded beyond a reasonable doubt that this was not one of the complainant's purposes in issuing the invitation.[29] It is implicit in his Honour's reasoning that once a discussion was required for the purpose of providing the quote, the invitation to attend for the purpose of providing the quote was in fact, an invitation to attend for the purpose of entering into negotiations relating to the supply of goods or services.[30] It was this aspect of his Honour's reasoning that was determinative.
[29] ts 28 June 28 2019, 22.
[30] ts 28 June 2019, 22.
The appeal ground
The sole ground of appeal is that the learned Magistrate erred in fact and law by finding the agreement made between the complainant and the respondent was not an unsolicited consumer agreement because s 69(1)(c) of the ACL was not established on the evidence.
The parties' principal submissions
The appellant's submissions
In outline the appellant submitted that the magistrate erred in construing s 69(2) as only applying to an invitation to quote where no discussion was required, and that once a discussion was required for the purpose of providing the quote, the invitation to attend for the purpose of providing the quote was to be characterised as an invitation to attend for the purpose of entering into negotiations relating to the supply of goods or services.
The appellant argued that s 69(2) recognised that the provision of a quote would normally fit within the scope of negotiations relating to the supply of goods or services, that is, negotiations or discussions are to be expected for the purpose of providing a quote. The appellant contended that the ACL does not contemplate that the provision of quotes will be divorced from any discussion or negotiations, but where the invitation is only for the purpose of providing a quote, it is, in effect, deemed to fall outside invitations relating to the supply of goods and services.
The appellant argued that the word 'merely' in s 69(2) conditions the purpose of the invitation. It does not bear upon the process of providing a quote. The appellant points out that it is difficult to envisage circumstances where a person is invited to attend a residential address for the purpose of providing a quote for the supply of a service and no discussions are had to enable the provision of that quote. The appellant contends it is almost inherent in the concept that there must be some element of discussion, and hence negotiation, for the purpose of providing the quote. Even if it is as simple as the consumer identifying the goods or the service, there needs to be some discussion prior to a quote being provided. If the position is in fact to the contrary, s 69(2) would be limited such that it would have little to no effect at all.[31]
[31] The Court will strive to ensure every word of a statutory provision is given meaning: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [71] (McHugh, Gummow, Kirby & Hayne JJ).
Further, the appellant contends that, in a number of circumstances, it may not be possible to know ahead of time whether or not any discussions will be required for the purpose of providing a quote. The appellant argued that on the magistrate's interpretation of s 69, the status of the invitation (and whether or not it was an invitation for a quote or to enter negotiations for a supply) would be contingent and not fixed at the time it is made. Whether an invitation was for a quote or negotiation could only be truly known after the visit. The appellant contends this is a most improbable construction and a construction that would make the law very difficult to enforce.
The appellant contends that the magistrate's construction of s 69 as being concerned with situations 'more in keeping with the everyday meaning of the word 'unsolicited' was inconsistent with the policy of the ACL as it was found to be by the Full Court of the Federal Court in Australian Competition and Consumer Commission v Lux Distributors Pty Ltd.[32]
[32] Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90; [2013] ATPR 42-447.
The appellant contended that the evidence unambiguously established that the only purpose behind the complainant's invitation was to obtain a quote for a supply.
The respondent's submissions
The respondent relied on the principles of appellate review of findings of fact recently outlined in Smart v Power,[33] in particular the need for appellate restraint before disturbing credibility based factual findings. The principle was relied on as a basis for the submission that the court should not disturb the magistrate's finding that one of the purposes of the complainant's invitation to the respondent attend her house was to have a discussion about the tree and what could be done about it and that the invitation was not 'merely to provide a quote'. The respondent emphasised that the magistrate had the benefit of observing the complainant's demeanour.
[33] Smart v Power [2019] WASCA 106 [101] - [105].
The respondent relied on the complainant's evidence that she wanted to have the tree removed as soon as possible because she was concerned about the fruit on her driveway being unsafe as demonstrating that she was also contemplating the possibility of one or both of, negotiating an agreement, and entering an agreement, to have the tree removed. The respondent contended that this was consistent with the magistrate's finding that the complainant's intention was not limited to merely obtaining a quote.
The respondent sought to characterise the magistrate's finding that one of the complainant's purposes was 'for someone to come around, have a look, discuss what she wanted done with it, explain the various options that were open to her and once all of that had been done then provide her with a quote to discuss the tree and what could be done with it and find out how much it would cost', as a finding 'that he could not exclude the competing (or coexisting) inference that the complainant had an intention to negotiate an agreement to have the tree removed'. Alternatively, if the magistrate's ultimate finding could not be characterised in that way then this court should find that the inference that the complainant had that intention was open on the evidence.
The respondent contends that even if the magistrate made an error of law in his construction of s 69(2) of the ACL there has been no substantial miscarriage of justice because the evidence established a competing inference that the complainant had an intention to negotiate an agreement with the respondent to have the tree removed. The respondent invokes the application of the proviso in s 14(2) of the Criminal Appeals Act 2004 (WA).
Disposition
The construction of s 69(1)
In my respectful view the magistrate's approach to the construction of s 69, namely that it was not directed to situations in which a consumer had invited a dealer to attend the consumer's home or another place, and that s 69(2) did not apply if a discussion was required before a quote could be provided, revealed error.
The magistrate's view that s 69 was intended to apply only when a dealer's approach to a consumer is unsolicited or, as his Honour put it, 'completely out of the blue', is inconsistent with the language in s 69(2) that expressly contemplates a consumer inviting contact from a dealer. As the appellant submitted, the magistrate's construction would leave s 69(2) with no work to do and would infringe the principle of statutory construction that every word in a provision should be given meaning.[34] With respect it appears that the magistrate determined what he considered was the intention of the legislature by reflecting on how the statutory provisions might operate in certain situations rather than by construing the statutory text to ascertain the legislature's intentions.
[34] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [71] (McHugh, Gummow, Kirby and Hayne JJ).
Further, s 69 is intended to protect consumers from sales techniques that take advantage of the vulnerability of consumers when sales are made in their own homes. As the appellant contended that protection is required not only from door‑to‑door salespeople but also from salespeople that consumers have invited to their home in some contexts. In Australian Competition and Consumer Commission v Lux Distributors Pty Ltd Allsop CJ, (with whom Jacobson and Gordon JJ agreed), explained at [10], the policy objective as follows:
The Explanatory Memorandum to the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 should be noted. The memorandum had a chapter on unsolicited selling and a chapter on comparative provisions. The chapters pointed out some of the inequalities in the bargaining power involved in the conduct of door‑to‑door selling. The objective of regulation was to promote the operation of fair and efficient markets, by providing appropriate consumer protection, where the consumer is subject to vulnerability or disadvantage due to the nature of the sales process. The vulnerability of the consumer to the salesperson in her or his own home arises from the difficulty in putting an end to the sales process once the salesperson is in the home, especially after that person has spent time and undertaken persuasive effort in a sales process or 'pitch'. People can simply agree to things to put the situation at an end. These are not new revelations referable only to the operation of the ACL. They concern the basic psychology of salesmanship, taught by life experience and common sense, once entry has been gained to the privacy of a person's home. Ingratiating solicitude, just as much as high-pressure bullying sales tactics, may lead to a feeling of necessitous acceptance, especially by a polite and accepting person. In other words, special or particular care and attention to a customer can be just as effective as a sales tactic as high-pressure bullying. Further, the acquisition of comparative information is not often possible in the home, and reliance is necessarily placed on the truthfulness of the salesperson's information. Critical to the success of the sales conduct is the gaining of entry into the home, the winning of the confidence of the customer, and remaining long enough to persuade the customer to buy; entry into the home and length of time in the home are critical factors.
I accept the appellant's submissions in relation to the magistrate's view that an invitation cannot be 'an invitation merely to quote a price' if discussion is required before a price is quoted. The word 'merely' in the phrase 'an invitation merely to quote a price for a supply' qualifies the invitation and not the process by which the quote is, in fact, provided. As the appellant submitted, and the respondent acknowledged, the provision of a quote will almost invariably involve some discussion. Plainly enough it is a question of fact whether an invitation is 'merely to quote a price' or whether the invitation is of a broader nature. In some cases the nature of any discussion that occurs before a quote is given may shed some light on whether the invitation was 'merely to quote a price' but in other cases, it may not. The fact that a discussion takes place before a quote is given does not compel the conclusion that the invitation was not 'merely to quote a price'. Similarly, the court should approach evidence of what occurred at the time of providing a quote with circumspection. For the same reasons identified by the Full Court in Lux Distributors, a consumer may feel considerable pressure where a dealer has attended their home, engaged in a discussion about the service that the consumer wants and has indicated to the consumer that they have facilities for the consumer to pay the quoted price immediately. Section 69(2) would be entirely defeated if the fact that negotiations actually took place was sufficient to determine the purpose of the invitation.
The magistrate's finding about what the complainant wanted
The magistrate inferred from the complainant's evidence that she wanted quote for the removal of the tree that this was just a shorthand description of what she really wanted which was a discussion of the nature described by his Honour.
In the circumstances of this case this court is in as good a position as the magistrate to decide on the proper inference to be drawn from the primary facts. The complainant's evidence was unequivocal that she wanted a quote and her evidence‑in‑chief about the work that was to be the subject of the quote was the removal of the tree, 'grinding it away so it was completely removed from sight'. There was no evidence that the complainant wanted to have any discussion of the kind referred to by the magistrate. It was not suggested to her in cross-examination that she wanted to have such a discussion nor did the magistrate ask her whether she wanted a discussion of that nature when he asked her questions at the end of the cross‑examination. The complainant's evidence was supported by the fact that the flyer which referred her to the respondent's business prominently displayed the words 'FREE QUOTES' above the contact number - there was no mention as to price for any of the services.
In my view, in the circumstances of this case and in the light of the complainant's unequivocal evidence that what she wanted was a quote, the inference drawn by the magistrate did not arise. But, of course, for the reasons already given, if contrary to the view just expressed, it was implicit in the complainant's request for a quote that she wanted to discuss with the person coming to give her the quote, the nature and extent of the work to be undertaken in the manner described by his Honour, that was simply part of the process of giving the quote. It did not alter the nature of the invitation from one 'merely to quote a price' to something more expansive.
I do not accept that the magistrate's finding about what the complainant wanted should be characterised as a finding that 'that he could not exclude the competing (or coexisting) inference that the complainant had an intention to negotiate an agreement to have the tree removed'. Nothing said by his Honour in delivering his reasons supports the view that he had turned his mind to whether there was an inference that the complainant had an intention to negotiate an agreement to have the tree removed.
Moreover, I do not think that any such competing inference - that the complainant intended to negotiate an agreement - was available to be drawn. Not only was the complainant's evidence that she wanted a quote unequivocal but her unchallenged evidence was that she reconsidered the agreement because she was 'sort of expecting to get a quote so I could get at least one other competitive quote …'. This evidence was inconsistent with the complainant having an intention to enter an agreement when the respondent came to give her a quote. I note also that it was not put to the complainant that she intended to negotiate an agreement. I should add I am not persuaded by the respondent's reliance on the complainant's desire to have the tree removed as soon as possible as a basis for inferring that she intended to negotiate an agreement. The respondent's submission exaggerates the complainant's concern to have the tree removed soon or as soon as possible. The complainant had another option for dealing with the fruit dropping from the tree and she made it clear in her evidence given in cross‑examination that she was not unduly concerned if she had to continue sweeping up the fruit from her driveway. As the appellant's counsel pointed out it was the respondent, not the complainant, who initiated the discussion about the possibility of removing the tree the following day.
The evidence at trial could only have supported a finding of guilt and there is no room for the proviso in s 14(2) of the Criminal Appeals Act to apply.
Section 14(1)(d) of the Criminal Appeals Act empowers this court to substitute a decision that should have been made by the court below. It was common ground that if I granted leave to appeal and allowed the appeal, there was no purpose to be served by remitting the matter to the Magistrates Court and, with respect, I agree. I will set aside the judgments of acquittal and substitute judgments of conviction in respect of all the charges.
I will hear the parties as to the other orders that should be made and as to penalty.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle30 APRIL 2020
0
4
2