Commissioner for Consumer Protection v Weinthal - [2020] WASC 133

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…

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.

Keep reading for free

Create a free CaseChat account to read Commissioner for Consumer Protection v Weinthal and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] WASC 133
Decision Date: 30 APRIL 2020

CaseChat Overview and Summary

In the matter of Commissioner for Consumer Protection versus Weinthal, the case was heard in the Supreme Court of Western Australia. The Commissioner alleged that Weinthal had entered into an unsolicited consumer agreement with a complainant, in contravention of the Australian Consumer Law as it applies in Western Australia. The central dispute was whether the interaction between Weinthal and the complainant constituted an unsolicited consumer agreement, and if so, whether this was a contravention of the statutory provisions. The court was required to determine whether the magistrate's interpretation of the relevant statutory provisions was correct, and whether the evidence supported the inferences drawn by the magistrate regarding the complainant's state of mind.

The court was tasked with determining the proper construction of the statutory provisions in relation to unsolicited consumer agreements, and whether the magistrate had erred in their interpretation. This involved examining the invitation extended by the complainant to Weinthal, and whether this constituted an invitation for a purpose other than the formation of a consumer agreement. Additionally, the court considered whether the evidence presented was sufficient to support the inferences drawn by the magistrate regarding the complainant's state of mind, and whether the magistrate's conclusions were therefore justified. The court also had to determine whether the magistrate's findings were consistent with the statutory framework, and whether the appeal against the acquittal was therefore well-founded.

The Supreme Court found that the magistrate had erred in their interpretation of the relevant statutory provisions, and that the evidence did not support the inferences drawn by the magistrate as to the complainant's state of mind. The court held that the invitation extended by the complainant was not for the purpose of entering into a consumer agreement, and therefore did not constitute an unsolicited consumer agreement. As a result, the appeal was allowed, and the decision of the magistrate was quashed. The court's judgment clarified the interpretation of the statutory provisions in relation to unsolicited consumer agreements, and provided guidance for future cases in this area of law.

The final orders of the court were that the appeal against the acquittal was allowed, the decision of the magistrate was quashed, and the matter was remitted to the Magistrates Court for further proceedings in accordance with the court's judgment. The court's decision provided important guidance on the interpretation of the relevant statutory provisions, and highlighted the need for careful consideration of the evidence in cases involving unsolicited consumer agreements.

Orders