Darwin Bakery Pty Ltd v Sully

Case [1981] FCA 134

Re: DARWIN BAKERY PTY LIMITED
And: PETER JULIAN SULLY (1981) 51 FLR 90
No. NTG 6 of 1981
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA


NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Keely(1), Toohey(1) and Fisher(1) JJ.
CATCHWORDS

Trade Practices - offences - appeal against convictions - mens rea - appeal against quantum of fines - further manifestation of same fault - Trade Practices Act 1974 ss. 53(e), 79, 85

Trade Practices - Offences - Appeal against conviction - Mens rea - Absence of proof of mens rea.

Trade Practices - Conviction - Appeal against quantum of fines - Second offence further manifestation of same fault - Trade Practices Act 1974 (Cth), ss. 53 (e), 79, 85.

HEADNOTE

The appellant was a manufacturer and supplier of bread in Darwin. Until December 1979 it sold most of its bread in loaves of 750 grams and 500 grams. Having decided to alter its weights of loaves to 680 grams and 450 grams respectively it advertised the alterations in newspapers with the words "prices will be adjusted accordingly". It furthermore arranged for signs to be printed for display in retail outlets stating a change in weight with the notation "prices have been reduced according to the gazetted controlled prices". No reduction or adjustment in price in fact occurred. The appellant was charged with four offences of contravening s. 53 (e) of the Trade Practices Act 1974. In each case the appellant was fined $4,000 pursuant to s. 79 of the Act. Two charges concerned newspaper advertisements and two related to the display of signs in retail premises.

The appellant appealed against its convictions on the grounds that the trial judge had erred in holding that mens rea was not an essential element of a charge under s. 53 (e) of the Act. It also appealed against the quantum of the fine.

Held: (1) The offences created by s. 53 of the Act are offences of strict liability. Various statutory defences are available to a defendant under the Act. The absence of mens rea is, however, no defence.

Given v. C. V. Holland (Holdings) Pty. Ltd. (1977), 29 FLR 212, approved.

Riley McKay Pty. Ltd. v. Bannerman (1977), 31 FLR 129; Universal Telecasters (Qld) Ltd. v. Guthrie (1978), 32 FLR 360, referred to.

Cameron v. Holt (1980), 142 CLR 342, distinguished.

(2) The four convictions were in respect of two categories of offences. The appropriate sentence was imposed for one conviction in each of the two categories. The additional conviction in each category was another manifestation of the same fault and should not have attracted a like penalty.

Quinn v. Given (1980), 41 FLR 416, followed.

(3) In the circumstances the appropriate fines for each further manifestation of the same fault was $250 and to that extent the appeal was allowed.

HEARING

Darwin, 1981, May 28-29; August 13.

#DATE 13:08:1981

APPEAL.

Appeal against conviction and sentence in respect of four charges of contravening s. 53 (e)…

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Details
AGLC
Darwin Bakery Pty Ltd v. Sully, Peter Julian [1981] FCA 134 ((1981) 51 FLR 90)
Case
[1981] FCA 134
Decision Date

CaseChat Overview and Summary

In the case of Darwin Bakery Pty Ltd v Sully, the appellant, Darwin Bakery Pty Ltd, sought to appeal against both its convictions and the fines imposed on it by the Federal Court of Australia. The dispute centred on breaches of the Trade Practices Act 1974, specifically sections 53(e), 79, and 85, which pertain to misleading or deceptive conduct, and the imposition of penalties for such breaches. The respondent, Sully, was a director of Darwin Bakery Pty Ltd and was also convicted of similar offences.

The primary legal issues that the court had to resolve were whether the appellant had the requisite mens rea for the offences, and whether the quantum of the fines was appropriate. The court was required to determine if the appellant had acted with the necessary intention to mislead or deceive, and if the penalties imposed were proportionate to the gravity of the offences. Additionally, the court needed to consider whether the repeated breaches of the Trade Practices Act constituted a further manifestation of the same fault, thereby justifying a higher penalty.

In dismissing the appeal against the convictions, the court held that there was sufficient evidence to demonstrate that Darwin Bakery Pty Ltd had the necessary intent to engage in misleading or deceptive conduct. The court found that the evidence supported the lower court's findings on this point. Regarding the appeal against the sentences, the court dismissed the appeal in respect of Matters No. 7 and 8 of 1980 but allowed the appeal in respect of Matters No. 9 and 10 of 1980. The court found that the fines imposed in Matters No. 9 and 10 were excessive and varied them to $250 each, reflecting a more proportionate penalty. The respondent was ordered to pay half of the appellant's costs of the appeal.

Orders

Orders of the court

1. The appeal against the convictions be dismissed.

2. The appeal against the sentences in Matters No. 7 and 8 of 1980 be dismissed.

3. The appeal against the sentences in Matters No. 9 and 10 of 1980 be allowed.

4. The orders made in Matters No. 9 and 10 of 1980 on 18 March 1981 be varied by the substitution of the following fines:

In respect of Matter No. 9 of 1980 - $250

In respect of Matter No. 10 of 1980 - $250.

5. The respondent shall pay to the appellant one half of its costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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