Doherty, A.P. v Travel Land Pty Ltd

[1982] FCA 246

Re: ANTHONY PAUL DOHERTY
And: TRAVELAND PTY. LIMITED and ASSOCIATED TRAVEL PTY. LIMITED
WA Nos. 37-39 and 43-45 of 1980
Trade Practices Prosecution

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher, J.

CATCHWORDS

Trade Practices Prosecution - consumer protection - change of tour itinerary after publication of brochure - brochures remaining on display - whether public were misled - whether proceedings were commenced within time - whether one respondent acting on behalf of another - meaning of "engaging in conduct".

Trade Practices Act 1974 s.55A, s.163(4), s.84(2)

Crimes Act 1914 s.21(1)(c)

HEARING

ADELAIDE

#DATE 5:11:1982

JUDGE1

Each of the defendants ("Traveland" and "Associated Travel") is charged with three contraventions of s.55A of the Trade Practices Act 1974 ("the Act"). The prosecutor has pursuant to s.163(4) of the Act instituted each prosecution by summons upon information and in each instance I granted leave to amend the information and summons. Such leave was sought to remedy certain discrepancies between both the summonses and the informations and the Minister's consent given pursuant to s.163(4)(b) of the Act. The reasons for my decision and the reasons of the Full Court allowing in part an appeal therefrom are to be found reported in (1980-81) 3 A.T.P.R. 43,272 and (1982) A.T.P.R. 43,650 respectively

Section 55A is a provision of Part V of the Act and is in the following terms:

"55A. A Corporation shall not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services."

The information charging Associated Travel with an offence under this section in matter No. 43 of 1980 in its amended form and omitting formal parts was as follows:

"At the time and place specified below Anthony Paul Doherty of Trade Practices Commission, 207 Adelaide Terrace Perth in the State of Western Australia appears before Martin Jan District Registrar and informs the said Martin Jan that on 11 October 1979 at Perth aforesaid ASSOCIATED TRAVEL PTY LTD being a corporation in trade or commerce and trading as 'Boans Traveland' and as 'Traveland at Boans' did contravene section 55A of the Trade Practices Act 1974 in that the said ASSOCIATED TRAVEL PTY LTD did engage in conduct that was liable to mislead the public as to the quantity of services, namely that advertised tours referred to as 'Viva] Bali-Singapore 13 days from $820' in brochures entitled 'Viva] Bali-Singapore 13 days from $820' displayed by the said ASSOCIATED TRAVEL PTY LTD were of 13 days duration when the said tours were of less than 13 duration. These proceedings are instituted with the consent in writing of the Minister pursuant to section 163(4)(b) of the said Act."

The summons as amended corresponded with the amended information and in addition provided the following further particulars of the charge:

"On the abovementioned date

(a) the said brochures were displayed in a display stand in a public area of the premises of Boans Ltd at Murray Street, Perth aforesaid,

(b) the said brochures were available for selection by the public from the said display stand,

(c) one of the said brochures was selected from the said display stand by Peter James Dawson a member of the public,

(d) the tours advertised in the said brochures by tour codes and departure dates PI 0219 14 December PI 0229 21 December PI 0239 28 December PI 0010 04 January 1980 PI 0020 11 January PI 0030 18 January PI 0040 25 January as being of 13 days duration were of less than 13 days duration. These proceedings are instituted with the consent in writing of the Minister pursuant to section 163(4)(b) of the said Act."

The only variations from the above terminology in the other two proceedings against Associated Travel and the three sets of proceedings against Traveland were that Traveland was charged with having published as well as displayed and in the dates and places of the alleged offences and the person by whom the brochure was selected. Except as otherwise specifically stated there is no need to give separate consideration to any of these proceedings. With the consent of the parties all charges were heard together.

The facts as I find them indicate that the alleged contraventions arose in the following circumstances. Both of the defendants are associated companies in that Traveland is a wholly owned subsidiary of and Associated Travel is a subsidiary owned as to 50% of its shares by Traveland International Pty. Ltd. Both were admitted to be corporations engaging in trade or commerce at all relevant times. Each operated a substantial business in the travel industry, selling tours to the public arranged by Traveland International Pty. Ltd. However Associated Travel operated exclusively in Western Australia and Traveland to a much more limited extent in that State.

A matter considerably in dispute was the extent of the involvement of Traveland in the alleged contraventions. It was not disputed however that Associated Travel was carrying on business in the public area of the premises of Boans Ltd, at Murray Street, Perth Peppermint Grove, and Karrinyup respectively. The contention of the prosecutor was that, with the aid of the provisions of s.84(2) of the Act, it could establish that Traveland was also carrying on business at those sites.

On each of the occasions referred to in the informations an officer of the Trade Practices Commission in Perth collected a copy of the same brochure from one of the premises of Boans Ltd. This brochure advertised on the front page thereof a tour in the following manner and words:

"VIVA] BALI - SINGAPORE 13 DAYS FROM $820 NEW LOW AIR FARES This means an even lower price for these holidays Viva] Guarantees that this will be passed on to you if applicable on your date of departure. Your travel consultant has full details. EFFECTIVE 06 SEPT 1979 -------------------------------------------------------------------------- ---- -------------------------------------------------------------------------- ---- QANTAS AIRWAYS traveland The Wonderful World of Viva] Holidays"

The inside of the brochure set out details of the tour stating expressly, and also indicating in the itinerary, that the tour, which commenced on a Friday, was of 13 days duration. Departure dates for a number of tours, commencing 26 October 1979 were set out and it was accepted that each of such dates was the Friday of the particular week. However at some time prior to 11 October 1979, the first date upon which an officer of the Trade Practices Commission obtained a brochure from amongst those displayed at the particular store, Associated Travel Ltd had been advised of a change in the departure date of each of the tours. This change was consequent upon Qantas cancelling its Friday flight from Perth to Singapore and substituting a flight leaving Perth on a Sunday. The effect of this amendment was that the tour ceased to be of 13 days its new duration being of approximately 11 days. Notwithstanding advice to this effect, the brochures on display remained unamended and available in the stores to members of the public. The change in the duration of the tour was only made on the master copy of the brochure at each store.

Officers of the Trade Practices Commission became aware of this state of affairs as a result of a complaint from a customer who had in May 1979 booked a 13 days tour for herself and her husband through Associated Travel ostensibly departing Perth on Friday 21 December 1979. She had paid a deposit on or about 18 May 1979 and received confirmation of her booking. This confirmation was in the form of a letter containing a computer print-out of the itinerary and was on the letterhead of the defendant Traveland. The following words appeared at the bottom of the page:

"Please note: this itinerary is subject to change at any time without notice if for reasons beyond our control the flight, places, hotels and dates mentioned are varied."

Subsequently by letter of 3 October 1979 on a letterhead on which the words "Traveland - Viva: Holidays - Traveland Boans, Murray Street" appeared, the customer was advised that due to Qantas rescheduling, the tour would be departing on a Sunday. The letter stated that "The Programme will now be of an 11 day 10 night duration having 5 nights in Bali and 5 nights in Singapore at a costing of $793 each". The new flight itinerary was set out and the letter concluded with a request that the office be advised within 7 days if the amendment was acceptable.

For the defendant Traveland it was contended that the prosecution had not established any involvement on its part in the publishing or the displaying of the brochures and that I should dismiss the informations. In the alternative, counsel submitted on behalf of each defendant that the displaying of the brochures was not in the circumstances liable to mislead the public as to the quantity of the services offered in the Viva Bali Singapore tour. Additionally he contended that the proceedings were commenced out of time i.e. outside the period of 12 months required by s.21(1) (c) of the Crimes Act 1914. There was no contest in respect of other elements of s.55A of the Act.

In my opinion the prosecutor had not made out a case against Traveland. The evidence of the involvement of that defendant in the publishing or the display of the brochures at the relevant time in the stores is inadequate. There was no evidence that it was itself carrying on business on these premises nor could I find that Associated Travel was in any way acting on its behalf. It follows that the prosecutor can not call in aid the provisions of a.84(2) of the Act to prove his case. The evidence established that the tour which Associated Travel was selling to the public was not a tour produced by Traveland, but by Traveland International Limited. I do not consider that the information contained in the certificate of registration of the business name "Viva] Bali - Singapore" assists the prosecutor to establish that Traveland was carrying on business at any of the premises either under its own name or under the business name. Likewise the fact that the customer earlier mentioned received advice of the alteration to the tour on Traveland's letterhead does not advance the prosecutor's case. I would dismiss the information against the defendant Traveland.

I find that by displaying the brochures Associated Travel was contravening s.55A. In my opinion the conclusion is irresistible that the public were likely to be misled. Certainly the brochures were, in the words of s.55A, liable to mislead. A member of the public who read the contents would in my opinion be led into the erroneous belief that what was being offered was a tour of 13 days' duration. There was evidence to the effect that although a member of the public could select from the rack and read a brochure, he would invariably approach a member of staff and obtain advice. This member of staff would draw attention to the alteration. In any event, it was submitted that potential travellers were aware of the likelihood of altered itineraries and schedules. In my opinion neither of these matters assist the defendant. Not all customers approach members of staff for advice and not all travellers are necessarily aware of the likelihood of errors in brochures. I do however accept the evidence that it is extremely difficult if not impossible to amend brochures but such evidence is more relevant on the question of the appropriate penalty. I find that by displaying the brochures on the days in question in their unaltered form s.55A has been contravened by Associated Travel.

Counsel for the defendants submitted that if such was the case the conduct which amounted to a contravention had not been established as having taken place within the period of 12 months prior to the date of the informations. He contended that at the time the officers of the Trade Practices Commission selected brochures Associated Travel was not engaged in conduct in the relevant sense. Such conduct in the circumstances was the failure of the defendant to remove or amend the brochures when it became aware of the altered itinerary. He contended that the evidence established that at the time the brochures were first placed on display the information was correct in that at that time the tour was to be of 13 days duration. On 2 October 1979 Associated Travel became aware of the alteration to the Qantas flight and the fact that the brochures on display contained erroneous information. These brochures were allowed to remain in this condition on display and available to the public until replaced by a new and correct brochure on 15 October 1979. It was subsequent to 2 October and prior to 15 October 1979 that the officers of the Commission selected brochures from the racks in the stores.

In reliance upon these facts counsel contended that, the brochures being accurate at the time of display, the impugned conduct of the defendant lay in its failure to remove or amend the brochures when it was alerted to the inaccuracy. Such conduct, he said, could not in the terms of the defined meaning of engaging in conduct amount to the doing of an act. If encompassed at all by the definitions, it was because it amounted to the refusal to do an act in the sense that refusal included refraining, unless inadvertant (which was not suggested), from doing an act. The obligation on Associated Travel was to remove or alter the brochures as it became aware of their inaccuracy and in so far as it refrained from doing so within a reasonable time, it contravened the Act.

In my opinion it is not necessarily correct to conclude from the evidence that the brochures in question were accurate when placed on the racks. They, or some of them, may have been very recently put in the racks. Nor do I agree that the conduct of Associated Travel can only be characterised as a refusal to perform an act in the sense of refraining to perform otherwise than by inadvertance. The defendant's contention however was that on the relevant dates, 11 and 12 October 1979, it had ceased to engage in conduct which contravened the Act. In adopting the concept of refraining from performing an act the legislature, it was said, did not have in mind a continuing course of conduct but rather a failure to perform within a reasonable time. Upon the expiration of such a period, the conduct ceased to contravene the Act. In the circumstances of this matter the defendant, if it engaged in contravening conduct, so engaged by refraining from removing or amending the brochures within a reasonable time after it became aware of the error. Such reasonable period of time had expired by the time the officers obtained the brochures, and had expired more than 12 months prior to the laying of the informations.

I can not accept this submission. Some at least of the brochures I agree were placed in the racks more than 12 months prior to the date of the proceedings. There was however no evidence as to when the brochures in question were placed in the racks and they may have been first displayed on the previous day or some earlier date. However the essence of the offence lay in having on display at the relevant time a brochure which contained inaccurate information. Such conduct may be seen as the performance of an act or in the circumstances as the consequence of the failure to remove or amend it. Whichever way it is viewed, I am of opinion that on the days in question Associated Travel was engaging in conduct and it is immaterial to enquire when the brochures were first placed in the racks and whether at that time they contained material which was likely to mislead. It is equally irrelevant to enquire whether prior to the days in question the brochures or any of them had been removed from the racks and subsequently replaced. The crucial matter is that they were in the racks on display and available to the public on 11 and 12 October 1979 and they contained misleading information. In my opinion it is quite artificial to consider and determine the matter on the basis of an enquiry whether Associated Travel had refrained from removing or amending them within a reasonable time of becoming aware of the change in itinerary. A fortiori it is unreal to find that, having refrained from removing or amending within such reasonable time, Associated Travel ceased thereafter to engage in conduct which contravened the Act.

In my opinion the prosecutor has made out his case on each information to the requisite degree of certainty against Associated Travel. On each of the days in question it was displaying a brochure which contained material which was liable to mislead the public and this conduct contravened s.55A.

I will in due course enter a conviction in respect of the three charges numbered 43-45 of 1980 respectively against Associated Travel and I will dismiss the three charges numbered 37-39 of 1980 respectively against Traveland.

I will hear counsel on the two matters of fines and costs generally. In this regard I draw the attention of the parties to the provisions of O.49 r.5 of the Rules of Court. I adjourn the proceedings to a date to be fixed and my associate will be in touch with counsel to ascertain the most convenient venue for the taking of any further evidence and the hearing of addresses on the two matters of fines and costs.

As I have said I am not entering formal judgment at this stage but am standing the proceedings over to enable the aforesaid matters to be dealt with.