Doherty, A.P. v Traveland Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY	)	W.A. NO. 34-39 Of 1980
)

GENERAL

DIVISION

)

40-45

W.A.

Of 1980

I	B E T W E E N :
ANTHONY PAUL DOHERTY

Prosecutor

- and -

TRAVELAND PTY. LIMITED

Defendant

AND

ANTHONY PAUL DOHERTY

Prosecutor

- and -

ASSOCIATED TRAVEL

PTY. LTD.

Defendant

O R D E R S

JUDGE MAKING ORDERS	Fisher J.
WHERE MADE	Adelaide
DATE OF ORDERS	9 December 1981

THE COURT ORDERS	THAT LEAVE BE G m E D	TO MAKE	THE FOLLOWING
AMENDMENTS:

In respect of matter

No. W.A. G34 of. 1980 -

1. In the information for an offence (a) the words "and displayed" in the 15th line be deleted.

(b) the words

"11 days duration" in the 17th line be deleted

and in lieu thereof the words "less than 13 days

duration" be inserted.

- "These proceedings

are instituted with the consent in writing

of the

Minister pursuant to section 163(4)(b) of the said

Act".

2. In the

summons

(a) the words "and displayed" in the 14th line be deleted

(b) the words

"11 days duration" in the 16th line be

deleted and in lieu thereof the words "less than 13	days
duration" be inserted.

(i) deleting the figure "1" in the 2nd line

(ii) deletlng the figure "2" and the words "The Prosecutor alleges" in the 11th line and in lieu thereof inserting at the beginning of the next

line the bracketed letter

"d"

(iii) deleting the words

"11 days duration" in the

21st line and in lleu thereof inserting the

words "less than 13 days duration"

(d) the following paragraph be added

- "These proceedings

are instituted with the consent in writing of the

Minister pursuant to section 163(4)(b) of the Said

Act".

In respect of matter

No. W.A. G35 of

1980 -

1. In the information for an offence

( a ) -the words "and displayed" in the 15th line be deleted

(b) the words

"11 days duration" in the 17th line be deletec

and in*lieu thereof the words "less than 13 days

duration" be inserted

are instituted with the consent in writing of the

- "These proceedings

Minister pursuant to- section 163(4)

(b)

2..

In the summons

(a) the words "and displayed" in the 14th line

be deleted

(b) the words

"11 days duration" in the 16th line be deletec

and in lieu thereof the words "less than 13 days

duration" be inserted.

the charge be amended by

(i) deleting the figure "1" in the 2nd line

(ii) deleting the figure "2" and the words

- "The

prosecutor alleges". in the 9th line and in

lieu thereof inserting at the beginning of the

next line the bracketed letter "d"

(iii) deleting the words

"11 days duration" in the

19th line and in lieu thereof inserting the

words "less than 13 days duration"

(d) the following paragraph be added

- "These proceedings

are instituted with the consent in writing of the

Minister pursuant to section 163(4)(b) of the said

Act

" .

-In .respect of matter

No. W.A. G36 of 1980

1. In the information for an offence

(a)

the words "and displayed'' in the 15th line be deleted

(b) the words

"11 days duration" in the 17th line be

deleted and in lieu thereof the words "less than 13

days' duration"

.be inserted

- "These proceedings

are instituted with the .consent in writing

of the

Minister pursuant to section 163(4)(b) of the said

Act".

In the summons

(a) the words "and displayed" in the 14th line be deleted

(b)

the words "11 days duration" in the 16th line be days duration be inserted

of the charge be amended by

(i)

deleting the figure

"1" in the 2nd line

(ii) deleting the figure

"2" and the words

- "The

prosecutor alleges" in the 11th line and in lieu

thereof inserting the words "less than 13 daysD

duration".

(iii) deleting the words

"11 days duration" in .the

21st line

and in lieu thereof inserting the

.-words "less than 13 days' duration".

(d) the following paragraph be added

- "These proceedings

are instituted

with-the consent in writing of the

Minister pursuant-to section	163(4)(b) of the said
Act".

I n respect of matter

No.

W.A.

G40 of 1980 -

1. In

the

information for

an offence

(a ) the

words

"11 days

durat ion" in the 17th l ine be

deleted and i n l i e u thereof the

words "less than 13

days'

duration"

inserted

(b) the following paragraph

added -

"These proceedings

are inst i tuted with

the consent in wri t ing of

t he

Minister pursuant to section 163(4) (b) of the said

Act".

the

summons

( a ) t he

words

"published and"

i n the 14th l ine be deleted

(b) the words

"11 days duration"

in the 16th l ine be deleted

and

in l i eu thereof the

words

"less than 13 daysD

duration" be inserted

the charge be

amended by

(i)

delet ing

the

f igure

"1" rin the 2nd l i n e

(ii) dele t ing the f igure

"2" and the words - "The

prosecutor alleges"

i n the 11 th l ine

and

i n l i e u

thereof inserting at the beginning	of	the next
l ine the bracketed letter "d"

(iii)

delet ing the

words "11 days duration" in the

2 1 s t

l i n e and

in l i eu thereof inser t ing the

w a r d s

"less than 13 days duration".

(d) the following paragraph

be added - "These proceedings a r

ins t i tu ted wi th the

consent

i n writing of

the Minister

pursuant

t o sec t ion

163(4)(b) of

the sa id

A c t " .

I n respect of matter No.

W.A.

G 4 1 of 1980 -

In the information for

an offence

( a ) t he words

"11 days duration"

i n the 18th l ine

deleted and

in l i eu thereof the

words

"less than 13

days'

duration"

inserted..

(b) the following paragraph

be added-"These proceedings are

inst i tuted with the

consent

in wri t ing of

the Minister

163(4)(b) of

the sa id

Act".

pursuant

to sec t ion

2. I n the S-ons

( a ) t h e

words

"published and"

i n t h e 1 4 t h l i n e

deleted

(b) the words

"11 days duration"

in the 15th l ine be deleted

and i n l ieu thereof the	words	"less than 13 daysP
duration" be inserted.

of the charge be amended by

(i) deleting the figure "1" in the 2nd line

(ii) deleting the figure "2" and the words "The prosecutor alleges" in the 9th line and in lieu thereof inserting at the beginning of the next

line the bracketed letter

"d"

(iii) deleting the words

"11 days duration" in the 19th

line and in lieu thereof inserting the words

"less than 13 days duration".

(d) the following paragraph be added

- "These proceedings

are instituted with the consent in writing of the

Minister pursuant to section 163(4)(b) of the said

Act".

In respect of matter

No. W.A. G42 of

1980 -

1. In the information for an offence

(a) the words

"11 days duration" in the 17th line be

deleted and in lieu thereof the words "less than

13 days' duration" be inserted

(b) t k

following paragraph be added

- "These proceedings are

instituted with the

consent in

writing of

the Minister

pursuant to section

163(4)(b) of the said

Act".

2. In the summons

(a) the words "published and" in the 15th line be deleted

(b) the words

"11 days duration" in the 16th line be deleted

and in lieu thereof the words "less than 13 dayso	duratic:
be inserted

(i) . deleting the figure

"1" in the 2nd line

(ii) deleting the figure

"2" and the words "The

prosecutor alleges" In the 12th line and in

lieu thereof inserting at the beginning

of the

next line the bracketed letter

"d"

(iii) deleting the words

"11 days duration" in the 22nd

line and in lieu thereof inserting the words

"less than 13 days duration"

(d) the following paragraph be added

- "These proceedings

are instituted with the consent in writing of the

Minister pursuant to section 163(4)(b) of the said

Act

" .

In respect of matter No. W.A.

G43 of 1980 -

1. In

the

information for

offence

(a) the words "11 days duration" in the 15th

and 16th

l i n e s be

deleted and

in l i eu thereof the

words

"less

than 13 days' duration" 'be inserted.

(b) the following paragraph be

added -

"These proceedings ar:

insti tuted with the

consent

in wr i t ing of

the Minister

pursuant t o sec t ion

163(4) (b) of

the said

Act".

the

summons

( a ) t h e words

"published and" i n the 14th l ine

be deleted

(b) the words

"11 days duration" in the 15th

l i n e be deleted

and

in l ieu thereof the

words

"less than 13 days'

duration "be inserted.

( c ) t he pa r t i cu la r s

the charge

amended by

(i)

dele t ing

the

f igure

"l" i n t h e

2nd l i n e

(ii) delet ing the f igure

"2"

and the words

"The

prosecutor alxeges" in the 12th

l i n e and

i n

l i e u thereof inser t ing a t the

beginning

the

next l i n e khe bracketed letter "d"

( i ii-) delet ing the

words

"11 days

duration"

i n t h e

-22nd l i n e and

i n l i e u thereof inserting the

words

"less than 13- days' duration"

(d) the following paragraph be

added -

"These proceedings

are inst i tuted with the consent in wri t ing

the

Minister pursuant to section 163(4)(b)	of	the sa id
A c t " .

In respect of matter No. W.A.

G44 of 1980 -

1. In

the

information for

offence

( a ) t he

words

"published and"

in t he 14 th l i ne

deleted

(b) the words

"11 days duration" in the 16th

l i n e be deleted

and in l i eu thereof the	words	"less than 13 days'
duration" be inserted

added -

"These proceedings

. are insti tuted with the consent in writ ing

the

Minister pursuant to section 163(4)(b)

the said

Act".

the

summons

( a ) t h e words

"11 days duration" i n the 14th

and

15th l ines

be deleted

and

in l i eu t he reo f t he

words

"less than

13 days'

duration"

inserted.

(b) the particulars of the charge be amended by

(i) deleting the figure '"l" in the 2nd line

(ii) deleting the figure

"2" and the words "The

prosecutor alleges" in the 11th line and in

lieu thereof inserting at the beginning of the

next line the bracketed letter

"d"

(iii) deleting the words

"11 days duration" in the 21st

line and in lieu thereof inserting-the words

"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"

respect

matter

No. W.A.

G45 of 1980 -

1. In the information for an offence (a) the words "published and" in the 14th line be deleted

(b) the words

"11 days duration" in the 16th line be deleted

and in lieu thereof the words "less than 13 days'

duration" be inserted

- "These proceedlngs

are instituted with the consent in writing of the

Minister pursuant to section 163(4)(b) of the said Act".

2. In the summons

(a) the words

"11 days duration" in the 15th line be deleted

and in lieu thereof the words "less than 13 days'

duration" be inserted

(b) the particulars of the

- charge be amended by

(i)

deleting the figure

"1" in the 2nd line

(ii) deleting the figure "2" and the words

- "The

prosecutor alleges" in the 14th line and in lieu

thereof inserting at the beginning of the next

line the bracketed letter "d"

(iii) deleting the words

"l1 days duration" in the 24th

line and in lieu thereof inserting the words

"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".

I N THE FEDERAL COURT O F AUSTRALIA	)
1

WESTERN AUSTRALIA DISTRICT ReGISTRY )

W.A.

NO. 34-39 of 1980

GENE-

D I V I S I O N

)

W.A.

NO.

40-45

1980

B E T W E E N :

ANTHONY PAUL DOHERTY

Prosecutor

- and -

TRAVELAND PTY. LIMITED

Defendant

AND

ANBHONY PAUL DOHERTY

Prosecutor

- and -

ASSOCIATED TRAVEL PTY. LTD.

Defendant

REASONS

FOR

DECISION

FISHER J.:

There i s before m e i n each of

the abovementioned

proceedings a Notlce of Motion f i l e d by the prosecutor seeking leave to amend the information and summons to br ing them in to

l i n e with the consents given

the relevant

Min i s t e r pursuant t o

s.l63(4)(b) of

the Trade Practices Act 1974

(" the A c t " )

O n 10 October 1980 three informations

were laid against the

defendant Traveland Pty. Limited charging

it with offences

under

s.53(c)

the

Act. These Informations allege that

i n

Western

Australia, on 11 October 1979 a t Pe r th ,

on 1 2 October 1979 a t

Karrinyup and on 1 2 October 1979 a t Peppermint Grove respectively

the defendant did in contravention of

that sect ion

" i n t rade or

commerce t rad ing as 'Viva!

Bali-Singapore'

i n connexion with

the

promotion by advertising of services represent"

i n one instance to

Peter James Dawson (on 11 October 1979) and'in

two instances to

Rodney Alexander Noel Caldwell (on

12 October 1979) "that services

did have

benefits they did not have,

namely

that advertised tours

r e fe r r ed to a s

'Viva!

Bali-Singapore

13 days from $820'

i n a brochure

en t i t l ed 'Viva!

Bali-Singapore

13 days from $820n

published and

displayed by for or on behalf of the defendant were of 13 days duration whenihe said tours were of 11 days duration". I n each

instance here and hereaf ter I have underlined the

words sought t o be

amended.

The

summons

each matter coincides with the terminology

of	the particular information.

the same

date three informations

w e r e laid against the

other defendant Associated Travel Pty. Ltd. charging

with the

same offences on the same dates and a t the same places.

The only

significant variation

from the informations against the defendant

Traveland Ety.

Limited was that the underlined words "published

and" were omitted from the informations but not

from the summons.

Three informations charging the defendant

Traveland Pty.

Limited with offences

under

s.55A

the A c t w e r e a l so l a id

10 October 1980.

These informations alleged that

on the same dates

and a t t h e same places respectively referred to

i n the abovementioned

proceedings against this defendant

it did in contravention of tha t

section

"engage i n conduct

t h a t was

l i a b l e t o mislead the public

as to the qua l i ty

services, namely that advertised tours

referreci t o

a s

'Viva!

Bali-Singapore

13 days from

, I

$820' i n brochures en t i t l ed 'Viva!

Bali-Singapore

13 days from

$820'

published and displayed by fo r o r on behalf of the said

Traveland pty. Limited

were of 13 days duration

when the said

tours were of 11 days duration".

Three similar-informations w e r e on the same

date laid charging

the defendant Associated Travel Pty. Ltd. with

l i ke o f f ences a t

the same places and on the same dates.

The only s ignif icant

var ia t ions from the informations

i n the preceding paragraph

were

t h a t i n one instance the underlined

words

"published and" w e r e

omitted from the information and i n two instances were omitted

from the summons.

In a document bearing date 6 October 1979 Ransley Victor

Garland, Minister of

State for Business and Consumer Affairs gave

h i s consent

t o t h e i n s t i t u t i o n

each

the

six proceedings

against the defendant Traveland Pty. Limited

and

i n another

document of

the same

da te t o each of

t h e s i x proceedings against

the defendant Associated Travel Pty.

Ltd.

i s

apparent that the

wording of the information and summons i n each matter departs

from

the

terminology

the Minis ter ' s consent to the inst i tut ion

of the par t icu lar proceedings.

Moreover the nature

of such

departure varies

from proceeding t o proceeding.

It w a s , I was

told, in par t for the purposeof br inging the information

and

summons

i n each proceeding into coincidence with the relevant

consent, that

a Notice of

Motion seeking leave

t o amend was

f i l e d

i n each action.

The other amendment re la ted to the descr ipt ion

what must be an undisputed	f a c t , namely the actual	t i m e ultimately
spent on each tour.

At this stage it is convenient to deal with the Notice

Motion in one matter, as it was generally agreed that

a d cision

in principle in this matter would probably determine, in principle

at least, the result in the other

11 proceedings. The consent in

reference to proceedings

No. 34 of 1980 against the defendant

Traveland Pty. Limited, being the proceedings under s.53k) of the terms:

"That on

11 October 1979 at Perth in the State of Western

Australia, Traveland Pty. Ltd, being

a Corporation in trade

or commerce, did contravene section 53(c)

of the Trade

Practices Act

1974 in that the .said Traveland Pty. Ltd,

in connexion with the promotion by advertising of services

did represent to Peter James Dawson that services had benefits

it did not have, namely that tours advertised in

a brochure

ublished by or for or on behalf of the said Traveland Pty. Ltd.

fitled 'Viva! Bali-Singapore 13 days from $820' were of 13

days duration when the said tours were	of 10 days and	11 nlqhts
duration. "

I have again underlined the words by reference to which the

Information and summons are sought to be amended. It is apparent,

but doubtless, except as hereafter specifically mentioned,

little significance, that there are

a number of additional

departures in those documents from the terminology	of the Minister's
consent.

Section 53(c) is in the following terms:

"53. A Corporation shall not, in trade or commerce, in

connexion with the supply or possible supply

of goods or

services or in connexion with the promotion by any means

of the supply or use of goods or services

(a) ... (b) ... (c) represent that goods or services have sponsorship, approval,

performance characteristics, accessories, uses or benefits

they didnot have:

(d) ...

(9) - - - ' l

On 5 March 1981 the Prosecutor filed Notice of Motion seeking

to amend the information and the summons by deleting the words

"and displayed" in each document, deleting also the words

"11 days

duration" and inserting in lieu thereof the words "less than 13

days duration". This application was strongly opposed by counsel

for the defendant, who contended that the departures In the

information and summons were fatal and deprived this Court of

jurisdiction. Thus he said the proceedings should be dismissed

and to this end ultimately on

3 July 1981 filed a Notice of Motion

seeking dismissal of the summons and information on the ground that

they were "void"

"(a) for want of jurzsdiction in that they do not comply

with the terms of the Minister's consent: and

(b)

for failing to disclose an offence known to law in that they do not allege an essential ingredient of the offence

viz, that the alleged offence was committed

zn connection

with the-promotion by advertising of 'the supply or use

of services. "

It can not be doubted that the information and summons do not

coincide exactly with the words of the Minister's consent, and that

any reference to the words in the Act

d fming the offence, naqely

"the supply

or use of" services have been omitted.

In respect of

each motion the question is whether the departure is fatal to the

continuance of the proceedings or	the exercise of jurisdiction by
this Court.

In support of his submission that leave to amend should not be

granted, counsel for the defendant put forward

a fo ceful but

technical argument. He contended that the primary question before

the Court was whether the Minister had consented to the institution

of the proceedings

comenced by the summons and information. If

6 .

the information and summons did not coincide with the terms of

the consent,

he said that the proceedings were commenced without

an effective consent and were

a nullity, the Court being without

jurisdiction.

He ultimately gave positive effect to this submissior

by filing Notices

of Motion seeking the.dismlssa1 of certain of

the proceedings

on this ground. To amend the information and

summons in manner sought by the prosecutor would,

it was said,

create an injustice. This vas because the defendant was immune

from prosecution except in proceedings commenced both in accordance

with the Minister's consent and within the time limit of one year

prescribed by s.21(l)(c)

of the Crimes Act

1914. An order deprivinc

the defendant of this immunity would be unjust and

by virtue of

s.21A(3)

of that Act should not be made. In support of these

contentions counsel relied inter alia upon the reasoning of

Brennan J. in Gilmour v Midways Sprinqwood Pty. Ltd.

(1980-81)

33 A.L.R-605 and

in particular his finding in that matter that

the Minister had consented to the prosecution of an offence which

was different from that identified in the information. Brennan

further held that the information was not capable of amendment

without effecting an injustice to the defendant.

Counsel attached some significance to the fact that s.21A

of the Crimes Act

1914 is in

terms different from corresponding

legislation in the Australian States and from

s.100 f the

Maqistrates' Courts Act 1952 which was discussed in

g v Newcastle-

Upon-Tyne D9763

2 All E,R. 611. The latter decision of the Court

of Appeal was referred to by Brennan

J. in Gilmour's case supra at

page 108.

Section 21A is in the following terms:

"(1)

If at the hear ing

of any indictment, information

or summons any objection is taken for an-alleged defect

therein in substance or in

form,

or i f ob jec t ion

is taken

t o any variance between the indictment, information or

summons and the evidence

adduced at the hear ing i n support

'thereof,

the Court may make

such amendment i n t h e indictment,

information or summons as appears t o it t o be desirable or

t o be

necessary

to enable the

real

question I n dispute to be

determined.

( 2 ) If

i n any such case the

Court considers that the defendant

has been misled by the form i n which the indictment,

information or summons has been made out, it may adjourn

the hearing of the

case f o r such period as it thinks f i t and

may

make

such order

as t o t h e c o s t s

the adjournment

as it

thinks proper.

( 3 ) The power

of t he Court under sub-section

(1) shall not

be exercised in cases where the Court considers that the

required amendments cannot be made without injustice to the

defendant. "

Thus th i s sec t ion

does not

i n i t s terms preclude objection

on the ground of defect

or var iance, as do the other provisions

abovementioned, but permits proceedings t o be amended provided no

injust ice is perpetrated. Counsel's contention

was

tha t whereas

other legis la t ion

its

terms

cured the alleged defect or variance

by precluding objection

on these grounds, the Crimes A c t permitted

the Court t o amend t o m r e such defects.

However such power of

amendment

could not be exercised,

said, unless pr ior to

amendment

the proceedings had been effectively

commenced,

i.e.

the proceedings

disclosed a valid cause of action

commenced with consent

and within

time.

As it is my

ultimate oplnion that the proceedings

w e r e ,

f o r

the reasons

which follow,validly commenced i n accordance w i t h the

consent

and

within t ime, this alleged difference

I n the legis la t ion

has no significance and need

not be further

pursued.

I n par t icu lar

does not necessarily follow, as counsel

contended,

t ha t i f f o r any reason amendment i s refused, the

var iance in th i s

present

m a t t e r i s f a t a l and

the proceedings

m u s t

be dismissed. The amendment may be refused because of the unjust

consequences t o t h e defendant which flow from allowing i t , whereas

different considerations

w i l l apply i n determining whether

t he

proceedings

must

be dismissed. In the present instance the nature

and extent of the departure

i n t h e information from the terminology

of the consent-is important.

It is he lpfu l to compare such

departure with the departure in

Gilmour's case supra.

In t ha t case the Minister consented

t o the prosecution of

two

alleged contraventions	of	s.53(c) of the A c t "in that the defendant
-

i n t r ade o r

commerce

i n connection with the supply

qoods

falsely represented...".

The prosecutor charged the defendant

" in tha t

did in connection with the

promotion

by any means

the supply or use

of qoods".

The departure consequent upon the

inser t ion i n the information

the words "the promotion by any

means"

is readily apparent. Section

53 prescribes two

al ternat ive

circumstances i n which the section

may be contravened.

The Ministel

specifically selected one circumstance but the prosecutor

proceeded

i n accordance with the other.

Brennan J.

found t h a t i n

consequence

the Minister had ident i f ied and consented t o one offence and the prosecutor had charged another offence. Because the informations

could not be

amended without charging the defendant with

a different

offence, the application to

amend had t o be refused.

it was

allowed,

the immunity which

the t i m e l imi ta t ion in

s.21(l)(c)

gave

the defendant would be defeated

which would be unjust.

H i s Honour',

reasoning appears to

t o be clearly based upon the different

identities d the two offences, and the t i m e l imitation under s.21

(1)

(c).

Counsel for the defendant placed much emphasis upon the

following passage in the reasoning of Brennan

J. at page

607,

"It would seem, on the authority of Berwin

v Donohoe (1915)

21 C.L.R. 1 that if the Minister's consent were expressed informant is bound to observe in the laying of the information"

in quite general tenus that would suffice. But where the

In reliance upon this passage it was contended that if the

Minister descended to great particularity in identifying not only

the offence as specified in the legislation but also details of the

conduct which is alleged to amount to the offence, neither the

prosecutor, nor, it would 'follow, the Court can alter or depart

in any way from the detail of the consent. For my part, unless

bound by authority,

I am not prepared to accept such

a restrictive

approach.

It seems to me that it fails to differentiate between

the identification of the offence, the prosecution of which requlres

consent, and the statement of the conduct which

is alleged to found

the offence. Furthermore it doubtless would deny any

circumstance

in which the power to amend in s,21A of the Crimes Act could operate

and would introduce unnecessary technicality irrespective of the

degree of prejudice, if any, suffered by the defendant.

Counsel supported- his argument with

a number of authorities.

He relied upon the reasoning in Gilmour's case supra, but as

I have

already indicated this was

a matter in which two different offences

were identified. The error occurred in

a crucial portion of the

information which identified the offence in terms

of the legislation.

In fact as it happens there were further departures in the statement

of the circumstances in which the offence was alleged to have occurre

which variances were neither relied upon nor adverted to by the

trial judge. In -

R v Bacon L19737 1 N.S.W.L.R.

87, another authority

10.

re l ied

on by

counsel for the defendant, the relevant departure

again occurred

in the s ta tement

the offence, the prosecutor

charging the defendant with "delivery"

whereas the consent

and the

legis la t ion used

the words

"published, distributes or exhibits".

This departure the Court	understand-ably found	t o be a "substantial"
departure.

Two cases from Northern Ireland

were re l ied upon,

namely

- v Taylor [b966JNN,I.

136 and -

R v Downey D1973

N. I. 224, both of

which w e r e discussed and dis t ingdshed-by the Court of

Appeal i n

R v Cain B1973 1 Q.B.

496.

I would distinguish each of

these cases

i n the f i r s t ins tance

the ground that the requisite consent

was

not so much

a consent

t o charge an offence as a consent

t o proceed

with

an indictment formulated as a result of

commital proceedings.

What was

there required w a s the ident i f icat ion

the charge

and

not merely

the offence.

Moreover i n the former case it w a s not the

indictment which was under challenge but the

trial judge'6 direction,

and concern w a s f e l t by the Appeal

Court tha t the ju ry

might not

have

addressed i t s e l f t o t h e

charge authorised

the Attorney

General.

In the latter of t he two decisions the decision turned

on t h

form of the consent

and not the charge, in circumstances

where the

consent was found t o be defective. Persuasive as

some of the dicta

i n these authori t ies may be contended t o be i n support of the

defendant's submission,

I am not prepared to accept

them as binding

upon me

i n t h i s matter.

The approach I adopt i s influenced and encouraged by the view of

Isaacs J., as he then

was, i n Berwin v Donohoe supra a t p.26 when he

sa id , i n the wokds endorsed by the Court of Appeal i n R

Cain -supra,

11.

"If the precise form of the charge were necessary to be

stated then the provisions of 'the Justices Acts

arid the

Crimes Acts permitting amendments and guarding against the old fatalities for variance would be inoperative"

I wauld refer also to v Cain supra at page

502:

"In recent years great stress has been put upon the need

to enable pleadings in criminal cases to be amended so as

to avoid abortive trials and the necessity to start

proceedings again from the beginning. It is to be observed

that if the Attorney-General's consent

has to follow the

facts of the ultimate charge

with like particularity, this

may often make it impossible

to amend the proceedings

during their course and

may require the case to start agaln

with the Attorneyus consent

in different terms."

The words of Isaacs

J . in particular are equally relevant

in my opinion in circumstances where the Minister

m his consent

does not restrict himself to

a statement of the charge in terms of

the legislation but relates in general terms, often to the great

advantage of the defendant, the conduct which it is contended

supports the allegation

f a contravention.

By so doing it can not be contemplated that the result is

that the more information the Minister gives the more the

prosecutor is denied the benefit

of legislation which permits

amendments, and the more

he is inhlbited in giving particulars

and further and better particulars beyond those specifically set out

in the information and summons.

It is my opinion that at least

for present purposes, there is

a clear difference between the identification of the offence to be

charged'to which the consent is directed, and the set of facts or

transactions which it is alleged are the subject of the charge and

constitute the relevant contravention. Such

a dichotomy is apparent

in the reasoning of Dixon

J. (as he then was) in Johnson

v Miller

(1937-38) 59 C.L.R.

467 at

p.490-

. .

12.

In this information the prosecutor seeks to delete the words

"and displayed" which do not appear in the consent and to substitute

the words "less than

13 days" for the words

"11 nights and

10 days".

In neither instanae

is he attempting, as was the position in

Gilmour's case supra and Banon's case supra, to vary the statement

of the offence alleged, recited as

it is

in accordance with the

relevant words of the statute. Rather in reciting the facts or the

occurrences which are alleged to amount to

a contravention, he is in

the one instance seeking to bring them into line with the consent and

in the other to state the actual duration of the tour in terms less

likely to be misunderstood. In one instance he is deleting two

unnecessary words which do not appear

inthe consent and in the other

stating differently the duration in fact of the tour,

a ma te best

known to the

defendant but hardly, other than semantically, in dispute

Above all in my opinion

he is not tampering wlth the words which

crucially identify the offence charged in conformity with the

legislation, which offence will remain the same after the amendment

of the information. Whether the appropriate determinant is

"substantial departure" (Bacon's case supra), any alteration in the

"pith and substance" or the "character or quality" of the offence

charged (Crafter

-v McKeough [l943 S.A.S.R.

371 per Napier

C.J.

375) or any injustice to the defendant, the answer in this matter

is in the negative.

In my opinion the Minister has clearly identified in the terms

of the legislation the offence with which he authorises the defendant

to be charged, the information charges him with this offence, and

there is no justification on this ground

to refuse to allow the

amendments sought. The consequence of the amendment is not to deprivr

the defendant of any immunity to which he is entitled and thus there

13.

is no injustice caused by allowing the amendments.

Similar amendments a re sought t o be made t o t h e informations

and	summonses charging offences under s.55A of the Act. For the

reasons already given there

is no justif ication for refusing leave

t o amend a s sought by the prosecutor.

These amendments are the same i n respect of the duration of the

tour and subs tan t ia l ly the same i n respect of

the terminology or

"verbal flourishes"

used to ident i fy the-brochure in

which the

misrepresentation or misleading statement

were al leged to have been

made.

It is appropriate, and in fact not unhelpful

t o the defendant,

that i n each instance amendments be made t o vary the descrlption

the duration

the

tour

and

to b r ing the ident i f ica t ion

the

brochure

in to l i ne w i th t ha t i den t i f i ed i n t he

consent.

It is proper that

a l l amendments sought by the prosecutor should

be allowed.

The defendant i n its Notice of Motion seeks i n each of

s ix

proceedings, namely 34- 36 and 40 - 4 2 , t o have the summons and

information dismissed

two

grounds.

The f i r s t conten t ion ,

namely

that they do not comply with the terms of the Minis ter ' s consent is covered by my findings on the Motions t o amend and I am against the defendant on t h i s count.

The second ground

re l ied upon is t h a t each consent information

and

summons

f a i l s t o d i s c l o s e an

offence known

t o t h e law

in t ha t

the omission of key

words

omits t o a l l ege what

i s an

essent ia l

element of the offence.

The element a l leged to be omitted

1s referred

14.

to in one of the preambles to the specification of the separate

offences enumerated in s.53(a) to (g) respectively of the Act,

namely the words "in connexion

m t h the promotion by any means of

the supply or use of goods or services". Both the consent and the

information (and summons) state this element in the following words,

namely "in connexion with the promotion by advertising of services".

In each instance there has been

a failure to specify whether what

is promoted is the "supply" or the "use" of services. The contention

is that because each information, and doubtless equally each consent,

fails to specify this allegedly essential element of the offence

charged or consented

to, each is defective- and the information

should be	dismissed as failing to disclose an offence	known to the
law.

It was not however alleged that the failure placed the defendant

in a difficult or prejudicial position or that there

VAS any doubt

what was alleged against the defendant. This must obviously be

so,

for what the omitted words identify is not two alternative forms of services, but the same form of services viewed in one instance from the point of view of the supplier and the other instance in the

eyes of the user.

Even if the omission results in there being no proper averment

of an essential ingredient of the offence in the information, which

my opinion has not been established, it does not follow that it can

not be amended. I refer to the approach adopted by Dixon	J. in
Broome v Chenoweth (1946) 73 C.L.R. 583 at p.601:

"Whether an information disclosing no offence can be

. amended has been the subject

of some difference

of judicial

opinion; Some Victorian cases will be found discussed by

Cussen J. in -

Knox v Bible (1907)

V.L.R. 485 at pp.498-500,

15.

and the matter

is very fully examined by Clark

J. in Davies

v Andrews (1930) 25 Tas.L.R.

84 at pp.91-110. where cases

from other jurisdictions are collected. Probably it

necessary to deal with the question as

a matter of degree

and not by

a 'firmly logical distinctioh. An offence may be

clearly indicated

In an information, but, in its statement,

there may be some slip or clumsiness, which, upon

a strict

analysis results in an ingredient ih.the offence being the

subject of no proper averment. Logically it may be said

in such

a case that no offence is disclosed and yet it would

seem to be

a fit case for

amendment, if justice is not to

be defeated. By contrast, at the other

xtreme, an

information may contain nothing which can identify the charge

with any offence

known to the law. Such

a case may not be

covered by the power of amendment.

In my opinion the offence alleged is clearly indicated in the

information and summons, and the words omltted are

a consequence

_ .

of a slip or clumsiness. The defendant's Notice of Motion filed on

9 October 1981 must be dismissed.

I grant leave to the prosecutor to amend in accordance with the

terms of his Notices of Motion, some of which were themselves

amended or withdrawn. It is appropriate that

I grant liberty to

speak to the Minutes of each order and

I direct that in each

proceedings a fresh copy of the amended information and summons

be filed. I rkserve in each matter the question of costs of the prosecutorOs Notice of Motion and where relevant the Notice of Motion of the defendant.

I certlfy that thls and the 4- precedmg

p a g s are a true copy of the Reasons for

[1981] FCA 231

9 Dec 1981