Douglas Anthony Gilmour v Bannister Nominees Pty Ltd

_ _ _ _ _ _ _ _ _ _ C A T C H W O R D S

TRADE AND COMMERCE - C o n s u m e r P r o t e c t i o n -

Prosecut ion fo r O f f e n c e s - False R e p r e s e n t a t i o n s -
Penal ty .

T r a d e Practices A c t 1 9 7 4 , sub-ss . 53 ( a ) , 5 3 ( c ) and 7 9 ( 2 )

DOUGLAS ANTHONY GILMOUR v . BANNISTER NOMINEES PTY LTD

Q l d G 3 9 of 1 9 8 2

Q l d G53 of 1 9 8 2

2 3 JUNE 1 9 8 2

FITZGERALD J.
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY 1 G39 of 1982
GENERAL DIVISION )

BETWEEN :

DOUGLAS ANTHONY GILMOUR

Prosecutor

AND :
BANNISTER NOMINEES PTY LTD
Defendant

JUDGE MAKING ORDER: FITZGERALD J.

DATE OF ORDER: 23 JUNE 1 9 8 2
WHERE MADE: BRISBANE
THE COURT ORDERS THAT:

1. A fine of $10,000 be Imposed. In default levy in distress.
2. The defendant, Bannister Nomlnees Pty Ltd, pay the costs of the proceedlngs, Including reserved costs, if any.

3 . Llberty to apply.

I N THE FEDERAL COURT OF AUSTRALIA 1

QUEENSLAND DISTRICT REGISTRY ) G53 of 1 9 8 2

GENERAL D I V I S I O N )

BETWEEN:
DOUGLAS ANTHONY GILMOUR
Prosecutor

AND :

BANNISTER NOMINEES PTY LTD
Defendant

JUDGE MAKING ORDER: FITZGERALD J.
DATE OF ORDER: 23 June 1 9 8 2
WHERE MADE : BRISBANE

THE COURT ORDERS THAT:

1. A f l n e of $ 2 , 0 0 0 be Imposed. I n d e f a u l t
levy i n distress.

2 . The defendant , B a n n i s t e r N o m i n e e s P t y L t d ,

pay t h e costs of the proceedings, i n c l u d l n g

reserved costs , i f any.
3. L l b e r t y t o app ly .

I N THE FEDERAL COURT O F AUSTRALIA ) G39 of 1982
QUEENSLAND DISTRICT REGISTRY

G53 of 1 9 8 2

GENERAL D I V I S I O N 1

BETWEEN :

DOUGLAS ANTHONY GILMOUR

Prosecutor

AND :
BANNISTER NOMINEES PTY LTD
Defendant

FITZGERALD J. 23 JUNE 1 9 8 2

EXTEMPORE REASONS FOR JUDGMENT

I am s a t i s f i e d t h a t on o r a b o u t 26 February 1 9 8 1

a t Bateau Bay i n t h e State of New South Wales,

Bannls te r Nominees P ty L td d ld In con t r aven t lon o f

sub-s . 53(a) o f the Trade Prac t lces A c t 1 9 7 4 as amended,

i n t r a d e o r commerce In connec t ion wl th the p romot ion

by any means of the supply of goods, make a f a l s e

r e p r e s e n t a t i o n t h a t g o o d s t o wit one "Ace Edgemaster"

conc re t e pumping machine was t o c o n t r a c t o r s s t a n d a r d ,

which representa t lon was f a l s e In t h a t t h e machlne was

incapable of producing a product marketable by a
c o n t r a c t o r .

I am a l so s a t l s f i e d t h a t on or about 3 March 1981

a t Bateau Bay I n t h e S t a t e of New South Wales, Bannister

Nominees P t y L t d d l d , I n c o n t r a v e n t i o n of sub-s . 53(c)
L .

of the Trade Practlces Act 1974 In trade or commerce

in connection wlth the promotlon by any means of the
supply of goods falsely represent that the goods

to wit one "Ace Edgemaster" concreting machlne had a

performance characterlstlc which it did not have in
that the statement was made:

"There are several ldentical machlnes m
Brisbane and all are worklng perfectly,
produclng concrete edging for small
and large ~obs."

meaning that the machine was capable of produclng

concrete edgmg of an acceptable standard, whereas

the machine was lncapable of dolng so.

Both representations were made in connection

wlth the sale of such a machme to one Graham Knox

of Bateau Bay.

I am also satlsfied that Bannister Nominees

Pty Ltd was lnvolved In the dlstrlbutlon of such

machines in a number of parts of Australla and that

a slgnlflcant number of machlnes was ln fact

distributed. I am also satlsfied that there was no

possible basis for the statements made and that they

were deliberately false.

I am also satisfied that the effect of the course

of conduct pursued by Bannister Nomlnees would have

been to return to it siqnlficant amounts of money

although the material available does not let me form

an estimate of what would have been Involved by way
of proflt.

Whether or not the two offences fall wlthm the

operatlon of sub-s. 7 9 ( 2 ) of the Act, I propose to
consider them on the footlng that that sectlon reveals

a policy whlch would lndicate that because they are not

dlscreet in polnt of time or in point of the person to

whom the statements were made, I should not approach the

matter on the basis that a f m e not exceeding $50,000

1s available In respect of each charge.

I order that ln respect of matter G39 of 1 9 8 2 a

fine be imposed of $10,000 and that In G53 of 1 9 8 2 the

fine whlch I impose is $2,000, makmg a total flne of

$12,000. In default, levy in dlstress.

I further order that the defendant, Bannlster

Nominees Pty Ltd, pay the costs of both proceedlngs,

includlng reserved costs, if any. Llberty to apply.

In this case, the plaintiff, Douglas Anthony Gilmour, brought a prosecution against Bannister Nominees Pty Ltd, the defendant, in the Federal Court of Australia. The dispute arose from the defendant's alleged contravention of the Trade Practices Act 1974 by making false representations in trade or commerce in connection with the supply of goods, specifically a "Ace Edgemaster" concrete pumping machine. The defendant was accused of falsely claiming that the machine met contractors' standards and could produce concrete edging of an acceptable standard, which the court found to be untrue. The primary legal issue the court had to determine was whether the defendant's actions constituted a breach of the Trade Practices Act, specifically sections 53(a) and 53(c).

The court found that the defendant's representations were indeed false and deliberately made in connection with the sale of the concrete pumping machine. It was established that the machine was incapable of producing concrete edging to the standards claimed. The court considered the broader impact of the defendant's conduct, noting that the false representations were made to a significant number of customers across Australia. Fitzgerald J determined that the fines imposed should reflect the seriousness of the breaches, taking into account the policy of deterrence as indicated by section 79(2) of the Trade Practices Act. Accordingly, the court imposed a fine of $10,000 for the first charge and $2,000 for the second charge, totalling $12,000, with the option for levy in distress if the fine was not paid. Additionally, the defendant was ordered to pay the costs of the proceedings, including any reserved costs.

The final orders of the court were that Bannister Nominees Pty Ltd pay a total fine of $12,000, with the possibility of levy in distress if the fine remained unpaid. The defendant was also ordered to cover the costs of the proceedings, including any reserved costs. The court granted liberty to apply for further orders if necessary.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Prosecut ion fo r O f f e n c e s	-	False R e p r e s e n t a t i o n s	-
Penal ty .

DOUGLAS ANTHONY GILMOUR v . BANNISTER	NOMINEES	PTY	LTD
Q l d	G 3 9	of	1 9 8 2

IN THE FEDERAL COURT	OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1	G39 of 1982
GENERAL DIVISION	)

DATE OF ORDER:	23 JUNE 1 9 8 2
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

JUDGE MAKING ORDER:	FITZGERALD J.
DATE OF ORDER:	23 June 1 9 8 2
WHERE MADE :	BRISBANE
THE COURT ORDERS	THAT:

which representa t lon	was	f a l s e In	t h a t t h e	machlne was
incapable	of	producing a	product marketable by	a
c o n t r a c t o r .

Nominees	P t y L t d d l d ,	I n c o n t r a v e n t i o n	of	sub-s .	53(c)
L .

performance characterlstlc which it	did not have in
that the statement was made:

machines in a number of parts	of Australla and that
a slgnlflcant number	of machlnes was ln fact
distributed.	I am also satlsfied that there was no

although the material	available does not let me form
an estimate of what would have been Involved	by way
of proflt.

whom the statements were made,	I should not approach the
matter on the basis that a	f m e not exceeding $50,000