Finger, Malcolm John v Malua Motors Pty Ltd

[1978] FCA 9

BE'L'!:EEt: : ........ ........ ........ MALCOLTI JOHN FII\'GZI' .-.?. ....

........ ........ ........ ....... Inf orrnant

........ ........ ........ .....

n P! ZI ........ ........ ........ ........ . MALUA MOTORS PTY LTD

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........ ........ ........ ........ Defendant

........ ........ ........ ......

ST.JOHN J.

6 March, 1978

Sydney

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TfIP: cGIJT3' oi?3!??'s TIYhT:

3 . The deferclant company is convlcted.

2.	The defendant company is to pay a penalty of $8,000 (elght
thousand d o l l m s ) In relaxion to each oFfence (G.fiios.55856 o f 1977
3'	TF.e defenGant company is to pay the informant's costs.

TRADE PRACTICES ACT 1974 SECTTOI\F 79 and 5 3 ( :

MALCOLM JOHN FIFGER

( I n f o r m a t )

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and

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!

MALUA IiIOTORS PTY. LITIITED

(Defendant)

REASONS FOR JUDG:.ENT : ST. JOHN J .

DELIVERED:	6 March 1978.
The defendant coq~any, Malua Moto r s Pty. Lirnited,

has p l eaded gu i l t y t o two charges under section 53(a) o f t h e

*Trade Practices Act 1974. Both these chzrges re la te to a

misleading statement made I n r e s p e c t o f an odometer reading on a

. *

Mazda motor vehicle.

The f irst cha rge r e l e t e s t o s imp ly d i sp l aymg

the odometer x i t h an incor rec t read lng; and the second charge

r e l a t e s t o a r ep resen ta t lon i n wr i t l ng made by t h e manager o€ t h e

defendant company t o an o f f i ce r o f the Trade Tractices Com;nlsslon.

On 3 August '1976 the off icer vis i ted the

showroom premlses o f J o k Palmer Motors s i t u a t e d a t 84-86

Parramatta Road, Summer H i l l . Hc there inspec ted a PIazda motor

ca r on d isp lay f o r sa le bear ing a New South Wales r e g i s t r a t i o n

p l a t e HI10 G33 and having a cer ta in engine number.

/' 2.

9 /'

I He looked a t t h e odometer reading of. t he moto r

1'' vehicle and notlced it was 32,000 kilometres approxlmately.

.

He then had a conversat ion with t h e manager o'f t he bus iness ,

a M r . Mervyn J. Pau l l , who assured him t h a t i L; was a

guaranteed 32,000 ki lometres . The manager subsequently

produced a business card on which he wrote, Wazda 808 Deluxe,

32,000 kilometres , $3490."	He gave this card t o t h e 1nIormzmt
o f f i c e r .

Subsequent inquir ies revealed that the correct

odometer reaciin& f o r the vehicle should have been m excess o f

l 90,000 ki lometres and that f i g u r e was displayed on the veh ic l e

a t the t ime it was de l ivered t o Mr. Pau l l from Canberra.

l

N:, evidence has been called by the defendant company

but , through counsel appearing, cer ta in assurances have been

g iven a s t o i t s future conduct and i t i s agreed tha t the

company and i t s managing d i r e c t o r , M r , J o h n Palmer, have no

previous ccnvict ions f o r dishonesty.

It was put t o me as a submisslon i n m i t i g a t l o n that

as no damage was suf fered by any member of t he pub l i c t h a t

should weigh in t he de fendan t companyls f avour . In t he

circumstznces o f t h i s case I do not th ink it does. The offences

were c l ea r ly de l ibe ra t e and certainly not due t o any mistake o r

inadvertence. Previous instances of a l terat ions to odometers

have been before t h i s cour t and have received, s o far as

convict ion and pena l ty a r e concernec!, f a i r l y m d e p u b l i c i t y .

Many of the offences previously before the court were those whlch

occurred in the early days of the operation o f t h x a c t , some of

. ,i' 3.

6' f

/' f I have r e g a r d t o t h e f a c L: t h a t it w a s t h e manager

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of the business and not simply a salesman o r some more I.owly

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employee who made the misleading statement.

I t ake into account what counsel f o r t he p rosecu t ion

has said about sect ion 7 9 ( 2 ) .

I th ink the appropr ia te pena l ty in the c i rcumstances

i s $8,000 on each offence.

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