Gilmour v Bannister Nominees Pty Ltd

[1982] FCA 94

Re: DOUGLAS ANTHONY GILMOUR
And: BANNISTER NOMINEES PTY. LTD.; JOHN VINCENT FINN; DOUGLAS STUART LAWSON;
STEPHEN ANDREW CRANNEY (1982) 60 FLR 308
Nos. G2-52 of 1982
Trade Practices Act

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.(1)

CATCHWORDS

Trade Practices Act - Prosecutions for offences - form of information and summons - charge disclosing no offence - charge alleging principal offence rather than party to offence - "particulars" in Summons going beyond allegations in Information - amendment to raise fresh charges more than 1 year after offences allegedly committed.

Trade Practices Act 1974, ss.59(2), 79(1), 163(4)

Crimes Act 1914, ss. 21(1)(c), 21A

Federal Court Rules, O.49, rr. 1 & 2, forms 51 & 52

Trade Practices - Prosecution for offences - Whether information must disclose all elements of offence - Whether defendant should be charged as principal - Trade Practices Act 1974 (Cth), ss. 59(2), 79, 163 - Crimes Act 1914 (Cth), ss. 5, 21, 21A - Federal Court Rules, O. 49, rr. 1, 2, forms 51, 52.

HEADNOTE

The defendants were charged with making various misleading statements in contravention of s. 59(2) of the Trade Practices Act. Only the defendant Finn appeared. On his behalf, it was argued that the informations against him were defective. In particular, it was argued that the informations failed to set out all the essential elements of the offence under s. 59(2). Although the informations set out that the offers made by Finn required the investment of money, they did not set out that the offers also required the performance of work by the investors. It was also argued that Finn should not have been charged as a principal offender.

Held, informations dismissed, that the omission of an essential element of the offence under s. 59(2) meant that the informations were defective. Traveland Pty. Ltd. v. Doherty (1982), 41 ALR 563, referred to. The allegation that the investors should also perform work was an essential element. However it seemed (without deciding) that charging Finn as a principal was not a defect. Mallan v. Lee (1949), 80 CLR 198, referred to. The charges against the other defendants who did not appear would be adjourned, and dismissed for the same reason subject to further submissions.

HEARING

Brisbane, 1982, June 4, 8. #DATE 8:6:1982

INFORMATIONS.

Informations against the defendants under s. 59(2) of the Trade Practices Act 1974. Notice of motion by the second defendant to have the informations against him dismissed.

I. W. Bates, for the informant.

N. E. Ulrick, for the second defendant.

Cur. adv. vult.

Solicitor for the informant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitor for the second defendant: Eugene Zakrjevsky.

J. H.TELFER

ORDER

Prosecutions numbers G3, 6, 8 and 43 of 1982 are dismissed with costs.

JUDGE1

There are before me four prosecutions brought against John Vincent Finn for alleged offences against s.59(2) of the Trade Practices Act 1974. That section provides:

"59(2) Where a corporation, in trade or commerce, invites, whether by advertisement or otherwise, persons to engage or participate, or to offer or apply to engage or participate, in a business activity requiring the investment of moneys by the persons concerned and the performance by them of work associated with the investment, the corporation shall not make, with respect of the profitability or risk or any other material aspect of the business activity, a statement that is false or misleading in a material particular."

In each matter, Mr Finn has filed a Notice of Motion seeking to have the summons and information dismissed.

Under s.163(4) of the Trade Practices Act a prosecution for an offence against s.59(2) may be instituted by summons upon information and shall not be instituted except with the consent in writing of the Minister. On 15 January 1982, the date upon which the prosecutions were commenced, the then Minister of State for Business and Consumer Affairs, being the Minister entrusted with the administration of the Trade Practices Act, signed a consent in the following terms:

"I, JOHN COLINTON MOORE Minister for Business and Consumer Affairs, hereby consent to the institution of proceedings against JOHN VINCENT FINN for offences against Sections . . . 59(2) of the Trade Practices Act 1974 between the fourteenth day of January 1981 and the thirtieth day of April 1981 in connection with a machine known as a concrete edging or extruding machine called the Ace Edgemaster and services and business activities relating thereto."

Each of the prosecutions was instituted by a summons under the hand of the Queensland District Registrar of the Court upon written information laid before him by the prosecutor. The information was in each case identical with the summons, save that the informations omitted the "Particlars" set out in the summonses which set out the charges against Mr Finn in the following terms:

G3 "1. That on or about the fifteenth day of January 1981 JOHN VINCENT FINN of 5 Salacia Avenue, Mermaid Waters in the State of Queensland did in contravention of Section 59:2 of the Trade Practices Act 1974 as amended in trade or commerce invite one PHILLIP JOHN KIRBY to engage in a business activity requiring the investment of monies by the said PHILLIP JOHN KIRBY and the said JOHN VINCENT FINN did make a misleading statement to wit "I am confident that Ace will sell five hundred (500) machines in the next twelve (12) months.

The particulars of the charge are:

2. That on or about the said day the said JOHN VINCENT FINN did make a misleading statement in material particular to wit "I am confident that Ace will sell five hundred (500) machines in the next twelve (12) months whereas the machine to wit the Ace Edgemaster concrete pumping machine was defective to the extent that sales to this level could not be expected."

G6
"1. That on or about the fifteenth day of January 1981 JOHN VINCENT FINN of 5 Salacia Avenue, Mermaid Waters in the State of Queensland did in contravention of Section 59:2 of the Trade Practices Act 1974 as amended in trade or commerce invite one PHILLIP JOHN KIRBY to engage in a business activity requiring the investment of monies by the said PHILLIP JOHN KIRBY and the said JOHN VINCENT FINN did make a misleading statement concerning sole manufacturing rights for Ace products.

The particulars of the charge are:

2. That on or about the said day the said JOHN VINCENT FINN did make a misleading statement in a material particular to wit "You are and you will remain the only manufacturing body under contract to Ace including articles manufactured for sale in other states including the manufacture of the drilling rig and the Edgemaster and other products as they are developed" whereas the manufacturing rights were not sole rights in that they were also offered to one ERIC EDMUND HOPLEY on or about the seventeenth day of February 1981."

G8
"1. That between the sixteenth day of January and the twentysecond day of January 1981 JOHN VINCENT FINN of 5 Salacia Avenue, Mermaid Waters in the State of Queensland did in contravention of Section 59:2 of the Trade Practices Act 1974 as amended in trade or commerce invite one PHILLIP JOHN KIRBY to engage in a business activity requiring the investment of monies by the said PHILLIP JOHN KIRBY and the said JOHN VINCENT FINN did make a misleading statement concerning the minimum payment for labour per week and per twenty-eight day period.

The particulars of the charge are:

2. That on or about the said day the said JOHN VINCENT FINN did make a misleading statement in a material particular to wit "the Company agrees to supply the Agent with sufficient work so that in any week the Agent will be provided with a minimum labour content of not less than Four hundred dollars ($400.00) so that in a twentyeight day period the Agent shall earn not less than One thousand six hundred dollars ($1600.00) in labour supplied" whereas the minimum labour content was not supplied."

G43
"1. That on or about the seventeenth day of February 1981 at Arana Hills in the State of Queensland JOHN VINCENT FINN of 5 Salacia Avenue, Mermaid Waters in the said State did in contravention of Section 59:2 of the Trade Practices Act 1974 as amended in trade or commerce invite one ERIC EDMUND HOPLEY to engage in a business activity requiring the investment of monies by the said ERIC EDMUND HOPLEY and the said JOHN VINCENT FINN did make a misleading statement concerning the sole manufacturing rights for Ace Edgemaster machines.

The particulars of the charge are:

2. That on or about the said day the said JOHN VINCENT FINN did make a misleading statement in a material particular to wit "You will have sole rights apart from the company to make the machines in Queensland" whereas the manufacturing rights were not sole rights in that they were also offered to one PHILLIP JOHN KIRBY on or about the fifteenth day of January 1981."

Section 59(2) is in Part V of the Trade Practices Act. Section 79(1)(b) of that Act provides, for present purposes, that a person who contravenes a provision of Part V other than s.52 is guilty of an offence punishable, in the case of a person not being a body corporate, by a fine not exceeding $10,000. Section 5 of the Crimes Act 1914 provides, again for present purposes, that any person who by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the Commission of any offence against any law of the Commonwealth "shall be deemed to have committed that offence and shall be punishable accordingly". By virtue of the provisions of s.21(1)(c) of the Crimes Act, a prosecution for an offence under s.59(2) may be commenced at any time within one year after the commission of the offence.

The first objection raised on behalf of Mr Finn was that the charges against him did not allege that he was knowingly concerned in the commission of the offences as provided for by s.5 of the Crimes Act, or otherwise take up the language of that provision. Although it may be that it is appropriate to formulate an information and summons by reference to the language of s.5 of the Crimes Act, I would, as at presently advised, think that it is at least equally correct to charge a person such as Mr Finn as a principal offender: see Mallan v. Lee (1949) 80 C.L.R. 198, 211-212 per Latham CJ and 216-217 per Dixon J.: cf R. v. Dolan (1918) 24 Argus Law Reports 442. However, I find no need to express a concluded opinion on the matter.

The next point advanced for Mr Finn was that the informations and summonses disclose no offence because an essential element of the offence for which s.59(2) provides is omitted; attention was drawn to the failure of all informations and summonses against Mr Finn to allege that the business activity to which the alleged invitation related required not only the investment of monies by the persons concerned, but also "the performance by them of work associated with the investment".

In my opinion, insofar as the informations are concerned, the point is conclusively determined in favour of Mr Finn by the decision of the Full Federal Court in the as yet unreported decision of Traveland Pty Ltd v. Anthony Paul Doherty, in which judgment was delivered on 21 May 1982. The omission from the informations of an essential element of an offence under s.59(2) of the Trade Practices Act inevitably requires the conclusion that the informations do not charge Mr Finn with any identified offence against that subsection and are defective. I am unable to accept the submission for Counsel for the prosecutor that the statements on this question in Traveland v. Doherty were merely obiter, or were dependent upon a risk of ambiguity because the section there under consideration, s.53(2) of the Trade Practices Act, provides for a number of possible offences.

In seeking to meet Mr Finn's argument, Counsel for the prosecutor concentrated attention upon the summonses and submitted that, in respect perhaps of some more than others, the "Particulars" remedied the deficiency because the element of s.59(2) of the Trade Practices Act otherwise missing was inherent in, or necessarily involved in, the conduct described in the particulars. Thus, the submission continued, the allegedly missing element of the offence provided for by s.59(2) of the Trade Practices Act was at least implied in the charges in the summonses; if amendment was necessary to give the charges greater precision, it was argued that leave to amend ought be granted since no hearing date had been fixed and the affidavits which had been filed on behalf of the prosecutor clearly establish, according to the submission, the commission of the offences.

However, in my opinion, this attempt to answer the objection raised on behalf of Mr Finn fails at the threshhold. By Order 49, rule 1 of the Rules of this Court it is provided that a prosecution for an offence "shall be commenced by summons upon information". Order 49, rule 2 requires a summons to state the offence with which the defendant is charged and to give particulars of the act or omission of the defendant to which the prosecution relates. The forms numbered 51 and 52 in the First Schedule to the Rules, which are the prescribed forms for a summons and information respectively, confirm that procedure. Both Order 49, rule 2(1)(b) and form 51 suggest that the particulars in a summons are necessarily confined by the statement of the offence in the charge. However, there is no need to rely upon any narrow construction of the Rules of Court or of the function of particulars generally. A valid information is an essential foundation for a valid summons, and any defect in the information necessarily and inevitably infects the summons issued upon it. A summons cannot effectively extend beyond the information upon which it is based. Jurisdiction in respect of an offence is dependent upon the existence of a valid information. See generally Electronic Rentals Pty Ltd v. Anderson (1971) 124 C.L.R. 128. These principles appear as both sensible and logical once it is appreciated that it is the information which is the act of the prosecutor laying the charge. The summons, which is the act of a court officer, the Registrar, is merely the process adopted for the initiation of proceedings in respect of the charge laid by the prosecutor, the notification of that charge to the defendant, and the command to the defendant to attend.

Although reference was made by Counsel for the prosecutor to the possibility of amendment, no attempt was made to rely upon s.21A of the Crimes Act. It was presumably recognized that amendment to raise fresh charges was inappropriate now that the time within which prosecutions for the alleged offences might be brought has expired. Each of the offences is alleged to have been committed considerably more than a year before the hearing before me on 4 June 1982.

In the circumstances, there is no need for me to consider an answer sought to be made on behalf of Mr Finn in matters G6 and G43 of 1982 to the prosecutor's attempt to rely upon the "Particulars". Shortly stated, Mr Finn's answer was that an alleged offer of manufacturing rights to B did not make misleading a statement to A that A would have sole manufacturing rights. Nor do I need to consider Mr Finn's final argument, which was that the Minister's consent was so widely expressed as to indicate that he did not turn his mind to the actual issues, and that accordingly, the proceedings were not, as required by s.163(4)(b) of the Trade Practices Act, instituted "with the consent in writing of the Minister".

Each of prosecutions numbers G3,6,8 and 43 of 1982 is dismissed with costs.

The same defect exists in respect of prosecutions numbers G2,5,7,13,20,22,23,26,27,31,33,35,37,41,46,47,50, 51 and 52 of 1982 against Bannister Nominees Pty Ltd, numbers G19,30 and 42 of 1982 against Stephen Andrew Cranney and numbers G4,14,21,24,25,32,34,36,38,48 and 49 of 1982 against Douglas Stuart Lawson. None of those defendants attended personally or was represented at the hearing, although I was notified through the Registry on the afternoon of 4 June 1982, after the hearing had completed, that Mr Cranney had subsequently attended and apologised for his absence. Counsel for the prosecutor acknowledged in a general sense that other prosecutions would be affected by my decision in respect of prosecutions numbers G3,6,8 and 43 of 1982. I propose to list prosecutions numbers G2,5,7,13,20,22,23,26,27,31, 33,35,37,41,46,47,50,51,52,4,14,21,24,25,32,34,36,38,48,49, 19,30, and 42 of 1982 for mention at 9.15 am on Friday 11 June 1982, and to dismiss them, subject to any further submissions that the prosecutor seeks to put before me.

A number of other prosecutions have been commenced under s.53(c) of the Trade Practices Act. Mr Finn is not a defendant in respect of any of those matters, but Bannister Nominees Pty Ltd, Mr Cranney, and Mr Lawson are. Those matters will also be mentioned at 9.15 am on Friday 11 June 1982 for further directions. Consideration can then be given to the possibility that some or all of those prosecutions also should be disposed of summarily.