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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1982] FCA 94
Decision Date: 08 JUNE 1982

CaseChat Overview and Summary

The case of Gilmour v Bannister Nominees Pty Ltd involved the prosecution of Bannister Nominees Pty Ltd for breaches of the Trade Practices Act 1974. The Federal Court was tasked with determining the validity of the charges and summons issued against the company. The primary legal issues centred on whether the form of the information and summons was sufficient to disclose an offence, and if the charges could be amended after a significant period had passed since the alleged offences.

The court examined whether the information and summons properly alleged an offence under the Trade Practices Act. It found that the information did not correctly identify the nature of the offence as it did not specify the company as a party to the offence, but rather as the principal actor. Additionally, the court noted that the particulars in the summons exceeded the allegations made in the information, effectively raising new charges that were not initially stated. Furthermore, the court held that the amendments to the charges, which sought to introduce new allegations more than a year after the offences were allegedly committed, were not permissible.

Consequently, the Federal Court held that the summons and information were invalid, and the charges against Bannister Nominees Pty Ltd were dismissed. The court ordered that prosecutions numbers G3, 6, 8, and 43 of 1982 be dismissed with costs. This decision underscores the importance of precise and timely allegations in criminal proceedings, ensuring that defendants are not unfairly prejudiced by vague or belated charges.

Orders

Orders of the court

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

Background

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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