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…
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- Case
- [1982] FCA 94
- Decision Date
CaseChat Overview and Summary
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.
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