Green, A v Ford, J.A

[1985] FCA 470

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Prosecutor L

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JOHN AETrmONV FORD

Defendant

MINUTE OF ORDER

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JUDGE : Fox J.

DATE OF O R D m : 13 September 1985

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WHERE MADE: Sydnp .

THE COURT ORDERS THAT:

1. In relation to each of the charues G19 of 1984: G21 of

I	1984; G23 of 1984: G25 of 1984 and G27 of -1984 the
defondant pay a pecuniary penalty of $200.00.

2. I? relation to each of the charues G20 of 1984; G22 of 1984: G24 of 1984; G26 of 1984 and G28 of 1984 the defendant pay a pecuniary penalty of S20.00.

3 . In relation to charqe G48 of 1984 the defendant pay a

pecuniary penaltv of $250.00.

4. The defendant pay to the District Realstrar of this

Court for the Commonwealth the amount nf the pecuniary

penalties within twenty-one (21) days from the date.of

this order.

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Note:	Settlement and e n t r y of orders is dealt with in
order 36 of the Federal Court Rules.

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- Defendant

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CORAM: FOX J.

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D=: 1 3 SEPTEMBm 1385

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Two affidavits were'filed. one by the defendant and one

on behalf of the prosecutor. There was cross-+xamination on both ! I

affidavits .

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The evidencz bifore me today includes same writter!

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evidence as to Tood charxter rGhich is to be taken into account.

So fa r as Mr Ford is concerned. he map fairlv be said r !. ..

not to be contrite for what has happened but. rather.-to qontinue

to support the action he % m k . That fact can be looked at from a

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number of points of vim. From one point of view it could be

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reuarded as reinforcinu an honest intent on his part from the

beuinninrr. The other is that - he is not in. a position where he

can start to refute attitudes air-adv taken up by him, - he has to maintain his previous account. He savs, in relacion c o Ghat 1

said in my reasons for judgment. that while his lview about the ..

fourth issue (as it has been called) miaht not- have been

reasonable, that it was held honestly.

The additional evidence from the prosecution refutes the

fiaure for net profit claimed bp Mr Ford as derived b-f him from

the publication of the fourth issue. Mr Ford in his affidavit

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has obviously. as a matter of calculation. aiven a wrona fiqure

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for this I or the fiqures from which ~t is derived. The macter is

not of meat moment. because it would appear that the p r o f i k

derived bv the partnership was of the order of $3000 to $5000.

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The mat-er sLi:h, ?r c o u r s e , ~:?.ZES C I - I ~ 2 . 2 r + l a : i o n tc

the whole sitv-iatim is that all chese rharcre; relate to the #-?e i.'.

issue of the m e jmmal. As for five of tha~ lr, was 3 -nztter n~f

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I sponsorship of t'ne publication - the claimed Squadron

sponsorship c;f the publicacion - and, as to another five. a claxn

i	I	Ynat	approval had	been	uiven	to	Earfards to publish	the
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particular publication. These matters are wrapped up touether.

and I do not think there is any point in tryinu to treat the

particular offences separately. Rather, one has to look at the

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total amount when assessinu the appropriate pehlties.

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The maximum penalty is $10.000. Without wishinu to I .

repeat what I have said in my earlier reasons. there was in this

case a possible claim to justification. unreasonable thoucrh T:

have held it to be. for Barfords dolnu as they did - namely, the initial arranuement with the Squadron, and. the fact that covers had already been printed to cover the fourth publication.	,?
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I	I said all the	offences	relate	to	the	one	issue,	and	it
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I was made under the circumstances mentioned. how widely it was

I	circulated. how widely indimdual copies were circulated,	we just
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do not; know because they were mainlp distributed in bundles to

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I hotels and the like. without being distributed, in the aqreed !.

i	manner.	throuqh	the	Squadron.	; r
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On the	whole. I do not	think	the	offences.	taken	,
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- together, justify the imposition of the maximum p e n a l t y . or

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I havz already coamnted in m ' : reason: Ioc jud?wnt k h a t ,

the S P C O ~ ? ~ of each rair of cl.arr;es. those which rel?.te t c

approval of t h e publisher. could really h a v been lefr, act, and I

think in relation to those' offences the penalties siloulci b?

little more than nominal.

So far as concerns the advertisement published vithout

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authority (G49). thers was a dispute in the evidence. as to xhich I ,'

I took a certain view, and. of course. upon which I now act.

-@is dispute did not involve Mr Ford's evidence. There was a

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scheme in the firm, a checkinq procedure. to ensure that

advertisements were authorized, and that had been followed, and the documents in use for that purpose showed that authorization existed. at the time of publication.

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Althoucrh it is a serious matter for a publisher tn put in his publication an advertisement which is not authorized. I

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think one should take a reasonably lenient view in this case of

what was done.

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What I propose to do is, in relation to each of the

offences G19. G21. G23. G25. G27. to impose a penalty of $200.

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In relation to each of the offences G20. G22, G24. G26

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and G28, T. impose a penalty of $20. ! ' .

$250.

, In assessira chose ~enaltiss i have ca'lren ints accounr;

that the defentant is to pay m ~ s t of the costs of the prosecuror

and in aadition to imposinq these penalties I will order that. che

prosecutor's costs in relation to the charqes which have been

made out bs paid by the defendant. The costs of the defendant in

relation r,o the charqes not made out are to be paid bv r-he

proseclAt-or.

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The penalties are tG be paid to the registrar of this

court within.21 days for the. Commonwealth of Australia. I do not

think it is necessary to make any further order. _ .