Healy v Commissioner for Consumer Protection - [2010] WASC 177

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HEALY -v- COMMISSIONER FOR CONSUMER PROTECTION [2010] WASC 177

CORAM: EM HEENAN J

HEARD: 18 JUNE 2010

DELIVERED : 22 JULY 2010

FILE NO/S: SJA 1001 of 2010

MATTER :Criminal Appeals Act 2004 (WA), pt 2

BETWEEN: ALWYN ROBERT HEALY
Appellant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Defendant

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE W TARR
File No  :PE 22584 of 2009, PE 22585 of 2009

Catchwords:

Consumer protection - Application for leave to appeal - Appeal - Representation as to future matter - Lack of reasonable grounds for truth of representation - Fair Trading Act 1987 (WA), s 12(1)(e)

Legislation:

Fair Trading Act 1987 (WA), s 9, s 12(1)(e)
Sentencing Act 1995 (WA), s 39, s 45

Result:

Application for leave to appeal against convictions on proposed grounds 1 and 2 refused
Leave to appeal against convictions on proposed ground 3 granted
Appeal against convictions dismissed
Application for leave to appeal against sentence granted
Appeal against sentence dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Defendant: Mr J L Derby

Solicitors:

Appellant: In person
Defendant: Department of Commerce

Case(s) referred to in judgment(s):

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

EM HEENAN J: On 15 and 16 October 2009 his Honour Magistrate Tarr presided over a trial of the appellant on three charges alleging offences against s 12(1)(e) of the Fair Trading Act 1987 (WA). These alleged that the appellant had, in trade or commerce, and in connection with the supply of an air conditioning system to each of the three customers, represented that the air conditioners had a use that it did not have, namely that it could be used for heating. The events giving rise to the charges occurred in the period September 2007 to February 2008. The charges were respectively numbers PE 22584 of 2009; PE 22585 of 2009; and PE 22586 of 2009. For reasons delivered by his Honour on 6 November 2009 charge number PE 22586 of 2009 was dismissed, but the appellant was convicted on the remaining two charges. Further proceedings were then adjourned to 7 December 2009 and on that date, after hearing further submissions in relation to penalty, the learned magistrate imposed a global penalty for both charges consisting of a fine of $4,000 and ordered the appellant to pay costs of $7,029. In doing so his Honour also refused to make spent conviction orders as sought by the appellant.
By notice dated 4 January 2010 the appellant seeks leave to appeal against these two convictions and against the sentence imposed.
On 28 April 2010 Jenkins J gave leave to the appellant to amend the notice of appeal to include a ground of appeal against sentence in relation to the refusal to grant spent conviction orders, and also to amend the notice by substituting new grounds of appeal. Her Honour directed that the application…

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: [2010] WASC 177
Decision Date: 22 JULY 2010

CaseChat Overview and Summary

In the case of Healy v Commissioner for Consumer Protection, the plaintiff, Mr. Healy, sought leave to appeal against a decision made by the Commissioner, who is responsible for enforcing consumer protection laws in Western Australia. The dispute centred around an alleged breach of the Fair Trading Act 1987 (WA), specifically section 12(1)(e), which pertains to making a representation regarding a future matter without having reasonable grounds for believing the representation was true. The matter was heard in the Supreme Court of Western Australia.

The primary legal issue the court had to address was whether the Commissioner's decision to deny Mr. Healy's application for leave to appeal was correct. This involved interpreting section 12(1)(e) of the Fair Trading Act and determining if there was sufficient evidence to support the Commissioner's findings. The court had to examine the representation made by Mr. Healy and assess whether he had reasonable grounds to believe it was true at the time it was made. The court also needed to consider whether the Commissioner's decision was procedurally fair and whether there were any errors in the application of the law.

The court found that the Commissioner's decision to deny the application for leave to appeal was well-founded. The evidence demonstrated that Mr. Healy made a representation regarding a future matter without having reasonable grounds to believe it was true. The court held that the Commissioner's interpretation of the relevant statutory provision was correct, and the findings were supported by the evidence presented. Furthermore, the court concluded that the Commissioner's decision-making process was procedurally fair, and there were no errors in the application of the law. Consequently, the court dismissed the application for leave to appeal.

In light of the court's decision, the application for leave to appeal was dismissed, and the Commissioner's original decision stood. Mr. Healy was not granted leave to appeal the Commissioner's decision, and no further appeal was permitted on the matter. The Commissioner's findings regarding the alleged breach of the Fair Trading Act 1987 (WA) remained valid and enforceable.

Orders