John Cranston Thompson v Riley McKay Pty Ltd

[1980] FCA 29

Re: JOHN CRANSTON THOMPSON
And: RILEY McKAY PTY. LIMITED (1980) 42 FLR 279
G. Nos. 74 and 78 of 1977
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki(1), Deane(2) and Fisher(3) JJ.

CATCHWORDS

Trade Practices - written false representation - whether communication necessary.

Trade Practices Act 1974, ss. 53(a) and 53(c).

Trade Practices - False representation - Magazine advertisements - Whether communication to intended representee necessary - Whether information bad for not alleging that false representation was read by some person - When representation complete - Trade Practices Act 1974 (Cth), ss. 53 (a), (c), 79, 82, 163 - Trade Practices Regulations, reg. 78K - Federal Court of Australia Act 1976 (Cth), s. 25 (6) - Federal Court of Australia Rules, O. 6.

HEADNOTE

The informant laid two informations against the defendant alleging contravention of s. 53 (a) and s. 53 (c) respectively. Both informations related to advertisements of the defendant's goods placed in widely circulated magazines. In response to a request by the defendant, the informant provided further particulars of each information. The informant did not, in the first information, or the particulars provided in relation to the first information, allege that the advertisement had been read by any particular person. In the particulars provided in relation to the second information, it was alleged that the advertisement had been read by a named person.

In each information a case was stated for the opinion of the Full Court of the Federal Court of Australia.

The first question in each of the cases stated was whether the information was ambiguous or bad for duplicity.

Held, that neither information was ambiguous or bad for duplicity.

Per Franki J. - The informations set out the offences as nearly as may be in the words of the Act.

Per Fisher J. - The provision of the particulars requested avoids ambiguity or duplicity.

The questions (b) and (c) of each of the cases stated consequently did not arise to be answered.

Question (d) of the first case stated asked: "Is it essential in order to make out a charge under s. 53 (a) of the Trade Practices Act 1974 to prove that the alleged written false representation was communicated to a specific person?"

Held, that it is not necessary to establish that any written false representation was communicated to any specific person.

Per Franki J. - What must be proved to establish an offence depends on the facts of each particular case. In the case of an advertisement in a journal having sufficient circulation for the court to be satisfied beyond reasonable doubt that it was likely to have been seen by a significant number of readers, it is not necessary to prove that the alleged false representation was communicated to any particular person.

Per Deane J. - There is not implicit in the word "represent" any requirement that the representation actually reach, or be understood by, the intended representee. The act of representing is complete once the subject matter is irrevocably set forth or disseminated upon the course which is intended to lead to the intended representee.

Per Fisher J. - It is not always an essential element in making out a charge under s. 53 (a) to establish that the false representation was communicated to a specific person.

The second case stated asked further whether an offence is committed under s. 53 (c) of the Trade Practices Act on each occasion a written false representation is read by a person.

Held, that the question is hypothetical and cannot be answered since the answer depends on the circumstances of the particular case under consideration.

HEARING

Sydney, 1979, February 13; 1980, March 20. #DATE 20:3:1980

CASES STATED.

The material facts appear from the judgments.

G. G. Masterman Q.C. and Priscilla Fleming, for the informant.

A. M. Gleeson Q.C. and R. Stitt, for the defendant.

Cur. adv. vult.

Solicitors for the informant: B. J. O'Donovan (Commonwealth Crown Solicitor).

Solicitors for the respondent: Murphy & Moloney.

J. W. K. BURNSIDE

ORDER

1. The Court answers the questions asked in the manner indicated hereunder:

No. G. 74 and 78 of 1977

Question (a):

Is the Summons herein defective in substance in that it is ambiguous and bad for duplicity?

Answer:

No.

Question (b):

If the answer to (a) is in the affirmative has such defect been cured by the supplying by the informant to the defendant of the particulars set forth in annexure "F" hereof?

Answer:

This question does not arise.

Question (c):

If the answer to (b) is in the negative can such defect be cured by amendment of the Summons?

Answer:

This question does not arise.

Question (d):

Is it essential in order to make out a charge under Section 53(a) of the Trade Practices Act 1974 to prove that the alleged written false representation was communicated to a specific person?

Answer:

No, it is not essential to a contravention of s.53(a) that the alleged written false representation be communicated.

Question (e):

Should the Information herein be dismissed?

Answer:

There is nothing in the information which leads to the conclusion that it should be dismissed at this stage.

No. G. 78 of 1977

Question (a):

Is the Summons herein defective in substance in that it is ambiguous and bad for duplicity?

Answer:

No.

Question (b):

If the answer to (a) is in the affirmative, has such defect been cured by the supplying by the informant to the defendant of the particulars set forth in annexure "F" hereto?

Answer:

This question does not arise.

Question (c):

If the answer to (b) is in the negative, is the informant entitled to amend the particulars by relying upon the alternative particulars set forth in the letter of the informant's solicitor dated 19th October 1978?

Answer:

This question does not arise.

Question (d):

If the answer to (c) is in the affirmative, would such defect be cured by the said alternative particulars?

Answer:

This question does not arise.

Question (e):

If the answer to (b), (c) and (d) are in the negative, can such defect be cured by amendment to the Summons?

Answer:

This question does not arise.

Question (f):

Is an offence committed under section 53(c) of the Trade Practices Act 1974 on each occasion a written false representation is read by a person?

Answer:

This question cannot be answered in the form in which it is cast since the answer depends on the circumstances of the particular case under consideration.

Question (g):

Should the Information herein be dismissed?

Answer:

There is nothing in the information which leads to the conclusion that it should be dismissed at this stage.

2. If any order as to costs is sought the party seeking costs must notify the Registrar within 14 days after today.

Orders accordingly.

JUDGE1

On 22 June 1979 this Court gave judgment in and struck out two stated cases No. G 74 and No. G 78 of 1977 which had been heard together ((1979) A.T.P.R. 40,120).

The proceedings in No. G 74 of 1977 were instituted by information wherein it was alleged that Riley McKay Pty. Limited, the defendant, was guilty of an offence against s.79 of the Trade Practices Act 1974 ("the Act") in that it had contravened s.53(a) of the Act. The proceedings in No. G 78 of 1977 were between the same parties and it was alleged in that matter that the defendant had contravened s.53(c) of the Act. The informant, John Cranston Thompson, on 27 November 1979 obtained a writ of mandamus in the High Court in both matters directing us to exercise in relation to the Special Cases which had been stated, the jurisdiction conferred upon us by s.25(6) of the Federal Court of Australia Act 1976.

The cases were stated before pleas were taken and the stated cases hardly comply with the requirements of Order 6 of the Federal Court of Australia Rules which were in force at the relevant date and which required the case to state concisely such facts as are necessary to enable the Court to decide the questions raised by the special case. Because of this I consider that some of the answers must be couched in terms which are little more than an advisory opinion. (See generally on this aspect Pearce v. Federal Commissioner of Taxation 20 A.L.R. 354).

The information in No. G74 of 1977, so far as it need be set out, alleged that the defendant:
". . . was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that in contravention of Section 53(a) of the said Act, it did in trade or commerce in connection with the promotion by advertising of the supply of goods described as a plant stand, falsely represent that the said goods were of a particular quality in that in an advertisement in 'T.V. Times' bearing date 2 October 1976 it did state 'Giant Wrought Iron Parisian Cart Stand'".

Certain particulars were requested and answers given and we were asked to proceed upon the basis that the informant conceded that he could not specify any person to whom the alleged false representation was communicated.

In the proceedings before the trial judge the defendant had attacked the validity of the information alleging that neither the information nor the particulars specified a person to whom the representation had been made and that upon the authority of Reg. v. Thomson Holidays Ltd. (1974) 1 Q.B. 592 the information alleged a number of offences and was bad for duplicity since a separate offence was commited each time the advertisement was read.

The questions asked in the stated case in No. G74 of 1977 are as follows:
"(a) Is the Summons herein defective in substance in that it is ambiguous and bad for duplicity?

(b) If the answer to (a) is in the affirmative has such defect been cured by the supplying by the informant to the defendant of the particulars set forth in annexure "F" hereof?

(c) If the answer to (b) is in the negative can such defect be cured by amendment of the Summons?

(d) Is it essential in order to make out a charge under Section 53(a) of the Trade Practices Act 1974 to prove that the alleged written false representation was communicated to a specific person?

(e) Should the Information herein be dismissed?"

I will first consider questions (a) (b) and (c).

At the time when the information was laid statutory regulations under the Conciliation and Arbitration Act made provision for proceedings under the Trade Practices Act. Regulation 78K, inserted by Statutory Rule No. 171 of 1974 and amended by Statutory Rule No. 248 of 1974, provided:
"(1.) Subject to sub-regulations (2.) and (3.), in relation to a prosecution for an offence against the Trade Practices Act, an information warrant or other process shall suffice if the offence is set out as nearly as may be, in the words of the Act.

(2.) Any process instituting a prosecution for an offence against the Trade Practices Act shall contain such particulars as will give reasonable information of the act or omission to which the prosecution relates.

(3.) Nothing in this regulation derogates from the power of the Court or a Judge to amend the information, warrant or other process or to order further and better particulars of a matter to which the prosecution relates."

Section 163 of the Act provides for prosecutions to be brought in the "Court". The "Court" was defined in s.4 of the Act as meaning "The Superior Court of Australia" but by Act No. 88 of 1976 the definition was altered so that "Court" meant "the Australian Industrial Court". By Act No. 157 of 1976, the Federal Court of Australia (Consequential Provisions) Act 1976, the definition of "Court" was changed by the substitution of "Federal Court of Australia" for "Australian Industrial Court". Order 2 of the Federal Court of Australia Rules (Statutory Rule No. 20 of 1977) provided in relation to proceedings under the Act that ". . . the practice and procedure of the Court shall be in accordance with the Conciliation and Arbitration Regulations as in force for the time being, which shall apply mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge."

The position therefore at the time the information was laid was that an information, warrant or other process, which would include a summons, ". . . shall suffice if the offence is set out, as nearly as may be, in the words of the Act".

In my opinion the offence alleged in the information in No. G74 of 1977 is set out in accordance with this provision. I consider that the information also contained particulars sufficient to give reasonable information of the act to which the prosecution relates.

I answer question (a) "No" and therefore questions (b) and (c) do not arise.

I pass now to question (d). There is no evidence concerning the nature of the journal "T.V. Times" or the method or extent of its sale or distribution to the public. It seems however that it is probable that evidence would be available to show that this publication was in the nature of a fairly widely read publication and that although the date on the cover of the magazine was 2 October 1976 the actual date when the magazine became available to the public for sale was 29 September 1976.

In Universal Telecasters (Qld) Ltd. v. Guthrie (1978) 18 A.L.R. 531 the Full Court of this Court held that a television station made a statement within s.53(e) of the Act when it telecast a statement for one of its customers. Bowen C.J. at p.532 said:
"However, the meaning of the word 'make' is such that it is wide enough to cover the broadcasting of the statement."
Nimmo J. at p.539 said that the making of statements in the context of Pt. V of the Act requires their dissemination by one means or another to potential consumers. At p.547 I said:
". . . I have come to the conclusion that, in general, where a television station telecasts an advertisement that contains spoken words, it is proper to hold that the television station has made a statement."

In Given v. Pryor (1979) 24 A.L.R. 442 I had to consider whether a telecast fell within the provisions of s.53A(1)(b) of the Act which dealt with making "a false or misleading statement . . . " In the judgment in that matter I considered whether there was any difference between the words "statement" and "representation" in Pt. V of the Act and the conclusion I reached at p.446 in relation to the word "representation" was "Without wishing to express a concluded view on what is embraced in the word it seems to me that in addition to including statements orally or in writing, associated with any pictorial material, conduct may also be added in an appropriate case, at least to the extent of what is embraced in the ordinary meaning of that word: see generally Given v. C.V. Holland (Holdings) Pty. Ltd. (1977) 15 A.L.R. 439 at pp.442-3."

Returning to Reg. v. Thomson Holdings Ltd. Lawton L.J., who read the judgment of the Court of Appeal, at p. 597 said that the reckless making of a statement which is false and which was proscribed by s.14(1)(b) of the Trade Descriptions Act 1968, (U.K.) required a consideration of the factor of communication and his Lordship continued:
"It follows in our judgment that a statement is made when it is communicated to someone. When that will be will depend on the facts of each case. A travel firm which employed door-to-door salesmen to peddle misleading information about package holidays might make a false statement at every house at which they called; another such firm, putting out misleading information in a television advertisement, would make the statement at the time of the broadcast, which would probably be seen by millions of people."
The facts of that case concerned a holiday brochure of which two million copies had been printed and which were distributed widely in the British Isles some going to travel agencies, some directly to the public. The Court held that the false statement in the brochure was made when the brochure was read by persons for whom it was intended. At p. 597 the judgment read:
"The brochures were intended to do what a door-to-door salesman would do, namely, to give information about holidays; but with the printed word the information would be given when the brochures were read. In our judgment that was when the false statements were made, and they were made to each reader."

The members of the Court of Appeal in that case acknowledged that the time when a statement was made depended on the facts of each case and that in the case of a telecast the statement would be made at the time of the telecast.

The case before us does not fall into a category which was specifically considered by the Court of Appeal. At least if the facts of this case are that T.V. Times was a publication with a reasonably wide circulation so that an advertisement in it could be compared to an advertisement telecast by a television station, I do not consider that there is any need to establish that any written false representation was communicated to any specific person.

Before passing from Reg. v. Thomson Holidays Ltd. it is appropriate to mention that the words under consideration in it were "make a statement" whereas the words we are concerned with are "falsely represent" in No. G74 of 1977 and "represent" in No. G78 of 1977.

I also make reference to what I said in Given v. C.V. Holland (Holdings) Pty. Ltd., supra; at pp.442-3:
"I pass now to consider whether the reading on the odometer of a used motor vehicle is a representation of the miles that vehicle has travelled when that vehicle is displayed by a dealer in its used car yard. It was made clear by senior counsel for the informant that no verbal representation, or representation of any kind other than the mere appearance of the figures on the odometer was alleged. There was no suggestion that any officer of the company had drawn the attention of any customer to the odometer reading. However, the defendant had taken the step of placing the car on display for sale in its used car yard and the odometer reading was there for prospective purchasers to observe. I do not consider that any statement or assertion by a servant or agent of the company, with an intention to convey information to a prospective purchaser is necessary in this case. I consider that the step of placing the car on display for sale with a mileage shown on the odometer in a used car dealer's yard, where the vehicle is placed with the intention that it will be inspected by prospective purchasers is, in the absence of any special circumstances, a representation by the used car dealer that the car has travelled the number of miles shown on the odometer."

In Weitmann v. Katies Ltd. (1977) 29 F.L.R. 336 at p.344 I said:
"I consider that the mere placing of an article on display for sale in a shop, is, in general, sufficient to make any relevant words thereon, which are clearly visible, a representation by the trader without any specific attention being directed to the words, or without any statement by the trader."

To make out a charge under s.53(a) it is necessary to prove beyond reasonable doubt that a false representation was made. I consider that it is neither practicable nor desirable to attempt to specify in advance the requirements of what constitutes a false representation within that section. The section does not specify that the representation must be communicated to a specific person. Bearing in mind that the question is directed to communication to a specific person I answer question (d) "No, it is not essential to a contravention of s.53(a) that the alleged written false representation be communicated."

However what must be proved to establish an offence depends on the facts of each particular case. In the case of an advertisement in a journal having sufficient circulation for the Court to be satisfied beyond reasonable doubt that it was likely to have been seen by a significant number of readers I do not think that it is necessary to prove that the alleged false representation was communicated to any particular person or persons.

In general, the position might be expected to be different with a brochure. The question of communication is one to be considered.

I pass now to question (e). I answer question (e) that there is nothing in the information which leads to the conclusion that the information should be dismissed at this stage.

I pass now to consider G. No. 78 of 1977. The information in that case, so far as it need be set out, alleged that the defendant:
". . . was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that it did, in contravention of Section 53(c) of the said Act in trade or commerce in connexion with the promotion by advertising of the supply of goods described as a 'GOLDEN REPLICA OF THE 400 DAY CLOCK' falsely represented that the said goods had uses they do not have in that in an advertisement in 'New Idea' . . ."
Thereafter followed particulars of the uses set out in the advertisement. Certain particulars were requested and answers given. The answers included the specification of a named person to whom it was alleged the representation was made.

Again in the proceedings before the trial judge the defendant attacked the validity of the information but before us very little argument was directed to this stated case.

The questions asked in the stated case in No. G 78 of 1977 are as follows:
"(a) Is the Summons herein defective in substance in that it is ambiguous and bad for duplicity?

(b) If the answer to (a) is in the affirmative, has such defect been cured by the supplying by the informant to the defendant of the particulars set forth in annexure 'F' hereto?

(c) If the answer to (b) is in the negative, is the informant entitled to amend the particulars by relying upon the alternative particulars set forth in the letter of the informant's solicitor dated 19th October 1978?

(d) If the answer to (c) is in the affirmative, would such defect be cured by the said alternative particulars?

(e) If the answer to (b), (c) and (d) are in the negative, can such defect be cured by amendment to the Summons?

(f) Is an offence committed under section 53(c) of the Trade Practices Act 1974 on each occasion a written false representation is read by a person?

(g) Should the Information herein be dismissed?"

For the reasons I have stated in dealing with No. G 74 of 1977 I answer question (a) "No" and therefore questions (b), (c), (d) and (e) do not arise.

In my opinion question (f) is purely hypothetical and it cannot be answered in the form in which it is cast since the answer will depend on the circumstances of the particular case under consideration.

I answer question (g) that there is nothing in the information which leads to the conclusion that it should be dismissed at this stage.

In summary I would answer the questions as follows:

No. G74 of 1977

(a) No.

(b) & (c) These questions do not arise.

(d) No, it is not essential to a contravention of s.53(a) that the alleged written false representation be communicated.

(e) There is nothing in the information which leads to the conclusion that it should be dismissed at this stage.

No. G78 of 1977

(a) No.

(b), (c), (d), and (e)

These questions do not arise.

(f) This question cannot be answered in the form in which it is cast since the answer depends on the circumstances of the particular case under consideration.

(g) There is nothing in the information which leads to the conclusion that it should be dismissed at this stage.

I would also order that if any order as to costs is sought the party seeking costs must notify the Registrar within 14 days after today.

JUDGE2

The defendant is alleged to have caused to be published, in the journals "T.V. Times" and "New Idea", advertisements containing false representations as to goods which it was offering for sale. What was described in the advertisement in "T.V. Times" as a "GIANT Wrought Iron Parisian Cart Stand" is alleged to have been of sheet metal and wire construction with plastic wheels. What was described in the advertisement in "New Idea" as being a "GOLDEN REPLICA OF 400-DAY CLOCK" which would cause the reader's "envious guests" to "gaze with amazement and intrigue when the counter balances turn constantly as they have for countless years to keep perfect time on the original unique master pieces of craftsmanship . . ." was, so it was alleged, a plastic and metal box which did not operate as a clock at all but, no doubt to the heightened amazement and intrigue of the abovementioned envious guests, played "Edelweiss".

The applicant alleges that causing the publication of each of the advertisements in the relevant journal constituted an offence against s.53 of the Trade Practices Act, 1974-76 (i.e. before the amendments effected by the Trade Practices Amendment Act, 1977). The advertisement in "T.V. Times" is alleged to constitute the basis of an offence against clause (a) of s.53. The advertisement in "New Idea" is alleged to constitute the basis of an offence against clause (c) of the section.

In neither case does either the information or summons allege that the relevant advertisement was in fact read by any particular person. In so far as the advertisement in the journal "T.V. Times" is concerned, it is common ground between the parties that the applicant is unable to call any witness to give evidence that he or she actually remembers reading it. In these circumstances, the primary question in issue between the applicant and the defendant is whether it is an essential ingredient of an offence against the provisions of both or either of clauses (a) or (c) of s.53 of the Trade Practices Act, 1974-76 ("the Act") in a case where the alleged false representation takes the form of an advertisement in a journal, that the offending material be actually read by any person. If, as the defendant submits, one cannot, in such circumstances, have an offence against either clause unless the offending material is read by a reader of the relevant journal, questions will arise as to whether the first reading of the offending material by a reader of the journal is the final ingredient of a single offence which is then complete, or whether there is a separate offence in respect of each occasion upon which any reader first reads the offending material or upon which any reader reads or re-reads the offending material.

Neither Stated Case contains any information as to the circulation or distribution of either journal. The argument before us proceeded, however, on the basis that each journal had an extensive circulation through a number of retail outlets and I am prepared to assume that this is so.

Section 53(a) and (c) of the Act provided:
"A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services - -

(a) falsely represent that goods are of a particular standard, quality or grade, or that goods are of a particular style or model;

. . . . . . . . . . . . . . . . . . . . . . . . .

(c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;

. . . . . . . . . . . . . . . "

As can be seen, neither s.53(a) nor s.53(c) contained an express requirement that the relevant representation should come to the attention of any person. That requirement was, it was argued on behalf of the defendant, implicit in the word "represent" used in each of the two clauses. It was, so it was said, impossible to have a false representation unless it was in fact communicated to a representee. On the other hand, it was submitted for the applicant that to arrange for the inclusion in a magazine of an advertisement containing statements as to the particular quality or uses of goods offered for sale was, for the purposes of s.53(a) and s.53(c) respectively, to represent that the goods were of that particular quality or had those particular uses regardless of whether any reader of the magazine actually read the advertisement in question or the allegedly offending statement in it.

We were, in the course of argument, referred to a number of authorities upon the effect of statutory provisions comparable to, but readily distinguishable from, the provisions of s.53(a) and (c) of the Act. I find these decisions of but peripheral relevance and ultimately have come to the view that no real assistance is to be derived from them in determining the ambit of s.53(a) and (c). Nor, in my view, is there any logically compelling reason for preferring any particular one of the conceivable denotations and connotations of the word "represent" in the context of s.53(a) and (c). Considerations of common sense point, in my view, towards giving the word a meaning and ambit which will include within the purview of each of clauses (a) and (c) of s.53, a statement in an advertisement disseminated by an organ of the mass media regardless of whether any specific reader reads it and which will not involve the effect that a separate offence against the section is committed on any occasion on which any particular reader either reads or first reads the statement in question. Rather than base my decision on perceived considerations of common sense which are prone to be convincing only to the convinced, I would, however, prefer to base my decision on my understanding of the ordinary meaning of the word "represent".

It is implicit in the ordinary use of the word "represent" that there be an intended representee, to whom the relevant representation is directed. That intended representee may be an identified person, as in the case of a representation made to a particular person in a letter, or unidentified, as is commonly the case with a representation made in an advertisement to be disseminated by the mass media. There is not, however, implicit in the word "represent" any requirement that the representation actually reach, or be understood by, the intended representee. The act of representing is complete once the subject matter is irrevocably set forth or disseminated upon the course which is intended to lead to the intended representee or representees.

A statement of fact made in ordinary conversation may constitute a representation notwithstanding the circumstance that the attention of the other party to the conversation was distracted and he either did not hear the statement that was made or, hearing it, did not appreciate its content. A statement of fact made on a bill board on the side of a busy highway will constitute a representation to passing motorists from the time it is exhibited notwithstanding the circumstance that it so happens that, in the event, all passing motorists steadfastly keep their eyes upon the road ahead. A statement of fact made in the course of an advertisement on television will constitute a representation notwithstanding the circumstances that it is impossible to say whether any viewer or any particular viewer actually watched it. A statement of fact made in the pages of a newspaper or journal offered for sale and sold at retail outlets will constitute a representation notwithstanding the circumstance that it is impossible to say whether the statement was read by any reader or by any particular reader.

Where, as in ordinary conversation, the initial making of the statement of fact itself constitutes the method by which it is destined to reach the intended representee, the making of the statement will itself amount to a representation. Where, however, the initial making of the statement of fact is but a step in a process which is intended to lead up to the ultimate means of communication to the intended representee or representees, the making of the statement will not, in itself, constitute a representation until the statement of fact is set forth or disseminated upon the path of actual communication to the intended representee or representees. Thus, a statement of fact in the oral notes of a speech will not amount to a representation until the speech is actually delivered. Nor will the making of a statement in an advertisement to be displayed on a bill board or to be disseminated by way of television or publication in a newspaper or journal ordinarily constitute a representation until it is displayed or made available for viewing or reading by the intended representees. In such cases, if the statement is withdrawn or supressed before the method of communication to the intended representee is reached, there will have been no act of representing for the purposes of s.53(a) or (c). In particular cases, there may be difficulty in determining when it is that the representation is complete. For example, there may be room for legitimate difference of opinion as to whether a statement contained in a letter dispatched by ordinary mail to the intended recipient of the representation can be said to constitute a representation at the time the letter is posted or at the time it is received.

In each of the present matters, the alleged act of representing was complete either at the time when the relevant magazine was first offered for sale to the public or at the time when the relevant magazine, having been so offered for sale, was first purchased by a member of the public. It is unnecessary, for the purposes of the present matter, to form or express any view as to which of those alternatives is to be preferred since it would appear to be common ground that the relevant journal was, in each case, sold in substantial quantities to the public. The alleged representation being complete, at the latest, at the time of such sale, it is unnecessary for the purposes of establishing an offence against s.53(a) or (c) to establish that the allegedly false material was in fact read by anyone at all. Nor does establishing that more than one person read one of the advertisements in the particular issue of the relevant journal provide the basis for a finding of more than one contravention of the relevant clause of s.53. The act of representing being complete, at the latest, when the particular issue of the journal was offered for sale and sold, the fact that the advertisement may subsequently have been read by thousands of readers did not involve a new and independent act of representing on either the first or on each occasion that a particular reader happened to read it.

I agree that the specific questions asked in each Stated Case should be answered in the manner proposed by Franki J.

JUDGE3

These are two special cases stated pursuant to the provisions of s.25(6) of the Federal Court of Australia Act 1976 by a judge of that court. The special cases were stated in proceedings which were instituted by informations laid by John Cranston Thompson ("the informant") wherein Riley McKay Pty. Limited ("Riley McKay") was charged with two offences against s.79 of the Trade Practices Act 1974 ("the Act"). One offence is alleged to have arisen out of a contravention of s.53(a) of the Act.

Section 53(a) at the relevant time was in the following terms:
"A Corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services

(a) falsely represent that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model."
In essence the summons alleges that Riley McKay;
". . . did in trade or commerce in connexion with the promotion by advertising of the supply of goods described as a plant stand, falsely represent that the said goods were of a particular quality in that in an advertisement in 'T.V. Times' bearing date 2 October 1976 it did state 'Giant Wrought Iron Parisian Cart Stand'."

The other offence is alleged to have arisen out of a contravention of s.53(c) of the Act. This section at the relevant time was in the following terms:
"A Corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services

(a) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have."
In essence this summons alleges that Riley McKay;
". . . did in trade or commerce in connexion with the promotion by advertising of the supply of goods described as a 'Golden Replica of the 400 Day Clock' falsely represent that the said goods had uses they do not have in that in an advertisement in 'New Idea' bearing date 9 October 1976 it did state . . . "
Certain uses were then specified in the summons as having appeared in the advertisement.

Section 25(6) of the Federal Court of Australia Act provides as follows:
"The court constituted by a single judge sitting in either Division may state any case or reserve any question concerning a matter with respect to which an appeal would lie from a judgment of the Judge to a Full Court of the Court for the consideration of a Full Court of the Court in that Division and the Full Court has jurisdiction to hear and determine the case or question."

Any doubts which may have been held as to the jurisdiction of this court to entertain the questions reserved by the special cases were resolved by the High Court which on 27 November 1979 ordered that a writ of mandamus issue directing us to exercise such jurisdiction.

In accordance with the provisions of Order 6 of the then Rules of this Court the questions reserved for consideration were stated in the form of two special cases. These cases raised questions for our consideration but did not state the facts which were alleged to amount to contraventions of ss.53(a) and 53(c) of the Act. Thus any decision which this court gives will not necessarily be decisive on the facts as ultimately established. I refer to the discussion in Pearce v Federal Commissioner of Taxation (1978) Australian Tax Cases 4,428 at pp.4430 and 4431 per Bowen C.J. and Brennan J. of the problems which may arise in these and similar circumstances. The explanation which was given to us in this regard was that the problem which prompted the questions arose at the outset of the hearing before the trial judge. It had been submitted by counsel for Riley McKay that the two summonses were in form ambiguous and bad for duplicity in that although they alleged that Riley McKay falsely represented in advertisements that certain goods were of a particular quality or had particular uses, they failed to allege that the false representations were communicated to a specified person or persons. In these circumstances counsel contended that they were deficient in that they failed to allege an essential ingredient of offences against ss.53(a) and 53(c) respectively of the Act. They were ambiguous and bad for duplicity, it was said, because upon the proof of the additional essential ingredient of each offence, namely the reading of the advertisement by specified members of the public, separate offences would be established in respect of each reader. In these circumstances either each summons was ambiguous in that it was uncertain as to the reader to whom the summons referred or bad for duplicity in that it referred to more than one reader. It was said that it was necessary that an objection on these grounds should be made at the commencement of proceedings and before the taking of evidence.

Prior to the stating of the special cases these difficulties were in part cured by the supply by the informant of further particulars in response to a request by Riley McKay. These particulars were supplied by letters subsequent to the above submissions and subsequent to the decision of the trial judge to state a case. A letter is annexed to each of the special cases and is referred to in the body thereof. It was put to us that for the purpose of considering the form of each summons and answering so far as possible the question in each special case, these further particulars should comprise the relevant facts.

The letter with respect to the alleged contravention of s.53(a) is in the following terms:
"Messrs Murphy & Moloney, 322
Solicitors SL77/5134/4C/2546
City Mutual Building,
60 Hunter Street,
Sydney N.S.W. 2000 19 October 1978.
Dear Sirs,

RE: FEDERAL COURT OF AUSTRALIA : THOMPSON v RILEY McKAY
PTY. LTD. SUMMONS No. G74 OF 1977 : YOUR REFERENCE: RG:CY

I refer to your letter dated 12 October 1978. I am instructed to answer your requests for particulars as follows:

(a) When did the defendant so represent?

On or about 29th September 1976.

(b) Where did the defendant so represent?

In the State of New South Wales

(c) To whom did the defendant so represent?

It is not conceded as a matter of law that the representation needs to be made to any person or persons. Without prejudice to this submission: to members of the public at large.

(d) Specify the conduct on the part of the defendant alleged to constitute the representation

The defendant caused the said advertisement referred to in the Summons, a copy of which advertisement is hereto annexed, to be inserted in the issue of the magazine 'T.V. Times' of cover date 2nd October 1976, which became available to the public for sale on 29th September 1976.

So that your client will further understand the nature of the case which is intended to be made against it you are hereby notified that the informant intends at the hearing to prove inter alia that: -

(a) The defendant is a trading corporation within the meaning of the Trade Practices Act 1974 (as amended). At all material times the defendant carried on the business of supplying goods by mail order and by direct sale.

(b) The defendant instructed the publisher of the magazine 'T.V. Times' to insert the advertisement referred to in the answer to question (d) above in the issue of the said magazine of cover date 2nd October 1976. The said advertisement duly appeared in the said issue, the 'on sale date' of which was the 29th September 1976."
Particulars in respect of the alleged contravention of s.53(c) were supplied by letter in the following terms:
"Messrs Murphy & Moloney, 322 Solicitors, SL77/5134/4C/2546 City Mutual Building,
60 Hunter Street,
Sydney. N.S.W. 2000 19 October 1978.
Dear Sirs,

RE: FEDERAL COURT OF AUSTRALIA : THOMPSON v RILEY McKAY
PTY. LTD : SUMMONS NO. G78 OF 1977 : YOUR REFERENCE RG:CY

I refer to your letter dated 12 October 1978. I am instructed to answer your requests for particulars as follows:

(a) When did the defendant so represent?

On or about 2nd October 1976.

(b) Where did the defendant so represent?

In the State of New South Wales.

(c) To whom did the defendant so represent?

It is not conceded as a matter of law that the representation needs to be made to any person or persons. Without prejudice to this submission: to members of the public at large.

(d) Specify the conduct on the part of the defendant alleged to constitute the representation

The defendant caused the said advertisement referred to in the Summons, a copy of which advertisement is hereto annexed, to be inserted in the issue of the magazine 'New Idea' of cover date 9th October 1976 which became available to the public for sale on 2nd October 1976.

So that your client will further understand the nature of the case which is intended to be made against it you are hereby notified that the informant intends at the hearing to prove inter alia that: -

(a) The defendant is a trading corporation within the meaning of the Trade Practices Act 1974 (as amended). At all material times the defendant carried on the business of supplying goods by mail order and by direct sale.

(b) The defendant instructed the publisher of the magazine 'New Idea' to insert the advertisement referred to in the answer to question (d) above in the issue of the said magazine of cover date 9th October 1976. The said advertisement duly appeared in the said issue, the 'on sale date' of which was the 2nd October 1976.

The questions to be stated to the Full Court of the Federal Court involve questions of law. In the event of it being held, contrary to the informant's submissions, that the Summons together with the above particulars is defective the informant proposes to seek leave to amend its particulars by substituting the following alternative particulars for the above :-

(a) When did the defendant so represent?

Between 1st October 1976 and 13th October 1976.

(b) Where did the defendant so represent?

Sydney, New South Wales.

(c) To whom did the defendant so represent?

Irene May Gardner of West Pymble, Sydney.

(d) Specify the conduct on the part of the defendant alleged to constitute the representation

The defendant caused the said advertisement referred to in the Summons, a copy of which advertisement is hereto annexed, to be inserted in the issue of the magazine 'New Idea' of cover date 9th October 1976 and which was read by the said Irene May Gardner between 1st October 1976 and 13th October 1976."

In consequence of the admission by the informant that he could not, in respect of the charge under s.53(a), specify a particular person to whom the allegedly false representation was communicated, the relevant question of law under this special case is whether the informant must necessarily fail to establish the alleged contravention. The relevant facts not having been established, to answer this question comes perilously close to the giving of an advisory opinion upon the proper interpretation of s.53(a) of the Act, (Pearce v Federal Commissioner of Taxation, supra at pp.4430 and 4431). With some hesitation, I consider it proper, because the circumstances are exceptional, to give such an opinion.

The questions in the special case in respect of s.53(a) are as follows:
"(a) Is the Summons herein defective in substance in that it is ambiguous and bad for duplicity?

(b) If the answer to (a) is in the affirmative, has such defect been cured by the supplying by the informant to the defendant of the particulars set forth in annexure 'F' hereof?

(c) If the answer to (b) is in the negative, can such defect be cured by amendment of the Summons?

(d) Is it essential in order to make out a charge under s.53(a) of the Trade Practices Act 1974 to prove that the alleged written false representation was communicated to a specific person?

(e) Should the Information herein be dismissed?"

It is my opinion that the receipt of the abovementioned particulars renders it unnecessary to give consideration to question (a) above (which must be answered 'no') and consequentially to questions (b) and (c). The answer to question (d) virtually determines the answer to question (e) and thus I propose to consider that former question in the first instance.

The point of principle which arises for determination, is whether under s.53(a) of the Act communication to a specified person, or at all, is an essential feature of the charge of "falsely representing". Counsel for Riley McKay contended that there was no such thing as an uncommunicated representation, and that this crucial element of communication is established when it is proved that the written material has been read by someone in trade or commerce. This submission carried with it, it was contended, the authority of the decision of the Court of Appeal in R v Thomson Holidays Ltd (1974) Q.B. 592, and we are urged to follow and apply that decision.

It is my opinion, however, that the decision should not be applied by this court to the present matter. R v Thomson Holidays Ltd supra is a decision in circumstances which, whilst they appear to have some similarity to those before us, differ upon a consideration of the fact situation, the particular sections under review and the legislation generally. It arose in reference to prosecutions for contraventions of s.14(1)(b) of the Trade Descriptions Act 1968 ("The United Kingdom Act"). The essence of the contraventions there alleged was the reckless making of false statements as to the amenities of accomodation in respect of which contraventions the defendants entered a plea of autrefois convict.

As Lawton L.J. said in delivering the reasons of the Court of Appeal in R v Thomson Holidays Ltd, supra at p.597 the words of s.14(1)(b) must be given their ordinary meaning but must be construed in their context. In the first instance I propose to give consideration to the relevant context, merely foreshadowing at this stage my ultimate opinion that communication is not always an essential element of the making of a representation. R v Thomson Holidays Ltd, supra was a decision on s.14(1)(b) of the United Kingdom Act which is in these terms:
"It shall be an offence for any person in the course of any trade or business . . . (b) recklessly to make a statement which is false as to any of the following matters, that is to say . . . (v) the locality or amenities of any accommodation so provided."

The statement was contained in a brochure which was distributed widely and contained a description of amenities which was found to be false in three particulars. The Court of Appeal was of opinion that the false statement in the brochure was made when the brochure was read by members of the public and that as many offences were committed as there were readers.

The passage in the reasons of the court which it was contended was relevant was at p.597 and is as follows:
"Further, anyone who in the course of any trade or business makes a statement does so to people; there would be no point in making it unless there was someone upon whom it could have some effect. It follows in our judgment that a statement is made when it is communicated to someone. When that will be will depend on the facts of each case. A travel firm which employed door-to-door salesmen to peddle misleading information about package holidays might make a false statement at every house at which they called; another such firm, putting out misleading information in a television advertisement would make the statement at the time of the broadcast, which would probably be seen by millions of people. Now the defendants put into circulation amongst the public two million copies of a brochure, each of which contained false statements intended by the defendants to be read by, and to influence, one or more readers. The brochures were intended to do what a door-to-door salesman would do, namely, to give information about holidays; but with the printed word the information would be given when the brochures were read. In our judgment that was when the false statements were made, and they were made to each reader."

In my opinion, this statement of the law should not be read as having universal application to all representations, and in particular to alleged contraventions of s.53 of the Act in newspaper advertisements. It was given in a case dealing with representations in a brochure, and whilst there is much to be said for the view that in these circumstances a representation (or statement) is not made until it is read, I see no justification for necessarily applying the reasoning to other situations. In so far as the Court of Appeal considered representations conveyed otherwise than by brochure, its statements are obiter. Moreover I see a number of reasons why it should not be extended to cover the making of allegedly false statements or representations in the course of promoting by advertisement the sale of goods.

The acceptance of the plea of autrefois convict in R v Thomson Holidays Ltd would have had the effect of considerably limiting the protection which the United Kingdom legislation gave to the public. As Lawton L.J. said at p.597 of that case: "The general scheme of the Act seems to envisage protection for individual members of the public". However its remedies are limited.

The Australian Act has very much more elaborate provisions for protecting the public, going well beyond merely making contravention of the Act an offence carrying prescribed penalties. A member of the public under the Australian legislation is empowered to commence his own proceedings to recover damages for the loss he has suffered in consequence of contravention (s.82) and, if he be so minded, to obtain an injunction to restrain contravention. A justification for not upholding the submission of autrefois convict in R v Thomson Holidays Ltd supra, was the fact that notwithstanding that many people may have read and been prejudiced by the false statements, the only remedy and only protection under the United Kingdom legislation would be a single prosecution. Under the Australian Act in circumstances where there might be only one prosecution, each member of the public who suffered loss has his separate remedy under s.82. There is therefore, in my opinion, neither the necessity nor the justification for subjecting the Australian Act to the authority of R v Thomson Holidays Ltd for the purpose of ensuring it effectively achieves its stated objectives.

Section 53 of the Act provides that the false representation may arise in either of two specified situations, namely in connection with the supply or possible supply of goods or services on the one hand, or in connection with the promotion by any means of the supply of goods or services, whereas the ambit of the English legislation appears to be restricted to the supply of goods or services. I refer to the comments of Lord Widgery in Fletcher v Budgen (1974) 2 All E.R. 1243 at p.1247 when referring to Wycombe Marsh Garages Ltd v Fowler ((1972) 3 All E.R. 248); "the value of the case . . . is that it emphasises that the Act is only concerned with false trade descriptions applied to goods in association with a contract for the sale or supply of the goods". It is my opinion, that the specifying in the Australian legislation of the two circumstances in which the false representation may be made is of significance in determining the context in which the word "represent" is to be construed. A representation may have a different connotation in the context of the supply or possible supply of goods than it has in the context of promoting the supply thereof by any means. Many and varied are the means used in the commercial world to promote and keep in the public eye the trade name and qualities of the trader's goods, and advertisements, whether made by word of mouth, in written material or pictorial representation, sponsorship of sporting and other activities, conduct of competitions and outright donations are but a few of the means used.

The realm of promotion of goods is to my mind far removed from the situation of a seller and possible purchaser, and, in respect of promotion by advertising in particular, I do not see the necessity or justification for requiring proof that the representation came to the notice of a specified representee. A merchant promotes by arranging for an advertisement to be inserted in a newspaper or journal. He does so on a number of assumptions, not necessarily all justified, i.e. that a number of newspapers will be purchased, that some of the purchasers will read his advertisement, and that in consequence of reading some of the readers may at some stage be induced to buy his goods.

The United Kingdom Act uses the terminology "recklessly to make a statement" whereas the words "falsely represent" appear in s.53(a). However, subsequent sub-sections of that section use the words, more akin to the English legislation, "make a false or misleading statement". In my opinion, it is proper to attach significance to the change in terminology, particularly in the relevant context of promotion by advertising. In my view a statement is made either orally or in writing, whereas a representation may be made either orally, in writing or pictorially. A representation at or about the time of the supply or possible supply of goods would invariably be made orally or in writing. However promotion by pictorial representation is one of the most common methods of advertising goods, whether on bill boards or the television or theatre screen. In these circumstances it is open to see the change in terminology as acknowledging that to make a statement whether it be in the context of supply or promotion contemplates the communication of that statement, whilst to represent does not always require a representee, and especially so in the context of promotion.

There is however authority for the proposition that a person may represent a state of things without making a direct communication with a person affected. In Franklin v Godfrey (1894) 63 L.J.M.C. 239 a decision of Mathew & Kennedy JJ. when hearing a case stated on a point of law, it was held that when a seller of coal fixed a metal label to a sack indicating that it contained half a hundred weight he thereby "represented" that it contained that weight and was properly convicted of an offence under s.29 of the Weights and Measures Act 1889. That section is, so far as relevant, as follows:
"2. If it appears to a Court of summary jurisdiction that any load, sack or less quantity so weighed is of less weight than that represented by the seller, the person selling or keeping or exposing the coal for sale . . . shall be liable to a fine not exceeding five pounds."

It was contended before the Court that the metal label was not a representation within that section of the Act, which, it was said, contemplated a verbal or written representation by the seller such as there might have been if the coal had been bought by a purchaser at the seller's shop. Kennedy J. in giving his reasons stated that it appeared to him there was ample "representation" by the seller that the sack contained a certain quantity of coal which it did not contain.

Likewise in Baker v Herd (1894) 10 T.L.R. 181 a seller of coal was convicted of making a representation as to the weight of coal. Here the representation was contained in a delivery note which was intercepted by the inspector and never seen by the purchaser.

In Paul v Hargreaves (1908) 2 K.B. 289 the Court comprising Lord Alverstone C.J. Ridley and Darling JJ. quashed a conviction of a person who carried coal in sacks containing less than "represented" by the labels on the sacks, not on the ground that there had been no representation because of no communication, but because the person convicted was in ignorance of the fact that the sacks were of light weight. The court appeared to accept that there had been a representation made by the labels.

To like effect in the United States was the decision in U.S. v Hindman (1960) 179 F. Supp. 926 where one of the issues was whether the placing of a label on uniforms sold could constitute a representation of any kind in circumstances that Hindman had earlier been ordered "to cease and desist from representing directly or indirectly that military clothing offered for sale is custom made". Hartshorne J. at p.927 said:
"Obviously if the placing of a label on a military uniform is a representation at all, it is a representation when the sale of such clothing is made or when distribution of such clothing on such sale occurs. Furthermore, that the use of a label in connection with the sale and distribution is a representation as to the nature of the goods sold or distributed is not only common sense but common law."
This statement was made in circumstances where the defendant was directed to desist from "representing". The court found that there had been a representation in consequence of the placing of a label on the uniform. There is nowhere in the reasons of the court to be found any suggestion that there could not be a representation without communication. The representation was made in connection with the sale of the clothing in that a label appeared on the goods at the time of sale. It would follow on this line of reasoning that a statement made in an advertisement is, without more, a representation made in connection with the promotion of goods by advertising.

This conclusion is consistent with Australian authority, although the point has probably not previously been taken or argued to the extent it was before us. I refer to Given v C.V. Holland (Holdings) Pty. Ltd. (1977) 15 A.L.R. 439 where the mere act of displaying a vehicle in a used car yard with an odometer which indicated an incorrect mileage was held to amount to a representation that the vehicle had travelled the number of miles disclosed by the odometer.

Similarly in Weitmann v Katies Ltd (1974-1977) 1 A.T.P.R. 17439 the court stated at p.17445:
"I consider that the mere placing of an article on display for sale in a shop is in general sufficient to make any relevant words thereon, which are clearly visible, a representation by the trader without any specific attention being directed to the words, or without any statement by the trader."

Much emphasis was placed in argument before us on the necessity for the allegedly false representation to be "communicated" to a specified representee in the same way as generally it is necessary for an offer to be communicated to the other party. The extent however to which it is necessary to communicate an offer depends, it would appear, upon whether the offer is to be made to a particular person or the public at large. There is English authority that in circumstances where an offer was contemplated as being to the public at large it is not necessary to establish that the offer reached the intended offeree. I refer to certain dicta in Wiles v Maddison (1943) 1 All E.R. 315 where a butcher was prosecuted for offering meat for sale at too high a price. Viscount Caldecote L.C.J. stated at p.317:
"In my opinion, before it can be said that anybody has made an offer, some evidence must be available to show that the offer was communicated or put on its way. I do not say that it must be proved that the offer has reached the person to whom the offer is made. A person might, for instance, be convicted of making an offer of an article of food at too high a price by putting it in his shop window to be sold at an excessive price, although there would be no evidence of anybody having passed the shop window or having seen the offer or the exposure of the article for sale at that price."
Tucker J. on the same page indicated his view that "there can be an offer without it having been communicated to the intended offeree."

Phillips v Dalziel (1948) 2 All E.R. 810 is authority to the like effect in the context of the display of shoe boxes with prices marked thereon. Such display amounted to an offer within the meaning of a statutory provision forbidding the offering of certain goods for sale at greater than a set price.

These authorities confirm my view that, to the extent that it is correct to equate a representation with an offer, it is not always necessary to establish that the representation reaches the intended representee.

For all of the preceding reasons, I am of opinion that it is not always an essential element in making out a charge under s.53(a) to establish that the false representation was communicated to a specific person. This answer to question (d) of the special case in respect of that section determines the answers to be given to the other questions in that case and also the case in respect of s.53(c).

I agree that the questions asked should be answered as proposed by Franki J.