Korczynski, W. v Wes Lofts (Aust) Pty Ltd

[1986] FCA 232

IN THE FEDERAL COURT OF AUSTRALIA	NO. VG102 of 1985
VICTORIA DISTRICT REGISTRY	NO. VG103 of 1995

GENERAL DIVISION ) NO. VG104 of 1385

NO. VG105 of 1985

NO. 'JG106 of 1385

rJo. vcl07 of 1985

BETWEEN: WALTEX KORCZPNSKI

Prosecutor

A B : WES LOFTS (AUST.) PTY.

LTD.

Defendant

MINUTE OF ORDD.

JUDGE MAKING ORDER:	Jenkinson J.
DATE OF ORDER:	19 June, 1386
WHERE MADE:	Melbourne

The Court orders that upon each information the

defendant be convicted and sentenced to pay a fine of $750 and

that in each proceeding the defendant pay to the prosecutor	his
costs of the proceeding.

Note :

Settlement and entry of orders is dealt wlth in Order 36

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) No. ~ 1 0 2 of 1385

VICTORIA DISTRICT REGISTRY	) NO. VG103 of 1385
GENERAL DIVISION	1 NO. VG104 of 1385

NO. ' ~ ~ 1 0 5 of 1985

NO. ~ ~ 1 0 6 of 1385

NO. ' ~ ~ 1 0 7 of 1385

NO. VG108 of 1985 NO. VG103 of 1385

BETWEEN: WALTER KORCXNSKI

Prosecutor

m: CES LOFTS (XUST.) PT'I.

LTD.

Defendant

m: Jenklnson S.

W: t4elbourne

DATE: 13 June, 1386

REASONS €OR SENTENCE

Each of eight informations for contraventions of 5.53(a)

of the Trade Practices Act 1374 having been proved, the defendant

is to be convicted and fined for each of those offences.

Particulars of each contravention are disclosed in the

reasons published on 31 October 1385 for the conclusions, which

were then stated, that the informations had been proved. What is

now stated is by- ;ray of addition to those reasons.

It appeared In evldence that I n April or May 1384 a

ssnlar servant or offlcer of the defendant company enqulred by

telephone of a Czmmonwealth public servant %hat "parzentage of

local content" xouli- ~u~tlf:; labsllinq an article of commerce

"made in Australla". The public servant, who was at the tune

First Assistant Secretary, Department of Industry and Commerce,

disclaimed knowledge of the answer to the enqulry, but indlcated

that he did not think the answer would be determlned by the

applicatlon of what he descrlbed as "hard and fast rules". No

officer or servant of the defendant gave evidence as to what

influence the telephone conversatlon had on the defendant's

directors. I understood that counsel for the defendant sought to

use the evidence of the approach to the public servant and of the

publlc servant's response as indicating a desire on the part of

thosz who Kere controlling r;he defendant to label the maskmg tape

they were selling in conformity with the law and as indicating that the:r had received, in response to the inquiry, no warnlng that the labelling adopted was contrary to law. On the other hand the large volume of the defendant's trade in the masking tape

suggested - and no other evidence contradicted the suggestion -

that the defendant was at relevant times a company in a

substantial way of business and that it could have afforded to pay

for legal advice about the lawfulness of the course it was

pursuing in respect of labelling masking tape. The Trade

Practices Commisslon had published its .own oplnion of the

unlawfulness of conduct s~milar to the defendant's conduct and

could have been expected to respond to enquiry on behalf of the

defendant with a warnlng that the labelling w a s in its opinlon

unlawful. The enquiry which the defendant did make was made

3 .

elghteen months after header cards marked "Made in Australia" had

been first ordered by the defendant for use In the packaglng of

masklng tape. I will assume In the defendant's favour - although

no evldence was addu'c.ed - that those who controlled the company

did not advert to the possibillty that that labelling was unlawful

untll April 1384. The crlminal sanctions which s.79 of the Trade

Practices Act 197-1 prescribes are not directed onlv against

lntentional breach of Fart V of that Act. Thouahtless disregard

of a provlsisn of that Part calls for punishment. On17 a reprehenslbly unreflecting mind could have decided to claim that thls masking tape had been made in Australia wlthout adverting to

the posslbllity that such a claim might be likely to mislead

prospective purcha- =ers. Only a reprehensibly uninformed mind

could have failed to recognise that a misleadlng claim of that

kind might constitute a contravention of the Trade Practices Act.

I weigh in favour of the defendant that the legal

contentions advanced by counsel on behalf of the defendant in

denial of the charges were arguable. It could not be said that

what the defendant did was an ob-Jious breach of the Trade

Practices Act. But the strength of that conslderation is not

great, since the defendant was not said to have sought, or to have

received, any legal	advice on the matter before the offences were
committed.

I see no reason to distlnsuish betwteen any one of the

offences and any other or others. I consider the appropriate

penalty in respect of each information 1 s that the defendant be

sentenced to pay a fine of $750. In the case of each information

there wlll be an order that the prosecutor's costs of the

proceeding be paid by the defendant.

I certify that this and the 3 preceding pages are a true copy of

the Reasons for Sentence herein	of	the Honourable	Mr.	Justice
J E N K I N S O N .

Assoclate