Larmer, Lawrence OHara v Purcell, Malcolm John Purcell, John Barry Dome Lighting Products Pty Ltd

[1978] FCA 27

JUDGMENT NO. ...... ........ ... 27 J .... -0 X

CATCHWORDS

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Trade Practices - Pleas of g u i l t y - Fmes -

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i i Trade Practices Act 1974 ( C t h ) , s s .53(c) and 79.

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l LAWRENCE OIHARA LARMER v. DOME LJG?TiT!G PRCVJCTS PTY. LTD. -

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LAWRENCE O'HARA LARMER v. I~IALCOLX JGFN PI;KCZLL

LAWRENCE O'HARA LARMER v. JOHN E W R Y PURCEL,L

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I N THE FFDERAL COURT OF AUCTRALIA

VICTORIA DISTRICT	REGISTRY
CEhXRAL DIVISION

NOS. VG 71-83 of 1977

BETWEEN: LAWRENCE O'I!ARA 1.ARXER

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I n f o r x a t

NOS. VG 84-95 Of 1977

AND: MAIXOLTI JOUN PLRC3LL

Defen3er.t

NOS. VG 97-105 O f 19'77

O R D E R

JUDGE MAKING ORDER: Franki J.

DATE OF OFDER: 18 April 1978

w1m W E :	M e l h x n e
THE COURT ORDERS THAT:

-	A.	In Nos. VG 71-83 of 1977 -
l. The defendant, Dome Lighting Products P t y . L t d . , i s

! convicted on each charge.

2. The following f ines are imposed:

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i	n
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I n respect of No. VG 71 of 1977: $ 400

respec t In o f No. VG 72 of 1977: $ I 00

. . In respect of No. VG 73 o f 1977: 500

In respect of Nos. VG 74-82 of 1977

. inc lus ive : $50 on each charge , to ta l l ing $ 450

In respect of No. VG 83 of 1977: 100

TOTAL	$1,550
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3. The defendant company pay the costs of t he i n fo lmmt

i n each case.

B.	-	In Nos. VG 84-96 of 1977 -
1. The defendant, Malcolm Jphn Purcell , i s convicted on

each charge.

2. The fol lowing f ines are inposed:

In respect of No. VG 84 of 1977: $ 403

In respec t of No. VG 85 of 1977: $ 100

I n respect of Nos. VG 86-94 of 1977:

$10 on each charge , to ta l l ing $ 90

In respec t o f No. VG 95 of 1977: $ 100

In r e spec t o f No. VG 96 of 1977 -- S; 300

TOTAL $ 990

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3. The defendant pay the total sum a t t h e r a t e o f $20

per week,	t h e f i r s t payment being on o r before
25 Apri l	1978.

4.	The defendant	pay	the	costs	o f	the	lnformant	i l l cach
case.

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-	C.	In Nos. VG 97-105 of 1977 -
’l. The defendant, John Barry Purcell, is convicted on

each charge.

2.    The following fines are Imposed:

1n.respect of Nos. VG 97-105 of 1977: -

charge	each	$50 on	TOTAL	$450
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3.    The defendant pay the total sum at the rate o€ $20

per week, the first paynent bclng on or before

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25 April 1978.	\
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4.    The defendant pay the costs of the informant in ezch

case.

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'IN THE FEDERAL COIRT OF AUSTRALIA)

VICTORIA DISTRICT	REGISTRY
GENERAL DIVISION

N O S . VG 71-83 of 1977

AND : D O P E LIGYTTNG FR@DI!CTS FT'. LTD.

LiclezdanY

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NOS. VG 97-105 of 1977

AND: JOHN R E X Y PURCELL

Def erdent

REASONS FOR JUDGiEYT :	FRKXKI J.
DELIVERED :	j a Aprl l -1978

LAFU-IIR v. DOPE LIGHTIXG PRODUCTS PTY. LTD.

M r . Larmer, the informant, with the consent of t he Min i s t e r ,

has l a id '3 informations against Dome Lighting Products P t y . L t d .

the defendant. The defendant i s a company with two d i r e c t o r s ,

Malcolm John Furce l l and Jonn Darry Purce l l , who are a l s o t h e

only shareholders In the company.

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The charges a l lege a breach of s .53(c) o f the Trade P-?C~:CPS

A

- c t 1 9 7 4 , p a r t i c u l a r i s e d i n g e n e r a l t h a t i n t r a d e o r comnercc,

i n connection with the supply of goods, the defendant represented

tha t t h e goods had approval they d id n o t h a v e , i n t h a t i n t h e

cour se o f t r ad lng i n e l ec t r i ca l apphances i n connec t ion u t h

the supply of e lectr ic s low cookers the defendant represented

t o Tupperware of Australia Pty. L t d . tha t t h e e l e c t r i c slow

cookers were approved f o r u s e i n h u s t r a l l a by t h e e l e c t r i c a l

a u t h o r i t i e s . The e l e c t r i c slow cookers are what a r e cormonly

known as crockpots. !

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l After an approach by Mr. M . J . Purce l l and some discuss-ons

with the purchaser , the defendant received a l e t t e r d a t e d

21 October 1976 which formed the basls of an o f fe r t o pu rch ; se

27,500 of the relevant slow cookers described as "Approved f o r

u se i n Aus t r a l i a by t h e E l e c t r i c a l A u t h o r l t l c s " . The dcfenc,?Lct,

under i t s sea l , a ccep ted a l l t he t e rms o f t h e l e t t e r , acd also

by l e t t e r of 25 October 1976 signea by M.J. P u r c e l l , s a i d i n

r e f e r e n c e t o t h e p u r c h a s e r ' s l e t t e r o f 21 October 1976 t h a t :

"We have Srea t p leasure in accept :ng a l l the t e rms wthm thls

l e t t e r .. . 11

It i s c l e a r t h a t t h e c o n t r a c t f o r t h e s a l e of t h e slcrw

cookers was upon the p rec i se bas l s t ha t t hey were approved f o r

u s e i n A u s t r a l i a by t h e e l e c t r l c a l a u t h o r i t i e s .

One information, No. VG 71 of 1977, was i s sued In r e s p c x

of t h e l e t t e r from the purchaser and the acccp tmce eiidorscd

thereon, and a fur ther in format lon No. VG 83 of 1977 was

issued in respec t of t h e l e t t e r of 25 October 1976.

Pleas of guilty have been entered by counsel who appeared

for the company on all 13 informatlons and therefore no questlon

of proof of the offences arises.

By l 3 March 1977 no approval had In fact been received

although epproval had been sought from several electrical

authorities and approaches from time to time had been made to

the State Electricity Commission of Victoria, to whom one If

the subject cookers had been subml5ted by the defepdant fo-

approval in February 1977.

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Between 13 March 1977 and 6 May 1977 deliveries were m d e

on nine occasions and a separate information has been lald In

respect of each of these deliveries	(Nos. VG 74-82 of 1977
inclusive).

On 22 April 1977 the State El?ctrlcity Commission adxscd

the compaay that approval was witl-held because of five

unsatisfactory features in the cocker submitted. A further

submissioli was made prior to 22 April 1977, on 7 April 1977,

and certain discussions had taken place between the submission

in February and the rejection in Apil 1977.

It ssems that some trouble might have arlsen under cerran

circumstances from the use of the slow cookers, but no detalled

evidence was presented on this SLlbJCCt.

About mid-May 1977 the purchaslng manager of the purchxcr

spoke to Mr. M.J. Purcell and querled whethcr approval had ln

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fact been obtained from the State Electricity Commission. He

I was told by Mr. M.J. Purcell that approval had been recelveci

and everything was in order. Information No. VG 72 of 1977

was laid in respect of this representation.

The purchasing manager of the purchaser asked f o r a sanple

of the slow cookers to be delivered to it and a cooker a r r ived

bearing the label on the bottom which included the expresclon

''@P No. V77057-68". It appears that it is usual for supyliers

of electrical articles which have the approval of $he State

Electricity Commisslon to attach a label of this type. Ti-.e

representation conveyed by thls label is the subject of

informGtion No. VG 73 of 1977. It appears that these 1 a t c . L ~

were applied only to 235 slow cookers.

The only two directors of the company were IW. J.B. Pux-cell

and his son Mr. M.J. Purcell, both of whom had had some

considerable busmess experience :ud both of whom were actlvely

engaged in the affairs of the company.

The initlal delivery requirecl by the terms of the contrclct

was to be nade during the week ending 6 March 1977, and

apparently the directors of the company, well knowlng thnt

approval ilad not been granted but hoping that it would ultinatr-ly

be granted, took the risk of delivering the slow cookers as

having been approved by the relevant electrical authorltles.

Receivers have been appointcd of the propcrty o f thc

company and an employee of the receivers, a firm of accountanis,

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gave sworn evidence that the debts far outweighed any asscts

the company possessed, and it seems that the asscts of the

company, so far as can be ascertained, are unlikely to	exceed,
say, $2,000.

I regard a misrepresentation that an electrical appljance

has the approval of an electrical authority as a vcry serlous

breach of the provisions of s . 5 3 ( : ) of the Trzde Pr??c.tict:; - >..ct.

In Hartnell v. Sharp Comoration hstralla Pty. Ltd. (197:)

5 A.L.R. 493 ten informations werz laid in respect of advcrclse-

rnents alleging that micro-wave ovens had been tested and aproved

by the Standards Association of, Australia when such was not the

case. A bench of the Australian Industrial Court, consl-sriflc

of three Judges, imposed fines totalling $100,000, divided into

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. . fines of $10,000 in respect of each breach, together with cos”,.

I	In Larmer v. Power Machinery Pty. Ltd.	(1977) 14 A.L.R. 243,
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penalties totalling $5,000, together wlth costs, vere ~ngos:d

by a JudEe of this Court in respect of offences under s.53( :)

of the Trade Practices Act where the representations were thet

certain machines had State Electrlcity Commission approve1

when such was not the case.

However, in view of the fact that the defendant; cornpay

In this case has very limlted assets it seems purposeless tc

impose penalties of the magnitude which	I would conslder
appropriate in other circumstances.

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I convict the defendant corn;,.any 011 cach charce and 11,: ):)L c

the following fines:

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In respec t of No. VG 71 o f 1977, t h e sum of $400.

I n r e s p e c t of No. VG 83 of 1977, t h e sum of $100.

In r e spec t of Nos. VG 74-82 o f 1977 inc lus ive , the sum of

$50 e a c h , t o t a l l i n g $450.

In r e spec t of No. VG 72 of 1977, the sum of $100.

I In r e spec t of No. VG 73 of 1977, t h e sum of $500.-

making a t o t a l of $1,550, and I also order the defendant cor.pany

pay the cos t s of the informant in each case.

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LARblZR v. MALCOLM JOHN FUHCELL

The informant, M r . Larmer, l a id 13 i n f o r m a t i o n s a g a n s t

Malcolm ;3hn Purce l l , the defendant , alleging breaches of

s .53(c) of the Trade Pract ices Act 1974.

The t r ansac t ions In r e spec t of which the infor]-- '- , ; S L .SES

were issued were a l l t r ansac t ions i n respec t of which corr:-s-

ponding informations were l a i d aga ins t the company Dome Li;'rtmg

Products Pty. Ltd. I have d e a l t w i t h t h e f a c t s I n r e l a t l c l t o

t h e company and t h e r e i s no need t o r e p e a t what I have alrcady

said i n r e l a t i o n t o it. It was sukmltted the defendant \:E:;

knowingly concerned i n each case h i th in s .5 of the Crimes .:c*

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of t h e Connonwealth.

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No. VG 84 of 1977 was i s sued i n r e l a t ion t o t he acccp : , rnce

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i endorsed on t h e l e t t e r of 21 October 1976, and No. VG 85 of 1577

i i n r e s p e c t o f t h e l e t t e r of confirmatlop dated 25 October 1977.

Informatlons Nos. VG 86-94 of 1977 ~ncl .us ive WCI-C a l l 111

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relation to the deliveries on nine occasions betwcen 13 rIarch

1977 and 6 May 1977. No. VG 95 of 1977 was in respect 01 the

telephone conversation between Mr. M.J. Purcell and Mr. Alderson

about mid-May 1977. No. VG 96 of 1977 was in relatlon to the

label attached to the bottom of certain of the slow cookers

containing the notation "APP No. V77057-6G11.

It was said on behalf of Mr. N.J. Purcell, who in fact

signed the acceptance endorsed or? the letter of 21 Octob?

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1976 and signed the letter of conflrrnatlon of 25 October 'i576,

that he w8s aged 32, had three young children and hzd no p r l o r

convictions of any kind. It was also sald that as a resu!t

of personal guarantees granted In respect of loans to the

company which is now in receivership, he had lost his house

and his c m and was presently engaged as a salesman earnlrlg

$130 per week and overtime, that 'ie had no assets at all, 3.1d

that he was paying off a personal loan arlsing out of	trle fxlure
of the company.

M.J. and J.B. Purcell were tne only dlrectors of 2nd

shareholeers in the company.

A plea of guilty was entered jn each case by counsel, and

in addition a specific admission of the cormnlsslon of the

offences was made	so that no questlon of proof	of the offences
arises.

I regard these offences as being of a very sc r lous rlclLuL-c

since they involve not only a breach of S. 53( c) of the Ti.:'""

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Practices Act but also a representation that elec>trical qulprent

had the approval of electrical authorities, which in fact it dld

not have. However, I am mindful of the fact that, at least to

!	some extent, it can be said that all the offences arose bcceuse
of the representation that the s l o w cookers had an approval which
they did not have. It is also relevant that efforts were being
made to get the approval of the State Electrlcity Comnlsslm.

Although no sworn evidence wzs given of the defcnda1:t S

financial affairs, the informant appeared to accept what was

presented to the Court concerning them and, with some hesi:at;on,

I have decided to proceed on the basis tinat the defendant 112s

no assets and earns but a modest wage. I see great merit i x

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evidence of this nature being given under oath and It must riot

be assumed that	I would accept unsworn material of this nature
in the fu-are.

It seems purposeless imposlng fmes upon an mdividua: In

excess of his capacity to pay. In additlon thls defendant k x

already suffered dearly by the loss o€ his house and car.

I convict the defendant on each charge and I jmpose t::c

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following fines:

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In respect of No. VG 84 of 1977, $400.

In respect of No. VG 05 of 1977, 8100.

In respect of Nos. VG 86-94 inclusive o f 1977, $10, mahng

in total $90.

In respect of No. VG 95 of 1977, $100.

In respect of No. VG 96 of 1977, $300 -

making $990 in all.

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I also order the defendant to pay the informant's costs

in each case.

I add that I have noted the amendment made to s.79 of the

Act in 1977.

LARMER v. J O Y N 3ARRY PURCELL

The informant, Mr. Larmer, laid nine informations Nos.

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VG 97-105 inclusive against John Eiarry Furcell, the defer.dant,

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alleging heaches of s.53(c) of thz Trede Practfces Act lY i&.

I These informations were laid in respect of deliverls.;

I	corresponding to those	in respect of which informations	Kos.
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I	VG 74-82 of 1977 inclusive had bee? laid against the company
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Dome Lighting Products Pty. Ltd. I have already dealt W]-L
the facts in what I have said with regard to that compmy.
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It v6s submitted that the defendant was knomngly cr,rcerr?eci

in each offence within s.5 of the Crires Act of the CoI>Eoil.7:alth.

A plea of guilty was entered by counsel for the defeltii!nt

in respect of each information, anc! a speclfic admiss~on c f the

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commission of the offences was made, therefore no quesl;io:l c €

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proof of the offences arises.

Mr. J.B. Purcell was a director of the compaiy and it x : s

said, and not denied, that the defcndmt klm: of the cont.-;.Lt

and of its provisions and was actively lnvolvcd in de1jv"l.y of

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the i t ems , and tha t he knew a t a l l s t a g e s t h a t t h e slow cooker

had not been approved.

It was submitted by counsel for the defendant that t h e

defendant was 59 years of age, had four chi ldren, including

the defendant in similar proceedings Mr. M.J. Furce l l , a son,

working, aged 19, and twins aged 15, one of whom was i n h o s p i t a l .

I t was s n i d t h a t he had been a l i sh t manufac turer f o r 21 years

and that as a r e su l t o f a receiver having been appointed. jn

respec t of t h e company Dome Lighting Products Pty. L t d . , and

of persora l guarantees , he had 10s-G hls home, two ca r s and a

house-boat which he had owned. I t was a l so said t h a t a t present

he was wcrking as a storeman earni:lg approximately $1 30 >er week,

r en t ing E house, and t h a t h is wife was working part-tlme. It

was said t h a t he was also paying o f f a personal loan a r l s lng

out o f the fa i lure o f the bus iness . It was a l s o said t h a t he

had no a s se t s .

It seems t o me tha t t h i s defcndant has a l ready suffered

ve ry g rea t ly as a r e s u l t o f h i s a s soc la t lon with t h e s l o w

cooker t ransact ion and has no pr ior convic t~ .ons of any k l t d .

On the mater ia l before me it s e e m that this defendant vras

somewhat less involved than the o - k e r defendant Mr. M . J . F ~ r c : l l .

As w i t h Mr. M.J. Purce l l I accept , again wlth some

reserva t ion , what was said abou t t he f i nanc ln l a f f a i r s of

Mr. J .B . Purce l l .

Although I regard the charges t o whlch p l eas of g u l l t y

have been entered as se r ious , I cons ide r t ha t 1n a l l t h e

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circumstances the fol lowing f ines are proper:

. In each case the defendant is convicted and I impose a f i n e of

$50 in respec t o f each of the nine informations Nos. VG 9’7-105

of 1977 inc lus ive , making a t o t a l f i n e of $450. I a l so o rde r

t h e d e f e n d e t t o pay the cos ts o f the in formant in each case .

I n r e l a t i o n t o b o t h t h e f i n e s imposed on Malcolm J o h n

Purce l l and on John Barry Purcell, I w i l l say payment i s t o be

made a t t h e r a t e o f $20 p e r week. the flrst payment on c r

before 25 Apr i l 1978. i

That means t ha t t h e amount t o be pa id o f f i n r e spec t of

each of those defendants is $20 per week, spread over tne

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whole of the f ines l ev ied aga ins t each defendant , a t o t a l

amount o f $20 per week.

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