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

JUDGMENT NO. ......

........ ...

27 J

....

-0

CATCHWORDS

Trade Practices

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

i i

Trade

Practices

Act

1974 ( C t h ) , s s .53(c) and 79.

. .

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

I	.-
I

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

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

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

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:

April 1978

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

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.

The following

f ines

are

imposed:

1 . I

i	n
!

- 2 -

I n respect

No. VG 71 of 1977:

$ 400

respec t

o f

No. VG 72 of 1977:

I 00

. . In respect

No.

VG 73 o f 1977:

500

In respect of

Nos. VG 74-82 of 1977

. inc lus ive : $50

each

charge ,

to ta l l ing

450

In respect

No. VG 83 of 1977:

100

TOTAL

$1,550

The defendant company pay

the

costs

t he

i n fo lmmt

i n	each case.

In Nos. VG 84-96 of 1977 -

The defendant, Malcolm Jphn

Purcell ,

i s

convicted

each charge.

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

each charge , to ta l l ing

In respec t o f

No.

1977:

$ 100

In r e spec t

o f No.

VG 96 of

1977

300

TOTAL

990

-=-m

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.

- 3 -

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
-
--

3. The defendant pay the total sum at the rate o€ $20

per week, the first paynent

bclng on or before

25 April 1978.	\
i

4. The defendant pay the costs of the informant in ezch

case.

'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

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

the

company.

- 2 -

The

charges a l lege

breach of s .53(c)

o f

the Trade

P-?C~:CPS

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,

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

the supply of

lectr

low cookers

the defendant

represented

t o Tupperware

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

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.

After an approach by Mr.

M . J .

Purce l l and some discuss-ons

with the purchaser , the defendant received

l e t t e r

d a t e d

October 1976 which formed the basls of

o f fe r t o pu rch ; se

27,500

the relevant slow cookers described as

"Approved

u se

i n

Aus t r a l i a

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

l e t t e r of

October

1976

signea

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

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

.. .

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

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

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

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

the subject cookers had been subml5ted by the defepdant fo-

approval in February

1977.

Between 13 March 1977 and 6 May 1977 deliveries were

m d e

on nine occasions and

a separate information has been lald

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

- & -

fact been obtained from the State Electricity Commission. He

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

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,

- 5 -

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 ( : )

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

. .

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,
!

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.

I convict the defendant

corn;,.any 011 cach charce and

11,: ):)L

the following fines:

- 6 -

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

No.

VG 83 of 1977, t h e sum of

$100.

In r e spec t

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.

In r e spec t

of No.

VG 73 of 1977, t h e sum of $500.-

making

t o t a l of $1,550,

and

also order the defendant

cor.pany

pay

the cos t s

the informant in each case.

LARblZR v. MALCOLM JOHN FUHCELL

The informant, M r .

Larmer, l a id

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

s .53(c)

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

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 h e company

and

t h e r e i s no

need

t o r e p e a t

what

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*

---

of	t h e Connonwealth.

No.

1977

was

i s sued i n r e l a t ion t o t he acccp : , rnce

endorsed on t h e l e t t e r

of 21 October 1976, and No. VG 85 of 1577

i n

r e s p e c t o f t h e l e t t e r

of confirmatlop dated

October

1977.

Informatlons Nos.

VG 86-94

of 1977 ~ncl .us ive WCI-C a l l 111

- 7 -

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?

I .

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.:'""

- a -

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

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

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

following fines:

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.

- 9 -

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.

I '

VG 97-105 inclusive against

John Eiarry Furcell, the

defer.dant,

! '

alleging heaches of s.53(c)

of thz Trede Practfces

Act

lY i&.

These informations were laid in respect

of deliverls.;

I	corresponding to those	in respect of which informations	Kos.
i

VG 74-82 of 1977 inclusive had bee? laid against the company

Dome Lighting Products Pty. Ltd. I have already dealt W]-L

the facts in what I have said with regard to that

compmy.

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

commission of the offences was made, therefore

no quesl;io:l

c €

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

- 10 -

the i t ems ,

and

tha t

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.

was

submitted

counsel for the defendant

that

t h e

defendant

was

years

age, had four chi ldren, including

the defendant in

similar proceedings Mr.

M.J.

Furce l l ,

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

l i sh t manufac turer

f o r 21

years

and

that

r e su l t o f

receiver having been appointed. jn

respec t of

t h e company Dome

Lighting Products

Pty.

L t d . ,

and

persora l guarantees ,

had

10s-G hls home, two ca r s and a

house-boat

which

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.

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 .

was

a l s o

said t h a t he

had

a s se t s .

seems

t o me

tha t

t h i s

defcndant has a l ready suffered

ve ry g rea t ly

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

pr ior convic t~ .ons of

any

k l t d .

the mater ia l before

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

Mr.

J .B .

Purce l l .

Although

regard the charges

t o whlch

p l eas

g u l l t y

have been entered

se r ious ,

cons ide r t ha t

a l l t h e

- 11 -

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

the nine informations

Nos.

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

Malcolm

J o h n

Purce l l and

on John Barry Purcell,

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

c r

before 25 Apr i l 1978.

That

means

t ha t

t h e

amount

t o be

pa id o f f i n r e spec t

each of those defendants

$20

per

week,

spread over tne

whole

the f ines l ev ied aga ins t each defendant ,

t o t a l

amount o f $20 per week.

[1978] FCA 27

18 Apr 1978