O'Connor, A.J. v Stevenson, G.S

Re: ANDREW JAMES O'CONNOR
And: GARY SCOTT STEVENSON
Nos. G163-191, G193-204 and G1085-1092 of 1988
FED No. 236
Trade Practices Act

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Trade Practices Act - plea of guilty to prosecutions - misleading, deceptive and false statements made to potential customers in order to sell advertising space - unavailability of defendant for cross examination - question of penalty given defendant's denial of personal responsibility - onus, standard and method of proof of facts for sentencing purposes.

Trade Practices Act (1974) - ss 53(c), 53(bb), 64(2A), 84.

HEARING

SYDNEY #DATE 11:5:1989

Counsel and Solicitors for Mr P Hastings instructed by
the prosecution the Director of Public

Prosecutions.

Counsel and Solicitors for Mr A Sullivan instructed b
the defendant Colin W Love & Co.

ORDER

The defendant is convicted of contraventions of sections 53(bb) 53(c) and 64(2A) of the Trade Practices Act 1974 as alleged in informations filed in this Court on 12 February 1988 and 14 July 1988 listed in paragraph 2 hereof.

Order that the defendant pay to the Registrar of this Court

(i) Five thousand dollars in each of charges G 195 and G 1091 of 1988.

(ii) Two thousand dollars in each of charges G 163, 165-168, 172, 174, 179-184, 186-188, 192-194, 196-204, 1085, 1089 and 1092 of 1988.

Order that the defendant is to pay the costs of the prosecution.

Note: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

JUDGE1

In February and July 1988, Gary Scott Stevenson (the defendant) was charged by the Trade Practices Commission (the Commission) with fortynine offences under sections 53(bb), 53(c) and 64(2A) of the Trade Practices Act 1974 (the Act). He has pleaded guilty to 31 of these charges and the prosecution has indicated that it will offer no evidence on the remaining 18 charges. The maximum fine for each of these charges is prescribed by section 79 of the Act as $20,000.

1. Paragraphs (bb) and (c) of s 53 provide:-
   

53. 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 -

. . . . .

(bb) falsely represent that a particular person has agreed to acquire goods or services;

(c) represent that goods or services have sponsorship, approval, performance

characteristics, accessories, uses or

benefits they do not have.

1. Section 64(2A) of the Act provides:
   

A corporation shall not, in trade or commerce, assert a right to payment from a person for unsolicited services unless the corporation has reasonable cause to believe that there is a right to payment.

1. The charges to which the defendant has pleaded guilty include offences under each of these three provisions.

2. At relevant times the defendant conducted a publishing business, part of which involved selling advertising space in magazines which he…