O'Dea, John Vernon v Casnot Pty Ltd

[1980] FCA 197

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IN THE	FEDERAL	COURr	OP ;,r:!_sr FAL~I}_	)
) w.A. Na.c~ cf 19eo

WEsrERN AU5rRALIA DI5rRlC'':' REGISrP.Y ) W.A. llo.G9 o[ 19fJO

) W.A. ~o.Gl4 of 1980

GENERAL DIVISION )

BEl' WEEN:  JOUN VEPJWN O 'DEA

Prosecutor

/\ND:  CASNOl' PI' Y Ll11IT BO

Defendant

REASONS FOR JUDGMENr

23 December 1980 KEELY J.

Three informations were laid by ,•ol-in v,,ri.,,n O''.lE'a (the

prosecutor) on 12 February 1980 against Casnol Pty Linited (che

defendant). Each information char.-.ed a contravention of

s.59(2) of the Trade Practices Act ]974 (the Act) in that the

defendant invited "by advertisement in 'Tt1e WPst Australian'

matter W.A. No. G9 of 1980 ::ind bco-·,,':'n 1:· ;:.rd 23 March 1979 1,1

newspaper	and	otherwise"	certaln	persons	"to	apply	to
participate	in	a business	activity	requlrinq	the	investment	ot

moneys ••• and the performance •. o[ work associated with the

investment	and	did	with	rc'lpect	to	the	l;rofitability	of	lhP
business	activity	make	a	state,nvnt	that	wc,s	misleading	111	.1

material particular". The contraventions were alleg~d to hfve

been committed at Perth between 17 ;;nd l(, F,:,bruary 1979 jn

matter W.A. No. G5 of 1980, between 3 an~ 7 Marcil 1S 79 in

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2.

matter	w.A. No. Gl4 of 19eo.
The informations were called on before the Court on

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several dates and on 27 July 1980 !Ir Lee o( counsel, instructed

by Messrs Stables & Co., announced that the defendant pleaded

guilty to each of the three charges - pleas confirmed at the

commencement of the hearing as to penalt1es. The matters were

adjourned to enable both the prosecutor r1nd the defendant to

prepare and file such affidavit evidence as each considered

necessary to assist the Court to determine the appropriate fine

(0.49 r.5(1) of Federal Court Rules). On 25 September 1980 the

matters were fixed for hearing "in the week commencing Tuesday,

14 October 1980".

On 14 October 1980 Mr s. G. Scott, a member of Messrs

Stables & Co., the firm of solicitors which had represented the

defendant	in respect	of these	matters	on a number	of earlier
occasions	in the Court,	appeared	on behalf	of the defendant	and

gave notice that it was his client's wish that it should not be

further represented by legal practitioners after that morning.

On the following day Mr D.R. Heycock, one of the two directors

of the defendant, sought and was granted leave to represent the

defendant. Mr Heycock in evide11ce said tha~ he was the

,.

"overall manager" of the business. By consent the three

matters were heard together.

On 26 September 1980 Norman Richard Jarrett, who had

been general manager of t'.1e defendant from the end of February

1979 until June 1979 but was no longer an employee of the

defendant, swore an affidavit which was fil~d by the solicitors

for the defendant. It was said both by Mr Scott and by Mr

Heycock that some difficulty had been encountered in arranging

for Mr Jarrett to attend for cross-examination. Mr Scott had

previously acknowledged on behalf of the defendant that bfc had

received notice from the prosecutor given 6 October 1960 that

it required the attendance of Mr Jarrett for cross-examination.

Mr Heycock	sought	leave	under	0.14	r.9 (3),	as	applied	by 0.49
r.5(2)	to	these	proceedings,	to	use	Mr	Jarrett's	affidavit

notwithstanding his failure to attend for cross-examination.

The application for leave to use the affidavit was opposed by

Mr Kirby, on behalf of the prosecutor, who said that facts

deposed to in Mr Jarrett's affidavit had been checked and were

·~	in	dispute	and	that	he	"utterly	rejected	the	claims"	made	in
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the affidavit. No subpoena had been issued at the instance of

the defendant for service upon Mr Jarrett. The Court refused

to grant the defendant's application for leave to use the

..	affidavit	without	Mr	Jarrett	attending	for	cross-examination	as
required.

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Mr Heycock said that further enquities would be made and

it might be possible for Mr Jarrett to give evidence on one or

other of the next two sitting days. He was informed that it

would be open to him to follow that course and also, if

unsuccessful,	to	apply	for	an	adjournment	to	enc1hlc,	i~r
Jarrett's	cross-examinati0n	to	take	place	Hl	Melbourne	at	a
date	to	be	arranged.	However,	Mr Heyco.::k	later	informed	the

Court that he would not be seeking any adjournment to enable Mr

Jarrett to attend for cross-examination as required.

The Court drew the attention of the parties to the fact

that the several affidavits of John Vernon O'Dea, filed on

behalf of the prosecutor, contained certain material which was

hearsay.	Mr Heycock	initially	stated	that	he	did	not	think	it
likely	that	there	would	be any	objection	to	that	material	but,

after further considering his position at the suggestion of the

Court, later stated that he had obtained legal advice and

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I	objected	to	hearsay	evidence.	When that	objection	was upheld
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I	the	prosecutor	applied	for	leave	to	call	further	witnesses	with
"

a view to proving the matters which were set out in those

affidavits on a hear say basis. Mr Heycock expressed some

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concern at the delay likely to result if that application were

1	I	granted	and	suggested	that	"perhaps	it	would	be	more	logical
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for us to withdraw the objection and allow the affidavits,..

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The Court suggested that Mr Heycock should not withdraw the

objection without obtaining legal advice .

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The following letter, date,d 29 Cctober 1980, was

received from Messrs Stables & Co.:

"The Associate

Mr Justice	Keely
Federal	Court

Lombard House

251 Adelaide Terrace

PERJ'H W.A. 6000

Dear Sir,

,

re:  Casnot Pty. Ltd. - Prosecutions

We are the Solicitors for the Defendant Company

on the record in these proceedings and appeared

for it on a number of occasions the last one

being 14th October 1980 when Mr Scott appeared

for the Company in all three matters.

Although Mr Scott informed the Court on that

occasion the Defendant Company had dee ided that

it did 'not wish to be represented past this

morning' and Mr Scott did not appear in Court for

the Defendant Company on the 15th, 16th and 17th

October 1980 we did not make any 'formal

withdrawal' from the proceedings.

We now have instructions from the Defendant

Company to inform the Court that it does not wish to challenge any of the facts set out in those

portions	of	John	Vernon	O'Dea's	Affidavits	which
are	hearsay	and	it	formally	withdraws	the

objection to such hearsay evidence made by Mr

Heycock on behalf	of the Defendant	Company on the
15th	October	1980.

Yours faithfully,

sr ABLES & CO."

In the light of the defendant's decision not "to challenge any

of the facts set out in O'Dea' c; affidavit which are

"

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! hearsay" and its withdrawal of its obJection, the "hearsay"

material was accepted as matter which could be taken into

account by the Court. Messrs Stables & Co. when acting for the

defendant, had told the prosecutor that the defendant did not

require Mr O'Dea to attend for cross-examination. At the

hearing Mr Heycock did not seek to cross-examine Mr O'Dea.

The parties were notified that the hearing woulcJ r8Sl1J1e

in Melburne on 19 November 1980. Mr Heycock later informed the

Court that he would not be attending the resumed hearing but he

sought and was granted leave to submit a wr1tten final address.

Further, the transcript of Mi: Kirby's final address and his

written supplementary submission were forwarded to Mr Heycock

so as to enable	the defendant	to make a written	"final	address
in reply".

The written "final address in reply" by the defendant

contained a number of assertions as to factual matters which

had not previously been put to the Court. As the defendant had

already	had	ample	time	to	consider	what	factual	material	it
wished	to	place	before	the	Court	and	its	solicitors	had

prepared	and	filed	three	affidavits	on its	behalf	- I am not
prepared	to accept	the	assertions	in the	final	address	in reply

where they conflict with other evidence before the Court. They

were	made	after	the	final	address	for	the	prosecutor	and,	not
having	been	included	in	the	affidavit	or	the	oral	evidence	of

Mr Heycock, there has not been any opportunity for

cross-examination as to those matters.

The defendant filed c::n affidavit by Mr Heycock wnich

broadly described the operation of the defendant. He said that

the business to be carried on revolved around the sale of

franchises to franchisees who would carry on bu3iness in

seventeen geographical areas within the met~opolitan area. It

~as	originally	intended	that	the	defendant	wculd	act	in a joint
V=nture	with	a	company	named	Paignton	Investments	Pty	Ltd

(Paignton). However, the joint venture did not proceed and the

defendant commenced business on its own behalf in direct

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competition with Paignton. It was proposed that the

franchisees	would	purchase	a	franchise	for	a	particular	area
and	purchase	equipment	from	the	Joint	venture	and	chemicals

from time to time. The defendant was to conduct all of the

advertising for a levy payable by the franchisees and was to

obtain and distribute the work to the franchisees.

On the material before the Court I accept the following

facts:

J

In matter W.A. No. G.5 of 1980:

I

J ( 1) On 12 February 1979 one Raymond John Clyde read an

l	advertisement	in	"the	West	Australian"	newspaper.	It	read	as
follows:

"AAA CLEANING BUSINESS

FULL PRICE $7500

incl equipment

MErRO CLEANING BUSINESS using new system which

opens untapped market, work from home etc. all

contracts arranged, Company guaranteed income

finance on $2500 dep. Apply for appointment

3252455.

ACCENr SERVICES

159 Adelaide-tee. Perth"

(2) Mr Stanley Rickaby was given the authority by Mr Heycock

to negotiate franchise contracts on beh,,lf of the defendant.

He told Mr Clyde, during a discussion in, the office of the

defendant that "$9,000 is the figure. we will definitely

guarantee that income. It's a net business income figure. You

have to deduct your personal income tax liab1l1ty". Mr Rickaby

told him that he could have that guarantee in writing the

following day. He did not in fact receive a written guarantee.

(3) Mr Rickaby also told him that the nett profit figure of

$17,041 "can easily be attained".

(4) Mr Clyde paid the defendant a total of ~6,120 for the

franchise and machinery. This included an amount of $3,670 on

27 March 1979 for cleaning machinery which he did not receive

until June 1979.

In matter W.A. No. G.9 of 1980:

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(5) On or about 5 March 1979 one Betty Ebert, after seeing a

newspaper advertisement, spoke by telephone to Mr Heycock who

said that "on a forty hour week you could make ($) 300 to 400 a

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I week. That's about $17,000 per annu~". On 7 March 1979 at the

office of the defendant Mr Heycock told Mrs Ebert and her

husband that the "cleaning industry is untapped; there's plenty

of work begging to be done. We guarantee, you will be kept

fully occ~pied ... ".

(6)	On being	asked	"Do you find	the	work for	us?"	Mr Hcycock
said	"Yes.	We do all	the	advertising	and canvassing.	These	are

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being distributed" (handing a brochure to Mr and Mrs Ebert)

"This is covered by the 20% management levy. work will come

from the office." In his evidence Mr Heycock agreed that the

defendant was to get the work for the franchisees and that this

work was "guaranteed".

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(7) In March 1979 Mr Heycock introduced Desmond Stanley

Firman to Mrs Ebert as "the man to take over from me". Mr

Firmin said words to her to the following effect:

"There'll	be	great	opportunities	for	everyone	to
make	money.	You needn't	worry	about	work.	We'll

get it for you."

(8) Mrs Ebert paid to the defendant $3,450 for a franchise

area and $3,670 for cleaning machines and the nett income for

herself and her husband from the cleaning work between 16 Macch

1979 and 24 April 1979 was about $540.

In matter W.A. No. G.14 of 1980:

(9)	On 12 March 1979 Wayne Maxwell Tinworth	after	hearing	an
advertisement	on the radio,	went to the defendant's	office.	Mr

Firmin said on behalf of the defendant:

"We've looked into this. As you can see this is

your projected income for a forty hour week

(referring to the nett profit figure of $17,041).

The machines we have nobody else can get because

we've got the sole import licence for them.

There's the Von Schrader carpet deterger (sic)

and the They come from the States. Prochem curtain and upholstery cleaner.

Our Sydney branch has

a couple of guys working these machines and they

had bought franchises like these for the same

amount and they're worth something like $48,000

to $50,000 now."

(10) Mr Firmin also said:

,

"As soon as you sign the contract we'll put six

girls	into	your	area	to drum up business	.•••	We
get	you work to back	that	up.	If	you want	any

more	you	can	get	it	yurself.	The	net	income,
$17,000,	is	what	you'll	get	on	a 40	hour	week.

Any extra hours you want to work on your own,

canvassing	and	getting	work	is	your	own on the
top."

(11) On 13 March 1979 Mr Tinworth asked: "Would this system

work for a partnership as well as one guy?" and Mr Firmin said:

"Yes. Just as well if not better. There's no reason why you

shouldn't both get $17,000 each."

(12)	Mr Tinworth	and	Mr Anthony	J.	Sheed	on 23 March	1979
signed	an	agreement	which	Mr Firmin	also	signed.	On 28 March
1979 Mr Tinworth	paid	$3,450	to Mr Firmin	for	the	franchise	and

I about 20 March 1979 Messrs Tinworth and Sheed paid a deposit of

$1,000 to the defendant for machines.

(13) On 14 March 1979 Mr Firmin said "We'll put six girls

into your area canvassing and gettinq your work. Most of our

work is domestic."

Messrs Stables & Co. as solicitors, for the defendant

filed on its behalf an affidavit sworn by Mrs Collins, a former

employee of the defendant whose duties were to hire and train

girls	to	canvas	for	work	for	the	franchisees.	She was cross-
examined	at	some	length	and	her	responses	were	quite

unconvincing. In fairness to her it should be said that she

stated

"I

have

had

no

sleep

for

two

days.

I

have

to

go

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straight to work tonight. I work all night . . . . However, I

am not prepared to accept her evidence where it conflicts with

other evidence in the case and I reject her evidence that, had

they	"continued	to work	for	...	twelve	months	and	thereafter",
the	franchisees	would	have	earned	in	the	vicinity	of $17,000.

I also reject her evidence as to the "ever increasing volume of

work being obtained" and her opinion "that the business was

'snowballing'".

They also filed an affidavit sworn by Mr Heycock. It

was an apparently carefully worded statement which admitted

certain facts and endeavoured to excuse or give explanations 1n

respect of certain matters. It concluded as follows:

"22. At all times I firmly believed 111 the

abovement1oned concept of the business and the

potential and success of it and at no time were

the franchisees 1ntent1onally misled as to any

aspect of the business which had been devised

after a grPat deal of investigation and

cons1derction. 11

Under cross-examination Mr HPycock showed himself to be

a very resourceful witness who gave facile ~nswers 1n response

to many of the matters raised with him. However, on a number

of important aspects I reject his evidence as untrue

including the conclusion in paragraph 22 of his affidavit which

I have quoted.

One example of untrue evidence was that Mr Heycock' s

affidavit included the following statemePt:

"6. Paignton carried out a random survey of the

metropolitan	area	to	ascertain	the	extent	to
which	the	business	would	be	feasib:e.	A
questionnaire	was	prepared	for	this	purpose	and
Paignton	arranged	for	a	number	of	female

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employees to 'doorknock' on domestic premises and

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" I the results of that canvas indicated that in

excess	of 65% of the persons	questioned	indicated
affirmatively	that	they would be prepared	to have

their carpets, upholstery and cPrtains cleaned in

the manner specified. I understood there to have

been 100 people	in a various	cross	section	of the
metropolitan	area	who	were	questioned.

Unfortunately, the Director of Pa1gnton has since

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I died and I have not been able to ascertain the

I whereabo•tts of the results of the survey or the

documentation utilised therein."

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'	The	terms	of	the	questionnaire	were	not	set	out	in	the
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affidavit.

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When the quest1onna1re was examined during the hearing

it was obvious that the second senlencc in the passage which I

have quoted from Mr HeycocK's aff1~av1t wa$ quite untrue on two

i~portant ~atters. First, the persons questioned were not even

asked whether and therefore could not have "indicated

affirmatively that" "they would be prepared to have their

curtains	cleaned	in the	manner	specified".	Nor was any pr ice
"specified"	as being	applicable	- although	a question	was asked

as to what would be "a reasonable cost per average window" out

of a range of prices. They were only asked whether they would

"consider" a service (without a specified price) for cleaning

curtains "efficiently whilst still hanging and guaranteed

against shrinkage". Secondly, the persons questioned were not

asked any question at all as to whether they would be prepared

to have their carpets or their upholstery "cleaned in the

manner	specified".	Again,	they	could	not	have	"indicated
affirmatively	that"	they	would	do	so.	Further,	the

questionnaire did not specify any manner of cleaning the

carpets and upholstery. Questioned as to the first matter, Mr

Heycock said that his "affidavit is a little bit misleading in

that sense" and as to the second said that "would be a misnomer

too, ••• so I guess that is a bit misleading". No explanation

as to how these mis-statements came to be made was offered by

Mr Heycock	when,	at the	completion	of his	cross-examination	on
the	following	day,	he was asked	whether	he wished	to explain

any answers given in cross-examination, 1.e. in effect to

"re-examine" himself. He took advantage of that opportunity in

relation to some matters but not as to these two matters.

I am qui tt> unable to ~rcept Mi: H,c,::_,rock' s attitude that

these matters may be disposed of simply by describing the

statements in his affidavit as "a misnomer" or "a little bit

misleading". Having regard to his demeanour and his evidence

generally, I have concluded that it was a deliberate attempt by

him to mislead the Court as to the facts on a matter of

considerable importance going directly to the likely

"profitability" of the "business activity" (s.59 (2)). Mr

Heycock's attempt to mislead is not relevant to the amount of

the fines to be imposed upon the defendant in these

proceedings, but it is not irrelevant in considering whether to

believe other parts of his evidence.

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The survey itself was prepared by Paignton but Mr

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i Heycock gave evidence that he saw it before it was used and

l	thought	it	was	"adequate"	and	"a	fair	sampling	and	a	fair
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indication of the (likely) success of the business". Under

cross-examination on this Mr Heycock was evasive - as on other

matters - and he "adjusted" earlier answers as the line of

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questioning progressed, e.g. he had said earlier that Mr Terry

l I of Paignton showed him the questionnaire and said "This is what

we are going to do". Later he said "Refreshing my memory, I

seem to remember that people were out using the form" already.

Mr Heycock was determined not to admit that he or the defendant

had been irresponsible or reckless in any aspect. This led him

to maintain	that	the questionnaire	covered	"to my satisfaction"
the question	of whether	the persons	questioned	would have their

carpets and upholstery cleaned although his attention l:2cl

already been drawn to the fact that the survey did not even

enquire as to whether they would be prepared to have their

carpets	and upholstery	cleaned	and he had nlready	described	his
own affidavit	on that	subJect	as being	"n bit	misleading".

The defendant by pleading guilty to the informations has

admitted the essential ingredients of the offence and no more.

In considering the question of penalty ln these matters I have

accepted what was said as to the meaning of s.59 of the Act by

Franki J. in Thompson v. Mastertouch T .v. service (1977) ATPR

40-027 at p.17,366:

"I consider that a prediction or statement as to

the future is not false within the words of that

section if it proves to be incorrect unless it is

a false statement as to an existing or past fact

which may include the state of mind of the person

making the statement or of a person whose state

of mind may be imputed to the per son making the

statement.	See	also	the	const	·uction	placed	on
the	words	'wilfully	false	promise'	in	R.	v.

Harrison (1957) V.R. 117 at 120-121.

Therefore, in order to establish that the words

'should earn $400 per week minimum' constituted a

false st~tement concerning the profitability of a

business activity it 1s necessary for the

informant	to	prove	that	the	defendant	did	not
believe	that	the	forecast	or	prediction	would	be

satisfied	or	was	recklessly	indifferent
concerning	the	forecast	or	prediction."

On all the evidence I am satisfied beyond reasonable

doubt that in its forecasts or predictions the defendant was

"recklessly indifferent":

{a) in guarantee!ng a nett btJsiness income of $9,000 p,:,r

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annum;

(b) in stating that $17,041 was the ant191pated nett profit

figure	for.	the	first	year	for	a franchisee	working	a 40 hour
week;

(c) in stating that the defendant would supply enough work

to enable the franchisees to earn $17,041 as a nett profit

figure;

The defendant is convicted on each of the three charges,

By reason of the provisions of s. 79 (1) (b) of the Act each

offence 1s punishable t,y a fine not exceeding $50,000. It

would be wrong to treat them as constituting one offence - see

Smithers J. 1n Hartnell v. Sharp Corporation (1975) A.T .P.R.

40-003 at 17,112. On the evidence the defendant, as part of a

deliberate course of conduct over a period of time made

misleading statements both in the newsoapers and over the

radio. It also made them in discussions with each of the

franchisees referred to in the three informations - statements

made at different times by different persons on behalf of the

company - Messrs Heycock, Rickaby and Firmin.

However, s.79(2) provides:

"(2) Where a person is convicted of two or more

offences constituted by, or relating to,

contraventions	of	the	carrc	pr<'"1<::ion	of	Part	V,
being	contraventions	that	appe~r	to	the	Court	to

have been of the same nature or a substantially

similar nature and to have occurred at or about

the same time ••. the Court shall not, in respect

of the first-mentioned offences, impose on the

person fines that, in the aggregate, exceed the

maximum fine that would be applicable in respect

of one offence by that person against that

provision."

The three convictions here are for offences constituted by

contraventions of the same provision of Part V of the Act and

they are contraventions that appear to the Court to have been

of the same nature. I also consider (although no argument was

i advanced by either side on this aspect) that they have occurred

l	•	at	"about	the	same	time"	and	accordingly	s.	79 ( 2)	applies.
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However, I consider that in each of the later offences the

conduct of the defendant was more blameworthy than the previous

offence • I have reached that conclusion because, with the

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I	passage	of	time,	the	defendant's	knowledge	grew	as	to	the
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impossibility of it providing sufficient work for the

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franchisees' earnings to reach the guaranteed $9,000 per annum

or the anticipated nett profit of $17,041 per annum.

As to the amount of the fines, I agree with what was

'1 said by Franki J. in Temperley v. Playground Supplies Pty. Ltd.

I	(1980)	A.T.P.R.	40-164	at	p.42,296:
"
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''The Full Court of this Court in Pye Industries

Sales	Pty.	Limited	v.	rPC	(1979)	A'l'PR	40-124	at
p.	18,326,	when	fixing	a	penalty	under	Pt.4	of

the Act, cited the following quotation from the

judg!'lent i.n TPC v. Stihl Chain Saws (Aust.) Pty.

Ltct. (1978) .",l'PR 40-091:

'The penalty should constitute a real

punishment proportionate to the

deliberation with which the defendant

contravened the provisions of the Act.

It should be sufficiently high to have a

deterrent quality and it should be kept

•	in	mind	that	the	Act	operates	in	a
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I commercial environment where deterrence

l	of	those	minded	to	contravene	its
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provisions is not likely t0 be achieved

by penalties which are not realistic.

It should reflect the will uf Parliament

that the commercial standards laid down

in the Act must be observed,	but not be
so high as to be oppressive."

I consider that this observation is equally ,

relevant to the question of fixing a fine for an

offence under Pt.5 of the Act."

The contraventions are serious. The Parliament has

clearly laid down, in respect of the area of ,ctivity under

consideration, that a corporation shall not make, with

"

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respect to the profitability •.• or any other material aspect

of (the) business activity, a statement that is ... misleading

in a material particular". The respondent and others must be

deterred from making such misleading statements. It is plain

that the franchisees were influenced by those misleading

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statements in considering whether to enter into contracts with

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l	the	defendant	and were	led	to	invest	both	their	time	and their
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'	money	in	the	defendant's	business	activity.	The	dmounts	of
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money paid to the defendant by th·~m were $6,120, $7,120 and

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! $4,450 in matters No. G. 5, G. 9 and G.14 respectively.

Parliament	plainly	intends	that	the	public	should	be	protected
and	corporations	engaging	in	trade	or	commerce	must	realiz'"

that standards of commercial proprjcty laid down by Parliamen::

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19.

must be observed.

It was not suggested that the defendant had any record

,

of a prior conviction. Having regard to all the circumstances,

including those matters put by Mr lleycock which I have not

rejected as being contrary to the evidence, and having regard

to the importance of deterring similar contraventions of the

Act, I have decided that the following fines are appropriate:

In matter	W.A. No. G5 of 1980	$6,000
In matter	W.A. No. G9 of 1980	$6,500
In matter	W.A. No. Gl4 of 1980	$7,500

In	determining	the	amounts	of	the	fines	I have	taken	into
account	that	there	are	three	fines.	I consider	$20,000	to	be

the appropriate total of the fines to be imposed upon the

defendant in respect of the three contraventions. No

application	was made for an order	for costs	but this	aspect	was
mentioned	before	Fisher	J.	at an earlier	stage.

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