Pryor v Given

[1980] FCA 90

Re: EDWARD ALFRED PRYOR
And: BRIAN ALEXANDER GIVEN
Nos. G25 & 26 of 1979
Trade Practices
30 ALR 189

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
Northrop J.
Lockhart J.
Sheppard J.

CATCHWORDS

Trade Practices - consumer protection - television advertisement for sale of land - appellant being director of company which placed advertisement with advertising agency - appellant charged pursuant to para. 53A (1) (b) - whether information bad for duplicity - whether advertisement a "statement" within the meaning of the section - whether "statement" misleading

HEARING

SYDNEY

#DATE 13:6:1980

ORDER

The appeal be dismissed with costs.

JUDGE1

The court is of opinion that the appeal be dismissed and I would ask Mr. Justice Lockhart to express the reasons of the Court.

JUDGE2

These are two appeals from a single judge of this court against convictions of Edward Alfred Pryor, the appellant, of two offences. The first offence is that on or about 15 July 1977 the appellant was knowingly concerned in the commission of an offence, namely that a company, Geculo Pty. Limited, to whom we shall refer as "Geculo", being a corporation did in contravention of paragraph 53A (1) (b) of the Trade Practices Act 1974, in trade or commerce in or in connection with the promotion of the sale of an interest in land at Killingworth make a misleading statement by means of a television advertisement transmitted on NBN Channel 3 at Newcastle relating to land referred to as "Killingworth Foothills" concerning the use to which the said land was capable of being put or might lawfully be put. The second offence was the same as the first, save that it occurred on or about 16 July 1977.

The learned trial judge fined the appellant $5,000.00 in respect of the first offence and $100.00 in respect of the second and ordered that both fines be paid to the registrar by 5.00 p.m. on 4 June 1980. In respect of both offences the appellant was ordered to pay such of the respondent's cost as did not exceed $2,500.00. The two appeals were heard together by consent.

On or about 15 July 1977 and on or about 16 July 1977, NBN Channel 3 at Newcastle transmitted a television advertisement relating to "Killingworth Foothills". The audio part of the advertisement was as follows: -

"The greatest land buy in a decade is 'Killingworth Foothills', only 30 minutes from town. Between Mount Sugarloaf and Lake Macquarie, 150 quarter acre lots at a sensational price. From $4,600.00. Incredible value. No deposit, only $40.00 a week to approved clients. Come and see it this weekend. A wonderful place to live. Turn left at Edgeworth, continue from Barnsley to the estate. Only minutes away. 'Killingworth Foothills', all this weekend."

The visual part included the words, "Watch it grow" and contained various pictures of parts of the land including more than one showing several houses.

The advertising was arranged by Geculo and an advertising agency, Glen R. Burrows. The appellant is the managing director of Geculo and he made the relevant arrangements on behalf of Geculo.

The relevant facts are fully stated in the reasons for judgment of the learned trial judge and need not be repeated. It was not suggested that his Honour's statement of facts was incorrect in any particular.

It was submitted on behalf of the appellant that the informations were bad for duplicity, in that each of them alleged two offences, one, a misleading statement concerning the use to which the land was capable of being put, and the other, a misleading statement concerning the use to which the land might lawfully be put.

Paragraph 53A (1) (b) provides, so far as is relevant: -

"A corporation shall not in trade or commerce in connection with the sale . . of an interest in land or in connection with the promotion by any means of the sale . . of an interest in land . . make a . . . misleading statement concerning . . . the use to which the land is capable of being put or may lawfully be put . . ."

In our opinion, each of the informations alleges only one offence, namely that Geculo made a misleading statement relating to the use of the land. The character or nature of the statement is then described as one concerning the use to which the land was capable of being put or might lawfully be put; but this is only one statement. The use of the word "or" does not establish that it is intended to create two offences - see ex parte Polley; Re McLennan (1947) 47 S.R. (N.S.W.) 391 and Montgomery v. Stewart (1967) 116 C.L.R. 220. This argument fails.

A second attack was made on the validity of the informations. It was submitted that the use of the words "was" and "might" to describe the offence was impermissible as the section speaks of "is" and "may". There is no substance in this point. The words "was and "might" are simply the past tense of the words "is" and "may" respectively and it is the appropriate tense to use in an information which necessarily assumes that the offence has been committed. This argument also fails.

The next submission on behalf of the appellant was that Geculo made no statement within the meaning of that word in paragraph 53A (1) (b). The learned Trial Judge dealt at some length with the meaning of the word "statement". We agree generally with what he said. In our opinion there was a statement made concerning the use to which the land was capable of being put or might lawfully be put. That statement was that houses could be built on the land being advertised for sale.

That follows from the advertisement as a whole and, in particular, from the words in the audio part of the advertisement, "150 quarter acre lots at a sensational price. From $4,600.00 . . . A wonderful place to live" and the visual part including the words, "Watch it grow" and showing several houses.

On the assumption that the telecast of the advertisement was a statement, any suggestion that it was not made by Geculo was expressly disavowed on behalf of the appellant.

The next submission on behalf of the appellant was that the statement was not misleading. The relevant land the subject of the advertisement was subject to the Northumberland County District Planning Scheme Ordinance proclaimed on 7 December 1960. It is not necessary to described the provisions of the Ordinance. They are referred to by the learned Trial Judge. It is sufficient to say that at the times the advertisement was telecast houses could not be built on the relevant land without the special approval of the responsible authority under Clause 27 of the Ordinance and by satisfying its onerous conditions.

In our opinion the advertisement, which was shown to this Court, could only lead persons who saw it to conclude that the land which was being advertised was land upon which houses could be built. The statement that the area was "A wonderful place to live" by itself is probably mere puffing, but its significance, for the purpose of the present appeal, is that it is part of the advertisement which, taken as a whole, inevitably conveys the impression that a house can be built on each of the one quarter acre blocks of land. Plainly, the advertisement was misleading.

Some attempt was made on behalf of the appellant to argue that a defence could be established under s. 85, but this attempt was ultimately abandoned. At one stage during the argument before us, application was made on behalf of the appellant to amend the notices of appeal to challenge the amount of the fines, but this application was later withdrawn and no submissions were made on this matter.

Nothing was submitted to this Court to lead to a conclusion that the learned Trial Judge fell into error in any respect. In the result, we would dismiss the appeals with costs.