Quinn, Robert George v Given, Brian Alexander

[1980] FCA 27

Re: ROBERT GEORGE QUINN
And: BRIAN ALEXANDER GIVEN (1980) 41 FLR 416
No. G95 of 1978
Trade Practices - Procedure - Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Smithers(1), Northrop(1) and Fisher(1) JJ.

CATCHWORDS

Trade Practices - false or misleading statements - false representations - whether representations made deliberately or recklessly.

Procedure - appeal against severity of penalty - principles to be applied - facts in mitigation to be proved or agreed - erroneous view that statement by counsel of facts in mitigation was not an agreed statement.

Trade Practices Act 1974 s.53

Federal Court of Australia Act 1976 s.24(1)

Trade Practices - Offences - Appeal against quantum of fines - Principles upon which appellate court will vary sentence - Trade Practices Act 1974 (Cth.), ss. 53, 79 - Federal Court of Australia Act 1976 (Cth.), s. 24.

Appeal - Trade practices - Offences - Appeal against quantum of fines - Principles upon which appellate court will vary sentence - Trade Practices Act 1974 (Cth.), ss. 53, 79 - Federal Court of Australia Act 1976 (Cth.), s. 24.

HEADNOTE

A company falsely represented that fire extinguishers manufactured by it complied with certain Australian standards; that caravan owners were required by law to have a fire extinguisher fitted adjacent to each exit of their caravan; and that its fire extinguishers were approved by the Yachting Association of Australia.

The company pleaded guilty to charges under s. 53 of the Trade Practices Act 1974 (Cth.) and its managing director, the appellant, pleaded guilty to having been knowingly concerned in the commission of those offences by the company.

Upon an appeal against the fines imposed upon the appellant under s. 79,

Held: (1) An appellate court will vary a fine imposed under s. 79 of the Trade Practices Act only if it is shown that the sentencing judge erred in acting on a wrong principle, or in misunderstanding or wrongly assessing some salient feature of the evidence.

Kovac v. The Queen (1977), 15 ALR 637; Pye Industries Sales Pty. Ltd. v. Trade Practices Commission (1979), TPRS. 305.54; R. v. Tait (1979), 24 ALR 473, applied.

(2) Due to a misunderstanding as to the status of the evidence of how the contraventions came to occur, and what steps the appellant had taken to rectify the situation, the judge had failed to take into account evidence which should have been considered in determining the penalties.

(3) The appeal would be allowed and the penalties reduced.

HEARING

Melbourne, 1979, October 16; 1980, March 17. #DATE 17:3:1980

APPEAL.

The appellant appealed against the fines imposed on him pursuant to s. 79 of the Trade Practices Act.

J. R. T. Wood, for the appellant.

B. A. Beaumont Q.C. and J.C. Hartigan, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Geoffrey See, Gillis & Co.

Solicitor for the respondent: Alan R. Neaves (Commonwealth Crown Solicitor).

R. R. BOADEN

ORDER

1. The appeal be allowed.

2. Those orders entered on 29 May 1979 in actions No. G12, G.16, G17, G19, G20, G22 and G23 of 1978 be varied in each case by the substitution of the following fines to be paid to the Commonwealth:

In respect to G12 of 1978 - $1,000.00
In respect to G16 of 1978 - $3,000.00
In respect to G17 of 1978 - $1,000.00
In respect to G19 of 1978 - $ 500.00
In respect to G20 of 1978 - $ 100.00
In respect to G22 of 1978 - $ 500.00
In respect to G23 of 1978 - $ 100.00

3. The respondent pay the appellant's costs of the appeal, limited to the costs of and incidental to the day of hearing.

Order accordingly.

JUDGE1

Robert George Quinn ("the appellant") appeals against eight fines imposed on him in respect of a number of breaches of s.53 of the Trade Practices Act 1974 ("the Act"). The reasons for judgment and the orders of the Court described these fines as "pecuniary penalties" but a perusal of the transcript indicates that they were without doubt fines imposed pursuant to s.79 of the Act.

Snuffa Pty. Limited, a company with which the appellant was associated, also appealed against fines imposed simultaneously on it in respect of three admitted offences. However, it did not proceed with its appeal when it was called on for hearing on 15 June 1979, the reason doubtless being that it was, we were told, placed in liquidation after the institution of the appeal.

The appellant pleaded guilty to eight charges of contravention of the Act. In respect of three of these charges his offence was that he was knowingly concerned in the commission by Snuffa Pty. Limited of each of its three offences. At the times relevant to these three charges he was the managing director of that company.

Between 1968 and 1971 the appellant was the managing director of another company which was marketing Sargom fire extinguishers. In 1971 he left that company and set up his own business of manufacturing and marketing fire extinguishers. At this time he traded under the unregistered business name of "Snuffa Pty. Limited". There was not at that time a company incorporated under that name. It was not in dispute that he was engaged in trade or commerce among the States.

A limited company was incorporated by the appellant on 15 October 1976 under the name Snuffa Pty. Limited. This company acquired the business of the appellant who became its managing director and managed and controlled its affairs.

Prior to the incorporation of the company the appellant in the course of his business caused to be made certain representations, as a result of which five informations were laid against him pursuant to s.79 of the Act. Subsequent to its incorporation Snuffa Pty. Limited caused to be made further representations, in respect of which representations three informations were laid against it pursuant to that section. A further three informations were laid against the appellant alleging that he was knowingly concerned in the commission of the offences the subject of the charges against the company. A number of additional charges were laid against the appellant, and Snuffa Pty. Limited, all of which were withdrawn.

The informations came on for hearing on 18 August 1978. Snuffa Pty. Limited pleaded guilty to the offences charged against it. Those offences were as follows: -

No. G7 of 1978 - that on or about 26 September 1977 at Sydney in the State of New South Wales Snuffa Pty. Limited was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that it did, in contravention of Section 53(a) of the said Act in trade or commerce in connexion with the promotion by advertising of the supply of goods described as 'Snuffa' fire extinguishers falsely represent that the said goods were of a particular standard, quality or grade in that the said Snuffa Pty. Limited on that day represented the said goods complied in performance with A.S.A.163.

No. G9 of 1978 - that on or about 26 September 1977 at Sydney in the State of New South Wales Snuffa Pty. Limited was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that it did, in contravention of Section 53(f) of the said Act in trade or commerce in connexion with the promotion by advertising of the supply of goods described as 'Snuffa' fire extinguishers make a false statement concerning the need for goods in that the said Snuffa Pty. Limited on that day, in an advertisement published by it, did state in respect of the said goods;
"You must have an extinguisher fitted adjacent to each exit on your van. At around $12.50 (Retail) we suggest a 'Snuffa' 907G BCF Type is about the best value around."
No. G11 of 1978 - that on or about 12 January 1978 at Sydney in the State of New South Wales Snuffa Pty. Limited was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that it did in contravention of Section 53(c) of the said Act in trade or commerce in connexion with the promotion by advertising of the supply of goods described as 'Snuffa' fire extinguishers represent that the said goods had performance characteristics they did not have in that on that day in an article reprinted from the publication 'The Australian Boating Industry' attached to an advertisement published by the said Snuffa Pty. Limited it was stated in respect of the said goods;
"The maker claims that the unit meets the efficiency tests carried out by the New South Wales Board of Fire Commissioners against Class 1, 2 and 3 fires - in section 1, 6, 3 of the Australian Standards Specification A.S.A. 163."

The appellant also pleaded guilty to the offences charged against him, which were as follows: -

No. G12 of 1978 - that on or about 26 September 1977 at Sydney in the State of New South Wales Snuffa Pty. Limited was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that it did, in contravention of Section 53(a) of the said Act in trade or commerce in connexion with the promotion by advertising of the supply of goods described as 'Snuffa' fire extinguishers falsely represent that the said goods were of a particular standard, quality or grade in that the said Snuffa Pty. Limited on that day represented the said goods complied in performance with A.S.A.163 and Robert George Quinn was knowingly concerned in the commission of the said offence.

No. G14 of 1978 - that on or about 26 September 1977 at Sydney in the State of New South Wales Snuffa Pty. Limited was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that it did, in contravention of Section 53(f) of the said Act in trade or commerce in connexion with the promotion by advertising of the supply of goods described as 'Snuffa' fire extinguishers make a false statement concerning the need for goods in that the said Snuffa Pty. Limited in an advertisement published by it, did state in respect of the said goods;
"You must have an extinguisher fitted adjacent to each exit on your Van. At around $12.50 (Retail) we suggest a 'Snuffa' 907G BCF type is about the best value around."
and Robert George Quinn was knowingly concerned in the commission of the said offence.

No. G16 of 1978 - that on or about 12 January 1978 at Sydney in the State of New South Wales Snuffa Pty. Limited was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that it did, in contravention of Section 53(c) of the said Act in trade or commerce in connexion with the promotion by advertising of the supply of goods described as 'Snuffa' fire extinguishers represent that the said goods had performance characteristics they did not have in that in an article attached to an advertisement published by the said Snuffa Pty. Limited it was stated in respect of the said goods;
"The maker claims that the unit meets the efficiency tests carried out by the New South Wales Board of Fire Commissioners against Class 1, 2 and 3 fires - in section 1, 6, 3 of the Australian Standards Specification A.S.A. 163."
and Robert George Quinn was knowingly concerned in the commission of the said offence.

No. G17 of 1978 - that on or about 17 February 1977 in the State of Victoria Robert George Quinn was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that he did, in contravention of Section 53(a) of the said Act in trade or commerce in connexion with the supply of goods described as a 'Snuffa' fire extinguisher falsely represent that the said goods were of a particular standard, quality or grade in that the said Robert George Quinn on that day did state in respect of the said goods; "This unit complies in performance with A.S.A. 163."

No. G19 of 1978 - that on or about 17 February 1977 in the State of Western Australia Robert George Quinn was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that he did, in contravention of Section 53(a) of the said Act in trade or commerce in connexion with the promotion by advertising of the supply of goods described as 'Snuffa' fire extinguishers falsely represent that the said goods were of a particular standard, quality or grade in that the said Robert George Quinn on that day, did state in respect of the said goods; "one piece, seamless impact extruded aluminium container, the strength requirements of which comply with A.S.A. 163".

No. G20 of 1978 - that on or about 23 March 1977 in the State of Queensland Robert George Quinn was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that he did, in contravention of Section 53(a) of the said Act in trade or commerce in connexion with the supply of goods described as a 'Snuffa' fire extinguisher falsely represent that the said goods were of a particular standard, quality or grade in that the said Robert George Quinn did state in respect of the said goods, "This unit complies in performance with A.S.A. 163".

No. G22 of 1978 - that on or about 21 February 1977 in the State of Queensland Robert George Quinn was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that he did, in contravention of Section 53(c) of the said Act in trade or commerce in connexion with the supply of goods described as a 'Snuffa' fire extinguisher represent that the said goods had an approval they did not have in that the said Robert George Quinn on that day did state in respect of the said goods: "Approved by Yachting Association of Australia".

No. G23 of 1978 - that on or about 8 September 1977 in the State of Tasmania Robert George Quinn was guilty of an offence against Section 79 of the Trade Practices Act 1974 in that he did, in contravention of Section 53(a) of the said Act in trade or commerce in connexion with the supply of goods described as a 'Snuffa' fire extinguisher falsely represent that the said goods were of a particular standard, quality or grade in that the said Robert George Quinn on that day did state in respect of the said goods: "This unit complies in performance with A.S.A. 163".

The appellant and Snuffa Pty. Limited were convicted of each offence charged. Fines were imposed as follows, namely: -

In respect to G7 of 1978 the sum of $ 8,000

In respect to G9 of 1978 the sum of $ 2,000

In respect to G11 of 1978 the sum of $10,000

In respect to G14 of 1978 the sum of $ 400

In respect to G16 of 1978 the sum of $ 6,000

In respect to G12, G17, G20 and G23
of 1978 a penalty of $2,000 in each
case, a total of $ 8,000

In respect to G19 of 1978 the sum of $ 1,000

In respect to G22 of 1978 the sum of $ 1,000

The principles which should guide this court in dealing with appeals which lie generally pursuant to s.24(1) of the Federal Court of Australia Act 1976 are laid down in Kovac v R (1977) 15 A.L.R. 637 at pp.640 to 643. Such principles were applied in respect of an appeal against a pecuniary penalty imposed under s.76 of the Act; Pye Industries Sales Pty. Ltd. v Trade Practices Commission (1979) 2 A.T.P.R. 18311. A fortiori in our opinion, they would be applicable to an appeal against a fine imposed under s.79 of the Act.

Of particular relevance are three sentences set out in the reasons in the latter case (p.18,325) which sentences are extracted from R v Tait (1979) 24 A.L.R. 473 at p.476.
"An appellate Court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error."

Counsel for the appellant contended, inter alia, that the learned trial judge acted upon considerations based on evidence which was not before him. To some extent that may be so, but there was in our opinion no error of any substance in this respect. However a careful reading of the trial judge's reasons for imposing the fines and also of the transcript of the hearing before him satisfies us, somewhat paradoxically, that the trial judge did not have regard to considerations which ought to have affected the exercise of his discretion. If this be the case, the learned trial judge in the words of the above recited dicta was "in error in . . . misunderstanding or in wrongly assessing some salient feature of the evidence". In these circumstances this court would be justified in intervening.

In respect of all the admittedly false representations it was obviously relevant to the question of penalty for the trial judge to know how each of the contraventions came about, and how in particular the false statements came to be placed on the equipment or in the advertising material. Likewise it was relevant to know what steps, if any, the appellant took to rectify the position, i.e. to retrieve the extinguishers and the material after he became aware of the falsity of the statements. The learned trial judge acknowledged the relevance of these matters in his reasons, where he lamented the lack of agreed or proven facts on these topics. In particular, on at least two occasions, he adverted to the fact that in the absence of such evidence he could only conclude that the statement was "a deliberate falsehood or at least made with reckless indifference to its truth or falsity" or, on another occasion, that it was "made at least in reckless disregard of its truth or falsity". It is at least open to this court to conclude that his Honour was of opinion that there was no evidence before him on the question of whether the conduct of the appellant was deliberate or reckless or merely careless or slipshod. Likewise it would follow that there was no evidence as to the degree of the reckless or deliberate conduct of the appellant, if lack of evidence to the contrary compelled him so to label the appellant's behaviour.

The degree of wilfulness of the deception has been accepted by this court as an important consideration in fixing penalty (see per Smithers J. in Hartnell v Sharp Corporation of Australia Pty. Ltd. (1975) 5 A.L.R. 493). Thus the absence of evidence on the matter, if such be the case, was a significant factor in fixing the appropriate amount of a fine. Moreover as the learned trial judge very properly said in his reasons, statements from the bar table are no substitute for agreed or proved facts.

In these circumstances it is for us to consider carefully what facts relevant to the conduct of the appellant were properly before the trial judge at the hearing and whether he gave effective consideration to such facts. For these purposes it is necessary to go in the first instance to the transcript record of the hearing, which record forms part of the appeal book.

Shortly after the commencement of the hearing on 8 August 1978 a question arose as to the status of a document prepared by the prosecution and headed "statement of facts". Counsel for the appellant indicated that he could not accept as correct all of the statements in the document but that doubtless the matters therein could be said "from the bar table". The trial judge said, and in our view very properly said;
"Not in my court, Mr. Rogers. Any evidence, any facts that are relied upon by either side will be proven in the normal way unless they are agreed."

Subsequently certain passages in the statement were deleted and it appears that the statement was then accepted by counsel for the appellant, or at least that he withdrew his objection. Even though the document was not marked as an exhibit, the trial judge referred and relied on it in his reasons, stating that it was tendered with the consent of the then defendant and the defendant company. It is against the background of this exchange that subsequent happenings fall to be considered.

Upon the conclusion of the address of counsel for the prosecution, the court adjourned for approximately a quarter of an hour. Upon resumption of the hearing counsel for the appellant made, virtually at the opening of his address, the following statement:
"We are obliged to your Honour for giving us further time and we utilised that in coming to an agreement as to the statement of facts that I intend to put to your Honour in mitigation in general terms".

Counsel then addressed for half an hour, or thereabouts, and in so doing stated to the trial judge many facts which he submitted were relevant to explaining the appellant's conduct. Counsel for the prosecution did not at any time indicate that a particular fact was not agreed, nor did he make any comment in respect of his opponent's opening statement that an agreement had been reached in respect of the statement of facts which was about to be put before the trial judge. On one occasion only did he intervene and then to object to the tendering of both a report from the Department of Productivity, Instrument Services Laboratory dated 18 July 1977 and a document intituled "Australia Standard Z42". His objection was to the relevance of the two documents on the question of penalty. These documents however appear in the appeal book as exhibits 2 and 3 though again there is no reference in the transcript to their admission into evidence. On no occasion either during his opponent's address or in his own reply did counsel for the prosecution object or in any way draw attention to any fact stated on behalf of the appellant as not being an agreed fact or as having the status of a "mere statement from the bar table".

In all the circumstances the only conclusion an appellate court can draw is that all facts stated by counsel for the appellant in his address in mitigation were agreed facts. The learned trial judge however generally appears to have accorded to these facts only the status of "statements from the bar table". In so doing it would appear that he overlooked the statement of counsel for the appellant at the commencement of his address that they were agreed facts, and his opponent's implicit concurrence in that statement. In our opinion all facts stated in the address of counsel for the appellant must be taken as being facts the truth of which was agreed by the prosecution. In these circumstances they are all available and required to be taken into account by the trial judge in assessing the appropriate fines. The facts are agreed evidence to which he must have regard, though the weight or significance he will attach thereto is a matter for his decision. He cannot ignore these facts on the basis that they were not agreed or proved.

It follows that it is necessary to consider the facts put forward on behalf of the appellant in relation to each offence. Such consideration will determine whether there are matters relevant to the "degree of wilfulness" of the appellant and the steps which he took to retrieve the position when he became aware of the false statements.

The contraventions fall, for the purpose of considering these two topics, into three categories. First, the representation that the equipment complied with the S.A.A. standards in respect of performance and strength and with the efficiency tests of the N.S.W. Board of Fire Commissioners in relation in each instance to A.S.A. 163, which representations were either printed on the extinguishers or contained in advertising pamphlets. Second, the representations that there was a legal requirement that caravan owners must have an extinguisher fitted adjacent to each exit on their vans, which representation comprised an extract of an article and was contained in an advertising pamphlet. Finally, the representation to the effect that the equipment was "approved by the Yachting Association of Australia", which was printed on the fire extinguisher.

In respect of the first category the trial judge stated as follows:
"No evidence was called by the defendant, Quinn or the defendant company to explain how it came about that the false statement relating to compliance with the Standards Association of Australia (S.A.A.) standards was used to describe the article except that counsel for the defendant and the defendant company made reference to the test conducted in 1971 and stated from the bar table that some reliance was placed on the 1971 test. In the absence of evidence to the contrary I can only conclude that references to the Standards Association of Australia standards as being those with which the extinguisher complied was a deliberate falsehood or at least made with reckless indifference to its truth or falsity."

In his submissions counsel for the appellant put the following facts before the court and for obvious reasons I do not state them in full. Between the years 1968-1971 the appellant was managing director of an organisation which marketed a "Sargom" fire extinguisher. On 7 July 1971 a test was carried out at the Paddington Fire Station on this extinguisher, which test produced a satisfactory result. Upon leaving the "Sargom" organisation the appellant manufactured his own fire extinguisher, initially called "Star" but subsequently "Snuffa", which extinguisher was, at the outset at least, identical with the "Sargom" extinguisher. This was done because the appellant understood that the "Sargom" extinguisher had passed the New South Wales Fire Brigade test and therefore believed that his extinguisher (identical but for the label) would pass the same test. Subsequently, changes were made to the extinguisher by the appellant, which changes he understood to be improvements, namely the addition of a handle, a stainless steel mounting bracket and an aluminium container. Later in 1975 the appellant installed his own pressure filling equipment but continued to purchase "the mix from Pacific Chemicals". The latter organisation changed the composition of the mix but advised the appellant that the change would not impair the performance of the extinguisher. It was conceded that a test by the Board of Fire Commissioners of the "Snuffa" extinguisher in 1977 did not produce the satisfactory result produced by that of the "Sargom" in 1971, but it was stated as a fact that there was no scientific explanation why that occurred. In placing the representation on the extinguisher the appellant did not use a square black and white sticker such as used by the S.A.A. but a round yellow sticker. This was done, it was said, for the purpose of attempting to ensure that there would be no mistake by a member of the public in relation to the stickers.

In our opinion these agreed facts are relevant to the question whether there was wilful deception, and should have been taken into account by the trial judge when he concluded that the deception was deliberate or reckless. In failing to do so he fell into error.

It is to be observed that the offences referred to in the informations G17, G20 and G23 of 1978 all arose out of one single decision made by the appellant, namely the decision to use on his extinguishers the statement that the unit complied in performance with A.S.A. 163. That decision proceeded on the faith, inter alia, of advice from Pacific Chemicals that the change by Pacific Chemicals in the composition of its "mix" would not impair the performance of the extinguisher. It was that one decision which constituted the relevant fault of the appellant. Once that decision was made the fault necessarily manifested itself wherever the extinguisher was displayed for sale. The fact that there were three charges, namely those last mentioned, merely reflected that one fault albeit in three manifestations.

On the question of the steps which the appellant took to remedy the situation after he became aware of the falsehood, the trial judge said as follows:
"The defendant Quinn was first interviewed about the matters giving rise to the prosecutions in June 1976, a period in some instances long before the offences were committed. It is suggested that the widespread distribution of the extinguishers ranging from Brisbane to Hobart and Perth with the offending words still printed on them as late as 1977 and 1978 was attributable to the fact that the wholesalers would not co-operate and retrieve the extinguishers from the retailers so that the offending words could be obliterated.

I do not accept that explanation. There is no suggestion of correction by advertisement or any other publicity to inform consumers of the falsity of the statement relating to standards."

On this aspect in so far as it related to fire extinguishers, counsel for the appellant stated that the appellant attended a total of something like six hours of interviews with officers of the Trade Practices Commission and that the appellant was attempting to be helpful. After these conferences the appellant travelled around Australia and applied stickers to cover up the offending stickers on the extinguishers held by his customers. The customers of the appellant (or the Snuffa company) were wholesalers and they would not supply the appellant with lists of the retailers who were their customers. Thus it was that three extinguishers were found interstate in the hands of retailers not covered by the stickers. This was in circumstances, as set out in the prosecution's agreed statement of facts, that 100,000 units had been distributed to the capital cities. Counsel for the appellant contended that this showed "a real and genuine attempt to rectify the situation".

In respect of the false information contained in the pamphlets the appellant gave instructions to an officer of the company, a Mr. Byrne, to recall the pamphlets. Mr. Byrne was informed that the Sydney Building Information Centre had no more of the pamphlets in question. However in respect of the reprint of the article in the publication "The Australian Yachting Industry" even though it was not on public display, it was made available to a person who specifically requested it by filling in the number of the Snuffa display in what was doubtless a literature request form. The pamphlet containing the representation concerning compliance with A.S.A.163 was obtained in a suburb of Perth.

It is apparent that the trial judge has not paid regard to all the facts in assessing the efforts which the appellant made in attempting to remedy the situation caused by the distribution of the offending equipment and material.

Moving to the leaflet which reproduced the draft amendment to the motor traffic regulations and the message to "All Caravan Owners" the trial judge had this to say in his reasons:
"Again there is no evidence to explain how this false statement came to be used in advertising material. Counsel for the defendant . . . stated from the bar table that Mr. Quinn was under the impression that the draft regulations had been adopted as law but as there is no explanation as to how this impression was formed I must conclude that it was made at least in reckless disregard of its truth or falsity."

Counsel for the appellant stated the following facts in his address, after referring to the actual state of the pamphlet containing the representation. He said that the appellant was under the impression that the draft regulation had been adopted as law. The appellant had made the suggestion to the Committee, which was responsible for the draft regulations, that there should be fire extinguishers adjacent to each exit of a caravan. Thus when the draft amendment came out, incorporating the appellant's suggestion, it was the appellant's belief that his representations were successful and that there was official endorsement for the proposition he had advanced.

These facts, in our view, have not the status merely of statements from the bar table but were agreed facts and were relevant to be taken into account in determining how the false statements came to be used in the advertising material. They are also relevant to the question whether the appellant acted in reckless disregard of the truth of the statement. The appellant made similar efforts to remedy the situation in that he instructed Mr. Byrne to withdraw this pamphlet from circulation. However again, although not displayed to the public, it was available on request at the Building Information Centre.

In respect of the foregoing representations the trial judge stated that there was "no attempt to prove accident or mistake or a genuine belief in the truth of the representations made, nor was there any real effort to remedy the effects of the falsehood . . ." In our view such a finding could only have been made on the basis that all facts stated by counsel for the appellant were made as "statements from the bar table". If the position is in accordance with our view that such statements, in so far as they were of fact, were agreed statements of fact, there was an attempt to prove accident, or mistake or a genuine belief. However we do not go so far as to say that such an attempt was wholly successful. It did, on a number of scores, go a certain distance, and to this extent the trial judge was obliged to give consideration to the facts proved.

The final representation was contained in a statement printed on a yellow fire extinguisher to the effect that it was "Approved by Yachting Association of Australia". It was seen by an officer in a suburb of Brisbane. Apart from stating that there was no such body as the "Yachting Association of Australia" the learned trial judge made no comment on the circumstances concerning the commission of this offence. He did however exclude it from his finding in the previous paragraph that there was no attempt to prove "accident or mistake or a genuine belief", doubtless because a letter from the Secretary of the Yachting Association of New South Wales dated 8 March 1977 was admitted as an exhibit. This letter indicated the extent of the approval that that Association gave in 1975 to the "Snuffa" extinguisher and that it was contemplated that the Australian Yachting Federation would subsequently approve.

There were however additional facts put forward by counsel for the appellant. The Australian Yachting Federation did, as contemplated by the above letter, in its set of rules which came into force on 1 July 1977 approve of fire extinguishers which covered the "Snuffa" extinguisher. Moreover the incorrect name of the Federation arose because the particular canisters were of French manufacture and the French manufacturer mistranslated Australian Yachting Federation into Yachting Association of Australia. Counsel also stated that in as many cases as possible stickers were affixed to the cans to cover the offending representations.

In the circumstances there was in respect of each offence additional evidence to which the learned trial judge was obliged to give consideration. He failed to do so because of a misunderstanding as to its status. The impact of the evidence generally is to characterize the conduct of the appellant as careless rather than deliberate or reckless. This additional evidence in our view justifies a reduction in the fine imposed in respect of each offence other than the offences charged in proceedings G14 of 1978.

We consider that the appeal shuld be allowed and that subject to the further reductions proposed in the next succeeding paragraph, the fines in respect of all offences other than in proceedings G14 of 1978 should be reduced by one half thereof.

For the reasons previously set out it is also our view that in respect of the offences charged in proceedings G17, G20 and G23 of 1978 there should be imposed a total fine of $1,200 apportioned as to $1,000 thereof to the offence charged in G17 of 1978, $100 as to the offence charged in G20 of 1978 and $100 as to the offence charged in G23 of 1978. The total of the fines imposed will then amount to $6,600, made up as follows:

G14 - $ 400
G16 - $3,000
G12 - $1,000
G17 - $1,000
G20 - $ 100
G23 - $ 100
G19 - $ 500
G22 - $ 500

_ _ _

$6,600

_ _ _

The appellant should have his costs of the appeal.