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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1980] FCA 27
Decision Date: 17 MARCH 1980

CaseChat Overview and Summary

This appeal before the court involved the appellant, Robert George Quinn, and the respondent, Brian Alexander Given. The central issue was the determination of fines levied against Mr. Quinn for making false or misleading representations in trade, which were found to be either deliberately or recklessly made. The court was tasked with reviewing the fines imposed on Mr. Quinn and deciding whether they were appropriate under the circumstances.

The primary legal question before the court was whether the fines imposed on Mr. Quinn for making false or misleading statements were appropriate. This required a careful examination of the evidence presented regarding the nature of the statements and whether they were made deliberately or recklessly. The court had to balance the need to deter such conduct with the necessity of ensuring that any penalties imposed were proportionate to the offence.

In its reasoning, the court found that the fines originally imposed were excessive and not proportionate to the nature of the offences committed. The court emphasised the need for penalties to be both punitive and deterrent without being excessively harsh. After reviewing the evidence and considering the mitigating factors, the court decided that the fines should be reduced to more appropriate amounts. The court also ordered that the respondent, Mr. Given, pay the appellant's costs of the appeal, limited to the costs of and incidental to the day of hearing.

The final orders of the court were to allow the appeal, vary the fines imposed in each of the specified cases to the amounts detailed in the order, and direct the respondent to pay the appellant's costs of the appeal, limited to the specified costs. This decision underscores the importance of proportionality in imposing penalties and the court's role in ensuring that penalties are fair and just.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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