Rizzo, P.A. v Fitzgerald, C.

[1988] FCA 746

JUDGMENT No. 7.khA8a-

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY ) QLD G127-132 Of 1987

GENERAL DIVISION 1

BETWEEN:  PHILLIP AUGENE RIZZO

Prosecutor

AND: CAROL FITZGERALD

Defendant

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	4 AUGUST
WHERE MADE:	BRISBANE
IN G127 OF 1987 THE COURT ORDERS	THAT:

1. the defendant be fined the sum of $300, which is to

be paid to the District Registrar on	or before the
30th day of September 1988;

2.    the fine is to have effect and may be enforced as

if it were a judgment debt under a judgment of the

court.

if it were a judgment debt under a judgment of the

Court.

IN G128 OF 1987 THE COURT ORDERS THAT:

1. on the defendant's plea of guilty the defendant is convicted of the contravention of s.64(2A) of the

Trade Practices Act 1974 with which she was

charged:

2.    the defendant be fined the sum of $300, which 1s to be paid to the District Registrar on r before the 30th day OP November 1980;

3.    the fine is to have effect and may be enforced as

.

IN G129 OF 1987 THE COURT ORDERS THAT:

1. on the defendant's plea of guilty the defendant is convicted of the contravention of s.64(2A) of the

Trade Practices Act 1974 with which she was

charged;

2.	the defendant be fined the sum of $300, which is to
be paid to the District Registrar on or before the 31st day of January 1989;

3.    the fine is to have effect and may be enforced as

if it were a judgment debt under a judgment of the

Court.

IN G130 OF 1987 THE COURT ORDERS THAT:

1. on the defendant's plea of guilty the defendant is

convicted of the contravention of s.64(2A) of the

Trade Practices Act 1974 with which she was

charged;

2. the defendant be fined the sum of $300, which is to

be paid to the District Registrar on	or before the
31st day of March 1989;

3.    the fine is to have effect and may be enforced as

if it were a judgment debt under a judgment of the

Court.

IN G131 OF 1987 THE COURT ORDERS THAT:

1. on the defendant's plea of guilty the defendant is convicted of the contravention of s.64(2A) of the Trade Practices Act 1974 with which she was charged;

2.     the defendant be fined the sum of $300, which is to

be paid to the District Registrar on or before the

31st day of May 1989;

3.    the fine is to have effect and may be enforced as

if it were a judgment debt under a judgment of the

Court.

IN G132 OF 1987 THE COURT ORDERS THAT:

1. on the defendant's plea of guilty the defendant is

convicted of the contravention of s.64(2A) of the . ~ ~ ~~~~

Trade Practices Act 1974 with which she was

charged;

2. the defendant be fined the sum of $300, which s to

be paid to the District Registrar on or before the

31st day of July 1989;

3.    the fine is to have effect and may be enforced as if it were a judgment debt under a judgment of the court.

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

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY 1 QLD G127-132 of 1987

DIVISION GENERAL )

BETWEEN: PHILLIP AUGENE RIZZO

Prosecutor

AND:  CAROL FITZGERALD

Defendant

PINCUS J. 4 AUGUST 1988

EX TEMPORE REASONS FOR JUDGMENT

These are six prosecutions under s.64 of the Trade

Practices Act 1974 in respect of one of which, after a contested

hearing, I convicted the defendant on 22 July. Mr Gibson, who

then and today appeared for the defendant, has pleaded guilty to

the rest. As will, I think, be clear from the reasons which I

gave in the first of them, in that one at least, there were some

arguable legal questions.

The course which has been taken as to submissions on

penalty is not that contemplated by the rules. 0.49 r.5 says that

unless the Court otherwise directs, the prosecutor shall, and the

defendant may, file affidavit evidence. In fact, the parties

agreed not to do that, to save expense, and they made submissions,

which I am apparently to treat as having been the subject	of
evidence.	With some hesitation, I have agreed to that course.

The Crown's case has been that the defendant has been

party to the making of false assertions, that is an assertion,	in
each case, of	a right to payment for unsolicited services. The

facts have been proved in detail only in the first matter, that

which was contested, and as to the others the agreement is that	I
am to treat the particulars set out in the summonses as	if they
had been proved.

What the defendant was doing was having people phoned

with the idea of obtaining a foundation for sending an invoice for

unsolicited services, namely advertising in a magazine. I have

followed the agreement of counsel in treating the matters stated

by them as true, with the exception that some of the matters

stated by MC Gibson perhaps went beyond what might properly	be
stated without conflicting with the particulars.

Counsel for the prosecution, Ms. Holmes, stated under

the agreement which I mentioned that the offence is prevalent and

difficult to detect. It appears to me to be one that requires to

be discouraged, if possible, by substantial penalties, and the

penalty is $20,000 per offence, under section 79 of the Trade

Practices Act.

The difficulty in the way of imposing a substantial

penalty is quite simple, and is that on the statements made by Mr

Gibson, which I am to treat as having been proved, the defendant

has not got any substantial assets. She and her husband have

rather a small equity in a house in which they reside with	her
children, and she has a small income from her work. He has,
according to his tax returns, no income,	but it is suggested that
the couple have somehow been able to carry on, and	so perhaps, the
position is not quite as bad as	the returns disclose.

Under the provisions of s.79A of the Trade Practices

- the Court has power, when imposing a fine, to declare that	Act,
the fine is to have effect, and may be enforced, as if it were a judgment debt under a judgment of the Court. Alternatively, the Court can order imprisonment in default. It seems to me at first
sight not to be a desirable case in which to order imprisonment in
default, but I invite the prosecution to make a submission.

I have heard submissions on the question. I do not

propose to impose imprisonment in default. The reason is that, on
the statements made by Mr Gibson, which I am to treat as being
proved, there is a sufficiently substantial quantum of assets to
enable a modest fine to be paid. It appears likely, however, that

that can only be done, in the event of the defendant not meeting

the obligations which I will impose, by a sale of the house, which

of course would be unfortunate. Nevertheless, it is a prospect

that would have to be faced. Had there been no possibility of

having to resort to the defendant’s assets to obtain the fine,	in
the event of their being unpaid,	I suppose it would have been
necessary to impose a provision	for imprisonment in default.

The problem of the penalty is interwoven with that of

costs. The practice in these cases has been to order the payment

of costs, although the proceedings are of a criminal character.

It may be that that has been done on the basis that the ordinary

rule that costs are not paid or received by the Crown	in criminal
matters does not apply to proceedings of this	sort. However that
may be, it seems clear that if the costs were to be paid even	if
no fine were imposed, the liability for costs would	be sufficient

in itself to require the sale of the house. It may be that in

truth Mr Gibson's instructions paint too gloomy a picture, but I

do have to take literally the agreement to treat what he says as

having been proved; it was not challenged.

The quantum of the costs is unknown, but MS Holmes

suggests that one way of handling the problem is to reduce the

amount of costs to, say, $2,000 or $3,000, that being considerably

less than the actual costs. Even at that, it is not at all clear

how the defendant could pay.

It seems that the only practical course which does not

necessarily produce disaster for the defendant's family, a

consequence which would bear heavily upon others than herself is

not to make any order for costs at all and to impose only a

moderate fine.

The fine which I propose to mention is, in my view,

scarcely adequate for the offence and is, in a sense, forced upon

the Court by the modest circumstances of the defendant and the
possibility that any substantial fine would affect innocent
people, namely her children.

-.

5 .

The suggestion made by Mr Gibson - I am sure in all good

faith	- was that the defendant could pay only $100 per month.
That may in fact be an amount which can comfortably be paid,	but,
in my view,	it should be exceeded. The provisions of s.79A permit

the Court to require payment of fines by instalment or to give

time to pay. It seems to me that the practical course is the

latter, that is, to fix a period of time which applies to payment

of the fine for each particular offence,	so that the defendant
will have a regular commitment to	meet.

The orders will be as follows:

1.    in G127 of 1987 the fine will be a sum of $300, which is to be paid to the District Registrar on or before the 30th day of September 1988;

2.     in G128 the fine will be $300, to be paid to the District Registrar on or before the 30th day of November 1988;

3.    in G129 it will be $300, to be paid on or before the 31st day

of January 1989;

4 . in G130 it will be $300, to be paid on or before the 31st day

of March 1989;

5 .	in G131 it will be $300, to	be paid on or before the 31st day
of May 1989; and
6 .	in G132	it will be $300, to be paid on or before the 31st day

of July 1989.

That is, the total fine will be $1800, and will in fact

be payable, as if by instalments, at the rate of $300 every two months, but, of course, each fine is attached to a particular date.

I Propose to order under s.79A, subject o an

application being made to that effect, that the fine is to have

effect and may be enforced as	if it were a judgment debt under	a
judgment of the Court.

:  certify tbat this and the 5 preceding

pages are a true copy of th2 reasons for

judgment hcrein of His Honour

Mr. Justice Pincus /d

'Associate

Dated 4