Rizzo, P.A v Fitzgerald, C

[1988] FCA 389

Re: PHILLIP AUGENE RIZZO
And: CAROL FITZGERALD
No. QLD G127 of 1987
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Trade Practices - "unsolicited services" - services not supplied - whether contemplated future supply of services covered - assertion of right to payment - operation of deeming provision on invoice using name of business.

Trade Practices Act 1974 - ss.4(1), 4C(b), 6(3), 64(2A), 64(5), 64(7)

HEARING

BRISBANE

#DATE 22:7:1988

Counsel for the Prosecutor: Ms C.E. Holmes

Solicitors for the Prosecutor: Director of Public Prosecutions

Counsel for the Defendant: Mr G.J. Gibson

Solicitors for the Defendant: John H. Tudberry

ORDER

The defendant is convicted of the contravention of s.64(2A) of the Trade Practices Act 1974 with which she was charged;

The matter be adjourned to Thursday, 4 August 1988, at 2.15 pm to hear submissions on penalty and receive evidence if necessary on that subject.

Note: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

JUDGE1

The defendant is charged with an offence under s.64(2A) of the Trade Practices Act 1974 in that she -

"... trading as FIGHT FOR LIFE did, in contravention of Section 64(2A) of the said Act, in trade or commerce by use of telephonic and postal services, assert a right to payment from a person for unsolicited services without having reasonable cause to believe that there was a right to payment."

The particulars supplied say in effect that the assertion complained of consisted of a certain invoice which has been tendered and is referred to below. It purports to charge for insertion of an advertisement in a publication called "Fight For Life".

1. The evidence on behalf of the prosecution was not challenged in cross-examination, nor contradicted; the defendant called no evidence. Mr. Gibson, who appeared for her, contended that the facts established by the prosecution did not disclose the offence charged.

2. The evidence consisted of an account of two interviews with the defendant, a phone conversation sworn to by a Mr. Mawhinney, and some documents.

3. In the first interview, which took place on 28 October 1986, the defendant explained that she had registered a business name "Fight for Life" and controlled the operation of the business. She described herself as being in charge of it. According to that interview, there were two people working in "Fight for Life", the defendant and one Nancy Matherson. The interviewer asked the defendant about a "Miss Ward", said to work with "Fight for Life", and the defendant said that she had been there about three months ago but had left and that her true name was "Wood".

4. In the later interview, with a police officer called Hartwell, which took place in August last year, the defendant said that Nancy Matherson was paid by her for approaching advertisers in relation to "Fight for Life". That was done from the defendant's home. She also said that when she was selling advertising for "Fight for Life" she (the defendant) used the name "Carol Wood"; it appears that the statement made in the earlier interview about "Carol Wood" was untrue. I find that there were only two persons engaged in the business at relevant times, the defendant and Nancy Matherson, who worked for her.

5. On 30 July 1986, a woman rang Mr. H. Mawhinney, a director of Pacesetter Insurances Pty. Ltd. and a conversation took place of which Mawhinney gave evidence as follows:
   
   

"She said: 'I am just checking the typesetting for your advertisement in Fight for Life before it goes to the printer.'

I said: 'Okay'

She went through the format of the advertisement.

She said: 'I would just like to clarify your surnames and the business number and address.'

She then read through these and I indicated they were correct.

She said: "I just need any three letters to authorise the advertisement. It's just that our computer requires a reference number."

I then gave her the first three letters of my car's registration.

She said: "Okay, thank you very much."

At the time of the conversation, the only two persons with authority to advertise on behalf of Pacesetter Insurances Pty. Ltd. were Mr. Mawhinney and another director, Mr. Noonan. Neither had authorised any advertisement in "Fight for Life". Mr. Mawhinney, after checking with Mr. Noonan, reported the conversation to the Trade Practices Commission. The next day there was sent by post a "Confirmation Statement" dated 30 July 1986 for the attention of Mr. Mawhinney reading in part, "To advertising 1986 edition ref. PGN. We thank you for your participation in this Journal and trust that this Account is in order ... Total cost: $325.00".

1. I do not set out the whole of the invoice, but it clearly enough constitutes an assertion of a right to payment within the meaning of s.64(2A), which reads as follows:
   
   

"A corporation shall not, in trade or commerce, assert a right to payment from a person for unsolicited services unless the corporation has reasonable cause to believe that there is a right to payment."

1. As to the scope of the word "corporation", see s.6(3), discussed below.

2. There was no contention advanced by Mr. Gibson for the defendant, that the invoice was not such an assertion. The issues raised were three:
   
   1. No proof that the assertion was made by the defendant.
   
   

3. The contention was, in effect, that it was not enough to show that a right to payment was asserted; the prosecution had to prove that the defendent asserted it.

4. There are provisions facilitating the prosecution's task. Section 64(5) reads in part as follows:
   
   

"For the purposes of this section, a corporation shall be taken to assert a right to a payment from a person for unsolicited goods or services ... if the corporation -

...

(e) sends any invoice or other document stating the amount of the payment or setting out the price of the goods or services or the charge for the making of the entry ..."

There follows an exception, which is not relevant here.

1. The first question is whether the invoice referred to above was proved to have been sent by the defendant. It was not established that the defendant personally delivered the invoice, but proof of sending does not require that. It is enough to show that the defendant caused the invoice's delivery; one sends a message, for example, by composing it and causing it to be delivered. In my opinion, the evidence adduced for the prosecution constitutes a prima facie case of sending of the invoice by the defendant; it was not necessary to prove that it was the defendant rather than Nancy Matherson, working under her direction, who put the invoice in the post. That prima facie case not being contradicted, I find that there was a sending of the invoice by the defendant.

2. I also find that the invoice purported to have been sent by or on behalf of the defendant, and therefore s.64(7) applies; it reads as follows:
   
   

"For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a corporation shall be deemed to have been sent by that corporation unless the contrary is established."

1. Here, the invoice purported to have been sent by or on behalf of "Fight for Life" and Mr Gibson argued that s.64(7) was therefore inapplicable; but "Fight for Life" was at the relevant time merely another name for the defendant. It was shown by a search in the office of the Commissioner for Corporate Affairs and also admitted by the defendant that at the relevant time (30 July 1986) she carried on business as "Fight for Life". The word "corporation" in s.64(7) includes, in the circumstances of the present case, a natural person. That result ensues from the fact that, under s.6(3), provisions including the one in question (s.64 (2A)) have the effect they would have if -
   
   

"(a) those Divisions (other than section 55) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast; and

(b) a reference in those Divisions to a corporation included a reference to a person not being a corporation."

1. Reading "person" for corporation in s.64(7), it deems the invoice to have been sent by the person by or on whose behalf it purports to have been sent. It does not seem to me a proper reading of s.64(7) to exclude cases in which the document in question bears a name which is a commercial pseudonym for the defendant. If a corporation trades under another name, the operation of s.64(7) is not defeated merely by using that other name in the invoice or other document which is sent. There being no evidence to establish the contrary, s.64(7) requires a finding in favour of the prosecution on this issue.

2. It was also submitted by Ms. Holmes that she was entitled to rely upon s.84(2)(a) to establish a sending by the defendant; but it is unnecessary to consider that question.
   
   2. Advertisement Not Inserted
   
   

3. The second point taken by Mr Gibson was that the advertisement did not constitute "unsolicited services" because it was not shown that, prior to the assertion of a right for payment, an advertisement had been inserted. He relied in support of that contention upon an expression of view by me in the case of Rizzo v. Wall (unreported, 25 November 1987) that the sub-section does not apply unless services have been supplied. There, however, the point was not argued (the defendant being unrepresented) and Ms. Holmes strenuously contended that the provisional view I arrived at in Rizzo v. Wall was wrong.

4. I have, in the end, determined to accept Ms. Holmes' contention.

5. Before coming to the particular provisions relied on by the prosecution, one point to be noted is that its view of the provisions avoids making a distinction which, as a matter of common sense, the legislature seems unlikely to have intended; it is difficult to see any reason why an assertion of a right to payment for services which have not been requested should be lawful if the services are not only unrequested, but unsupplied.

6. The central point in resolution of the question is whether the definition of "unsolicited services" can be meshed with the definition of "services" in such a way as to make s.64(2A) sensibly apply to a case of this sort.

7. The former definition is as follows:
   
   

"'unsolicited services' means services supplied to a person without any request made by him or on his behalf".

The latter, contained in the same provision (s.4(1)), is rather long and requires to be read as a whole. It is, however, enough for present purposes to say that under the definition "services" includes - "... any rights ... benefits, privileges or facilities that are, or are to be provided, granted or conferred in trade or commerce ..." (emphasis added).

1. Thus, the notion of futurity is built into the definition; prima facie, it cannot be an answer to a proposition that includes a reference to "services" to say that no rights, benefits, privileges or facilities have actually been provided. If one reads the two definitions together, they do not harmonise well: simple insertion of the relevant part of the definition of "services" in the definition of "unsolicited services" renders the latter definition as, so far as relevant, "facilities that are to be provided supplied to a person ..." which is ungrammatical. That difficulty, however, does not entitle the Court to decline to give effect to what appears to be the legislative intention, which is that contemplated future supply of facilities is enough.

2. Ms. Holmes also relied upon the decision of the Australian Industrial Court in Wells v. John R. Lewis (International) Pty Ltd (1975) 25 FLR 194. That concerned the construction of s.64(3) of the Act, prohibiting assertions of a right to payment "from any person for the making in a directory of an entry ..." Although the provision with which the Court was there concerned was expressed in a significantly different way, it appears to me that the result of the case is consistent with the view expressed above: i.e. that the prosecution did not have to establish that the defendant, or anyone else, had actually advertised the business of Pacesetter Insurances Pty Ltd in any publication.

3. Ms. Holmes pointed out that under s.4C(b), a reference to supply of services in the Act, prima facie, includes a reference to agreeing to supply services; she added that because of s.18A of the Acts Interpretation Act 1901, prima facie, the defined meaning of "supply" is to be used in construing "supplied". Section 4C(b) does not directly assist the prosecution, since it was not shown that there was any agreement to supply the services in question. Indeed, it is alleged by the prosecution, and I accept, that Mawhinney did not agree to any supply of services. Nevertheless, the fact that services merely agreed to be supplied are covered provides some slight support to the conclusion I have expressed as to future services generally.

4. There was some discussion as to whether or not this point should go to a Full Court rather than be decided by me; Mr Gibson said I should decide it for myself. I have, as indicated, determined not to follow my own expression of view in Rizzo v. Wall; in my opinion the document in question here asserts a right to payment for unsolicited services within the meaning of s.64(2A).
   
   3. Was There a Solicitation?
   
   

5. The last point taken by Mr Gibson was that it was not proved that there was no solicitation of the services, and he relied again upon my previous decision in the case of Rizzo v. Wall It seems clear, however, that the facts there were significantly different; here, there is sufficient proof of non-solicitation.

6. Mr Gibson's case on this point depended essentially upon the single sentence in the evidence set out above: "I then gave her the first three letters of my car's registration".

7. It is my view that, read in isolation or in context, the sentence in question cannot possibly constitute a solicitation. Mawhinney was responding to a person who allegedly wished to check or clarify matters and the request which preceded the giving of the three letters was "I just need any three letters to authorise the advertisement. It's just that our computer requires a reference number." These statements were certainly not calculated to make a reasonable person think himself to be invited to solicit the placing of an advertisement.

8. Ms. Holmes contended that, in any event, if there was a solicitation it was induced by fraud. It is unnecessary to go into that question.

9. I should add that Mr Gibson relied upon some answers given in cross-examination to bolster his case on this point. I am quite satisfied, having heard the witness in question, that he had no real recollection of the details of the conversation other than as set out in his evidence in chief.

10. It follows that the defendant will be convicted and I shall hear counsel on penalty.