Rizzo, P.A. v Rhodes, R.

[1988] FCA 499

.

C A T C H W O R D S

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.S3(d), 64(2A), 64(7)

Phillip Augene Rizzo
v. Rita Rhodes

Qld G152 & G162 of 1987

PINCUS J.

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY 1 QLD G152 & G162 of 1987

DIVISION GENERAL )

BETWEEN:  PHILLIP AUGENE RIZZO

Prosecutor

AND:  RITA RHODES

Defendant

MINUTES OF ORDER

MAKING	JUDGE	ORDER:	PINCUS J.
DATE OF ORDER:	1988	JULY	22
WHERE MADE:	BRISBANE

IN G152 OF 1987, THE COURT ORDERS THAT:

1. the charge be dismissed;

IN G162 OF 1987, THE COURT ORDERS THAT:

1. the defendant is convicted of the contravention of

s.64(2A) of the Trade Practices Act 1974 with which
she was charged;

2.    the matter be adjourned to Thursday, 4 August 1988 at 2.30 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.

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1 QLD G152 L G162 Of 1987
GENERAL CIVISION	)

BETWEEN:  PHILLIP AUGENE RIZZO

Prosecutor

AND:  RITA RHODES

Defendant

PINCUS J. 22 JULY 1988

REASONS FOR JUDGMENT

These are two prosecutions alleging offences committed

under the Trade Practices Act 1974 and they were heard together,

and some of the evidence was relevant to both charges.

G152 of 1987

The Informant alleged that: 

". . . between the 10th day and the 20th day of

October 1986 at 56 Currumburra Street, Ashmore in the State of Queensland, RITA RHODES trading as R & J PUBLICATIONS was guilty of an offence against

Section 79 of the Trade Practices Act 1974 as

amended in that the said RITA RHODES trading as R L

J PUBLICATONS did, in contravention of Section 53(d) of the said Act, represent that she had an affiliation with the Publishers of the 'Who Goes

There?' Transport Services Directory which RITA

RHODES, trading as R & J PUBLICATIONS, did not have. "

* 2 .

Particulars were given and were in substance that the defendant made the representation complained of in the course of a

telephone conversation with one Rosalind Shaw.

The evidence of Rosalind Shaw was that during the middle

of October 1986 she received a telephone call in her capacity as

secretary for a firm called Hawkins Road Transport. A female

person, apparently unknown to her, said, "I am from 'Who Goes

There?'. I was wanting to know if you want to renew your

advertisement. Is it the same as last year's?''

Rosalind Shaw said that as the only person who

authorlsed advertising at Hawkins	Road Transport, her "normal
procedure" was to advertise in a journal	called "Who Goes There?
Transport Services Directory", which is	published each year.
On 21 October 1986, Hawklns Road Transport received an invoice from "R. & J. Publications" for $ 5 9 . 5 0 ,	the partlculars
given belng "Transport Directory	Entry (TRANSPORT & SHIPPING
JOURNAL	) " .

As is explained In more detail In dlscussing the second

charge, there is reason to think that the defendant was

responsible for the sending of invoices of that kind. However, as the particulars make clear, it is not the sending of that lnvoice which is the subject of the charge, but the claiming of an

affiliation with "who Goes There? Transport Services Directory",

which is, as Rosalind Shaw said,	an annual publication. It has no
connection with the defendant.

The defendant declined to cross-examine Rosalind Shaw,

but gave evidence that she did not represent herself	as having
anything to do with "Who Goes	There?".

Although other questions arise n the proceedings, their

foundation is that Rosalind Shaw reasonably accurately recalled

the conversation to which she deposed. The defendant was an

unconvincing witness, but I am not entirely satisfied of the untruth of her denial that she referred to "Who Goes There?". It

seems to me likely that she gave Rosalind Shaw to understand that

she (the defendant) was connected with a transport directory and

it may be that she used the name "Who Goes There?". It is, on the

other hand, more than possible that although Rosalind Shaw had the

impression that the inquiry related to "Who Goes There?", that was

to some extent an assumptlon on her part. Similarly, although Rosalind Shaw recalls the use of the word "renew" and an inquiry as to whether the advertisement was to be the same as the previous

year's, I am not absolutely confident	that the defendant made
these statements.

It is, of course, inherently difficult, absent any

contemporary record of It, for an ordinary person to remember a
brief	conversation of other than great significance accurately
even after a short time, let alone after months.	Acceptance of

the prosecution case requires that one attaln a state of

satisfaction to the requisite standard that Rosalind Shaw's

recollection is substantially accurate	and the defendant's denial
of the conversation false; I have not done	so .

The charge will be dismissed.

G162 of 1987

This is a summons under the Trade Practices Act 1974

charging the defendant -

"that on or about the	22nd day of December 1986 at
56 Currumburra Road, Ashmore in the State	of

Queensland, RITA RHODES trading as R & J

PUBLICATIONS was guilty of an offence against

Section 79 of the Trade Practices Act 1974 as

amended in that the said RITA RHODES trading as R &

J PUBLICATIONS did, in contraventlon of Section

64(2A) of the said Act, in trade or commerce by use

of postal services assert a rlght to payment from a

person for unsolicited advertisements without

having reasonable cause to	believe that there was a
right to payment."

Particulars were given which were, in substance, that the offence was commltted by the sending of an invoice numbered 5151 dated 22.12.86 which is referred to below.

The charge is laid under s.64(2A) of the Act which reads

as follows:

"A corporatlon 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 1s a right

to payment. "

The word "corporation" must	be read, as to conduct involving the
use of postal services, as including a natural	person: s.6(3).

The defendant's case was, in brief, that she sent no

such invoice and that it must have been sent by a Mrs Norma Pier.

MK D.G. MacTaggart gave evidence that he is and has been

for many years the chairman of the J.L. MacTaggart group of companies, one of which is the Waterloo Grazing Company, which received by post an invoice dated 2 2 December 1986 and numbered 5151 addressed to the accounts section of the company. The invoice claimed $915 and the text read -

"TO Advertising	- AUTHORITY MR MCTAGGERT.
RURAL LIVESTOCK DIGEST	- VOLUME 6 1987

FULL ONE PAGE 915.00

A 10% DISCOUNT IS APPLICABLE IF PAID

WITHIN 14 DAYS."

The company did not send any payment. The evidence was,

and I accept, that no such advertisement as	mentioned in the
invoice was authorised.

There is evldence that the defendant and one Joan Craig registered, on 23 September 1986, a business named "R & J

Publications" at the office	of the Commissioner for Corporate
Affairs, Brisbane.	The nature of the business was described as

"advertising and publishing", and Its	commencement	date	1
September 1986.

The defendant was interviewed by officers of the Trade

Practices Commission in the presence of one Norma Pier, who was

described as a friend of the defendant's. The interview took

place on 9 December 1986, which, it will be noted, was 13 days

prior to the date of the alleged offence.

During the interview, the defendant told the officers

that she owned R L J Publications, Joan Craig being "no longer

with me any more".	The defendant explained that the business
involved telephoning customers	to solicit advertisements and
entries for a publication described	as a "transport and shipping

journal" which she proposed to bring out "as soon as I have got enough funds together". She was unable, or unwilling, to supply the name of the printer.

The defendant did not mentlon, in the course of the

interview, the prospect of publishing a "rural llvestock digest".

As to the transport and shipping journal, the defendant said, in

effect, that she used not, when soliciting advertisements, give a

speclfic date of publicatlon, but if people trled to pln her down

-

"Well, I could say well things have slowed down now,

a few delays, well sometimes I could say a rough

estlmate six to eight weeks, ten weeks."

An inference arises from the statements made in the

interview to which I have referred that the defendant was

recklessly soliciting payment for advertisements in a journal

which was very much embryonic	- further, that she tended not to
emphasise to prospective customers that its existence	was only in
her mind. However, the results of the interview do not directly assist the prosecutlon with respect to	proof of the charge I have

mentioned, except that the same system could, with little trouble,

have been applied to a "rural ivestock digest".

In her evidence before me, the defendant said, as to he

invoice in question, that	she did not send	it and that "my
business name	was photocopied by a Mrs Norma Pier and posted	u ".
She alleged that	the same numbered invoice	(5151) had been

photocopied by Mrs Pier and sent	out by her, soliciting payment
for advertisements in "mining	and Exploration News" and "National
mining and Exploration News" in December 1986 and January	1987.

The defendant was asked in cross-examination whether

"there was also an agricultural journal",	and answered "It has not
been started".	She did not, however, suggest that there was no

prospect of an agrlcultural Journal.

The defendant explained that Nrs Pier's method of

operation had been to photocopy material whlch the defendant took

to Mrs Pier's premises when the defendant went to work for Nrs

Pier, which she apparently did both before and after having

carried this sort of business on her own account. The defendant

Publications as at the date of the alleged offence, or indeed at gave evidence that she was not operatlng the buslness of R & J the date of the interview of 9 December.

The invoice the subject of the complaint required

payment to "P.O. Box 1040, Southport, Queensland", which was the

defendant's post box. The defendant said that "We were all

friends. I worked for them," in explaining how Mrs Pier got

a.

the key to the box to obtain cheques. She also explained that ny cheques produced by Norma Pier's activity using the defendant's businss name were put through one of Mrs Pier's "several bank

accounts" - a subject on which the defendant claimed to have

addressed ineffectual complaints to Mrs Pier. In my opinion, the evidence of the defendant suggestlng that Mrs Pier photocopled invoice 5151 and sent it to, amongst others, the Waterloo Grazing

Company, is false and	I reject it.	It is a fabrication and	not a
very imaginative one.

There is no direct evidence as to the circumstances in

which the invoice in question came to be sent to Waterloo Grazing

Company, but I am prepared to infer, simply on the basis of the evidence given, that it was sent by the defendant. She was,

shortly before the date in question,	in sole charge of the
business of "R & J Publications". The	likelihood of some

interloper's uslng that name and the defendant's buslness stationery to send such an invoice is extremely low. Further s . 6 4 ( 7 ) of the Act, in my oplnion, applies to the case. 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."

Again, the word "corporation" must be read as including a natural

person, in this case: s.6(3). Although the invoice did not use the defendant's name, it used a name which was, at the time, a

commercial pseudonym for the defendant.

c 9 .

Th .e only othe r question in the case is the legal point

whether it is necessary to show, in view of the definition of

"unsolicited services", that here were services actually

supplied. For the reasons I have given in the case of Rizzo v.

Fitzgerald, judgment in which was also delivered today, my view as

to that is in favour of the prosecution.

It follows that the defendant is convicted of the

offence charged, and I shall invite submissions on penalty.

l

I certify that thls avd t1.e a preceding

pages are a true copy of the reasons for

judgment hcrem of His Honour

Mr . Justice Pmcus

Counsel for the Prosecutor:  Ms. C.E. Holmes

Solicitors for the Prosecutor:	Director	of	Public
Prosecutions
The defendant appeared in person

Hearing:  of Date 21 March 1988