Thompson, John Cranston v J.T. Fossey Pty Ltd

[1978] FCA 62

N '!Cm FEDERP-L COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY ) Nos. 93 & 94 of 1977

& 5 & 6 of 1978 li

GENERAL DIVISION

BETKEEN JOHN CRANSTON THOPPSON

Informant i

J . T .	FOSSEY	PT	.LIMITED	i	F
. .

Defendant

O R D E R

JUDGE MAKING ORDER: Franki J.

DATE OF ORDER	: 9 August 1978
WHERE MADE	: . Sydney

THE COURT ORDERS THAT :

1. The defendant is convicted on each charge.

2. The following f ines are imposed :

In respect o f No. 93 o f 1977 $1 ,500

In respect of No. 94 of 1977 $1 ,500

In respect o f No. 5 of 1978 $1 ,500

In recpect of No. 6 of 1978 $1 ,500

amounting t o a t o t a l o f $6,000

3. The defendant pay the informants' costs i n each case.

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I N THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY Nos. 93 & 94 o f 1977

I & 5 & 6 of 1978

GENERAL DIVISION 1

BETWEEN : JOHN CRANSTON THOMPSON

Informant

- AND : J. T. POSSEY PTY. LIMITED

Defendant

F?EASONS FOR JUDGMENT: FRANK1 J.

DELIVERED: 9 August 1978

On 27 July 1978 I gave my reasons f o r deciding that

the charges alleged in each information had been established.

There is no need f o r me t o repeat anything which I then said. l

Upon the resumed hearing o f the matter the defendant

called five witnesses who gave sworn evidence upon matters,

. which it was submitted by the defendant,were relevant f o r

my consideration on the question of penalty.

This evidence was directed broadly t o showing t h a t

the defendant had suffered very greatly as a r e s u l t o f

the publicity associated with the proceedings in tha t s a l e s

o f new vehicles by it had fallen dramatically in May, June

and July o f 1978 and par t icu lar ly i n July 1978. Evidence

was also directed t o establishing that the defendant had

a par t icu lar ly good re2utation i n the past .

The evidence on these matters establishes that the

defendant has carried on business for many years and

. Mr. Woodward, a re t i red pol ice inspector , who has lived

i n Tamworth f o r some 17 years, sald in evldence that the

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defendant vas held m very hlgh repute .and he had never

heard anyone say anything t o suggest that it was other

than a r e l i ab le firm of car dealers.

Mr. Williamson, the merchandising services manager

in the eastern sales region,for the Ford Sales Company

of Australia Limited gave evidence based on some f igures

in respect of t he l a s t t h ree and a half years. This

evidence showed that the defendant had a s ign i f icant ly

lower percentage of complaints which were ultimately made

to t he Ford Sales Company of Australia Limited which the

defendant had not resolved, but which the Ford Sales

Company of Australia.Limited considered it should have

been able to resolve, than the average figure o f such

complaints f o r dealers in rural areas . Mr. 1'lilliamson

was unwilling t o express any conclusion upon the reasons

f o r the drop i n s a l e s by the defendant in recent months.

In my opinion the evidence does not enable me t o draw

any precise conclusions concerning the reason f o r t h i s reduction which appeared t o be considerably greater than

might have been expected. If i n f a c t a drop i n s a l e s

was due t o the publicity surrounding these proceedings

it only indicates what a fragile possession is the good

reputation of a trader. It was submitted that I should

*	have regard to the adverse effect o f the publ ic i ty with respect t o these pro.ceedlngs on the defendant's business, in considering whether it was appropriate t o impose any penalty o r the amovnt of any penal t ies t o be imposed.
The question of the appropriate penalty must depend upon
the precise circumstances o f each case and I consider
great care should be taken in applying statements made i n

I . . .

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ea r l i e r Judgments, rvhere circumstances were d i f fe ren t

t o t he f ac t s o f a la te r case . Assuming, without deciding,

I that the publicity associated with these proceedings has

had an adverse effect on the defendant's business I am,

with respect, inclined t o f o l l o w the views expressed by

Smithers J. i n ._ Eva v. Southern Motors Box H i l l Pty. L t d .

(1977) 15 A.L.R.	428 a t p.437 that adverse publlcity,
unless ini t ia ted	by the prosecutor, is often one o f the

inevitable consequences of wrong doing and ill most cases is without influence in the assessment o f the appropriate penalty.

The next matter that I consider to be relevant

on the question of penalty i s that there seems t o be

very l i t t l e evidence I am inclined t o accept,of a precise

nature , that pr ior to these t ransact ions any ser ious effor t

was made by the defendant t o ensure that the representations,

the subject of these charges, would not be made. There

is some evidence tha t t he system has been tightened up.

There is no evidence of any reprimands of the salesmen

concerned nor o f the defendact warning employees of the

seriousness o f the misdescription o f vehicles offered for

sale . Indeed it is in te res t ing t o note that the salesman

who dealt with Mr. Hooson has since been promoted t o used

car manager and Mr. McDonald, the salesman involved i n

the transaction with Mrs. Alken said,in evidence,that no

of f icer of the defendant has critlcised him about his

conduct	in tha t t ransac t ion .
Matters which I f e e l I may take into account as

factors re levant t o the question	of penalty and in
favour of the defendant are that	NI-. Hooson had the

good fortune t o be relieved of hire charges of $1584

a t t h e company's expense and that nei ther vehicle ,so far

a s the evidence goes, has proved an unsatisfactory purchase.

Both appear t o have given satisfactory service with the

exception of the trouble with the o i l sump which Mrs.

I

Aiken experienced soon after she acquired the vehicle.

There is a l s o evidence i n t h i s case from which it could be concluded t h a t the purchase of a 'ldemonstrator" from the

defendant i s not necessarily Fetter f o r the purchaser than

the purchase of a car used f o r r en ta l purposes.

I am not prepared t o regard the offences which I

have found proved a s t r i v i a l , bu t , i n f ix ing the pena l t i e s ,

I have i n mind the fac tors I have j u s t mentloned.

Inconsidering the question of f ines I propose t o

regard matters Nos.93 and 94 o f 1977, being in respec t o f

the transaction with Mr. Hooson, as being in substance in

respect of only one offence and likewise t o regard matters

Nos. 5 and 6 of 1978, being in respec t o f the t ransact ion

with Mrs. Aiken, as being in substance in respect of only

one offence. This seems t o be i n accord with the under-

lying philosophy o f s.79(2) of the Act. The two representations,

the subject o f the informations in respect of the transaction

with Mr. Hooson, were in respec t of representations

substant ia l ly made a t the same time and I think it would be

unduly pedantic to endeavour t o dist inguish between them.

I hold the same view viith respect t o the represeatations t o

Mrs. Aiken. The.sum-of the f ines I impose in matters Nos.

93 and 94 of 1977 are appropriate f o r the representations

made t o Hr. Hooson and the sum of the f ines I impose i n

matters Nos. 5 agd 6 of 1978	are appro2riate f o r the
representations t o Mrs. Aiken.

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I make the following orders :

1. I convict he defendant of each charge.

2. I impose the following f ines :

In respect of No. 93 of 1977 $1,500.

In respect of No. 94 of 1977 $1,500.

In respect of No. 5 of 1978 '$1 ,500.

In respect of No. 6 of 1978 $1,500.

amounting t o a t o t a l o f $6,000.

3.	The defendant t o pay the	informants'	costs
i n each case.

I

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