Trade Practices Commission v Annand & Thompson Pty Ltd

IN THE FEDEFLIL COURT OF AUSTEWLIA

)

I	QUEENSLAND DISTRICT REGISTRY	)	No. G.10 of 1978
)

l	DIVISION	GENERAL	1
I

TRADE PRACTICES ACT 1974

B E T W E E N :

TRADE PRACTICES COMMISSION

Informanc

- and -

-	ANNAN6 & THOMPSON PTY. LIMITED

,	SYDNEY	Defendant
FRIDAY, 8 SEPTEKBER 1978

ST.JOHN J.

JCTDGMENT

FOR

REASONS

On 20 June 1978 I delivered judgment on the Trade Practices

f’

Commission’s application for an

inpnctlon and published reasons

for that decision. The question of costs was adlourned for

further argument and leave was granted for the

Commission to

make further zpplications if

It so desired, and, left open

were the terms of an undertaking by the defendant company.

I have heard, oral submlssions and written subinisslons have been

delivered on the question

f costs. The application for an

injunction was based upon breaches of

.52 of the Trade Pracltlces Act

1974 (the Act) and

I found as a fact that there had been breaches of

-2-

that section In that, on two occasions, the defendant company's

employees had described certain Jeep motor vehicles as "new"

in the sense of being of recent origin when those vehicles

could not accurately be

so described.

The offer of an undertaking by the defendant company was made

a	on the last day of hearlng and that offer weighed heavily with me in the exercise of my discretion to refuse an injunction.

On the first day of hearlng there was an announcement by counsel

for the defendant company to the effect that the company had

changed its policy of not maklng prospective purchasers

aware of the date of manufacture: there was no offer of an

undertaking at that stage. When, prlor to the commencement

of proceedings, the general manager of the particular branch

of the defendant company was lnterviewed by an officer of the

Commission words were spoken by either that manager or the

;

managing director of the defendant company which could only

be understood to mean that the respondent's salesmen would

not be instructed to thenceforth advise potential customers

of the length of time

a vehicle had heen In existence. In

these circumstances the application for

an mlunction

was in

my view approprlate as the future course of conduct of the

defendant company, indicated by those words, was further

1 -

breaches of

s.52 of the Act. Having regard to that statement

as to future conduct and the fact that an undertaking was not

offered until the last day of hearing

I am of the view that the

respondents should pay the costs of the proceedings against it. and witness' expenses for the hearlng of the application for

adjournment made on

3 May 1978.

. /3

-3-

I therefore order the defendant company to pay the costs

the proceedings up to and including judgment on

20 June 1978.

I also order that the defendant company pay such costs as are referable to the argument regarding costs.

The Trade Practices Commlssion has made application that

should find certain facts pursuant to s.83 of the Act in

order that such findings may be used in proceedings pursuant

to s.82 of the Act. The facts which the Commission desires

me to find are as follows:-

"1.

The respondent did contravene section

52 of the Trade

Practices Act 1974 In that

It, being a corporatlon, did, in

trade or commerce. enuaue In conduct that was mlsleadinu or

& &

or was likely to mislead or deceive, by:-

representing to Ian Richard Watson that

the "Jeep" make motor vehicle the said

Ian Richard Watson purchased from the

respondent on

18 January 1977 was new

whereas In fact the sald "Jeep" make motor

vehicle was not new but Imported into

Australia from the Unlted Scates	of
America in January 1975.

representing to Marlo Ezric Andrado that the "Jeep" make motor vehicle the said Marlo Ezrlc Andrado purchased

from the respondent on

5 September 1977

was.new whereas in fact the sald "Jeep"

make motor vehicle was not new but

imported into Australia from the United

States of America in January 1975.

2. The said "Jeep" make motor vehicles referred to in l(a)

and (b) above,

had, prior to the sale thereof, deteriorated

in condltion as

a result of the storage thereof.

3. The said "Jeep" make motor vehlcles referred to in l(a)

and (b) above, each had compliance plates affixed thereto

which bore the date "1/75". The sald date, namely, January

1975, is the date

on which the said "Jeep" make motor vehicles

were available in Australia In	a condltion tvhhlch enabled them
to be registered."

./4

-4-

Facts l(a) and

l(b) of that application have been found and

in my reasons for judgment they are

so expressed. Fact 2

above has also been found but it would appear to me to be of

little value in proceedings pursuant to

s . 8 2 for damages as

the degree of deterioration attrlbutable to storage was

not determined with any preclslon.

l	Fact 3 is also clearly found in the judgment and was not In

, I

dispute. In any event,I fail to see its usefulness as prima

facie vidence

supporting

action

for

damages.

Section 83 is in the following terms:-

"83. In a proceedmg agamst a person under

_ >

---

section 82 or m an applicatlon under sub- section 87(1A) for an order against a person,

a finding of any fact by

a court made

m--

1 proceedlngs under sectkon

77, 80, 80A or 81,

for ̂ di; offence agalnst section

79, in which

that person has been found to have contravened,

or to have been involved

m a contravention of,

a provision of Part IV or

V is prima facle

evldence of that fact and the finding may be

proved by production

of a document under the

seal of the

coxt from which the finding

appears.

The words "in

a proceeding" and "in proceedings" would appear

to me to indicate that the finding of fact should be made at

the latest on delivery of reasons for judgment. That

is, of

' course, assuming the judgment was not

withdrawn In those cases

I	where that course is permissible. Because	I propose to refuse
I

i	to make any	fmdings in accordance with the application before
\

me, on other grounds, It is unnecessary for me to decide the

effect

the

words

quoted.

./5

-5-

The provision for proof by production

of a document under the

seal of the court would appear to indicate that

fmdings of

fact could be recorded other than in

judgment but "document"

would appear to include reasons for judgment,

a copy of which

could be sealed in accordance with the section.

In an application for an injunction the facts in Issue are many and varied and in some instances, particularly those facts relied upon to influence the court in the exercise of its

discretlon,could range over

a wide field. It appeared to me

that in the instant case that central Issue was whether or not

a vehicle which had been assembled in

a co dition ready for

registration for

a period in excess of two years was

a new

vehicle in the sense of

bemg of recent origm.

The evidence

of deterioration and

certam evidence as to defects in the

vehicle was not glven wlth any precislon and In one instance

it was the sublect of expert opinion evldence In general terms

as to what happened to vehicles generally when they were in

storage. This evidence was not related to the two vehicles

in question but vas general in its terms. Although it has

not been argued.before me

I think it would at least be desirable,

if not Imperative, that an intention to make application for

findings of fact should be made

known to the opposlte party

before the hearing

so that that opposite party will have the

opportunlty to call and cross-examine evidence in relation to

those matters If it

so wlshes. Otherwise the opposite party

may take the view that the facts given in evidence in some

instances did not

go to the issue before the court or were

-6-

sufficlently unimportant as to be disregarded. There is no

evidence before me that notice was given before the hearing

commenced that the Trade Practices Commisslon Intended to ask

for certain facts to be found except those facts which would

obviously be essential to the proof of the Commission's case.

In those circumstances

I refuse to elaborate upon or be more

specific in my findings than those findings which are contained

i	in my reasons for Judgment.
The Commission also seeks an order in the following terms:-

"1. The respondent shall dlsclose to each person

who has purchased

a "Jeep" make motor vehicle from

the respondent since

1 October 1974 the date the said

"Jeep" motor vehlcle came into exlstence, or if that

date is not capable of determination by the respondent,

the earliest date In time prior to

whyhlch the respondent

believes the sald "Jeep" motor vehicle to have come

into existence, by sendlng to each such person by

pre-paid ordinary post within

21 days of the date of

this Order

a letter containing the aforesaid

information."

Such application is based on s.80A.(l)(a) of the Act which

is in the following terms

"80A.

(1) Where, on the application

of the Minister

or the Commission, the court is

satisfied that a

person has engaged in conduct constltuting

contravention of

a provlsion of Part

V, the court

may make elther or both of the follorvmg orders:-

(a)

an order requiring that person or

person involved in the contraventlon

to disclose to the publlc, to

particular person or to persons included in a particular class of persons, in such manner as is

specified in

the order, such

informatlon, or informatlon of such

a kind, as

1s so specified,bemg

. /7

i	-7-
I

I'	i
'I	:

information that

is In the posession

of the person to whom the order is

directed or to which that last-

mentioned person has access;"

l	! It is submitted that the policy of not informing prospective
i
!	purchasers of the length of time the vehlcle had been in
I	existence (already referred to above) and the number of Jeep motor vehicles sold by the respondent would justify such an
!

order.

It does appear to be the general policy of the

legislature

l	_-.
!	l

that contravention of the Act is to be remedled In every possible

way. Part VI of the Act sets

out, in

a number of sections,

provislons for enforcement of the Act in

a varlety of ways

and remedies where breach has occurred.

j	-	Having regard to the evidence	I f el an order should be made
1	-

I	but not in the precise terms of that sought. It seems to me

that if the attention of the persons who acquired Jeeps from

the respondent was drawn to the compliance plates and the date

which appeared thereon that would be sufficient.

I therefore

make the following order:-

The respondent shall disclose to each person

who or company which has acquired by purchase,

lease or hire purchase

Jeep make motor vehicle

1 -

from the respondent

smce 1 October 1974 that the

date by which that vehicle was assembled and was

in a conditlon ready for reglstration appears on

./8

-8-

compliance

p l a t e which

is a f f lxed to the

f ire

wall of the vehicle and may be inspected by

ra i s ing thebonnetof the vehic le

and

t h a t

such

disclosure shall be made by

le t te r t o such persons

pre-pald ordinary post within twenty-one

( 2 1 )

days of the date

thls

order.

As	to the undertaking to be given to the court different

terminology has been submitted

both par t ies . In

view

the undertaking should

i n the following terms:-

' I

The

respondent undertakes

t o t h l s honourable court

t h a t it will

not

i n t h e f u t u r e a l t e r

i ts p rac t i ce

whereby

d i s c l o s e s e i t h e r o r a l l y o r i n w r l t m g t o

any person showing

i n t e r e s t i n a c q u l r i n g

motor

vehicle

(whether by

purchase, lease or pursuant to

h l r e

purchase or leasing agreement) the date

upon whyhlch

such vehicle

w a s assembled and

i n a condition ready

f o r r e g i s t r a t l o n o r

t h a t d a t e

is not

known

t o t h e

,-	respondent, the	earliest	d a t e p r l o r t o w h x h t h e
l

respondent believes such motor vehicle to have

been

so assembled and

the respondent further undertakes that

such date or

earliest

da te , as the case

may

be,

shall

be d i sc losed to such person before the conclusion

any agreement

whlch such person acquires such motor

vehicle from the respondent

and fur ther undertakes that

it will

n o t a l t e r

the above p rac t i ce and wlll

adhere

t o such undertakings until

the

expirat lon

of seven

( 7 )

days notice to the Trade Practices

Commission

t h a t

proposes no longer t o honour the undertakings herein.

./9

-9-

Such undertakmg should be executed under the common seal of the respondent company.

I have substltuted the word "assembled" for the word "manufactured"

1 in the drafts put to me because it would appear that confusion

could arise having regard to the artificial meaning of

"manufacture" as it applies to the compliance plates.

i *

As to the costs of the applicatlons for further orders, as each

party has succeeded on one of the two

I order that each party

pay its

own costs.

I grant liberty to either party to apply on seven	(7) days
notice.

, .

IN THE FEDERAL COURT

OF AUSTRALIA )

)

QUEENSLAND DISTRICT REGISTRY

)

No. G.10 of 1978

I	DIVISION	GENERAL
!

TRADE PRACTICES ACT	1974
B E T W E E N :

TRADE PRACTICES COMMISSION

Informant

- and -

ANNANE & THObIPSON P m . LINITED

SYDNEY	Defendant
FF.IDAY, 8 SEPTEMBER 1978

REASONS FOR JUDGbENT

ST.

JOIm J.

On 20 June 1976

I delivered judgment on the Trade Pract' ices

Commission's appllcation for an inlunction and published reasons

for that decnlsion. The questlon of costs was adjourned fcr

further argument and leave was granted for the

Commission to

make further applications if It

so desired, and, left open

were the terms

of an undertaklng by the derendant company.

I have heard oral submisslons and written submisslons have been

delivered on the question of costs.. The application

fcr an

in junction was

based upon breaches

of s.52 of the Trade

Practices AC+-

1974 (the Act)	and I found as	a fact that there had been breaches	of	,
I

-2-

that section In that, on two occaslons, the defendant company's

employees had described certain Jeep motor vehicles as "new"

in the sense of

bemg of recent origin when those vehicles

could not accurately be

so descrlbed.

The offer of an undertaking by the defendant company was made on the last day of hearing and that offer weighed heavily wlth

me in the exercise of my discretlon to refuse an Injunction.	I
l

On the €irst day of hearlng there was an announcement by counsel

for the defendant company to the effect that the company had

changed its policy of not making prospective purchasers

aware of the date of manufacture: there was no offer of an

undertakmg at that stage. When, prlor to the commencement

of proceedmgs, the general manager of the particular branch

of the defendant company was intervlewed by an officer of the

Commission words were spoken by either that manager or the

managing director

of the defendant company which could only

be understood to mean that the respondent's salesmen would

not be instructed to thenceforth advise potential customers

of the length of time

a vehxle had been In existence. In

these clrcumstances the application for an inlunctlon was In

my view approprlate as the future course

of conduct of the

defendant company, indicated by those words, was further

breaches of s.52 of the Act. Havlng regard to that statement

as to future conduct and the fact that an undertaking was not

offered until the last day of hearing

I am of the view that the

respondents should pay the costs of the-proceedings against it. and witness' expenses for the hearing of the application for

adjournment made on

3 May 1978.

. / 3

, .	.	-3-	i
i

I therefore order the defendant company to pay the costs of

the proceedings up to and includlng judgment on

20 June 1978.

I also order that the defendant company pay such costs as are

referable to the argument regarding costs.

The Trade Practices Commission has made application that

should find certain facts pursuant to

s.83 of the Act In

order that such findings may be used in

proceedmgs pursuant

to s.82 of the Act. The facts which the Commission desrres

me to find are as follows:-

"1.

The respondent did contravene

s ction 52 of the Trade

Practices Act 1974 in that

it, belng a corporatlon, did, in

trade or commerce, engage In conduct

that was mlsleading or

deceptive or was llkely to mislead

or deceive, by:-

(a) representing to Ian Richard Matson that

the "Jeep" make motor vehicle the said

Ian Richard Watson purchased from the

respondent on

1 8 January 1977 was new

I	whereas m fact the sald "Jeep" make motor vehicle was not new but Imported into Australia from the Unlted States of America in January 1975.

(b)

representlng to Marlo Ezrlc Andrado the said Mario Ezrlc Andrado purchased

from the respondent on

5 September 1977

was new whereas in fact the sald "Jeep"

make motor vehicle was not new but

imported into Australia from

the United

States of

America in January

1975.

2. The said "Jeep" make motor vehicles referred to in l(a)

and (b) above,

had, prior to the sale thereof, deteriorated

in condltlon as

a result of the storage thereof.

The said "Jeep" make motor vehicles

r ferred to in l(a)

and (b) above,

each had compliance plates

afflxed thereto

which bore the date "1/75". The said date, namely, January

1975, is the date on which the said "Jeep" make motor vehicles

were avarlable in Australra in

a conditlon whlch enabled them

to be registered."

-4-

Facts l(a) and l(b) of that appllcation have been found and

in my reasons for judgment they are

so expressed. Fact 2

above has

also been found but it would appear to me to be of

little value in proceedings pursuant to

s.82 for damages as

the degree of deterioration attributable to storage was

not determined with any precision.

Fact 3 is also clearly found in the judgment and was not in dispute. In any event,I fail to see its usefulness as prima facle evidence supporting an actlon for damages.

Section 83 is in the following terms:-

"83. In a proceeding against

a person under

section 82 or In an appllcatlon under sub-

section 87(1A) for an order against

a person,

a finding of any fact by

a court made

proceedings under sectlon

7 7 , 80, 80A or 81,

or for an offence against section

7 9 . in which

that person has been found

to have contravened,

or to have been involved In

a contravention of,

a provision of Part

IV or V is prima facie

evidence of that fact and the flndlng may be

proved by production of

a document under the

seal of the court from which the finding

appears.

The words "in

a proceeding" and "in proceedings" would appear

to me to indicate that the finding

of fact should be made at

the latest. on delivery of reasons for judgment. That

is, of

course, assummg the judgment was not withdrawn in those cases

where that course is permissible. Because

I propose to refuse

to make any findings in accordance with the application before

me, on other grounds, it

s unnecessary for me to decide the

effect of the word5 quoted.

. / 5

-5-

The provislon for proof by production of

a document under the

seal of the court would appear to Indicate that findings of

fact could be recorded other than in

judgment but "document"

would appear to Include reasons for judgment,

a copy of which

could be sealed in accordance with the section.

In an application for an injunction the facts in issue are many and varied and in some instances, partlcularly those facts relied upon to influence the court in the exercise of its

discretion,could range over

a wide field. It appeared to me

that in the instant case that central issue was whether or not

a vehicle which had been assembled In

a co dition ready for

registratlon for

a perlod In excess of two years was

a new

vehicle in the sense of being

of recent origin. The evldence

of deterloration and certain evidence as to defects in the

vehicle was not given with any precision and in one instance

it was the subJect of expert opinion evidence in general terms

as to what happened to vehicles generally when they were in

storage. This evidence was not related to the two vehlcles

in question but was general in its terms. Although it has

not been argued before me

I think it would at least be desirable,

if not imperative, that an lntention to make application for

findings of fact should be made

known to the opposite party

before the hearing

so that that opposlte party will have the

opportunity to call and cross-examine evidence in relation to

those matters if it

so wishes.

Otherwise the opposite party

may take the view that the facts glven in evidence in some

instances did not go to the issue before the court

or were

./6

-6-

sufficiently unlmportant as to be dlsregarded. There

1s no

evidence before me that notice was given before the hearing

commenced that the Trade Practices Commission intended to ask

for certain facts to be found except those facts which would

obviously be essential to the proof of the

Commission's case.

In those circumstances

I refuse to elaborate upon or be more

specific in my findings than those findings which are contained

in my reasons for Judgment.

The Commission also

seeks an order in the following terms:-

"1. The respondent shall disclose to each person

who has purchased

a "Jeep" make motor vehicle from

the respondent

smce 1 October 1974 the date the said

"Jeep" motor vehicle came

mto existence, or if that

date is not capable of

determmation by the respondent,

the earliest

date in tlme

prior to which

the respondent

belleves the

said "Jeep" motor vehicle to have come

into existence, by sending to each such person by

pre-paid ordinary post within

21 days of the date of

this Order

a letter contaming the aforesald

information.

Such application is based on s.80A.(l)(a) of the Act which is in the following terms:-

"80A.

(1) Where, on the appllcation of the Mlnlster

or the Commisslon, the Court

1s satisfied that a

person has engaged in conduct constituting

contraventlon of

a provlslon of Part V, the Court

may make either or both of the

following orders:-

(a) an order

requming that person or

person involved In the contravention

to disclose to the public, to

particular person or to persons

included in

a particular class of

persons, in such manner as is

specifled in

the order, such

information, or information of such

a kind, as is

so specifled,being

. /7

-7-

information that

1 s in the posession

of the person to whom the order is

directed or to which that last-

mentioned person has access;"

It is submitted that the policy

f not informing prospective

purchasers of the length of time the vehicle had been

existence (already referred to above) and the number of Jeep motor vehicles sold by the respondent would justlfy such an order.

It does appear to be the general policy of the legislature

that contravention of the Act is to be remedied in every posslble

way. Part V1 of the Act sets

out, In

a number of sections,

provlslons for enforcement of 'the Act in

a variety of ways

and remedies where breach has occurred.

Having regard to the evidence

I f el an order should be made

but not in the precise terms of that sought. It seems to me

that if the attentlon of the persons

who acquired Jeeps from

the respondent was drawn to the compliance plates and the date

which appeared thereon that would be sufficient.	I therefore
make the followlng order:-

The respondent shall disclose to each person

who or company which has acquired by purchase,

lease or hire purchase

Jeep make motor vehicle

from the respondent slnce

1 October 1974 that the

date by whyhlch that vehlcle was assembled and was in a condition ready for registration appears on

‘

. .

-8-

a compliance plate

whyhlch is affixed to the fire

wall of the vehicle and may be

inspected by

raising thebonnetof the vehicle and that such disclosure shall be made by letter to such persons

by pre-paid ordinary post within twenty-one	(21)
days of the date of this order.

As to the undertaking to be given to the court different

I .

terminology has been submitted by both parties. In my view

the undertaking should be in the following terms:-

The respondent undertakes to this honourable court that it will not In the future alter its practice whereby it discloses either orally or In writing to

any person showing interest in acquiring

a motor vehicle

(whether by purchase, lease or pursuant to

a hire

purchase or leasing agreement)

)the date upon which

such vehicle was assembled and in

a condition ready

for registration or if that date is not known to the

respondent, the earliest date prior to which the

respondent believes such motor vehlcle to have been

so assembled and the respondent further undertakes that

such date or earliest date, as the case may be, shall

be disclosed

to such person before the conclusion of

any agreement by which such person acquires such motor

vehicle from the respondent and further undertakes that

it will not alter the above practice and

wlll adhere

to such undertakings until the expiration of seven

(7)

days notice to the Trade Practlces Commission that it proposes no longer to honour the undertakings herein.

./9

-9-

Such undertaking should be executed under the common seal of the respondent company.

I have substltuted the word "assembled" for the word "manufactured"

in the drafts put to me because it would appear that confusion

could arise having regard to the artificial meaning

"manufacture" as it applies to the compliance plates.

A s to the costs of the applications for further orders, as each

party has succeeded on one of the two

I order that each party

pay its

own costs.

I grant liberty to either party to apply on seven	(7) days
notice.

[1978] FCA 88

8 Sep 1978