Trade Practices Commission v Parker, S - [1990] FCA 471

JUDGMENT No. .. .... %.-S

C A T C H W O R D S

TRADE PRACTICES - pyramid selling - whether defendant a principal - whether scheme constituted trade or commerce - order sought under s.199 Crimes Act - whether inexpedient to inflict punishment.

PRACTICE AND PROCEDURE - amendment of summonses sought - whether amendment can be made without injustice to the defendant.

Trade Practices Act 1974, s.61(2A)

Crimes A c t 1914, ss.l5C, 199

Trade Practices Commission

v. Steven Parker

PINCUS J .
DARWIN

18 July 1990

R E O I M
u

F A \ RECEIVED
- 5 SEP 1990
FEDERAL COURT OF
PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA 1
NORTHERN TERRITORY DISTRICT REGISTRY

1 DG22 of 1989
INDUSTRIAL DIVISION )

BETWEEN : TRADE PRACTICES COMMISSION
Applicant

AND: STEVEN PARKER
Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: PINCUS J.
DATE OF ORDER: 18 JULY 1990
WHERE MADE: DARWIN
THE COURT ORDERS THAT:

1. All the charges be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA ) DG22 of 1989
NORTHERN TERRITORY DISTRICT REGISTRY )
GENERAL DIVISION )

BETWEEN: TRADE PRACTICES COMMISSION
Applicant

AND: STEVEN PARKER
Respondent

CORAM: PINCUS J.

PLACE: DARWIN

m: 18 JULY 1990

EX TEMPORE REASONS FOR JUDGMENT

Five summonses have been issued, directed to the

defendant, alleging contraventions of s.61(2A) of the Trade
Practices Act 1974. At the outset counsel for the
prosecution, Mr Ibbotson, announced that he would consent to
the dismissal of two of the summonses and during the course of
the hearing a third was added to that category; in the result

only two of the cases were contested. They were the first and

last summonses alleging the commission of offences on 9 .r

November 1988 and 2 December 1988.

The defendant, who was unrepresented, pleaded guilty
but I pointed out to counsel that there had to be some doubt
whether the summonses, and the information on which they were
based, were correctly framed and I questioned whether the
facts alleged constituted offences.After some discussion on
the first point, Mr Ibbotson asked leave to amend the two
informations and summonses in a way which is discussed below
and I reserved my decision on that application.

He also argued the substantive point, namely whether

there was any offence, and I reserved my decision on that.
Evidence was called as to penalty on both sides and an
application was then made by the defendant to have the two
remaining charges dealt with under s.19B of the Crimes Act
1914. Mr Ibbotson informed me that the prosecution had no
objection to that course.

In these circumstances the whole proceedings have

acquired a slightly academic air but it is necessary to deal
with the points raised. The first summons alleged against the

defendant:

"That on or about the 9th day of November 1988
at Darwin in the Northern Territory you did
commit an offence pursuant to section 79 of the
Trade Practices Act 1974 by directly or
indirectly being a party to the contravention
of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trade Practices Commission v Parker, S

Details

AGLC: Trade Practices Commission v Parker, S [1990] FCA 471
Case: [1990] FCA 471
Decision Date: 18 Jul 1990

CaseChat Overview and Summary

In the Federal Court of Australia, the Trade Practices Commission sought to prosecute Steven Parker for alleged contraventions of section 61(2A) of the Trade Practices Act 1974. The specific issue before the court was whether Parker was a principal in a pyramid selling scheme, and if the scheme constituted trade or commerce as defined in the Act. Additionally, the court had to consider whether it would be expedient to inflict punishment under section 19B of the Crimes Act 1914.

The court first addressed the issue of amending the summonses to properly reflect the prosecution's intent to charge Parker as a principal rather than an accessory. The amendment sought to clarify that Parker was alleged to have taken part in the promotion of the scheme. Pincus J allowed the amendments, finding that they did not prejudice the defendant and were necessary for the proper administration of justice.

In examining whether the pyramid selling scheme constituted trade or commerce, Pincus J concluded that the scheme, while unconventional, did fall within the scope of commerce as defined by the Act. Therefore, Parker could be charged under section 61(2A).

Finally, the court considered whether it was expedient to inflict punishment on Parker. Given Parker's minor role in the scheme, his cooperation with the Trade Practices Commission, and his otherwise good character and standing in the community, Pincus J found it inexpedient to inflict any punishment. The court ordered that all charges be dismissed under section 19B(1)(c) of the Crimes Act.

This case underscores the importance of correctly framing charges in legal proceedings and the court's discretion in deciding whether to impose penalties, particularly in cases where the defendant's role is minor and there are no substantial grounds for punishment.

Orders