Trade Practices Commission v Quality Publications Pty Ltd and Hogg, A.R. and Moore, M.F.
[1989] FCA 675
•3 Nov 1989
IN THE FEDERAL COURT OF AUSTRALIA)
1
VICTORIA DISTRICT REGISTRY 1 ) GENERAL DIVISION ) B E T W E E N :
TRADE PRACTICES COMI.IISSION (Prosecutor)
A N D :
QUALITY PUBLICATIONS
PTY. LTD.(No. VG 106 of 1989) (No. VG 107 of 1989) (No. VG 108 of 1989) (No. VG 109 of 1989) (No. VG 110 of 1989) (No. VG 111 of 1989) (No. VG 112 of 1989) (No. VG 113 of 1989) (No. VG 114 of 1989) (No. VG 115 of 1989) (No. VG 116 of 1989) (No. VG 117 of 1989) (No. VG 118 of 1989) (No. VG 119 of 1989) (No. VG 120 of 1989) (No. VG 121 of 1989) (No. VG 122 of 1989) (No. VG 123 of 1989) (No. VG 124 of 1989) (No. VG 129 of 1989) (No. VG 130 of 1989) (No. VG 131 of 1989) (No. VG 132 of 1989) (No. VG 133 of 1989) (No. VG 134 of 1989) (No. VG 135 of 1989) (No. VG 136 of 1989) (No. VG 137 of 1989)
ALLAN RAYMOND HOGG
(NO. VG 102 of 1989) (No. VG 125 of 1989) (NO. VG 126 of 1989) (NO. VG 127 of 1989) (No. VG 128 of 1989)
FEDERAL COURT OF
AUSTRALIA
PRINCIPAL REGISTRY
- * .--- and PlAXWELL FRANK MOORE
(No. VG 95 of 1989) (NO. VG 96 of 1989) (No. VG 97 of 1989) (No. VG 98 of 1989) (No. VG 99 of 1989) (NO. VG 100 of 1989)
(No. VG 101 of 1989) (NO. VG 103 of 1989) (No. VG 104 of 1989) (NO. VG 105 of 1989)
(Defendants)
JUDGE MAKING ORDER: KEELY 3. DATE ORDER IUiDE: 3 NOVEMBER, 1989 PLACE ORDER MADE: MELBOURNE
XINUTES OF ORDER
THE COURT ORDERS THAT:
1. The informations numbers VG 95, 97, 98, 102, 103, 105, 108, 109, 110, 111, 112, 113, 114, 115, 116, 118, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131 and 137 of 1989 are dismissed.
2. The defendant company, Quality P u b l i c a t ~ o n s Pty. Limited, is convicted of each of the contraventions alleged in informations numbers VG 106, 107, 117, 119, 120, 132, 133, 134, 135 and 136 of 1989.
3. The defendant, Maxwell Frank Moore, is convicted of each of the contraventions alleged in informations
numbers VG 96, 99, 100, 101 and 104 of 1989.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)
IN THE FEDERAL COURT OF AUSTRALIA)
)
VICTORIA DISTRICT REGISTRY ) ) GENERAL DIVISION 1 B E T W E E N :
TRADE PRACTICES COMMISSION (Prosecutor)
A N D :
QUALITY PUBLICATIONS
PTY. LTD.(No. VG 106 of 1989) (No. VG 107 of 1989) (No. VG 108 of 1989) (No. VG 109 of 1989) (No. VG 110 of 1989) (No. VG 111 of 1989) (No. VG 112 of 1989) (No. VG 113 of 1989) (No. VG 114 of 1989) (No. VG 115 of 1989) (No. VG 116 of 1989) (No. VG 117 of 1989) (No. VG 118 of 1989) (No. VG 119 of 1989) (No. VG 120 of 1989) (No. VG 121 of 1989) (No. VG 122 of 1989) (No. VG 123 of 1989) (No. VG 124 of 1989) (No. VG 129 of 1989)
(No. VG 132 of 1989) (No. VG 131 of 1989) (No. VG 130 of 1989) (No. VG 133 of 1989) (No. VG 134 of 1989) (No. VG 135 of 1989) (No. VG 136 of 1989) (No. VG 137 of 1989) ALLAN RAYMOND HOGG (No. VG 102 of 1989) (No. VG 125 of 1989) (No. VG 126 of 1989) (No. VG 127 of 1989) (No. VG 128 of 1989) and MAXWELL FRANK MOORE (No. VG 95 of 1989) (No. VG 96 of 1989) (No. VG 97 of 1989) (No. VG 98 of 1989) (No. VG 99 of 1989) (No. VG 100 of 1989) (No. VG 101 of 1989) (No. VG 103 of 1989) (No. VG 104 of 1989) (No. VG 105 of 1989) (Defendants)
3 NOVEKBER, 1989 KEELY J.
REASONS FOR JUDGMENT
The above matters, in which a total of forty-three informations were lald against the defendants, were heard together at the joint request of counsel for the prosecution and counsel for the defendants. The hearlng of evidence began on 21 June 1989 and continued on 22, 29 and 30 June and on 3, 4 and 5 July. For reasons outsrde the control of the
7 July. Difficulties encountered in fixlng dates for the court or the parties, the hearing could not continue on 6 and resumption of the hearing Included the absence overseas of the (then) solicitor of the defendants; the court was Informed that the defendants considered that the presence of that solicitor was essential to the proper presentation of their cases.
The resumption of the hearing was fixed for 2 4 August
1 9 8 9 but on 1 5 August the solicitor who had been acting for
the defendants throughout the earlier hearings filed a notice that he had ceased to act for the defendants. In the result, on 2 4 August 1 9 8 9 , the solicitor who had commenced acting for the defendants sought an adlournment. The matters were adjourned to 2 3 October 1 9 8 9 in order to enable the defendants to continue to be represented by the counsel who had appeared for them in June and July 1 9 8 9 . In fact, when the matter resumed on that day, the defendants were represented by another counsel. The hearing continued on 24,
25, 26 , 2 7 and 3 0 October, 1 9 8 9 . It is convenient to deal first with the informations which I have decided to dismiss.
Dismissal of 1 0 informations alleging contraventions of S.
5 SA
My decision to dismiss each of the informations in numbers VG 1 0 5 , 1 0 9 , 1 1 0 , 111, 1 1 2 , 1 1 3 , 1 2 4 , 1 2 7 , 1 2 8 and
1 2 9 of 1 9 8 9 was not based upon any opinion adverse to the
credibility of any of the witnesses called by the prosecutor. The dismissals resulted from a matter raised by the court (transcript 6 5 1 ) wlth the prosecutor's counsel. The question was whether these informations, as particularised, could
succeed as a matter of law; more specifically, whether the allegations in the informations, if proved, established that the defendants had engaged "rn conduct that is liable to mislead the publlc . . .". The court drew counsel's attention to the contrast between the words of S. 55A and those of other sectlons of the Trade Practices Act ("the ~ct"),
including ss. 52, 53A, 53C and 56; further, to ss. 57, 60 and 65, each of which referred expressly to "a consumer", and to S. 61(2) (b) which used the words "holding out to any person". It was also pointed out to counsel that a contravention of S. 52 did not constitute an offence against the Act whereas a contravention of S. 55A did.
After the parties were given an opportunity to research that matter, the court heard further submissions from counsel for the prosecutor; during those submissions the defendants' counsel referred the court to the decision of the Full Court in Westpac Banking Corporation v Northern Metals Ltd. (1989) ATPR 40-953. The court did not call upon counsel for the defendants and held (transcript 781) that the defendants had no case to answer in respect of nine
consequence of that decision, the defendant company sought informations to which they had pleaded not guilty. As a and obtained leave to change its plea from guilty to not guilty in matter No. VG 110 of 1989 - one of the ten matters listed above in whlch the rnformation has now been dismissed.
Hart), Mr. McCormack (also known as Tony Shawl, m. Joseph (also known as John Hogan) and Mr. Floyd (also known as Mike Andrews) each gave evidence on behalf of the defendants whrch was found to be not credible and which, in a substantial number of instances, was intended to deceive the court. It must be said that each of them was a most unreliable witness. The evldence of Miss Mohan was also quite unsatisfactory and part of it has been rejected as untrue.
As to the two defendants who gave evidence, Mr. Moore also was a most unrelrable witness who sought to decerve the court on a substantial number of occasions. Later in these reasons reference is made to some specific matters on whlch his evidence has been rejected. 1 Hogg presented as an intelligent witness who repeatedly expressed his answers in a manner designed to avoid admitting anything which mlght posslbly assist the prosecution. I have reached the conclusion that on a substantral number of occasions his answers to questions were delrberately - and persistently - evasive. In addition, I reject as untrue his evidence that
he would personally tell the sales staff "to represent
the publication ... and not to misrepresent it [the themselves correctly and not to mislead anybody by misquoting publication]". In answer to a later question as to sales staff he said ( T . 283): "I agree they are out for commissrons. Whether they decorate the truth, it is done without my knowledge or authorization". I do not accept that
he was unaware that the sales staff were representing to potential customers that the placrng of advertisements in the relevant publicatrons had benefits that it did not have.
I reject as untrue his evrdence that he "advrsed [the sales staff] not to sell from the Victorian Police publications if possible" (T. 306). I also reject as untrue his evidence (T. 304) that the fact that some applicants for sales positions had worked for Central Publicity (which had "lost the contract for the Victoria Police Association") was not "a relevant consideratron at all in giving them a lob".
Dismissal of 7 informations as to S. 64(2A)
I have decided to dismiss each of the four informations (numbers VG 95, 98, 116 and 118 of 1989) relating to payments sought from Ms. Hardy. As to each of those informations, on the evidence given by Ms. Hardy in cross-examination, I am not satisfied beyond reasonable doubt that Ms. Hardy had not agreed to place the advertisement. It
However, I have not come to the positive conclusion that the follows that each of the four informations must be dismissed.
advertrsement was authorised by Ns. Hardy i.e. I have not
accepted the evidence of Mr. Moore. I relect the evidence of Ms. Cotton that she can remember everything about that sale (T. 680). In my opinion her evidence that l . Hogg instructed her that she was employed "on condition that there was to be no misrepresentation" (T. 681) was a deliberate attempt to deceive the court. In this connexion, it may be added that she had already volunteered that she hoped that she "always will be employed by the [defendant] company" (T.
676).
I turn to those informations relating to payment sought from Miss Paul whlch I have decided to dismlss. As to information number VG 97 of 1989 I accept Miss Paul's evidence that she had not authorised the advertisement (T.
158) and that she had told Mr. Moore of that fact (T. 160).
I also accept her evidence (T. 159) as to what she told Miss Mohan and I reject the evldence of Miss Wohan (T. 668-670) suggesting the contrary. However I am not satisfied beyond reasonable doubt that Mr. Moore was a party to the contravention by the company in forwarding to Miss Paul a document entitled "Notice of Intention to Sue".
As to information number VG 102 of 1989 on the
evidence, including Mr. Hogg's evidence as to the informationhe had from Mr. Moore (T. 355) and from Miss Mohan (T. 352),
the company had no right to the payment. That information I am not satisfied beyond reasonable doubt that he knew that given to Mr. Hogg has been found by the court to be untrue and it may well be that Mr. Hogg knew - or at least suspected - that it was untrue, but S. 64(9) (a) does not place any onus
on m. Hogg. I am not satisfled beyond reasonable doubt that Mr. Hogg was indirectly knowingly concerned in the contravention. On the evidence and in the light of my decision to dismiss the informations against Messrs. Moore and Hogg in matters numbered VG 97 and 102 of 1989, I am not satisfied beyond reasonable doubt that the defendant company was guilty of the offence charged in information number VG 131 of 1989.
Informations which led to convictions I turn to those informations in respect of which I am
satisfied beyond reasonable doubt in each case that the
defendant committed the offence alleged in the information.Convictions on 5 informations as to S. 53(c) In informations numbers VG 117 and 120 of 1989 I accept the evidence of Mr. Byrnes includ~ng his evidence (T. 181) as to the representation made to him by the defendant company - notwithstanding hls earl~er answers (T. 180) on
known as Tony Shawl where it conflicts with that of Mr. that subject. I reject the evidence of Mr. McCormack (also Byrnes. The defendant company 1 s convicted on both charges.
In ~nformation number VG 133 of 1989 I accept the
evidence of Mrs. Cockrane including her ev~dence (T. 204-5)
as to the representation made to her by the -defendant
I
company. I relect the evidence of Mr. McCormack (also known
| ! | ||
| as Tony Shaw) where it conflicts with that of Mrs. Cockrane. The defendant company is convicted on that charge. | ||
| The defendant company pleaded guilty to information number VG 106 of 1989 and IS convicted of that offence. As to Information number 107 of 1989 I accept the evldence of Hr. Pegel including his evidence (T. 891-3) as to the representation made to him by the defendant company. I reject the evidence of Mr. Floyd (also known as Mike Andrews) where it conflicts with that of Mr. Pegel. The defendant company is convicted on that charge. | ||
| ||
| In inforrnatlon number VG 119 of 1989 I accept the evidence of Mrs. Stafford lncludlng her evidence that she had not authorised the advertisement. I reject the evidence of Mr. Joseph (also known as John Hogan) where it conflicts with that of mrs. Stafford. The defendant company has failed to | ||
| ||
| charged. | ||
| ||
| Moore where it conflicts wzth that of I4rs. Stafford. The defendant Mr. 14oore is convicted of the charge of being a party to the contravention by the defendant company. | ||
| In Information number VG 132 of 1989 I accept the evidence of Miss Paul including her evidence that she had not authorised the advertisement and had told Hiss Mohan that she had not authorised the advertisement and would not pay for lt. Further, that she told 'Ir. Moore that she had not authorised rt. I reject as untrue the evidence of both 14iss Mohan and Mr. Moore where it confllcts with that of Miss Paul, including Mr. Moore's evldence that he confirmed the order in February 1987. The defendant company has falled to satisfy me on the balance of probabilities that it had reasonable cause to believe that there was a right to payment. | ||
| I take the same vlew of their evidence in information number VG 96 of 1989. Mr. Moore is convicted of being a party to the contraventron by the defendant company. | ||
|
I take the same view of their evidence in information
number VG 99 of 1989. Mr. Moore is convicted of being a
party to the contraventlon.For substantially the same reasons the defendant company and Mr. Moore are convicted of the offences charged in informations numbers VG 134 and VG 100 of 1989 respectively.
As to information number VG 136 of 1989 I accept the evidence of Mrs. Davey that she dld not authorise the advertisement. I reject the evidence of Mr. HcCormack (also known as mr. Tony Shaw) and of Mr. Moore where it conflicts with her evidence. The defendant company has not satisfied me on the balance of probabilities that it had reasonable cause to believe that there was a rlght to payment. It is convicted of the offence charged in the information.
I take the same view of their evidence in information
number VG 101 of 1989. I find that Mr. Moore knew that the
advertisement had not been authorised; further, that he was responsible for sending or authorlzlng the sending of the invoice, as stated in evidence by Mr. Hogg (T. 276). Mr. Moore is convicted of being a party to the contraventlon by the defendant company.
I certify this and the twelve
preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Mr. Justice Keely, delivered on 3 November, 1989.
Date: 3 November, 1989
Dates of Hearing : 21, 22 , 29, 3 0 June, 1989 3, 4 , 5, July, 1989 24, 29 August, 1989
23, 24 , 25, 26, 2 7 and 3 0 October, 1989
Date Judgment Delivered : 3 November, 1989 Solicitor for Prosecutor
: Director of public Prosecutions
Counsel for Prosecutor : Mr. C. M. Maxwell Solicitor for Defendants (until filing of
Notice of Discontin-
uance) : Clayton Utz
Solicitor for Defendants : i
(after filing of , . . above Notlce) : Allan McHonnies I
I..
Counsel for Defendants
(until 5 July 1989) : Mr. P. J. Jopling
Counsel for Defendants
(after 5 July 1989) : Mr. R. D. Shepherd
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0
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