Trade Practices Commission v Sony (Australia) Pty Ltd

[1990] FCA 407

JUDGMENT No. 4.07 /..?.oL;

IN THE FEDERAL COURT OF AUSTRALIA	1	QLD G42 of 1989
OUEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISION	)

BETWEEN: TRADE PRACTICES COMMISSION

Applicant

AND: SONY (AUSTRALIA) PTY LIMITED

First Respondent

AND: ALEXANDER FRANCIS PAGONIS

Second Respondent

AND: MICHAEL BAXTER

Third Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	12 JULY 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. The statements in the records of interview, as deposed to by Messrs Guthrie and Rizzo, are admissible in considering the question of penalty, as to the first respondent.

REGISTRY

NOTE:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

RECEIVED

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA	1	QLD G42 of 1989
QUEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISION	)

BETWEEN: TRADE PRACTICES COMMISSION

Applicant

AND: SONY (AUSTRALIA) PTY LIMITED

First Respondent

AND: ALEXANDER FRANCIS PAGONIS

Second Respondent

AND: MICHAEL BAXTER

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

The question is whether or not the interviews said
to have taken place as deposed to in the affidavits of Messrs

Guthrie and Rizzo are admissible in considering the question

of penalty, as to the first respondent. The contention made	by senior counsel for the first respondent is that s.84(2) of
the Trade Practices Act 1974, insofar as it deems certain conduct to be engaged in on behalf of the body corporate, does not enable the Court to take into account against the first respondent the statements made by its servants.
I do not find it necessary to determine whether that submission is correct or not, for it seems to me that the statements made in each case were at least within the ostensible authority of those who made them. As has been pointed out by senior counsel for the applicant, in the Rizzo affidavit, one has present the company's solicitor, Mr Nicotra, the secretary of the company and in addition, Mr Baxter, the national sales manager. The question of authority was raised during the interview and Mr Baxter said that the company secretary was authorised to speak on behalf of Sony and the board of directors. The difficulty which the applicant faces is that subsequently the company secretary said little, but he did intervene at some points; it seems to me that statements made in his presence may, depending upon what view one takes on closer analysis, be of assistance.
The more difficult point for the applicant is Mr Guthrie's affidavit, because one only has Mr Pagonis's word for it that, as he says, he was there with the knowledge of both Mr Baxter and the solicitors and that he had authority to speak for and on behalf of Sony. I think it is taking rather
authorised to make those statements, that is, was not too technical a view to assume that Mr Pagonis was not authorised to say that he alerted the solicitors and so forth. It seems to me that sort of statement is within the authority of the person at the level of Mr Pagonis. Of course, unless one has the whole of the board of directors speaking in chorus, questions of authority with respect to statements purporting to have been made on behalf of a company are always difficult. My impression is that more recent authorities are
taking what might be described as a more practical approach to the problem.
I therefore hold that the statements in the records of interview are not inadmissible as having been made without the authority of the first respondent. I do not make any determination as to whether, in fact, they are of any
assistance to the applicant. M r Heydon QC says that they are
not and that may in the end prove to be so. I will therefore admit the affidavits of Mr Rizzo and Mr Guthrie against all the respondents. I add the qualification that I do not, at this stage, decide that they are of the slightest use to the applicant; I merely decide that, if they are of any use to the applicant against the first respondent, they are not to be excluded on the ground of insufficient evidence of authority.

I certify that this and the two preceding

pages are a true copy of the reasons for

judgment herein of Mr Justice Pincus.

* ---l

L- F / < -

ASS@!-~~ te

Date /2 -7~3 1490

Counsel for the Applicant:	Mr P.A. Keane QC 6 ,Yr
M. Stewart
Solicitors for the Applicant:	Australian Government
Solicitor
Counsel for the First Respondent:	Mr J.D. Heydon QC and
Mr  A . J. L. Bannon
Solicitors for the First Respondent:	Blake Dawson Wal  dron
Counsel for the Second Respondent :	Mr P. Dutney
Solicitors for the Second Respondent:	Adamson, Bernays, Kyle and Jones
Counsel for the Third Respondent:	Mr C. Hodgekiss
Solicitors for the Third Respondent:	Sly & Weigall
Date of Hearing:	12 July 1990