Traveland Pty Ltd v Doherty

[1982] FCA 86

Re: TRAVELAND PTY. LIMITED and ASSOCIATED TRAVEL PTY. LIMITED
And: ANTHONY PAUL DOHERTY (1982) 63 FLR 41
Nos. WAG45-56 of 1981
Trade Practices - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Deane(1) and Toohey(1) JJ.

CATCHWORDS

Trade Practices - Prosecution - Consent of Minister required to institution of proceedings - Information and summons at variance with particulars in consent - Whether information and summons a nullity - Whether capable of amendment - Numerous possible offences in section of Act under which defendants charged - No specific offence stated - Whether fatal defect in summons and information.

Crimes Act (Commonwealth) ss. 21, 21(a).

Trade Practices Act ss. 53(c), 55(A), 164(4).

Trade Practices - Consumer protection - Offence - Ministerial consent to prosecution - Sommons upon information - Terms differed from consent - Amendment - Elements of offence - Whether precise offence stated - Trade Practices Act 1974 (Cth), ss. 53(c), 55A, 163 (4).

Practice - Information and summons - Elements of offence - Whether precise offence stated.

HEADNOTE

The respondent instituted proceedings against the appellant by summons upon information for an offence against ss. 53 (c) and 55A of Pt V of the Trade Practices Act 1974. Section 163 (4) provides that such prosecution shall not be instituted except with the consent in writing of the Minister. The Minister consented to the proceedings in terms which differed from the terms of the information and summons. Leave was granted by the court to amend the information and summons. The court also dismissed the appellant's motion to dismiss the information and summons.

Upon appeal,

Held: (1) The requirements of s. 163 (4) of the Trade Practices Act 1974 do not preclude a ministerial consent to the institution of proceedings being worded in general terms with the identification of the precise offence, the particular wording of the charge and the content of any particulars being left to those responsible for the actual institution and conduct of the proceedings.

Berwin v. Donohoe (1915) 21 CLR 1; R. v. Cain (1976) 1 QB 496; Crichton v. Victorian Dairies Ltd. (1965) VR 49; Gilmour v. Midways Springwood Pty. Ltd. (1980) 49 FLR 36; R. v. Bacon (1973) 1 NSWLR 87, applied.

(2) The proceedings were, in nature and in substance, proceedings to the institution of which the Minister had given his consent.

(3) The Minister's consent need not, in terms, allege all the necessary elements of an offence under s. 53 (c).

Appropriate form and contents of ministerial consent to proceedings, discussed.

(4) Once proceedings have been validly instituted, the ordinary power of the court to allow amendments to the information and summons cannot be exercised to convert proceedings which had been instituted with consent, to proceedings instituted without the Minister's consent.

John Robertson & Co. Ltd. v. Ferguson Transformers Pty. Ltd. (1973) 129 CLR 65, referred to.

(5) A summons upon information, instituting a prosecution for an offence under the Trade Practices Act 1974 should make clear the precise offence with which the accused is charged and allege against the accused all the elements of that particular offence.

Broome v. Chenoweth (1946) 73 CLR 583; Ex parte Price (1899) 20 LR (N.S.W.) 343; Tregilgas v. Howie (1926) SASR 122; Bastin v. Davies (1950) 2 KB 579, applied.

(6) Section 53(c) of the Trade Practices Act 1974 contains multiple combinations of elements of an offence against that section, and each different combination constitutes a distinct offence. An information and summons which fails to charge the defendant, in terms, with any one of the multiple offences or allege all the elements of the offence, is defective..

Gilmour v. Midways Springwood Pty. Ltd. (1980) 49 FLR 36, applied.

(7) A general allegation that the defendant did contravene s. 53 (c) cannot, in itself, constitute a valid charge of an offence against the section.

HEARING

Sydney, 1982, May 5, 21. #DATE 21:5:1982

APPEAL.

Appeal against orders of Fisher J.

The facts appear in the judgment.

D. M. J. Bennett Q.C. and D. M. Watt, for the appellant.

E. M. Franklyn Q.C. and P. B. Kirby, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Allen Allen & Hemsley (N.S.W.) and Stone James & Co. (W.A.).

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

H. W. FRASER

ORDER

1. The Appeals in matters numbered WAG 45, 46, 47, 51, 52, and 53 of 1981 be allowed.

2. The prosecutions in matters numbered WAG 34, 35, 36, 40, 41 and 42 (Appeal numbers WAG 45, 46, 47, 51, 52 and 53) be dismissed.

3. The Appeals in matters numbered WAG 48, 49, 50, 54, 55 and 56 of 1981 be dismissed.

4. The Orders of Fisher J. be varied by deleting the words:

"the following paragraph be added - 'These proceedings are instituted with the consent in writing of the Minister pursuant to s.163(4) (b) of the said Act'"
in matters numbered WAG 43, 44 and 45 of 1980 (Appeal numbers 54, 55 and 56 of 1981).

5. The Respondent pay the costs at first instance of:

(a) Traveland Pty. Limited in matters numbered WAG 34, 35, and 36 of 1980 (Appeal numbers WAG 45, 46 and 47 of 1981.

(b) Associated Travel Pty. Limited in matters numbered WAG 40, 41 and 42 of 1980 (Appeal numbers WAG 51, 52 and 53 of 1981.

6. Each party bear his or its own costs of all appeals.

Orders accordingly.

JUDGE1

The Court has before it twelve appeals. In six of them, the appellant is Traveland Pty. Limited ("Traveland"). In the other six, the appellant is Associated Travel Pty. Limited ("Associated Travel"). The twelve appeals are related and raise a number of questions which are common either to all or to several of them. Each appeal is from a judgment and orders made by Fisher J. on two notices of motion, filed respectively by Anthony Paul Doherty (the "Prosecutor") and by the defendant, in a prosecution brought in the original jurisdiction of the Court pursuant to the provisions of the Trade Practices Act, 1974 ("the Act"). In each prosecution, the notice of motion filed by the Prosecutor sought leave to amend the information and summons and that filed by the relevant defendant (i.e. Traveland or Associated Travel) sought an order that the summons and information be dismissed.

Each of the prosecutions was brought by the Prosecutor for an offence against a provision (either s.53(c) or s.55A) of Part V of the Act. Under s.163(4) of the Act such a prosecution may be instituted by summons upon information and shall not be instituted except with the consent in writing of the Minister or of a person authorized by the Minister, by writing under his hand, to give such consents. On 6 October, 1980 the Minister of State for Business and Consumer Affairs, being the Minister entrusted with the administration of the Act, signed a consent to the institution of proceedings against Traveland for six offences and a separate consent to the institution of proceedings against Associated Travel for six offences. On 10 October, 1980 the twelve prosecutions involved in these appeals were instituted by summons under the hand of the Western Australian District Registrar of the Court upon written information laid before him by the Prosecutor. The issues involved in the appeals arise, in each case, from the contents of the Minister's consent, the information and the summons.

The resolution of the issues raised by the first appeal (No. WAG 45 of 1981) will go a long way towards determining the outcome of all the appeals. It is convenient to deal initially with that appeal. The proceedings to which it relates are against Traveland for an offence against s.53(c) of the Act.

Section 53(c) of the Act provides:
"A Corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services -
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "
Section 79(1)(b) of the Act provides, for present purposes, that a person who contravenes a provision of Part V other than s.52 is guilty of an offence punishable, in the case of a person being a body corporate, by a fine not exceeding $50,000. Under the provisions of s.21(1)(c) of the Crimes Act, 1914, a prosecution for an offence under s.53(c) or s.55A may be commenced at any time within one year after the commission of the offence.

The effect of s.53 of the Act is that a corporation is guilty of an offence if, in particular circumstances, it makes a false representation or a false or misleading statement of a kind specified in one or other of the various paragraphs of the section. Each of those paragraphs contains a number of variable elements of a specified statement or representation. Thus, a representation will be of the type specified in paragraph (c) if it is a representation that either goods or services have sponsorship or approval or performance characteristics or accessories or uses or benefits which they do not have. It can be seen that there are twelve different possible combinations of elements which may make up a representation of the type referred to in paragraph (c). The introductory words of s.53 add two fixed elements of an offence, namely, that the relevant representation or statement must be made by the corporation and that it must be made in trade or commerce. They also add a further variable element which may consist of any one of eight alternatives, namely, that the relevant representation or statement was made in connection with the supply of goods, in connection with the supply of services, in connection with the possible supply of goods, in connection with the possible supply of services, in connection with the promotion by any means of the supply of goods, in connection with the promotion by any means of the supply of services, in connection with the promotion by any means of the use of goods or in connection with the promotion by any means of the use of services. Any one of those eight alternative elements in the introductory words of s.52 will suffice as a component of an offence under the section. In the result, an offence under s.53(c) can be constituted by no less than 96 different combinations of the elements specified in the introductory words of the section and in the paragraph.

The first of the six offences set out in the Minister's consent to the institution of proceedings against Traveland is the relevant one for the purposes of the first appeal. That offence is there described as follows:
"That on 11 October 1979 at Perth in the State of Western Australia Traveland Pty Ltd, being a corporation in trade or commerce, did contravene section 53(c) of the Trade Practices Act 1974 in that the said Traveland Pty Ltd in connexion with the promotion by advertising of services did represent to Peter James Dawson that services had benefits they did not have namely that tours advertised in a brochure published by or for or on behalf of the said Traveland Pty Ltd titled "Viva] Bali-Singapore 13 days from $820" were of 13 days duration when the said tours were of 10 days and 11 nights duration".

This description makes clear that what is alleged is an offence under s.53(c). It specifically identifies the fixed elements of such an offence, namely, that there was a representation made by a corporation in trade and commerce. It plainly selects and identifies the two variable elements of such an offence contained in the body of paragraph (c) in that it states that the representation was that services (as distinct from goods) had benefits which they did not have. It fails, however, to allege any of the eight variable elements contained in the introductory words of the section. It reduces the possible selection to two in that it alleges that the representation was in connection with promotion, as distinct from supply or possible supply, and that it related to services as distinct from goods. It does not, however, allege that the representation was in connection with the promotion of either the supply or use of services. It simply alleges that the representation was in connection with the promotion of services.

Omitting formal parts the information was as follows:
"At the time and place specified below Anthony Paul Doherty of Trade Practices Commission, 207 Adelaide Terrace Perth in the State of Western Australia appears before Martin Jan District Registrar and informs the said Martin Jan that on 11 October 1979 at Perth aforesaid TRAVELAND PTY LIMITED being a corporation in trade or commerce and trading as "Viva] Bali-Singapore" did contravene section 53(c) of the Trade Practices Act 1974 in that the said TRAVELAND PTY LIMITED in connexion with the promotion by advertising of services did represent to Peter James Dawson that services did have benefits they did not have namely that advertised tours referred to as "Viva] Bali-Singapore 13 days from $820" in a brochure entitled "Viva] Bali-Singapore 13 days from $820" published and displayed by for or on behalf of the said TRAVELAND PTY LIMITED were 13 days duration when the said tours were of 11 days duration".

The information, like the Minister's consent, does not in terms allege any of the eight alternative elements in the introductory words of s.53(c). It alleges that the representation was made in connection with the promotion by advertising of services whereas the relevant alternative elements specified in the introductory words are the promotion by any means of the supply of services and the promotion by any means of the use of services. Specific mention should also be made of two variations between the description of the alleged offence in the Minister's consent and the overall description of it in the information. First, the consent alleges that the relevant brochure was "published by or for or on behalf of" Traveland while the information alleges that the brochure was "published and displayed by for or on behalf of" Traveland. Second, the consent alleges that the relevant tours "were of 10 days and 11 nights duration" whereas the information alleges that they were "of 11 days duration".

As if to pile Pelion on Ossa, the summons asserted that the contravention of s.53(c) was contrary to the provisions of s.79(1)(a) of the Act. In so far as the matters involved in the appeal are concerned, however, it corresponded with the information. It carried on the failure to refer to "supply of" or to "use of" services in the description of the offence in both the consent and the information. It differed from the consent in that it alleged that the brochure had been displayed as well as published and that the relevant tours were of 11 days duration. The summons, in addition, provided further particulars of the charge but nothing turns upon them for the purposes of the appeal.

The notice of motion filed on behalf of the Prosecutor sought leave to amend the information by deleting the words "and displayed" and by substituting "less than 13 days' duration" for "11 days duration". Leave to make similar amendments to the summons was also sought. In addition, though not the subject of present dispute, it was sought to make some amendments to the further particulars of the charge in the summons and to make some further amendments to both information and summons.

The notice of motion filed on behalf of Traveland sought dismissal of the summons and information on the grounds that they were void for want of jurisdiction in that they did not comply with the terms of the Minister's consent and that they failed to disclose an offence known to law "in that they do not allege an essential ingredient of the offence, viz, that the alleged offence was committed in connection with the promotion by advertising of 'the supply or use of' services".

Before Fisher J. the Prosecutor succeeded on both notices of motion. His Honour gave leave to amend the information and the summons in the manner sought by the Prosecutor. He dismissed Traveland's notice of motion for dismissal of the information and summons. The first appeal is an appeal by Traveland against His Honour's judgment and orders in that regard.

Upon the hearing of the appeal, it became clear that there were two general issues between the parties. The first was whether, as Traveland maintained, the discrepancies between the terms in which the offence was described in the Minister's consent and the terms in which it was described in the information and summons had the consequence that the proceedings were not, as required by s.163(4)((b), instituted "with the consent in writing of the Minister". The second issue was whether, as alleged by Traveland, the information and summons were defective for the reason that, in view of the absence of any reference to the "promotion . . . of the supply" or the "promotion . . . of the use" of services, they failed to allege against Traveland the necessary elements of any offence under s.53(c). We shall consider these issues in the order in which we have mentioned them.

It is clear from the provisions of s.163(4) that the consent in writing of the Minister to the institution of a prosecution for an offence against the Act must be given before the proceedings are instituted. The sub-section contains no express provision as to the form which the consent should take or as to the detail or particularity with which the proceedings must be identified.

The object of the requirement in s.163(4), that a prosecution shall not be instituted without the designated consent, is to protect the individual or corporation in danger of being charged, by ensuring that a prosecution will only be instituted if the Minister (or, where appropriate, his delegate) considers that it should. Consistently with that object, the requirements of s.163(4) will not be satisfied unless the Minister has in truth consented to the proceedings in question. It does not, however, follow that it is encumbent upon the Minister to restrict his consent to the institution of a prosecution for but one offence or that the consent should either define or particularize the precise offence or offences with which the prospective defendant should be charged. What is necessary is that the Minister should give his consent in terms which enable it to be said that the proceedings which are instituted have been instituted with his consent. It may be that this requirement precludes a consent being given in such wide terms as to be a consent to no proceedings in particular (see Crichton v. Victorian Dairies Ltd. (1965) V.R. 49 at p.59). On the other hand, it does not preclude a consent to the institution of proceedings being worded in general terms with the identification of the precise offence, the particular wording of the charge and the content of any particulars being left to those responsible for the actual institution and conduct of the proceedings.

Thus, in Berwin v. Donohoe (1915) 21 C.L.R. 1 at p. 26, Isaacs J. in upholding the effectiveness of a consent given in general terms by the Attorney-General to a prosecution being instituted against a named person for an offence against the Trading with the Enemy Act, 1914, commented:
". . . . if the written consent is to be treated as a memorandum under the Statute of Frauds, it would be disastrous. A complicated set of circumstances may be reviewed by the Attorney-General, and his consent to a prosecution under the Act may be given in general terms leaving it to the Crown Solicitor to formulate the charge. If the precise form of the charge were necessary to be stated, then the provisions in the Justices Acts and the Crimes Act permitting amendments and guarding against the old fatalities for variances would be inoperative. If the defence definitely challenges the fact that the Attorney-General has examined the facts of that particular case, the prosecution may be put to prove that he has: . . . . "

The above comments of Isaacs J. were cited with approval by the English Court of Appeal (Lord Widgery C.J., James L.J. and May J.) in Reg. v. Cain (1976) 1 Q.B. 496 at p. 502. In that case, the Court of Appeal was concerned with the effectiveness of a consent given, in general terms, by the Attorney-General in respect of "further proceedings" under the Explosive Substances Act, 1883 (U.K.) The Court concluded:
"Hence it is not necessary that the Attorney-General should have considered and approved every detail of the charge as it ultimately appears in the indictment. His duty is to consider the general circumstances of the case, and to decide whether any, and, if he thinks fit, which, of the provisions of the Act can properly be pursued against the defendant who has been charged before the magistrate with one such offence. If the Attorney-General considers that the prosecutor should be at liberty to pursue any charge under the Act which is justified by the evidence, there is no constitutional objection to his giving consent in the wide terms adopted in the present case".
See also Crichton v. Victorian Dairies Ltd. supra at p. 59; Gilmour v. Midways (1980) 33 A.L.R. 605 at p. 697; Reg. v. Bacon (1973) 1 N.S.W.L.R. 87 at p. 95.

The conclusion that an effective consent pursuant to s.163(4) may be worded in general terms does not, however, mean that the Minister is precluded from confining his consent more narrowly than he is required to do. If the consent is, in terms, limited to the institution of proceedings for one particular offence, it will not operate as a consent to proceedings for a different offence. If the consent particularizes conduct in respect of which a prosecution may be instituted, it will not operate as a consent to the institution of a prosecution in respect of quite different conduct. Where there is variance between any description or particulars of the offence contained in the consent and the description or particulars contained in the information and summons, a question will arise whether it can properly be said that, in the light of the variance, the proceedings which have been instituted are proceedings to the institution of which the Minister has consented. That, ultimately, is the question which is involved in the first issue between the parties in the present appeal.

In his consent, the Minister expressly consented to the institution of proceedings against Traveland for the offence "that on 11 October, 1979 at Perth . . . . Traveland Pty. Ltd. being a corporation in trade or commerce, did contravene s.53(c) of the Trade Practices Act 1974 in that the said Traveland Pty. Ltd. in connexion with the promotion by advertising of services did represent to Peter James Dawson that services had benefits they did not have . . . " This formulation of the charge against Traveland, with its identification of the offence, corresponds precisely with the formulation and identification of charge and offence in both the information and the summons. The variations upon which Traveland relies occur between what followed in the consent on the one hand and the information and summons on the other. That following part of the Minister's consent, information and summons consisted of particulars of the alleged misrepresentation as to benefits or, to adopt the language used by Fisher J. at first instance, particulars of the relevant alleged set of facts as distinct from the formulation and identification of the offence. The particularized representation is that certain tours advertised in an identified brochure were of 13 days duration. The representation is so particularized in each of the Minister's consent, the information and the summons. The variations are in the particulars of the falsity of the representation. First, the Minister's consent asserts that the tours were, in fact, of but 10 days and 11 nights duration while the information and summons assert that they were of 11 days duration. Secondly, the Minister's consent describes the brochure by reference to its being published by, for or on behalf of Traveland while the information and summons describe it as being published and displayed by, for and on behalf of Traveland.

The conclusion which we have reached is that the proceedings were, in nature and in substance, proceedings to the institution of which the Minister had given his written consent. We do not suggest that variations between consent and information or summons in what we have described as particulars of misrepresentation may simply be disregarded. Such variations may, in a particular case, so alter the substance of what is alleged that it may truly be said of the proceedings that they are not those to which the Minister consented. But this is not the case here. The difference between "published" and "published and displayed" and between "11 nights and 10 days" and "11 days", taken in context, can in neither case lead to the conclusion that the offence charged is not that contemplated by the Minister's consent. That is not to say that it is beyond the power of the Minister so to word his consent that any variation at all between particulars of the offence contained in the consent and particulars contained in the information or summons would result in the proceedings instituted not being within the ambit of the consent which the Minister had given. One would, however, need to find a reasonably clear indication in the written consent that this surprising consequence was intended. In the present case we do not read the Minister's consent as containing any such indication express or implied. It follows that Traveland's objection to the proceedings on the ground that they had been instituted without the necessary written consent of the Minister fails. We turn to a consideration of the second issue, namely, whether the information and summons are defective in that they fail to allege an offence under s.53(c).

It should be apparent, from what has been said above, that it is not necessary that the Minister's consent should, in terms, allege all the necessary elements of an offence under s.53(c). All that it need do is to record his consent to the institution of the proceedings. On the other hand, it is necessary that the summons, upon information, instituting a prosecution for an offence under the Act should make clear the precise offence with which the accused is charged and allege against the accused all the elements of that particular offence. See, generally, Broome v. Chenoweth (1946) 73 C.L.R. 583 at pp. 594-595, pp. 600-601; Ex parte Price (1899) XX N.S.W.R. 343; Tregilgas v. Howie (1926) S.A.S.R. 122; Bastin v. Davies (1950) 2 K.B. 579. As has been mentioned, there are no less than 96 different combinations of elements of an offence against s.53(c). Each different combination constitutes a distinct offence (see Gilmour v. Midways supra at p.607). The information and summons in the present case fail to charge Traveland, in terms, with any one of those 96 possible offences.

It is true that the information and the summons allege, in general terms, that Traveland "did contravene s.53(c)". Such a general allegation cannot, however, either in itself constitute a valid charge of an offence against s.53(c) or operate as a basis upon which a failure to specify necessary elements of an offence can be rectified by conjecture that it must have been intended to allege one or other of the alternative elements which would make good the deficiency.

It is also true that the wording of the information and summons makes clear that the offences which the Prosecutor had in mind involved a representation by a corporation, in trade or commerce, in connection with the promotion of services, that services had benefits which they did not have. This dramatically reduces the possibilities. It is possible that, notwithstanding the general averment of contravention of s.53(c), the Prosecutor intended to allege no more than he has done, namely, that the representation was in connection with the promotion of services without its being alleged that it was in connection with the promotion of the supply or use of services. If that possibility represented the fact, what was alleged did not constitute an offence under s.53(c) notwithstanding that it is somewhat difficult, in view of the definitions of "supply" and "services" contained in s.4 of the Act, to envisage a case where "promotion of services" would not involve promotion of either their use or supply. Another possibility is that the Prosecutor wished to allege that the representation was made in connection with the promotion of the supply or use of services without positively alleging that it was made in connection with the promotion of the supply of services or in connection with the promotion of the use of services. Again, in that case, there would be no allegation of a specific offence against s.53(c) (see, for example, Bastin v. Davies supra). The remaining possibility is that the Prosecutor wished positively to assert one or other of the relevant elements which would go to complete an offence against s.53(c), that is to say, that he wished to assert that the representation was made in connection with the promotion of the supply of services or that it was made in connection with the use of services or, conceivably, that putting to one side any question of duplicity, it was made in connection with both the supply and the use of services.

To identify the limits within which one may speculate as to what the Prosecutor intended to allege does not, however, assist on the question whether the information and summons were defective. To the contrary, such identification underlines the failure of the information and summons to allege against Traveland all the elements of an offence under s.53(c) and demonstrates that the question whether or not it was intended to allege all such elements and, if so, the identification of the missing element, lie in the realm of speculation. In those circumstances, the conclusion is inevitable that both information and summons are defective (see Broome v. Chenoweth supra at p.600).

It was conceded, on behalf of the Prosecutor, that if the Court were of the view that the information and summons were defective by reason of a failure to charge Traveland with any identified offence against s.53(c), the case was not one in which leave to amend to overcome the defect should be given pursuant to the provisions of s.21A of the Crimes Act, 1914. The reason for that concession was that the time within which a prosecution for an offence against s.53(c) of the Act may be brought has long since expired.

It follows that in the first appeal Traveland should succeed as regards the refusal of Fisher J. to dismiss the information and summons on the ground that they failed to allege an essential ingredient of an offence against s.53(c). The appeal should be upheld and, in lieu of the order made by Fisher J. on Traveland's notice of motion, it should be ordered that the summons and information be dismissed. The reasoning which leads to that conclusion in the first appeal applies equally to the five other appeals (WAG 46, 47, 51, 52 and 53 of 1981) which arise in relation to a prosecution for an offence against s.53(c). Similar orders should be made in those five appeals.

There remain for consideration the six appeals in the prosecutions for an offence against s.55A of the Act. Each of these appeals involves the question whether the proceedings have been instituted with the written consent of the Minister. As with the first appeal, the basis of the suggestion that the proceedings were not so instituted is variation between particulars of the offence contained in the Minister's consent and particulars contained in the information and summons. It is convenient to refer to the documents involved in the first of the s.55A appeals brought by Traveland (WAG 48 of 1981).

The Minister's consent in this appeal was to the institution of proceedings against Traveland for the following offence:
"That on 11 October 1979 at Perth in the State of Western Australia Traveland Pty Ltd being a corporation in trade or commerce did contravene section 55A of the Trade Practices Act 1974 in that the said Traveland Pty Ltd did engage in conduct that was liable to mislead the public as to the quantity of services namely that tours advertised in a brochure published by or for or on behalf of the said Traveland Pty Ltd and displayed on and available to the public from the premises of Boans Ltd at Murray Street Perth in the said State, titled "Viva] Bali-Singapore 13 days from $820", were of 13 days duration when the said tours were of 10 days and 11 nights duration".

In both information and summons it is alleged, in precise compliance with the terms of the Minister's consent, that Traveland, being a corporation in trade or commerce, did engage in conduct that was liable to mislead the public as to the quantity of services. The allegation to that effect constitutes a charge of the necessary elements of a particular offence against s.55A. The relevant variations occur in the particularization of the charge which follows. This, in both information and summons, is in the following words:
"namely that advertised tours referred to as "Viva] Bali-Singapore 13 days from $820" in brochures entitled "Viva] Bali-Singapore 13 days from $820" published and displayed by for or on behalf of the said TRAVELAND PTY LIMITED were of 13 days duration when the said tours were of 11 days duration".

The variations upon which Traveland relied correspond, to no small extent, with the variations upon which it relied in the first appeal. In the Minister's consent the tours are identified by reference to a brochure which is said to have been "published by or for or on behalf of the said Traveland Pty. Limited and displayed on and available to the public from particular premises". In the information and summons "brochures" are referred to in the plural and are said to have been "published and displayed by for or on behalf of the said Traveland Pty. Limited". In the Minister's consent the tours were said to be of "10 days and 11 nights duration" whereas in the information and summons they are said to have been of "11 days duration".

The reasoning which led us to the conclusion that the proceedings the subject of the first appeal had been instituted with the written consent of the Minister leads to a like conclusion in the present appeal. As before, we do not suggest that variations in particulars of the misleading conduct may be disregarded. But there is nothing in the variations - the difference between "brochure" and "brochures", between "published" and "published and displayed" and between "10 days and 11 nights" and "11 days" - which, taken in context, avoids either a finding that the offence charged is that contemplated by the Minister's consent or a conclusion that the proceedings were instituted with the consent of the Minister.

While there are differences in the nature of the variations in the description of the brochure (or brochures) referred to in the particulars in the other five appeals relating to prosecutions under s.55A (WAG 49, 50, 54, 55 and 56), those differences are not such as to lead to a different conclusion on the question whether the proceedings were instituted with the Minister's written consent. The attack by Traveland and Associated Travel upon the validity of the s.55A proceedings accordingly fails. We turn to a consideration of the question whether Fisher J. was in error in allowing amendments to the informations and summonses in those matters.

It is important to bear in mind that the consent required by s.163(4) is a consent to "the institution" of proceedings. Once proceedings have been validly instituted, the ordinary power of the Court to allow amendments to the information and summons is available. The only restriction upon that power resulting from the requirement of the Minister's consent is that an amendment cannot properly be made which would have the effect of converting proceedings which had been instituted with his consent into proceedings instituted without his consent (cf. John Robertson & Co. Ltd. v. Ferguson Transformers Pty. Ltd. (1973) 129 C.L.R. 65 at p. 98).

In the present case the amendments which Fisher J. allowed involved altering the allegation in each information and summons that the tour was "of 11 days duration" to an allegation that it was of "less than 13 days duration" and, in the case of the three prosecutions against Associated Travel, altering, in either the information or the summons, the assertion that the relevant brochures had been "published and displayed" to an assertion that they had been "displayed". For the reasons which we have given when dealing with the first appeal, we are of the view that these alterations would not have the effect of changing the proceedings into proceedings to the institution of which the Minister had not consented.

The six appeals in the s.55A matters (WAG 51, 52, 53, 54, 55 and 56) should be dismissed.

As regards costs, it seems to us that, in all the circumstances, the Prosecutor should be ordered to pay the costs, at first instance, of the proceedings under s.53(c) and that the orders of Fisher J. reserving the costs, at first instance, of the proceedings under s.55A should not be disturbed. Taking into account the extent of success and failure of the parties on the appeals to this Court, the appropriate order is that each party should pay his or its own costs of those appeals.

The formal orders disposing of the appeals in the s.55A matters will, by consent of the parties, vary the leave to amend granted by Fisher J. by deleting references to the proceedings being instituted with the consent in writing of the Minister.