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…
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- AGLC
- Traveland Pty Ltd & Anor v Doherty, Anthony Paul [1982] FCA 86 ((1982) 63 FLR 41)
- Case
- [1982] FCA 86
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court included whether the information and summons were defective due to discrepancies with the particulars in the Minister's consent, and if so, whether these defects rendered the summons and information a nullity. Another issue was whether these documents could be amended to correct the errors. Additionally, the court needed to address whether the failure to specify a particular offence under the relevant section of the Act was a fatal defect in the summons and information, given that the section could potentially cover numerous offences.
The court found that the summons and information were indeed defective due to the discrepancies with the Minister's consent, and that these defects could not be remedied by amendment. The court held that the requirement for a specific offence to be stated in the summons was critical, and the failure to do so constituted a fundamental defect. Consequently, the court allowed the appeals and dismissed the prosecutions in certain matters, while dismissing other appeals and varying orders in other instances. The court also ordered the respondent to pay costs and specified the allocation of costs for the appeals.
In summary, the court's decision was to dismiss certain prosecutions due to significant procedural flaws in the information and summons, while dismissing other appeals and varying orders in specific cases. The court's ruling underscores the importance of precise adherence to statutory requirements in initiating prosecutions and the consequences of failing to do so.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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