GENERAL DIVISION Bowen C.J.(1), Nimmo(2) and Franki(3) JJ.
CATCHWORDS
Trade Practices - Television broadcast of misleading statement - Elements of offence - Trading corporation - Whether "made" statement - Statement misleading as to "existence of price reduction" - Defences available - Corporation did not know and had no reason to suspect contravention - Knowledge of principal officer knowledge of corporation - Reliance on information supplied - Reasonable precautions to avoid contravention - Trade Practices Act 1974, ss. 53 (e), 58 (1), (2), (3), 84 (1), (2).
Companies - Knowledge of principal officer - Knowledge of company - Knowledge of superior servant not knowledge of company.
HEADNOTE
The appellant appealed against its conviction for breach of s. 53 (e) of the Trade Practices Act 1974 (the Act). The appellant televised an advertisement prepared by Doyle Dane and Bernbach Pty. Ltd., advertising agents, on behalf of Metro Ford Pty. Ltd. The advertisement implied that sales tax cuts which had been introduced would only be available for a certain period. In fact, the sales tax cuts were to continue but at a reduced rate. Both Metro Ford Pty. Ltd. and Doyle Dane and Bernbach Pty. Ltd. had already been convicted in respect of the same advertisement. An appeal by Doyle Dane and Bernbach Pty. Ltd. was pending. When the advertisement was telecast, the general manager who was the chief executive of the appellant company, was absent and the company secretary was acting in his place. A complaint was made by a viewer to the sales manager of the company. An officer of the Trade Practices Commission in the course of his inquiries also spoke to the sales manager. As a result of the complaints and inquiries, the advertisement was subsequently withdrawn.
The five main contentions of the appellant were (i) the appellant did not make any statement but only published the statement of another; (ii) the advertisement was not misleading concerning the existence of a price reduction, but was rather a statement as to some future event; (iii) the appellant was treated as a principal offender and essential elements in the offence were not proved, e.g., that the appellant was a corporation within the meaning of the Act; (iv) s.83(3) of the Act provided a defence; (v) s. 85 (1) of the Act provided a defence.
Held: (1) By telecasting the advertisement the appellant had made the statement as alleged. The making and publishing of a statement in this case were contemporaneous and mutually inclusive.
(2) Per Bowen C.J. and Franki J. - The statement was misleading as to the duration of the price reduction and was a statement as to an existing fact.
Per Nimmo J. - It was the intention of the legislature to prohibit misleading statements concerning the existence of price reductions whether presently operating or in the future.
(3) Per curiam - The appellant was beyond reasonable doubt a trading…
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.
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Details
AGLC
Universal Telecasters (Qld) Ltd v Guthrie, Terrence James [1978] FCA 18 ((1978) 32 FLR 360)
Case
[1978] FCA 18
Decision Date
CaseChat Overview and Summary
Universal Telecasters (Qld) Ltd was charged with breaching the Trade Practices Act 1974 by broadcasting a misleading statement regarding the existence of a price reduction. The case was heard by the Australian court, which was tasked with determining the elements of the offence and whether the company, as a trading corporation, was responsible for the misleading statement. The court also needed to assess if the corporation had knowledge of the contravention or if it had taken reasonable precautions to avoid such a contravention.
The court examined whether the statement was "made" by the corporation, considering the definition provided by the Trade Practices Act 1974. It was also required to decide if the statement was misleading in relation to the existence of a price reduction. Furthermore, the court needed to explore the available defences, such as whether the corporation did not know and had no reason to suspect the contravention, if knowledge of a principal officer was knowledge of the corporation, if the corporation relied on information supplied, and if it took reasonable precautions to avoid the contravention.
In reaching its decision, the court found that the statement was indeed made by the corporation and was misleading concerning the existence of a price reduction. However, the court also considered the defences available to the corporation. It determined that the corporation did not have knowledge of and had no reason to suspect the contravention, as it relied on information provided by others. Additionally, the court found that the corporation had taken reasonable precautions to avoid the contravention. As a result, the court acquitted the corporation of the charges under the Trade Practices Act 1974.
The court ordered that Universal Telecasters (Qld) Ltd was not guilty of the charges brought against it. This decision was based on the corporation's lack of knowledge and reasonable precautions taken to avoid the contravention, as well as the reliance on information supplied by others. The court's ruling provided clarity on the elements of the offence and the available defences in cases involving misleading statements broadcast by trading corporations.