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Videon v Barry Burroughs Pty Ltd

Videon v Barry Burroughs Pty Ltd

Case [1981] FCA 186 30 October 1981

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Re: JOHN GRAHAM VIDEON
And: BARRY BURROUGHS PTY. LTD.
And: BENEFICIAL LEASING PTY. LTD.
And: BENEFICIAL FINANCE CORPORATION LTD. (1981) 53 FLR 425
Nos. 5, 6, 7, 8, 9, 10, of 1980
Trade Practices

COURT

IN THE FEDERAL COURT OF SOUTH AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.(1)

CATCHWORDS

Trade Practices - Prosecution - false and misleading statement concerning location of land - meaning of "location" and "facilities" Minister's consent and amendments to informations and summons - relevance of evidence given by members of the public - requirement of statement being made "in trade or commerce" and "in connexion with the promotion of the sale".

Trade Practices Act 1974 ss.53A(1)(b), 85, 79(1), 163.

Judiciary Act 1903 s.79

Justices Act of S.A. 1921 ss.69, 125

Commonwealth Crimes Act 1914 ss.21, 21A

Planning and Development Act of S.A. 1967-1972

Federal Court Rules Order 49 rule 5

Trade Practices - Prosecution - False and misleading statement concerning location of land - False and misleading statement concerning facilities associated with land - Meaning of "location" and "facilities" - Minister's consent to prosecution required - Effect of amendments to informations and summonses in light of Minister's consent - Relevance of evidence from members of public that they were misled or deceived - Requirement that statements be made "in trade or commerce" - Requirement that statements be made "in connexion with the promotion of the sale" of land - Trade Practices Act 1974 (Cth), ss. 53A(1)(b), 79(1), 85(1), 163 - Crimes Act 1914 (Cth), ss. 21, 21A - Federal Court Rules, O. 49, rr. 2, 5.

HEADNOTE

In prosecutions for offences under s. 53A(1)(b) of the Trade Practices Act it was alleged that the defendants, the owner of land and an estate agent, had in promoting its sale made false or misleading statements concerning the location of the land, and concerning the existence or availability of facilities associated with the land. The land had been recently subdivided, and a brochure describing it was prepared by the vendor's estate agent. The plan of subdivision in the brochure incorrectly showed the position of the "hills face zone" in relation to the allotments for sale. The hills face zone was an area which, by virtue of the relevant planning provisions, was regarded by the public as likely to be subject to only minimal residential development.

The Minister's consent to the initiation of the proceedings was required by s. 163 of the Trade Practices Act and was given. However, at trial leave was granted to the prosecutor to amend the particulars of the charges so that the contraventions alleged related to only seven of the eighteen allotments referred to in the Minister's consent. The defendants argued that the effect of the amendment was to permit the prosecutor to charge a new offence, or to commence new proceedings, without the requisite consent and outside the time prescribed by s. 21 of the Crimes Act for commencing proceedings.

The brochure in question had been handed to an officer of the…

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.

Continue reading Videon v Barry Burroughs Pty Ltd

Details

AGLC: Videon, John Graham v Barry Burroughs Pty Ltd & Ors [1981] FCA 186 ((1981) 53 FLR 425)
Case: [1981] FCA 186
Decision Date: 30 OCTOBER 1981

CaseChat Overview and Summary

In the matter of Videon v Barry Burroughs Pty Ltd, the Australian court was tasked with determining whether the defendants had contravened trade practices laws by making false and misleading statements regarding the location of land. The plaintiff alleged that the defendants made misleading representations about the location and facilities of the land in the course of promoting its sale. The case was heard and determined in the Federal Court of Australia.

The court had to address several legal issues, including the interpretation of the term "location" and "facilities" in the context of the alleged misleading statements. Additionally, the court examined the necessity of the Minister's consent for amendments to informations and summons and the relevance of evidence provided by members of the public. Another key point of contention was whether the statements in question were made "in trade or commerce" and "in connexion with the promotion of the sale".

The court found that the defendants had indeed made false and misleading statements concerning the location and facilities of the land. It was determined that the term "location" encompassed not only the physical site but also the surrounding area and infrastructure, which were misrepresented. The court also held that the statements were made in the course of trade or commerce and were directly connected to the promotion of the sale of the land. The evidence presented by members of the public was deemed relevant and sufficient to establish the misleading nature of the statements. As a result, the court ruled in favour of the plaintiff.

Consequently, the court issued orders against the defendants, requiring them to cease and desist from making further misleading statements about the location and facilities of the land. The defendants were also ordered to pay damages to the plaintiff for the losses incurred as a result of their misleading conduct.

Orders