Wilde, Juris v Menville Pty Ltd - [1981] FCA 7

Re: JURIS WILDE
And: MENVILLE PTY. LTD.; MICHAEL ANTHONY PAGONIS; KEVIN WILLIAM HARRICK; DAVID
ROBERT KIRKHAM (1980) 50 FLR 380
Nos. 31-41; 44-50; 54-56; 63-68 of 1980
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Smithers J.(1)

CATCHWORDS

Trade Practices - false representations in relation to employment and profitability of business involving investment of money and performance of work - Pleas of guilty - Assessment of fines - Enforcement of fines by the imposition of imprisonment in default of the payment of fines -

Crimes Act 1914, ss.5 and 18A - Applicability of State Law -

Crimes Act 1958 (Vic) s.439(1)(A) - Magistrates (Summary Proceedings) Act 1975 (Vic.) ss.82, 106(1) - Trade Practices Act 1974 ss. 5(a), 53B, 59(2) and 79(2).

Trade Practices - Consumer protection - Supply or possible supply of goods and services - False representations that goods had particular history - False or misleading statement in advertisement seeking person for employment - Offer to engage in business activity requiring investment of money and performance of work - False or misleading statement as to profitability or risk of business activity - Persons knowingly concerned in contraventions of Trade Practices Act - Assessment of penalties - Fixing of term of imprisonment in default of payment of fines - Applicability of State law - Judiciary Act 1903 (Cth), s. 79 - Crimes Act 1914 (Cth), ss. 5, 18A - Trade Practices Act 1974 (Cth), ss. 53(a), 53B, 59(2), 79(2) - Crimes Act 1958 (Vic.), s. 439(1)(a) - Magistrates (Summary Proceedings) Act 1975 (Vic.), ss. 82, 106(1).

HEADNOTE

The respondent Menville Pty. Ltd. pleaded guilty to fourteen charges under the Trade Practices Act 1974 - three under s. 53(a), three under s. 53B and eight under s. 59(2). The company traded under the business name Latrobe Truck Sales. The respondent Harrick was a director of the company and the respondent Pagonis was the person in relation to whom a business name "Latrobe Street Transport Consultants" was registered under the Business Names Act 1958. The respondents Pagonis, Harrick and Kirkham pleaded guilty to charges under s. 5 of the Crimes Act 1914 of being knowingly concerned in the commission by the company of contraventions of the Act: in respect of Pagonis the contraventions relied upon were three of s. 53(a) and three of s. 59(2); in respect of Harrick one of s. 53(a), one of s. 53B and three of s. 59(2) and in respect of Kirkham one of s. 53B and one of s. 59(2). The terms of the relevant legislation appear from the judgment.

It was established that the respondent company had at relevant times promoted the sale of trucks by presenting to potential purchasers composite propositions under which it offered to them positions as owner drivers with established carrying firms or companies described as "permanent" or "on contract". Such positions did not exist.

Held: (1) Amongst the circumstances relevant to the fixing of an appropriate punishment for the offences were: (a) the importance…

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 Wilde, Juris v Menville Pty Ltd

Details

AGLC: Wilde, Juris v. Menville Pty Ltd & Ors [1981] FCA 7 ((1980) 50 FLR 380)
Case: [1981] FCA 7
Decision Date: 09 FEBRUARY 1981

CaseChat Overview and Summary

The case of Wilde, Juris v Menville Pty Ltd involves a dispute where Menville Pty Ltd, along with its director Pagonis, and other defendants, were found guilty of making false representations concerning employment and the profitability of a business, in relation to investments and the performance of work. The court was required to decide on the appropriate fines to be imposed on the company and the individual defendants, as well as the conditions for enforcement of these fines. The legal issues included determining the severity of the breaches, the culpability of the company and its directors, and the appropriate deterrent effect of the fines. The court assessed the gravity of the false representations, the commercial impact, and the need for deterrence and rehabilitation. It imposed fines on both the company and the individual defendants, with specific amounts and conditions for payment, including imprisonment in default of payment.

The reasoning of the court involved a detailed analysis of the nature and extent of the false representations, the roles of the company and its directors, and the broader implications for public trust and market integrity. The court considered previous similar cases and the statutory objectives of the relevant legislation. The court emphasised the importance of accountability and the deterrent effect of the fines, which were designed to reflect the seriousness of the breaches. The court also noted the plea of guilty by the defendants, which influenced the overall penalty. The outcome involved a comprehensive set of fines and conditions to ensure compliance and to act as a deterrent against future breaches. The fines varied based on the severity of the breach and the culpability of the individuals involved.

Orders

Orders of the court

Group 1

In proceeding VG No. 31 of 1980 against the company pursuant to s.53(a) of the Act,

(a) the company be fined $1,000;

(b) the company shall pay the amount of such fine to the Registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date;

In proceeding VG No. 32 of 1980 against the defendant Pagonis pursuant to s.5 of the Crimes Act and s.53(a) of the Act,

(a) the defendant be fined $1,000;

(b) the fine be paid to the Registrar of this Court by 1 December 1981.

Group 2

In proceeding VG No. 33 of 1980 against the company pursuant to s.59(2) of the Act,

(a) the company be fined $5,000;

(b) the company shall pay the amount of such fine to the registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

In proceeding VG No.34 of 1980 against the defendant Pagonis pursuant to s.5 of the Crimes Act and s.59(2) of the Act,

(a) the defendant to be fined $4,000;

(b) the fine be paid to the Registrar of the Court by 1 September 1982;

Group 3

In proceeding VG No. 35 of 1980 against the company pursuant to s.53(a) of the Act,

(a) the company be fined $7,000

(b) the company shall pay the amount of such fine to the Registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

In proceeding VG No. 36 of 1980 against the defendant Pagonis pursuant to s.5 of the Crimes Act and s.53(a) of the Act,

(a) the defendant to be fined $4,500;

(b) the fine be paid to the Registrar of the Court by 1st June 1983;

In proceeding VG No. 37 of 1980 against the company pursuant to s.59(2) of the Act,

(a) the company be fined $5,000;

(b) the company shall pay the amount of such fine to the registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

Group 4

In proceeding VG No. 38 of 1980 against the company pursuant to s.59(2) of the Act,

(a) the company be fined $5,000

(b) the company shall pay the amount of such fine to the registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

In proceeding VG No. 39 of 1980 against the defendant Pagonis pursuant to s.5 of the Crimes Act and s.59 (2) of the Act,

(a) the defendant to be fined $3,500

(b) the fine be paid to the Registrar of the Court by 1 March 1984;

In proceeding VG No. 40 of 1980 against the defendant Harrick pursuant to s.5 of the Crimes Act and s.59(2) of the Act,

(a) the defendant to be fined $4,000;

(b) the fine be paid to the Registrar of the Court by 1 December 1981;

Group 5

In proceeding VG No. 41 of 1980 against the company pursuant to s.59(2) of the Act,

(a) the company be fined $6,000

(b) the company shall pay the amount of such fine to the registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

Group 6

In proceeding VG No. 44 of 1980 against the company pursuant to s.53B of the Act,

(a) the company be fined $10,000

(b) the company shall pay the amount of such fine to the registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

In proceeding VG No. 45 of 1980 against the company pursuant to s.59(2) of the Act,

(a) the defendant to be fined $5,000

(b) the company shall pay the amount of such fine to the Registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

Group 7

In proceeding VG No. 46 of 1980 against the company pursuant to s.53B of the Act,

(a) the company be fined $100

(b) the company shall pay the amount of such fine to the Registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

In proceeding VG No. 47 of 1980 against the company pursuant to s.59(2) of the Act,

(a) the defendant to be fined $5,900

(b) the company shall pay the amount of such fine to the Registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

Group 8

In proceeding VG No. 48 of 1980 against the company pursuant to s.53(a) of the Act,

(a) the company be fined $5,000

(b) the company shall pay the amount of such fine to the Registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

In proceeding VG No. 49 of 1980 against the defendant Pagonis pursuant to s.5 of the Crimes Act and s.53(a) of the Act,

(a) the defendant to be fined $2,500;

(b) the fine be paid to the Registrar of the Court by 1 December 1984;

In proceeding VG No. 50 of 1980 against the defendant Harrick pursuant to s.5 of the Crimes Act and s.53(a) of the Act,

(a) the defendant to be fined $3,000;

(b) the fine be paid to the Registrar of the Court by 1 September 1982;

In proceeding VG No. 54 of 1980 against the company pursuant to s.59(2) of the Act,

(a) the company be fined $5,000

(b) the company shall pay the amount of such fine to the Registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

In proceeding VG No. 55 of 1980 against the defendant Pagonis pursuant to s.5 of the Crimes Act and s.59(2) of the Act,

(a) the defendant to be fined $3,000;

(b) the fine be paid to the Registrar of the Court by 1 September 1985;

In proceeding VG No. 56 of 1980 against the defendant Harrick pursuant to s.5 of the Crimes Act and s.59(2) of the Act,

(a) the defendant to be fined $3,500;

(b) the fine be paid to the Registrar of the Court by 1 June 1983;

Group 9

In proceeding VG No. 63 of 1980 against the company pursuant to s.59(2) of the Act,

(a) the company be fined $10,000

(b) the company shall pay the amount of such fine to the Registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

In proceeding VG No. 64 of 1980 against the defendant Kirkham pursuant to s.5 of the Crimes Act and s.59(2) of the Act,

(a) the defendant to be fined $5,000;

(b) the fine be paid to the Registrar of the Court by 1 December 1981;

In proceeding VG No. 65 of 1980 against the defendant Harrick pursuant to s.5 of the Crimes Act and s.59(2) of the Act,

(a) the defendant to be fined $5,000;

(b) the fine be paid to the Registrar of the Court by 1 March 1984;

Group 10

that:

In proceeding VG No. 66 of 1980 against the company pursuant to s.53B of the Act,

(a) the company be fined $5,000

(b) the company shall pay the amount of such fine to the Registrar of the Court within 30 days of this date or should a later date be fixed by this Court by such later date.

In proceeding VG No. 67 of 1980 against the defendant Harrick pursuant to s.5 of the Crimes Act and s.53B of the Act,

(a) the defendant to be fined $3,500;

(b) the fine be paid to the Registrar of the Court by 1 December 1984;

In proceeding VG No. 68 of 1980 against the defendant Kirkham pursuant to s.5 of the Crimes Act and s.53B of the Act,

(a) the defendant to be fined $3,000;

(b) the fine be paid to the Registrar of the Court by 1 September 1982;

In each of the above proceedings it is further ordered that: -

(1) in each case against the defendant Menville Pty. Ltd. the company shall pay the costs of the proceedings including the proofs of the acts and matters performed by its agents;

(2) in each case against an individual defendant that defendant pay the costs of those proceedings so far as they relate to work performed additionally to that performed in the particular proceedings against the company to which those proceedings relate;

(3) the question of granting relief pursuant to s.21B(d) of the Commonwealth Crimes Act is reserved; and

(4) liberty to apply is granted.

Orders accordingly.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.