AL. — + IN TUR FFDTRAL COURT CF fUSTEALIA B. No. 305 of 1975 GFWERAL DIVISION Between BRIA sLUOYATDER GIVuN Informant and C.V. EOLLASD (2OTUTRGS) FRY. LT TLD Defendant TRAUKT J, REAGONS FOR JUDGIENT ON FINE AND CCSES DELIVFRED: 21 July 1977. rder under ©.07 of t ae I am net askec to make any C Trade Fractices Act, 197%- 1976 in this matter and i+ remains only to fix a fine and deal with the avection of costs. The defendant called three witnesses in relation te véeneltyv, Mr, Quigley its Managing Director, Mr, uriffiths its Usec Car Manager and Mr. Csman, a Consulvinre "ngineer. "When finding the offence proved I said thet T was not prepared to weke a finding that the odomerer was wound back by the defendant. Mr. Thomas said in the evidence which he geve previously, that Mr. Quigley heé told him thet the spee.icmeter had been taken out and another one put back in its place The evidence of Mr. Quigley and rir. Griffiths given since the defendant was convicted, and directec to the cuestion of + enaity, sought to establish this. hr. GQuipgievy vas nov an a porreron Lo give any direct evidence on this questicn but he svore thay rir. Griffiths had toic him tlac the sneedometer had teen change? because "the needle was flickerins",. Mr. Griffiths said that ne had no positive vecollection of th? vebicic, ia, an evidence, he reconstruct¢d wha. he consine:cd heopered by reliving on hic 1 scat practice in testing used cars. fe caid trat 12 a sneedometer See wee ee oe was not functioning correctly the Company's practice, unless the fault was of a very minor nature, was to replace it with a speedometer taken from a stock of second~hand sneedometers which the Conoany kept as this practice was quicker than sending the speedometer to a repairer. Mr. Griffiths also swore that at no time had he ever turned back a speedoneter on a car Which was in the Company's ncssession,nor had heever instructed anybody to do so. On making enquiries he nad been told that no emplovee of the Company had turned back any speedorecers. Mr, Gritiiths was available for cross-examination but ran was not cross-exenl ned and therefore I accept his evidence 12 sofar as 10 yoes However he had not veen able to ascertain who had replaced the speedometer ard I do not consider that the evidence establishes entirely satisfactorily how the car, when displayed in the defendant's yard, had a speedometer fitted wnicn recorded a wrong mileage. wr. Cuigley saic in evidence that he nad Leen associated with the Company for some 20 vears, and that, prior to the incorporation of the defendant, the business had conmenced as a sole trader. Mr. Quigley said that he had not heard et any time of any action having been commenceri against the Cotpany for fraud or misrepresentation either during the period when he had been associated with it, or during the veriod prior thereto. air. Quigley also gave evidence .f certain offers that he had mace 19 Mr. Thomas to provide an anotne. vehicle at a somevhat rediced price, or alternatively to make a cash payment of S5CO to him. Mr. Osmants evidence was directed to show thet the trouble, which ir. "homas ha? experienced with the car,was not necessarily due to the fact that it had travelled 63,009 maics instead of about 24,000 miles, and, broadly, the evidence nointed to a probability that this was th: position. ty ss era at However the fact remains tnat the cefendant falsely represented that a car was of a quality which il. was not, and that a prospective purchaser expecting to get a vehicie which had travelled 23,700 miles, acquired a vehicle which had travelled 69,000 miles. There was no evidence that at the relevant time, the defendant had anstituted any metnod ef checking,or attenptin;, fa to ensure,that the mileage recorded orn the spe¢demeter of car displayed for sale in its used car yard eccurate.ty recorced the readings on the speedometer at the time when the vehicles vere traded in, In fixing an anpropriate venalty J stavrt by noting that the maximum penalty is $50,000. This penelty 1s applicable to any contravention by a body cornorate of any provision a (except s.52) in Part V of the Act. This part inciudes 4.1 the sections of the Act which deat with consumer protection and tnese sections prohibit a large number of widely differing unfair ractices, The defences available are very limited, ond indeed, at the relevant time, a false representetion nade as a result of a bona fide mistake was not excused unless the defendant could also show that it had taken reasonable precautions and exercised due diligence to avoid the contravention. The maximuin penalty under the Trade Practices act lo7aic is many times greater than that usually found in legislation broadly designed to provide consuner oretection e.g. in the United Kangde.n Trade Descriotions Act, 19¢2 fas at 1975) and tne New South wales Consumer Protection Act 1969-1973. Bearing these matters in mind IT consider that Parliament snowec its incention that tos Court should approacn: the question of pnena'ty by regardirns anv breach of the relevant sections as prima facie serious. 1 consider a fine of four thousand dollars (44,000) te be appropriate. -4e Passing to the question of costs I see no reason to depart from the usual rule that a successful informant 1s entitled to his costs, and so the defendant is to pay the costs of the informant t> be tared, if they are not agreed. I certify that this and the Kren preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Franéy Associate Mave Dated: 21/4/29 | KT) GIV tepnst tr aa tant ges oa tay Om ypue vara mara bev eee en ee Doe thot ATCIES FY No. BY 1.402 of 1975 ee et ee et - Mtoe tag CTT | a ae rd Oe ee ey ~ ot TIA Ty ( Apu sy Te vee dieu bee (EO See. pry od mows Oa ee ee et oe ee oY AND Le] be] iw] bt iP] TUDORS) egg OPTER FRANKIE, J. - CSUs CE ere roe ke Ba Oreo rata Sr DATE OF O?DEX : 2ist duty, 1977 WHERE MALS . SYDNEY THE COURT CROIRS THAT i. Defendant is convicted, 2. Defendant to vay a fine of £4,000. 3. Defendant to nav the irformanttc cosvs: costs to be taxed 1f not efreed,. Date Entera