Pel - JUDGMENT No. suecctonmoa srt Sve PARAL COULT OF _AUCUPALIA ) ) NEW SOUTH .WALES...... pIsieseT amcrerny —) Wo. G 5B&S6 or i977 ) GENERAL ............ DIVISION ) pervert : ....MALCOLT JOHN FINGER ||, bocce eeeeeeees Informant 11... AND : ....MAUUA, MOTORS PTY LTD, cee eeeeeneees Defendant... ORDERJUDGE(S) MAK GS OabLR : ST. JOHN J. ; DATE OF ORDER : 6 March, 1978 ° WHERR MALE : Sydney THE COURT ORDEPS THAT: 1. The deferdant company is convicted. 2. The defendant company is to pay a penalty of $8,000 (e2ght thousand dollars) an relation to each offence (G.Nos.53&56 of 1977 The defendant company is to pay the informant's costs. Date Entered: een a ee ee ne Nee ne ey IN THE FEDERAL COURT OF AUSTRALIA aa en NEW SOUTH WALES DISTRICT REGISTRY Nos. G55 and G56 of 1977 GENERAL DIVISION TRADE PRACTICES ACT 1974 SECTIONS 79 and 53. MALCOLM JOHN FINGER : (Informant) and MALUA MOTORS PTY. LINTTED (Defendant) REASONS FOR _JUDGIENT: ST. JOHN J. DELIVERED: 6 March 1978. The defendant comany, Malua Motors Pty. Limited, has pleaded guilty to two charges under section 53(a) of the e Trade Practices Act 1974. Both these charges relate to a misleading statement made in respect of an odometer reading on a Mazda motor vehicle. The first charge reletes to simply displaying the odometer with an incorrect reading; and the second charge relates to a representation in writing made by the manager of the defendant company to an officer of the Trade Practices Commission. On 3 August 1976 the officer visited the showroom premises of John Palmer Motors situated at 84-86 Parramatta Road, Summer Hill. He there inspected a Mazda motor car on display for sale bearing a New South Wales registration plate HUO 635 and having a certain engine number. v 2. . He looked at the odometer reading of. the motor vehicle and noticed it was 32,000 kilometres approximately. He then had a conversation with the manager of the business, a Mr. Mervyn J. Paull, who assured him that it was a guaranteed 32,000 kilometres. The manager subsequently produced a business card on which he wrote, "Mazda 808 Deluxe, 32,000 kilometres, $3490." He gave this card to the informant officer. Subsequent inquiries revealed that the correct odometer reading for the vehicle should have been in excess of 90,000 kilometres and that figure was displayed on the vehicle at the time it was delivered to Mr. Paull from Canberra. No evidence has been called by the defendant company but, through counsel appearing, certain assurances have been given as to its future conduct and it is agreed that the company and its managing director, Mr. John Palmer, have no previous convictions for dishonesty. It was put to me as a submission in mitigation that as no damage was suffered by any member of the public that should weigh in the defendant company's favour. In the circumstances of this case I do not think it does. The offences were clearly dcéliberate and certainly not due to any mistake or inadvertence. Previous instances of alterations to odometers have been before this court and have received, so far as conviction and penalty are concerned, fairly wide publicity. Many of the offences previously before the court were those which occurred in the early days of the operation of this act, some of them relating to periods some months after the act came into force in 1974. Fern TOOTS (ea ny OR DCC e Te EEA yore teeta hme BE at me te nl een Feed ae ll tl i tr cet atte Bae hg 3. ? I have regard to the fact that it was the manager of the business and not simply a salesman or some more lowly ay employee who made the misleading statement. I take into account what counsel for the prosecution has said about section 79(2). I think the appropriate penalty in the circumstances is 8,000 on each offence.