O'Neill, Michael John v. El Camino Autos Pty Ltd & Anor [1980] FCA 51

CATCHWORDS

Trade Practices - false representation in relation to sale of motor vehicle - plea of guilty by director and executive

and by company ~- imposition of pecuniary penalty.

", .

IN THE FEDERAL COURT OF AUSTRALIA No. G. 7 of 1979

GENERAL DIVISION No. G. 8 of 1979

In the matter of - THE TRADE PRACTICES ACT 1974 BETWEEN: MICHAEL JOHN O'NEILL Applicant and EL CAMINO AUTOS PTY. LIMITED Respondent AND BETWEEN: MICHAEL JOHN O'NEILL Applicant and THOMAS KENNEDY MACKENZIE

Respondent

REASONS FOR JUDGMENT

7 February 1980 Brisbane LOCKHART J.

The respondent El Camino Autos Pty. Limited ("the company" ) aus charged with the offence under s. 79 of the Trade Practices Act 1974 ("the Act") of contravening s. 53 (a) of the Act in trade or commerce in connection with the promotion by any means af the supply of goods, in that the company falsely represented that the goods had had a particular history, namely, that on or about 23 November

1978 at Southport in the State of Queensland, the company

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represented to Sara Bessie Landman that a Mazda sedan registered number 798-NIY supplied by the company had travelled approximately 41,000 miles, which representation was false, in that the vehicie had travelled substantially in excess of that mileage. The company pleaded guilty to this charge.

The respondent, Thomas Kennedy Mackenzie ("Mackenzie") is charged with the offence of being knowingly concerned in the commission of the offence by the company to which I have referred. The foundation for this charge is s. 5 of the Commonwealth Crimes Act 1914. Mackenzie pleaded guiity to the charge.

By consent both charges were heard together, the evidence in one being evidence in the other. At the outset of the hearing I was informed by counsel for the informant and for Mackenzie, and by the solicitor for the company, that the course that they intended to follow was to place before the court material relevant to penalty by statements from the bar table. No sworn evidence, either oral or by affidavit, was to be adduced unless a statement by one counsel or solicitor as to the facts was disputed by his opponent.