— " ees F Trede practices - corsumsr epretectiorn - risky li¢crtio7 ceprecentation in magazine -flvertiserert - seprr wks 2-1: Siffterent editions - whether feo. rzte inforration laid within one yeer rerrveentetion thet "wrovugrt iren" ig - "of a perticuler quality" Trace Pr-etices tect Crircec Act 1914 5,2] Tréce Ereetices - cengurcir ~ratcction - acverticement of "rerlica cf has us2 |38¢ a timeniece - prralty - Trade s.53(c) J.C. Teoupem ov, FILSY "Merny PTY TTT, or (C. Nos 74 and 7& of 1°77) Cover: Keely J. Date cf Crver: 97 Buauct ]eso vVelbourne ETA ee ree ne erp Seren oer re ee en re © LF rerrorcertetirenc cf rerrectentctior é ef Foyer fora for - whettor rome gimratacn tree anada were, Mrmr ert et as etn et ee ee ee ee ee ne re at ne neti ee te mnt A — Dtiaathna. IN THE FECSPAL CCURT OF AUSTRALIA ) ) CENERAL DIVISION ) Cc. No. 74 cf 1977 ? ; ) NEW SCUTHY *8LES CISTPICT PECISTFY } IN TAP MOTTE of FR? Trace Fractices Ack . * 1974 BETWEEN: JOHN CEANVETO THIMDSOM Informert - and - RILEY MeFay PTY LIVITTD Defendant ORDEP Judae meking Créer: Keely J. Dete of Order: 2@ August 15£9 Where mace: Melbourne THE CCURT CESEFS THAT: 1. The information is dismissed. 2. Liberty 18 reserved to eacn carty to accly or seven izys' notice to the other perty and to the Peaister ba) n cn ante aiantenalaan mat taeda sees taehdemedtetna lot caneshddnesaneanedniannanamnenemememmensnettitmimemetenadmeiaemtamanetaetedinantemneteetnetnntnemamadaaeeemtte anata aan. ol JN THE FEDEF*L COUPT OF AUSTFALTe ) ) GENCFAL DIVISION ) G. Na. 7% of 1977 ) ) NEW SOUTH WALES DFSTFICT REGISIPY IM THE MATT? of the Traje Practices Act 1°74 BETWEEN: ~ JOBN CRANSTON TRAMPSOM Informant RILEY MckKSY PTY LIMITED Defendant ORDEP Judge making Oréer: Feely J. Date of Order: 28 August 1920 Where mede: Melbourne THE COURT CRDEFS THAT: l. The defcondant 18 convicted of committing & cortrav-rtion of $.53(c) cf the Trade Prectices Act 1°74-1976 in that en or abeut 2 October 1976 in the Stat2 of Naw South Wales, in trade or commerce in connection with the promotior by wewepewieewnee ne = : we mee ae ee ee cow ene mes wee eee en Ne ee ee PRR Neg, ee ae he ee ee ee ee advertising of the supply of goods described as a "Golden Replics of 499-Pay Clock", it represented that the sri goods had uses they Wid not have in thst the s214 aecis were not timepieces. of the contraiverticn. 3. Liberty is reserved to each party to eprly cn seven 4>ys! notice to the other perty and to the Reagistrer. FP TR ECR ET PET TS EE LTT AS eR A A = a Sm ee ee te et ee te he ee ~ oe ewe ee eee ee ee a a a IN TPE FFDEPAL TOUPT OF ANSTEALTA GEREFAL DIVIZICN and 7F& of 1°77 www ee a . a iP] n e ~ > NEW SOUTH VALES RISTRICT FITGTCTRY IN THE MATTER of the "rede Practices Act 1°74 BEIWEEN: ~ JCHE CRANSTCN THOMPSON tTnforment - and - PILEY McPAY PTY LIMTTFD DOcfendart REASONS FOF JUNGYFMT 28 August 19°90 KFELY J. These are two cherges alleging contraventions by the defendant of s.53(2) and s.53(c) rescectively cf tha Trace Prectices Act 1974-76 (the Act) i.f. before the amenerents effected by the Trace Practices Amenoment ct 1977, The *eferdécirt pleaded not guilty to the two charges which, by congent, were heard together. Section 532) 2nd (c) ef the Act provided: "A corperation sbell not, in rrzd2 or commerce, in comnexicr vits the sunmoty or vossible surely cf gcois ... or in connexicn with tha presotion hy anv means of th- turcly cr usc of aceds or scorvicos -- ro eer enen eR eR A TY SET RE tn we epee ee - woe mee sPRUPL Sita Nat emcee es Neh tn te et te eee et re tes oe a (a} falsely represent that goods ... are of 3 particuler standard, auality or grade, or that goods ere of a particuler style or mo%¢l; (c) represent that goods or services have spo shio, approvel, perfermance cheracteris ' accessorits, "uses or benefits the Jo not have; The evidence established that the defendsrt corporetion and that its actiors, the subject of the two charges, occurred ""... ain trade or cotmerce, in conrectier wrth romotion by e@vertising of the supply of gooJs" as ellsqecd ip the p Y 9 rly g two informeticns. It is converient to desl sentrately with two matters. G. No. 74 cf 1977 On 28 September 1977 John Crznsten Toorrson (tho informant) laid an information charging tnat the deferdent: "eee ON OF about 29 Seotember 1976 in the State of New fouth Weles ... im contravention of Tecticr 53(a) oF (th> %ct) 4id ir trade or cenmmerce in connexion with the cromoticn by 24verticina of tho supply of acowe Anscribed =s @ plant etand represent th=t the said aoods wero of 3 ouality in that in sn ecvertiserort in 'T € bearina dat2 2 Cctoter 1978 it dis state 'Girart Wrought Iron Perisian Cart ftand'." The cvidence snowed that the @eferndant bad scvertices RRRFED re peRRr ee TENE TAMER ERNE er aren earn en eee -« a ne te Se RR NR "Ww Giant Wrought Iron Parisizen Cart Ctand (the plant stene) inp the manner charaed. Mr Gleeson €.C., who arreared with "Mr Stitt for the defendart, arqued thit the eviderce if rot establish that the represent¢tion (i.e. that the plant stend was 2 "wrought ircn" stcnd) was 3 representation that the gqceods were "of 3 articulcr E Pp ees Quality" within the meaning cf s.52(a) af cheraed ip the information. Bugh Muir, a' professor of physical met=llurgy end bead of the Schocl of Netaellurgy at the University cf Now South tales, gave evidence thet an oxemination cf = rlant stand, te whick the advertisement referred, showed that it was manufectured "of sheet steel, steel] wire, and plastic" with a stoael ber forming the axle. As to the two wheels his evidence established that hoth the perimetcr end the decorative scrolls within vere meade entirely of Flastic. In my opinion the advertisement the subject of those proceejings, by the combinction of the words "wrought iron" 39 tne pictorial cepresentaticon cf the scroll work withir tke two wheels, represented thet at least the wrhocls of the plant stend, includirg 'the scroll work, Were wrought iron. "Mc Gleesen FiA not, of course, argue that the plastic wheels enqd scroll work wert wrought iron but he submitted that the represerntrtian thet theo plent stand was "wrought iron" was not @ representrtion that the stand was "of a particuler auslity". RIP ret emer mmm ns a em eet enmity er Seen oe ree mame camer er a Ta coalllaratenesteieecnmmeatentenenmensmenntenntadtiammmataeaiaananeananen In Federated Municinsl era Shire Cauncil Eretcvees! Urnier of Australie v. Melbourne Corroraticen (19)9) 26 C.L.P. T99% at p.574 Hiagins J. said: "It ag net necessary - or, as T think, d-sirckis - that we should, in enswering the specific avestion asked of us, corrit ourselves to 2 final, exhaustive definition cf 2 pocular phrase such as that in guestion. Tt 15 not necessery for uve, nm ordicr te Getermire whether thie Jispute (A distute fretyeen Sstrect cleaners, etreet lighters, &c., an?" there employer, the mMmunicipelity) is ean inéustri-] disctutc, to 4ofire fully 'in@ustriel Cisovt-' - to enumerete even @]] the characteristics, the fril econnetatior of an industricl disrute; any more than it is nocessary for us te define whet is 3 écg whan we determine thet 2 cartair cnimel ig # 7eq. To mv mind, a areat deal of tine is wested ant herm Jone by tha premature efforts of Courts to fefine exhaustively cxpressions of commer speech. ""e haynr to censider hers, rot technicel lanogura-, Eut the langueg2 cf common srercn, with all its indeterrinete connotations and denotaticns." I de ,not intend to attempt toa define "wrought iron". However, T have come to the ccnclusior thrt to represent thet items are "wrought iron" 1s to rerresent that they inrclu3e Gecorative screll work of solidity and rigidity. Furthor, thet such a representétion is a representation that the goors a "of A oD ™" babe perticular guality", notwithstanding Professor Muir's evidcorce u, n cross examination that the expression "wrought iron" ts ccmmonlyv used now in relation to products currently menufectured aut of cast iron, or of steel oc of cist aluminium alloy. JT also accent his evidence that "wrought iron" furniture is now trndina to he madc of cast ézluminium which me@kes "a solid, chunky profuct"; although it i1¢ Jighter than similar furnitur> made cvt of cest re wl 1ron Or made out oF steel it "would vossess rigitity ... not quite ren im) 'A ss ray as high as that of iron but still .... classe I accept the c¢cvidence of Professor Muir rs to the plent stand advertise? by the deferdant that: « "The sections -re ell very liakt and as a reeult the object lacks structural stability ané rigitity. Tt undergoes eacessiv2e clestic deflection uracr ler, If one were to lo#d it with bhesevv rot elents ut would also becote unctrble Encausc tho fact that the Structure is so ligrt merns that the centre of gravity of the loadet cart woul? be very hist, =n - thet it would be easily tipeed with cot plants or other weighty objects rloccd on it. A lacht teuch on it woulc be inclined to topple it." In my opinion the representation by the Jefenéant thet ot least the wheels, including the scroll work, of the plant stand were of a particuler au2lity, namely, wrought iron, wes e false representation. Mr Gleeson also araucd that the irformetion hat ceen 121d out of time. In order te consider this cubtissior it is necessary to examine the evieence of another witness in sor> detail. Peter Stewart Blanton gave evicence that he wes the circuletion maneger cf Austrelian Consolidated Presse Timite? ot the materiel titre, a rosttion vbhich involv2d work in connection with the distrikuticn of the maqezine TV Tites, which was distributed by Australien Consolidated Press Limited after beinsz printed by its cubsidscry company, Corpress Printing Linited. The IRR Ee Teen rs ree RETR TR ee = Ame ney eee eee Se -- wo eee eee me neater Pettey ap sine ieee ee ee fe re mm et ee a oe TV limes the subject cf the preeent informatior Face the covert date Cetober 2-@, 1976 (the materiel TV Times). These dates rel=tcd to the proegrerme infermetion (from Ssaturcsy to Fri?3y) contained tn the magazine 2nd h2d "rothing to Co with the fate cn which the magazine geee on s2le to the public". TV Times wes >t the matericl tire published throaughonr Australis, there being @ifferent "editiors" cf yt fer thn different "States. Further, in New Sovth Welec therc werc three editions, ramely, the fCyéney edition, the Inland edition an? en eCiticn referree te in evidence as the coastal edition - which was distribut. ' in placcs op both the north coest end the south coast. Almost all of the copies c£ the Sydney edition were dictribute? in the Sydney matrenoltitan area, c.g. te retai] news etends, book vendors and street sellers, 2]though sore copies "went up to the Meuntains ~- Gerenting on what the demand for it wes in vericus areas", The week)y circulaticr of the Sydney o7itien in 197% was approximetely ®5,C0°, Therc were various "on sale" cCetes for some of thr Gifferent ecitions of the material TV Times and there w3e ro on Sale Jate for cithzr of the New South Wales Courtry "Fiticns. Australian Consolidated Press Limited communicated with novezyertes by a mentnly newsl:tter called ""tawsacents Vere" shich listed on the back pzge the on sale dates for various sublicetionrs includirs IV Tircs. The cn scale Gate For the Sytrey edition cf the moterial TV Times was Wednesday, 29 Septomber 1976 art? the copicse cf thet REN TE BT EE A TUE I tO Mt ES wee eee nee | eee - edition would have been dclivered te mest if net s]] revsaserts cr the previous 'ay, Tuestay, 28 September 1°76, The on sele Arte ™" for the ecditicns ter Victeriz, South Austrelia ard Vestern Australia was Nenday, 27 fCept-rber 1976 2en3 the en erie fate fer fon} a rr iv) tad ra) wo ~ nN . the Tueensland <zdition wae Sunday, 26 § @ - pte The copies of the TV Times sent to the country could ao or sale te the puklic on their receipt by the newsagerts. Coriecs of the country editions for ew South Vales were coll-cte? on Saturjey, 25 fectemorr JATF for Aeliv-rry to preverqents, mnaort from q) oo a oLad ™ Ly] wellorgong an? Newcastle, country nowsroents in fhe normal course would nave received their ceries cf the materiocl IV N Times on Monday, 7 September 1976 sré "there was notking te prevent the magezine coina cn cele or thit dzte in those caacs", In cress examinaticn by Mr Gleeson, Mr Blanton saqreeé that, 2s to the material 7¥ Times, the ifferences betucen the fyirey edition and the two New South Wales courtry editions were "in the content c£ the infortation contained between wages 46 and 61". Those pagze contained infermaticn as te the particular progremmos for the charnels in c2ch geograchical erea cencerred, Otherwise, the editicns were "the same" - exceot that the -ditiers 47-4 the bee word "Sydrzy" cr ottir cepropricte desiaretion on the ton of the fel) front cover. Fages 1-45 centaine feature articles, eliterial materazl and advertisements incluting the adverticement che subject of tre information. Similarly, the differences betwear the Sy@nzy cditicn 7p? the cfZitions fer otoer States were "Nin the IE ET EO RS PI Lo Ne tt oe nee are pa Nor i eM —.--- wae eee Ae eee Es (aaa ERP i ee es. 7.) "a - * centent of the inferm- tion cortzine? betueen raves 2S cnt fy" as to the Progr: TES. a The two irformations at fFresert before the coret varc the subject ef two coses stated by S* John J. which were Jorlt with ar the jyudgmert cf - Full Cevrt in Thorrser v. Prl-y "etry Pew It? (1820) 29 A.L.E. 267. tr that casz Franki J. seia (at oo.t?e-3)a ant "At least 1f the facts of this cetse arc tr- 'TV oe Times' was a sublicrticr with a r2ssonthkly wivt - cirsvulaticor cc that en ~Avertisement ir it covlF fo ceotperc3 to an acvertis2nent telecast ky 2 -_——— tclevision station, T jo rot conceijer that there 1¢ _— any need te astablish that cny writtrr fele- reprvsentation wes cemmunicatec te any seecific a person. ~ —— In the cace of an edvertisetent in a jourrcst having — sufficient circulatien for tre court te be artigfic? am beyond re=sor2ble doubt that it ves likely co heve . ™ been scen by & significant number of renfers J Fo not think tkrt it 1s recresary to oreve th2t tre - alleged fFelse represertaticr was cemtrunicate? to any particuler person or rercens." ~~. - In the sate case Teane J. said: " (at p.27f) "There is net, hovever, imrticit an the aoe word 'represent! any requirement bret tho — representation sctuelly reeck, er Er unsr-rstoo? ty, the intenésa represerntes. The act of rerroctenting - 3S complete ores the subject matter age irr. voozkly Ste) set forth or disseminsted upper the course whicr is inten#724 to Jeri to the anterdc? riproesmtze cer representccs." (at £.277) "In eech of the pre allege? zct of representing wee 2 the time wher tho relevant mecazine «ret fire offoarcd fcr sele te the Eublic or Pt the tine ynr- the relevert teazzin-e, e sile, .es First rurchs eel by > merber of the tublic. EEE YE PRM Oe mp Ne ee ee ee aw ve) It 2S unnec'csery, for th> purpores of the rr cart ar etter, to ferm or exercises ny vitzy 2S Fa which «nF _— those sltcrnetives as to be arareer Sarce 2t »culs appear tc be corron groure trat the relevert qourr-] . was, in sch czeec, sola in cubstantial curr ttisee tc the prblic. eee ThE ret of rerrcsertire bring ' complete, ef the letcst, wher the wearticules ree) of the jovrral was offercd for sale an? ecla, theo feet that the ctdvertis-~cnt cmav subsecuertly rove been rerc by theusenie of rcoegers Jie pat inriclve 2 new cnc indesandent act of rerresertirg ¢n cithor - the first cr on ocrck cecesion that a orrtacular a recdcr héeppered to reed it." > 7" And Fisher J. sait: _ - - te (at p.284) "J... ain reerect of prommtian ky ~ eadvertisinag an particutsr, T do rot sre the _ necessity or justifrestien Fer recuirina crecef that the repres2ntaticn came te the notice cf 7 srecified representcc. 4 merch*nt promotes by arrangirg fer cr advertisoment to be iunserterc in - newenecer or ~ journsl. 2 sees so on = number of resumetiane, net necessarily all justified, 1¢ that = number of Newspsperes will be curchase?, that sors of the i purchasers wiJ1 read his edvortisenent, and th3t, mn . conseaucnes cf reacina, some cf tre readcre moy ct seme stage be inrduced to bvy his gecte."— - ™ a (at ¢.285) "... to represent doce rot always reovirt & representcs, *nd especially co ir the context of " promction, There 16, Fowever, authority for the orcrositicn that a fergon ray represent <= state of things without wekairg = 4irzct cemmuricatior «with - parser affected." - Applying the judgment cf the Full Ceurt to tke Facts nov estecklished befora the courr, FT regard the defen@ert's act of representing eas being ccmplete: "oe. at the Toatest, when the particular tssue cf thr jourrel sas offerce® for sale en? cele (ori) tac fac tr-t the cdverticomcrc tpav ¢ enuss*ly nove eubs been reo? by thousenac of reaetrse Jia mot irvelvyr 2 RR a crn re ee nen a ee a, en ermee ae e ros new end initpencent act of representirg op ezithor the firet ocr on each occcsior thet - particular reader hapoznee to reed it.". (cer Leane J. at p.277) The cvigence showee that the inforvetion, which vas JAid on ip) 28 September 1977, woe not laid within one yeer of the "on s2lc" 'ec wae it lai? date for the materi 3} TV Times in v-ricus Ftrites. a a within one year of the date on which copies of the two Noy South Walec country editions were likely to heave toen first cffered for Sole and sold, Mr Mastorvwan ¢.C., whe eppecred with "rs Flerins for the informant, relied on the evidence thet the or sala date fer the Sydney edition was Nednesday, 22 Sertamber 1976 end argucad that, because "the making availskble to the public aenerally was 7° September, .. the representation «as made then". Mr Mactermen also submitted that a separate offence w2s committce in Adelsico, Brisbrne, "Melbourne and in ech of the two country -rens in "sv South Wales in additicn to the allege? cfferce in Syfney. Fowever, the cvidence, te which 7 have alrerdy referrs3, demonstrates that pages 1-45 (enJ pages 42-£4) of the veéerious editions of the material TV Times were the came ané that tha only @ifferences in tho editions were the progremm-s set out on erges 46-61) erd the -porcprizte aztmc cn the Frent covir (e.9. ""Tytpey"?. Furtrer, 65 Cecumert, tendered in evidence by the informant fs 2 cory of the orcéer rlriced ty the defendart for the mubliceticn cf the advertisemont in the materizl] TV Tires, sitely referred to "TV IFO EE SEER ENR RRR ERT ERR Mn ee ce re en ce ene ee il Times: TIssue date 7.10.76". Tt 2id not rzk. any refererce to any "edaticn"; nor did 1t state that it wished the eaverticem-nt to bs pleced 1n eal] of the editiore. Msither jt nor any cthor eviderce esteblishcd that the defondant had teny knowlotcqe thet the publishers of TV Times had @ifferert editions which conteaine? different frogrerme informetion. - Cn the eviecnce IT So not coneider th2t 3 separzte effence was committed in Sydney, -fter the deferdart's act of rerrescrting was alreecy complete ir other ftetcs and ir country ¢rezs in Mew South eles. Mr "ceterman conceded that in thet event at woul not be necesssry For the court to rule uror his applicstion - made after the final ea@dress for the Jefence end opposed by "Mr Gleeson - for lsave to amerd the infermsticn ty inserting the words "trea Eydney edition of" (the TV Times). The informept having frile* te setisfy me thot the information complied with the reauirsmert of ¢s.21 of th- Crimes Act 1914 that it be laid within ono year cf the cenmissicn of the offence, the inforretion in GC. Mo. 74 cf 1977 18 dismissed. G. Ncw 78 cf 1977 On 29 Sertetber 33977 the informent Jr10 er arfoerration which, aS amenfed at the hearirg, cherocd that the defenFert: PROP SERA TRAE Ree En oe iene oe TE = en ee ee eee ee ee ee ee we FH Err RE ee ae eR a ne ee ee mr i ee a eee "J... On or ckout 2 Cctoker 197 ain the State cf Mow South Wales ... in contravention of Secticn l(c) of (the Act) on trade or commerce in connexion «ih the Promotion by cdvertisinn of the suerly of ecods describcd 75 'COLCDEN REPLICA CF TRE "400 Dry Choc! fclsely renresented thet the said naonte baa uscg they do not hsve in thet in en savertienrert in ey Idee" cearing Sate 9 Cctober 1976 it il state '3 crystal clerr dome ercloses trie f2ecin-ting rerli of the traditt ene} annaversery clock recres2rt7d overy dotc1? Erom: the qalden ares ert Fisures the delicate yellow Fece to the 4 gol tr snhericai A wo counter-b3larccs which actually revolve ac they do on the origiral priceless tireriect. an 12a] decoretor ites to maks ar exclusive faral point to your lourge, stid4y or tinine roe, Your envious gusts will ye2ze with Prazemont cad intriaue hen the counter-balznce turn constantly 75 they heve for countless yoors to keop perfect tire on the originel unique vesterpieces of cr-ftemanshor n Mr Gleesor subritted thet the Jefendant had net, bey its advertisement of thé ""golder replica of thre 490 day clock", representc' that the replica pai a use that it 419 not have, namely, 3 us2 as timepiece. He contended that the word "clock" Gy in the edvertisement wes not @ representation that the revlice wee > tory an operative timepiece when regard wes haa te the law price eek Ste ($f.95), the fect that it wes describe? ae = "deccr=tor 1tem" ir the prominence given to the worts "plays music and revolves". ro) tC also relie? ugon ths "conteyt of a ruffing féycrtiscment thet ie obviously replete with exaggeration"™ and cubmitted that the ue-r of the words "counterbelances which ectusally revolve", tender to suggest that 1t was ret an operative timepiece - on the grorvre that it woul? be unrccessery to mention thet Frot ie Gh veers = % Tt mey be that a careful rerd|er of the civorticcrent, rho -- Sad studjed the precise wording anetyticelly, woul? rat hove helices that the replic> w2s represen ot fi) iat i] 12)te) uo i) ve} pedfe} % D nm vu + us n ct be> '3 a >> Uowever, I adopt with respect, ef beina caually ecrriicshis to this ' c3se, the statemont of fmithers J. in bis dvegerert ~x WwG ercen ve. Pionerr Homes Pty Ltt (1999) 29 AT LP, 597 at plane Py "The question is, therefor-, whet wou'4 @ riseenehle= terjer of the class to shack the sdvortisemcnt was directed reascerzbly urderctarné from the advertieo- rert. eee The kind of reaAcr conrcterrn>2 is ite likely toc be a man or womar of indifferent educrtion, ... 7nd unzaccustome? to anrlysing business eccurents." In the same case (ct p.€09) Franki 3. (with whose reesors fer Ss judgment Nerthrop J. agreed) reperted what he had gaia: +. in relation to s £2 of the Yet in Menen- ete) System cf Avetrelir Pty L+d v Uchilliets's "irre Pry Lte (187°) Br ALR 22° at 2443 5 TRC S773 (197°) ATPE 40-149 at 18.512: 'Proaaly soesking it is fair te sey thet the 'relevart persone ar-> these rot particujerly intelligent or weld inforr-d, but pertars cf sorevhet loss then evereae intelliceres and bacrgrourd knowledgo, clthough the teet is met the effect an a perser who is quite unusnelly stupid." ~ In the preeent matter I infer that the fersors to whor thc advertisement was directed incluce those described by Frenki J. in that passage. In my opinicon the defen*ant by its Favertise 7 nt represented that the 1tem was an operative timerie-e, The centext includes a stat=rent that it 12 2 ""fascanzting replica of the traditien2] anniversary cleck rerresented in every Cetatil" and <z . ve enneentmrenrce te ear na mene Are ne ce ne ee ee ~ 7 we en te ne a eer cnet ete eee eat amar litle reference to "the criginal priccless timepiece". T a2¢ccert "r Nasterman's submissicn that the promincrce giver te the wore , "clock" (wbrich appears thre> times in the edvertiscront ane orter form) in that context is such that - in the eksence of @ clear statement thet the item did not tell the tite - the sdvertis-ment represented thet the item was a timepiece. Acco*7inaly, tre aefendrnt must be convicted, I turn now to the gucstion of ceralty, in resrect of which -wo 't ) A bas ya the informant teneerod the following 7271tion (1) A notice, dated 2 September 1977, under ¢.155 of tho Act te the dicfendant ard the defronéant's revoly dated 22 September 1977 whach included certein ccpy letters. At Mr Gleocesen's suggesticn these documents were received subject te his objecticn that they were not relevart to pen3lty. Having now ¢cxaminet tho decuments, I uphold that objection. The letters tc the doefencant from WN. Bouser, V. Marinborne and MM. Brown refer to allea-i gefects in the gocts which are unrelated to the defendart's representation that the item advertised wes a timepicce. TH aD iP) letter to the defendent from Mrs G. N. Cummina cempiaine? 'hat th utem received "does not conform to your advorticstent". "aC Curming also wrote to the Censumer Affairs Furetu, ueenelan-, cempleining that the item ""wrs merely 8 rrainted clock face". However, that letter is deted 27 "arch 1976 whorers tho forrer letter - te the defendant - apparently was written sere ain, yerrs previously, berny ceted 22 February 19€7. The only other letter _ peer career ft erm rn Semen meee RR RN A A IR IRIN em a er, at =e R= a re ee ee ee et to the defendent - From the Consumer Affairs Purezu, Cuc\erstand - w2s dated © April 1976. Tt was not a forma] cotrlaint by th- Burecu; it was a lctter seeking certain infermaticn cre onclesing copies of the two letters fron Mrs C. BM. Cumming. (2) Certain questions asked of the @efendant in « Metice-r, dated 30 March 1377, under s.155 of the Act together with th: iP] defentzent's answers. The enswers stated that betac.a 19 Fobrusry 1976 and 22 April 1°76 the dofengant wis suoplied witr 4,229 of the "Golden Feplice of 400-day clock" at a cost of $1.7? CIF ner unit. During the célendar year 1976 tho CefenFent sola "*,346 of the rcplicas. At Mr Cleeson's sSuagestion these dcocurents vere received sukject to 'his objection that the figures as to salet werc irrelcvant in that they releted to sales over the fill yerr of 1976 and did not relete to this particular edavertiserent. T uphold that objection. The figures as to th> number of replicric supplied to the Gefeneant were tencered "in respret to the procits mece and the number cf items ..." and were net objected to ky "re Gleecon who fointed out, hovever, that the cmourtse "do not take account of customs duty or sales tex". In my view inform?ticn ir this form cannot operate to increase the amount of the fine thougqht to be approgrirate by reeson of other relavent considerations. (3) Two aedvertiscrents by the deferdsnt woubliched in the "iow Idea" in Junz 1976 which were identicel to the advertis-rent the subject of tne inforrzition <xcept that cach one het @ ep-cafic FOREN TE RE ND Ne RT at Pee nm see ee mca mS Re eee ee - weening to the rezder of the advertisement that "enctiert cicck replica 18 a muSical bex! - not a time-piece". The Cefendant did not call witnesses or place eny other Material before the court as to penalty, nor did 1t seek to address in mitigntion of benalty. Franki J. seid in Given v. Holland (Pelerres) pty 74 (1977) ATPR 40-029 at 17,379: "In f2xirq an eggropriate canalty I start Ev rorina that the mexirum penelty is $5,9CC. This ceanatty is applicabl: to any contravention Fy 2 boty corporete of any trovision (excert sec.5?) in Pert V of the Act. This part incletczs all the ecscticns of the Act which deel with coneuTter orctectior cn* theses secticns prohibit a large ruaker cf witely differing unfzir sractices. The d2fenccs avaijabl: é@re very linited, sré indeed, at the relevant time, @ false representation m37?° as a result of ¢ hon- fide wisteke was not cxcused unless the defentart could also show that it hae taken ressenzbl> Precautions and exercised Cue diligence te avoid tks contrevention. The maximum penelty under the Trade Practices Act, 1974-1976 is m=ny times greater than th7t usualiv found in leajslcotion krosdly designed to previse consumer protection e.g. in the United Riraton Tre o7 Bascrirtiors Sct, 19€8 (as at 1978) nd tho Yew fouth wales Consumer Sroetretien Yet, 1969-1973." In dealing with an sappecl ageinst a judarert ircosing a pecuniary renalty for ccntravention of the resale arrce maintcnance crevisions of the Act, @ Full Court in Pye Trfuctrics Sales Pty Ita v. T.P.c. (1979) ATPR 40-124 at 1°,324% sod: "The organization 2nd Mr. Kick in particulser sore well were of the provasicns of the Precc Practice GE RTE GO Ee ENR Oe neni mn Ne ee ee , cre - ose oss naac inanaaadanesa nde, eheemands oneadmamne aaansadeleaheenaiaaeaeemhammammnntetineel kenmemenetee eateatineatedaie a - - - ee ee ee et ee ne ne ei Act. It wes seid in Trade Prectices Cormiscion v. Stih] Chein Saws (uc*.) Pty. Lte. (1Ce7e) .7Ton 40-0°) =t pf. 17,€%6 2s to the principles cerliccshle to sec. 7: 'The penelty sheuld censtitute s reel runichrent Proportionste to the dcliberation with whicr the Gefendent centrevence the previsicns of the t-t. Tt should be sufficicertly bhiah to hsvc 3 Jeterrent cuiluty and it should bo kerb in tind that the Act operrztes im 2 commercial envirertent where @Ceterrorce of thee: minte4 to contrevcne its provisions is net likely to ba echicve V renalticts which tre not reclistic. Tr should reflect the will of Perliament that the comrercis] stendoras laid down in tke #ekt must he cbservecd, but not be se high as to bs Oprressive.' cf. alse Tredeo Prrctices TCermicsior v. i 74rd Bty Ltd. (1°79) STEP 46-195 art Trec 107 a Cormmissicr v. "rlicys Limitoc (197°) SFr 4o-1I," In my view that passage is equally epplicable ta <= fine imposed upon the gefentent for an offence egqainst s.fl2(c) cf the vv ) Act. the fine "should constitute a real ovnishment proccrtiora Lo the @eliberation" of the cefrndant 3nd "shoul? be sufficiently high to have a deterrent auality an? ... deterrence ... if not likely to be achieved by penalties which are not realistic". The Act is intenced to protect the rcublic and poenaltics murt be suck that 1t will be rezlized by these concerned "thit the cermercial standards lai@ Jown in the Act must be observes". On the evidence in thie metter ineludirg the cvisenee - tendered on the question of penelty - of the omise1on From th acvertisoment of the specifie warrirg ("not 2 tame-niece") which appeared on the defentant's advertisements in June 197F (sce paragréfr (3) abave), I Find that tho defendant cuite Geliberat-ly e 1° . breached the Act and the penzlty should reflect that Jclitereticr. As Smithers J. said in deeling with proceodings unger 3.582 ~ c) the Act in Eve v. Merde Motors (Seles) (1977) %FTPF 40-0920 17,306: "From the point of vicw of blameworthiness thore is a cansidcerskic difference between the firet rio efferccs anc the esubsecucnt five offence wor caveie may be said in relation te tke first reo of fencac the suks:auent oncs were committed after 2 clecr wéerning sigral the significance of which was 71lzcst totslly ignored. Accerdingly, subject to the obso2rvetion skave concerning the risk cf an avprorr tists ~ nelty beens oppressive in a particul2r cese, it ecems clic-rr that penelties imroced by the Court ought to 2 such as to reflect the Cegree cf culpebility involved and to have a deterrent guclity. eee COmtraventions due to cerelessnese 2re not permissible and must k-e punish-<¢, Cf cours- such ceontraverticns are not in the seme orter of culpebility as these involving a intention to deceive." Although the offence tcck place 2s fart of the conduct of of zt mail order business, the possibility of exemain=tion of the aecis before a purchase was not excluded as the advertisement gave address of the ¢efendent and etated "visitors welcome". adfition tne advertisement offere4 a "full immeaists refed satisfied for any reason at any time ~- that's cuaranteecd" has not been suagested that the defendant hrs filed to that offer. I regard those facts as tritigztine the offerce Thovpso7 ve. Mranessi} Pty Ete (No. 1) (1377) aATPE 40-732 St the Speer reren greet (mine © pee mete rn me ee es eee ee nee He --—— eee ee ee - pee: [RRR Ore pre ern nnces Sane RT R ES rR ar e—r pe ema mm w ep e m per €t John J. - and have teten then into ceceunt in fixine the fine. However, lest the defendant or other persone or ceorror- ations be misle@, I should emphasize that, 7s Smithers J. sc27% In Trace Precticese Cemrjission v. Gtirbl Chain Saws (Avet.) Bry. Tt. (supra), in the passage set out ezrlier inp thr auotation frem th Full Court judgtent ir Pyr Incustrice Fetes Pty. Ltr. ve. T.P.S. (supra), penelties "should reflect the will cf Farlizrent thst the cemrercia) stan@srds Jaia Gown in the Act wust be ecbecrve?, but not be so higt es to be oppressive". Further, an cffer of a "Frl} refund", if acted upon, would necessarily have involved the Furchaser in the trouble end pessibles expense of returning the goods. Tt does not excuse the defendert's ecticn in eny wey but it is eae circumstence 1n mitigation. I have also taken irto asaccourt the price of the iton advertised as having sone effect by way of mitigation cf the Seriousness of the cffence. However, agein it shou]2 be cleerly understood that the statement that the "commercial standards 1717 down in the Act must be observed" appli2s equelly to regresctnt- ations ir respect of low-priced goods. Having regerG to the evidence 2s to all the fects ant Circumstances, including the evidenc an fag zs oy lagi) La D) + Ts3 ra uy .) ~ > ie) '2 copies of the material 3ssue of the "New I4ea" conteining the advertiscment were distributed - ain exe o 8 "yh 9 nm ° rh wy oa) ~2 o a3 G oO ur " Sydncy erd more tron 27,900 for the rest how South wrles - cr taking into -ccount 91] of the tatters to which I have scferrec, T a ee ee ee ee ame = 5 iret, woe wot Oe IES TORE RATT omen ramen rn ge impose a fine of $6,°09 1m matter G. No. 7R Of 1977, Neither side referred to th> cuesticn of costs in of either of the two informtticre. accorfirdly, T liberty in both netters for either party to cprly vpon seve h yt '< A notice to the other side ond to the Fegistrer. I certify that this and the nu dan precedins yr 'gaea Reasyo 3 fu 2 cory of the Veugule it veseat of hig Honour Mr. Jusvice Keal, 4ssociate Dated: 27 Zar wo