CATCHWORDS Trade practices - Prosecutions - Minister's consent required - Discrepancy between Minister's consent and informations laid - Power of court to amend informations - New charge - Limitation period. Trade Practices Act 1974 (Cth.) ss.53, 163(4) (b); Crimes Act 1914 (Cth.) ss.21(1)(c), 214. Douglas Anthony Gilmour v. Midways Springwood Pty Limited QLD Nos.18 and 19 of 1980 Coram : Brennan J. 19 November 1980. Brisbane. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QLD Nos.18 and 19 of 1980 GENERAL DIVISION Ne a BETWEEN : DOUGLAS ANTHONY GILMOUR Prosecutor AND : MIDWAYS SPRINGWOOD PTY LIMITED Defendant ORDER JUDGE MAKING ORDER : BRENNAN J. DATE OF ORDER : 19 November 1980. WHERE MADE : Brisbane. THE COURT ORDERS THAT 1. Both informations be dismissed. 2. The prosecutor pay to the defendant its taxed costs of the proceedings. IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) QLD Nos.18 and 19 of 1980 ) GENERAL DIVISION ) BETWEEN : DOUGLAS ANTHONY GILMOUR Prosecutor AND : MIDWAYS SPRINGWOOD PTY LIMITED Defendant Coram : Brennan J. 19 November 1980 REASONS FOR JUDGMENT Two informations have been laid against the respondent, Midways Springwood Pty Limited, charging it with offences under s.53(a) of the Trade Practices Act 1974. In the information in matter G18 of 1980 it is alleged that the respondent did in contravention of that section in trade or commerce in connection with the promotion by any means of the supply of goods falsely represent that the said goods had had a particular history in that the said !lidways Springwood Pty Limited did on or about the day specified in the information, represent to James McPherson Leighton that a Holden Sunbird sedan registered number 867 NGU supplied by the said company had travelled approximately 2,500 kilometres which said representation was false in that the said vehicle had travelled substantially in excess of that distance. The information in matter G19 of 1980 alleges that in contravention of the same section, s.53(a) of the Trade Practices Act, the respondent in connection with the promotion by any means of the supply of goods did falsely represent that the goods were of a particular quality in that the respondent did on or about the day specified in the information represent to James McPherson Leighton that a Holden Sunbird sedan registered number 867 NGU supplied by the said company was like a new car which said representation was false in that the said vehicle had been partially submerged in water and had had extensive repairs as a result. These are offences in respect of which s.163(4)(b) of the Trade Practices Act has application. That section provides that proceedings before the Court for prosecutions for offences against the Act shall not be instituted "except with the consent in writing of the Minister...". A provision of this kind requires that the prosecution shall not be begun without the prescribed consent, the commencement of the prosecution occurring when the information is laid (McDonell v. Smith (1918} 24 C.L.R.409). On 15 September 1980 the Minister gave consent to the institution of a prosecution specifying the offences to be prosecuted in the instrument of consent which he signed. The offences ul to the prosecution of which he gave his consent he described as follows: "(1) THAT on or about 21 September 1979 at Springwood in the State of Queensland Midways Springwood Pty Limited in contravention of section 53(a) of the Trade Practices Act 1974 in trade or commerce in connection with the supply of goods falsely represented that goods had a particular history in that the said company did in connection with the supply to one James McPherson Leighton of a 1978 Holden Sunbird Sedan bearing the registration number 867 NGU represented to the said James NcPherson Leighton that the said vehicle had travelled 2542 kilometres whereas the vehicle had travelled substantially in excess of that reading. (2) THAT on or about 21 September 1979 at Springwood in the State of Queensland Midways Springwood Pty Limited in contravention of section 55(a) Of the Trade Practices Act 1974 in trade or commerce in connection with the supply of goods falsely represented that goods were of a particular quality in that the said company did in connection with the supply to one James McPherson Leighton of a 1978 Holden Sunbird Sedan and bearing the registration number 867 NGU represented to the said James McPherson Leighton that the said vehicle was like new." The information was laid three days later on 18 September 1980 and is, as I have recited, in terms different from the terms to be found in the Minister's instrument of consent. The difference may be of significance, for 1f the Minister has not consented to the prosecution of the offences alleged in the information, the Court has no jurisdiction to entertain the proceedings and the prosecution must fail: R. v. Bates [1911] 1 K.B.964; approved by Isaacs J. in Berwin v. Donohoe (1915) 21 C.L.R.1 at p.25, It would seem, on the authority of Berwin v. Donohoe (supra), that if the Minister's consent were expressed in quite general terms that would suffice. But where the Minister limits his consent, the limitation is one which the informant is bound to observe in the laying of the information. In the present case, the difference between the consent and the information relates to the element "in connexion with the supply of goods" in s.53. That element was the element selected by the Minister in the consent which he gave. The information chose another element: "in connexion with the promotion by any means of the supply or use of goods", The offences created by s.53 of the Trade Practices Act have a number of elements. Each combination of elements together constitutes an offence different from the others created by the same section. That is not to say that the facts which would support a conviction for one offence under s.53 might not at the same time support a conviction for another of the offences created by the same section. However, the question now relevant is not related to the evidence necessary to support a charge, but to the identity of the particular offences charged. For present purposes, it is necessary to determine whether conduct of a kind specified in one of the lettered paragraphs of s.53 when combined with the several alternatives in the introductory part of that section constitutes differing offences. In my opinion it does. It is an offence for a corporation in trade or commerce "in connexion with the supply of goods or services" to do any of the acts specified in the lettered paragraphs of the section, It is another offence for a corporation in trade or commerce "in connexion with the promotion by any means of the supply of goods or services" to do the same acts. It is immaterial that the same body of evidence might support a conviction for either offence. A sufficiency of evidence to support a conviction for either offence does not establish the identity of the two offences. It follows that the Minister consented to one offence but another offence is to be found in the information. The disparity between the offences means that the offences laid in the information are not the offences consented to by the Minister. Unless the information can be amended in order to permit the commencement outside the time limited for that purpose by s.21(1) (c) of the Crimes Act 1914 (Cth) of a prosecution for the offences to which the Minister has consented, the informations must be dismissed. Counsel for the informant seeks an amendment to the informations in order to bring them into conformity with the consent given by the Minister. But if the amendments would have the effect of alleging offences different from those which are presently alleged in the information, the application must be refused, for the time limited for the commencement of the prosecution of the offences contained in the proposed amendments has now expired. Aithough an amendment to an information can be allowed outside the time limited by statute for the commencement of the prosecution of an offence charged in the information (Rex v. Wakeley [1920] 1 K.B.688) when the offence proposed by the amendment arises out of the same facts, 1t seems to me that the immunity from prosecution which s.21(1)(c) of the Crimes Act confers may not be circumvented by the exercise of a power to amend under s.21A of the Crimes Act. Indeed, to deprive the defendant of the benefit of s.21(1)(c) would be an injustice which, by force of s.21A(3), would preclude the exercise of the power of amendment. Counsel for the informant relied upon R. v. Newcastle- upon-Tyne Justices; Ex parte John Bryce (Contractors) Limited [1976! 2 All E.R.611 to support a submission that a variance between the amendment sought and the information of the kind that is found in the present case was not such a variance as to preclude the exercise of the power to amend, but in that case the judgment turned upon a particular statutory provision, s.100 of the Magistrates' Courts Act 1952 (UK), which has no relevant counterpart here. It follows that the application for leave to amend must be refused, and the informations must in each case be dismissed with costs to be taxed. This is to certify that the preceding 6 pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Brennan. rm fk c) Bt. et Associa e. Dated : 19 Nov 1980