CATCHWORODS TRADE PRACTICES ACT 1974 (Cth) - Prosecution and Conviction - Non-payment of fines - Imprisonment in default of payment - Ability to pay fines - Discretion to order imprisonment. TRADE PRACTICES ACT 1974 s.79 CRIMES ACT 1914 ss.5, 18A JUSTICES ACT 1921 South Australia ss.81,83 LESLEY PATRICIA REARDON v JAMES PATRICK NOLAN Prosecutrix Defendant No. G5 of 1982 No. G6 of 1982 No. G7 of 1982 Fisher J. Adelaide 14 Octoher 1983. IN THE FEDERAL COURT OF AUSTRALIA ) No. G5 of 1982 ) No. G6 of 1982 SOUTH AUSTRALIA DISTRICT REGISTRY ) No. G7 of 1982 ) GENERAL DIVISION BETWEEN LESLEY PATRICIA REARDON Prosecutrix - and - JAMES PATRICK NOLAN Defendant ORDERS JUDGE MAKING ORDERS : Fisher J. WHEPE MADE : Adelaide DATE 14 October, 1983. THE COURT ORDERS THAT: 1. The application of the prosecutrix that the defendant James Patrick Nolan be imprisoned for a period of 6 months be dismissed. 2. The matter be stood over generally with liberty to either party to bring it on for further hearing on seven days notice to the other party. \ + IN THE FEDERAL COURT OF AUSTRALIA) ) No.G5 of 1982 SOUTH AUSTRALIA LISIRICT REGISTRY) No.G6 of 1982 ) No.G7 of 1982 GENERAL DIVISION ) BETWEEN: LESLEY PATRICTA REARDON Frosecutris - and - JAMES FATRICK NOLAN Nefendant 14 Oetober, 1983 REASONS FOR JUIGMENT Fisher J. In this matter the defendant James Fatrack Nolan has heen convicted of three very serious otfences being contraventions of 5.59(2) of the Trade Practices Act 1974. Gn 10 February 1983 1 imposed a fine of $5,000 on him pursuant to the provisions of 5.79(1)(a) of that Act an respect of one contravention, and $500 for esch of the two other contravenbions. Ioodarected that the fines were to be psid to the Daistract Registrar of this Court within 21 days of thst date. Ik is pertinent that the defendant was not represented on that day nor on an earlier occasion when submissions were made on the watters of vensities and costs. He dad not file an affidavit pursuant to the provisions of Order 49 Rule 5 of the Rules of this Court. me The prosecutrix on 10 February 1983 sought the imposition of an order for amprisonmment aim default of payment of the fines. However as it was understood that the High Court was prohably to hear an appeal from the decision of Miles J. of the Supreme Court of New South Wales in the matter of Thomas v Quarmby and Anor [19837 A.T.P.R. 44,303 leave was granted to the prosecutrix Lo apply on 7 days' notice for orders im default of payment of the fines. On this day the defendant asted for extended bine to pay his fines. J adjourned this hearing to a specified time in the following weel. When the defendant's application for extension ot tine for payment came on for hearing on 17 Februsry 1983, counsel for the prosecutrix apposed any extention om the basis that, on the information before the Trade Practices Commission, the defendant, who Was again unrepresented, would nmever be able to pay his fines. The defendant however offered to pay at the rate of $1,000 per month, contending that his financial position would nol permit him to do more. In the face of oOppasition from the prosecutrix, who would not consent to the time being in effect extended for a period of 6 months, mo order was made. Upon her counsel andicating that he had anstructions to apply for orders im default, he was informed that the Court could hear the application within a fortnight and tnat a time for hearing could be obtained from the associate. This spplication was mot pursued and no appointment was sought. Qn 13 September 1983 the matter was sqgzin before the Court when the prosecutrix made application for an order of imprisonment. The defendant has not paid the fines or any part thereof, which matters ware proved by the statutory declaration of the Registrar of this Court. The application was heard on that day and subsequently om 16 September 1988. The contention of the prosecutrix was that I had me chotce but to imprison the defendant for six months as he had tailed to pay the fines and her counsel expressly asked me to rule om this sutmission. The case of Te Vos v Daly (1946-47) 73 C.L.~R. 509 wus not cited by her counsel bul cowld be ssid to have some relevance although decided prior ta the enactment of s.18A of the Crimes Act 1914, Prior to being amended by 5.47(1) of the Trade Practices Anendment Act 1977 s.79 of the Act resd to the extent relevant as follows: "79 (1) A person who contravenes a provision of Part VY other than section 52 15 guilty of an offence punishable on conviction - Cad in the case of a person not being & body corporate - by a fine not exceeding $10,000 or by imprisonment for a period not exceeding 6 months; or Ck aae © The words emphasized were deleted im 1977 by 5.47(1) of the amending Act of Lhat year. In Juris Wilde v Menville Pty. Ltd. Ci98lj] A.T.F.R. 42,046 Smithers J. was of the opinion that 1% was proper for him to order aumprisonmment as 3 means of enforcing payment of fines imposed under the Act. He reasoned thal pursuant to s.5 of the Crimes Act 1914 andividuals woo aided and ahetted the commission of offences under the Trade Practices Act 1974 were deemed to have committed the offence sand liable to be fined under 5.79 of that Act. AS the Latter Act iid mot provide for the enforcement of the fine, $.18A of the Crimes Act directed in appropriate circumstances the application of State legislation. Smithers J. was of opiniom that certain provisions of the Magistrates (Summary Proceedings')? Act 1975 were applicable and empowered, if they dad mot require, him tao fix a term of iamprisonment an default, particularly as the offences were committed in Victoria. He also imposed a term of imprisonment in default of payment of fines in Ducret v Colourshot Pty. Ltd. and Amor (1981) 35 ALAR. o03, In Hollis v Clart (1981) 40 A.L.R. 179 Fox J. dad lakewise, expressly applying the decision of Smathers J. in Wilde ¥ Menville and exercising powers of entorcement embodied in the Justices Act 16986 of the State of Queensland. It 1s necessary to consider tne terms of s.18A of the Crimes Act which provide "118A (1) The laws of a State or Territory with respect to the enforcemant af Fines ordered Lo te paid by offenders, including laws making provisions for or in relation to - (a) the awarding of imprisonment an default of payment of fines; (bh) the allowanee of time for payment of Faines;s (ec) the payment of fines by instalments; or Gd) the giving of security for the payment of fines, shall, so fur as those laws are applicable and are not unconsistent with the laws of Lhe Commonwealth, apply and be applied to persons who are convicted ain that State or Territory of offences against laws of the Commonwealth. (2) A reference ain this section to fines snould be read as ancludang a reference to pecuniary penalties, costs or other amounts ordered to be paid by offenders. * In South Australia, Daivasion VI of the Justices Act 1921 15 an part wmwaberia wath the provisions of the Viclorian and Queensland Jegislation applied respectively by Smithers J. and Fox J. It desls specifically with the topies referred to in s.-18AC1)(ad(c) and (4d) of the Rrimes Act and I would have no hesitation aim applying the provisions of that Hivision of the Justices Act ain appropriate circumstances. Counsel for the prosecutrix relied upon s.81 of that Act as requiring 3 term of imprisonment for not Less than 6 months and 5.83 15 relevant. Sections 61 and 83 are in the following terms: "61. (1) The term of any aimprisonment for the enforcement of, or ain detaslt of payment of any fine or sum adjudged to be paid by a conviction or order snall, an the absence of any express statutory provision to the contrary, be deternined by the court amposing the term of imprisonment, or the court or justice assuing the warrant of commitment, subject to the provisions of this section. (2) Subject to sulsection (3) of this section, the term of imprisonment shall be determined within the following limits: (a) where the sum adjudged to be paid exceeds twenty five dollars or less, the term of Imprisonment shall not exceed one day; (hb) where the sum adjudged to be paid exceeds twenty five dollars the berm of imprisonment shall not exceed 3 period arrived at on the basis of ome slay for each multiple of twenty rive dollars canstituting that sum amd where 1t 2158 not exactly davasible anto multiples of twenty five dollars, a furblher «day for any remainder, (3) A term of imprisonment determined under this section shall mot exceed six months BB. wae 83, (1) When any application 1s made to 3 juslice to sssue os warrant of distress or commitment to enforce payment of any fine or sum of money adjudged or ordered to be paid by any conviction or order, the justice may, af he deems it expedient s0 to do, postpone the issue of such warrant for such tame and on such conditions (1f amy) as he thinks just. (2) In any such case the justice may direct Payment of the fine or sum by instalments or that security be given therefor, in othe manner provided by section 76." When the present applicstion came before me on 13 Seplember 1983 counsel for the defendant stated from the bar table that the defendant did mot have any assets mor any ability whatsoever to pay the fine or make any reasonable proposal therefor. Counsel for the prosecutrix accepted and asked me to accepL this etatement, contending that this state of affairs was guite arrelevanl. He asked me to consider his application om the assiimption hat Lhe defendant could mot pay the fines or any portion thereof and stated that he did not wish evidence to be given or the defendant to be cross-examined oan his means. He sought am order imprisoning the defendant for szx months an the ground that he was in default. Thais period of six months was the proper period, he said, in the light of s.81 of the Justices Act amd I mad mo choice and no dascrelion im the matter. I put to counsel for the prosecutrix during argument the following passages from the reasons for judgment of Smathers J. im Wirlde v Menville as at least suggesting tnat as 1 was attempting to enforce payment of the fines and mot to punish the defernlant, his ability to pay was relevant. &t page 42,660 Smathers J. made the following comments: "By virtue of 5.5 of the Crimes AclL 1914 individual persons who engage in sueh conduct are deemed to have themselves conmitted the relevant offence and they are liable to the monetary sanction set ont above, manely $10,000 am respect of each offence. In the case of the hantruptey of an individual on woom a fine has been imposed and which 1s not paid the amount of the fine 25 mot a provable debt whether it was aunposed umier the law of the Commonwealth or otherwise (see Bankruptcy Act 1966 s.82(03)). However a5 in the csse of a bankrupt corporation the individusi may be a person wathout the sources to meet the fines. The Act does mot expressly say what 1s to be the consequence of that situation. However 21L is mot to be thought that Farliament antenged that aif the offender could mot pay the fine that was the end of the matter. As a result it would seem that in these eyses the Court must deal at this stage with the matter of enforcement of payment of the fines lmposed on the individual defendants. ° At page 42,664 His Honour dealt expressly with enforcement by aiamprisonmment pursuant to State legislation of payment of fines. He saad, am words which I adopt, "Accordingly I regard ait as mecessary to order and fix the terms of imprisonment applicable in each case in default of payment of the fines imposed and oaiunm doing $0 have aun mind that Parliament excluded aumprisonment as the primary punishment for the offences. Parliament has indicated in the clearest possible way that contraventions of the sections with which the defendants have been charged are to be punished by fines and not by imprisonment. The period of Iwpriasonment contemplated by s.18A of the Commonwealth Crimes Act 1s solely to enforce the payment of those fines 3ndo1s not to be considered 36 3 punishment for the primary offence. lt 1s designed to encourage payment of the fines and questions of ability to pay inevitably obtrude,. * The Lalance of the reasoning in that particulsr Paragraph has also relevance in this matter. As I am asked to proceed on the basis that the defendant does not at present have the abiiaty to make any payment at all, the imposition of a term of imprisonment will not assist in any way im enforcing the payment by him of his fines. If tne fixing of a term of imprisonment can im ma way assist the enforcement of payment of fines, there would appear to be no ground for amposing it except as an alternative punishment for the main offence. In my Opinion because this alternative form of punishment is expressly denied, Io must pay regard only to the question of encouraging or aiding the payment of the fine. The fact that s.18A 1s directed ta the enforcement of fines 1s relevant to my exercise of discrelion as is the requirement that the imprisoning laws be not anconsistent with the laws of the Commonwealth. This reinforces my view that until some ability to pay even 3a small anstalment towards the fines is established, any prison Lerm can only be regarded as punishment for the primary offence. An order for payment by instalments can be secured by postponing the 3ssve of 3 warrant for commitment im sceordance with s.83 of the Justices Act. it is interesting to note that the question of abality to pay in these circumstances has been the subject of legislation in the Unated Kingdom. The Money Payments (Justices Procedure) Act 1935 provides that where a person 15 fined but no order for imprisonment is made and af he fails to pay the fine, he should mob be committed to prison without an enquiry aunto his means to pay. In RF vo Worang Justices ex Parte Johnstone £19423 2 KR, 249 the Lord Chief Justice discussed this legislation. He said at page 252 as follows: "With regard to that sub-section 11 is argued on behalf of the justices that, while they must mabe an enquiry as to the means of the defendant in the manner prescribed by the sub-section, af they think that 1t 15 a grave case they may commit him tO prison, even though they ascertain, as the result of the anquiry, that he has no means. That, however, seens to me to be quite contrary to the intention of the Act." Later he said, "The intention of the Act plaindy was to amend the existing law in the direction which the habits of Lhougtit of these times increasingly have demanded, mamely, not to send persons to prisom for mere failure to pay debts. Iothink the auntention of Sei, sSub-s.3, was to prevent a person being committed to prison in the circumstances stated in the sub-section, uf the Justices found that he had nO means to enable him to pay.' 10. There as no corresponding legislation ain this country as far as {£ am am expressly forbidden to mecessary for me aware, but IT conclude that ain to consider ability to pay circumstances where L imprison for the primary offence it is before being of Opinion that imprisonment wali aad the enforcement of payment. I therefore dismiss the application of the prosecutrix that the defendant be imprisoned for 3 period of six months but adjourn the matter to a date to be faxed for the purpose of examining the defendanty as to his means to pay the fines by instalments.: aren of mr. dusice ee, Cor 7! COV Cnher F mg Associate { 7 ™~ Dated ito /§ 3