SUDGMENT No, J} 77 B87 CATCHWORODS TRADE PRACTICES - unsolicited services - solicitation procured by alleged deceit - whether "unsolicited" - whether services to be supplied in future covered. TRADE PRACTICES - representation that affiliated with publication - no publication of that name - whether representation as_ to origin of publication one of "affiliation". Trade Practices Act 1974, ss.64(2A), 53(d) Phillip Augene Rizzo v. Joan Wall (nee Craig) Qld G133 and 137 of 1987 PINCUS J. BRISBANE 25 NOVEMBER 1987 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION BETWEEN : AND: JOAN WALL (Nee CRAIG) MINUTES OF ORDER JUDGE MAKING ORDER: DATE OF ORDER: WHERE MADE: THE COURT ORDERS THAT: 1. 2. The summons in the dismissed; The summons in the dismissed. Settlement and entry of Order 36 of the Federal PHILLIP AUGENE RIZZO matter matter QLD G133 & 137 of 1987 Prosecutor Defendant PINCUS J. 25 NOVEMBER 1987 BRISBANE G133 of 1987 be G137 of 1987 be orders is dealt with in Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G133 & 137 of 1987 GENERAL DIVISION ) BETWEEN: PHILLIP AUGENE RIZZO Prosecutor AND: JOAN WALL (Nee CRAIG) Defendant PINCUS J. 25 NOVEMBER 1987 EX TEMPORE REASONS FOR JUDGMENT There are two prosecutions, nos. 133 and 137 of 1987 and I shall deal with them in that order. No. 133 1s an information reading as follows: ... that on or about the 14th day of October 1986 at 56 Currumburra Road, Ashmore in the State of Queensland, JOAN CRAIG trading as R & Jd PUBLICATIONS was guilty of an offence against Section 79 of the Trade Practices Act 1974 as amended in that the said JOAN CRAIG trading as R & J PUBLICATIONS did, in contravention of Section 64(2A) of the said Act, in trade or commerce by use of postal services assert a right to payment froma person for unsolicited advertisements without having reasonable cause to believe that there was a right to payment." On that information a summons was issued making allegations in similar terms and including the following particulars: "I Between the 19th and the 23rd day of October at 56/58 Deshon Street, Wooloongabba aforesaid, John David Foley, part owner of ABBCO Transport Taxi Truck, received an invoice dated the 14th day of October 1986 for $59.50 from R. & J. Publications. II Shortly after this, John David Foley was advised that the invoice sent out by R. & J. Publications had nothing to do with the advertisements in Who Goes There? Transport Services Directory. III He realised that the advertisement he had approved with R. & J. Publications was not the advertisement he wanted printed. IV On 23 October 1986 John David Foley rang R. & Jd. Publications and cancelled the advertisement. He told the female person, who answered the telephone, that he was not happy with the manner in which the authorisation was obtained from him, for the advertisement. She replied that she could not be held responsible for all that her staff do." These so-called particulars do not, of course, follow the usual pattern of particulars and do not identify precisely what it is that is asserted. They really give a summary of the information available to the informant. The evidence upon which it was sought to support the information and summons consists principally in two affidavits, one of R.J. Gilloway and one of J.D. Foley. Rosemary Joan Gilloway says that she and her husband own a business called "Who Goes There? Transport Services Directory" and have owned that business since May 1986. Mrs. Gilloway says the directory has been published for many years and is well known in the transport industry, and she gives some evidence as to the way in which the business is run, which evidence does not seem to me to be immediately material. She does, however, exhibit a copy of the 1987 directory, which has in large print on the front "Who Goes There?", in somewhat smaller print, "Transport Services Directory", and in still smaller print "1987 Queensland Edition". The evidence of J.D. Foley, who was called for cross-examination, is in substance as follows. He says that he is the part-owner of a transport business called ABBCO Transport Taxi Trucks, that on 7 October 1986 he received a phone call and hada conversation with a female person to the following effect. She said: "T am ringing to confirm your advertisement in the Transport Directory. Do you want the same advertisement again?" I said, "Yes." She said, "Any alterations?" I said, "No." She said, "Okay I'1l send you an account." He says the conversation then terminated. Shortly after that he got an invoice for a sum of $59.50; he exhibits a copy of the invoice. Mr. Foley goes on to say that he is the only person who authorises advertising for the business and he normally advertises yearly in the "Who Goes There? Transport Services Directory". He says he has known it by that name, that is, "Who Goes There? Transport Services Directory", for some years. He says that on 23 October 1986 he rang R. & J. Publications and cancelled the advertisement and told the female person who answered the telephone that he was not happy with the manner in which authorisation for the advertisement was obtained. That person advised him that she could not be held responsible for all that her staff did. The defendant gave evidence before me. It is unnecessary, in view of the conclusion which I have come to, to go into the details of it, but in essence what she says is that she was, at the relevant time, in partnership with another woman, Rita Rhodes, that they sat ina room together and that Rita Rhodes solicited business for a transport directory which they then had it in mind to establish. She says that she had occasion to hear Rita Rhodes' manner of solicitation and that it did not contain the misleading features which are sworn to by Mr. Foley. The case, in a sense, raises questions of credit. Counsel for the prosecution has drawn attention to the invoice which Mr. Foley received, which contains the expression "transport directory entry". She has argued, in effect, that that throws doubt upon the account of matters given by the defendant. However, it is necessary, in my opinion, to resolve that aspect. To start with a precise matter charged, what is said is that there was an assertion of a right to payment for unsolicited advertisements. The provision relied on, s.64(2A) reads as follows: "A corporation shall not, in trade or commerce, assert a right to payment from a person for unsolicited services unless the corporation has reasonable cause to believe that there is a right to payment." The prosecution relied, of course, upon the extended operation of the provisions in the statute effected by s.6, and in particular, upon the extension so as to cover use of postal services. The expression "unsolicited services" does not appear in the information or the summons, but it is clear enough that the services intended to be alleged are advertisements. That is, one reads it as if it said, "for unsolicited services, namely advertisements". The first question is whether or not' there were unsolicited services. That expression is defined by s.4(1) to mean services supplied to a person without any request made by him or on his behalf. It appears to me that two questions of construction arise. The first is whether s.64(2A) is intended to apply to the situation where no services have in fact been supplied, as here. The definition of unsolicited services does not expresly include services agreed to be supplied or requested to be supplied. On its face, it applies to services supplied - that is, services which have been supplied. It appears to me likely that the true construction of s.64(2A) is not such as to catch cases of this sort, where the complaint is that there was an assertion of a right to payment for services in the future - to be supplied in the future. It is not, however, necessary to reach a conclusion on that point, because it appears to me that for another reason the prosecution must fail. That is simply that there is no evidence upon which one could find that the services, assuming them to have been supplied within the meaning of the definition, were unsolicited. The real complaint is not that there was unsolicited services or a lack of solicitation. There was indeed a solicitation, as Mr. Foley makes clear. He states his position in the matter accurately enough in paragraph 8 of his affidavit, in which he says, among other things, "I was not happy with the manner in which they otained authorisation for the advertisement from me." Of course, under another provision or provisions of the Act obtaining authorisation for an advertisement by dishonest means, if any were employed, could be the subject of criminal proceedings. The prosecution here, however, sets out to establish that there was no solicitation by Mr. Foley. On the evidence that is not so and the summons will be dismissed. The second prosecution raises, to my mind, a more difficult question. It is one of an offence described as follows: "... that on or about the 7th day of October 1986 at 56 Currumburra Road, Ashmore in the State of Queensland, JOAN CRAIG trading as R. & J. PUBLICATIONS was guilty of an offence against Section 79 of the Trade Practices Act 1974 as amended, in that the said JOAN CRAIG, trading as R. & J. PUBLICATIONS, did, in contravention of section 53(d) of the said Act, represent that they had an affiliation with the Transport Directory which JOAN CRAIG, trading as R. & J. PUBLICATIONS, did not have." By amendment, the word "they" where it appears in what I have read out, was changed to ""she"". A similar amendment was made in the summons, which followed the terms of the information and set out Particulars of the charge as follows: "On or about the 7th day of October 1986 at 56-58 Deshon Street, Woolloongabba aforesaid, John David Foley, a part owner of ABBCO Transport Taxi Truck, received a telephone call froma female person. She wanted to confirm an advertisement in the Transport Directory. She asked him whether he wanted the same advertisement again with no alterations. He said that he did. She told him she would send the account." Again, and without labouring the point, the particulars are obviously inapposite, but, despite them, one can, I think, discern what it is that it is intended to complain of. That is that the account which was sent, as mentioned in my earlier outline of the evidence, claims such an affiliation as the statute describes. The evidence relied on is, again, that of Mr. Foley and Mrs. Gilloway, and it is unnecessary to go over 1t. The alternative view of the particulars is that they were intended to convey the idea that there had been the commission of an offence in the making of the telephone call. In either case, the same point arises, and that is whether or not there was a claim that the defendant Joan Craig was affiliated with a transport directory. As I have mentioned already, there is a publication called "Who Goes There? Transport Services Directory". Presumably what was intended was to suggest that the defendant claimed to he affiliated with that publication. If that is so, I am not satisfied that the prosecution is made out, for two reasons. One is because of the discrepancy in the names; the prominent name, to use that expression for simplicity, of the relevant directory is really "Who Goes There?" The second reason why I do not think the Prosecution is made out on that basis is that the word "affiliation" seems to me, in its context, to relate to a connection with an organization or with an institution. It does not appear to cover the case of a claim that one is publishing a particular document which is in truth published by others. That is not a claim of affiliation at all, as I understand the word "affiliation". Another possible contention on which the prosecution might be based is that the defendant has claimed to be affiliated with a non-existent publication called the "Transport Directory", there being no directory, as far as the evidence shows, of that name. That raises questions similar to those involved in the first basis I have suggested, but with an additional problem. That is, that it appears to be doubtful whether s.53(d), in proscribing representations about affiliations, covers mind affiliations with non-existent entities. But I do not reach a concluded view upon that aspect of the matter, since I do not believe the prosecution intends to raise such a case. Not without some hesitation, I have come to the conclusion that the evidence does not show a set of circumstances of the kind contemplated by the relevant part of s.53(d). What was done on the prosecution case was in essence to claim that the business as mentioned, that is R. & J. Publications, was bringing out a transport directory. What is complained of, as a practical matter, is that there was a pretence that the transport directory spoken of was an existing publication rather than a new one. If that was done, then presumably it may be argued to be conduct proscribed by s.52, but that is not the provision relied on; this does not seem to be a case in which I should, at this stage, invite an application for amendment. The application of the statute to the present case is a penal one. In my opinion, on the natural reading of the relevant part of the statute, the evidence does not support the assertion that the defendant was represented to have such an affiliation as alleged, and the second summons will also be dismissed. i certify thar this 2nd the Y preced ng serge true cony cf the rtecons for io) Pes jucement herein of mis Honcur Mr, Justice Pincus we AG Dated 25 Novem bev |59F7 Counsel for the Prosecutor: Ms. C.E. Holmes Solicitor for the Prosecutor: Department of Director of Public Prosecutions The defendant appeared in person Date of Hearing: 25 November 1987