ACCC v Hartwich [2002] FCA 273

FEDERAL COURT OF AUSTRALIA

ACCC v Hartwich [2002] FCA 273 TRADE PRACTICES – defendants pleaded guilty to offences against s 79(1)(d) Trade Practices Act 1974 (Cth) for being knowingly concerned in conduct by corporations contrary to s 59(2) – corporations invited investors to purchase distributorships for marketing education aids and made false or misleading representations with respect to either the profitability or a material aspect of the business activity – s 16A Crimes Act 1914 (Cth) is applicable in respect of sentences to be imposed – reckless indifference by the natural defendants in making the representations – no reasonable basis on which their claims could be based – no voluntary co-operation with the ACCC – no effort made to correct the misrepresentations – no action to make any reparation for losses suffered as a result of the defendants' conduct – no appreciation of the fraud that was perpetrated on the victims – sentencing difficulties due to defendants' parlous financial position – crucial factor for sentencing concerns the likely capacity of the defendants to pay any fines that might be imposed and the consequences that might flow from default in meeting payment of those fines – neither individual defendant has the capacity to pay damages or compensation to the persons affected by the defendants' conduct – damages and injunctive relief awarded Trade Practices Act 1974 (Cth) ss 79, 59, 83, 2, 87, 79A Corporations Law s 224(1)(c), 224A (see now ss 201F(3), 206B(3), 206F) Crimes Act 1914 (Cth) s 16A, s 18A (see now s 15A) Crimes Legislation Amendment Act (No 2) 1989 (Cth), No 4 of 1990 Penalties and Sentences Act 1992 (Qld) s 182A Trade Practices Commission v Farrow (1990) 95 ALR 53, cited Guthrie v Robertson; Guthrie v Torwarri No. 12 Pty Ltd (1986) ATPR 40-744, cited O'Dea v Casnot Pty Ltd (1981) ATPR 40-198, cited Juris Wilde v Menville Pty Ltd & Ors (1981) ATPR 40-195, cited Ducret v Colourshot Pty Ltd & Anor (1981) ATPR 40-196, cited Reardon v Aquajet Holdings (SA) Pty Ltd & Anor (1982) ATPR 40-328; (1983) ATPR 40-334, cited Crossan v Commons (1985) ATPR 40-542, cited Trade Practices Commission v J & R Enterprises Pty Ltd & Anor (1991) ATPR 41-133, applied ACCC v Grant [2000] FCA 1564, Unreported Federal Court S91 of 1999, 9/11/00, cited ACCC v Dimmeys Store Pty Ltd; ACCC v Starite Distributors Pty Ltd (1999) ATPR 41-716, cited ACCC v Dimmeys Store Pty Ltd Q145 of 2000 and Q31 of 2001, 20/3/01 and 22/3/01, cited AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v HARTWICH PTY LTD and OTHERS No S 27 of 2000 SPENDER J BRISBANE 19 MARCH 2002