Supreme Court of WA|2006-10-19|Before: Mr P, Murray J

Bembridge v Just Spectacles Pty Ltd [2006] WASC 185 (19 October 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BEMBRIDGE -v- JUST SPECTACLES PTY LTD [2006] WASC 185

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Prosecution for false and misleading advertising - Poster displayed in shopping mall - Whether poster constituted a false or misleading representation concerning conditions applicable to a free offer - Whole context of poster to be considered but not allied advertisements - Relevance of suggestion of mere puffery - Whether representation by poster materially inaccurate

ACCC v Commonwealth Bank [2003] FCA 1129; (2003) 133 FCR 149

Mitchell v Valherie [2005] SASC 350; (2005) 93 SASR 76

Nationwide News Pty Ltd v ACCC (1996) 71 FCR 215

Pappas v Soulac Pty Ltd [1983] FCA 3; (1983) 50 ALR 231

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

SAP Australia Pty Ltd v Sapient Australia Pty Ltd [1999] FCA 1821; (1999) 169 ALR 1

ACCC v Kaye [2004] FCA 1363

ACCC v Nationwide News Pty Ltd (1996) 36 IPR 75

ACCC v Signature Security Group Pty Ltd [2003] FCA 3

Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45

Cassidy & Anor v Medical Benefits Fund of Australia & Anor (No 2) [2002] FCA 1097

Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 110 ALR 608

Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (2000) ATPR 41-751

George Weston Foods Limited v Goodman Fielder Ltd [2000] FCA 1632; (2000) 49 IPR 553

Gillette Australia Pty Ltd v Energizer Australia Pty Ltd [2005] FCA 1647

Guthrie v Doyle Dane Bernbach Pty Ltd [1977] FCA 13; (1977) 30 FLR 116

Medical Benefits Fund of Australia Ltd v Cassidy (2004) 205 ALR 402

National Exchange Pty Ltd v ASIC [2004] FCAFC 90

Parkdale Custom Build Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191

St Luke's Health Insurance v Medical Benefit Fund of Australia Ltd (1995) ATPR 40

Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 111 ALR 61

Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326

Universal Telecaster v Guthrie (Q) Ltd (1978) 32 FLR 360

1 MURRAY J: On 2 February 2006 the respondent was convicted of 135 offences against the provisions of the Fair Trading Act 1987 (WA). They related to radio advertisements broadcast by two separate radio stations. Each complaint was that in those advertisements, in trade or commerce in connection with the promotion of the supply of goods, the respondent made a false or misleading representation concerning the existence of conditions in respect of the offers made in each of the advertisements, contrary to s 12(1) of the Fair Trading Act 1987. A global fine of $9000 was imposed.

2 There was another complaint before the Court made by the applicant, an officer of the Department of Consumer and Employment Protection. It alleged that between 29 February and 20 May 2004 the respondent:

"did, in trade or commerce, in connection with the promotion on a poster at the Karrinyup Shopping Centre of the supply of goods, make a false or misleading representation concerning the existence of any conditions applying to the offer of 'Buy one pair - get another pair free', namely that the offer of 'Buy one pair - get another pair free' was unconditional when in fact conditions applied to that offer, contrary to s 12(1)(l) and s 69 of the Fair Trading Act (1987)."

3 The respondent was acquitted of that charge. The complainant applied for leave to appeal. On 20 April 2006, McKechnie J ordered the application for leave to appeal and the appeal itself to be heard together. It is in that way that the matter was pursued before me upon amended grounds as follows:

"1. The learned Magistrate erred in law or in both law and fact in finding that the poster did not constitute a false or misleading representation by the Respondent for the purposes of section 12(1)(1) and section 69 of the Fair Trading Act 1987 (WA).

Particulars

(i) The main body and thrust of the poster was contained in the words 'DOUBLE FOR NOTHING'

(ii) The words 'DOUBLE FOR NOTHING' were very significantly larger than other words which appear on the poster

(iii) The words 'DOUBLE FOR NOTHING' contained the clear representation that a customer who purchased one pair of glasses would receive a second identical pair for free

(iv) The representation was intended to, and could, be seen from a distance whereas the words 'conditions apply' which appear at the bottom of the poster in small print could only be read on close scrutiny and their existence was not adverted to in the main body of the poster

(v) The representation was false because the offer only applied to a limited range of frames and to single vision stock lenses

(vi) The inclusion of the words 'conditions apply' at the bottom of the poster in small print did not provide any effective qualification in the circumstances of this case

(vii) The learned Magistrate concluded wrongly that the representation was effectively qualified such that it was not false or misleading.

2. The learned Magistrate erred in fact or in both law and fact in finding that it would be clear to a reasonable reader of the poster that there were conditions which applied to the offer being made by the Respondent.

3. The learned Magistrate erred in law in finding that the words 'DOUBLE FOR NOTHING' in the poster were no more that advertising puffery in relation to the offer being made by the Respondent, which words constituted a false or misleading representation in contravention of section 12(1)(1) of the Fair Trading Act 1987 (WA)."

4 By the Criminal Appeals Act 2004 (WA), s 9, leave is required for each ground of appeal, and leave may not be granted unless the Court is satisfied that the ground has a reasonable prospect of succeeding. It is provided by s 9(4)(b) that the question of the grant or refusal of leave may be dealt with before, or at the hearing of, or when giving judgment on, the appeal. Section 27 is an identical provision in relation to criminal appeals to the Court of Appeal.

5 Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 elaborates on the test for the grant of leave expressed in the requirement that a ground of appeal should have a reasonable prospect of succeeding. At 487 [56] their Honours said:

"The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that form; in effect, that it has a real prospect of success. However, it is important to bear in mind that, because the test is directed to each ground, it seems that the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is left for determination on the appeal proper."

6 That case was solely concerned with the grant or refusal of leave, and so at [60] the Court went on to observe that the decision would not be made upon a detailed consideration of all the evidence and all the issues in the case, but would be one concerned with the grounds of appeal as particularised. There is, as yet, no reported decision on the approach to be taken where, as in this case, the question of the application for leave, and the argument of the appeal if leave is granted, are to be dealt with together.

7 Inevitably, in that circumstance, the Court will hear argument which is designed to make good the grounds of appeal advanced in support of the application. Rather than argument directed to establishing that a particular ground has a reasonable prospect of success, the argument will be directed to advance the case that the appeal should be allowed.

8 It seems to me that there are three possible results of that process. In the first place, the Court, confining itself to the question of leave, may conclude that there is no ground of appeal in respect of which leave should be granted. In that event, its final order would be to refuse leave in relation to every ground of appeal, whereupon, under s 9(3) of the Criminal Appeals Act, "the appeal is to be taken to have been dismissed".

9 Another possible result will be that the Court will discern that all or some of the grounds relied upon, although they had real prospects of success, on their full consideration they were not persuasive of error or a miscarriage of justice of the kind that would support a final decision allowing the appeal. In that case, I think, the final order of the Court would be that envisaged by the Criminal Appeals Act, s 14(1)(a). The appeal would be dismissed.

10 Alternatively, some or all of the grounds might not only be found to have reasonable prospects of success, but, on hearing full argument, they are made out so as to establish error or miscarriage of justice within the terms of s 8(1) of the Act. In that event, the Court will allow the appeal under s 14(1)(b) and go on to make the necessary consequential orders. In that case, it seems to me that the question of the grant of leave merges into the decision about the merits of the grounds of appeal and nothing need formally be done by way of the grant of leave, which is necessarily implied in respect of those grounds which succeed. The alternative view, that the Court should address the question of the grant of leave in relation to specific grounds, and then, in relation to those grounds, go on further to determine whether they have such merit that they should in fact succeed, is artificial and unnecessary.

11 In this case, the three grounds of appeal are linked. They deal with particular aspects of the reasoning of the learned Magistrate which led his Honour to dismiss the complaint. The conclusion to which I have come is that they are made out and the appeal should be allowed.

12 To understand what the case is about it is necessary to refer to the facts as found by the Magistrate. His Honour said:

"In relation to the poster charge, it is alleged that the offence occurred between 29 February and 20 May 2004 at the Karrinyup Shopping Centre. In evidence as Exhibit G is a copy of the poster. The poster is 760mm wide and 1020mm deep. It is made up of a header at the top containing the words 'Double for Nothing'. The letters of those words are each 51.5mm deep. Underneath the header, partially extending into it in parts, is a photograph. Underneath the photograph is the Just Spectacles logo, including the words 'Just Spectacles'. The letters making up the word 'Spectacles' are 48.5mm deep. Underneath that logo are the words 'Buy one pair - get another pair free'. The letters making up those words are 14.5mm deep. Following those words, are the words 'Near Myer'. The letters making up those words are 28mm deep. Following the words 'Near Myer', at the bottom of the poster are the words 'Conditions Apply'. The letters making up those words are 3.5mm deep. Clearly the words 'Conditions Apply' are in much smaller print than any other words that appear on the poster. There is no asterisk or other mark next to the words 'conditions apply' indicating that the words 'Double for nothing' or the words 'Buy one pair - get another pair free' are qualified by conditions."

13 Exhibit G, the copy of the poster, was provided to me. Of course, it was large, and it was positioned in a mall or arcade of the shopping centre. It was clearly designed to catch the eye of a passing shopper. The words "double for nothing" are particularly prominent, as is the identification of the respondent by its name and logo, the depiction of a portion of a pair of spectacles. Over two-thirds of the poster is a picture of the upper portion of the bodies of a young man and a woman. The young woman is attractive. She is wearing glasses and a low-cut dress. The young man is instantly recognisable as a particularly prominent AFL footballer, a member of the West Coast Eagles team. He is wearing sunglasses.

14 The words "buy one pair - get another pair free" are obviously to make clear the meaning of the catchphrase, "double for nothing". And the words "near Myer" give the location of the respondent's store.

15 In the context of the shopping mall where there may be a number of people, and where the passerby may only have a short opportunity to observe the poster unless he or she stops to read it more carefully, the intention is obviously to catch the eye of shoppers, probably first by noticing the attractive picture and possibly by recognising the footballer. The nature of the offer is the powerful message, and prominence is then given to the fact that it is the respondent who is making it, and to where the respondent's store can be found.

16 Relatively speaking, the words "conditions apply" at the very bottom of the poster are very small and, as the Magistrate noted, they are not linked by an asterisk or any other device to the slogans describing the nature of the offer. They are strictly an addendum to the main purposes, as I have described them above, which the poster is intended to serve.

17 The conditions to which those words refer were found to apply particularly to the second free set of spectacles or sunglasses. The second pair of glasses was available in a limited range of frames. The glasses would be fitted only with single vision stock lenses which do not have to be specifically made and which are not bifocal or multifocal. The offer was modified if frames outside the selected range were chosen. In that event, the cheaper of the two frames would be reduced to half price. In other circumstances, a $90 discount would be applied to the normal lens price. The offer would not apply to discounted spectacles provided to health fund members. And so it can be seen that the conditions quite substantially limited the availability of the offer.

18 The Magistrate reached the following conclusion:

"Dealing firstly with the poster charge it is abundantly clear that following the words 'double for nothing' and the words 'buy one pair - get another pair free' are the words 'conditions apply'. It is also clear that the words "conditions apply' are in substantially smaller print than all the other words on the poster. The photographs in evidence suggest that from the distance away from the poster that they were taken it is difficult to make out the words 'conditions apply'. Upon closer inspection it is clear however that the words do appear. Equally clearly the conditions that do apply are not set out on the poster. The poster is printed and any viewer of that poster could, upon more than a cursory glance, ascertain that conditions applied to the buy one get one free offer. In my view the words 'double for nothing' are no more than advertising puffery in relation to the offer being made. They would be seen as such by a reasonable reader. In my view when viewed objectively through the eyes of a reasonable reader of the advertisement it would be clear that there were conditions which applied to the buy one get one free offer, notwithstanding the size of the print of the words 'conditions apply' and that there is no asterisk or other direct indicator that these words relate to the offer. Accordingly in my view the words contained within the poster are not such as would deceive or mislead a reasonable person contemplating the purchase of spectacles. The poster does not constitute a false or misleading representation by the accused. In due course there will be a judgement of acquittal."

19 The complaint alleged an offence against the Fair Trading Act 1987, s 12(1)(l). Read with s 69, it is an offence for a person, including a corporation, in trade or commerce, in connection inter alia with the promotion of the supply of goods to "make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy". There is no dispute that the display of the poster was in trade or commerce in connection with the promotion of the supply of goods, and reference to the complaint shows that the allegation was that the poster made a false or misleading representation concerning the existence of any conditions which were applicable. It is alleged that the representation was that the offer made was unconditional when in fact its available was qualified by the application of conditions.

20 The question for the Court was whether the representation made by the poster was false or misleading in that way. Section 12(3) provides:

"Any statement which is intended or apparently intended to −

(a) promote the sale or supply of any goods, or the disposal of any interest in land_;_ or

(b) induce any other person to make use on payment of a fee or other consideration of any services,

and which is a false representation, contravenes this section."

21 Further of assistance in this regard is s 13(1) which, so far as material, provides:

"For the purposes of this Act, and without limiting the generality of section 12, a statement shall be taken to be a false representation if −

(a) it is false, or deceives, or if it or any information thereby provided is materially inaccurate and that statement is intended or is apparently intended −

22 Again, by s 13(2):

"For the purposes of this Act, 'materially inaccurate' in relation to any information, means −

(a) inaccurate_;_ or

(b) misleading or likely to mislead,

in a material respect and to a material degree by reason of anything contained or omitted from the statement."

23 It is clear that the thrust of the appellant's case was that the poster constituted the making of a false or misleading representation which contravened the section because, being apparently intended to promote the sale or supply of the spectacles, it was a false representation. It was a false representation, the appellant argued, because it was materially inaccurate, because its contents were such that it was inaccurate, misleading or likely to mislead about the existence of the qualifying conditions attendant upon the offer made to promote the sale and supply of the spectacles.

24 The learned Magistrate directed himself as to the law. Neither party takes any exception to what his Honour said in that regard. In a case such as this, the matter is to be judged at the time of publication, at the time when the poster may be read. It matters not that the true position may later emerge before the customer enters into a transaction. It is the representation made by the display of the poster with which the Court is concerned: SAP Australia Pty Ltd v Sapient Australia Pty Ltd [1999] FCA 1821; (1999) 169 ALR 1 at 14 [51], where the Full Federal Court said:

"Conduct which misleads a customer so that, under some mistaken impression of a trader's connection or affiliation, he or she opens negotiations or invites approaches may be misleading or deceptive even if the true position emerges before the transaction is concluded."

25 When dealing with a poster of this kind, the question for the Court remains that posed by s 12(1)(l), whether a false or misleading representation has been made, whether that is the proper description of the conduct of the defendant established beyond reasonable doubt. It does not matter that members of the public have or have not been misled. The question is an objective one judged having regard to the context of the representation, from the point of view of the ordinary person viewing the poster in the circumstances applying at that time.

26 In ACCC v Commonwealth Bank [2003] FCA 1129; (2003) 133 FCR 149 at 170 [44] Conti J accepted that it was necessary to identify the relevant section of the public, here ordinary shoppers, to whom the representation was made. Then the question of such persons being misled, or whether it was likely that they may be misled, "falls to be considered by reference to all people who come within that section of the public, including the astute and the gullible, the intelligent and not so intelligent, the well-educated and the poorly educated". In other words, the matter is to be judged against the ordinary person who will be exposed to the representation, recognising that in that category of person there will be people who will have different capacities to assess the reliability of the representation made.

27 That case concerned advertising by the Bank on television, and posters displayed in branches of the Bank. Factually, the appellant submits, the case is not unlike this. The advertising promoted the availability of home loans and contained on the posters the words "paying no establishment fees". However, at the bottom of each poster, in print about 10 per cent of the size of the bold text, were the words "Fees and charges are payable. Conditions apply."

28 That process, employed in this case, has come to be known as the use of a qualifier, which may, depending upon the circumstances, be effective to divert the court from the conclusion that the poster constituted a false or misleading representation. However, as Conti J observed, at 185 [82] - [83], whether or not that is so will be judged having regard to all the circumstances surrounding the display of the poster and its audience, together with the context in which the words of qualification appear, their size and legibility. The question is whether the qualifier may reasonably be regarded as bringing the qualification to the notice of the ordinary reader, without which the context of the poster would be regarded as false or misleading. In other words, the adequacy of the qualification and what must be done to make it effective will depend upon the context provided by the poster as a whole and the nature of the representation otherwise made.

29 In that regard, it should not be overlooked that, for the ordinary consumer, the representation that goods are to be had for free or for nothing is a powerful inducement to enter into, or investigate entering into, a transaction of purchase. It follows that I would reject the submission made for the respondent that whether advertising of that kind should be considered to be false or misleading should be judged against the background that the ordinary reader will be one of a class of modern consumers, "who are cynical about advertisements, have a fair ability to make their own judgments and are reasonably sceptical as to claims made in advertising generally and about free offers in particular".

30 On the contrary, in Nationwide News Pty Ltd v ACCC (1996) 71 FCR 215, at 228, Lindgren J said:

"While each case turns on its own facts, the cases to which I have referred demonstrate judicial recognition of the propensity of the word 'free' in advertising to mislead or deceive. An advertiser relies on common understandings at its peril. Any respect in which goods or services offered as 'free' may not be free should be prominently and clearly spelled out so that the magnetism of the word 'free' is appropriately qualified."

31 Finally, it is useful in this regard to consider the view expressed by the learned Magistrate that the words "double for nothing" are no more than "advertising puffery in relation to the offer being made". Originally, as I understand it, it was not uncommon to refer to "mere puffing" as a means of expressing the view that words relied upon were not of a promissory character made with the intention that they constituted part of a contract. The term has also come to be used in relation to misrepresentations and misleading conduct actionable at common law. In that context puffs are flamboyant statements, hyperbole, exaggerated rhetoric which would not reasonably be understood to be literally true. The same may, I think, be said of the use of the term in the context of actions or prosecutions for false, misleading or deceptive conduct under the Fair Trading Act 1987 (WA), or the Trade Practices Act 1974 (Cth).

32 In Pappas v Soulac Pty Ltd [1983] FCA 3; (1983) 50 ALR 231 at 234 - 235, Fisher J commented about many of the statements relevant to that case, that they were wholly or in part statements of opinion, not capable of being objectively proved to be true or false. His Honour continued:

"They were also essentially the type of introductory comments, in the nature of puffery, made at the start of negotiations for the purpose of attracting the interest of a possible purchaser. As such, they became irrelevant or of little, if any significance when detailed information is subsequently given a fortiori, to a potential purchaser with commercial experience. To the extent that they are essentially puffery, it is proper to be reluctant to elevate them to the status of potentially misleading conduct."

33 In Mitchell v Valherie [2005] SASC 350; (2005) 93 SASR 76 the words complained of in advertising a house were "nothing to spend - perfect presentation". White J considered that the words could not reasonably be understood as conveying a representation of fact. They had to be read as a whole and, as such, they were no more than promotional puffery. A reasonable prospective purchaser of real estate, her Honour held, would not understand those words as conveying a representation of fact, particularly because they were used in a context in which "some hyperbole is commonplace": 92 - 93 [79] - [81].

34 Turning to this case, I think it is clear, with respect, that the learned Magistrate misled himself in categorising the words "double for nothing" as mere advertising puffery. To my mind, while there may be some element of hyperbole involved in that phrase and its meaning, read alone, may not be abundantly clear, it is evident, in my view, when those words are read with the words "buy one pair - get another pair free", that together they constituted an offer that if the shopper went to the respondent's shop near Myer one could purchase a pair of spectacles or sunglasses and be given a second pair free. There is, in my view, no element of puffery in the representation made.

35 Put baldly in those terms, that representation was materially inaccurate within the meaning of s 13 of the Act. It was a false representation because it was not generally available in an unconditional way. It was a representation of the kind described in s 12(3), because not only was it false but the apparent intention was, as I have already said, to entice the prospective purchaser to go to the respondent's shop near Myer's store, and to consider the purchase of spectacles. It was apparently intended to promote the sale of those goods. It was therefore a contravention of s 12 and an offence under s 12(1)(l) to display the poster in that form which made a false or misleading representation concerning the existence of any condition. Those aspects of the poster to which I have referred portrayed the offer as being unconditional.

36 That conclusion from the decided facts should have been drawn and a conviction entered unless the qualification implied by the words "conditions apply" was effective in all the circumstances applying to the display of the poster to convey to the ordinary reader that the offer which would otherwise be considered to be unconditional was in fact qualified by conditions and so would not be generally available to any customer.

37 As to that, in my respectful opinion, it was not open to the learned Magistrate to take the view that there was an effective qualification. The nature of the poster in its entire context impels the conclusion that, in truth, the words "conditions apply" were not readily discernible in the circumstances in which they were displayed, in a shopping mall through which people moved from shop to shop, where there may be crowds, where people are not taking the time to carefully peruse and consider the whole of any advertising material and where the ordinary shopper, who is contemplating the purchase of spectacles, would be inclined, on the strength of the advertisement, to make a quick decision to go to the respondent's shop and investigate further.

38 That was, after all, the object of the exercise, in my opinion. In short, the respondent took insufficient measures to clearly bring the qualification to the attention of the class of reader who would be exposed to the poster. That being so, in my respectful opinion, the learned Magistrate was compelled to the conclusion that the charge had been made out and a conviction should have been recorded.

39 I therefore allow the appeal, set aside the judgment of acquittal entered in the Perth Magistrates' Court on 2 February 2006 and substitute a conviction of the offence the subject of the particular complaint.

40 I am invited by both parties, if that should be my conclusion, to go on and impose the appropriate punishment by way of a fine under s 69 of the Act. When that was canvassed on the hearing of the appeal, for the respondent it was submitted that I should take no action which would increase the global fine of $9000 already imposed. For the appellant, it was put to me that there was a preference, if the matter should arise, as it has, that I should allow the parties to make written submissions in respect of the penalty to be imposed. I am content to take that course.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BEMBRIDGE -v- JUST SPECTACLES PTY LTD [2006] WASC 185 (S) [2006] WASC 185 (S)

Criminal law and procedure - False and misleading advertising - Poster displayed in shopping mall - Penalty to be imposed - Turns on own facts

Australian Competition and Consumer Commission v Chubb Security Australia Pty Limited [2004] FCA 1750

Australian Competition and Consumer Commission v Nissan Motor Company (Australia) Pty Ltd & Anor (1998) ATPR 41-660

Bembridge v Just Spectacles Pty Ltd [2006] WASC 185

Ducret v Colourshot Pty Ltd & Anor (1981) 35 ALR 503

Harvey v Robertson [1999] WASCA 120

Mill v The Queen (1988) 166 CLR 59

Peat Resources of Australia Pty Ltd v City of Cockburn [2002] WASCA 342

Pieri v The Queen [2001] WASCA 357

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Shaw v The Queen (1989) 39 A Crim R 343

West Coast Property Investment Pty Ltd v Department of Consumer and Employment Protection [2006] WASC 110

1 MURRAY J: These reasons should be read with my judgment delivered on 25 August 2006, published as [2006] WASC 185. The appeal was by the complainant against the acquittal of the respondent of the offence of false or misleading advertising, contrary to s 12(1) and s 69 of the Fair Trading Act 1987 (WA).

2 The appeal concerned a poster displayed by the respondent in a shopping mall. When I allowed the appeal, I set aside the judgment of acquittal entered in the Magistrates' Court at Perth and recorded a judgment of conviction. I reserved the question of penalty and what orders should be made in relation to the costs of trial, but I ordered the respondent to pay the appellant's costs of the appeal to be taxed. As to the question of penalty, I determined that that and, if necessary, the question of costs of the trial should be dealt with upon the basis of written submissions. I have received such submissions from both parties.

3 The parties have agreed that the question of sentence should not be remitted to the Magistrates' Court, but that I should exercise that power pursuant to the Criminal Appeals Act 2004 (WA), s 14(1)(d). In passing, I note that my power to make an order as to the costs of the proceedings in the court of summary jurisdiction is provided in s 14(1)(h).

4 The prosecution the subject of this appeal was one of 136 complaints. The respondent was convicted of 135 offences of breaches of s 12(1) of the Fair Trading Act. They related to radio advertisements. 103 of them were in respect of advertisements broadcast on the radio station 6PR between 1 February 2004 and 21 February 2004. The remaining 32 offences related to advertisements broadcast by radio station 6IX between 1 February and 20 February 2004. The advertisements were identical and they covered the same period of time. The learned Magistrate, I am told, imposed a global fine of $9975 pursuant to the Sentencing Act 1995 (WA), s 54, as I understand it upon the basis that those offences formed a series of offences of the same kind. Under s 54(2), such a fine must not be more than the sum of the fines provided by the statutory penalties for each of the offences.

5 Section 12 of the Fair Trading Act provides no penalty expressly for its breach. The penalty is provided by s 69(1). The contravention of s 12 is constituted as a crime for which the summary conviction penalty is a fine of $6000. So far as a corporate offender is concerned, the parties are of the view, and I proceed upon the basis, that s 40 of the Sentencing Act applies. Under that section, where the offender is a body corporate the Court may impose no sentence or impose a fine. A fine may only be imposed if the Court is satisfied that it is not appropriate to impose no sentence. Under s 40(5), a body corporate convicted of an offence, the statutory penalty for which is a fine, is liable to a fine of five times the maximum fine that could be imposed on a natural person convicted of the same offence. Therefore, the maximum penalty said to be available in this case upon summary conviction is a fine of $30,000.

6 The respondent submits that no penalty should be imposed, in essence, because the offence in relation to the poster was committed in the course of an ongoing advertising campaign of which the radio advertisements were also a part. I note in that respect that the offence in relation to the poster was committed between 29 February and 20 May 2004, following the period covered by the radio advertisements. It is submitted that the global penalty imposed by the Magistrate represented a considered judgment about the culpability of the respondent's conduct, of which the poster offence should be seen to be merely one part.

7 If I were to accede to those arguments, I would apply s 46 of the Sentencing Act, which permits a court to impose no sentence if it considers that the circumstances of the offence are trivial or technical and, having regard to particular matters concerned with the nature of the offender or otherwise, the Court considers it would be unjust to impose a sentence. In my opinion, this is not a case of that kind, if for no other reason than that I consider that the circumstances of the offence are not trivial or technical.

8 I take the view that although all the offences committed, those relating to radio advertisements as well as that in relation to the poster, were of the same kind, the offence in relation to the poster was a different form of commission of the offence which, subject to the overall limit on the power to fine imposed by s 69(3) of the Fair Trading Act in relation to offences of the same character committed at about the same time, merits separate punishment.

9 It is trite to observe that the fine should be commensurate with the seriousness of the offence. As to that, while the circumstances of the commission of the offence displayed no particular aggravating circumstances, it was an offence committed over an extended period of time, targeting shoppers already at the shopping centre, as opposed to listeners to 6PR and 6IX. On the other hand, one can imagine more serious breaches of s 12 and the respondent has no prior record of such offences. Of course, it is a corporate body and the offence was committed as part of an advertising campaign for commercial gain.

10 In my view, there should be some reasonable parity between the penalty imposed by the learned Magistrate for the two groups of radio advertisements, the fine of $9975, and the fine to be imposed for the poster offence. I impose a fine of $5000, making an aggregate of just under $15,000, within the context of the overall maximum penalty available, having regard to s 69(3), of a fine of $30,000. In my opinion, the additional fine of $5000 need not be further reduced on grounds of totality, having regard to the commercial context in which the offences were committed. I make no particular order for the enforcement of payment, leaving that to the operation of the general law.

11 I have mentioned that, as I was asked to do when substantive orders were made on 25 August, I reserved not only question of penalty but also the orders to be made in respect of the costs of trial. The appellant seeks an order that the respondent should pay the costs of trial to be taxed if not agreed. That is the order I made in respect of the costs of appeal. I see no reason why the costs of trial should not be awarded to the appellant. I therefore make the order sought that the respondent shall pay the appellant's costs of trial to be taxed if not agreed.

Bembridge v Just Spectacles Pty Ltd [2006] WASC 185

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (114 paragraphs)

Bembridge v Just Spectacles Pty Ltd [2006] WASC 185 (19 October 2006)

Parties

Legislation Cited (3)

Cases Cited (20)