Larmer, Lawrence OHara v Purcell, Malcolm John Purcell, John Barry Dome Lighting Products Pty Ltd [1978] FCA 27

1. The defendant, Dome Lighting Products Pty. Ltd., is

In respect of No. VG 71 of 1977: In respect of No. VG 72 of 1977: . In respect of No. VG 73 of 1977: In respect of Nos. VG 74-82 of 1977 inclusive: $50 on each charge, totalling $

In respect of No. VG 83 of 1977: $ 100 TOTAL $1,550

The defendant company pay the costs of the info:mant

The defendant, Malcolm John Purcell, is convicted on

In respect of No. VG 84 of 1977: $ In respect of No. VG 85 of 1977: $ In respect of Nos. VG 86-94 of 1977:

$10 on each charge, totalling $ In respect of No. VG 95 of 1977: $ In respect of No. VG 96 of 1977 B

The defendant pay the costs of the informant in cach

The defendant pay the costs of the informant in each

i i VICTORIA DISTRICT REGISTRY GENERAL DIVISION ] Nos. VG 71-83 of 1977 BETWEEN: LAWRENCE O'HARA LARMER | Informant {° . AND: DOME LIGRTTNG PRODUCTS PTV, LTD. | bolendantv | Nos. VG 84-96 of 1977 ' BETWEEN: LAWRENCE O'HARA LARMER i : {nformant : AND: MALCOLM JOHN PURCELL . ' Defendant "4 it i Nos. VG 97-105 of 1977 i . 14 BETWEEN: LAWRENCE O'HARA LLARMER ' Infornant } 1} AND: JOHN PARRY PURCELL { Defendant | yi i

} REASONS FOR JUDGMENT: FRANKI J. : DELIVERED: 18 April 1978

Mr. Larmer, the informant, with the consent of the Minister, has laid *3 informations against Dome Lighting Products Pty. Ltd. the defencant. The defendant is a company with two directors, Malcolm John Purcell and Jonn Barry Purcell, who are also the

The charges allege a breach of s.53(c) of the Trade Practices

Act 1974, particularised in general that in trade or commerce, in connection with the supply of goods, the defendant represented that the goods had approval they did not have, in that in the course of trading in electrical appliances in connection with the supply of electric slow cookers the defendant represented to Tupperware of Australia Pty. Ltd. that the electric slow cookers were approved for use in Australia by the electrical authorities. The electric slow cookers are what are common] y known as crockpots. |

After an approach by Mr. M.J. Purcell and some discuss. ons with the purchaser, the defendant received a letter dated 21 October 1976 which formed the basis of an offer to purchese 27,500 of the relevant slow cookers described as "Approved for use in Australia by the Electricai Authorities". The defenuant, under its seal, accepted all the terms of the letter, and also by letter of 25 October 1976 signed by M.J. Purcell, said in reference to the purchaser's letter of 21 October 1976 that:

"We have great pleasure in accepting all the terms within this

It is clear that the contract for the sale of the slow cookers was upon the precise basis that they were approved for

One information, No. VG 71 of 1977, was issued in respeci of the letter from the purchaser and the acceptance endorsed thereon, and a further information No. VG 83 of 1977 was

issued in respect of the letter of 25 October 1976.

Pleas of guilty have been entered by counsel who appeared

for the company on all 13 informations and therefore no question

By 13 March 1977 no approval had in fact been received although approval had been sought from several electrical authorities and approaches from time to time had been made to the State Electricity Commission of Victoria, to whom one of the subject cookers had been submitted by the defendant fo~ approval in February 1977.

Between 13 March 1977 and 6 May 1977 deliveries were mace on nine occasions and a separate information has been lard in

respect of each of these deliveries (Nos. VG 74-82 of 1977

On 22 April 1977 the State Electricity Commission advised the company that approval was witlheld because of five unsatisfactory features in the cocker submitted. A further submission was made prior to 22 April 1977, on 7 April 1977, and certain discussions had taken place between the submission

It scems that some trouble might have arisen under certain circumstances from the use of the slow cookers, but no deta2zled

About mid-May 1977 the purchasing manager of the purcha.cr

spoke to Mr. M.J. Purcell and queried whether approval had in

fact been obtained from the State Electricity Commission. He was told by Mr. M.J. Purcell that approval had been received and everything was in order. Information No. VG 72 of 1977 was laid in respect of this representation.

The purchasing manager of the purchaser asked for a sample of the slow cookers to be delivered to it and a cooker arrived pearing the label on the bottom which included the expres:ion "APP No. V77057-68", It appears that it is usual for suprliers of electrical articles which have the approval of 'the State Electricity Commission to attach a label of this type. The representation conveyed by this label is the subject of information No. VG 73 of 1977. It appears that these latels

The only two directors of the company were Mr. J.B. Purcell and his son Mr. M.J. Purcell, bot of whom had had some considerable business experience and both of whom were actively

The initial delivery required by the terms of the contract was to be made during the week ending 6 March 1977, and apparently the directors of the company, well knowing that approval iad not been granted but hoping that it would ultimately

be granted, took the risk of delivering the slow cookers as

having been approved by the relevant electrical authorities.

Receivers have been appointed of the property of the

company and an employee of the receivers, a firm of accountants,

gave sworn evidence that the debts far outweighed any asscts the company possessed, and it seems that the asscts of the company, so far as can be ascertained, are unlikely to exceed,

I regard a misrepresentation that an electrical appliance has the approval of an electrical authority as a very serious

breach of the provisions of s.53(c} of the Trade Prectices Act.

In Hartnell v. Sharp Corporation Australia Pty. Ltd. (1975)

5 A.L.R. 493 ten informations wer? laid in respect of advertise- ments alleging that micro-wave ovens had been tested and aporoved by the Standards Association of, Australia when such was not the case. A bench of the Australian Industrial Court, consisting

of three Judges, imposed fines totalling $100,000, divided into fines of $10,000 in respect of each breach, together with costs. In Larmer v. Power Machinery Pty. Ltd. (1977) 14 A.L.R. 243, penalties totalling $5,000, together with costs, were 1mpos:d

by a Judge of this Court in respect of offences under s.53(:)

of the Trade Practices Act where the representations were thet certain machines had State Electricity Commission approval

However, in view of the fact that the defendant compeny in this case has very limited assets it seems purposeless to impose penalties of the magnitude which I would consider

I convict the defendant compuny on each charge and inoue

In respect of Nos. VG 74-82 of 1977 inclusive, the sum of

making a total of $1,550, and I also order the defendant company

The informant, Mr. Larmer, laid 13 informations against Malcolm vu chn Purcell, the defendant, alleging breaches of 8.53(c) of the Trade Practices Act 1974.

The transactions in respect of which the informat~ons were issued were all transactions in respect of which corres- ponding informations were laid against the company Dome Lisrting Products Pty. Ltd. I have dealt with the facts 1n relatize1 to

the company and there is no need to repeat what I have alrcedy

said in relation to it. It was submitted the defendant vas

knowingly concerned in each case within s.5 of the Crames ..ct

No. VG 84 of 1977 was issued in relation to the acceptence endorsed on the letter of 21 October 1976, and No. VG 85 of 1977 in respect of the letter of confirmation dated 25 October 1977.

Informations Nos. VG 86-94 of 1977 inclusive were all in

relation to the deliveries on nine occasions betwcen 13 March 1977 and 6 May 1977. No. VG 95 of 1977 was in respect of the telephone conversation between Mr. M.J. Purcell and Mr. Alderson about mid-May 1977. No. VG 96 of 1977 was in relation to the label attached to the bottom of certain of the slow cookers

It was said on behalf of Mr. M.J. Purcell, who in fact signed the acceptance endorsed on the letter of 21 October 1976 and signed the letter of confirmation of 25 October 1976, that he was aged 32, had three young children and had no prior convictions of any kind, It was also said that as a result of personal guarantees granted in respect of loans to the company which is now in receivership, he had lost his house and his car and was presently engaged as a salesman earning $130 per week and overtime, that 'ie had no assets at all, aid

that he was paying off a personal loan arising out of tne failure

M.J. and J.B. Purcell were tne only directors of and

A plea of guilty was entered in each case by counsel, and in addition a specific admission of the commission of the

offences was made so that no question of proof of the offences

I regard these offences as being of a very serious nature

since they involve not only a breach of s.53(c) of the Tide

Practices Act but also a representation that electrical ¢quiprent had the approval of electrical authorities, which in fact it did not have. However, I am mindful of the fact that, at least to some extent, it can be said that all the offences arose beceuse of the representation that the slow cookers had an approval which they did not have. It is also relevant that efforts were being

made to get the approval of the State Electricity Commission,

Although no sworn evidence wes given of the defendant s financial affairs, the informant appeared to accept what was presented to the Court concerning them and, with some hesitation, I have decided to proceed on the basis that the defendant lies no assets and earns but a modest wage. I see great merit in evidence of this nature being given under oath and it must not

be assumed that I would accept unsworn material of this nature

It seems purposeless imposing fines upon an individua. in excess of his capacity to pay. In addition this defendant has

already suffered dearly by the loss of his house and car.

I convict the defendant on each charge and I impose the following fines: In respect of No. VG 84 of 1977, $400. In respect of No. VG 85 of 1977, %100. In respect of Nos. VG 86-94 inclusive of 1977, $10, making in total $90. In respect of No. VG 95 of 1977, $100. In respect of No. VG 96 of 1977, #300 - making $990 in all.

nace ieee me a anaksanenen egstie tee ARAL SE . yoo -

I also order the defendant to pay the informant's costs

I add that I have noted the amendment made to s.79 of the Act in 1977.

LARMER v. JOHN BARRY PURCELL The informant, Mr. Larmer, laid nine informations Nos. VG 97-105 inclusive against John Barry Furcell, the deferdant,

alleging sreaches of s.53(c) of th: Trade Practices Act 1974.

These informations were laid in respect of deliverics corresponding to those in respect of which informations Nos. VG 74-82 of 1977 inclusive had beea laid against the company Dome Lighting Products Pty. Ltd. I have already dealt wivh

the facts in what I have said with regard to that compény.

It wes submitted that the defendant was knowingly ccrcerned

in each offence within s.5 of the Crimes Act of the Commoi..'2alth.

A plea of guilty was entered by counsel for the defer dent in respect of each information, and a specific admission cf the commission of the offences was made, therefore no question cf

Mr. J.B. Purcell was a director of the company and it was said, and not denied, that the defendant knew of the cont.7act

and of its provisions and was actively involved in delivery of

the items, and that he knew at all stages that the slow cooker

It was submitted by counsel for the defendant that the defendant was 59 years of age, had four children, including the defendant in similar proceedings Mr. M.J. Purcell, a son, working, aged 19, and twins aged 15, one of whom was in hospital. It was said that he had been a light manufacturer for 21 years and that as a result of a receiver having been appointed in respect of the company Dome Lighting Products Pty. Ltd., and of persoral guarantees, he had lost his home, two cars and a house~boat which he had owned. It was also said that at present he was working as a storeman earning approximately $130 Ler week, renting ¢ house, and that his wife was working part-time. It was said that he was also paying off a personal loan arising out of the failure of the business. It was also said that he

It seems to me that this defendant has already suffered very greatly as a result of his association with the slow cooker transaction and has no prior convictions of any Find. On the material before me it seems that this defendant was

somewhat less involved than the ovher defendant Mr. M.J. Purcell.

reservation, what was said about the financial affairs of

Although I regard the charges to which pleas of guilty

have been entered as serious, I consider that in all the

In each case the defendant is convicted and I impose a fine of $50 in respect of each of the nine informations Nos. VG 97-105 of 1977 inclusive, making a total fine of #450. I also order

the defendant to pay the costs of the informant in each case.

In relation to both the fines imposed on Malcolm John Purcell and on John Barry Purcell, I will say payment is to be

made at the rate of $20 per week. the first payment on or

That means that the amount to be paid off in respect of each of those defendants is $20 per week, spread over tne whole of the fines levied against each defendant, a total

ITeortify that thisandthe "er preceding rages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Franai