Trade Practices Commission v. Sparrow, J.V. [1981] FCA 230

Federal Court of Australia|1981-12-11|Before: Gregor J

misleading and deceptive conduct - false claims that advertisements had been commissioned - that children's colouring in booklets had official and professional sponsorship - respondent said to be responsible - circumstantial evidence - failure

This is an application by TRADE PRACTICES COMMISSION

(Cowmission) for certain relief pursuant to the Trade Practices Act

1974 (the Act) ss.52,80 and 80A against JOHN VICTOR SPARROW

"(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of sub-section (1)."

from engaging in conduct that constitutes or would constitute -

(d) a contravention of a provision of Part 1V or V;

(£) aiding, abetting, counselling or procuring a person to contravene such a provision;

(h) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

(1A) A person other than the Minister or the Commission is not entitled to make an application under sub-section (1) for an injunction by* reason that a person has contravened or attempted to contravene or is proposing to contravene, or has been or is proposing to be involved in a contravention of, section 50.

"(1) Where, on the application of the Minister or the Commission, the Court is satisfied that a person has engaged in conduct constituting a contravention of a provision of Part V, the Court may make either or both of the following orders:

(a) an order requiring that person or a person involved in the contravention to disclose to the public, to a particular person or to persons included in a particular class of persons, in such manner as is specified in the order, such information, or information of such a kind, as is so specified, being information that is in the possession of the person to whom the order is directed or to which that last-mentioned person has access;

A summary of the conduct set out in the Statement of Claim and allegations made in it for which the Commission seeks

Since about May 1980 the respondent by himself, his servants or agents has, by means of telephone conversations or sending letters or invoices through the post, made the following statements and representations to other persons, firms and corporations or any of them (referred to hereafter

(a) that the other persons had previously authorised the placing of an advertisement in a publication called "Katy's Colouring Book about Drugs & Health";

(b) that the other persons had previously agreed to pay a fee for the placing of an advertisement in a publication called

(c) that the other persons had previously authorised the placing of an advertisement in a publication called "Signals & Safety

(a) that the other persons had previously agreed to pay a fee for the placing of an advertisement in a publication called "Signals & Safety Children's Colouring Book";

Since about May 1980 the respondent by himself, his servants or agents, has by means of postal services, sent and published to «persons, firms and corporations or any of them publications called "Katy's Colouring Book about Drugs & Health" and "Signals & Safety Children's Colouring Book".

The Commission alleges that the said publications contained

(a) the said publications had the sponsorship, approval or support of one or more of the following -

(i) persons, associations or corporations whose functions are or include the conduct of public drug education programmes or public road safety education programmes;

(ii) government authorities or instrumentalities concerned with drug education and road safety education;

(b) the said publications were published by a firm, corporation, association or trust having charitable or public benevolent objects;

(c) the said publications were published by a non-profit organisation or, alternatively, that any profits earned from the publications would be used for the purposes of public drug education or public road safety.

Drugs & Health" contained statements that it was "Edited by Gerald Milner MD" and was "From a US Bureau of Narcotics & Dangerous Drugs

in which they appeared, constitutedthe representations that -

Dr. Gerald Milner MD had authorised the Said use of his name;

Dr. Gerald Milner MD approved of the publisher or was associated, affiliated or connected in some way with the publication;

the United States Bureau of Narcotics and Dangerous Drugs had authorised the said use of its name;

Benefits Association of Victoria Limited (hereinafter referred to as

"HBA"), a body corporate incorporated in Victoria, had been distributing to the public through its branch offices and - chemists a publication called "Katy's Colouring Book about Drugs & Health".

Prior to 2 May 1980 the printing and publishing of the publication referred to in paragraph 4 was done with the authority of the owner of the copyright in the work namely Perfect Publishing Company Pty. Limited,

a company incorporated in Victoria but by an agreement dated 2 May 1980 Perfect Publishing Company Pty. Limited assigned to HBA all its right title and interest in the said work.

The publication referred to as "Katy's Colouring Book about Drugs & Health", apart from the advertisements appearing in it and some other minor differences, has been copied from the

HBA publication of the same title without the knowledge or consent of HBA.

The Commission further alleges the sending and publishing

of the publication called "Katy's Colouring Book about

Drugs & Health" was likely to mislead or deceive by inducing

the publication referred to in paragraph 1(a) is published by HBA; the said publication is sponsored, approved or authorised by HBA;

the publisher of the said publication is affiliated, associated or connected with HBA. -

contravention of section 52 of the Act. The Commission further alleges -

Hereafter the publications being the handbooks "Katy's Colouring Book about Drugs & Health" and "Signals & Safety Children's Colouring Book" are referred to as "Drugs & Health"

and"Signals & Safety". The Commission further alleges -

At the time when the said payments were received and accepted by the respondent the persons, firms and corporations making the payments believed that the respondent intended to distribute the publications generally to school children and to schools free of charge in the areas respectively where such other persons, firms and corporations carried on business. The acceptance of the payments was likely to induce and did induce such other persons, firms and corporations to

At the time of acceptance of the said payments the respondent did not intend to distribute the publications to school children or schools in the said areas, or alternatively intended only to distribute the publications to a relatively insignificant proportion of schools or school children in the same areas.

The rakine of the statements anc representations, the sending of letters, invoices and the publications, being the handbooks referred to above, through the post, set forth above, constituted conduct that was misleading and deceptive or was likely to mislead or deceive in contravention of section 52 of the Act.

Alternatively, the Commission claims that a person or persons other than the respondent engaged in the conduct described in

(b) was directly or indirectly knowingly concerned in, or party to, the conduct;

Gerald Milner, a consulting clinical and forensic psychiatrist, has given evidence by affidavit dated 29 July 1981, which has not been the subject of cross examination. He referred to

his qualifications in medicine, surgery and psychiatry and to his appointment, until May 1979, as the Inspector and Director of the Alcoholic and Drug Dependent Persons Service of Victoria. In 1973,he saw in the United States a booklet entitled "Katy's Colouring Book about Drugs and Health". This handbook contained drawings which might be attractive to children and which would be suitable for colouring in. He thought it might be useful to £ill a gap in children's education in Victoria and therefore wrote to the United States Bureau of Narcotics and Dangerous Drugs (the U.S. Bureau) seeking its permission to arrange a similar publication in Australia. With his application he undertook that he personally would not receive any form of financial gain from any proposed modification of or the publication and distribution of the handbook in Australia and that the U.S. Bureau would be acknowledged on all copies of

the proposed Australian version. In due course he was given this permission from the U.S. Bureau. Thereafter, he instructed a firm of publishers, Thomas Williams & Associates Pty. Ltd., (later to become Perfect Publishing Company Pty. Ltd. (the publishers)), in Victoria to produce a modified version

of the handbook in which he had re-written the text to delete Americanisms and some of the wording accompanying the line

Gerald Milner's belief was that the Australian version of the handbook was first printed in 1975; and over the next four years large numbers of the handbook were distributed. The witness left Victoria in May 1979 to take up another appointment. In early 1980 he agreed with the publishers that the H.B.A. might buy the rights of it from the publishers and would be allowed to handle

The only persons, companies or organisations to whom he has given authorisation to use his name in connection with the Australian version of "Drugs & Health", I find, are the publishers and the H.B.A. He identified one such handbook produced by the publishers. Allowing for minor differences in e.g. ink, it is identical with those received and to be referred to later by e.g. the

Kenneth John Stevenson in an affidavit stated he had worked in various businesses as a type-setter for the past 20 years.-He conductsa business known as "Kenmar Services"; that in 1977 and until late 1979 he was employed as a type~- setter by the "Glebe & Western Weekly Newspaper" (the Glebe Weekly); that in that business he knew a man as 'Jack Moore" he believed to be the proprietor of another enterprise known as "Dana Publications'. The said Jack Moore arranged for the "Glebe Weekly" to do type-setting work for him consisting of double-sided pages of advertisements which the deponent believed was intended for insertion in a children's booklet concerning drugs being published by Jack Moore's business. When swearing his affidavit he was shown a version of the booklet "Drugs

and Health" (marked KJS1) and recognised the general appearance,

lay-out and content of it as being substantially similar to one he had seen before and otherwise than having been shown it by the officers of the

Commission. He believed that he saw the copy at the premises

of the "Glebe Weekly". This booklet,' I find, is'a copy identical with those received by Sawers, Pillig and Smith Potter whose evidence I refer to later. In or about June or July 1980, the man he

knew as Jack Moore visited his premises and handed him a double-sided printed sheet for advertisements to be type-set

and for 70 copies of each page to be printed on a particular paper. On the copy supplied the handwritten words "Drug Book" appeared. The deponent believed the advertisements were to

be inserted in abooklet for children about drugs similar in style to another booklet he referred to as "The Signals and

Safety Booklet" and to which, in evidence, later reference is made.

Stevenson made arrangements for the printing of the advertisements by Snap Instant Printing Pty. Ltd. He gave evidence that he had the printing done to the handbook "Signals & Safety". He identified the respondent in Court as a man known to him as "Jack" who had come to his premises on many occasions. "Jack" is the same person who is referred to in his affidavit as "Jack Moore" though the addition of "Moore" may be because he had heard that surname used by officers

of the Commission. He thought "Jack" was getting work done by Dana Publications. The telephone number given for this man was 664.1239. According to his viva voce evidence,

Stevenson had this number listed in his teledex under "Dana".

Stevenson visited the premises of Snap Instant Printing Pty. Ltd. to ascertain if that company would print on paper he produced to Mr. Sells, one of its executives, advertisements given to Stevenson by Jack Moore. Stevenson's evidence is corroborated by David Arthur Seils of Snap Instant Printing Pty. Ltd. who, apart from doing certain printing work for and at Stevenson's request, was, in about March.or April 1980,

shown by him a copy of the booklet "Drugs & Health"

Steven de Vroom in his affidavit dated 14 August 1981, referred to carrying on business as printing, Plate making and graphic dark room work. In about March 1980 he received a call from Stevenson seeking the making of some plates. The art work for some printing plates was thereupon delivered to de Vroom by Mr.Don Dalton. It consisted of sheets of business advertisements. De Vroom made 12 double sided printing plates. These were

collected by Mr. Don Dalton. Between March and May 1980 this

Mr. Dalton told de Vroom that Stevenson's client was a man called gack Sparrow. On one such occasion Dalton stated that the advertisements were to be inserted in children's handbooks

about Road Safety and Drugs. Thereafter, or during the course of his dealings with Dalton, de Vroom always believed the advertisements were destined for insertion in children's

De Vroom also says that he, by telephoning a number given to him by Stevenson, arranged for collection at his, de Vroom's premises, of "Signals & Safety" he had trimmed and stapled. In due course they were collected by a person he believed to be Jack Sparrow who put them into

envelopes as if for posting. Jack Sparrow he identified

In about June or July de Vroom deposed to having had a call from Stevenson in which the latter asked him to make some more plates of "those advertisement sheets for me and do some printing. It has to be on glossy paper." Stevenson said he would send a sample of the paper so de Vroom could procure it. About that time, he,de Vroom, received a sample of the paper and a copy of a handbook entitled "Katy's Colouring Book about Drugs and Health" into which, so Stevenson advised, advertising sheets were to be inserted. De Vroom was given the handbook in order to obtain measurements for the size of paper required for the work to be done. He identified an exhibit marked "SDV12" as a copy of the handbook so entitled and being

substantially identical to the one shown to him by Stevenson.

Invoices he supplied to Stevenson referred to "3 sets drug book inserts". This handbook is a replica, apart

from advertisements, of the one identified by Gerald Milner.

From a consideration of the affidavits of Stevenson, de Vroom and Selis, I find that copies of "Drugs & Health" were produced in 1980, somewhere about April of that year or later, at the instance of other than the publishers and lacking any authority to use the name Dr. Milner, the U.S. Bureau, the publishers or the HBA. Copies of this publication were sent at least to Elizabeth Anne Sawers in late August 1980,

Amne Marcelline Pillig in or about September 1980, and George Robert Smith Potter in October or November

In 1980 before the said handbooks were received by them a telephone caller (not necessarily the same in each case) telephoned the said Pillig and Smith Potter. I am satisfied that the caller represented on the telephone falsely, and to each of them that there had been an arrangement made by each of them prior to the telephone call for the insertion of advertisements ,

and for which payment was agreed to be made by those

An Order Form-invoice received by e.g. Sawers and Pillig dated

22nd August 1980 was, as to alleged prior arrangement, to the

and it quoted a charge for the work of insertion of the

"Following our recent telephone conversation, we wish to thank

you for sponsoring an advertisement in our Drug Danger Handbook.

This Handbook will be distributed free of charge amongst school children in your area who appreciate your gesture in taking an advertisement. Once again, many thanks. When

making payment would you please make cheque payable to...

I find that the order form invoice in so far as it refers -to a prior.sponsoring of an advertisement hy the recipients of the communcation, and for which payment was agreed to be made by them, and that the said handbook would would be distributed or distributed free of charge amongst

school children in the area of e.g. Sawers or Pillig, was false.

I have not referred to all the evidence. From a consideration of it, I find that a person or persons

on his own behalf or on behalf of another had contrary to the

and each of them or someone on their behalf had, on the occasion of a previous telephone conversation, agreed to place and pay for a

order form invoice sent to the said persons to whom

(a) they and each of them had agreed to place and pay for a business advertisement in a handbook "Drugs & Health";

(b) the said. handbook would be widely distributed free of charge to school children 1n the area wherein the business of ~- the persons to whom the telephone

invoice had been sent, operated. 3. by the use of an Order form invoice sent to

Elizabeth Anne Sawers represented that she had agreed to place and pay for a business

By the use of an Order form invoice sent to persons including Elizabeth Anne Sawers represented to the said persons that the said handbook would be widely distributed free of charge to school children in the area wherein the business of the said persons and Elizabeth Anne Sawers operated;

by words reproduced on the handbook "Drugs & Health" represented to persons including those mentioned in para. 1 that publication of it and its publisher were then affiliated with or had the support, sponsorship, approval and authority to publish of -

(ii) The Alcoholicgand Drug Dependent Persons Services, Victoria.

(iii) The U.S. Bureau of Narcotics and Dangerous Drugs;

by words reproduced on the said handbook "Drugs & Health" represented to persons including those referred to in para. 1 that Gerald Milner was, at the time of the production in 1980 of the handbook "Drugs & Health", then associated with the Alcoholics and Drug Dependent Persons

I find that the conduct in the above paragraphs 1, 2, 3, 4, 5 and 6 was in trade or commerce misleading or deceptive or is likely to mislead or deceive within the

meaning of and in contravention of s.52 of the Act.

"SIGNALS AND SAFETY" 1s a handbook in the form of a children's colouring-in book which is, as the evidence shows respondent admits, and anyway a comparison of exhibited examples of it confirms, is the same style of publication as "Drugs & Health"; suitable to children. It does not have on it any written reference to its editor or authority for its publication. It could be taken or thought to be some form of official publication or so to represent itself, i.e. to teach children

The evidence of Stevenson and de Vroom establishes, in or about the first half of 1980 that for "jack Moore", Stevenson undertook typesetting and arranged printing of 2000 copies of the handbook "Signals & Safety". The date on a copy of an Order Form exhibited indicates that this latter work was undertaken by Stevenson on 12 May 1980.

His affidavit evidence establishes further that in the copies

of the handbook "Signals & - Safety" advertisements were to

be inserted. Stevenson's records account for 20 sets which

would include 1200 prints of advertising sheets made by the Company, Snap Instant Printing pty. Ltd. This work was arranged at the request of"Jack Moore". Advertising sheets were inserted

in 480 of the 2000 copies of the handbooks. Stevenson, for

those handbooks at least, arranged that their stapling and trimming would be carried out by de Vroom. Already I have referred to the identification of "Jack Moore" as the respondent.

for stapling and trimming 480 copies of the handbook are

However, other evidence of Stevenson indicates that some

advertising sheets may not have been typeset by him.

David Arthur Sells, Manager of a branch of Snap Instant Printing Pty. Ltd., in an affidavit deposed to having, pursuant to arrangements made with Stevenson, printed 1000 copies of a publication headed "Signals & Safety Children's Colouring Book" and numerous designs of road traffic signs. Insert pages in it contained line drawings and short written

commentaries addressed to children concerning road safety.

In 1980, it was also possibly Stevenson's business that at the request of "Jack Moore", typset the three first lines of a form of order form invoice (to which reference will be made later) headed "Signals & Safety". Examples of this form having been used appear elsewhere in the evidence. Stevenson's evidence is corroborated by Sells who, in about dune 1980, was given a copy by him of "Signals & Safety" being one of the handbooks printed by Snap Instant Printing

In affidavits, and on dates appearing therein in brackets after their name, Robert William Bowerman (early May 1980), William Edward Lawless (early May 1980), Maiga Helen Roche (6 August 1980), James Robert Lindwall (20 August 1980), _ Gerald Moore Robinson (25 August 1980), Heide Dorothee Smith (September 1980) were telephoned by persons who represented contrary I find to the fact, that on behalf of the respective

firms or companies the deponents had agreed to place and pay for

advertisements in the publication "Signals & Safety". The purpose of the call was to collect from the deponents a sum

received by e.g. William Edward Lawless, as follows -

"SIGNALS & SAFETY 13097 The Children's Guide to Road Safety

Thank you once again for your support following our recent telephone call for your advertisement in our publication. This book is distributed free in the appropriate area to school children whose parents will appreciate you taking your advertisement. Many thanks for your kindness in helping with Road Safety.

TO: Signals and Safety Post to Box 709, G.P.0. SYDNEY. 2001

issue Date Charge Yours faithfully, 1980 13.5.80 $90.50

An order form invoice similar to that set out above was also sent to persons including Robert William Bowerman or Alma Jean Bowerman, Maiga Helen Roche, James Robert Lindwall, Gerald

I find that the order form invoice in so far as it refers to a prior sponsoring of an advertisement by the persons named and for which payment was agreed to be made by

From a consideration of it, I find that a person or persons

on his own behalf or on behalf of another had contrary to the

at least to Robert William Bowerman, William Edward Lawless, Maiga Helen Roche, James Robert Lindwall, Gerald Moore Robinson and Heide Dorothee Smith that they and each of them or some one on their behalf had, on the occasion of a previous telephone conversation, agreed to place and

8- orally by telephone calls and by the use of an order form invoice sent to Alma Jean Bowerman or to Robert William Bowerman on her behalf, William Edward Lawless, Maiga Helen Roche, James Robert Lindwall, Gerald Moore Robinson

(a) they and each of them had agreed to place and pay for a business advertisement in a handbook "Signals &

(b) the said handbook would be widely distributed free of charge to school children in the area wherein the business of the persons to whom the telephone call had been made,

by the use of an order form invoice sent to Roberta Shelagh Bolitho represented to her that she herself or on behalf of Jetset Tours

(a) had agreed in a telephone cali to place and pay for a business advertisement in a handbook "Signals & Safety";

(b) the said handbook would be widely distributed free of charge to school children in the area where the business

1O. by the use of an order form invoice sent to persons including Alma Jean Bowerman, William Edward Lawless, Maiga Helen Roche, James Robert Lindwall, Gerald Moore Robinson and Heidi Dorothee Smith represented to the said persons that the handbook "Signals & Safety" was part of a Road Safety programme and is widely distributed free of charge to school

I find that the conduct referred to 1n paragraphs 7, 8, 8 and 10 above was in trade or commerce misleading or deceptive or is likely to mislead or deceive within the meaning of and contrary to s.52 of the Act.

Next I refer to submissions and evidence upon which

the Commission relies to show liability of respondent for

the conduct referred to in paras. 1 to 10 on pages 17 to 23

The case for the Commission is that respondent, then proprietor and owner of "Dana Publications", a publishing business, perhaps because of impending or actual sequestration of his estate, either posed as or allowed himself to be known as "James David Moore". He decided to continue the publishing business as or start a new business "Renown Publishing". The case includes that there was a registration of that firm name. This was associated with the opening of a Bank account established for it which referred to the publications "Drugs & Health" and "Signals & Safety". Advertisements already had been or thereafter were sought for insertion in the two handbooks of those names. On occasions this was done by telephone calls and the use of order form invoices to which earlier reference has been made. The Commission further contends that the evidence compels the inference that the person responsible for telephone calls, use of order form invoices and the production of the handbook and hence the misleading and deceptive conduct, already the subject of my finding, was the respondent.

Respondent gave evidence that, in effect,"Moore" agreed to take over the "Dana Publications" business. I refer to this later. He also denied, in effect, any association with "Renown Publishing", investing any money in it or being employed by "woore". He conceded he was with "Moore"when the Bank account at the Commonwealth Trading Bank, Town Hall Branch, in the name "Renown Publishing" was opened; that he twice visited "Moore's" office at 14/201 Coogee Bay Road, which flat was then still "Moore's" office. He remained, he said, with "Moore" "three or four months. It might have been longer".

"I used to do the banking for him and go and clear the box for him and go to the printer for him and pick up different things and post things for him, things like that."

He was aware there were various editions or versions of "Katy's Colouring Book". He denied owning a brief case found on a search of his flat by John Cranston Thompson on 26 March 1981 containing documents referring to "Renown Publishing" or that it was locked or that he knew what was in it. He said the case was "Jim's" (Moore). I make further reference to this brief case later. He referred to a lady "Barbara" (Morgan) identified in a photograph in evidence as a friend of Moore's and his for ten years who used to do some banking for him

He described Moore (whom he had known 7 or 8 years) as a "mysterious sort of bloke", "very secretive". Barbara Morgan used various names; in relation to e.g. "Renown Publishing" she used the name "Howe". He denied having been directly involved in selling advertising space; he had helped Mooney and Moore and received remuneration for that help.

He agreed that when "Dana Publications'" Bank account was

opened he had signed a document used to open the Bank account

and a Statutory Declaration used to open an account as a "partner"; that word appeared on the document he had signed above his signature. His explanation for this was, referring to

"He wanted me to be known as a partner but I was not a partner."

Yet when Mooney (apparently) wrote to the Rural Bank, Kings Cross Branch, on 29 January 1980, stating his withdrawalfrom "Dana

Publications", he referred to there being a partnership.

He also agreed that he signed an indemnity addressed to the Rural Bank of New South Wales in respect of dealings on that account; and that there was annexed to that indemnity a list of publications being an annexure which list included a publication known as "Child Guidance Programme". He claimed that when he had a conversation with Moore about selling its furniture he told him the numbers of the Post Office boxes operated by "Dana Publications", being two in the city and one at Coogee and that he gave him the keys to those boxes agreeing that he assumed thereafter Moore would meet any payments necessary to maintain those boxes. Later he agreed that the up-keep of those accounts, viz. the Post Office box accounts, would be an expense of Moore's business.

But he agreed he signed "Dana Publications!" cheques

on 8 and 9 April 1980 in favour of Australia Post which were in respect of the Post Office boxes. He said that the Bank account of "Dana Publications" was closed at the

"Just before I was made bankrupt I closed the account",

"You were operating on Dana's bank account, were you not?----I was, yes.

In April 1980?--~-And then it closed when I was a bankrupt. I had to close it. I told them to close it. It had to be closed. That was the instructions from the bankruptcy people. I went and closed it. I

He said that he did not think he had ever seen an invoice or any other document with the words "Signals and Safety" printed on it. This answer appears to relate to before

He denied that a letter addressed "Dear Jack" found in the black brief case (which he said belonged to Moore) was addressed to him. Elsewhere in his evidence he said that he 1s "always known as Jack Sparrow, always have

He was referred to his Statement of Affairs made an his bankruptcy and dated 27 April 1980 in which it was

"T have not during the past 5 years carried on business on my own account or in partnership."

He agreed that, in respect of carrying on a business of Dana Publications between the beginning of February and early

was false. He denied that he signed the document knowing the contents to be false, and asserted that he was never a partner of Mooney. In respect of his work with Mr. Moore at the end of April 1980, he said ~

"I was doing some errands that is all. And were you receiving any remuneration or that?----No.

Did he ever reimburse you for out-of- pocket expenses?----~No."

Elsewhere he agreed he had had remuneration from Moore.

He agreed that he signed a cheque dated 8 April 1980 to pay for a Post Box in the name of Dana Publications; that this was in respect of a Box which Moore was "going to use", In respect of signing that

cheque and his comment in paragraph 5 of an affidavit signed

"I agree that I signed to therein at the request of Peter

He was not able to understand how it came about that he had

so stated. At this stage Mooney, on respondent's evidence,

the name of "J. Moore" in the Australian Capital Territory,

"....Moore wanted the box retained,so that 1s how we paid for it, and so I gave him the cheque to pay for it. But Box 436 had been the Box that Dana Publications had used for the previous two or three years."

The cheque in question was dated 26 March 1980 in favour of Australian Post for $16.00. He said that he gave the

cheque to Jim Moore to pay for the Box. It was drawn on

the account "Dana Publications", and signed by respondent.

In his affidavit of 11 June 1980 referring to a paragraph in an affidavit of John Cranston Thompson, relating to documentary evidence as to the sale of a Mercedes car to

"J do not know and cannot admit the truth of the facts alleged in paragraphs 52 to 56 inclusive of the said affidavit."

"That was a mistake on my part, it was quite common sense that the car is registered to Moore there. How could one deny it. That 1s an oversight definitely. I am not very educated...."

I have not referred to all evidence given by respondent. I consider that he was not a credible witness. Some instances

I do not accept that his only help to Moore, if indeed Moore played any part in the affairs of "Renown Publishing" was doing "errands". I do not accept that Stevenson did business as respondent said in evidence, with "Jim Moore" (as distinct from respondent), a matter never put to Stevenson in cross examination. I do not accept his evidence that he did not own or know what was in the brief case found when the search warrant was being executed. His account of how he received the withdrawal slips for the Building Society and the books to which they related does not ring true; and his possession generally of share certificates in the name "James David Moore" is not

On 21 September 1975 an application was made to the Corporate Affairs Commission (C.A.C.) by Thomas Walter Mills for the registration of a business name, "The Child Guidance Programme". On or about 19 April 1977 a "Statement of Change in Persons in Relation to whom Business Name is Registered" in respect of that name stated that on that date "Peter Mooney" commenced to carry on business under that name at 21/151 Bayswater Road, Rushcutters Bay. There was lodged, also dated 23 August 1978, a "Statement for Renewal of Registration of Business Name" with Peter Mooney as proprietor, the registration not to

An application for registration of a business name "Dana Publications" to commence on

21 December 1976 was lodged on 6 January 1977 with the C.A.C. The said Mooney was referred to therein as carrying on business under that name at the principal business address, viz., 171 Oberon Street, Coogee - telephone number referred to as 665.8056. The nature of the

On 13 January 1977 an application for a Private Box service for "Dana Publications" was lodged with the Australian Post Office (A.P.0O.).

Business principal was shown as Peter Mooney who gave a telephone number 665.8056 and 151 Bayswater Road, Rushcutters Bay, as its address. The business purpose stated was "publishing".

Box No. 3149 was allotted in response to the application. This Box number appeared on the order form invoices received by e.g.

Elizabeth Anne Sawers and Anne Marcelline Pillig headed "The Child Guidance Programme", sub~heading "The Drug Danger Handbook". The A.P.O. documents indicate that the service commenced on 13 January 1977. On both the application and service document was

Similar application dated 15 November 1977 for "Dana Publications" was made. The application was signed by John Sparrow as proprietor, business purposes being "publishing". Box number 709 was allotted. Keys were signed for by J. Sparrow. This Box number appears on the order form invoice for "Signals & Safety" annexed to the affidavit

the box." He agreed he organised printing and advertising for two publications "Bondi Icebergs" and a sports

From at least or about January or February 1980, whether following a conversation with Mooney or otherwise relating to the business "Dana Publications", respondent continued to run the business.

listed in his teledex; and when de Vroom, given a number, telephoned and arranged for "Signals & Safety" handbooks to be collected, the respondent came to Stevenson's

Respondent gave evidence that "Dana Publications" closed down early in April (1980); just before that, he told Jim Moore of his intention. Moore said "I understand all about that business, I will take it over." I note that the respondent's evidence is that Moore bought certain furniture and then commenced to operate a business "Renown Publishing". I do not accept that Moore spoke as

On 17 April 1980 there was lodged with the C.A.Cc. an application for registration as a business name "Signals & Safety Programme". The name of the person to be registered as carrying on the business was "James David Moore", 8 Bligh Place,

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (257 paragraphs)

Cited By (1)