Wallace, J.R. v. Walplan Pty Ltd [1985] FCA 194

Federal Court of Australia|1985-05-24|Before: Spencer J, Spender J, Pincus J

TRADE PRACTICES - Prosecutions under ss.56(1) and (2) of the Trade Practices Act - Wnether the word "offer" 1n s.56(2) means "make available" or "offer specifically to each person who enquires" - Single or multiple offences - Whether these questions should be reserved for the Full Court pursuant to s.26 of the Federal Court of Australia Act ~ Amendment of charges and particulars of charges - Defence under s.85(1)(c) of the Trade Practices Act - Interrelationship of s.85(1)(c) and s.84(2) of the Trade Practices Act - Meaning of s.84(2) of the Trade Practices Act - Whether conduct "on behalf of" a body corporate in s.84(2) is conduct with the express or implicit authority of the body corporate.

Wallace v. Brodribb (unreported decision of Spencer J. 11.3.85)

Commissioner of Trade Practices v. Caltex Oil (Australia) Pty Ltd (1974) 23 F.L.R. 457

Universal Telecasters (Qld) Ltd v. Guthrie (1978) 18 A.L.R. 531 Tesco Supermarkets Ltd v. Nattrass (1972) A.C. 153

These are s1lx prosecutions brought under s.56 of the Trade Practices Act 1974. Before the end of the hearing I expressed a view about the construction of the séction anda was subsequently asked by counsel for the prosecutor not to conclude the matters but to reserve a question for the Full Court, or alternatively state a case. The first question, then, 1s whether

ZY should accede to that application or simply determine ali these

Application under 3.26 of Federal Court of Australia Act

The application made on behalf of the prosecutor with a view to obtaining the view of the Full Court need not be set out un detail, but to qive an understanding of what was desired by

the applicant it 1s necessary first to quote s.56(1) and (2).-

"(1) A corporation shall not, in trade or commerce, advertise for supply at a special price goods or services that the corporation does not intend to offer for surply at that price for a period that 15, and in quantities that are, reasonable having regard to the nature of the market in which the corporation carries on business and the nature of the advertisement.

(2) A corporation that has, in trade or commerce, advertised goods or services for supply at a special price shall offer such goods or services for supply at that price for a period that is, and in quantities that are, reasonable having cegard to the nature of the market ain whicn the corporation carries on business and the nature of the

The charges, explained more fully in the next section of these reasons, relate to two motor vehicles. As to each, 1t 1s alleged that tnere was an offence under s.56(1) in advertising once without the requisite intention and that there were two offences under s.56(2) in failing, when requested by each of two named persons, tc offer the vehicle for sale at the advertised price. The prosecutor framed a number of questions for the Tuli Court, the essence of which in my opinion is whether the

expression ""offer" in the provisions just quoted means "make

available", as Spender J. heid in Wallace v. Brodeibb

(unreported; 11 March 1985). The principal importance of that

question for present purposes 1s that, 1f "offer" means "make avallable", then there can only be one offence under 3.56(7), in respect of each vehicle, whereas the prosecutor says in effect that "offer" means "offer specifically to each person who enquires". If offer means "make available" then the vehicle 1s either made available or it 1s not and there 15 only one offence

My Morley Q9.C. on behalf of the prosecutor argued that if, when a single vehicle is advertised at a special price, it 1s not made avajlable for sale at that price, there are as many separate offences as there are acts or omissions contrary to the

obligations created by s.56(2),. He explained that an act or omission constituting an offence was one which "can be shown to be one compiete unit, act or omission separate from any other such alleged whole act or omission". En the instant case, that would achieve the result that many offences might be committed, under s.56(2), in not making a single vehicle, advertised once, available for sale. The argument would produce the result that each time a customer enquired after the advertised vehicle and was refused, a separate offence would be created. Mat only that: many other individual acts or omissions going to make up tne failure to put the single vehicle on sale could each constitute a

It is plain that the proceedings should not be interrupted to have an interlocutory determination of a legal

point except in unusual circumstances: Barton v. Westpac Banking

Corporation (1983) A.T.P.R. 40-407. It was said that here the matter should go to the Full Court because the view expressed by Spender J. 1s in conflict with the earlier decision of Smithers

Jd. in Reardon v. Mortev Ford Prv Ltd 49 F.L.R. 401.

It is unclear whether the decision in Reardon v. Morley

Ford Pty Ltd, properly read, favours the argument of the

prosecution in this case. It is for that reason, and also because that argument arrives at what 1 regard as a rather improbable construction, that I have decided not to accede to the

application under 5.26. As to the latter reason, it is necessary

consisted only of what 1s now sub-s.(1), set out above. In that provision, the exyression "offer for supply" clearly referred to making goods ofr services available, not to offering them specifically to any person. In considering whether the requisite intention existed, it would not ordinarily he relevant to ask whether the advertiser intended to offer the acods for sale to any specific person; at the stage of insertion of an advertisement, he could hardly have that intention. The state of mind required by the section, iniaits original form, was an intention to do whatever was necessary and appropriate genuinely to make the goods or services available at the advertised price.

No doubt, in determining whether that intention existed, in such

a case as the present quite a range of facts might be investigated. For example, 1t would be relevant to know whether the advertised vehicle was displayed in the car vard in the ordinary way, whether 1t had the advertised price anit and whether people who enquired after 1t were turned away oar

encouraged. Of course, proof that a number of people were turned

away would not, under s.56(1), entitle the prosecution to as many

When sub-s.(2) and (3) were added ain 1977, the evident purpose was to enable a conviction to be obtained on proof that (to take the presenk facts as an example) the advertised vehicle was not put on sale, and no doubt that step was taken because of difficulties in proving lack of intention. Again, evidence with respect to various acts or omissions might be relevant in determining whether a vehicle was genuinely offered for sale, including evidence that people who enquired after the vehicle were refused 1t. But, unless sub-s.(3), set out below, 15 taken to alter the meaning of the earlier provisions in 5.56, 1t would seem clear that proof of the rejection of any specific customer would be unnecessary to show that the goods were not offered for sale. Section 56(2) does not say "shall offer such goods or

services for supply at that price to any person who enquires for

a period that is, and in quantities that are, reasonable ...". Indeed, that emendation does not fit the rest of the language of the provision. In my view, evidence that an advertised vehicle was simply not placed on sale in the car yard in question at all would be enough to prove a case under s.56(2), without proof of

Yet sub-s.(3) 1s drawn on the assumption that there will

be prosecutions under s.56(2) "in relation to a failure to offer

goods or services to a person". Section 56(3) 1s as follows:-

"In a prosecution of a corporation under Part VI in relation to a failure to offer goods or services to a person (in this sub-section referred to as the customer') in accordance with sub-section (2), it is a defence if the corporation establishes that -

(a) it offered to supply, or to procure another person to supply, goods or services of the "wind advertised to the customer within a reasonable time, in a reasonaple quantity and at the advertised price; or

(b) it offered to supply immediately, or to procure another person to supply within a reasonable time, equivalent goods or services to the customer ina reasonable guantity and at the price ac which the

and, in either case, where the offer was accented by the customer, the corporation has so supplied,

or procured another person to supply, gcods or services."

Since there is no offence created of failure to offer goods or

services to a person, the meaning of the sub-saction must be that

the prosecutions contemplated will be "in relation to" a failure in the sense that the farlure constitutes the particulars of, or

evidence of, the offence. I cannot regard sub-s.(3), however, as controlling the meaning of the earlier provisions in the section so that, so far as 1s relevant to the present case, the result 1s achieved that, each time a customer enquires after the advertised

It will be noted that the point desi:ed to be raised by the prosecution goes further; the argument 1s that one may ke able to dissect the wnole course of conduct, in failina to offer a single vehicle for sale, into numerous elements, oniy some of which may be failures to offer the vehicle to particular customers. The prosecution does not merely want to expand the scope of s.56(2) by an implication from s.56(3), but to treat s.56(2) as creating, 1n a typical case, several or many orfences

I requrd sub-s.(3) as providing a defence where tne circumstances relied on as showing the existence of a failure to offer, for example, the advertised vehicle for sale consist of those spoken of. The sub-section 1s thus treated as saying that

such a failure 1s of no consequence if the advertiser offers, instead, goods as set out in paragraph (a) or (b) Tt appears to me better to adopt this construction, which admittealy involves some straining of language, 'than to use sub-s.(3) ta distort the meaning of both sun-s.¢41) and (2). But whether or met thrs view

of sub-s.(3?) 18 correct, it should not be used to create, by

implication, many offences under sub-s.(2), 1nsteaa of only one.

Mr Dougias, for the defendant, did not dispute that

each item in the advertisement, which depicted and described three different vehicles, could be the subject of a separate charge. I think that where distinct items or categories of items are advertised in one advertisement, a charge may pe laid with respect to each distinct item or category. However, it 18 not

necessary for me to analyse in any more detail the problem of a

single advertisement for several items, 1.@., in what circumstances each item can give rise to a separate offence; i

hold that, here, each vehicle may be the subject of a separate

I do not regard s.56(2) as directed against failure to respond to particular provosals to purchase by making a contract, although such a failure may be evidence of an offence; s.56(2) creates an offence of not putting che goods or services on sale -

that is, on sale for a reasonable period and iin reasonable

The reasons just set out for refusal of the prosecutor's application bring in their train another consequence, namely that two of these prosecutions must fail. here can be only one offence under s.56(2) itt respect of each vehicle. Accepting that this would follow from the views just mentioned, the prosecutor

The six charges may be divided int> two groups. Three of the charges, namely Nos. G2C, G23 and G25 relate to a Ford Falcon XD Sedan and the other three, namely Nos. 621, 622 and G24 relate to a Holden Commodore Sedan. In respect of each vehicle, there are, as mentioned above, two charges under s.56(2). As to the Ford, it is alleged in No. G20 that on 1& March 1983 the defendant failed to offer the vehicle and an allegation in the

same words 1s made in No. G25, with the difference only that the

date 15 19 March 1983. In No. G20 the particulars are as

corporation that had in trade or commerce advertisec goods namely a 73 Ford XD motor vehicle for supply at a special price of $2,990 did fail, when requested by Derek Cornick to offer such goods for supply at that price."

In No. G25 the particulars are the same except that tne

date is 19 March and tne person mentioned 15 Robert Crawford.

The charges under s.56(2) with respect to the Commodore

After I expressed a provisional view in agreement with that expressed by Spender d@., as to the meaning of '"orter for supply" the prosecutor sought to amend the charges contingertly upon my adhering to that opinion. The application in respect of both Nos. G24 and G25 was to change the date of the offence from 19 March to between 17 March and 22 March. It was also sought ro amend the particulars by adding to those initially given in Wo. G24 the particulars of charge No. G21 and by adding to those initially given in No. G25 the G20 particulars. That involved dropping charges G20 and G21, from which the particulars were thus to be abstracted. lit is net clear that the particulars are in strictness properly framed, in that they could he arqued to specify the evidence, or part of it, relied onto prove the breach, but it does not seem to me that tnat prejudices the defence and T allow the amendments sought in respect of the

particulars. Plainly, they raise no new factual question.

As to the charges themselves, the amendments sought are subject to the formidable objection that there is no evidence, ar least of a direct kind, as to whether the vehicles were on sale on all of the days between 17 March and 22 March. Tre evidence only supports unavailabilicy during part of the period, viz on 12 and 19 March. I wili therefoce allow an amendment only with respect to that shorter period, so that in each cnarge, Git ana

G25, "eighteenth and" 15 to be added before "nineteentn".

A notice under s.85(2) was given, and 1f£ was part of the case advanced on behalf of the defendant that any contraventian which occurred was due to the default of salesmen employed at the yard, despite the taking of reasonable precautions and exercise of due diligence. It was also said by Mr Douglas, on behaif of the defendant, that the prosecutor had not proved that any of the events complained of had occurred with the authority of the defendant. As fought, the case concerned principally those two issues: the 3.85 defence, as to which the onus lies on the defendant, and the question of agency, as to which the onus lies en the prosecutor. In the end, the resolution of these points, for reasons I shall explain, depends in part upon the construction of s.84(2) of the Act and its inter-relationship with 5.85. Although there was really no serious challenge, in cross-examination or by the calling cf opposing evidence, to most

of the evidence given on behalf of the prosecution, it 15

On Friday 18 March 1983 the defendant caused a Full-page advertisement to be published in the Daily Sun, a morning newspaper having a big circulation in Brisbane. The advertisement showed pictures of three cars, and had a heading "$300 cash deposit or your car as ful] deposit". Each of the cars was advertised at a price of $2,990, under the mention of which appeared "$22.59 per week", suggesting of course that terms were available. Two of the cars were described in the advertisement as a "79 Commodore" and a "79 Ford XD". There was nothing to suggest that the cars were in other than first-class condition; a note at the foot of the advertisement said "trade

your old car as full deposit and drive away today".

Other notes at the foot included "prices remain for one week" and "all vehicles in stock at date of compiling advertisement". According to records produced on behalf of the defendant, the cost of acquisition of the Commodore was $3,780 and that of the Falcon $4,330. Mr A.J. Dalgarno, an apparently independent witness very experienced in the trade, said that if the vehicles were at the time in reasonable condition, their retall value would have been some thousands of dollars more than that shown in the advertisement and 1¢ 1s clear that the price of

each was a 'special price" within the meaning of 5.56. On the

evidence, the price of each vehicle was such that 11 would sell very quickly, unless the defendant took steps to prevent or delay

Mr R.M. Crawford, shortly before 18 March 1983, noticed

the Commodore Sedan referred to in the advertisement of that date

and that the car's grille could be irfted out, which he thought was a "strange way to leave it". On a Wednesday evening which I find to be Wednesday 16 March, two days before the advertisement, he noticed that the vehicle's grille was removed, aS was one headlight. On Friday evening 18 March 1983, he found the advertisement and noticed the Ford referred to in it, which had

He says he came to the yard on a Saturday morning which

was, as I find, Saturday 19 March 1983 and spoke to a man who was apparently a salesman, to ensure that the two vehicles he had found were those referred to in the advertisement. That man sald they were and confirmed that the vehicles were still for sale.

That man went to the office, telling Mr Crawford to wait until somebody arrived with the keys of the vehicles. Shortly afterwards such a man came and Mr Crawford was given the keys to beth vehicles. Possession of the keys of the venicles shows, of

course, a likelihvod that the man in possession was connected

Mr Crawford offered to buy the Falcon, by paving $1,500 cash then and the rest in cash on the following Monday. As an alternative, he offered to pay the balance by cheque anda pick up the car when the cheque was cleared. Obviously, either would seem to have been a more attractive proposal, from the point of view of the defendant, than Mr Crawford's paying $300 deposit and

the balance at $22.59 per week, as suggested in the

advertisement. However, the salesman did not accept either proposal but said 1t would have to go to the manager.

Subsequently another man arrived, went into the office and sat at

a desk. He confirmed that he was the manager and I will call him that. The manager was told of Mr Crawford's proposal but declined it. saying that "it will all have to be ain cash". Mr

Crawford promptly went away and returned with the cash and with his son Philip. When he came back, another man, apparently a salesman, confirmed that the Falcon Mr Crawford wished to buy was still not sold. Mr Crawford attempted to start the Falcon, but it had aflat battery and would not start. He then spoke to another salesman, described as having Maori features, and was told, as to the cars in question: "They are sold. 1 have bought them. I am going to back-yard them. $4,490, if you want it." Me Crawford spoke to the manager again, being accompanied by the man with Maori features, who informed the manager that he had just bought the two cars. When Mr Crawford complained to the manager that he had just been told that the venicles were for sale, tne manager said: "You heard the man; he has baught che cars. You buy them off him, if you want them." Mr Crawford then

left the office and again confirmed with a salesman that the two

As to the events relating to the supposed sale to the

man with Maori features, Mr Crawford was corroborated by his son Philip. Tt found both the Crawfords credible witnesses and

believe that what they told me is substantially true.

Mr Derek Cornick saw the advertisement I have referred to and says he went to the yard on Friday 18 Macch at 7.45 a.m.

Although I am confident Mr Cornick was attempting to tell me the truth, he seemed uncertain as to the date and time of his visit. However, he telephoned the Trade Practices Commission twice on Friday 18 March 1933 and I accept that that was the date on which he visited the defendant's yard, despite a suagestion elsewhere that it was 19 March. Mr Cornick saw a man at the car yard and enquired about the Ford. He was told it had been sold. He asked about the Commodore and was given the same answer. There is some evidence from Mr Cornick suggesting, as did that of Mr Crawford, that the vehicles had deliberately been left 1n unattractive condition, with some items removed. However, I am not prepared to find beyond a reasonable doubt that Mr Cornick correctly identified the two vehicles mentioned in the advertisement. On the same day, after leaving the yard, he phoned one of the

numbers mentioned in the advertisement and was told that the two

Evidence was given by Mr H.Z. Palaszczuk, a member of the Queensland Legislative Assembly, that he telephoned the car yard between 9.30 a.m. and 10.00 a.m. on Saturday J]3 March 1983, apparently because of a complaint received from Mr Crawford senior. He enguired about the Ford shown in the advertisement and was told 1t was still for sale and encouraged to "get down

I am quite satisfied on the evidence that neither vehicle was genuinely available for sale at the advertised price on either 18 or 19 March 1983. I find that the claimed sale of both vehicles to one of the salesmen in the yard (the man with Maori features) was spurious and, although impromptu, part of the means of discouraging or preventing the sale of the "bait" vehicles. Me Douglas made the general criticism that the defendant was disadvantaged by the fact that months elapsed before the complaints came to the knowledge of the defendant and that it was hardly in a position to call detailed evidence about these vehicles, in order to rebut or throw doubt upon the version given by the prosecution witnesses. I am by no means sure that the defendant was quite as powerless, in that regard, as 15s claimed. In August 1983 Mr Wallace, then an officer of the Trade Practices Commission, spoke to a Mr Brooks, who then controlled the defendant. Mr Brooks did not claim that he had no knowledge of the vehicles the subject of the complaint - rather the contrary - and said that he knew the Maori man; neither that man nor Mr Brooks was called. Mr Brooks appeared to be quite aware of the fact that complaints were being made to the Commission and said that he had 'got a leak in your Department". It was argued Tor the defendant that a circumstance showing that both vehicles were genuinely for sale was that they were in fact sold on the following Monday, according to the defendant's documents. Those showed that each vehicle was expressly sold "as 1s" with no roadworthiness certificate or warranty, that being an unusual mode of sale. Since a complaint was made by Mr Cornick on Friday 18 March, it 1s possible that the leak Mr Brooks said existed

brought the matter to the notice of the defendant and induced a

prompt sale. However that may be, the question 1s whetner the vehicles were genuinely for sale at the adver ised prices on 18

March and 19 March 1983 and I am clearly of the view that they were not. In whatever way the reasonable period spoken of in s.56(2) is, in the instant case, defined, it must plainly include

the day of appearance of the advertisement and the fvllowing day.

Apart from the evidence directly relevant, referred te above, evidence of what was called "Similar facts" was, after argument, tet in. Ido not rely on the so-called similar Fact evidence to corroborate that the events of 18 and 19 March 1953 occurred as alleged, but 1t appears to me to be relevant to the question whether what was done had the authority of the defendant and the related question whether such precautions were taken to

prevent the commission of an offence as are spoken cf 17 s.85.

The defendant calied evidence that 1t gave oral and wricten unstructions t9 prevent commission of an offence. The sort of evidence given in this respect is exemplified by a memorandum dated 3 December 1982, forming parc of exhibit 10. This exhorted the salesmen, with respect to vehicles advertised at special praces, not to do any of the things which the evidence shows they did. For example, they were told that if a client came to inspect an advertised vehicle, was shown it bul did not want to buy it, he was not to be shown any other vehicle except by request. Also: "1f the advertised vehicle 1s sold, please do not show him or her any other vehicle unless he requests you to do so". This rather quixotic advice is inconsistent with at least the tone of the response made by Mr Breoks wnen the

allegations were put to him. Mr Brooks who was in charge or the

whole operation at the time, did not rely upon any assertion that what was done was contrary to instructions. Insofar as he put forward anything by way of confession and avoidance, it was along the lines that customers who came from considerable distances might find that another buyer had anticipated them, that he was not willing to sell the vehicles cheaply to other dealers to enable them to make a profit, that the cars were not good and "could be shot right up the middle" and that "I am entitled to

The "similar fact" evidence concecned events consequent upon an advertisement inserted by the defendant on Friday 7 January 1983 which, it will be noticed, is a date close to that of the circular just mentioned, on which so much reliance was placed. One might have expected that 1f the instruction in the circular were seriously meant, the expecience of persons enquiring after vehicles mentioned in the 7 January advertisement might have differed from that shown in the evidence. Karen Ann Smith gave evidence that she asked whether a 1979 XD Falcon (priced at $2,990) in that advertisement was for sale, on the day she saw the advertisement, and was told that it was. She was invited to come the next day to see it. She phoned again the same day about the car and was told that it was a Monza red one, not in bad condition but that she would have to get a roadworthiness certificate. The person who answered advised Karen Smith to come by at 10 a.m. the next day. Mrs Smith came as suggested, with a friend of hers, Janelle Lahrz. She met a salesman of Maori appearance and enquired about the vehicle. The

man told her: "That is it over there, and 1t 15 under three lots

of finance". He told her that it was not any good and that she

would have to spend at least $3,000 on it, that the motor and

gear box had "had it". He took her to more expensive KD Falcons.

Later Mrs Smith took the matter up again with the Maori salesman and said the car "seems to he okay to me". He replied: "Tt has had it; 1t 1S only a sales gimmick; do not touch it" and again mentioned the three lots of finance. Mrs Smith left the yard and phoned from the premises of friends, being told when she enquired about the same vehicle that it was still for sale. A similar phone enquiry, a little later, had the same result. A week later Mrs Smith and her husband went to the defendant's yard and looked at the same car. It had been highly polished and Mrs

The asserticns made by the salesman about that vehicle, as to its méechanica] condition, are not in accordance with the advertisement, which said that it "drives very well". TI am ieft with the suspicion, onthe whole of the evidence, that ina systematic way the defendant was advertising cars at a "special price" as bait and then by various means discouraging veople from buying them. However, I can hardly find that that was the defendant's regular method of operation. I regard the evidence about Mrs Smith's experience in January as relevant in tending to support the prosecution's case that on the occasions in question, in March, what was done had at least the acquiescence of the management and as refuting the defendant's s.85 arguments. The ineident anvolving Mrs Smith and the Monza red Falcon gains

particular strength from the evidence that the vehicle was in

fact sold for $5,990, some $3,000 more than the advertised price, on 14 or 15 January 1983. Ido not believe that if it was

genuinely for sale from 7 January at $2,990 1t would be likely to have remained unsold until 11 January. Mr McKerrow explained the higher price, in part, by saying that $900 was spent on the car but I do not believe he knows how much, if anything, was spent on 1t, apart from the lesser sum shown in the records and I am of

opinion that his evidence on that point was not candid.

More generally, T thought the evidence of Mr McKerrow and, to a lesser extent, that of Mr Parker was unconvincing and simply do not believe that genuine efforts on the part of the Management of the defendant were made to prevent the occurrence of events such as those described above. I think 1t is more

probable that what the salesmen did was at least implicitly

authorised by the defendant and that the purpose of advertising

the vehicles in question at a remarkably low price was to get people to come to the yard to enquire after the vehicles, with the idea of putting them off and inducing them to buy some fully priced vehicle. Although I think that is probable, Mr Douglas

has urged upon me the view that I cannot be satisfied beyond reasonable doubt that all these events occurred with the actual (express or implied) authority of the defendant, that I must have some doubt about that. On the whole, I have decided that I

should accede to that submission. In doing so, I am not to any significant degree acting upon the evidence called from Mr McKerrow and Mr Parker; I am influenced, rather, by matters in the prosecution's case, such as the fact that when Mr Crawford

enquired after the vehicles he was not, in the first place,

entirely discouraged by the salesman whom he encountered. This leaves open the hypothesis that the salesmen had not received

general instructions to avoid selling the "special price" cars.

I. reject the defence based upon s.85, as Iam not satisfied on the balance of probabilities that che use of the advertised vehicles as mere "bait" occurred despite the best efforts of the defendant; indeed, I think the probabiiity is the other way. The more troublesome aspect 1s whether, as Mr Morley Q.C. on behalf of the prosecutor urges, the events in question constituted conduct engaged in by the defendant. by reason of the provisions of s.84(2). That appears to me to invoive a legal

"Any conduct engaged in on behalf of a body corporate by a director, agent or servant or the

body corporate or by any other person at' the direction or with the consent or agreement

(whether express or implied) of a director, agent or servant of the body corporate shall be deemed, for the purposes of this Act, to have been engaged an also by the body corporate."

It was argued for the defendant that unless I could find

beyond reasonable doubt that the conduct complained of had the actual (express or implicit) authority of the defendant I must acquit, since s.84(2) applies only where there 15 such authority. The prosecutor contended that s.84(2} goes further, and attacnes liability to a body corporate with respect to some unauthorised

acts. I think the aifference between the two views may be

illustrated by the familiar example of the employed truck driver speeding to complete his duties. On the prosecutor's centention, were such a section as 44/2) applicable, the employer wouid be liable even if there were no proof that the employer authorised the breach of tne law; the conduct of the servant woula be

treated as a wronaful method of carrying our his duties.

What is relied on 1s the first Jeg of 5.04(2) and 1t is said that the conduct of the various salesmen was engaged in "on behalf of" the defendant and is therefore deemed to have been

engaged in by the defendant. Mr Douglas argued that I should not

admit any of the evidence as to what was said ar done in relation to the prosecution witnesses in the car yard, on the ground that the prosecution first has to prove that each of those persons was authorised. It seems to me clear that, taking the evidence as a whole, the events in the car yard are admissible; 1¢ then becomes a question whether any of them constitute conauct such as is spoken of in s.84(2),. That is, I have no difficuity in finding that persons such as the Maori salesman were at the relevant times people who were either servants or agents of the defendant, as om the whole of the evidence they clearly were. The difficulty the prosecutor has is to establish that the particular conduct complained of was "on hbehslf of" the defendant, Mr Douglas, arguing that that simply means that what they did was authorised by the defendant. I hold that to come within the expression "on behalf of" in this provision it 15 not necessary that conduct be shown to have the express or implicit authority of the defendant. 1 deduce that, in part, from the wording of

the second leg of the sub-section, which attributes to the body

corporate conduct engaged 1n on its behalf by "any other person"

1.6. any person other than a director, agent or servant - "at the direction or with the consent or agreement (whether express or implied) of a director, agent or servant of the body corporate ween The words just quoted would be superfluous if "on behalf of" was intended to have the meaning "as agent for". It was submitted for the prosecutor that "on behalf of" embraces conduct "in the affairs of" the body corporate and I think tnat is right. To use language which is both more traditional and more pertinent to the facts of the present case, I hold that ¢.84(2) brings in conduct of agents or servants in the course of thelr employment,

even 1f not shown to have the actual authority of the defendant.

The position under s.66 of the Restrictive Practices Act

1971 was analysed by Smithers J. in Commissioner of Trade Practices v. Caltex 011 (Austrailia) Pty Ltd (1974) 23 F.L.R. 457

"The proscription of conduct which 15 achieved by s. 66 (1) and (2) is directed specifically to corporations. A corporation must act by servants

and agents. It is conduct of servants and agents to which, as a matter of practicality, the proscription attaches. Achievement of the object

of the Act would be seriously prejudiced 1f proof were required that an employee who committed proscribed conduct in the course of his employment had been authorized by the corporation to commit that particular conduct. A corporation having much to gain by such conduct, may have secretly encouraged it, but proof of authority to commit that particular conduct might well be an extremely difficult task. In my opinion, therefore, ina case in which the proscribed conduct 15 committed by a servant of a corporation in the course of his employment that conduct is, for the purposes of

the Act, the conduct of the corporation. it 1s to be observed also that s. 66 (7) of the Act provides: 'For the purpose of sub-section (4) of

behalf of, or by arrangement with, the supplier shall be deemed to have been done by the supplier.'

It was argued that this section is intended to do no more than to state a principle of the law of agency. But the better view would seem that 1t goes further and expresses the intention of the

sufficient to prove that the relevant acts or omissions were committed 'on behaif of' the supplier of the goods."

respect to the 1971 Act, and see no reason to assume that in s.84(2) of the 1974 Act "on behalf of" has any different meaning; I particularly rely on the implication in this passage that conduct committed in the course of employment, though not shown to have been authorised, may yet be "on behalf of" the employer. His Honour also, at p.475, mentioned the rule which applies under the general law that a master may be liable "even for acts which he has not authorized provided that they may rightly be regarded

When it is an issue whether conduct of servants or agents 15 to be attributed to a body corporate under s.34(2), and (as here) it is not proved to the requisite standard that such conduct was expressly or implicitly authorised, two questions will arise. The first is whether the conduct was engaged in "on behalf of" the body corporate which, where a servant or agent has physically engaged in the conduct, 1s to be regarded as equivalent to the question whether the conduct was in the course of employment. An affirmative answer to that does not involve any conclusion that the employer authorised the illegality. The

second question 1s whether s.85(])(c)(1i) applies, since an agent

or servant 15 1n general "another person" within the meaning of

s.85(1)(c)(1). In arriving at the opinicn that this is the

scheme of these provisions, I have been assisted by the views

expressed in the Full Court, obiter, 1n Universal Telecasters

(Qld) Ltd v. Guthrie (1978) 18 A.L.R. 531 at pp.535-536 per Bowen

C.J. and pp.551-552 per Franki J. f[ regard the statements made by their Honours in that case as supporting the conclusion that, at least where the conduct 1s not that of the "directing mind and will", conduct of an agent or servant can be regarded as that of "another person" within s.85(1)(c). Further, that view is in

line with the decision in Tesco Supermarkets Ltd v. Nattrass 1972

A.C. 153, which was decided shortly before the Trade Practices

Act was enacted; 1t 1s not unreasonable to suppose that the draftsman had the result of the Tesco case in mind. Although I have derived great assistance from the discussion of this point in Donald and Heydon "Trade Practices Law" at pp.784-787, TI

Tt appears to me that the conclusion that "another person" an 5.85(1)(c) can, in general, include an agent or servant makes it easier to accept that "on behalf of" has the broad meaning suggested by the prosecution in this case, for then the reasonable result is arrived at that the employer is prima facie liable for unauthorised illegalities committed in the course of employment, but may escape by establishing a s.85 defence. In arriving at my view about the meaning of "cn behalf of" I have also relied on the decision of the High Court in Otzen v. Beabout 75 C.1.R. 116 (especially at pp.121-122) to which Mr

At least where only one item or a single category of items is

once advertised, a failure to comply with the duty laid down

un s.56(2) 18 a single offence; I reject the notion that there are as many offences as components making up the

failure, or as many offences as disappointed customers.

I accept the evidence of the prosecution witnesses as substantially true, but am not prepared to find beyond reasonable doubt that the conduct of the agents or servants, conflicting with performance of the duty prescribed by s.56(2), had the actual authority of the defendant. I an, however, satisfied that such conduct was engaged 1n by the

agents or servants in the course of their employment.

As a matter of law, it follows that such conduct was engaged in "on behalf of" the defendant and therefore 3.84(2)

I hold that although each agent or servant 1s "another person" within the meaning of 8.85(1)(c)}, the defence under

It follows that the surviving charyes under 5.56(2) are proved; that is, I will convict the defendant in respect of Nos.

G24 and G25 whereas, on the views of the law expressed above,

The remaining question is whether it has been shown that the defendant advertised either of the cars at the price mentioned in the advertisement without having the intention mentioned in s.56(1]), that is, an intention to offer for supply at the advertised price for a reasonable period. I have held

that neither vehicle was offerei for supply for a reasonable period at that prices, because on 18 and 19 March 1983 neither was

To succeed, the prosecutor does not have to show positively that the defendant had any particular intention, e.g. that it intended to fob pecple off for some time and then "detail" the vehicle and sell it at the f11] price - which 3s what appears to have happened with the vehicle advertised on 7 January. What the prosecution has to do is to exclude any doubt about the proposition that the vehicles in question, those advertised on 18 March, were not intended to be placed genuinely on sale at the advertised price for a reasonable period. The Fact that they were not so placed does not, of course, conclude the matter; the defendant might have intended to put them on sale and then changed its mind. However, 1t is clear that the fact that I have not found, beyond reasonable doubt, that the tactics

employed on 18 and 19 March had the authority of the defendant

does not conclude the matter in favour of the defendant. If the

defendant had genuinely intended that the vehicles be on sale at the very low advertised prices, it could have, in my opinion, easily given effect to that intention. I am, on the whole, satisfied to the requisite standard about the absence of the

intention of which s.56(1) speaks and convict the defendant in

In the result, I have convicted the defendant in respect of four of the six charges, namely G22, G23, G24 and G25 and I

At a glance

Court

Decision date

Before

Source

Judgment (184 paragraphs)

Cited By (2)