Gilmour, D.A. v Bannister Nominees Pty Ltd & Ors [1982] FCA 94

Gilmour, D.A. v Bannister Nominees Pty Ltd & Ors [1982] FCA 94

The absence of an allegation in the informations that the business activity required the performance of work associated with the investment, an essential element of s.59(2) offence, meant no offence was disclosed and the informations and resulting summonses were fatally defective; thus, the prosecutions must be dismissed.

Parties
Prosecutor: Douglas Anthony Gilmour; Defendant: Bannister Nominees Pty Ltd; Defendant: John Vincent Finn; Defendant: Douglas Stuart Lawson; Defendant: Stephen Andrew Cranney
Jurisdiction
Australia
Judgment Date
08 June 1982
Procedural Posture
Prosecution for Offences Under Trade Practices Act / Application for Summary Dismissal/interlocutory Judgment
Outcome
Prosecutions dismissed with costs
Legal Topics
Misleading Statements in Trade or Commerce, Requirement for Particulars in Informations and Summons, Consent of Minister in Prosecutions, Validity of Summons and Information, Amendment of Charges, Statutory Limitation Period
Trade Practices Criminal Law Misleading Statements in Trade or Commerce Requirement for Particulars in Informations and Summons Consent of Minister in Prosecutions Validity of Summons and Information Amendment of Charges Statutory Limitation Period

Case Brief

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Parties

Douglas Anthony Gilmour

Prosecutor

Bannister Nominees Pty Ltd

Defendant

John Vincent Finn

Defendant

Douglas Stuart Lawson

Defendant

Stephen Andrew Cranney

Defendant

Procedural Posture

Prosecution for Offences Under Trade Practices Act / Application for Summary Dismissal/interlocutory Judgment

Legal Issues

  1. 1 Whether the informations and summonses against Mr Finn and others disclosed any offence under s 59(2) of the Trade Practices Act
  2. 2 Whether omission of an essential element of the offence in the information is fatal to the prosecution
  3. 3 Whether the particulars in the summons can remedy the deficiency in the information

Ratio Decidendi

The absence of an allegation in the informations that the business activity required the performance of work associated with the investment, an essential element of s.59(2) offence, meant no offence was disclosed and the informations and resulting summonses were fatally defective; thus, the prosecutions must be dismissed.

Court Disposition

Prosecutions dismissed with costs

Orders

  • Prosecutions numbers G3, 6, 8 and 43 of 1982 against John Vincent Finn are dismissed with costs.
  • Other prosecutions to be listed for mention and potential dismissal subject to further submissions.