Ducret, A.R. v. Chaudhary, S.I. & Anor [1985] FCA 625

6 2 S CATCHWORDS

\ 'ee

ub,

S| a

Trade Practices Act - misleading statements - whether Lo ~

particulars of offence may be amended after offence statute

barred «»whether new charge created - discretion to refuse

amendment.

Trade Practices Act ss. 53, 79

Crimes Act ss. 5, 21, Z1A

Federal Court Rules 0.49

ALAN RAYMOND DUCRET v. SHAHID TOBAL CHAUDHARY and CHAUDHARY'S

ORTENTAL CARPET PALACE PTY LTD

Numbers VG 86, 131, 132, 133, 136 of 1984 and

Numbers VG 94, 98, 123, 125, 129, 130 of 1984

Keely J.

9 December 1985

Melbourne

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) ) )

GENERAL DIVISION BETWEEN: ALAN RAYMOND DUCRET Prosecutor AND: SHAHID IQBAL CHAUDHARY Defendant (Numbers VG 86, 131, 132, 133 and 136 of 1984) BETWEEN: ALAN RAYMOND DUCRET Prosecutor AND:

CHAUDHARY'S ORIENTAL CARPET PALACE PTY LTD

Defendant

(Numbers VG 94, 98, 123, : 125, 129 and 130 of 1984)

9 DECEMBER, 1985 KEELY J. REASONS FOR JUDGMENT

The prosecutor has filed a notice of motion seeking an order substituting certain particulars for the particulars contained in the summons in each of these eleven matters. Leaving to one side for the moment matter number VG 94 of

1984, the motions relate to five charges against Mr Chaudhary

and five charges against Chaudhary's Oriental Carpet Palace

2.

Pty Ltd (the corporation). Counsel for the parties did not deal separately with each of the eleven motions but referred mainly to the documents filed in matter number VG 86 of 1984 and it is convenient to follow that course in these reasons

for judgment.

The information in that matter charges that Mr

Chaudhary: -—

"on or about 30 April 1983 at Melbourne ... contrary to section 5 of the Crimes Act 1914 was knowingly concerned in the commission of an offence against section 79(1) of the Trade Practices Act 1974, by Chaudhary's Oriental Carpet Palace Pty. Ltd. ("the Corporation") a corporation within the meaning of the said Act in that in contravention of

section 53(e) of the said Act, the Corporation did in trade or commerce in connection with the promotion by advertising of the supply of goods

described as Hamadan Carpets make a misleading statement with respect to the price of the said goods in that inan advertisement in "The Age" newspaper bearing date 30th April 1983 it did state that the price of the said carpets was:

"Usually $4,675

Sale Price §1,759

Now Only $497".."

Order 49 Rule 1(1) of the Federal Court Rules requires that a prosecution for an offence shall be commenced

by summons upon information and Rule 2(1) provides that:-

"A summons shall-

(a) state the offence with which the defendant is charged; and

(b) give particulars of the act or omission of the defendant to which the prosecution relates."

The summons in matter VG 86 of 1984 was dated 18

3.

April 1984 and filed on that day and it contained the

following particulars of the charge:-

"1, On or about 30th April 1983 the Defendant, a servant or agent of the Corporation, caused to be published in "The Age" newspaper an advertisement advertising a quantity of Iranian Harun Kashan and Hamadan carpets 180 cm. x 120 cm. (6' x 4') and 244 em. x 152.5 cm. (8' x 5'), for and on behalf of the

Corporation.

2. The statement in the said advertisement with respect to the price of the said carpets was -

"Usually $4,675

Sale Price $1,759 Now Only $497".

3. The said statement with respect to the price referred to, or was capable of referring to, or would have led an ordinary member of the public to believe that it referred to the Hamadan carpets of the sizes specified in the said advertisement.

4. The said statement with respect to the price of the said Hamadan carpets of the specified sizes was misleading in that the statement indicated that the retail price of the said Hamadan carpets was the subject of a large discount from $4,675 to $497 which was not the case.

5. In fact, Hamadan carpets of the specified sizes had not been sold, or offered for sale at a usual price of $4,675 by the Corporation either in the same market as that prevailing at the time of publication of the said advertisement or at all.

6. The said statement with respect to the price of the said Hamadan carpets of the specified sizes was misleading in that the statement indicated that the retail price of the said Hamadan carpets was the subject of a large discount from $1,759 to §497 which was not the case.

7. In fact, Hamadan carpets of the specified sizes had not been sold at a sale for the price of $1,759 or offered for sale at a sale for the price of $1,759 by the Corporation either in the same market as that prevailing at the time of the publication of the said advertisement or at all.

8. The said statement with respect to the price of the Hamadan carpets of the specified sizes was

4.

misleading in that it set out an artificial price structure on which apparently large discounts were being given on the retail price, whereas in fact the said retail price was the subject of a discount not nearly as large as that represented in the statement or alternatively no discount at all."

The particulars which the prosecutor is seeking to

substitute for those particulars are as follows:-

"(1) On or about 30th April 1983 the Defendant, a servant or agent of the Corporation, for and on behalf of the Corporation, caused to be published in The Age newspaper an advertisement advertising a quantity of rugs described therein as "genuine Iranian Harun Kashan and Hamadan Carpets 180cm x 120cm (6' x 4') and 244 cm x 152.5cm (8' x 5'')".

(2) The statement in the said advertisement with respect to the price of the said carpets was -

"usually $4,675.00 Sale price $1,759.00 Now only $497.00".

(3) The said statement with respect to the price referred to, or was capable of referring to, or would have led an ordinary member of the public to believe that it referred to, the Hamadan Carpets of the sizes specified in the said advertisements.

(4) The said statement with respect to the price of the said Hamadan Carpets of the specified sizes was misleading in that the statement indicated -

a) that the usual retail price of the same in Melbourne, or

b) that a fair retail price of the same in

Melbourne —

was $4,675.00 which was not the case.

(5) In fact the usual retail price of the said Hamadan Carpets of the specified sizes in Melbourne

was between $300 and $520, and a fair retail price of the same in Melbourne would have been between $300 and $520.

(6) Alternatively, the said statement was misleading in that it indicated that the fair retail value of Hamadan Carpets of the specified sizes in Melbourne was $4,675 which was not the

case.

(7) In fact the fair retail value of MHamadan Carpets of the specified sizes in Melbourne would have been between $300 and $520.

(8) Further or in the alternative, the said statement was misleading in that the same indicated that the purchase price of $497.00 was the subject of a large discount from -

a) the usual retail price of the same in Melbourne shown as 64,675.00, or

b) a fair retail price of the same in Melbourne shown as $4,675.00, or

c) the fair retail value of the same in Melbourne shown as $4,675.00,

which was not the case.

Date: 12 November 1985

I.D. TEMBY Director of Public Prosecutions Solicitor for the Prosecutor"

It will be seen that the original particulars alleged, amongst other things, that the carpets had not been sold, or offered for sale "at a usual price of $4,675 by the Corporation" or "at a sale for the price of $1,759". Those

allegations do not appear in the proposed substituted

particulars. Instead it is alleged that the statement in the

advertisement:-

(A) "was misleading in that Cit] indicated -

a) that the usual retail price of the same in Melbourne, or

b) that a fair retail price of the same in

Melbourne - was $4,675.00 which was not the case."

and that:

6.

"... the usual retail price of the said Hamadan Carpets of the specified sizes in Melbourne was between $300 and $520, and a fair retail price of the same in Melbourne would have been between $300 and 5520."

(B) "Alternatively, Cit] was misleading in that it indicated that the fair retail value of Hamadan Carpets of the specified sizes in Melbourne was $4,675 which was not the case."

and that ",.. the fair retail value of Hamadan Carpets of the specified sizes in Melbourne would have been between $300 and $520."

(C) "Further, or in the alternative [Cit] was misleading in that Cit] indicated that the purchase price of $497.00 was the subject of a large discount from (a) the ... usual retail price" ... or (b) "a fair retail price" ... or (ce) "the fair retail value of the same in

Melbourne shown as $4675.00 which was not the case".

The proposed amendments are quite substantial and significant both in their wording and in their effect. The defendants' counsel submitted that, having regard to the time for the commencement of prosecutions prescribed by 5.21 (1){c) of the Crimes Act 1914 (Clth) (within one year after the commission of the offence) the prosecutor should not be permitted in December 1985 to amend the particulars he supplied in April 1984, of offences alleged to have occurred

between April and August in 1983. He submitted firstly that

to allow the amendment would be to permit a new charge.

It is clear that, if that were so, then the applications for amendments should be refused. As Brennan J.

said in Gilmour v Midways Sprinqwood Pty Ltd (1980) 49 FLR 36

at 39:-

"But if the amendments would have the effect of alleging offences different from those which are presently alleged in the information, the application must be refused, for the time limited for the commencement of the prosecution of the offences contained in the proposed amendments has now expired. Although an amendment to an information can be allowed outside the time limited by statute for the commencement of the prosecution of an offence charged in the information (R. v

Wakeley C19201 1 KB 688) when the offence proposed by the amendment arises out of the same facts, it seems to me that the immunity from prosecution

which s.21 (1)(c) of the Crimes Act confers may not be circumvented by the exercise of a power to amend under s.21A of the Crimes Act.

Indeed, to deprive the defendant of the benefit of s.21(1)(c) would be an injustice which,

by force of s.21A(3), would preclude the exercise of the power of amendment."

I am not prepared to uphold the defendants' submission that to allow the amendment would be to permit a

new charge. As Fisher J. in Videon v Barry Burroughs Pty Ltd

(1981) 53 FLR 425 at 444 said:-

».. there has always been a clear dichotomy between an offence as stated in an information and

summons and the particulars of the relevant conduct. Such dichotony is in my view determinative of this issue. Reasonable information is required of the acts or omissions constituting that conduct, because in the words of

Gibbs J. "the defendant to a proceeding" is entitled to be "fairly apprised of the case he has to meet..." (Total Australia Ltd. v Trade

Practices Commission (1975) 50 ALJR 333). It is however the offence with which he is prosecuted which has to be clearly and unequivocally identified, both in the consent and the summons. There is no obligation under the Act for the Minister to identify the conduct charged, and there is no requirement under the Act for particulars of conduct to be supplied. Such requirement was initially imposed by the regulations under the Conciliation and Arbitration Act 1904 (Cth) and currently is set out in the rules of this Court (0.49, rv. 2). Both the regulations and the rules

8.

Clearly differentiate between the offence and the particulars of conduct.

The distinction between the offence charged and the conduct which may or may not amount to such an offence is the key to this problem. The charge must be sufficiently and unequivocably (sic) identified in the information, whereas particulars and further and better particulars may be given from time to time to better identify and Gistinguish the conduct from other transactions and

occurrences (see per Dixon J. in Johnson v Milier)." The defendants' counsel submitted in the

alternative that the court, in its discretion, should refuse to permit the amendments. In this connexion he cited authorities, many of which related to civil causes of action. He contended that the particulars as amended would constitute anew claim, a claim on a new basis, a new departure, a new head of claim or a new set of ideas - using words taken from cases relating to civil proceedings. T have not been persuaded by those submissions and accordingly decide that the particulars sought to be substituted by each notice of motion shall he substituted in each matter for the

Particulars contained in each summons.

Although the particulars of the charge in matter number VG 94 of 1984 differ from those in the ten matters with which I have been dealing, no separate argument was advanced against such an order. For similar reasons I

deciddthat the particulars sought in that notice of motion

shall be substituted for the particulars in the summons.

The court should accede, however to the defendants'

application for a deferment of the hearing, presently fixed

9.

for 10 February 1986, in order to enable them to prepare to

meet the prosecutor's case with its amended particulars.

During the hearing of these motions the court sought submissions from the prosecutor's counsel on the question whether the statements in the advertisements, the subject of the ten notices of motion (i.e. excluding the motion in matter number VG 94 of 1984), had the meaning for which the prosecutor contends in accordance with the particulars in their amended form; the submissions were sought because that question appeared to be relevant in deciding whether the amendment of the particulars sought by

the prosecutor should be permitted.

The prosecutor's counsel initially submitted that the meaning of the words in the advertisement was a question of construction that it was sufficient to look at the advertisement to see what it meant and that, in construing the statement in the advertisement, the word "usually" would "give the impression that the price stated ($4675) was the price that would be expected in the market place". He asserted that it would "make a mockery of the law" if the word "usually" in the advertisement was confined to the price "usually" asked at the premises of the corporation; he made it clear that the prosecutor wished to abandon the way in

which it had put its case in the particulars contained in the

summons.

After a short adjournment to obtain instructions,

10.

the prosecutor's counsel submitted that the meaning of the statement in the advertisement was a mixed question of fact and law and submitted that evidence as to conduct by the defendants, which occurred after the completion of the purchase of a carpet referred to in the advertisements, was not irrelevant to the meaning of the statement in the advertisement. The defendants' counsel, on the other hand, submitted, without any elaboration, that the statements in the advertisements referred only to the prices asked by the

defendants' at the premises of the corporation.

As this aspect of the matters has not been fully argued, it seems desirable that the parties be given an opportunity to consider their position and to advance further submissions to the court if they so desire. Accordingly the matters will remain in the list for 10 February 1986 to

enable that to he done.

On the question of a hearing date for the prosecutions, the defendants submitted that, if the amendments to the particulars be permitted (as they have been), then no date should be fixed for the hearing. No material has been filed in support of such a course but the prosecutor's counsel concluded his submissions without making any reference at all to the defendants' application for a deferment of the hearing. When asked, he Made a statement that was of no assistance to the court. Perhaps his

difficulty arose from the following facts ,—

Ll.

(1) the form of certain proposed amendments (then expressed differently) had been discussed before Woodward J. on 26 July 1985 but fifteen weeks elapsed hefore the present notice of motion was signed

the Director of Public Brosecutions

(2) the notice of motion, although apparently signed by the Director of

Public Prosecutions on 12 November 1985, was not served until Friday 29

November 1985, only one week before the present hearing

(3) the defendants' counsel stated from the bar table in the present hearing (without contradiction by the prosecutor's counsel) that he had

been told by senior counsel for the prosecutor that the defendants could

cease work on preparing the defence

because the particulars of the

charges were to be changed. In the circumstances the question of a hearing date requires further consideration and that will take place on 10 February 1986. The defendants may, if they so wish, place before the court affidavit material as to the length of time required for the proper preparation of their defences to the charges, in the light of the amended particulars. Any such affidavits shall be served and filed no later than Monday 3 February 1986. It shall be added that an estimate of 15 sitting days for the hearing was given at an earlier stage. That may be an under-estimate having regard to the amendment to the Particulars and to the defendants' reference to the possibility of calling experts from overseas. The parties are asked to give the court, on 10 February 1986, a well

considered estimate of the length of the hearing.

12.

The costs of the parties in and incidental to the

eleven notices of motion are reserved.

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