Re John Cranston Thompson v Riley Mckay Pty Limited [1980] FCA 99; (1980) 43 FLR 293 G (28 August 1980)

FEDERAL COURT OF AUSTRALIA

Re: JOHN CRANSTON THOMPSON
And: RILEY McKAY PTY. LIMITED [1980] FCA 99; (1980) 43 FLR 293
G. Nos. 74 & 78 of 1977
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
NEW SOUTH WALES DISTRICT REGISTRY
Keely J.(1)

CATCHWORDS

Trade Practices - consumer protection - publication of false representation in magazine advertisement - separate sale dates for different editions - whether separate representations - whether information laid within one year of representation - whether representation that "wrought iron" is a representation that goods "of a particular quality" - Trade Practices Act 1974 s.53(a) - Crimes Act 1914 s.21

Trade practices - consumer protection - representation - whether advertisement of "replica of clock" is representation that article has use as a timepiece - penalty - Trade Practices Act 1974 s.53(c)

Trade Practices - False descriptions - When offence occurred - Time for laying information - Penalty for offence - Purpose of penal sections - Trade Practices Act 1974 (Cth). The informant laid two informations against the defendant alleging breaches of s. 53 (a) and s. 53 (c) of the Trade Practices Act 1974 respectively.

The first charge alleged that on or about 29th September, 1976, the defendant falsely represented that goods offered by it for sale were of a particular quality. The information was laid on 28th September, 1977. The evidence was that the false representation was made in an advertisement in T.V. Times, the relevant edition of which was available for sale in New South Wales before 28th September, 1976.

Held: (1) The representation was complete when the relevant edition was available for sale. Accordingly the offence was complete before 28th September, 1976, and the information, being out of time, should be dismissed.

(2) The second information alleged that the defendant made a false representation concerning the uses of goods offered for sale. The goods were a "Golden Replica of the 400-day Clock". The advertisement did not make it apparent to a reader of ordinary intelligence that the item offered was not a timepiece but only a music box. Therefore, in the absence of a clear statement that the item was not a timepiece, the defendant had misrepresented the uses of the item.

(3) In fixing the appropriate penalty, it was necessary to bear in mind that the Act is intended to protect the public, and the penalty should act as a deterrent and make it clear that the provisions of the Act must be observed.

(4) In the particular circumstances it was relevant that the defendant, in another advertisement, had seen fit to mention specifically that the item was not a timepiece. It was also a relevant factor that, whilst purchasers could not, in practical terms, inspect the item before placing a mail order, yet a refund was available to purchasers who were not satisfied with the item.

G. G. Masterman Q.C. and Priscilla Fleming, for the informant.

A. M. Gleeson Q.C. and R. Stitt, for the defendant.

HEARING

Melbourne, 1980, August 28. 28:8:1980
Cur. adv. vult.

Solicitors for the informant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the defendant: Murphy & Maloney.
J. W. K. BURNSIDE

ORDER

1. The information is dismissed.

2. Liberty is reserved to each party to apply on seven days' notice to the other party and to the Registrar.

1. The defendant is convicted of committing a contravention of s.53(c) of the Trade Practices Act 1974-1976 in that on or about 2 October 1976 in the State of New South Wales, in trade or commerce in connection with the promotion by advertising of the supply of goods described as a "Golden Replica of 400-Day Clock", it represented that the said goods had uses they did not have in that the said goods were not time-pieces.

2. The defendant is ordered to pay a fine of $6,000 in respect of the contravention.

3. Liberty is reserved to each party to apply on seven days' notice to the other party and to the Registrar.

Orders accordingly.

DECISION

These are two charges alleging contraventions by the defendant of s.53(a) and s.53(c) respectively of the Trade Practices Act 1974-76 (the Act) i.e. before the amendments effected by the Trade Practices Amendment Act 1977. The defendant pleaded not guilty to the two charges which, by consent, were heard together.

Section 53(a) and (c) of the Act provided:

"A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods . . . or in connexion with the promotion by any means of the supply or use of goods or services - -

(a) falsely represent that goods . . . are of a particular standard, quality or grade, or that goods are of a particular style or model;

. . .

(c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;

. . ."

The evidence established that the defendant was a corporation and that its actions, the subject of the two charges, occurred ". . . in trade or commerce, in connection with the promotion by advertising of the supply of goods" as alleged in the two informations. It is convenient to deal separately with the two matters.

G. No. 74 of 1977

On 28 September 1977 John Cranston Thompson (the informant) laid an information charging that the defendant:

". . . on or about 29 September 1976 in the State of New South Wales . . . in contravention of Section 53(a) of (the Act) did in trade or commerce in connexion with the promotion by advertising of the supply of goods described as a plant stand, falsely represent that the said goods were of a particular quality in that in an advertisement in 'TV Times' bearing date 2 October 1976 it did state 'Giant Wrought Iron Parisian Cart Stand'."

The evidence showed that the defendant had advertised the Giant Wrought Iron Parisian Cart Stand (the plant stand) in the manner charged. Mr Gleeson Q.C., who appeared with Mr Stitt for the defendant, argued that the evidence did not establish that the representation (i.e. that the plant stand was a "wrought iron" stand) was a representation that the goods were "of a particular . . . quality" within the meaning of s.53(a) as charged in the information.

Hugh Muir, a professor of physical metallurgy and head of the School of Metallurgy at the University of New South Wales, gave evidence that an examination of a plant stand, to which the advertisement referred, showed that it was manufactured "of sheet steel, steel wire, and plastic" with a steel bar forming the axle. As to the two wheels his evidence established that both the perimeter and the decorative scrolls within were made entirely of plastic.

In my opinion the advertisement the subject of these proceedings, by the combination of the words "wrought iron" and the pictorial representation of the scroll work within the two wheels, represented that at least the wheels of the plant stand, including the scroll work, were wrought iron. Mr Gleeson did not, of course, argue that the plastic wheels and scroll work were wrought iron but he submitted that the representation that the plant stand was "wrought iron" was not a representation that the stand was "of a particular quality".

In Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation (1919) 26 C.L.R. 508 at p.574 Higgins J. said:

"It is not necessary - or, as I think, desirable - that we should, in answering the specific question asked of us, commit ourselves to a final, exhaustive definition of a popular phrase such as that in question. It is not necessary for us, in order to determine whether this dispute (a dispute between street cleaners, street lighters, &C., and their employer, the municipality) is an industrial dispute, to define fully 'industrial dispute' - to enumerate even all the characteristics, the full connotation of an industrial dispute; any more than it is necessary for us to define what is a dog when we determine that a certain animal is a dog. To my mind, a great deal of time is wasted and harm done by the premature efforts of Courts to define exhaustively expressions of common speech. We have to consider here, not technical language, but the language of common speech, with all its vague and indeterminate connotations and denotations."

I do not intend to attempt to define "wrought iron". However, I have come to the conclusion that to represent that items are "wrought iron" is to represent that they include decorative scroll work of solidity and rigidity. Further, that such a representation is a representation that the goods are "of a particular quality", notwithstanding Professor Muir's evidence in cross examination that the expression "wrought iron" is commonly used now in relation to products currently manufactured out of cast iron, or of steel or of cast aluminium alloy. I also accept his evidence that "wrought iron" furniture is now tending to be made of cast aluminium which makes "a solid, chunky product"; although it is lighter than similar furniture made out of cast iron or made out of steel it "would possess rigidity . . . not quite as high as that of iron but still . . . . classed as rigid".

I accept the evidence of Professor Muir as to the plant stand advertised by the defendant that:

"The sections are all very light and as a result the object lacks structural stability and rigidity. It undergoes excessive elastic deflection under load. If one were to load it with heavy pot plants it would also become unstable because the fact that the structure is so light means that the centre of gravity of the loaded cart would be very high, so that it would be easily tipped with pot plants or other weighty objects placed on it. A light touch on it would be inclined to topple it."

In my opinion the representation by the defendant that at least the wheels, including the scroll work, of the plant stand were of a particular quality, namely, wrought iron, was a false representation.

Mr Gleeson also argued that the information had been laid out of time. In order to consider this submission it is necessary to examine the evidence of another witness in some detail.

Peter Stewart Blanton gave evidence that he was the circulation manager of Australian Consolidated Press Limited at the material time, a position which involved work in connection with the distribution of the magazine TV Times, which was distributed by Australian Consolidated Press Limited after being printed by its subsidiary company, Conpress Printing Limited. The TV Times the subject of the present information bore the cover date October 2-8, 1976 (the material TV Times). Those dates related to the programme information (from Saturday to Friday) contained in the magazine and had "nothing to do with the date on which the magazine goes on sale to the public".

TV Times was at the material time published throughout Australia, there being different "editions" of it for the different States. Further, in New South Wales there were three editions, namely, the Sydney edition, the Inland edition and an edition referred to in evidence as the coastal edition - which was distributed in places on both the north coast and the south coast. Almost all of the copies of the Sydney edition were distributed in the Sydney metropolitan area, e.g. to retail news stands, book vendors and street sellers, although some copies "went up to the mountains - depending on what the demand for it was in various areas". The weekly circulation of the Sydney edition in 1975 was approximately 85,000.

There were various "on sale" dates for some of the different editions of the material TV Times and there was no on sale date for either of the New South Wales Country editions. Australian Consolidated Press Limited communicated with newsagents by a monthly newsletter called "Newsagents News" which listed on the back page the on sale dates for various publications including TV Times. The on sale date for the Sydney edition of the material TV Times was Wednesday, 29 September 1976 and the copies of that edition would have been delivered to most if not all newsagents on the previous day, Tuesday, 28 September 1976. The on sale date for the editions for Victoria, South Australia and Western Australia was Monday, 27 September 1976 and the on sale date for the Queensland edition was Sunday, 26 September 1976.

The copies of the TV Times sent to the country could go on sale to the public on their receipt by the newsagents. Copies of the country editions for New South Wales were collected on Saturday, 25 September 1976 for delivery to newsagents. Apart from Canberra, Wollongong and Newcastle, country newsagents in the normal course would have received their copies of the material TV Times on Monday, 27 September 1976 and "there was nothing to prevent the magazine going on sale on that date in those cases".

In cross examination by Mr Gleeson, Mr Blanton agreed that, as to the material TV Times, the differences between the Sydney edition and the two New South Wales country editions were "in the content of the information contained between pages 46 and 61". Those pages contained information as to the particular programmes for the channels in each geographical area concerned. Otherwise, the editions were "the same" - except that the editions had the word "Sydney" or other appropriate designation on the top of the front cover. Pages 1-45 contained feature articles, editorial material and advertisements including the advertisement the subject of the information. Similarly, the differences between the Sydney edition and the editions for other States were "in the content of the information contained between pages 46 and 61" to the programmes.

The two informations at present before the court were the subject of two cases stated by St John J. which were dealt with in the judgment of a Full Court in Thompson v. Riley McKay Pty Ltd (1980) 29 A.L.R. 267. In that case Franki J. said (at pp.272-3):

"At least if the facts of this case are that 'TV Times' was a publication with a reasonably wide circulation so that an advertisement in it could be compared to an advertisement telecast by a television station, I do not cosider that there is any need to establish that any written false representation was communicated to any specific person.

. . .

In the case of an advertisement in a journal having sufficient circulation for the court to be satisfied beyond reasonable doubt that it was likely to have been seen by a significant number of readers I do not think that it is necessary to prove that the alleged false representation was communicated to any particular person or persons."

In the same case Deane J. said:

(at p.276) "There is not, however, implicit in the word 'represent' any requirement that the representation actually reach, or be understood by, the intended representee. The act of representing is complete once the subject matter is irrevocably set forth or disseminated upon the course which is intended to lead to the intended representee or representees."

(at p.277) "In each of the present matters, the alleged act of representing was complete either at the time when the relevant magazine was first offered for sale to the public or at the time when the relevant magazine, having been so offered for sale, was first purchased by a member of the public.

It is unnecessary, for the purposes of the present matter, to form or express any view as to which of those alternatives is to be preferred since it would appear to be common ground that the relevant journal was, in each case, sold in substantial quantities to the public. . . . The act of representing being complete, at the latest, when the particular issue of the journal was offered for sale and sold, the fact that the advertisement may subsequently have been read by thousands of readers did not involve a new and independent act of representing on either the first or on each occasion that a particular reader happened to read it."

And Fisher J. said:

(at p.284) ". . . in respect of promotion by advertising in particular, I do not see the necessity or justification for requiring proof that the representation came to the notice of a specified representee. A merchant promotes by arranging for an advertisement to be inserted in a newspaper or journal. He does so on a number of assumptions, not necessarily all justified, ie that a number of newspapers will be purchased, that some of the purchasers will read his advertisement, and that, in consequence of reading, some of the readers may at some stage be induced to buy his goods."

(at p.285) ". . . to represent does not always require a representee, and especially so in the context of promotion.

There is, however, authority for the proposition that a person may represent a state of things without making a direct communication with a person affected."

Applying the judgment of the Full Court to the facts now established before the court, I regard the defendant's act of representing as being complete:

". . . at the latest, when the particular issue of the journal was offered for sale and sold, (and) the fact that the advertisement may subsequently have been read by thousands of readers did not involve a new and independent act of representing on either the first or on each occasion that a particular reader happened to read it.". (per Deane J. at p.277)

The evidence showed that the information, which was laid on 28 September 1977, was not laid within one year of the "on sale" date for the material TV Times in various States. Nor was it laid within one year of the date on which copies of the two New South Wales country editions were likely to have been first offered for sale and sold.

Mr Masterman Q.C., who appeared with Mrs Fleming for the informant, relied on the evidence that the on sale date for the Sydney edition was Wednesday, 29 September 1976 and argued that, because "the making available to the public generally was 29 September, . . the representation was made then". Mr Masterman also submitted that a separate offence was committed in Adelaide, Brisbane, Melbourne and in each of the two country areas in New South Wales in addition to the alleged offence in Sydney.

However, the evidence, to which I have already referred, demonstrates that pages 1-45 (and pages 62-64) of the various editions of the material TV Times were the same and that the only differences in the editions were the programmes set out on pages 46-61 and the appropriate name on the front cover (e.g. "Sydney"). Further, a document, tendered in evidence by the informant as a copy of the order placed by the defendant for the publication of the advertisement in the material TV Times, simply referred to "TV Times: Issue date 2.10.76". It did not make any reference to any "edition"; nor did it state that it wished the advertisement to be placed in all of the editions. Neither it nor any other evidence established that the defendant had any knowledge that the publishers of TV Times had different editions which contained different programme information.

On the evidence I do not consider that a separate offence was committed in Sydney, after the defendant's act of representing was already complete in other States and in country areas in New South Wales. Mr Masterman conceded that in that event it would not be necessary for the court to rule upon his application - made after the final address for the defence and opposed by Mr Gleeson - for leave to amend the information by inserting the words "the Sydney edition of" (the TV Times).

The informant having failed to satisfy me that the information complied with the requirement of s.21 of the Crimes Act 1914 that it be laid within one year of the commission of the offence, the information in G. No. 74 of 1977 is dismissed.

G. No. 78 of 1977

On 29 September 1977 the informant laid an information which, as amended at the hearing, charged that the defendant:

". . . on or about 2 October 1976 in the State of New South Wales . . . in contravention of Section 53(c) of (the Act) in trade or commerce in connexion with the promotion by advertising of the supply of goods described as a 'GOLDEN REPLICA OF THE 400 DAY CLOCK' falsely represented that the said goods had uses they do not have in that in an advertisement in 'New Idea' bearing date 9 October 1976 it did state 'A crystal clear dome encloses this fascinating replica of the traditional anniversary clock represented in every detail from the golden hands and figures on the delicate yellow face to the 4 golden spherical counter-balances which actually revolve as they do on the original priceless timepiece. An ideal decorator item to make an exclusive focal point to your lounge, study or dining room. Your envious guests will gaze with amazement and intrigue when the counter-balances turn constantly as they have for countless years to keep perfect time on the original unique masterpieces of craftsmanship . . .".

Mr Gleeson submitted that the defendant had not, by its advertisement of the "golden replica of the 400 day clock", represented that the replica had a use that it did not have, namely, a use as a timepiece. He contended that the word "clock" in the advertisement was not a representation that the replica was an operative timepiece when regard was had to the low price asked ($8.95), the fact that it was described as a "decorator item" and the prominence given to the words "plays music and revolves". He also relied upon the "context of a puffing advertisement that is obviously replete with exaggeration" and submitted that the use of the words "counterbalances which actually revolve", tended to suggest that it was not an operative timepiece - on the ground that it would be unnecessary to mention that fact if it were a timepiece.

It may be that a careful reader of the advertisement, who studied the precise wording analytically, would not have believed that the replica was represented as being an operative timepiece. However, I adopt with respect, as being equally applicable to this case, the statement of Smithers J. in his judgment in Henderson v. Pioneer Homes Pty Ltd (1980) 29 A.L.R. 597 at p.604:

"The question is, therefore, what would a reasonable reader of the class to which the advertisement was directed reasonably understand from the advertisement. . . . The kind of reader concerned is quite likely to be a man or woman of indifferent education, . . . and unaccustomed to analysing business documents."

In the same case (at p.609) Franki J. (with whose reasons for judgment Northrop J. agreed) repeated what he had said:

". . . in relation to s 52 of the Act in McDonald's System of Australia Pty Ltd v McWilliams's Wines Pty Ltd (1979) 28 ALR 236 at 244; 5 TPC 577; (1979) ATPR 40-140 at 18.518: 'Broadly speaking it is fair to say that the relevant persons are those not particularly intelligent or well informed, but perhaps of somewhat less than average intelligence and background knowledge, although the test is not the effect on a person who is quite unusually stupid.'"

In the present matter I infer that the persons to whom the advertisement was directed include those described by Franki J. in that passage.

In my opinion the defendant by its advertisement represented that the item was an operative timepiece. The context includes a statement that it is a "fascinating replica of the traditional anniversary clock represented in every detail" and a reference to "the original priceless timepiece". I accept Mr Masterman's submission that the prominence given to the word "clock" (which appears three times in the advertisement and order form) in that context is such that - in the absence of a clear statement that the item did not tell the time - the advertisement represented that the item was a timepiece. Accordingly, the defendant must be convicted.

I turn now to the question of penalty, in respect of which the informant tendered the following additional material:

(1) A notice, dated 9 September 1977, under s.155 of the Act to the defendant and the defendant's reply dated 23 September 1977 which included certain copy letters. At Mr Gleeson's suggestion these documents were received subject to his objection that they were not relevant to penalty. Having now examined the documents, I uphold that objection. The letters to the defendant from N. Houser, V. Marinborne and M. Brown refer to alleged defects in the goods which are unrelated to the defendant's representation that the item advertised was a timepiece. The letter to the defendant from Mrs G. N. Cumming complained that the item received "does not conform to your advertisement". Mrs Cumming also wrote to the Consumer Affairs Bureau, Queensland, complaining that the item "was merely a painted clock face". However, that letter is dated 27 March 1976 whereas the former letter - to the defendant - apparently was written some nine years previously, being dated 23 February 1967. The only other letter to the defendant - from the Consumer Affairs Bureau, Queensland - was dated 5 April 1976. It was not a formal complaint by the Bureau; it was a letter seeking certain information and enclosing copies of the two letters from Mrs G. N. Cumming.

(2) Certain questions asked of the defendant in a Notice, dated 30 March 1977, under s.155 of the Act together with the defendant's answers. The answers stated that between 10 February 1976 and 22 April 1976 the defendant was supplied with 4,320 of the "Golden Replica of 400-day clock" at a cost of $1.78 CIF per unit. During the calendar year 1976 the defendant sold 4,346 of the replicas. At Mr Gleeson's suggestion these documents were received subject to his objection that the figures as to sales were irrelevant in that they related to sales over the full year of 1976 and did not relate to this particular advertisement. I uphold that objection. The figures as to the number of replicas supplied to the defendant were tendered "in respect to the profits made and the number of items . . ." and were not objected to by Mr Gleeson who pointed out, however, that the amounts "do not take account of customs duty or sales tax". In my view information in this form cannot operate to increase the amount of the fine thought to be appropriate by reason of other relevant considerations.

(3) Two advertisements by the defendant published in the "New Idea" in June 1976 which were identical to the advertisement the subject of the information except that each one had a specific warning to the reader of the advertisement that "ancient clock replica is a musical box] - not a time-piece".

The defendant did not call witnesses or place any other material before the court as to penalty, nor did it seek to address in mitigation of penalty.

Franki J. said in Given v. Holland (Holdings) Pty Ltd (1977) ATPR 40-029 at 17,389:

"In fixing an appropriate penalty I start by noting that the maximum penalty is $50,000. This penalty is applicable to any contravention by a body corporate of any provision (except sec.52) in Part V of the Act. This part includes all the sections of the Act which deal with consumer protection and these sections prohibit a large number of widely differing unfair practices. The defences available are very limited, and indeed, at the relevant time, a false representation made as a result of a bona fide mistake was not excused unless the defendant could also show that it had taken reasonable precautions and exercised due diligence to avoid the contravention.

The maximum penalty under the Trade Practices Act, 1974-1976 is many times greater than that usually found in legislation broadly designed to provide consumer protection e.g. in the United Kingdom Trade Discriptions Act, 1968 (as at 1975) and the New South Wales Consumer Protection Act, 1969-1973."

In dealing with an appeal against a judgment imposing a pecuniary penalty for contravention of the resale price maintenance provisions of the Act, a Full Court in Pye Industries Sales Pty Ltd v. T.P.C. (1979) ATPR 40-124 at 18,326 said:

"The organization and Mr. Kirk in particular were well aware of the provisions of the Trade Practices Act. It was said in Trade Practices Commission v. Stihl Chain Saws (Aust.) Pty. Ltd. (1978) ATPR 40-09) at p. 17,896 as to the principles applicable to sec. 76:

'The penalty should constitute a real punishment proportionate to the deliberation with which the defendant contravened the provisions of the Act. It should be sufficiently high to have a deterrent quality and it should be kept in mind that the Act operates in a commercial environment where deterrence of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive.'

cf. also Trade Practices Commission v. Madad Pty. Ltd. (1979) ATPR 40-105 and Trade Practices Commission v. Malleys Limited (1979) ATPR 40-118."

In my view that passage is equally applicable to a fine imposed upon the defendant for an offence against s.53(c) of the Act. The fine "should constitute a real punishment proportionate to the deliberation" of the defendant and "should be sufficiently high to have a deterrent quality and . . . deterrence . . . is not likely to be achieved by penalties which are not realistic". The Act is intended to protect the public and penalties must be such that it will be realized by those concerned "that the commercial standards laid down in the Act must be observed".

On the evidence in this matter including the evidence - tendered on the question of penalty - of the omission from the advertisement of the specific warning ("not a time-piece") which appeared on the defendant's advertisements in June 1976 (see paragraph (3) above), I find that the defendant quite deliberately breached the Act and the penalty should reflect that deliberation. As Smithers J. said in dealing with proceedings under s.53(c) of the Act in Eva v. Mazda Motors (Sales) (1977) ATPR 40-020 at 17,309:

"From the point of view of blameworthiness there is a considerable difference between the first two offences and the subsequent five offences. Whatever may be said in relation to the first two offences the subsequent ones were committed after a clear warning signal the significance of which was almost totally ignored.

. . .

Accordingly, subject to the observation above concerning the risk of an appropriate penalty being oppressive in a particular case, it seems clear that penalties imposed by the Court ought to be such as to reflect the degree of culpability involved and to have a deterrent quality.
. . . . . . contraventions due to carelessness are not permissible and must be punished. Of course such contraventions are not in the same order of culpability as those involving a intention to deceive." Although the offence took place as part of the conduct of a mail order business, the possibility of examination of the goods before a purchase was not excluded as the advertisement gave the address of the defendant and stated "visitors welcome". In addition the advertisement offered a "full immediate refund if not satisfied for any reason at any time - that's guaranteed" and it has not been suggested that the defendant has failed to honour that offer. I regard those facts as mitigating the offence - see Thompson v. Magnamail Pty Ltd (No. 1) (1977) ATPR 40-032 at 17,396 per St John J. - and have taken them into account in fixing the fine. However, lest the defendant or other persons or corporations be misled, I should emphasize that, as Smithers J. said in Trade Practices Commission v. Stihl Chain Saws (Aust.) Pty. Ltd. (supra), in the passage set out earlier in the quotation from the Full Court judgment in Pye Industries Sales Pty. Ltd. v. T.P.C. (supra), penalties "should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive". Further, an offer of a "full refund", if acted upon, would necessarily have involved the purchaser in the trouble and possible expense of returning the goods. It does not excuse the defendant's action in any way but it is a circumstance in mitigation.

I have also taken into account the price of the item advertised as having some effect by way of mitigation of the seriousness of the offence. However, again it should be clearly understood that the statement that the "commercial standards laid down in the Act must be observed" applies equally to representations in respect of low-priced goods.

Having regard to the evidence as to all the facts and circumstances, including the evidence that more than 163,000 copies of the material issue of the "New Idea" containing the advertisement were distributed - in excess of 76,000 copies in Sydney and more than 87,000 for the rest of New South Wales - and taking into account all of the matters to which I have referred, I impose a fine of $6,000 in matter G. No. 78 of 1977.

Neither side referred to the question of costs in respect of either of the two informations. Accordingly, I reserve liberty in both matters for either party to apply upon seven days' notice to the other side and to the Registrar.