Re Anthony Paul Doherty v Traveland Pty Limited and Associated Travel Pty Limited WA [1983] FCA 14 (10 February 1983)

FEDERAL COURT OF AUSTRALIA

Re: ANTHONY PAUL DOHERTY
And: TRAVELAND PTY. LIMITED AND ASSOCIATED TRAVEL PTY. LIMITED
WA Nos. 37-39 and 43-45 of 1980
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.

CATCHWORDS

Trade Practices - Prosecution - Fines - relevant considerations and mitigating circumstances - no fraudulent intent - charges arising out of one and the same fault - costs.

FEDERAL COURT RULES O.49 r.5

TRADE PRACTICES ACT 1974 s.55A

CRIMES ACT 1914 s.19B

Dawson v World Travel Pty. Ltd. (1981) 3 A.T.P.R. 42,361 considered.

HEARING

ADELAIDE
10:2:1983

ORDER

1. The informations relating to charges G37, G38 and G39 of 1980 against Traveland are all dismissed with no order as to costs.

2. The defendant Associated Travel is convicted of committing the contraventions of s.55A of the Trade Practices Act 1974 more particularly referred to in charges G43, G44 and G45 of 1980.

3. The defendant Associated Travel is ordered to pay a fine of $2,000 in respect of the contravention referred to in charge G43 of 1980 and a fine of $100 in respect of each of the contraventions referred to in charges G44 and G45 of 1980.

4. The fines to be paid to the District Registrar of this Court in Perth within 21 days of this date.

5. The defendant Associated Travel to pay to the prosecutor three quarters of his costs in respect of informations and charges G43, G44 and G45 of 1980, the same to be taxed if not agreed.

DECISION

In these matters I gave my reasons on 5 November 1982 for dismissing the three charges numbered G37-39 of 1980 respectively against the defendant Traveland Pty. Limited ("Traveland"). Subsequently counsel for that defendant on 1 December 1982 made submissions on the matter of the costs of all proceedings against it, except to the extent that they were dealt with by the Full Court in its judgment delivered on 21 May 1982. The reasons for this judgment are reported at [1982] FCA 81; (1982) 41 A.L.R. 563.

In my reasons of 5 November 1982 I also indicated that I would convict the defendant Associated Travel Pty. Limited ("Associated Travel") of charges numbered G43-45 of 1980. That defendant subsequently filed an affidavit for the purpose of assisting me to determine the appropriate fines, the contents of which affidavit I have given consideration. Submissions were made by its counsel in this regard and also on the matter of costs. The prosecutor was content to rely upon the facts earlier found by me and I directed that he be relieved from filing the affidavit required by 0.49 r.5 of the Rules of this Court. He did not require Stephen Rich the deponent to the above affidavit to attend for cross-examination.

I do not need to dwell long on the circumstances which constitute the offences nor the matters which are relevant to the amount of the fines. Both the nature and the substance of the contraventions of the Trade Practices Act 1974 ("the Act") are very similar to those considered by me when imposing fines on World Travel Headquarters Pty. Ltd. on 3 January 1981. I refer to and adopt everything I said both on the facts and the relevant law in my reasons in Dawson v World Travel Pty. Ltd. (1981) 3 A.T.P.R. 42,631. Each company operates in an industry which by reason of circumstances beyond its control is "accident prone" and is very liable to contravene the Act through inattention or carelessness. However I am in this matter, as I was in World Travel, satisfied that Associated Travel is now aware of those difficulties and conscientiously striving to ensure that contraventions do not occur in the future.

It is proper that I expressly reiterate the particular matters which, as in World Travel, I take into account in imposing fines. They are:
(a) The objectives of the legislation and in particular its policy of consumer protection.
(b) The absence of fraudulent or dishonest intent and of deliberation on the part of Associated Travel.
(c) The degree of negligence in its conduct.
(d) The extent of the carelessness and wilfulness of its conduct.
(e) The extent to which its conduct has or is likely to have prejudiced consumers.
(f) The efforts which it has made to correct the situation.
(g) The deterrent effect of the convictions and fines.

This is obviously a contravention in which only slight, if any, prejudice to consumers has been established and in which the likelihood of substantial prejudice having occurred is minimal. Most consumers in this industry are aware of the idiosyncrasies which appear to be of the essence of air travel. Moreover travel agents, on the evidence before me, take steps to stress this fact to those customers who express an interest in a particular flight or tour. However travel agents' difficulties with the Act appear to arise from two factors; they rely on brochures as glossy advertising material and they are, (or at least were) hesitant to state prominently that all information therein is subject to change at any time without notice. I am satisfied by the material before me that it is not possible to have brochures continually updated to ensure the information is at all times accurate. In consequence it behoves those producing the brochures to indicate prominently this circumstance so that the reader is aware of the tentative nature of the information. Subsequent to commencement of these proceedings Associated Travel arranged for placards to this effect to be exhibited at retail outlets but it is a moot point whether this is as effective a safeguard as endorsing it on the front page of each brochure.

I did on a number of occasions during the hearing express my opinion that there was nothing fraudulent, dishonest or deliberate in the conduct of Associated Travel. Counsel for the prosecutor expressly acknowledged this as the correct view of the facts. However, it is necessary that I have regard to the deterrent effect of the fines I will impose, though it is likely that the considerable publicity these proceedings gained, at least in Western Australia, will be and has been equally effective to encourage Associated Travel and others in the industry each to take steps to put its house in order. It is however not appropriate in my opinion for me to refrain, as I was requested, from entering a conviction under s.19B of the Crimes Act 1914.

In all the circumstances I consider that a fine of $2,000 is appropriate in respect of charge G43 of 1980 which relates to the contravention which occurred on 11 October 1979 at the premises of Boans Ltd. at Murray Street, Perth. In respect of the charges which relate to happenings on the following day at Karrinyup and at Peppermint Grove, Perth, it is my opinion that they are manifestations of one and the same fault. The proper consequence is that a lesser fine should be imposed in each instance. I consider that a fine of $100 is appropriate in respect of each of those occasions which are the subject of charges G44 and G45 of 1980. All of these fines are to be paid to the District Registrar of this Court in Perth within 21 days of this date.

These have been long and complex proceedings and the question of the burden of costs is not easy. In respect of the three charges against Traveland, which I will formally dismiss, that defendant has in the ultimate been successful. However the prosecutor succeeded on the earlier interlocutory aspects which involved a very substantial portion of the time taken overall in the hearing. I consider it proper that each party bear his or its own costs.

In respect of the proceedings against Associated Travel the prosecutor has in the end gained a conviction on each of three charges. However I do not consider he is entitled to the whole of his costs as to some extent the time spent on interlocutory matters was the direct result of his application for leave to amend. I consider justice will be done if the defendant Associated Travel is directed to pay to the prosecutor three quarters of his costs of proceedings G43 to G45 of 1980, the same to be taxed if not agreed.

The orders of the Court are as follows:
1. The informations relating to charges G37, G38 and G39 of 1980 against Traveland are all dismissed with no order as to costs.
2. The defendant Associated Travel is convicted of committing the contraventions of s.55A of the Trade Practices Act 1974 more particularly referred to in charges G43, G44 and G45 of 1980.
3. The defendant Associated Travel is ordered to pay a fine of $2,000 in respect of the contravention referred to in charge G43 of 1980 and a fine of $100 in respect of each of the contraventions referred to in charges G44 and G45 of 1980. 4. The fines to be paid to the District Registrar of this Court in Perth within 21 days of this date.
5. The defendant Associated Travel to pay to the prosecutor three quarters of his costs in respect of informations and charges G43, G44 and G45 of 1980, the same to be taxed if not agreed.