Re Shahid Iqbal Chaudhary and Chaudhary'S Oriental Carpet Palace Pty Ltd v Alan Raymond Ducret [1986] FCA 219 (8 July 1986)

FEDERAL COURT OF AUSTRALIA

Re: SHAHID IQBAL CHAUDHARY and CHAUDHARY's ORIENTAL CARPET PALACE PTY. LTD.
And: ALAN RAYMOND DUCRET
Nos. V G295-305 of 1985
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.
Davies J.
Jenkinson J.

CATCHWORDS

Practice and Procedure - appeal from interlocutory orders - whether Court erred in law in allowing amendment to particulars to summons - whether amendment created new charge.

Trade Practices Act 1974 ss.53,79,118,163

Crimes Act 1914 ss.5,21,21A

Federal Court Rules: O.13, O.49

Videon v. Barry Burroughs Pty. Ltd. (1981) 53 F.L.R. 425

Gilmour v. Midways Springwood Pty. Ltd. (1980) 49 F.L.R. 36.

HEARING

MELBOURNE
8:7:1986

DECISION

Six informations for offences against paragraph 53(e) of the Trade Practices Act 1974 ("the Act") in which Alan Raymond Ducret ("the prosecutor") is the prosecutor and Chaudhary's Oriental Carpet Palace Pty. Ltd. ("the company") is the defendant are pending in the Federal Court. The informations are brought pursuant to sections 79 and 163 of the Act. One of those informations is based upon an oral representation alleged to have been made on or about 30 April 1983. For the time being this information may be put to one side. The remaining five informations are based upon advertisements appearing on various dates and in various newspapers and with respect to various types of carpets. The dates of the newspapers in which the advertisements appear range between 30 April 1983 and 21 August 1983. With respect to each of these five informations, five other informations for offences based upon s.5 of the Crimes Act 1914 in which the prosecutor is named as prosecutor and Shahid Iqbal Chaudhary ("the officer") is the defendant are pending in the Federal Court. Summonses were issued with respect to each of these ten informations. Each of these ten prosecutions were commenced within one year after the commission of the alleged offences; see paragraph 21(1)(c) of the Crimes Act. Particulars of the offences alleged were given with respect to each prosecution.

2. In purported compliance with O.49 r.2 of the Federal Court Rules, each of the ten summonses stated the offence with which the company and the officer respectively was charged and gave particulars of the acts of the company and officer respectively to which the prosecution related. On 9 December 1985, being a date more than one year after the commission of the alleged offences, the Court, constituted by a single Judge, on the motion of the prosecutor, ordered that different particulars be substituted for the particulars appearing in each of the ten summonses. The company and the officer, by leave, have appealed from each of those ten orders.

3. The same issue is raised by each of the ten appeals. For ease of reference, the facts of one appeal only need be considered. For this purpose, the parties to the appeals referred to the information, summons, particulars and further particulars in appeal V. No. G 295 of 1985 being the appeal from the order in matter V. No. G 86 of 1984. In that matter the officer was the defendant to the prosecution and is the appellant in the appeal. The relevant parts of the information are set out:-

"... that on or about 30 April 1983 at Melbourne in

the said State Shahid Iqbal Chaudhary of 1005 High
Street, Armadale in the said State, 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 in
an 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' ".

4. The parts of paragraph 53(e) of the Act relevant for present purposes are:-

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

(e) make a false or misleading statement with
respect to the price of goods ...".

5. Under s.163 of the Act, prosecutions for offences against the Act can be brought only in the Federal Court. Prosecutions are to be instituted by summons upon information and shall not be instituted except with the consent of the Minister or of a duly authorised person. Order 49 of the Rules of Court make provision for prosecutions for an offence. Rule 2 is set out:-

"2. (1) 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.

(2) A summons and an information shall be in
the forms numbered 51 and 52 in the First
Schedule."

6. In this matter, the information complies with the requirements of O.49 r.2 and form 52. The information and the summons are in identical terms. The only part of the advertisement mentioned in the summons is that the price for the carpets was "Usually $4,675, Sale Price $1,759, Now Only $497". In purported compliance with r.2(1)(b) and form 51, particulars of the act to which the prosecution relates was set out in the summons as follows:-

"The particulars of the charge are -

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 cm. 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 retil 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 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."

7. It is difficult to understand what is meant by those particulars. They seem to suggest that the words and figures taken from the advertisement and set out above constituted a misleading statement since the company had never offered the carpets for sale at the usual price of $4,675 and had never offered the carpets for sale at a sale price of $1,759 and that the words were misleading in that the apparently large discounts apparently given were artificial, that is not real, while in fact the discounts being offered were not nearly as large as that represented. It is easy to understand how, on the particulars, the prosecution could fail, unless leave to amend was given under s.21A of the Crimes Act, if the evidence disclosed that although the carpets were relatively worthless, nevertheless the company had, in the past, offered them for sale at $4,675 and had offered them for sale at a sale price of $1,759 even though no carpets had been sold at those prices.

8. In November 1985, the prosecution sought leave to amend the summons by deleting the particulars of the act to which the prosecution related and to substitute the following particulars:-

"(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 244cm 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 Hamadan
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 $4,675.00, 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."

9. It is difficult to understand what is meant by those particulars. A number of possibilities were specified. That the words and figures set out above were misleading in that they indicated that the usual retail price of the carpets in Melbourne was $4,675, which was not the case, and that a fair retail price of the carpets in Melbourne was $4,675, which was not the case since the usual retail price of the carpets in Melbourne was between $300 and $520 and a fair retail price of the carpets in Melbourne was between $300 and $520.

10. Another possibility specified was that the words and figures were misleading in that they indicated that in Melbourne the fair retail value of the carpets was $4,675, when in fact their fair retail value was between $300 and $520. Another possibility specified was that the words and figures were misleading in that the purchase price of $497 was the subject of a large discount from their usual retail price in Melbourne of $4,675 which was not the case, from their fair retail price in Melbourne of $4,675 which was not the case or from their fair retail value in Melbourne of $4,675 which was not the case.

11. By order made on 9 December 1985, the Court constituted by a single Judge, gave leave to the prosecution to make the amendments sought. In granting the leave, the Court held that the amendments sought did not create a new charge. The Court relied upon the views expressed by Fisher J. in Videon v. Barry Burroughs Pty. Ltd. (1981) 53 FLR 425 at p 444:-

"... 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 dichotomy 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 (O.49, r.2). Both the
regulations and the rules 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
identified in the information, whereas particulars
and further and better particulars may be given
from time to time to better identify and
distinguish the conduct from other transactions
and occurrences (see per Dixon J. in Johnson v.
Miller [1937] HCA 77; (1937) 59 C.L.R. 467, at p.490)."

12. Under O.13 r.2 of its Rules, the Court has wide powers to allow amendments to any document in a proceeding before it. Amendments may be made at any stage of the proceedings and "shall be made for the purpose of determining the real question raised by or otherwise depending on the proceeding". In exercising these powers, the Court should act fairly as between the parties.

13. The orders appealed from are interlocutory and the appeals are brought by leave of the Court constituted by a single Judge. The appeals are from the exercise of a discretion. The substance of the contentions made on behalf of the appellants was that the Court erred in law since the provisions of the Crimes Act, on their application to the facts of these cases, required the Court to refuse to allow the amendments sought. In summary, the contention was that the amendments allowed created new charges that should not have been allowed as to do so would allow the commencement of a prosecution outside the limitation period prescribed by s.21 of the Crimes Act.

14. Section 21 of the Crimes Act imposes time limitations within which prosecutions may be commenced. Sub-section 21(1) is set out:-

"21. (1) A prosecution in respect of an
offence against any law of the Commonwealth may be
commenced as follows:

(a) where the maximum term of imprisonment in
respect of the offence in the case of a
first conviction exceeds six months-at
any time after the commission of the
offence;

(b) where the maximum term of imprisonment in
respect of the offence in the case of a
first conviction does not exceed six
months-at any time within one year after
the commission of the offence; and

(c) where the punishment provided in respect
of the offence is a pecuniary penalty and
no term of imprisonment is mentioned-at
any time within one year after the
commission of the offence."

15. The limitation periods prescribed by that sub-section have been in similar form since the Crimes Act was enacted in 1914. Since then there have been significant changes in policy with respect to imposition of fines upon natural persons instead of terms of imprisonment and an immense increase in the number of offences with respect to which corporations may be charged and for which, upon conviction, a pecuniary penalty only is imposed. The present prosecutions illustrate these changes. The Trade Practices Act does not impose terms of imprisonment in respect of offences against that Act, but the maximum fines which may be imposed are substantial, namely $10,000 in the case of a natural person and $50,000 in the case of a corporation; see sub-section 79(1). Nevertheless, in the absence of specific statutory provision, offences under the Trade Practices Act must be commenced within one year after the commission of the offence irrespective of the seriousness of the offence. Strangely, a prosecution for an offence against s.118 of the Trade Practices Act may be commenced at any time after the commission of the offence; see sub-section 163(5). The offence created by s.118 relates to the non-filing of certain documents but the maximum fine imposed by that section is merely $2,000. These apparent anomalies should be brought to the attention of the Minister.

16. In support of their contention, counsel for the appellants referred to what was said by Brennan J. in Gilmour v. Midways Springwood Pty. Ltd. (1980) 49 FLR 36. In that case, two informations for offences against s.53 of the Trade Practices Act were being heard by the Court. Under paragraph 163(4)(b), the Minister had given his consent with respect to two specified offences. The two informations related to two different offences. At the time of the hearing, more than one year had elapsed since the commission of the offences. Brennan J., in the exercise of powers conferred by s.21A of the Crimes Act, refused to allow an amendment of the informations to bring them into conformity with the consent of the Minister. At p.39, Brennan J. said:-

"Counsel for the informant seeks an amendment
to the informations in order to bring them into
conformity with the consent given by the Minister.
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 (1920) 1 K.B. 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."

17. In the present case, the power to allow the amendment sought, is to be found in O.13 r.2 of the Rules of Court, not s.21A of the Crimes Act. Nevertheless, counsel for the appellants contended that similar principles apply and that in acting fairly between the parties, the Court should not have allowed the amendment. That contention, however, depends upon holding that the amendments allowed to the particulars of the charge contained in the summons have the effect of alleging a different offence to that originally alleged.

18. It must be remembered that the informations have not yet come on for hearing. No evidence has been led to prove the charges alleged in the informations. It should be noted that the informations remain unaltered and that the charge alleged in the summons remains unaltered in form: The information and charge remain the same, namely that there was a misleading statement in that the advertisement stated that the price of the carpets was:-

"Usually $4,675

Sale Price $1,759

Now Only $497".

19. By themselves, and in relation to the offence under paragraph 53(e) of the Act, these words quoted are meaningless. A defendant is entitled to particulars of the offence "to better identify and distinguish the conduct from other transactions and occurrences". With respect, I agree with the opinion of Fisher J. as set out above.

20. In the present case, there is a marked difference between the particulars given to the charge and the amended particulars. The purpose of the particulars is to enable the defendant to be "fairly appraised of the case he has to meet". The particulars may be used in determining questions of admissibility of evidence. They may enable the defendant to seek material to be raised as matters of defence. In the present case, nice questions arise as to whether the particulars comply with O.49 r.2, but that matter was not raised by these appeals. Nice questions arise whether, as a matter of discretion, the Court should have allowed the amendments since the defendants had commenced preparing their defences based on the old particulars and, because of the lapse of time, there may be great difficulty in obtaining material necessary to meet the amended particulars. These were matters for the Court exercising its discretion, not for the Full Court. The only issue before the Full Court is whether, as a result of the allowance of amendments, new charges have been alleged. In my opinion, new charges have not been alleged.

21. If the information and summons had used the words of the Act only, namely that the defendant, in the relevant sense, made a misleading statement with respect to the price of goods, particulars of that offence would have been ordered. At the very least, those particulars would have referred to carpets and the price of carpets. In addition, particulars would have to be given showing how the stated price constituted a misleading statement. On this analysis, the amendments allowed formed fact only of the particulars of the charge being the offence referred to in paragraph 53(e) of the Act, they do not create a new offence or charge.

22. This is sufficient to dispose of ten of the eleven appeals. The eleventh appeal relates to oral statements made by an employee of the company. For present purposes, no different principles are raised by that appeal.

23. Accordingly, I would dismiss each appeal with costs.

These are appeals from decisions of a single Judge of this Court amending the particulars of offences against s.79(1) of the Trade Practices Act 1974 (Cth) stated in the summons dated 18 April 1984 by which each proceeding was instituted. As the issue in each appeal is the same, it is convenient to discuss the summons and particulars, and the amendment thereof, in VG.295 of 1985.

2. In amending the particulars in the summons, the learned trial Judge exercised the discretion conferred by Order 13, Rule 2 of the Federal Court Rules which provide, inter alia,

"2.(1) The Court may, at any stage of any
proceeding, on application by any party or of its
own motion, order that any document in the
proceeding be amended, or that any party have
leave to amend any document in the proceeding, in
either case in such manner as the Court thinks
fit.

(2) All necessary amendments shall be made for
the purpose of determining the real questions
raised by or otherwise depending on the
proceeding, or of correcting any defect or error
in any proceeding, or of avoiding multiplicity of
proceedings."

3. The grounds upon which an appellate court will interefere with the discretionary order of an interlocutory nature are well settled and I need do no more than refer to Adam P. Brown Male Fashions Pty Ltd v Philip Morris Incorporated & Anor [1981] HCA 39; (1981) 148 CLR 170. In this appeal, the Court has been asked to set aside the decision of the learned trial Judge on one ground only, namely, that the substitution particulars raised a new charge and, being raised after the expiration of the one year limitation period prescribed by s.21(1)(c) of the Crimes Act 1914 (Cth), ought not to have been allowed. Section 21(1)(c) of the Crimes Act 1914 (Cth) provides :

"21.(1) A prosecution in respect of an offence
against any law of the Commonwealth may be
commenced as follows :

.....

(c) where the punishment provided in respect of
the offence is a pecuniary penalty and no
term of imprisonment is mentioned - at any
time within one year after the commission of
the offence."

As the date of the offence was 30 April 1983, this time had expired prior to the making of the amendment.

4. It would be contrary to law to allow an amendment raising a different charge or offence, once that time has expired. As Brennan J said in Gilmour v Midways Springwood 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 (1920) 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."

Thus, the question in this appeal is whether or not the amendment raised a new or different charge against the appellant.

5. Section 53(e) of the Trade Practices Act 1974 (Cth) provides :

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

.....

(e) make a false or misleading statement with
respect to the price of goods or services;

.....".

Section 5 of the Crimes Act 1914 (Cth) makes it an offence to be knowingly concerned in the commission of an offence.

6. The information in the matter charged 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 in an
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'."

7. 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."

8. The relevant summons was dated 18 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 cm. 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
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."

9. The particulars which were substituted for those particulars were 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 180 cm x
120 cm (6' x 4') and 244 cm x 152.5 cm (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 Hamadan
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 $4,675.00, 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."

10. It was submitted by Mr J.I. Fajgenbaum, QC, senior counsel for the appellants, that the two sets of particulars raised charges which were different in substance one from the other. For example, paragraph 5. of the first particulars alleged that the advertisement was misleading when compared with the actual past conduct of Chaudhary's Oriental Carpet Palace Pty Ltd. It was alleged that the carpets had not been sold or offered for sale by that company at a usual price of $4,675, either in the same market or in any market. On the other hand, the substituted particulars turned their attention not to the conduct of Chaudhary's Oriental Carpet Palace Pty Ltd but to the general market for carpets in Melbourne. Paragraph (4) thereof referred to "the usual retail price of the same in Melbourne" and to "a fair retail price of the same in Melbourne".

11. It is true that these two paragraphs raise different issues and require proof of different facts. However, that is not to say that a new or different offence has been charged. As Fisher J said in Videon v Barry Burroughs Pty Ltd (1981) 53 FLR 425 at 444,

"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 identified
in the information, whereas particulars and
further and better particulars may be given from
time to time to better identify and distinguish
the conduct from other transactions and
occurrences (see per Dixon J. in Johnson v. Miller
[1937] HCA 77; (1937) 59 CLR 467 at p 490)."

12. In the present case, no amendment has been made with respect to the charge as stated in the information or as stated in the summons. The offence charged is still an offence that Mr Chaudhary was knowingly concerned in the commission of an offence by Chaudhary's Oriental Carpet Palace Pty Ltd in that in contravention of s.53(e) of the Trade Practices Act 1974 (Cth) the company in trade or commerce in connection with the promotion by advertising of the supply of goods made a misleading statement with respect to the price of the goods in an advertisement in "The Age" newspaper of 30 April 1983 in that it stated that the price of the carpets was :

"Usually $4,675
Sale Price $1,759
Now Only $497".

However, the particulars of the charge have been re-stated so as to raise different allegations as to why the advertisement was misleading.

13. I accept that that course may, in a particular case, raise an allegation of such significance that it could be said that a new offence was being charged. The question is, however, whether, in the present instance, that occurred.

14. Had paragraphs 5. and 7. of the first particulars been the only significant paragraphs thereof, I may have come to that conclusion. However, paragraphs 5. and 7. of the original particulars were equivocal in their meaning and effect. For example, paragraph 5. alleged, "... Hamadan carpets of the specified sizes had not been sold, or offered for sale at a usual price of $4,675 by the Corporation ...". Was this an allegation that the carpets had never been sold by Chaudhary's Oriental Carpet Palace Pty Ltd at the price of $4,675 or was it an allegation that, if sold at that price, the price was not a usual price? If the latter, was it alleged that $4,675 was not a usual price of Chaudhary's or not a usual price in the trade? I find it difficult to understand what was meant.

15. Moreover, other paragraphs of the first particulars raised different and wider issues. Paragraphs 4. and 6. stated that the advertisement was misleading in that it indicated that the retail price of the Hamadan carpets was the subject of large discounts from $4,675 and $1,759 to $497, which was not the case. The substituted particulars were consistent with this. The substituted particulars were also consistent with paragraph 8. of the first particulars for that paragraph alleged that the advertisement set out an artificial price structure in which apparently large discounts were being given on the retail price, whereas in fact the retail price was the subject of a discount not nearly as large as that represented in the statement or alternatively no discount at all.

16. Under the original paragraphs 1. 2. 3. 4. 6. and 8., standing on their own, it would have been open for the respondent to prove what was the usual or fair retail price of the carpets in Melbourne at and before the time of the advertisement, provided that the meaning of the advertisement encompassed such usual or fair retail price. In the light of this, and because of the difficulties I see with the original paragraphs 5. and 7., I am of the view that there was no such substantial change in the nature of the allegations made in the substituted particulars as to particularise a new offence.

17. I am therefore of the view that the amendment was properly made. It follows that the ground of appeal has not been established.

18. I should specifically state, however, that in this appeal the Court is not called upon to consider whether the advertisement, in its statement of prices, could or should be read as referring to "the usual retail price ... in Melbourne" or "a fair retail price ... in Melbourne" or "the fair retail price ... in Melbourne". That is a matter which will have to be considered in the due course of the proceedings.

19. For the reasons I have given, I would dismiss the appeal with costs.

Appeals against orders for amendment of summonses upon informations charging contraventions of s.53(e) of the Trade Practices Act 1974.

2. Section 53(e) provides:

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

. . . . . . . . . . . . . . . . . . . . . . .

(e) make a false or misleading statement with
respect to the price of goods or
services;"

In April and May 1984 five informations were laid by the respondent against the appellant Chaudhary's Oriental Carpet Palace Pty. Ltd. (hereinafter called "the company"), each charging a contravention of s.53(e) by publication, in a newspaper circulating in an Australian State capital city, of an advertisement, part of the content of which was alleged to constitute a misleading statement with respect to the price of carpets. At the same time the respondent laid five informations against the appellant Shahid Iqbal Chaudhary, each alleging that he had been knowingly concerned in the commission of one of the offences charged against the company. Ten of the eleven appeals now before this Court concern those ten informations. Consideration of the remaining appeal may be deferred.

3. The five advertisements and the other relevant circumstances of the ten appeals are so similar that it is convenient to consider first one of these appeals. In the appeal numbered VG 295 of 1985 the information against the appellant Mr. Chaudhary was in these terms:

"At the time and place specified below, Alan
Raymond Ducret of 200 Queen Street, Melbourne,
in the State of Victoria, appears before Susan
Craig Agnew, a Deputy District Registrar of
the Federal Court of Australia, and informs
the said Susan Craig Angew that on or about 30
April 1983 at Melbourne in the said State
Shahid Iqbal Chaudhary of 1005 High Street,
Armadale in the said State, 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 in an 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'"

Upon that information a Deputy Registrar of the Court issued on 18 April 1984 a summons which included the following:

"The Defendant is required to appear before
the Federal Court of Australia at the time and
place specified below to answer the charge the
Prosecutor makes against it viz:

1. That on or about 30th April 1983 at
Melbourne in the State of Victoria the
Defendant, contrary to section 5 of the
Crimes Act 1914 was knowingly concerned
in the commission of an offence against
the law of the Commonwealth, namely 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 in an
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'.

4. The particulars of the charge are -

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 cm. 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 misleading in that it
set out an artifical 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.

TAKE NOTICE that if you do not appear before
the Court at the time and place specified
below, a warrant may be issued for your
arrest."

5. In December 1985 Keely J. heard and acceded to the respondent's motion, of which notice was filed and served in November 1985, that the following particulars be substituted for the particulars in the summons:

"(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 244cm 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 Hamadan
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 $4,675.00, 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."

6. Against that order for amendment of particulars the appeal is brought.

7. The particulars contained in the summons indicated, counsel for the parties were agreed, that the erroneous belief, which the statement specified in the information was alleged to have a tendency to induce, was that carpets of a certain kind and size had been offered by the company for sale by retail at a price of $4,675 and at a price of $1,759. Counsel were also agreed that the particulars substituted by the order under appeal indicated that the erroneous belief was that carpets of that kind and size were usually sold by retail in Melbourne (whether by the company or by others) at a price of $4,675. It may be thought a question whether each of the two sets of particulars does express what I have said that counsel imputed to it. I think that each does. Further, the issue on which the parties contested the motion before Keely J. and contested these appeals was whether, having regard to s.21(1)(c) of the Crimes Act 1914 (C'wlth), amendment of the particulars could and should be allowed, more than two and one half years after commission of the offence alleged, to allege the one erroneous belief in lieu of the other as that into which the statement in the advertisement was likely to mislead members of the public who should read it. (It did not appear what had induced the change of allegation. Counsel for the respondent advanced, as one of their submissions, the contention that the essential falsity of the advertisement lay in the suggestion it conveyed of an order of value of the carpets far higher than the true order of value and that the two different sets of particulars might fairly be regarded as but variant modes of suggesting that falsehood. The advertisements were not before Keely J., nor before this court. It did not appear whether the statement alleged was to be apprehended merely by perusal of the advertisement or with the aid of other evidence. It was not suggested that any fact dehors the texts of the advertisements had contributed to the respondent's altered perception of what was relevantly false in the statements they contained.)

8. Section 21 of the Crimes Act 1914 provides:

"(1) A prosecution in respect of an offence
against any law of the Commonwealth may be
commenced as follows:

(a) where the maximum term of
imprisonment in respect of the
offence in the case of a first
conviction exceeds six months - at
any time after the commission of the
offence;

(b) where the maximum term of
imprisonment in respect of the
offence in the case of a first
conviction does not exceed six
months - at any time within one year
after the commission of the offence;
and

(c) where the punishment provided in
respect of the offence is a
pecuniary penalty and no term of
imprisonment is mentioned - at any
time within one year after the
commission of the offence.

(2) Notwithstanding any provision in any law
of the Commonwealth passed before the
commencement of this Act and providing any
shorter time for the commencement of the
prosecution, any prosecution for an offence
against the law may be commenced at any time
within one year after the commission of the
offence.

(3) Where by any law of the Commonwealth any
longer time than the time provided by this
section is provided for the commencement of a
prosecution in respect of an offence against
that law, a prosecution in respect of the
offence may be commenced at any time within
that longer time."

9. The punishment provided in respect of the offence charged is a pecuniary penalty and no term of imprisonment is mentioned. No law of the Commonwealth of the kind contemplated by s.21(3) applies to the offence.

10. Section 21A of the Crimes Act 1914 provides:

"(1) If at the hearing of any indictment,
information or summons any objection is taken
for an alleged defect therein in substance or
in form, or if objection is taken to any
variance between the indictment, information
or summons and the evidence adduced at the
hearing in support thereof, the Court may make
such amendment in the indictment, information
or summons as appears to it to be desirable or
to be necessary to enable the real question in
dispute to be determined.

(2) If in any such case the Court considers
that the defendant has been misled by the form
in which the indictment, information or
summons has been made out, it may adjourn the
hearing of the case for such period as it
thinks fit and may make such order as to the
costs of the adjournment as it thinks proper.

(3) The power of the Court under sub-section
(1) shall not be exercised in cases where the
Court considers that the required amendments
cannot be made without injustice to the
defendant."

11. Counsel for the appellants submitted, to Keely J. and to this Court, that to allow the amendment would be to permit the making of "a new charge". Upon that submission the learned Judge observed:

"It is clear that, if that were so, then the
applications for amendments should be refused.
As Brennan J. said in Gilmour v Midways
Springwood 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 (1920) 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 dichotomy 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, r. 2). Both the
regulations and the rules 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 distinguish the
conduct from other transactions and
occurrences (see per Dixon J. in
Johnson v Miller).'

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 a new 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. I have
not been persuaded by those submissions and
accordingly decide that the particulars sought
to be substituted by each notice of motion
shall be substituted in each matter for the
particulars contained in each summons."

12. In Gilmour v. Midways Springwood Pty. Ltd. (1980) 49 FLR 36 Brennan J. was dealing, in the passage quoted by Keely J., with an application to amend each of two informations for contraventions of s.53(a) of the Trade Practices Act 1974 by substituting for the words "in connexion with the promotion by any means of the supply of goods" the words "in connexion with the supply of goods". Brennan J. had, in the passage preceding that which Keely J. quoted, decided that the making by a corporation in trade or commerce of a false representation of the kind specified in paragraph (a) of s.53 would constitute one criminal offence if the making of such a representation were alleged to be in connexion with the promotion by any means of the supply of goods, and would constitute another, different criminal offence if the making of that same representation were alleged to be in connexion with the supply of goods. It is to contraventions of different legal provisions that Brennan J. is referring in the passage quoted. These appeals, however, concern amendment which leaves the accused charged with contravention of the same legal provision as before the amendment, but charged with a contravention constituted by different circumstances. I do not think that Brennan J. can be taken to have expressed in Gilmour v. Midways Springwood Pty. Ltd. an opinion that an amendment changing circumstances alleged in an information, or in particulars, as constituents of the offence charged may not, or should not, be allowed after the expiration of the time limited for the commencement of a prosecution in respect of an offence of that description against a law of the Commonwealth.

13. The distinction or dichotomy to which Fisher J. refers in the passage quoted by Keely J. from Videon v. Barry Burroughs Pty. Ltd. (1981) 53 FLR 425 at 444 is, as I think, between a statement of an offence in the language of the statutory provision which has created the offence and a statement identifying some or all of those "ultimate facts" the existence of which is alleged to have constituted the commission of the offence. (The expression "ultimate facts", from the judgment of Dixon J. in Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at 532 is, I think, as apt in application to criminal as to civil law.) An information is commonly composed of a mixture of the two kinds of statement. So, too, is the summons. That was apparently not the case in Videon's Case, each of the summonses in which stated an offence merely in the language of a statutory provision. But in these appeals, as in Traveland Pty. Ltd. v. Doherty (1982) 63 FLR 41 and in Gilmour's Case, supra the informations include allegations of some, although by no means all, of the ultimate facts. Thus it is alleged in the information under present consideration that it was by publication of an identified newspaper advertisement that the company made the statement the subject of the charge, but there is no identification in the information of the activity of Mr. Chaudhary which is alleged to have constituted his being concerned in the commission of the offence, nor any identification of the erroneous belief, the tendency to induce which constituted the statement a misleading statement. It is unnecessary for present purposes to consider what strictly ought to be specified in an information or a summons, or whether the distinction between the "statement of offence" and the "particulars of offence" in an indictment or presentment drawn in accordance with rules derived from the English Indictment Rules 1915 may be imported into informations. (See Smith v. Moody (1903) 1 KB 56 at 60, 61; Johnson v. Miller [1937] HCA 77; (1937) 59 CLR 467 at 486, 488-492, 497-498. O.49 R.2 of this court's Rules limits its requirement of particulars, to be included in a summons for an offence, to "particulars of the act or omission of the defendant to which the prosecution relates", but perhaps that phrase should be understood as comprehending all of the circumstances attending the act or omission which are of a description comprehended by the legislative statement of the offence charged.) Whether they be disclosed in an information or a summons or in some other document, and whether or not they be called "particulars", the ultimate facts the existence of which is alleged to constitute the commission of an offence constitute also a unique set of circumstances. When a change of the ultimate facts alleged is proposed, that may be merely to identify more accurately that set of circumstances. If, for example, change is proposed of the time or the place of a battery alleged, and there is no suggestion of a possibility that more than one incident involving violence between the protagonists had occurred, the change may be accepted as effecting only a more accurate description of a unique set of circumstances already indicated, albeit imperfectly, by what had been previously alleged. But if for theft of $10 from the person it is proposed to substitute the allegation of theft of a jewel from that person, the change may well be conceived as indicating another, or "different" or "new" set of circumstances, and therefore "a new charge", notwithstanding that no change of time or place or other circumstance is suggested. The policy to which s.21 of the Crimes Act 1914 gives expression may be frustrated no less by the substitution, after the expiration of the relevant limitation period, of one factual ingredient for another in the specification of that in which a contravention of the law is alleged to consist than by the substitution, after the expiration of that period, of one description of act or event or circumstance contained in a statutory provision for another, in the specification of that provision of the law which is alleged to have been contravened. A substitution of the latter kind, such as Brennan J. was considering in Gilmour's Case, can be readily seen, once the relevant statutory provision has been construed to determine what the several offences are which the provision creates, to have resulted or not to have resulted in the specification of an offence different from that alleged before the substitution. But a substitution of the former kind may be judged to result, or not to result, in the specification of an offence different from that alleged before the substitution only upon an evaluation of difference in degree. Few will lack confidence that theft of a ball and theft of a knife are different offences, even if every other circumstance alleged remains the same. But many changes of circumstance will not evoke a unanimous response to the question whether an allegation of a different offence has resulted.

14. The power to amend before the hearing is in my opinion not less ample than the power expressly conferred by s.21A of the Crimes Act 1914 to amend at the hearing. Its exercise should in my opinion be influenced to advance the policy given expression in s.21. When, after the expiration of the period prescribed by that section in respect of an offence, amendment is sought of any of the allegations as to what the ultimate facts are which constitute the commission of that offence, the amendment should in my opinion be granted if the changes sought to be made merely afford a more precise identification of a unique set or combination of circumstances previously indicated as the ultimate facts, but should be refused, except perhaps in certain circumstances, if any of the changes sought to be made result in a change in the substance of any of those ultimate facts. Changes of the latter kind should in my opinion be refused because to allow them would be to permit to be carried on the prosecution of an offence - that is to say the offence constituted by the existence of the ultimate facts alleged after amendment - the commencement of which had not been within the prescribed period. That is in my opinion no less a circumvention of the immunity from prosecution conferred by s.21 than an amendment of the kind Brennan J. refused in Gilmour's Case.

15. In this case what is involved is change of two ultimate facts. First, the words of the advertisement specified in the information are to be alleged to communicate, not the statement originally alleged (or intended, and taken by the parties, to be alleged), but a different statement. Second, as a necessary consequence, there is to be alleged a different erroneous belief, as that which the statement is alleged to have the tendency to induce, in consequence of which the statement is "misleading". Both the statement - the meaning communicated to those who read the words in the advertisement - and the false belief which the statement tends to induce are ultimate facts, the particular instances alleged of what in Kingswell v. The Queen (1986) 60 ALJR 17 at 27 Brennan J. calls factual ingredients or elements of the offence. It cannot in my opinion be said of either change proposed that the change will not result in prosecution in respect of an offence against a law of the Commonwealth which had not been commenced within the time prescribed by s.21 of the Crimes Act 1914. Both of the elements are to be changed by the amendments proposed, and the change of each is a change of substance. A statement that retailers dealing in a commodity have usually charged a certain price for it is quite substantially different from a statement that one retailer has usually charged that price. Each statement is alleged to have induced a belief in the correctness of what is stated. Accordingly two quite different erroneous beliefs are alleged. If the amendments sought were allowed the appellant would stand charged, in my opinion, with the commission of a different contravention of s.53(e) from the contravention charged when the summons issued. The result of allowing the amendment would in my opinion be that a prosecution would be permitted in respect of an offence against s.53(e) which had not been commenced within the time prescribed by s.21 of the Crimes Act 1914.

16. It appears that Brennan J. considered, in Gilmour's Case, supra, that an amendment which changed the legal provision of which contravention was alleged after the expiration of the limitation period prescribed by s.21 of the Crimes Act 1914 could not be allowed. He was exercising, it would seem, the power of amendment on the hearing of informations conferred by s.21A of the Crimes Act 1914. But it would be strange if any different principles were to govern the exercise of the power to amend before the hearing. It may be that different principles govern amendment changing the legal provision of which contravention is alleged and amendment changing substantially the ultimate facts alleged to constitute the contravention. It is in my opinion unnecessary to decide whether amendment changing substantially the ultimate facts might in any circumstances be allowed after the expiration of the limitation period, because circumstances which might justify such a course are not shown in these appeals. No explanation was offered by or on behalf of the respondent for his failure to make within the limitation period the allegations now sought to be raised by amendment. Nor was any evidence adduced to show that the delay in raising the allegations would not prejudice either appellant in the preparation, with respect to evidence, of his defence of the informations.

17. Ten of the eleven appeals relate to newspaper advertisements. No distinction of significance to the resolution of the other nine appeals can be found between the appeal which has been considered and any of those nine. The eleventh appeal relates to an oral statement alleged to have been made by "a sales assistant employed by" the company to a person enquiring about the possible supply to that person of a rug of a particular kind. No relevant distinction can be drawn between that appeal and the other appeals, in my opinion.

18. In each appeal I would allow the appeal, set aside each of the orders contained in the first three paragraphs of the order made 9 December 1985 and in lieu thereof order that the motion of which notice is dated 12 November 1985 be dismissed with costs. The appellant should have the costs of each appeal.