Yorke v Lucas

Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 (3 October 1985)


HIGH COURT OF AUSTRALIA


YORKE v. LUCAS [1985] HCA 65 ; (1985) 158 CLR 661
Trade Practices
High Court of Australia


Mason A.C.J.(1), Wilson(1), Brennan(2), Deane(1) and Dawson(1) JJ.
CATCHWORDS

Trade Practices - Consumer protection - Misleading or deceptive conduct by
corporation - Liability of persons aiding, abetting,
counselling or procuring
or party to contravention by corporation - Whether knowledge of material facts
necessary - Whether knowledge
that facts constitute contravention necessary -
Trade Practices Act 1974 (Cth),ss. 52, 75B, 82


HEARING

Adelaide, 1985, September 3.


Canberra, 1985, October 3. 3:10:1985


APPEAL from the Federal Court of Australia.
DECISION

MASON A.C.J., WILSON, DEANE, DAWSON JJ.: The respondent, Ross Melville
Lucas ("Lucas"), was the managing director of a company,
Ross Lucas Pty. Ltd.
("the Lucas company") which carried on business in South Australia as a
licensed land and business agent. It
acted for Treasureway Stores Pty. Ltd.
("Treasureway") in the sale of that company's business to the appellants.

2. Arising out of the sale of the business, the appellants claimed damages in
the Federal Court under s.82 of the Trade Practices Act 1974 (Cth) against
Treasureway, Kevin Thomas Mahoney who was a director of Treasureway, the Lucas
company and Lucas. The basis of the
claim was a contravention of s.52 of the
Act. That section prohibits a corporation from, in trade or commerce,
engaging in conduct that is misleading or deceptive
or is likely to mislead or
deceive. Section 82 allows a person who suffers loss or damage by conduct of
another person that was done in contravention of, amongst other provisions,
s.52 , to recover the amount of the loss or damage against that other person or
against "any person involved in the contravention". Lucas
is said by the
appellants to be involved in the contravention of s.52 and they rely upon
s.75B of the Act, which provides that a reference to a person involved in a
contravention shall be read as a reference
to a person who
-


"(a) has aided, abetted, counselled or procured the


contravention;


otherwise, the contravention;


(c) has been in any way, directly or indirectly,


knowingly concerned in, or party to, the


contravention; or


(d) has conspired with others to effect the


contravention."


3. At the trial of the action the learned trial judge found that Treasureway
had engaged in conduct which was both misleading and
deceptive by falsely
representing that the average weekly turnover of the business during a period
preceding the sale was $3,500.
The necessary consequence was, in the view of
the trial judge, that a representation that the gross profit of the business
was $1,200
per week was also misleading. He found that the first appellant,
Miles Richard Yorke, was induced by that conduct to enter into
the contract to
purchase the business. His Honour held that the Lucas company had also
contravened s.52 of the Act by acting as agent for Treasureway, but that its
contravention was unwitting. He assessed the loss of the appellants
at
$73,000 and ordered that there be judgment for the appellants in that sum
against Treasureway and the Lucas company. Execution
on the judgment against
the Lucas company was stayed until such time as the Court could determine that
company's right, if any, to
an indemnity from Treasureway and Mahoney.

4. The trial judge held that Mahoney aided and abetted or, alternatively, was
knowingly concerned in the contravention of s.52 by Treasureway and was, by
virtue of s.75B, a person involved in that contravention and hence liable in
damages under s.82. He entered judgment against Mahoney in the sum of
$73,000.

5. The trial judge dismissed the claim against Lucas, taking the view that he
was insufficiently aware of the relevant facts for
him to be involved in the
contravention within the meaning of ss.75B and 82 of the Act. He found as
follows:


"There is no doubt that Mr. Lucas was acting exactly


in accordance with the instructions and information


given to him as managing director of Ross Lucas Pty.


Ltd. by Mr. Mahoney. He was sufficiently careful to


obtain Mr. Mahoney's written confirmation on at


least three occasions of the turnover figure and he


heard Mr. Mahoney orally confirm it to Mr. Yorke.


When he returned from an overseas trip he asked Mr.


Mahoney for an up to date profit figure and he


sought and obtained confirmation that the weekly


turnover was $3,500 before he resumed his efforts


to sell the business. My ultimate finding was that


'Mr. Lucas conscientiously and carefully passed on


to Mr. Yorke the instructions and informations he


received from Mr. Mahoney and this finding is not


disturbed by the evidence given by Mr. Mahoney'.


The position then is and I find that Mr. Lucas


was not aware and had no reason to suspect, that


the information concerning turnover which he


relayed to Mr. Yorke was incorrect. He made all


appropriate inquiries from Mr. Mahoney and was


entitled to be satisfied by the answers he was


given, particularly as the turnover figure which he


was supplied received some support from the


accounts of Treasureway. He did not know of or


suspect, and had no reason to suspect, the inac#


curacy of the turnover figures and in no way could


it be said that he acted recklessly or deliberately


abstained from asking questions or pursuing


enquiries."


6. The Full Court of the Federal Court dismissed an appeal against the
judgment in favour of Lucas and it is from that judgment
that this appeal is
now brought.

7. It should be observed at the outset that the facts as found by the trial
judge raise the question whether the Lucas company itself
was guilty of any
contravention of s.52. It is, of course, established that contravention of
that section does not require an intent to mislead or deceive and even though
a corporation acts honestly and reasonably, it may nonetheless engage in
conduct that is misleading or deceptive or is likely to
mislead or deceive:
Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information
Centre Ltd. [1978] HCA 11 ; (1978)
140 CLR 216,
at p 228; Parkdale Custom Built Furniture
Pty. Ltd. v. Puxu Pty. Ltd. [1982] HCA 44 ; (1982) 149 CLR 191, at p 197.
That does not,
however, mean
that a corporation which purports to do no more than pass on
information
supplied by another must nevertheless
be engaging in misleading
or
deceptive conduct if the information turns out to be false. If
the
circumstances are such as to make
it apparent that the corporation
is not the
source of the information and that it expressly
or impliedly disclaims any
belief in
its truth or falsity, merely passing
it on for what it is worth, we
very much doubt that the
corporation can properly be said to
be itself
engaging in conduct that is
misleading or deceptive. Had the Lucas company
appealed
from the judgment against it, it may
have been necessary to form a
concluded
view on that question. It has not, however, done so
and it is
possible to resolve this appeal
against the judgment in favour of
Lucas upon
the assumption that the finding of a contravention
of s.52 on the part of the
Lucas company was correct. As will be seen, that is so notwithstanding that
the contravention was said to have
taken place solely by reason of the conduct
of Lucas.

8. The basis upon which the appellants contend that Lucas is liable under
s.82 is that he is a person involved by reason of s.75B in the contravention
of s.52 by the Lucas company. Lucas, it is said, aided, abetted, counselled
or procured the contravention within the meaning of par.(a)
of s.75B or was,
directly or indirectly, knowingly concerned in, or party to, the contravention
within the meaning of par.(c). The
argument
proceeds upon the basis that
there is no requirement in s.75B, or at least in pars (a) and (c), of an
intent on the part
of Lucas based upon knowledge of the material facts.

9. Turning first to par.(a), the appellants immediately encounter the
difficulty that the words used, "aided, abetted, counselled
or procured", are
taken from the criminal law where they are used to designate participation in
a crime as a principal in the second
degree or as an accessory before the
fact. Both in the case of felonies where the principal offender and the
secondary participant
commit separate offences, and in the case of
misdemeanours where no distinction is drawn between the two, a person will be
guilty
of the offences of aiding and abetting or counselling and procuring the
commission of an offence only if he intentionally participates
in it. To form
the requisite intent he must have knowledge of the essential matters which go
to make up the offence whether or not
he knows that those matters amount to a
crime. So much was affirmed recently in Giorgianni v. The Queen [1985] HCA 29 ; (1985) 59
ALJR 461; 58 ALR
641 where the relevant authorities were examined. That was a
case in which the appellant had been convicted
of culpable driving
under s.52A
of the Crimes Act 1900 (N.S.W.) in reliance upon s.351 of that Act. The latter
section provides that a person who aids, abets, counsels or procures the
commission of any misdemeanour may
be proceeded against as a principal
offender and was held to be declaratory of the position at common law. The
offence of culpable
driving under s.52A is an offence of strict liability
which, putting the defence of honest and reasonable mistake to one side,
requires no proof by the
prosecutor of any mental state on the part of the
accused. Nevertheless it was held that to have aided and abetted or counselled
and procured the offence of culpable driving the appellant must have
intentionally participated in that offence and to have done
so must have had
knowledge of the essential matters which went to make up the offence on the
occasion in question. Those matters
included the defective condition of the
brakes upon the vehicle being driven, because the culpable driving alleged
consisted of the
driving of that vehicle with defective brakes. Proof of such
knowledge on the part of the principal offender was, however, not part
of the
prosecution case because the principal offence was one of strict liability.

10. If par.(a) of s.75B imports the requirements of the criminal law, it is
clear in the light of Giorgianni v. The Queen that Lucas
could only be brought
within that paragraph if he intentionally aided, abetted, counselled or
procured a contravention by the Lucas
company of s.52 of the Trade Practices
Act . Upon the findings of the trial judge, however, Lucas lacked the
knowledge necessary
to form the required intent. A contravention
of s.52
involves conduct which is misleading or deceptive or likely to mislead or
deceive
and the conduct relied upon in this case consisted
of the making of
false representations. Whilst Lucas was aware of the representations
- indeed
they were made by him - he had no
knowledge of their falsity and could not for
that reason be said to have intentionally
participated in the contravention.

11. The appellants sought to meet this difficulty by submitting that s.75B(a)
should not be construed in accordance with the requirements
of the criminal
law and that no intent was necessary in order to constitute a person an aider,
abettor, counsellor or procurer within
the meaning of that paragraph. A
contravention of s.52 , it was said, requires no intent and it follows that
there is no reason why
intent should play any part in secondary participation
in a contravention of that section.

12. The nature of the prohibition imposed by s.52 is, however, governed by
the terms in which it is created and the context in which
it is found.
Section 75B, on the other hand, in
speaking of aiding, abetting, counselling
or procuring, makes use of an existing
concept drawn from the criminal law and
unless the
context requires otherwise, there is every reason to suppose that
it was intended
to carry with it the settled meaning which it already
bore.
Cf. Barker v. The Queen [1983] HCA 18 ; (1983) 153 CLR 338. Nor is there
any reason
to
suppose that because the application of s.75B may occur in conjunction with a
provision
such as s.52 , which requires
no intent,
it must also be construed so
as to dispense with intent as an element of aiding, abetting, counselling
or
procuring.
In Giorgianni
v. The Queen it was held that secondary
participation required intent based upon knowledge, notwithstanding
that the
statutory provision
creating the principal offence imposed strict liability.

13. True it is that s.75B deals with civil rather than criminal liability.
It does so by defining the term "involved in a contravention"
which is used in
s.82 to impose civil liability in respect of contraventions of the provisions
of Pts IV and V of the Act. The method
adopted by s.75B may be compared with
the way in which criminal liability is imposed upon accessories
under the
provisions of the
Trade Practices Act . Section 79 , which makes contraventions
of Pt V of the Act, other than s.52 , criminal offences, does not speak
of
involvement in a contravention. However, in Reg. v. Australian Industrial
Court; Ex parte C.L.M.
Holdings Pty. Ltd. [1977] HCA
6; (1977) 136
CLR 235 it was held that
s.5 of the Crimes Act 1914 (Cth) might be called in aid to render a natural
person guilty of an offence created by the Trade Practices Act in respect of a
corporation.
Section 5 , so far as is relevant, provides:


"Any person who aids, abets, counsels, or procures,


or by act or omission is in any way directly or


indirectly knowingly concerned in, or party to, the


commission of any offence against any law of the


Commonwealth ... shall be deemed to have committed


that offence and shall be punishable accordingly."


We can see, however, no basis for confining the ordinary meaning of the words
of s.75B by assumptions that particular parts of that
section were intended to
have a wider effect than the combined operation of s.79 of the Trade Practices
Act and s.5 of the Crimes
Act . Our conclusion in that regard is confirmed by
consideration of the history of s.75B itself.

14. Section 75B was inserted in the Trade Practices Act by the Trade
Practices Amendment Act 1977 (Cth) and at the same time s.82 ,
which was in a
narrower form, was replaced by a new section which extended liability in an
action for damages to a person involved
in a contravention of a provision of
Pt IV or V of the Act. Section 75B in introducing the concept of an involved
person takes up
s.5 of the Crimes Act . As was observed in
Fencott v. Muller
(1983) 152 CLR 570, at p 620, such a course was, no doubt, suggested
by the
words of Mason
J. in
Reg. v. Australian Industrial Court; Ex parte C.L.M.
Holdings Pty. Ltd., at pp 246-247:


"The point here is that if a head of


constitutional power enables the Parliament to


legislate so as to create a particular offence,


then that head of power or the incidental power


will authorize a provision having the same effect


as s.5 of the Crimes Act in its application to a


person who is knowingly concerned in the commission


of the offence."


Notwithstanding that s.75B operates as an adjunct to the imposition of civil
liability, its derivation is to be found in the criminal
law and there is
nothing to support the view that the concepts which it introduces should be
given a new or special meaning.

15. Reliance was also placed by the appellants upon s.85(3) and (4) of the
Act which provide defences, based upon lack of knowledge,
to persons otherwise
guilty of contraventions of Pt V of the Act. Those sub-sections are, however,
directed at actual contraventions
in which intent based upon knowledge
otherwise plays
no part and they serve to alleviate the strict liability which
would be imposed
if the defences for which they provide were not available.

16. So far we have dealt only with par.(a) of s.75B which refers to
involvement of persons who are accessories. The appellants
also rely upon
par.(c) of the same section which extends the definition of a person involved
to a person who has been in any way,
directly or indirectly, knowingly
concerned in, or party to, the contravention. There can be no question that a
person cannot be
knowingly concerned in a contravention unless he has
knowledge of the essential facts constituting the contravention. It cannot,
therefore, be suggested that Lucas falls within the first limb of par.(c). It
might be thought possible to construe the express requirement
of knowledge as
extending not only to being "concerned in" but also to being "party to" a
contravention. However, there are two reasons,
in our view, why it is
inappropriate to do so.

17. First, the natural construction of par.(c) is to regard the word
"knowingly" as qualifying only the words "concerned in" which
immediately
follow it. The punctuation strongly suggests such a construction. Secondly,
the word "knowingly" would be an unnecessary
qualification of the words "party
to". In the context of the paragraph, a person could only properly be said to
be "party to" a
"contravention" if his participation was in the context of
knowledge of the essential facts constituting the particular contravention
in
question. Whilst it is not a contradiction in terms to speak of a person being
"party to" something of which he is unaware, some
indication is needed to
convey such a meaning. There is nothing in the paragraph itself which would
point to any conclusion other
than that the words "party to" are used to refer
to a participant in the nature of an accessory. Moreover, the wider context
of
the whole section leads to the same conclusion. We have already indicated
why par.(a) requires knowledge. Paragraph (b), which
speaks of inducing a
contravention by threats, promises or otherwise, and par.(d), which speaks of
conspiring with others to effect
a contravention, both clearly require intent
based upon knowledge and there is force, we think, in the observation made in
the judgment
of the Full Court below that there is


" ... no reason why Parliament would have intended


that a section which renders natural persons liable


for a contravention by a corporation should require


some mental element or absence of innocence in


every case to which it refers except one which


itself requires in its first limb that the person


was 'knowingly' concerned in the contravention."


In our view, the proper construction of par.(c) requires a party to a
contravention to be an intentional participant, the necessary
intent being
based upon knowledge of the essential elements of the contravention.

18. It follows from what we have said that both the trial judge and the Full
Court were, in our view, correct in concluding that,
upon the facts as found,
Lucas was not a person involved in the contravention of s.52 constituted by
the false representations and
that he was, therefore, not liable in damages
under s.82. We would only add, lest it
be thought that it has escaped our
attention,
that the appellants may, even if knowledge were not necessary to
involvement under
par.(a) or under par.(c) as "party to", have encountered
difficulty in establishing that Lucas was involved within the meaning of
s.75B
in the contravention constituted by the making of
the false representations,
having regard to the fact that the representations,
albeit made on behalf of
the Lucas company, were made
by Lucas himself. As Dixon J. observed in Mallan
v. Lee [1949] HCA 48 ; (1949) 80 CLR 198, at p 216:


"It would be an inversion of the conceptions on


which the degrees of offending are founded to make


the person actually committing the forbidden acts


an accessory to the offence consisting in the


vicarious responsibility for his acts."


It is, however, unnecessary to pursue this aspect of the matter further.

19. The appeal should be dismissed.
BRENNAN J.: Section 52(1) of the Trade Practices Act 1974 (Cth) ("the Act ")
provides:


" A corporation shall not, in trade or commerce,


engage in conduct that is misleading or deceptive


or is likely to mislead or deceive."


2. Section 82(1) of the Act creates a right of action for loss or damage
caused by conduct contravening s.52. That provision reads:


" A person who suffers loss or damage by conduct


of another person that was done in contravention


of a provision of Part IV or V may recover the


amount of the loss or damage by action against


that other person or against any person involved


in the contravention."


3. The appellants were awarded damages pursuant to s.82(1) for loss caused by
conduct which was held to contravene s.52. In the
Federal Court Fisher J.
found that false representations had been made to the appellants in connection
with a purchase of
a business
from Treasureway Stores Pty.Ltd.
("Treasureway"). His Honour found that the false representations had been
made as to
the average
weekly turnover and gross weekly profit of the business
and that the false representations had induced Mr Yorke to enter
into the
contract of purchase. The representations had been made in the contract of
purchase executed by Treasureway, orally by Mr
Mahoney,
who was a director of
Treasureway, and orally by Mr Lucas who was the managing director of Ross
Lucas Pty. Ltd. ("the Lucas
company")
which Treasureway had engaged as its
agent to sell the business. Holding that the making of the false
representations was
misleading
and deceptive conduct in contravention of s.52 ,
his Honour assessed the appellants' damages under s.82(1) at $73,000.

4. His Honour found that Mr Lucas, the only officer of the Lucas company who
had had dealings with Mr Yorke and Mr Mahoney regarding
the purchase, had
acted "exactly in accordance with the instructions and information given to
him as managing director of Ross Lucas
Pty.Ltd. by Mr Mahoney" and that he
"conscientiously and carefully passed on to Mr Yorke the instructions and
information he received
from Mr Mahoney". Despite Mr Lucas' honesty and care,
his Honour held that the Lucas company had contravened s.52 , albeit
unwittingly.
He noted that Stephen J. said in Hornsby Building Information
Centre Pty.Ltd. v. Sydney Building Information
Centre Ltd. [1978] HCA
11 ; [1978] HCA 11 ; (1978) 140
CLR 216,
at p 228:


" The section should be understood as meaning


precisely what it says and as involving no


questions of intent upon the part of the


corporation whose conduct is in question."


His Honour followed what Gibbs C.J. said in Parkdale Custom Built Furniture
Pty.Ltd. v. Puxu Pty.Ltd. [1982] HCA 44 ; (1982) 149 CLR
191, at p 197:


" There is nothing in the section that would


confine it to conduct which was engaged in as a


result of a failure to take reasonable care. A


corporation which has acted honestly and


reasonably may therefore nevertheless be rendered


liable to be restrained by injunction, and to pay


damages, if its conduct has in fact misled or


deceived or is likely to mislead or deceive."


Since the making of false representations by Mr Lucas as an officer of the
Lucas company was misleading or deceptive conduct by the
Lucas company, Fisher
J. held the Lucas company liable. Judgment was entered against Treasureway,
Mahoney and the Lucas company.

5. Although the appellants sought judgment against Mr Lucas personally,
Fisher J. held that Mr Lucas was not a "person involved
in the contravention"
within the meaning of that term in s.82(1). Judgment was entered in his
favour. On appeal to a Full Court
of the Federal Court, that judgment was
affirmed. The term "involved
in a contravention" is defined by s.75B of the
Act as follows:


" A reference in this Part to a person involved


in a contravention of a provision of Part IV or V


shall be read as a reference to a person who -


(a) has aided, abetted, counselled or procured


the contravention;


(b) has induced, whether by threats or promises


or otherwise, the contravention;


(c) has been in any way, directly or indirectly,


knowingly concerned in, or party to, the


contravention; or


(d) has conspired with others to effect the


contravention."


The question on this appeal is whether Mr Lucas was a person involved in the
Lucas company's contravention of s.52.

6. Section 75B governs civil liability but it is couched in the language of
the criminal law: cf. Crimes Act 1914 (Cth), ss.5,7A and 86. Its terms are
substantially repeated in s.76(1)(c) to (f). Section 76(1) defines the
persons who are liable
to pay a pecuniary penalty for contravention of Part
IV. The terms of s.75B are also substantially repeated in s.78(c) to (f).
Section 78 precludes the bringing of criminal proceedings
for contraventions
of Part IV. As substantially the same terms are used in ss.75B, 76(1) and 78,
the meaning of the corresponding terms in the three sections is
substantially
the same. Clearly the meaning ordinarily attributed to those terms by the
criminal law should be attributed to them
in ss.76(1) and 78, and that meaning
should be attributed to those terms in s.75B. The provisions of s.75B should
therefore be construed
as though they were defining the persons criminally
liable for contraventions of the provisions of Parts IV and s. 52 and for
offences created by the other provisions of Part V. Such a construction
effects a substantial symmetry between the classes of persons criminally
liable for offences created by Part V (other than s.52) and the classes of
persons who may be civilly liable for contraventions of Part V , though there
may be some disconformity between those whose criminal liability arises only
from s.7A of the Crimes Act and those
who fall only within s.75B(c).

7. Construing s.75B in that way, civil liability is imposed only on those
who, if the particular contravention in Part IV or Part
V were an offence,
would be held criminally liable for it. Civil liability is thus imposed only
on those who engage in the conduct
prescribed by s.75B with the state of mind
which the criminal law calls mens rea. In the criminal law, provisions which
extend liability
for statutory offences to such persons as are defined by
s.75B are not understood as creating separate offences, but as making persons
falling within the provision liable for the principal offence once it is
committed: per Isaacs J. in Walsh v. Sainsbury [1925] HCA
28 ; (1925) 36
CLR 464, at p 477. A
person whose act or omission brings him within the literal terms of the
provision is not held
liable,
however,
unless he engaged in the conduct
therein specified (aiding, abetting, etc.) with a state of mind that amounts
to
mens rea.
The appellants
sought to make Mr Lucas liable either as one who
"aided, abetted, counselled or procured the contravention"
under
par.(a) of
s.75B
or as a "party to the contravention" under par.(c). In Giorgianni v. The
Queen [1985] HCA 29 ; (1985) 59 ALJR 461; 58 ALR
641, this Court decided
that a person cannot
be held liable for aiding, abetting, counselling or procuring
the commission
of an offence,
even a statutory
offence involving strict liability, without
intent based upon knowledge of the essential
facts which constitute
the
offence: see
pp.467,470,474-475; pp.651, 656-657, 663-665.

8. Although the judgments in Giorgianni had not been published when Fisher J.
and the Full Court were considering the present case,
their Honours, founding
chiefly upon the authorities referred to in Giorgianni, held that knowledge
was essential to liability under
s.75B, the Full Court expressing its
conclusion thus:


" It follows that Mr. Lucas could not be held to


have contravened s.52 as an aider or abettor


unless the Court is satisfied that he knew of the


essential facts or matters constituting the


contravention including knowledge that the


relevant representations as to the weekly


turnover of the record business and its gross


profit were incorrect. The incorrectness of those


representations is essential to support a finding


of misleading or deceptive conduct. Mr. Lucas


had no actual knowledge whatever of their


incorrectness and it is not suggested that the


circumstances of the case warrant an inference of


constructive knowledge on his part of the


character of the conduct complained of."


9. The facts that constituted the contravention for which the appellants
sought to make Mr Lucas liable consisted in his making
of false
representations to the appellants while he was acting as managing director of
the Lucas company. That was the conduct which
was held to constitute a
contravention of s.52 by the Lucas company, yet Fisher J. and the Full Court
held that the same conduct
was insufficient to make Mr Lucas liable. The
distinction which their Honours drew between the liability of the Lucas
company and
the liability of its managing director stemmed
from the view that
knowledge of the falsity of the representations made by Mr Lucas
was not an
element in the contravention of s.52 by the Lucas company but knowledge of the
falsity of the representation was a condition
of any liability imposed by
s.75B in respect
of that contravention. It is necessary to consider whether
that view is correct.


Knowledge as an element in the contravention.


10. Section 52 may be contravened by a corporation which does not intend that
its conduct will mislead or deceive another person.
The section does
not
import what in criminal law is called a specific intent, that is, an intention
that the proscribed conduct
should cause a specified
result. Indeed, s.52
does not include a result - an actual misleading or deception of another - as
an element.
I respectfully agree with an observation
by Gibbs C.J. in
Parkdale, at p.198, that "it is unnecessary to prove that the conduct in
question actually deceived or misled anyone".
What s.52 says is that a
corporation which, in trade or commerce, engages in conduct
which is in fact
misleading or deceptive or which is in
fact likely to mislead or deceive,
contravenes the section. If a corporation
engages in conduct that answers the
statutory description,
does the corporation escape liability if its officers
and agents do not
know or even suspect that its conduct is of that character?
Gibbs C.J. gave a negative answer to that question in Parkdale (at p.197)
in
the passage of his judgment on which Fisher J. relied.
I would give the same
answer. Although there would be a presumption that
some form of mens rea
should be implied if s.52 created a criminal offence (see He Kaw Teh v. The
Queen [1985] HCA 43 ; (1985) 59 ALJR 620), s.52
does not create a criminal offence (s.79(1)).
It merely defines a foundation of civil liability and there is no reason why a
presumption
affecting the interpretation of statutes
which create offences
should affect the interpretation of s.52. Section 52 is a provision
in the
"Consumer Protection" Part of the Act - Part V. It may be inferred that, as
between a corporation engaged in trade and commerce
and consumers who may be
misled or deceived by the
conduct of the corporation, the legislature intended
that the burden of any loss
suffered by the consumer as the result of want of
knowledge on the part of the corporation should fall on the corporation.

11. The question for the court in proceedings against a corporation for
contravention of s.52 is whether the conduct of the corporation
was, in all
the circumstances, misleading or deceptive - that is, apt to mislead or
deceive
- or likely to mislead or deceive. When
the conduct constituting the
contravention is the making of a false representation, it is
immaterial that
the corporation did not
know that the representation was false when it was
made. The essential facts to be established
in sheeting home liability to a
corporation
under s.52 include the making of the representation and the
falsity of the representation but not the corporation's knowledge of
the
falsity.


Knowledge as a condition of liability under s.75B.


12. Construing s.75B(a) as though it were imposing criminal liability for
aiding, abetting, counselling or procuring an offence,
a person cannot be made
liable under that paragraph as for a contravention of a provision of Part IV
or Part V unless he has knowledge
of "the essential matters which constitute
the offence". That phrase is taken from a passage in the judgment
of Lord
Goddard C.J.
in Johnson v. Youden (1950) 1 KB 544, at p 546, which was cited
with approval in Giorgianni (at p 464; p 647):


" Before a person can be convicted of aiding and


abetting the commission of an offence he must at


least know the essential matters which constitute


that offence. He need not actually know that an


offence has been committed, because he may not


know that the facts constitute an offence and


ignorance of the law is not a defence."


13. In Giorgianni, Wilson, Deane and Dawson JJ. held that intentional
participation in a crime was necessary to make a person criminally
liable for
aiding, abetting, counselling or procuring its commission, and said (at p.475;
p.665):


" The necessary intent is absent if the person


alleged to be a secondary participant does not


know or believe that what he is assisting or


encouraging is something which goes to make up


the facts which constitute the commission of the


relevant criminal offence. He need not recognise


the criminal offence as such, but his


participation must be intentionally aimed at the


commission of the acts which constitute it."


Their Honours confine the requirement of intention, and thus the requirement
of knowledge, to "the commission of the acts which constitute"
the offence.
Another question, which their Honours considered earlier in their judgment, is
the requirement of intention in a secondary
participant with respect to the
result of the acts which constitute the offence when the occurrence of the
result is an element in
the offence - for example, death in the crime of
involuntary manslaughter. Whether a secondary participant is criminally
liable
in all such cases without knowledge of the result if the offence is so
defined that knowledge or foresight of the result is not required
of the
principal offender is a question which does not now arise: but see Reg. v.
Creamer (1966) 1 QB 72; Giorgianni, at pp 464-465,474;
pp 647, 662-663.

14. As we have seen, the actual misleading or deception of a person is not an
element of a contravention of s.52 , though a person
seeking compensation under
s.82(1) must establish that his loss or damage resulted from the contravening
conduct. In determining
who is civilly liable for a s.52 contravention under
s.75B(a) no question arises as to whether the person upon whom liability is
sought to be imposed knew that another
person would or might be misled or
deceived by the contravening conduct. But s.75B(a) does
require knowledge of
the acts constituting
the contravention and of the circumstances which give
those acts the character which s.52
defines, namely, "misleading or deceptive
or ... likely to mislead or deceive". As the net of civil liability for a
contravention
does not catch those who would not be caught if s.52 created an
offence, honest ignorance of the circumstances which give a representation
a
misleading or deceptive character or the
character of a representation which
is likely to mislead or deceive is inconsistent with
civil liability under
s.75B(a). The operation
of s.75B(a) in conjunction with s.52 may be
incongruous, for s.52 throws a strict
liability on a corporation, but s.75B(a)
does not extend liability for a s.52 contravention to a person who procures
the corporation
to engage in contravening conduct if that person is honestly
ignorant of the
circumstances that give that conduct a contravening
character.

15. Nor, in my opinion, does par.(c) of s.75B impose a stricter liability.
The juxtaposition of "knowingly concerned in" and "party
to" in a statute
defining criminal liability (for example, s.5 of the Crimes Act ) would deny to
the latter term a construction equivalent
to "unknowingly concerned in". A
"party to" an offence is one who, by the
principles of the common law, would
be held to be criminally
liable for the offence. The term adds little to the
more specific terms
to be found in s.5 of the Crimes Act , but it ensures that
none is omitted from the net of criminal liability whom the common law would
include. As s.75B transports the
criteria of the criminal
law into the
definition of the parties who are civilly liable for contraventions of Parts
IV and V, the criminal law definition of
parties to an offence furnishes the
definition of those who are civilly liable as a party to
a contravention under
s.75B(c). The
requirement of knowledge under par.(a) is no less stringent
under par.(c).

16. The appeal should be dismissed.
ORDER

Appeal dismissed with costs.