Carey v Commissioner for Consumer Protection

[2013] WASCA 195

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Consumer Protection
2. › Fair Trading
3. › False or misleading representations
4. › Representations concerning use to which land capable of being put
5. › Director's liability for company's offences
6. › Defence of reasonable diligence
7. › Whether director could have prevented commission of offence by exercise of reasonable diligence
8. › Fair Trading Act 1987 (WA), ss 12(2)(b), 81, 82
1. Criminal Law
2. › Statutory offences
3. › Strict liability
4. › Director's liability
5. › Statutory defence
6. › Standard of reasonable diligence
7. › Distinction between capacity to prevent offence and actual precautions taken
8. › Fair Trading Act 1987 (WA), s 81(1)(b)
1. Practice and Procedure
2. › Costs
3. › Appeal costs
4. › Unsuccessful appellant but successful challenge to notice of contention
5. › Whether respondent's costs should be reduced
6. › Discrete and severable issues

Quick Take

The defence under s 81(1)(b) of the Fair Trading Act 1987 (WA) focuses on the capacity of the director to prevent the offence by reasonable diligence, not on whether the director actually took reasonable precautions. The precautions and diligence must be directed at the avoidance of the specific offence, not merely at the general conduct of the business. Where a director is the architect of a scheme inherently fraught with the risk of misrepresentation and provides agents with false information, reliance on the agents' general training and experience will not establish the defence.