FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Commercial and General Publications Pty Ltd [2002] FCA 900
TRADE PRACTICES – consumer protection – asserting right to payment by complainants for unsolicited services – magazine publisher making telephone calls to complainants offering to publish advertisements – whether complainants in fact authorised advertisements – draft advertisement sent to complainants after initial telephone conversation with notification that advertisement would be deemed approved if no reply received within seven days – whether legally binding contract – whether existence of legally binding contract relevant to contravention
TRADE PRACTICES – consumer protection – accepting payment for services where there are reasonable grounds for believing corporation will not be able to supply such services – publisher of magazine for community organisation – advice of organisation withdrawing authority to publish – subsequent acceptance of payments from advertisers – whether reasonable grounds for belief as to future non-supply – whether objective test
EVIDENCE – coincidence evidence – complaints as to demands for payment for unsolicited services – no notice under s 98 Evidence Act 1995 (Cth) – whether probative at common law
WORDS AND PHRASES – “request”, “unsolicited services”
Trade Practices Act 1974 (Cth) ss 6(3), 58(b), 64(2A), 79(1)(a)
Evidence Act 1995 (Cth) ss 95, 98, 100, 101
Hoch v The Queen (1988) 165 CLR 292 at 294 mentioned
Jaldiver Pty Ltd v Nelumbo Pty Ltd [1992] FCA 906at [39], [40], [49] and [52] followed
Cornell v Kennett [2000] VSC 272 at [17] – [18] mentioned
Aroutsidis v Illawarra Nominees Pty Ltd (1990) 21 FCR 500 at 509 followed
Trade Practices Commission v Quality Publications Pty Ltd (1990) 12 ATPR 40-991 at 50,889 discussed
Darwin Bakery Pty Ltd v Sully (1981) 36 ALR 371 at 376 mentioned
He Kaw Teh v The Queen (1985)157 CLR 523mentioned
Chief of General Staff v Stuart (1995) 58 FCR 299 mentioned
Toyota Motor Corp Australia v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 mentioned
Alpine Hardwoods (Australia) Pty Ltd v Hardys Pty Ltd [2001] FCA 1876 mentioned
Felthouse v Bindley (1862) 11 CB (NS) 869 mentioned
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd [1992] 27 NSWLR 326 at 334 mentioned
Chitty on Contracts: General Principles (25th Ed) at par 113
Carter and Harland Contract Law in Australia (3rd Ed) at par 268
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v COMMERCIAL AND GENERAL PUBLICATIONS PTY LTD
T 32 of 2001
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ANTHONY ROBERT HASSETT
T 33 of 2001
HEEREY J
22 JULY 2002
MELBOURNE (HEARD IN HOBART)
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IN THE FEDERAL COURT OF AUSTRALIA |
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T 32 OF 2001 |
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BETWEEN: |
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION PROSECUTOR
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AND: |
COMMERCIAL AND GENERAL PUBLICATIONS PTY LTD DEFENDANT
T 33 OF 2001
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BETWEEN: |
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION PROSECUTOR
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AND: |
ANTHONY ROBERT HASSETT DEFENDANT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. In both informations charges 1 to 41 are dismissed.
2. In respect of charges 42 to 46 questions of penalties and costs are adjourned to a date to be fixed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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T 32 OF 2001 |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 The defendants Mr Anthony Robert Hassett and his company Commercial and General Publications Pty Ltd (CGP) have for many years carried on a magazine publishing business in Tasmania. Some of the magazines concern sports such as football, cricket, golf and bowls and are sold through newsagents. Others are produced for community organisations. The magazines with which the present case is concerned are On Service produced by CGP for the Returned Services League of Australia (RSL) and Country Women Calling produced for the Country Women’s Association (CWA). With these magazines CGP provides copies free to the organisation for distribution to its members. CGP recoups the cost of publication and makes its profit from payments by advertisers. Mr Hassett solicits advertising for the magazines by telephone.
2 In the present proceedings informations have been laid by the Australian Competition and Consumer Commission (the Commission) alleging that the defendants have contravened two provisions of the Trade Practices Act 1974 (Cth) (TPA).
3 The first such provision is s 64(2A):
“A corporation shall not, in trade or commerce, assert a right to payment from a person for unsolicited services unless the corporation has reasonable cause to believe that there is a right to payment.”
4 By s 64(9)(a) the burden lies on the corporation to prove that it had reasonable cause to believe that there was a right to payment. By s 79(1)(a), (f) and (g) contravention of this provision is punishable by a fine not exceeding $200,000 for a body corporate and $40,000 for a person other than a body corporate.
5 The second provision said to be contravened is s 58(b):
“A corporation shall not, in trade or commerce, accept payment or other consideration for goods or services where, at the time of the acceptance:
(a) …
(b) there are reasonable grounds, of which the corporation is aware or ought reasonably to be aware, for believing that the corporation will not be able to supply the goods or services within the period specified by the corporation or, if no period is specified, within a reasonable time.”
6 Again, s 79(1)(a) applies to a contravention of this section.
7 These being criminal proceedings, the Commission must establish beyond reasonable doubt that the defendants have committed the contraventions alleged.
The informations
8 In T 32 of 2001 CGP is the defendant. There are two groups of charges. The first group consists of forty-one charges, each of which alleges contravention of s 64(2A). These charges involve eight complainants. In each charge it is alleged that on a particular date at Kingston in the State of Tasmania, in trade or commerce, CGP asserted a right to payment of a given amount from the complainant for unsolicited advertising services without reasonable cause to believe that there was a right to payment, in contravention of s 64(2A) and 79(1)(a) of the TPA.
9 Particulars of each charge are given. Particular (a) alleges that CGP was a corporation within the meaning of the TPA and that it carried on the business of providing magazine, publication and advertising services to members of the public from premises at 11 Kunama Drive, Kingston Beach. Particular (b) alleges that on a given date CGP asserted a right to payment of a given amount from the complainant “for unsolicited advertising services” in the publication in question. There is reference to either the posting of an invoice/statement or the making of a telephone call on the date already mentioned. Particular (c) alleges that at the time of the assertion of the right referred to in (b) CGP did not have reasonable cause to believe there was a right to payment from the complainant.
10 At this stage it is convenient to note that in respect of this information it is admitted that CGP was a corporation, that it was acting in trade and commerce and that it made the assertions alleged. It is, however, denied that the services were unsolicited. In the alternative, it is said CGP had reasonable cause to believe it had a right to payment.
11 The second group of charges, 42 to 46, allege that on given dates at Kingston, in trade or commerce, CGP accepted payment for services, namely a cheque for a particular amount, sent by a postal service by the complainant to the defendant as payment for the service of publishing an advertisement for the complainant in the 1999 edition of On Service where, at the time of the acceptance of the cheque, there were reasonable grounds, of which the defendant was aware or ought reasonably to be aware, for believing that it would not be able to supply the said service within a reasonable time.
12 Particular (a) alleges that CGP was a corporation and carried on the business or providing magazine, publication and advertising services. Particular (b) alleges that CGP had previously published the 1997 edition of the magazine in September 1997, about five months after the agreed date for publication, and had published the 1998 edition in March 1999, about seven months after the agreed date. Particular (c) alleges that at the time CGP accepted the payment it had received from the RSL advice by telephone on 26 July 1999 that the RSL would not agree to it publishing the 1999 edition of On Service and a letter dated 11 August 1999 confirming that the RSL would not be going ahead with the publication of On Service for the year 1999. Particular (d) alleges that CGP did not publish On Service for the year 1999 and no advertising services were provided to the complainant by CGP.
13 It is admitted that the cheques of the five complainants were received and banked and it is further admitted that the 1999 edition of On Service was not published by CGP. However it is said that CGP believed, at the time the cheques were received and banked, that it would be able to provide the service.
14 In T 33 of 2001 there are identical charges against Mr Hassett. It is alleged that s 64(2A) and s 58(b) and the offence creating provision of s 79(1)(a) extend to Mr Hassett as an individual by reason of s 6(3). This provision has the effect that certain provisions of the TPA, including the ones in question, apply to persons other than corporations where such persons are engaging in conduct which involves the use of postal, telegraphic or telephonic services. It was not in contest that, if the charges are otherwise made out, this section would render Mr Hassett liable. Also, Mr Hassett makes the same admissions as does CGP in T 32 of 2001.
15 Because receipt of the payments the subject of the s 58(b) charges was not in issue, the affidavits of those complainants were read but the deponents were not called for cross-examination.
16 There was however cross-examination of the complainants in the s 64(2A) charges, and in some instances brief evidence-in-chief supplementing their affidavits. Before reviewing their evidence I shall first say something about Mr Hassett’s system and then turn to some general considerations as to credit.
Mr Hassett’s system
17 Mr Hassett commenced his publishing business in 1977. At first he just supplied advertising but later he progressed into magazine publishing itself. CGP was incorporated in the early 1980s. The shareholders were Mr Hassett and his then wife.
18 Mr Hassett always solicited advertising by telephone. The time frame for publication of magazines like On Service and CWA Calling was normally about four and a half months. Larger magazines like his cricket and football magazines would take closer to six months. Normally it would take about twelve weeks to obtain the advertising. Over this period Mr Hassett would spend around three days a week soliciting for advertising and could well be on the telephone from about 9.30 or 10.00 am to 7.30 or 8.00 pm. Over such a day he might make six or seven sales.
19 Mr Hassett would obtain the names and phone numbers of potential advertisers from newspapers, trade gazettes, telephone directories or other publications. He would spend perhaps an hour early in the morning just going through such material and then would start making calls.
20 Mr Hassett always used the pseudonym of “Tony Davis” or just “Tony”. This was a practice he adopted from his earliest days in publishing at the advice of a manager he worked for. Mr Hassett said [T 345]:
“You are calling people who really do not want to be receiving phone calls. You get an enormous amount of abuse. Some people can take it, I am a little bit sensitive to it and I found that it was quite OK – I even sought a legal opinion from Dobson Mitchell and Allport as to whether there was any problems with it legally and I was advised that it was not. I sought that legal opinion in 1977 and I had reaffirmed again by the same solicitor in 1988.”
21 Mr Hassett’s invariable opening would be along these lines, taking Country Women Calling as an example [T 343]:
“Good morning (or afternoon). It’s Tony calling for the Tasmanian Country Women’s Association and the reason that I am calling is that were are presently putting together a CWA annual publication Country Women Calling, the 1998 edition which is coming out in late February/early March, and we were hoping that you could be of assistance in the form of some advertising content.”
22 At that stage his procedure depended on the varying responses that he might receive. People might say that they were not interested in which case he would “bow out gracefully”. Two observations can be made. First, it will be seen later that some complainants deposed that Mr Hassett introduced himself as “Tony Hassett’”. The likely explanation is that Mr Hassett’s account of his modus operandi, a thing repeated thousands of times over the years, is correct but that complainants have become aware of his name later, from sources such as the RSL, the CWA or the Commission, and have transposed that name back into their recollection of the initial telephone conversation. This is something of a straw in the wind, an illustration of how reconstruction can work.
23 Secondly, Mr Hassett’s opening would give persons simply not interested in advertising (on Mr Hassett’s account, which I have no reason to doubt, the vast majority of those called) an easy and early exit from the conversation. Yet some complainants, who steadfastly maintain they were never interested, and who proffer explanations for that lack of interest, nevertheless did not exit the conversation but somehow managed to engage in substantial discussion with Mr Hassett, providing him with matter such as their name and address, information about their business and advertising detail.
24 To continue Mr Hassett’s account of his system,sometimes those called would say they could not afford to advertise, in which case he would say “You don’t have to pay for it now. It will not be out until late February/early March. You are more than welcome to fix it up after then”. Others would say that they were interested and ask for a run down on the advertising costs. Mr Hassett would then give them details of the cost and size of advertisements, although he would not suggest what size the advertiser should take. Once the person made the decision to take the advertisement Mr Hassett would then get some information from them so he could have the draft of the advertisement prepared for sending out to them. He was emphatic that he does not ask for information about the person’s business until such time as they have agreed to take the advertisement. He said in relation to this practice [T 344]:
“Simply – the main thing – I have always been aware that this is the sort of business where one is extremely vulnerable and it was important to get a set of practices in place in the early years where if I was asked any questions about anything I could always say confidently that I knew that it is exactly what I did and I just don’t ask people for any information about their business. It’s time wasting. It wasting their time and it’s wasting my time as well.”
25 Sometimes the person called would ask Mr Hassett what size he recommended. He would say that was entirely up to their budget. After the sizes were agreed on Mr Hassett would say to the person [T 344]:
“Now, what we will do, we will have the draft of the ad prepared for you. We will send it out to you in writing and we would ask you, please, to check it over very carefully and if you wish to make any alterations or additions please make the changes and send it back to us within seven days”.
26 At that point Mr Hassett is “ready to terminate and get on to the next call”. He was quite emphatic that he would never send out a draft advertisement where the person had not authorised the advertisement. When asked by his counsel whether Mr Hassett ever gets people saying “Just send me a draft then I will make up my mind?”, Mr Hassett answered [T 346]:
“Yes, I do all the time and I say to people, ‘I’m sorry, that is just not something that we will do’. Quite often you will get people – you get the feeling that what they want is something from you that they can use elsewhere. I have never, ever entertained – never, ever in the whole time that I have been in the business. Some companies will do it, I won’t.”
27 Mr Hassett does not seek a written authorisation from advertisers.
28 Where a person agrees to advertise Mr Hassett takes hand written notes of name and address and details that will go in the advertisement. He transfers these details onto a pro forma internal document called Advertising Order Form which is as follows:
“ADVERTISING ORDER FORM
C.W.A. R.S.L. TASSIE/CON CRICKET FOOTBALL
DATE:______________________________________________________
NAME OF BUSINESS:_________________________________________
____________________________________________________________
NAME OF PERSON AUTHORISING AD:__________________________
CORRESPONDENCE ADDRESS:________________________________
____________________________________________________________
SIZE OF AD:_________COST:_______DATE OF PAYMENT:_________
DRAFT:_____________________________________________________
RESERVATION:______________________________________________
INSTRUCTION TO CLIENT:____________________________________
____________________________________________________________
____________________________________________________________
INSTRUCTIONS TO PRINTER:__________________________________
____________________________________________________________
____________________________________________________________
OTHER SPECIAL INSTRUCTIONS:______________________________
____________________________________________________________
____________________________________________________________”
29 He then prepares a draft advertisement and covering letter. The draft is produced on a standard form as follows (taking On Service as an example):
“Name:
Address:
Date: Size: Edition:
The following is a draft copy (wording only) of your advertisement which will appear in the forthcoming edition of the R.S.L. “On Service”. If any amendments are necessary please alter this draft accordingly and return to PO Box 620, Kingston, 7051 within 7 days. Any draft not received within this time will be deemed approved.
[Advertisement]
If any alternations are necessary, would you kindly forward by Fax or Mail; in order to eliminate the possibility of an error being made over the telephone.
This draft is wording only and bears no resemblance to completed artwork.”
Sometimes the draft will record a particular arrangement, for example that the person is to send in their own logo, or confirm a promise such as the particular placing of the advertisement.
30 The covering letter relating to On Service is as follows (mutatis mutandis, the same letter would be sent in respect of Country Women Calling):
“[Name and address]
We wish to thank you for sponsoring an advertisement in On Service
On Service is the official publication of the Returned Services of Australia (Tasmanian State Branch Inc.).
On Service is an Annual Publication containing all the up to date information on the R.S.L. activities throughout Tasmania, and will be distributed free of charge to all Members and supporters of the R.S.L. throughout the State.
Date Charge Issue
Please forward your payment to:-
ON SERVICE
PO BOX 620
KINGSTON 7051”
31 Copies of the notes and advertising order form are kept in lever arch files. The draft and covering letter are kept in hard copy and on computer.
32 After posting out the draft and covering letter, the next step is for Mr Hassett to wait and see if the advertiser makes any changes to the copy. In his experience around thirty per cent of people will make changes to the draft and send it back. The relevant ad is not typeset until about three or four weeks later to allow as much time as possible for that, even though the request is made for return within seven days. Once the form of the advertisement is settled it “sits in the queue” while other advertisements and editorial are being processed.
33 When the magazine is ready (the actual printing and binding is done by a sub-contractor) Mr Hassett sends an account, together with a copy of the magazine, to the advertiser. He puts the account physically into the magazine at the page number where the advertisement appears and turns it over so that the front part is folded over the front of the magazine. He puts this into the envelope himself, and checks the address.
34 Mr Hassett offers five per cent discount on thirty day terms. This is typically taken up by thirty to forty percent of advertisers. In the event of non-payment, subsequent accounts are sent at thirty, sixty and ninety days. If unpaid after about five or six months Mr Hassett would send them to a collection service. When asked about non-payment Mr Hassett said [T357]:
“… the industry is a difficult industry. It is, and it has always been. It is no different today to the time I started. You get a percentage of people that will turn around and say ‘I didn’t authorise it, show me where I have signed for it’ and you really can’t do much for those sort of people. You put them into a collection service, a percentage of them will turn around and finally pay and the others, well, you just end up having to write off because it is not worth chasing them. They are small amounts of money and you would spend more money chasing them than you would, you know – it is just better to write them off.”
The complainants’ evidence: coincidence
35 Counsel for the Commission submitted that the evidence of each of the complainants is admissible in the cases involving each of the other complainants because of the inherent unlikelihood (in the absence of concoction) of eight people lying or being mistaken about the events the subject of the charges. He referred to Hoch v The Queen (1988) 165 CLR 292 at 294, a decision of my own Jaldiver Pty Ltd v Nelumbo Pty Ltd [1992] FCA 906 at [39], [40], [49] and [52] and Cornell v Kennett [2000] VSC 272 at [17] – [18].
36 There are some problems with this submission. In the first place it implicitly assumes that all complainants are otherwise credible. But for reasons which will hereafter appear, as to a majority of the complainants I have reached a state of positive disbelief as to their credibility.
37 Secondly, neither counsel adverted to the provisions of Pt 3.6 of the Evidence Act 1995 (Cth). The evidence in question would appear to be “coincidence evidence” (see the Act’s Dictionary) and thus caught by s 98. That provision restricts the use of such evidence, notwithstanding that it can be used for other purposes, in this case each complainant’s account of his or her own dealings with the defendants: see s 95. Moreover, this being a criminal proceeding, there is the further restriction of s 101: the evidence cannot be used unless its probative value substantially outweighs any prejudicial effect it may have on the defendant.
38 I think this coincidence evidence is not admissible. The Commission did not give notice in writing, whether reasonable or otherwise: s 98(1)(a). The Court has not made, and has not been asked to make, an order under s 100 dispensing with notice. The evidence has not been adduced to explain or contradict coincidence evidence adduced by the defendants: s 98(3)(b). The evidence would have been adduced anyway.
39 But in case I am wrong as to the application of the Evidence Act, I would record the view that this evidence does not, upon analysis, assist the Commission. As I said in Jaldiver Pty Ltd & Ors v Nelumbo Pty Ltd [1992] FCA 906 at [49]:
“…one cannot ignore the quantitative element. If only one or two persons out of a potentially large number could be found to give similar fact evidence then that in itself weakens the logical probative force of the evidence.”
In support of that proposition I cited what was said by Hill J in Aroutsidis v Illawarra Nominees Pty Ltd (1990) 21 FCR 500 at 509. In that case which, like Jaldiver, concerned complaints by persons who had entered into leases of shops in a shopping centre as a result of alleged misrepresentation, his Honour said:
“Further, there were a great number of tenancies being negotiated by the respondent in the period around September 1983 and the fact that two only of the tenants could be found to give evidence (albeit not consistent evidence) did not suggest that any real system existed.”
40 The more frequently a particular event is shown to have occurred, the more likely it is that a similar event occurred on a particular occasion which is in dispute. However, in the present case there is room for doubt as to what is the relevant frequency. Is it the frequency of occasions of which some (not all) of the other complainants give similar accounts? Or is it the frequency of occasions on which transactions presumably satisfactory to advertisers were completed? There were in evidence two issues of On Service and one of Country Women Calling published over the period 1997 to 1999. They contain a total of 578 advertisements, each one of which, it may be inferred, was produced by a telephone approach from Mr Hassett in the way outlined. We live in an age where consumers, very properly, are conscious of their rights and aware of the Commission, a powerful and well publicised body that is available to enforce those rights. If Mr Hassett was engaged by way of systematic practice in the conduct of which the complainants complain, one might expect to see many more complaints from the remaining 570 advertisers. The complaint rate in fact was only about 1.4 per cent.
The complainants’ evidence: oral conversations
41 When an oral conversation is said to have given rise to a concluded agreement, experience of litigation shows that there is an inevitable potential for conflicting recollections as to whether agreement was reached and, if so, as to what were its terms. For this very reason, statute law has for some 400 years required certain categories of contract to be evidenced in writing before the courts can enforce them. Some may think it desirable that the TPA make such a requirement in relation to telephone selling in general, or selling of the kind engaged in by Mr Hassett for the last twenty-five years. But Parliament has not taken that step. Indeed, Parliament has, by contrast, required written authorisation only in relation to a more particular offence concerning unauthorised entries in directories, an offence which appears in the TPA immediately after s 64(2A): see s 64(3) and (6). So Mr Hassett’s standard business practice was not unlawful, notwithstanding that, as the law recognizes, it might give rise to disputes on occasions, which can of course be resolved in civil litigation or by small claims tribunals.
42 There is a human tendency, and not necessarily a conscious or dishonest one, for people to reconstruct past events in a way which is supportive of their interests. The further back in time the event is when they are first called upon to recollect, the stronger is that tendency. And the tendency is all the more persuasive when people have no objective evidence ready to hand that stands in the way of a self-serving reconstruction.
43 In the present case there was typically a delay of some ten to twelve months between the time of the complainant’s conversation with Mr Hassett and the time an invoice was received. In some instances the complainants’ capacity for objective recollection was likely to be affected by the fact that the business had been closed down or sold, with the consequence that they would get no value for the money now being demanded. And in respect of some complainants there was a mistaken assumption that no legal liability would attach unless the complainant had signed a document, which would make it all the easier to reconstruct the telephone conversation as something tentative, provisional and non-binding.
Mr Hassett’s credibility
44 Counsel for the Commission advanced some valid criticisms going to Mr Hassett’s credit, particularly in relation to the s 58(b) charges. I would not accept without hesitation his evidence on every issue. But I do accept what he says about his system, which would have been applied in thousands of individual instances. His evidence as to this is not inherently irrational, notwithstanding that there may have been more perfect systems he might have used, for example one involving the use of tape recordings. And it has to be accepted that he kept contemporaneous internal records and sent written confirmation immediately after the conversations. Counsel for the Commission referred to Trade Practices Commission v Quality Publications Pty Ltd (1990) 12 ATPR 40-991 at 50,889, but the discussion there was concerned with the “reasonable cause to believe” element of the offence and not with the primary question of fact as to whether the services in question were unsolicited.
Cook
45 Charges 1 to 4 [CB 1] allege assertions of a right to payment from Lyle Edward Cook of $165 in respect of an advertisement in Country Women Calling. Assertions took the form of an invoice/statement posted in October 1998, a telephone call in October 1998, an invoice/ statement posted by Tasmanian Collection Service (TCS) on 14 May 1999 and a further invoice/statement posted by TCS on 4 June 1999.
46 For about six months up until April 1998 Mr Cook conducted a mechanical repair and servicing business in Devonport. He closed the business because it proved to be unprofitable.
47 In his affidavit [CB 128] Mr Cook deposed that in early 1998 he received a phone call at his business premises from a woman who asked him if he would be interested in putting an advertisement in the CWA magazine. He said “No, not really”. But he found the woman “very persistent and pushy”. Even though he was not interested in having an advertisement placed in the magazine but “basically to get rid of her and get back to work”, he said words to the effect “Send me some information out”. The woman told him that she would arrange to have a drawing of a proposed advertisement for his business done and that the draft would be sent to him. She also informed him that once he had received the draft and if he did not choose to go ahead with an ad placed then he could “just forget about it”.
48 A couple of weeks later he received a phone call at his business from a man who identified himself as Tony Hassett of Commercial and General Publications Pty Ltd who were arranging the advertising and publication of the CWA magazine. Mr Hassett asked him what he did in his automotive business. He explained that he did servicing and mechanical repairs, fitted central locking, cruise control and alarm systems to cars and so on.
49 He told Mr Hassett that he “really wasn’t interested” in having an ad placed in the CWA magazine. He emphasised to Mr Hassett that he “would probably not be going ahead with having an ad placed”. Mr Hassett informed him that he would send out a drawing of the ad to him and if he wanted the ad put in he should send the information back to him with any changes to the draft.
50 About a month later he received the draft CWA advertisement in the mail. He looked at it briefly and then threw it in the rubbish bin as he “was not interested and never had been interested”. He did not notice any conditions about the draft advertisement being deemed approved if not returned in seven days. He never authorised the placing of an advertisement in the CWA magazine.
51 Later in 1998 he received in the mail a copy of the magazine Country Women Calling with an invoice for $165 for an advertisement on page 59. The advertisement has a small drawing of a mechanic working on the engine of a motor car and the words
“LYLE COOK
AUTOMOTIVE
* Servicing and mechanical repairs to most makes and models
* Supply and fitting of car alarm systems
* Supply and fit of cruise control
Phone 6427 2084 or 0418 995 348”
52 Mr Cook was annoyed and telephoned the CWA who told him that he should speak to Mr Hassett. He phoned Mr Hassett and said that he had been invoiced for an ad that he never authorised. Mr Hassett said that as he had not sent the draft advertisement back he assumed he had authorised it. Mr Cook said words to the effect “That’s a load of rubbish”. He deposed that Mr Hassett and the woman who made the earlier call had told him that authorisation would only take place if he were to return the draft ad back to them with or without any amendments and with his signed authority to go ahead. He told Mr Hassett words to the effect [CB 130]:
“You show me some authorisation that I’ve signed or approved and I will pay for the ad. If you can’t show me that then stick it.”
53 Mr Hassett told him that he had recorded the conversation saying that he had authorised it and if he didn’t pay he would take him to court. Mr Cook said words to the effect “Go for it, because you won’t be getting anything out of me”. Mr Hassett then told him he was not going to waste any more time with a “do-do” and terminated the conversation. Subsequently Mr Cook received demands for payment for $165 from TCS acting on behalf of CGP. On the advice of the CWA he instructed solicitors to write to TCS informing them that he never authorised an advertisement and would not be liable for the account. The letter from Mr Cook’s solicitors Clerk Walker & Stops dated 3 June 1999 recorded their client’s advice that [CB 137]:
“… he was initially approached by Tony Hassett to place an advertisement in the publication. Our client said that he really wasn’t interested; however we are instructed that Hassett insisted on sending him ‘some material through the mail’. When it arrived our client advises that he scanned the material but then discarded it as he was not interested.”
54 In cross-examination, when asked about the earlier conversation with the woman, Mr Cook said “I can barely remember it, to be honest with you”. He said that he did receive a phone call from a lady who asked him if he would be interested in placing ads in Country Women’s magazines and on beer glasses. He admitted that Mr Hassett could have commenced the conversation with the words [T 48]:
“This is Tony calling for and on behalf of the Tasmanian Country Women’s Association and the reason I am calling is that we are presenting putting together the 1998 edition of Country Women Calling, which is the CWA’s annual publication which is coming out later in the year, and we are hoping you would be of assistance in the form of some advertising content.”
55 He further admitted that Mr Hassett could have proceeded to advise him as to the different types of ads that could be placed in the magazine, including an eighth size at the cost of $165. He admitted that Mr Hassett had asked him for information about his business but at the time he was busy fitting a central locking kit on a car. He claimed he said [T 49]:
“I’ve got to go. I haven’t got time just send the stuff to me and I will look over it. I won’t be going in it anyway. I won’t place an ad anyway… I’ll take a look at it but I won’t place an ad. ”
Later [T 52] he said that he was “positive” that he “said ‘no’ straight away”.
56 He said in answer to the non-leading question “How did Mr Hassett raise the question about him sending you a draft ad?” [T 50]:
“I’ll send you a draft and if there’s any amendments or anything that’s got to be changed, change it and send it back to me.”
This is virtually the same as Mr Hassett’s version and may well represent a correctly recalled fragment. I say fragment, because Mr Cook went on to say in answer to the next question “But didn’t he say that to you after you had said ‘Yes, OK I’ll go ahead with the ad’?”:
“No, no. No, he…I said, ‘I’ll take a look at it and – but I will not get the ad done,’ yes”
57 His belief [T 57] was that for there to be a valid contract he had to sign something.
58 Mr Hassett said in evidence [T 361] that he did have a “contact agent” a lady called Jan Edwards who was working for him then who presumably would have made the earlier telephone call. He agreed that he telephoned Mr Cook. He denied that he identified himself as Tony Hassett. He said [T 363] that Mr Cook was “absolutely wrong” in stating that he definitely never authorised the placing of the ad. Mr Hassett particularly remembered the unusual amount of material that he gave him to fit into this small ad. Mr Hassett’s notes were in evidence (Ex 8). They are on six separate pieces of paper. He said he told Mr Cook that he would have the draft prepared for him but he would send it out to him in writing. He asked Mr Cook to please check the draft over very carefully and said,as was his standard practice [T 364]:
“If you want to make any alterations or additions, would you please make the changes and send it back to us within seven days.”
59 He denied saying that he would send out the drawing of the ad and if Mr Cook wanted to put the ad in he should send the information back to him with any changes to the draft. He said there was a later telephone conversation after publication with Mr Cook in which he challenged Mr Hassett to show some signed authorisation. Mr Hassett did not use the expression “do-do”.
60 I do not accept Mr Cook’s account. On one version (according to Mr Cook’s solicitors’ letter and affidavit) he told Mr Hassett that he “really wasn’t interested” in having an ad placed. At another point in his affidavit he claims he said that he “would probably not be going ahead with having an ad placed”. In cross-examination it became ever firmer [T 49]:
“No I won’t place an ad anyway, I will take a look at it but I won’t place an ad.”
61 These accounts are inconsistent as between themselves. But any version is quite inconsistent with Mr Hassett taking detailed notes. It is inherently unlikely that Mr Hassett would have gone ahead with the time and trouble of preparing an advertisement faced with either the unlikelihood of acceptance or the downright refusal that Mr Cook says he conveyed.
62 In cross-examination Mr Cook did accept a format of the conversation which accords with Mr Hassett’s evidence as to his invariable practice. I think also Mr Cook’s evidence is coloured by the fact that by the time the magazine came out the advertisement was of no use to him and also by his mistaken assumption that he was not liable in the absence of a signature.
Dorling
63 Charges 5 to 7 allege assertions of a right to payment from Mark Leslie Dorling of $275 for an advertisement in On Service. The assertions took the form of an invoice/statement posted to him in December 1998, an invoice/statement posted to him in February 1999 and an invoice/statement posted by TCS to him on 14 September 1999.
64 Mr Dorling conducted a shoe repair and key cutting business under the name North West Shoe Repair at an arcade in Burnie. In March 1998 he had been in that business for about a year and he left it a year later.
65 In his affidavit [CB 156] Mr Dorling deposed that in March 1998 he was phoned by a man who identified himself as Tony Hassett. He asked Mr Dorling whether he would be interested in having an advertisement placed in a magazine for Returned Servicemen called On Service. Mr Hassett told him that he would send him a draft copy of what the ad would look like. He told Mr Hassett that he would have a look at the draft ad but was not sure that he wanted to go ahead with having an ad placed in the magazine. He also told Mr Hassett that before deciding whether or not he would agree to have an ad placed he would first have to see a previous edition of the magazine to get an idea of the nature of the publication. Mr Hassett said “No problem” and that he would mail him a copy of On Service. Mr Dorling did not receive such a copy.
66 In about May 1998 he received in the mail a draft advertisement from CGP. He did not retain a copy of the draft. On receiving the draft he immediately phoned Mr Hassett and left a message on the answering machine saying that he would not be going ahead with the ad. He then regarded the whole matter as finished. In about December 1998 he received from CGP an invoice for $275 and a copy of the advertisement which reads [CB 160]:
“NORTH WEST
SHOE REPAIRS
Specialising in
* Shoe repairs * Soles * Heels
* Recoursing * Surgical Repairs
* Key Cutting
[a drawing of a shoe repairer]
KIOSK 2
K MART PLAZA BURNIE
Phone
6431 1777”
67 He telephoned Mr Hassett to express his dissatisfaction that they had gone ahead with placing the ad when he had definitely never authorised it. He again got an answering machine and left a message to this effect. About two days later Mr Hassett returned his call and again Mr Dorling told him that he had never authorised the ad. Mr Hassett said that he had. Mr Dorling said to him [CB 157]:
“No I didn’t. I’m still waiting to see a copy of the On Service magazine you said you would send me out. Show me the authorisation that I’ve agreed to signed to going ahead with having an ad placed in this magazine. You prove it.”
68 He received subsequent invoices from CGP and TCS on behalf of CGP. Mr Dorling and his wife wrote a letter dated 12 November 1999 to TCS denying liability.
69 In cross-examination Mr Dorling agreed that Mr Hassett had described what the magazine was, and also probably the people that went into it, but he denied that there had been mention of the types of advertisements and the prices that were then available.
70 Mr Dorling repeated his assertion that the caller identified himself as Tony Hassett. He had no recollection of discussing with Mr Hassett the types of ads that could be placed in the magazine. He said that he probably said what services he offered in his kiosk. He recalled receiving the draft advertisement but could not recall receiving a covering letter and in particular one which said:
“We wish to thank you for sponsoring an advertisement in On Service”.
He said [T 73]:
“I don’t recall doing that because if I had seen that I would have been on the phone telling them I never authorised an ad.”
71 He accepted that the date on which he got the bill could have been March 1999 rather than December 1998. He claimed that he did not receive a copy of the magazine at all. He did not see a copy until he spoke to an officer of the Commission. He said that he sold his business in February 1999. He accepted that the following was a tape recording of a message he left on Mr Hassett’s answering machine after receiving the account [T 79].
“Yes, it’s Mark Dorling from North West Shoe Repairs. We had a conversation several months ago about the outstanding account or assumed outstanding account. Firstly we talked about you giving me some verification I had actually signed for it which I doubt I did. Secondly I had no proof that there is anything in the magazine so the service is pretty rank anyway. If you would like to get back to me my number – oh you’ve got my number anyway because it’s on the brochure that you’ve got. Ok, bye.”
72 He also agreed that he left a second message as follows [T 79]:
“This is Mark Dorling here … go unanswered whether I’d rung up and asked for some sort of verification to it. … About a conversation … I’ve told you I can’t remember signing it. I had a look at it. I did not … If you’ve got authorisation then fine get back to me. Otherwise what you are sending me is a lot of rubbish. My name is Mark Dorling. My number is 6431 1777. Please return this call. As I said, this will be the third one. The other two have remained unanswered. Thank you.”
73 It was put to him [T 80]:
“Q. Yes, but basically you were looking to see something that you had signed, weren’t you? You were looking to see where?”
A. Well I hadn’t recalled through the whole thing saying yes or no, that he can go ahead with anything and if I did he would have had the logo.
Q. So you are assuming because he didn’t…?
A. No, no. I’m saying that I can’t recall saying yes to go ahead with anything.
Q. I am just suggesting although you can’t recall it, it is quite possible that you may have verbally said, ‘Yes, go ahead’, in the phone call?
A. I don’t think so because the first bill I got I was that angry with getting a bill for something I hadn’t authorised so I doubt that very much.”
He later said [T 80]:
“Well, I figured a telephone call to cancel the ad would be the end of it.”
He repeated on three other occasions ([T 72, T 82 and T 83] that if he had authorised the advertisement he would have supplied his own logo. He accepted [T 83] that the letter written to TCS does not mention his earlier request to send a copy of the magazine.
74 Mr Hassett in his evidence said that Mr Dorling did not mention anything about using his own logo. If such had occurred he would have sent a standard form of letter which he used when a customer was to supply a logo or some other information for the advertisement. He produced a sample of such letter. Mr Hassett denied that in the initial conversation he had promised to send a copy of On Service to Mr Dorling. However, he said that when the magazine came out he rang Mr Dorling back and asked him whether he had received a copy of the magazine. This was to get him to take space in another publication. Mr Dorling said then that he had not received On Service. Mr Hassett sent a further copy and thinks he called Mr Dorling back about a week later. Mr Dorling denied having received that copy also. Mr Hassett was not able to locate his original notes. He does, however, keep a file in relation to customers for whom he is waiting to receive logos or other information. He denied that he told Mr Dorling he would send him a draft copy of what the advertisement would look like. He denied having agreed to send Mr Dorling a copy of the magazine before agreeing to place an ad. He did not receive a message on his answering machine upon Mr Dorling’s receipt of the draft advertisement. He had a practice of taking cancellation messages off his answering machine. He said [T 381]:
“I say that he did not phone me and leave a message on my answering machine because that is a thing that – cancellations, taking messages of my answering machine, is something that I am really meticulous about. I don’t believe that he did. If he had of left that message on my answering machine it would have been extracted off the answering machine. I know it would have gone into the processing for my typist, my word processor. She would have taken that cancellation out, she would have signed it as having been done and dated and it would have come back to me and I would have checked the computer file to make sure that it would have been done.”
75 As a witness, Mr Dorling was more impressive than most of the complainants. However, I am not satisfied to the required criminal standard as to the reliability of his account. An important issue is whether, as Mr Dorling asserts, upon the receipt of the draft advertisement he rang and left an answer on Mr Hassett’s answering machine. If he had done this, I think it is likely that Mr Hassett would have cancelled the advertisement. One would expect cancellations as a normal incident of a business like this and Mr Hassett had a system to deal with them. He said he had thirty-three cancellations in relation to this particular issue of On Service. It is true that the assertion as to leaving the message of cancellation is made in Mr Dorling’s letter to TCS (although by the same token the letter makes no mention of his assertion that in the initial conversation Mr Hassett promised to send him a sample copy of the magazine). Nevertheless it is striking that in the recordings of the telephone calls, which were made after Mr Dorling received the account, at a stage when he said he was quite angry, there is no mention made of this cancellation. Rather, the reason given for non liability is the absence of signed authorisation.
76 Another relevant factor here is that by the time the account was received, which must have been March 1999. By that time Mr Dorling had sold his business, so he was not going to get any benefit from the account.
Fielding
77 Charges 8 to 12 allege assertions of a right to payment from Craig Ronald Fielding of $165 for an advertisement in Country Women Calling. The assertions took the form of an invoice/statement dated 20 November 1998 and 10 March 1999, a telephone call in April 1999 and TCS statements posted on 14 May 1999 and 17 June 1999.
78 In early 1997 Mr Fielding was carrying on a small house renovation business called Fielding’s Paint and Renovation Services.
79 He deposed [CB 169] that early in that year he “was telephoned by a man who identified himself as Tony Hassett” and asked if he was interested in advertising in the RSL’s 1997 On Service magazine. Mr Fielding said he was interested but would first need to check that the magazine was a bona fide RSL publication. He did so and this was confirmed. About one week later Mr Hassett telephoned him again and Mr Fielding authorised an advertisement for $165 which he duly paid, having received an invoice dated 28 November 1997.
80 Mr Fielding deposed that some time after his advertisement appeared in On Service Mr Hassett telephoned him again and asked if he was interested in advertising in the CWA publication Country Women Calling. Mr Fielding deposed [CB 170]:
“I told him that I was not as I had not received any work from my last advertisement in On Service. Hassett did not say anything else.”
81 Subsequently Mr Fielding received an invoice dated 20 November 1998 for $165 from CGP for the advertisement in Country Women Calling. This had been placed without his authorisation and was out of date as the earlier RSL advertisement had stated that his business offered among its services gasfitting and plumbing, which he no longer offered. After further demands by Mr Hassett Mr Fielding was “so sick of being continually hassled about the matter and … worried about the possible effect of it on (his) business” that he reluctantly decided to pay the $165. On 18 March 1999 Mr Fielding’s wife on his behalf sent a fax to CGP in these terms [CB 183]:
“Invoice (no number?) Fieldings Paint and Renovation Services
We are writing regarding the abovementioned account for $165.00.
If you persist in sending us accounts despite us never having given any authorisation for the advertisement to be placed in your publication.
If you cannot supply written proof to us on the above fax no. within 24 hours we will consider this a mistake on your behalf.
Hoping this fax clarifies our position.”
82 In cross-examination Mr Fielding said [T 99] that the conversation regarding Country Women Calling was a “couple of minutes” and could not have been longer than two minutes. This was because he was not interested in the advertisement. He denied that he indicated that he would take a one-eighth of a page advertisement in Country Women Calling and also that he requested Mr Hassett to make some amendments to the previous advertisement in On Service and in particular to include the words “covering the North West Coast”. However, a Telstra printout shows a conversation extending for 11 and 43 seconds. When this was put to Mr Fielding he admitted a conversation for that length of time with Mr Hassett.
83 He admitted having signed a statement for the Commission in which he denied ever receiving a telephone call from Mr Hassett in relation to the Country Women Calling advertisement. He then made a later statement saying:
“In fact I don’t recall ever being approached before by [sic] advertising in the CWA publication.”
84 As already mentioned, in his affidavit in this proceeding he gives positive evidence of having received a call but asserts he said he was not interested. His business did not prosper in Tasmania. He moved to Victoria in late 1998, about the time he first received an invoice.
85 In his evidence Mr Hassett said that Mr Fielding had agreed to an advertisement in the CWA magazine. He said he was quite happy with the RSL magazine advertisement but wanted the words “covering the North West Coast” included in Country Women Calling. Mr Hassett produced a copy of the draft letter and draft advertisement and also his notes. The notes include reference to North West Coast.
86 Mr Fielding was not an impressive witness. At one stage he had denied having any relevant telephone conversation at all with Mr Hassett. His sworn affidavit as to the contents of that telephone conversation is quite inconsistent with his acceptance that it took over ten minutes. His ultimate payment of the account also can be taken as an admission of liability. His alternative explanation is unconvincing, given that he had moved to Victoria. Mr Fielding is a complainant in respect of whom I have formed a positive disbelief.
Fisher
87 Charges 13 to 17 allege assertions of a right to payment from Irene May Fisher of $165 for an advertisement in On Service. The assertions took the form of invoice/statements posted in May 1999, June 1999 and on 25 June 1999 and TCS invoice/statements posted on 14 September 1999 and 2 November 1999.
88 Mrs Fisher deposed that in 1998 she had just completed a Master of Education Degree in Counselling and Development and was working as a naturopath from her home and at the Huonville Pharmacy. In the early to middle part of that year she was telephoned by a man who asked her if she was interested in advertising in the 1998 RSL annual journal. She deposed [CB 190]:
“The man quoted me various sized advertisements and prices for advertising in the 1998 RSL journal. I told him that I did not think my line of business would interest the RSL and that I had just completed a Masters Degree at University. I had recently advertised in The Mercury and that had not brought me any business. Accordingly, I definitely never authorised the placing of an advertisement in an RSL journal during the course of this conversation or at any subsequent time either verbally or in writing. The man gave me his name but I do not now recall it.”
She expanded on this in evidence-in-chief. She said that she told the caller that she did not think her business would be of interest to RSL members and that she had “recently been talked into advertising in The Mercury which had brought (her) absolutely no business at all, and also (she) just started working in pharmacy”.
89 She further deposed that she heard nothing more about the matter until she received a brief letter in May 1999 bearing the heading On Service. The letter was from CGP and demanded payment of $165 for an overdue account for placing of an advertisement in On Service. She telephoned the number given and left a message on the answering machine but she never received any response to that or to subsequent messages. She had never seen a copy of the advertisement or received any invoice before she received these demands for payment and thought the company had made a mistake. She had previously placed an advertisement in The Mercury newspaper of 15 April 1998 in a supplement connected with Mt Carmel School at which her daughter was a student. This advertisement read as follows [CB 198]:
“IRENE FISHER
N.D.B.A. Grad.Dip.
Counselling & Development
provides a professional service in
FAMILY / PARENTAL
COUNSELLING AND
NATUROPATHY
For enquiries please contact
Irene on (03) 6264 1196”
90 The advertisement in On Service is in the same terms except that it includes the words “AVAILABLE TUESDAYS” and instead of the phrase “For enquiries please contact” it says “FOR APPOINTMENT CONTACT”. It gives a different telephone number, viz 6229 2929.
91 In cross-examination Mrs Fisher said the conversation may have taken about ten minutes. She said that at this time she went swimming at the RSL pool so she [T 145]
“… didn’t want to be impolite and I did think it over in my mind, you know should I, shouldn’t I, while we were talking but the thing was, as I explained to him I’d already just got into this business of advertising and it hadn’t done a thing. My sort of business doesn’t work like that anyway it’s word of mouth.”
It was “quite an affable conversation” in which she “tried to be polite and did think it over”. She did agree that there was discussion about the size of the advertisement but denied there was any discussion about terms of payment and in particular about a five per cent discount if payment was made on thirty day term. She denied that she had received a draft advertisement and covering letter, or that she had received in March 1999 a copy of the magazine or an invoice in April 1999. She agreed that the following was a message she left on Mr Hassett’s answering machine [T 162].
“My name is Irene Fisher. My telephone number is 6229 2929. I repeat Irene Fisher on 6229 2929. Now, I have been receiving accounts from you for advertising for the amount of $165. Now, I would like to know what this is about. Last year the RSL got on to me. I know about putting an ad in your publication and my recollection of the time was that I said, ‘Well, when I say I would get back on to them about that’. I don’t remember authorising any advertising. Furthermore, I say in fact for the last eighteen months I have been working in a pharmacy, so I really haven’t been around.”
92 Mr Hassett said in evidence that when he phoned Mrs Fisher he had seen her advertisement in The Mercury and he indicated that he was calling on behalf of the Tasmanian RSL. They had a “very amicable conversation”. Mrs Fisher said to him that initially she didn’t think the market would be right. He said to her that he thought the market the On Service was going to would be “absolutely ideal for the type of thing that she was doing”. She then indicated that she would take an eighth of a page. She asked him to make some changes. She wanted her home address left out. She said that she did not have the money to pay right away. Mr Hassett told her that she did not have to pay for it until the magazine came out and she could have a discount for three months until the end of July.
93 Mr Hassett produced notes, one of which has what appears to be a copy of The Mercury ad with the telephone number crossed out and on the note Mr Hassett has written the other telephone number and “available Tuesday”. He has written her address 170 Maddocks Road with the words “(leave out)”. There is also an advertising order form on which he has written her name and address, the size of ad one eighth, cost $165, and against date of payment, “page align”. He produced a copy of the draft advertisement and covering letter including the reference to five per cent discount if paid by 31 July 1998.
94 Although presenting as an articulate and likeable person, Mrs Fisher was not on analysis a witness whose evidence would support findings to the degree of confidence required to support a criminal conviction.
95 She was not a careful witness. Some examples appear from her evidence. In brief evidence-in-chief she spoke about the advertisement in The Mercury and I asked whether she had any connection with Mt Carmel College. She immediately answered “No”. So I then mentioned that the reason I asked this was that her advertisement appeared to be in a kind of supplement that included other advertisers to which she replied [T 143]:
“Oh, that’s how it happened. That’s how it happened, I’m sorry, yes because my daughter was a student at Mt Carmel, that’s how I got talked into advertising in The Mercury, it was through something they were doing for Mt Carmel Collage, that was quite right. I’d forgotten about that, thank you.”
96 Her cross-examination then commenced and at the outset she was asked about the Mt Carmel advertisement and her statement that she had got “talked into advertising”. She answered [T 144]:
“A. I wasn’t actually reluctant to advertise for Mt Carmel at all, as I recall. I’d forgotten the details because you see at that particular time I was finishing off the Masters degree at the University as well as working from home, and I was in the middle of statistics which I absolutely hated, and I’d just forgotten all the details, but the problem for me was money. It was just – I knew jolly well, or I thought I probably wouldn’t get any business out of it, because as I explained to your client when he rang me, I get my business by word of mouth.
Q. Sorry, perhaps my question simply is in relation to the advertisement in the Mt Carmel supplement?
A. Yes it was just a case of affording it, that’s all.”
97 This tendency to assert something with great confidence and then retreat was again demonstrated when she was asked about a letter she had written to the Magistrates’ Court in defence of a claim by CGP. In that letter she said [T 155]:
“I had been approached by telephone in mid 1997 to place an advertisement in the RSL journal.”
When asked about this she said that it was in the autumn of 1997 or probably a little earlier than that but she was sure it was around about that time. She said it was within a couple of months of her starting work in Huonville. When it was put to her that she did not receive any call at all in mid 1997 and that she was actually a year out in relation to that time her response was [T 156]:
“That’s ridiculous, I am sorry”.
She said:
“It certainly didn’t occur a year later. It occurred in the autumn of 1997. That’s when it occurred.”
She was then referred to paragraph 2 of her affidavit which, as noted above, refers to “early to mid 1998”. She was asked:
“Is that a ridiculous proposition?”
She answered:
“No no. It was a Tuesday because it was a day that I was at home when I wasn’t working in the pharmacy. I wasn’t employed on a Tuesday in the pharmacy.”
It struck me as significant that when confronted with her previous statement and the affidavit which was flatly contradictory to that which she had been confidently asserting Mrs Fisher put up a smoke screen by emphasising she was correct in saying that the conversation occurred on a Tuesday. She is an intelligent person, and would have realised that the point of the cross-examination had nothing to do with the conversation being on a Tuesday.
98 In respect of this complainant Mr Hassett has detailed documentation supporting his version. He has the draft advertisement compiled with alterations to the advertisement in The Mercury and a reference to a changed telephone number and the fact of her being available on Tuesdays. It seems inherently unlikely that Mr Hassett would have prepared this documentation unless Mrs Fisher had agreed to the advertisement. It is to be remembered that Mrs Fisher is not a complainant who alleges that she agreed to having a look at a draft advertisement on a provisional basis. Her case is that she rejected the idea in the initial telephone conversation. Another factor is her recorded message on the answering machine when she says that her recollection of the time she was asked about “Putting an ad in your publication” was that she said [T 163]:
“Well, when I say I would get back onto them about that.”
This is quite inconsistent with her evidence in which she claims she said she “was not interested”.
99 There is also the circumstance that three separate postal communications sent in accordance with Mr Hassett’s regular system to an address not suggested to be incorrect are claimed not to have been received by Mrs Fisher.
100 I am satisfied that Mrs Fisher did agree to place the advertisement as Mr Hassett says.
Howells
101 Charges 18 to 21 allege assertions of a right to payment from Lyndon Kenneth Howells of $270 for an advertisement in On Service. The assertions take the form of invoice/ statements posted in February 1999 and on 14 April, 1 June and 25 June 1999.
102 Mr Howells and his wife Susan Eileen Howells are the proprietors of an electrical contracting business under the name of Lyndon Howells Electrical which commenced in February 1998.
103 In Mr Howells’ affidavit [CB 203] he deposed that in early 1998 he was telephoned by a man whose name he cannot definitely recall but thinks may have identified himself as Tony Davis. The man asked if he would be interested in advertising in an RSL magazine. He said that only people who have been nominated by an RSL member were eligible to have an advertisement posted in this magazine. He went through a sales pitch and told Mr Howells that it would be beneficial for his business to advertise in the RSL magazine as it would be distributed to all RSL members in Tasmania. He said that the cost of an advertisement would be $275. He asked what type of electrical services Mr Howells expected his business to provide and Mr Howells briefly described what he thought they would include.
104 Mr Howells said to the caller that he had just started up in business and was in the process of designing a business card for his business. The man said that he had people who could design an advertisement for him. He said words to the effect “We can design an advert for you free of charge, no obligation, and we’ll send out a draft ad to you for your approval”. He said that when Mr Howells received his draft ad if he decided he wanted to go ahead with having the ad placed in the RSL magazine that he should contact him accordingly. Mr Howells agreed to the man sending out a draft advertisement but did not authorise the placing of an ad in the RSL magazine.
105 Mr Howells deposed that he never received a draft advertisement. In late February/early March 1999 he and his wife received in the mail a copy of On Service and an invoice dated February 1999 for $275.
106 Mrs Howells deposed that she telephoned CGP during the first week of March 1999 and left a message on the answering machine advising that they had not authorised the placing of an ad on the On Service magazine and would not be paying the invoice.
107 In late March/early April Mr Howells received a further invoice and on 14 April 1999 Mrs Howells faxed back to CGP the following message [T 229]:
“A message was left on your machine when we received original. We did never agree to any advertising from your service. Please do not send any further accounts.”
108 After receiving further accounts, in which it was said that the matter would be referred to TCS, Mr Howells was very concerned about the effect on his credit rating and reluctantly decided to pay $250 of the $275 demanded.
109 In cross-examination [T 193] Mr Howells accepted that the caller could have run through a variety of size of advertisements available. He denied receiving the draft ad or the covering letter. He said that he would not have agreed to an advertisement in this form because it has his home number rather than his mobile number.
110 In his evidence Mr Hassett produced his notes of his conversation with Mr Howells. These contained the name and address and telephone number and a mobile number which are in red ink and a note listing various items of electrical work. He produced an advertising order form dated 26 March 1998 with Mr Howell’s name and address. The size of ad is noted as 1/4 page, the cost $275, and the date of payment “Pay June”. Draft is marked “Yes”. The instruction to client is noted: “Mention will include high quality sketch”. On the reverse of this form is a handwritten draft of the advertisement. Mr Hassett also produced a draft dated 2 April 1998 which is in the standard form with the following details [Ex 37]:
“Name: Lyndon Howells Electrical – Mr Lyndon Howell
Address: 70 Wentworth Street, South Hobart, 7004
Date: 2 April, 1998 Size: 1/4 - $275 Edition: 1998
The following is a draft copy (wording only) of your advertisement which will appear in the forthcoming edition of the R.S.L. “On Service”. If any amendments are necessary please alter this draft accordingly and return to PO Box 620, Kingston, 7051 within 7 days. Any draft not received within this time will be deemed approved.
LYNDON HOWELLS
ELECTRICAL
DOMESTIC · COMMERCIAL · INDUSTRIAL
* New Installations
* Repairs & Maintenance
* Rewiring
* Domestic Floor Heating
* Communications
* Cabling
* Security Systems
FOR A FREE QUOTE CONTACT LYNDON
Phone: 6234 8962
70 Wentworth Street, South Hobart
NB – High quality sketch to be included in ad.
This draft is wording only and bears no resemblance to completed artwork.”
111 Mr Hassett denied he said that only persons nominated by an RSL member were eligible to have an advertisement placed in the magazine. It was however quite possible that he might have said that an RSL member had recommended Mr Howells or mentioned his name. He repeated that he does not get details of a business before customers have said they would take an advertisement. He recalled that Mr Howells indicating very definitely that he wanted to take the advertisement. He denied that he offered to design an advertisement free of charge for no obligation and send out a draft for him to decide if he wanted to go ahead. There was no mention of a business card.
112 Mr Howells was probably the most impressive of the complainant witnesses. He was unshaken in cross-examination, as was Mrs Howells. Nevertheless it seems strange that Mr Howells would attribute to Mr Hassett the statement that only persons nominated by an RSL member were eligible to have an advertisement placed in the magazine. There is no suggestion that this was in fact the case. It is inherently unlikely that Mr Hassett would have said so. No other complainant has suggested such a thing. It may be that in his own mind Mr Howells has confused his thoughts about getting a new business card and a draft design of that with getting a draft for an advertisement. Moreover it is puzzling that he did not receive in the post the standard confirming letter and draft advertisement.
113 Having regard to Mr Hassett’s evidence of his system and his internal records I am not satisfied beyond reasonable doubt that Mr Howells’ account is to be accepted.
Jagoe
114 Charges 22 to 26 allege assertions of a right to payment from Pauline Margaret Jagoe of $255 for an advertisement in Country Women Calling. The assertions took the form of an invoice/statement posted in October 1998, on 20 November 1998, 28 January 1999 and 17 May 1999.
115 Ms Jagoe conducted a horticultural business under the name Willow Vale Garden Design and Consultancy Service in Ridgley.
116 She deposed [CB 240] that in around May 1997 she was telephoned by a man whose name she does not recall who asked her if she was interested in advertising her business in a CWA magazine called Country Women Calling. She said “No”. About a month later she was telephoned by a women who she thinks identified herself as Gail Edwards again asking if she was interested in advertising in Country Women Calling. She said “No, definitely not”.
117 Around the end of November/early December 1997 she received in the mail a copy of a draft advertisement for her business in Country Women Calling described as being for the 1997 edition. She produced the draft. It is in Mr Hassett’s standard form and contains the following advertisement [Ex 33]:
WILLOWVALE GARDEN
DESIGN AND CONSULTANCY SERVICE
A Qualified Horticulturist Offering A
Comprehensive Range Of Services To Suit Rural,
Residential and Commercial Properties. These
Services Include: Garden Concept and Working
Plans, Consultation Reports and Garden Renovations
& Maintenance
Gift Certificates Available
Contact Pauline Jagoe
Phone: 4635 7947
85 Circular Road, East Ridgley
“BEAUTIFUL GARDENS BY DESIGN”
The draft also has the words
“NB Kindly forward new logo ASAP”
Ms Jagoe further deposed [CB 241]:
“As I had definitely never authorised the placing of an ad in Country Women Calling either verbally – during the course of the above two phone calls I had received from representatives of Country Women Calling, or in writing,
I did not feel inclined to waste my time and money to contact the Country Women Calling publisher who had sent me the draft ad to advise them that I had never authorised the placing of an ad in their magazine. Accordingly I ignored the draft ad after reading it.”
118 Around the end of October/early November 1998 she received in the mail a copy of the 1998 edition of Country Women Calling and an invoice from the publisher CGP for $255. She immediately phoned the number given on the invoice but it was the wrong number. She phoned the CWA and spoke to the secretary explaining what had happened. She also went to the Burnie police. She received follow up invoices and then a demand from TCS
119 In cross-examination [T 169] Ms Jagoe asserted that in the telephone conversation she “didn’t express any interest whatsoever”. She denied discussing an earlier advertisement in The Advocate newspaper. It was “(a) very short conversation because I just was not interested”. It would have been a maximum of two to three minutes. When put to her that the phone call with the man was for the duration of 10 minutes 17 seconds she disagreed “absolutely”. She said she could not be mistaken as to that. There was no discussion about her earlier advertisement in The Advocate newspaper nor any alteration of it to include “rural, residential and commercial properties”. She was fairly sure that the conversation took place in May 1997 and not on 24 November 1997. When challenged about this she said she kept the draft ad she received. She did not recall receiving the covering letter. The following was put to her [T 180].
“Q. The reason you kept the draft was because you were waiting for the ad to come out in the magazine?
A. You can suggest whatever you like.
Q. You kept the draft because you were waiting for the ad to come out in the magazine, is that correct?
A. No I didn’t keep the draft because I was waiting for the ad to come out in the magazine.
Q. There is no reason to keep the draft though was there, because you had already said, no I don’t want the ad?
A. Well, my reasons for keeping things are my reasons.”
At a later stage when she was asked about keeping the draft she said [T 184]:
“I just felt at the time that I should keep it because I felt that something strange was going to happen because I already told Ms Edwards that I wasn’t going to advertise and I told the man I wasn’t going to advertise and then I received a draft so I thought I would keep it.”
When asked, if she thought something strange was going to happen, why not write a letter and make it clear that she had not authorised the advertisement she said:
“Because that’s effort and that’s expense to me and I wasn’t willing to outlay any expense at all on an issue I wasn’t getting involved in.”
120 She expressed the belief that to be bound for any contract it had to be in writing. The advertisement in the Advocate was put to her. The advertisement was in the same terms as the one in Country Women Calling except that the words “both residential and commercial properties” in the Advocate advertisement have been replaced in the Country Women Calling ad by “rural, residential and commercial properties” and the words “Phone Pauline on 6435 7947” have been replaced by “Contact Pauline Jagoe Phone: 6435 7947”.
121 In his evidence Mr Hassett said that he did not commence seeking advertising for Country Women Calling until October 1997. He said that when he spoke to Ms Jagoe she said she was interested because she worked in an area where the CWA was quite strong. He had her Advocate advertisement. She wanted to make some amendments to include rural, residential and commercial properties. Mr Hassett said he would make those amendments and confirm it in writing. They discussed her logo which was in the Advocate advertisement. Mr Hassett told her that it was probably not necessary to send in the logo because he had a fairly high tech scanning system and could recreate things out of newspapers or yellow pages. His Telstra records show a phone call to Ms Jagoe’s number on 24 November 1997 for 10 minutes 17 seconds. Mr Hassett produced a note showing the words “rural, residential and commercial properties”. He produced a draft advertisement and covering letter.
122 I must say I found Ms Jagoe a quite unsatisfactory witness. She was a hostile witness, not in the technical legal sense, but rather that she presented as a person who resented being in the witness box giving evidence. Her account of a terse rebuttal of Mr Hassett is totally inconsistent with the record of a telephone conversation for more than 10 minutes. It also defies belief that, in the face of such a refusal, Mr Hassett would have sent the draft at all, let alone made small but significant alterations to the Advocate advertisement. Her reasons for retaining the draft are unpersuasive and contradictory. At first she said it was simply “my reasons”. Then she said she had the feeling that something strange was going to happen because she had already told Ms Edwards that she was not going to advertise. But in her affidavit she says that Ms Edwards telephoned a month after the call from the man, who was obviously Mr Hassett.
123 I am quite satisfied that Ms Jagoe did in fact order the advertisement as Mr Hassett says and her reason for keeping the draft is the simple one that she wanted to check the advertisement when it ultimately came out.
Poynton
124 Charges 27 to 32 [CB 22] allege assertions of a right to payment from Warwick John Poynton of $165 for an advertisement in Country Women Calling. The assertions took the form of statement/invoices posted on 30 October, 20 November and 22 December 1998 and 28 January 1999 and telephone calls on 29 January and 7 February 1999.
125 Charges 33 and 34 allege assertions of a right to payment from Mr Poynton of $165 for an advertisement in On Service. The assertions took the form of statement/invoices posted in March 1999 and April 1999.
126 Charge 35 alleges an assertion of a right to payment from Mr Poynton of $165 for an advertisement in Country Women Calling. The assertion took the form of an invoice/statement from TCS posted on 14 May 1999.
127 Charges 36 and 37 allege assertions of a right to payment from Mr Poynton of $165 for an advertisement in On Service. The assertions took the form of invoice/statements posted on 31 May and 25 June 1999.
128 Mr Poynton conducts a car detailing business called Superior Car Detailing in Ulverstone.
129 Mr Poynton deposed that in February 1998 he was telephoned by a man who said he was telephoning on behalf of the CWA. The man said [CB 496]:
“Would you be interested in advertising in the CWA’s magazine?”
He said the cost of having a 1/8th size advertisement would be $165. Mr Poynton said he did not have a clue what he meant by one eight size and said:
“Quite possibly but I require more information about what the ad would look like”
The man said words to the effect of:
“I’ll send you some more information.”
130 Mr Poynton deposed that he never received any information from the man but in November 1998 received a copy of Country Women Calling and an invoice from CGP for $165 for an advertisement in a magazine. The advertisement read [CB 503]:
“SUPERIOR CAR DETAILING
All makes and models From minis to prime movers
* Car wash service available
* For prompt and effective service
and further information phone
6425 1615
or drop into
244 Forth Road (Westella Drive) Ulverstone (3-5 km east from Ulverstone)
Free pick up
Engine degrease
Wheels and tyres painted
Quick clean or full detail
Full interior detail
Cut and polish”
131 He sent an undated letter to CGP as follows [CB 507].
“From W Poynton 240 Westella
Drive Ulverstone 7315
I do not owe you the 165 dollars you have billed me for as I did not give you permission to run a (sic) advert for me. You did not send any information to me in regards to this advert.”
132 He received a follow up invoice from CGP dated 20 November 1998 stamped “Final Notice Payment Within Seven Days or Legal Action Will Be Taken”. He tried phoning the number quoted on the invoice but kept getting the noise of a fax machine.
133 In December 1998 he received another invoice from CGP with the same stamp warning of legal action and a further invoice in January 1999. In late January 1999 the same man who had originally approached him in February 1998 telephoned him. He sounded very angry about a letter Mr Poynton’s mother Mrs Esther Poynton had written to him at CGP the previous December repudiating on his behalf any claim to payment for the ad. The caller said he wanted to know why Mr Poynton hadn’t paid for the ad in the CWA publication. He said words to the effect [CB 497]:
“If you don’t pay for the ad I will take you to court. I have got you on tape as having authorised the ad.”
Mr Poynton said words to the effect:
“I have been advised not to pay because I never gave you permission to place any ads on my behalf.”
Mr Poynton challenged the caller to send him a true copy of the draft ad that he alleged he had sent him. The draft ad subsequently sent was dated 29 January 1999 yet the CWA publication was published in October 1998. About a week afterwards the man from CGP rang again demanding why he had not paid. Mr Poynton said the true copy of the original draft he sent was all wrong. He said, ‘You have got the wrong date on it”. The man sounded flustered and said words to the effect, “I will look it up on the computer”.
134 The letter from Mr Poynton’s mother was in these terms [CB 515]:
“Sirs,
Re: Your letter of the [illegible]
We do not feel obliged to pay this account as there was at no times any given authority to place an advert in your paper. As you do not answer your phone we could not get in contact with you. We did not want an ad at any time. Goodness knows where you got it from. We have been in touch with Consumers Affairs which will take it further if needed. Please deduct it from your books immediately. There are too many who ring businesses insisting we advertise. It should be stopped. There are quite a few disgruntled people we’ve heard of since.”
135 Mr Poynton subsequently received invoices and overdue payments reminders from CGP for placement of an advertisement on page 4 of the 1998 edition of On Service. He deposed [CB 498]:
“Again the amount demanded is $165.00 and again I never authorised this ad either. In fact in this case with the RSL publication I was never even initially approached by CGP to see if I might be interested in advertising in it.”
136 He retained solicitors Clerk Walker & Stops to write a letter dated 24 May 1999 to TCS in which it was alleged that Mr Poynton gave instructions that he would only publish in the CWA journal if he was provided with proof of the advertisement and that he confirmed the proof prior to insertion.
137 In his cross-examination, notwithstanding the statement in his affidavit already quoted, the following exchange took place [T 119]:
“Q. You don’t remember about that [an outline of the various sizes and costs of the ads]. Well he indicated to you didn’t he that there was such a thing as an eighth of a page ad which cost $165?
A. Well that was the only size I was ever – that I can ever remember about.
Q. So you remember the man talking about that particular size, an eighth size.
A. Possibly, yes.
Q. You are not 100 per cent sure?
A. No. Well, like I said, I wouldn’t have a clue what an eighth size one was supposed to represent.
Q. No, but do you remember now that these words were spoken? The words ‘eighth size ad at a cost of $165’?
A. I’m sorry, I can’t remember that.”
138 Later he implicitly conceded the effect of the passage of time on his memory and also a misunderstanding about the process of liability [T 123].
“Q. Can I suggest to you though that you had forgotten about the conversation by the time you received the invoice in November 1998?
A. I think I probably would have. Nine months is a long time from[sic] something like that. I still didn’t authorise any advert.
Q. Right. Did you think at the time that you could authorise an advertisement over the phone or did you think you had to sign something?
A. Well, I presumed I had to sign something.
Q. So you thought that you would not have to put an ad in the – I am sorry. You weren’t providing valid authorisation if you said yes over the phone because you had to sign something?
A. No.
Q. Sorry I am probably not being very clear. Did you think that your authorisation was only valid if you actually signed something to say ‘Yes, I will?’
A. Yes.
Q. Yes. And that just saying yes over the phone wouldn’t have been enough to constitute your authorisation?
A. No. Not as far as I’m concerned it wouldn’t have been.”
139 When asked about his mother’s letter he said that she was in business too and “always gets people ringing up and annoying her”. He was asked [T 125]:
“Q. So she was pretty happy to help you, having had the same experience?”
A. Yes, yes.
Q. All right. So between you and your mum you were both fed up with people ringing and trying to sell you ads?”
A. Oh. My mum was fed up, but I hadn’t had all that many ring me up.”
140 As already mentioned Mr Poynton denied having received any call at all about advertising in On Service. In particular he denied a phone call of nine minutes and two seconds in April 1988.
141 In his evidence [T 397] Mr Hassett said that he telephoned Mr Poynton and said it was Tony calling on behalf of the Tasmanian CWA. He told Mr Poynton the rates. Mr Poynton said he would take an advertisement of an eighth of a page. Mr Hassett told him that he would send him a copy of the draft and ask him to check it over if he wanted to make any changes. Mr Poynton already had a small advertisement in he Advocate and he wanted the same one as appeared there. Mr Hassett produced notes with Mr Poynton’s name and address and the notes “one-eighth CWA” and the words “Ask for business card and logo” and “Mention good spot”. Mr Hassett produced a draft dated 19 February 1998 which is in terms of the advertisement already mentioned and includes [Ex 24]:
“NB. Kindly forward business card with logo. Ad will be placed in a good spot in front of book.”
142 Mr Hassett also produced the covering letter and the advertising order form showing: size of ad one-eighth; cost $165; draft “as per attached”. Instructions from client “Ask for business card or logo – mention ad will be in good spot in front of book”. He denied saying that he would send some more information. Mr Hassett agreed that he was “flustered” when as a result of the later conversation with Mr Poynton he sent a draft dated 29 January 1999 for a publication that came out in October 1998. His explanation was that the computer for some reason was picking the first date as printed on that particular day and printing it as the date of the document. He subsequently learned that it had a date-embedded field. With his Macintosh system he could open it up and find the date it was actually created and the document was created on 19 February 1998. The Macintosh computer also allows the taking of a photograph of what is on the screen. He took a photograph which shows it was created on 19 February 1998.
143 As to the On Service advertisement, it was unusual for Mr Hassett to approach an advertiser for a second magazine when they had not paid for the first one. However, what happened in this case was that in the meantime Mr Poynton had changed the name of his business so that when Mr Hassett telephoned he was not even aware that he was speaking to a person with whom he had spoken some months previously. The name of the business had been changed from Superior Detailing to W J Auto Detailing and Mr Hassett thought they were two separate businesses. Mr Hassett produced a Telstra printout showing a call to Mr Poynton’s Ulverstone number on 15 April 1998 for 9 minutes and 2 seconds. The draft advertisement has the note “NB. Ad will include sketch and be placed in first ten pages”. He indicated that he was to use basically the same advertisement as he had in the paper for his new business.
144 I did not find Mr Poynton a reliable witness at all. His evidence was internally contradictory. His flat denial of any conversation at all about the On Service advertisement is not to be believed. There is no explanation as to why Mr Poynton would have spent a nine minute telephone conversation with Mr Hassett on the same date that appears on the draft. It may be that Mr Poynton has been pressed into his mother’s campaign against telephone solicitation. Moreover, reference to the advertisement being placed on the first ten pages is highly suggestive of an actual conversation taking place. Mr Hassett may have his faults, but I do not believe he has added this “corroborative detail to give artistic verisimilitude to an otherwise bald and unconvincing narrative”.
145 I am satisfied Mr Poynton authorised both advertisements.
Warring
146 Charges 38 to 41 [CB 19] allege assertions of a right to payment from Glenn Anthony Warring of $295 for an advertisement in On Service. The assertions took the form of invoice/ statements posted on 15 March 1999, and in April, May and June 1999.
147 Mr Warring was the proprietor of Eye Watch Protection Services, a security business.
148 He deposed [CB 570] that in July 1998 he was telephoned by a man who said that he was calling on behalf of On Service, an RSL publication. He does not recall the man’s name. The man asked if he would be interested in advertising in On Service and said the cost would be $295. The man said he would send Mr Warring a draft copy of an ad to look at along with general information about advertising in the magazine. Mr Warring told the man that his business had its own logo which he would want to incorporate in an advertisement if he decided to go ahead. The caller told Mr Warring that this would be done if he went ahead with the advertisement. Mr Warring said that he would be interested in receiving more information about placing an advertisement in On Service and he wanted to see a draft copy of an advertisement.
149 About two or three months later during September or October 1998 he received in the mail “general information about advertising in the On Service magazine and a copy of a draft ad.”
150 He produced the draft which was in the standard form and dated 23 July 1998. It contained an advertisement in the following terms [CB 573]:
“EYE WATCH
PROTECTION SERVICES
Specialising in
* Security Patrols
* Alarm Responses
* Sight [sic] Guards
* Alarm System Installation and Monitoring
For Service
Contact Glenn Warring
Phone: 6228 1430
2/334 Park Street, New Town.”
The draft then contains the words:
“NB: Kindly forward Logo ASAP. Ad to be printed in prime position in front of publication.”
151 Mr Warring deposed [CB 570] that by this time he had decided that he did not want to go ahead with the ad and so …
“…after briefly reading the material that he had sent to me I just ignored the whole thing and assumed that was the end of the matter having never previously authorised the placing of an ad in On Service.”
152 On 15 March 1999 he received in the mail a copy of On Service and an invoice for $295 for an advertisement appearing on page 27. He immediately sent a fax of the same date in these terms [CB 577]:
“I received in today’s mail a copy of On Service magazine and a [sic] invoice for $295 in regards to advertising.
It is my understanding that apart from a verbal expression of interest I have given no authorisation for the advertisement either in writing or otherwise. I believed that I would be sent a copy of the advert to approve before the ad was placed. As such the advertisement was unseen by myself until I read the magazine and as such includes a number of glaring errors. Firstly our logo (as seen above) is not a sports car with flashing lights and safety barrier?.[sic] Furthermore the phone number is a private number and therefore unattended during the day and the address is a private residential address and not a business address. Finally Site Guard is incorrectly spelt, ‘Sight’.
Unfortunately as I did not authorise the advertisement and as it includes misinformation I refuse to accept any liability for the advertisement and therefore the account.
If you could forward any paper work where I have authorised the advertisement, it would be greatly appreciated.”
(Emphasis added)
153 In mid April 1999 Mr Warring received a second invoice and approximately a week later he sent another fax dated 2 June 1999. This fax was not in evidence, but Mr Warring deposed that he “reiterat(ed) what (he) had stated in my first fax to him of 15 March 1999”.
154 Around late May 1999 Mr Warring received a third invoice which for some reason was for $185 instead of $295. On 2 June he sent another fax and mailed a letter. This is in substantially the same terms, except that it commences with the sentence “Please note I faxed your organisation on the 16th March and replied by mail mid April”. Again the letter is substantially the same, apart from a reference to the change in amount. In particular the largest paragraph, commencing “It is my understanding…”, remains the same.
155 Around the end of June 1999 he received another invoice, again for $185, stating that if payment was not sent the matter would be referred to TCS. On 30 June Mr Warring sent another fax. The main paragraph is somewhat different from the earlier two. It reads [CB 583]:
“As I stated in my previous letters I gave no authorisation for the advertisement either in writing or otherwise. The advertisement was first sighted when I received the On Service magazine on the 15th March. The advertisement includes a number of glaring errors. Firstly our logo (as seen above) is not a sports car with flashing lights and safety barrier?. [sic] Furthermore the phone number given is a private number and therefore unattended during the day and the address is a private residential address not a business address. Finally Site Guard is incorrectly spelt, ‘Sight’.”
156 In examination-in-chief [T 219] Mr Warring added the fact that he said in the telephone conversation that the business was in partnership and that he would have to talk to his business partner. This was something not mentioned in his affidavit or in his earlier statement to the Commission.
157 In cross-examination he said “Well I can’t say absolutely that I did mention it” [referring the matter to the partner]. Later in the cross-examination he said that he did “clearly remember talking to my partner at the time about it”.
158 He received the draft advertisement in the mail but cannot recall receiving the covering letter. When he got the draft he “basically skimmed the information that (he) had and put it aside”. However he kept the draft ad for some time. He is no longer in the security business. When asked why he removed from the third letter the sentence “I believed I would be sent a copy of the advert to approve before the ad was placed”, he said that he was “basically cutting down the length of the correspondence to get it into one page”.
159 He believed that for a valid contract to put the advertisement in he would need to sign something.
160 In his evidence Mr Hassett said that he spoke to Mr Warring who said his business had just started up. He was attracted to the proposition of advertising because his business was new and because of the market the magazine was going to. He gave Mr Hassett an unusual amount of material. Mr Hassett produced five pages of notes. These contain much detail about the business, although not a mobile phone number. Mr Warring said that he had a logo. Mr Hassett told him “If you want to use the logo by all means send it in to us. If you don’t, we will supply one for you”. Also he said to Mr Warring “Please check the draft over very carefully and if you want to make any alterations or additions just make the changes and send it back within seven days”. Mr Hassett said there was never any mention by Mr Warring of a business partner. Quite often customers will say that they have to talk to their wife or their husband or business partner and in those cases he would ring back. This did not happen with Mr Warring. As to the logo, if Mr Warring had specifically wanted to have his logo the advertisement would have been held in abeyance until Mr Hassett received it.
161 Mr Hassett filled out an advertising order form with size of ad ¼ and cost $295. Draft was noted “yes” and a note made, “Ask for logo – mention will print in prime spot in front”. He sent a draft which contains an advertisement in the form as published and has the note “NB: Kindly forward logo asap. Ad to be printed in prime position in front of publication”.
162 Mr Warring’s late recollection of what would be an important matter, his reference to the business partner, does not encourage confidence in his evidence. Perhaps more important though is the removal from the third fax of the sentence asserting his belief he would be sent a copy of the advertisement for approval. His explanation that he was cutting down the length of the correspondence to get it onto one page is simply untrue. The first two versions are quite comfortably accommodated on one page. The fax is obviously from a word processor. An indicator of this is that the question mark after the words “safety barrier” in each version is mistakenly followed by a full stop. I conclude that Mr Warring consciously removed the critical sentence because he had come to realise it was not true. I accept Mr Hassett’s version, supported as it is by his internal documentation. I think Mr Warring did authorise the advertisement and was too busy to check the draft properly and was annoyed when it came out with errors.
Section 64(2A) charges: The Commission’s primary case
163 The critical element in these charges is whether the advertising services for which the defendants asserted a right to payment were unsolicited. Counsel for the defendants conceded, correctly in my view, that the Commission only had to establish this fact objectively. This is because of the reasonable cause to believe element, the burden of proof of which is on the defendant: s 64(9)(a). Thus the Commission did not need establish mens rea: Darwin Bakery Pty Ltd v Sully (1981) 36 ALR 371 at 376; He Kaw The v The Queen (1985) 157 CLR 523; Chief of General Staff v Stuart (1995) 58 FCR 299.
164 “Unsolicited services” are defined by s 4(1) to mean “services supplied to a person without any request made by him or on his behalf”.
165 If, as Mr Hassett says, all of the complainants agreed in the telephone discussion with him to have an advertisement published for a stated price, then plainly enough there would have been a request for that service. For the reasons already stated, I am not satisfied beyond reasonable doubt in the case of any of the complainants that such an agreement was not reached.
Section 64(2A): The Commission’s alternative case
166 At a late stage in the proceeding, indeed after counsel for the defendants had made her final submissions, counsel for the Commission put forward an alternative basis for conviction. He contended that even if Mr Hassett’s version were accepted there was no “request” because no contract had been concluded in the telephone conversations. This was, counsel said, because an essential term necessary for the completion of the agreement, namely the form and content of the advertisement, had not been agreed upon. Counsel referred to Toyota Motor Corp Australia v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 and Alpine Hardwoods (Australia) Pty Ltd v Hardys Pty Ltd [2001] FCA 1876. Further, counsel said, Mr Hassett’s standard form of draft advertisement with its deeming clause could not create a contract because an offeror cannot deem the silence of the offeree to constitute consent. He referred to the old case of Felthouse v Bindley (1862) 11 CB (NS) 869.
167 I do not accept this argument. In the first place, the existence or otherwise of a binding contract is not relevant to the offence created by s 64(2A). The definition of “services” in s 4(1)
“… includesany rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:
(a) a contract for or in relation to:
(i) the performance of work (including work of a professional nature), whether with or without the supply of goods;
(ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction.;
(b) a contract of insurance;
(c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or
(d) any contract for or in relation to the lending of moneys;
but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.”
(Emphasis added)
168 It will be seen that “services” is a very wide concept and rights provided etc under contract are but a subset of that concept. The term “request” is not defined in the TPA but interestingly enough the primary meaning given by Macquarie Dictionary is one which has a distinctly non-contractual flavour. That meaning is “the act of asking for something to be given, or done, esp as a favour or courtesy; solicitation or petition: a dying request”.
169 To test the proposition advanced, let it be assumed a complainant provides a clear request, in writing and signed, for the provision of services. The defendant asserts a claim for the agreed price, but the complainant is under the age of majority and so the contract is not binding (the services are not necessaries). It would be a strange result if this constituted a contravention of s 64(2A).
170 Secondly, even if a binding contract is essential before services can be said to be not “unsolicited”, there was on Mr Hassett’s version a binding contract in each case. As is stated in Chitty on Contracts: General Principles (25th ed) at par 113:
“… an agreement is not incomplete merely because it calls for some further agreement between the parties. There can be no doubt as to the commercial convenience of this rule. Businessmen often intend to make agreements binding in principle without being able at the time precisely to settle all the details. For example, contracts of insurance may be made ‘at a premium to be arranged’ when immediate cover is required but there is no time to go into all the details at once: such agreements are perfectly valid and a reasonable premium must be paid.”
(emphasis in original)
171 It could be hardly said that the sort of agreements involved in the present case, for the publication of a simple advertisement, involve a novel or complex commercial undertaking dependent on factors “incapable of being readily valued according to pre-existing or reasonably ascertainable external standards”: see Carter and Harland, Contract Law In Australia (3rd ed), at par 268; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd [1992] 27 NSWLR 326 at 334. But in truth the present agreements were not ones in which there were matters left outstanding to be negotiated. The essential term was that CGP would publish an advertisement in the form of the draft to be supplied or, at the option of the customer, in such amended form as the customer notified within seven days of receipt of the draft. Thus there was no uncertainty. The point as to assent by silence fails because the offer was not the draft advertisement. There had already been a concluded agreement in the telephone conversation and the draft agreement was part of the CGP’s performance of that agreement.
172 Accordingly charges 1 to 41 will be dismissed. The reasonable belief element does not arise for consideration.
Section 58(b) charges
173 The charges have already been summarized: see [9] to [11] supra. The complainants were as follows:
|
Charge |
Date of Receipt |
Complainant |
Amount |
|
42 |
25/10/1999 |
Rudolph Harold Steiert |
$185.25 |
|
43 |
13/9/1999 |
Christopher Darren Ryan |
$185.25 |
|
44 |
14/9/1999 |
Susan Margaret Mace |
$185.25 |
|
45 |
13/9/1999 |
Scott Andrew Carter |
$185.25 |
|
46 |
12/10/1999 |
Dennis Edward Knowles |
$195.00 |
The Commission’s case
174 Mr John Paul was the Tasmanian State Secretary of the RSL from 1987 until December 1998. This was a full time salaried position. His duties included organising production of the RSL’s annual On Service magazine which had been published since the Second World War.
175 In 1996 the then publisher of On Service declined to continue in this role. Mr Hassett was recommended to the RSL. Mr Paul met Mr Hassett at the RSL Headquarters in Hobart in December 1996 and gave him verbal authority to produce the 1997 edition. There was no written agreement. The terms agreed upon were that Mr Hassett and his company CGP would produce 1200 copies of On Service for members at no cost to the RSL by Anzac Day 1997, that the RSL would supply him with the bulk of the editorial content and photographs for the magazine and that Mr Hassett would arrange advertising and retain all revenue derived from advertising and would deliver the 1200 copies to the RSL Headquarters.
176 The 1997 edition was not produced by Anzac Day 1997 and was not available until September 1997.
177 Mr Paul did not give Mr Hassett permission to use the RSL logo on correspondence and invoices although he may have given Mr Hassett a bromide with the RSL logo on its back in 1997 at his request or he may have been provided with it by the previous publisher.
178 In relation to the 1998 edition Mr Hassett came to see Mr Paul at the RSL Headquarters on 23 January 1998. He asked about the feedback to the 1997 edition. Mr Paul told him the feedback from members and the State Executive was positive. Mr Hassett said that he would like to produce the 1998 edition of On Service and Mr Paul gave him verbal authority to do so on essentially identical terms to that of the previous year. There was no written agreement. Again there was delay. The 1998 edition was meant to come out at September 1998 but did not come out until around April 1999.
179 Mr Paul deposed that he did not give Mr Hassett any ongoing authority to produce further editions after he had produced the 1998 edition. He became aware of complaints from advertisers around September 1998 in that advertisers complained they had paid for advertisements but they were still waiting for the 1998 edition to appear. Mr Paul retired as State Secretary on 15 December 1998 and was succeeded by Mr Tony Scott. However, Mr Paul continued as Assistant State Secretary.
180 Mr Paul’s only further connection with the matter was that he was present in April 1999 at the RSL Headquarters when Mr Hassett came into the Board Room and spoke to Mr Scott. Mr Wally Sutherland, President of the State Branch, was also present. Mr Hassett asked for feedback as to the 1998 edition. Mr Sutherland said that the magazine looked “pretty good” and Mr Paul agreed. Mr Paul, however, said that one photo was on the wrong story and a photo was missing from another story and suggested that Mr Hassett should give a draft copy of the magazine to the RSL to proof read before it was published. Mr Hassett said that he was unsure if he would publish another edition of On Service because of the economic climate. He said it had been hard to chase advertisers for the 1998 edition and this was one of the reasons why it had been delayed. He said he would get back to the RSL and let them know his decision. Mr Hassett then left.
181 Mr Scott commenced as State Secretary of the RSL on 11 January 1999. He deposed [CB 543] that after having taken over as State Secretary he was formally introduced by Mr Paul to Mr Hassett. Mr Scott understood that the arrangements for the publishing of the magazine On Service were as previously stated by Mr Paul. The magazine was published in early March 1999. In early April of that year Mr Hassett came to headquarters and asked about the RSL’s general reaction. Mr Scott said there seemed to be no problems although not all sub-branches had received their copies. There was not a complete feedback. Mr Hassett spoke in general terms about the next On Service publication and Mr Scott told him to come back and see him again in July 1999 when the RSL would make a decision whether to go ahead.
182 Thereafter Mr Hassett visited Headquarters about twice a month until July to enquire if the RSL had yet decided to go ahead with the publication and each time Mr Scott told him to wait until July. Following the distribution of the 1998 issue Headquarters received some telephone calls from people complaining they were billed for advertisements which they had not authorised. Mr Scott and others at RSL told them they should contact the publisher CGP but at that time he “did not consider that this was a significant problem”. However, in June 1999 Mr David MacFie of the Commission contacted him and told him the Commission had concerns about Mr Hassett’s conduct in relation to some of the advertising appearing in On Service.
183 In July 1999 Mr Hassett again came to see Mr Scott about publishing the next issue. Mr Hassett said he was aware of positive feedback from RSL members of the 1998 edition and was expecting to get the go ahead for the next edition. Mr Scott told him that no decision had yet been made. Although apparently he did not tell Mr Hassett this, Mr Scott was considering the advice received from the Commission and was of the view he should consult with the RSL State Executive. Mr Hassett said he had got thirty people lined up for the next edition. Mr Scott asked if he would give a list of them. Mr Hassett said he didn’t think his solicitor would like that. Mr Hassett appeared to be getting agitated at not getting the go ahead and said that if the RSL were “going to can this” he would have to go into liquidation.
184 Mr Scott “wanted to stall” Mr Hassett until he had consulted with the State Executive. He told Mr Hassett that he was not in the position to make the decision himself but would put the matter to the Executive at their meeting on 20 August. When Mr Hassett complained this was too long to wait Mr Scott told him that he would speak to the Acting State President and would phone Mr Hassett back on the Monday.
185 Shortly afterwards Mr Scott met Mr MacFie who showed him invoices that CGP had sent out for advertising in On Service with the RSL logo prominently displayed. Mr Scott informed the Acting State President, John O’Connor, and Mr Paul. The latter told him that this was the first he knew about Mr Hassett’s use of the RSL logo and that Mr Hassett had never been given permission by the RSL to use its logo in this way. Mr Paul appeared to Mr Scott to be “most displeased” about the use of the logo.
186 On Monday 26 July 1999 Mr Scott phoned Mr Hassett and told him the RSL would not agree to him publishing the next edition of On Service. Mr Hassett was most upset. Mr Scott told him that he did not have the authority to use the RSL logo on his invoices. Mr Hassett claimed that “John Paul knew all about it”. Mr Hassett said words to the effect that he would be putting the matter in the hands of his solicitors and Mr Scott said the RSL would also be seeking legal advice. Mr Scott then drafted a letter dated 11 August 1999 for signature by Mr O’Connor which was sent to Mr Hassett. It was in these terms [CB 548]:
“Dear Tony
Subject: On Service
I wish to inform you that the RSLA Tasmanian Branch will not be going ahead with a publication of ‘On Service’ magazine this year. I take this opportunity to thank you for the other publications.
As my State Secretary, Tony Scott, informed you earlier in the year he would meet with you in July 1999 to discuss whether or not we would go ahead with a publication for 2000. The State Executive has decided that we will not go ahead with ‘On Service’ at this time and we will look at the situation again in the future.
A concern to the Executive is the use of the RSL logo on your invoices being sent out to your clients. At no stage were you given permission to use the RSL logo in this way and I request that you immediately stop using it on your correspondence.
I thank you for your assistance in the past and wish you well.
Yours sincerely
John O’Connor
A/State President”
187 It is to be noted that, notwithstanding what was said in the letter, on Mr Scott’s own account the matter had not been referred to the State Executive. In any event, in response to their letter the RSL received a letter dated 31 August 1999 from solicitors Trezise Partners in these terms [CB 550]:
“Re: “On Service” Mr Tony Hassett
I have been consulted by Mr Hassett and write in response to your letter to him of the 11th August 1999.
According to Mr Hassett, confirmation of his engagement to proceed with the publication of the next issue of ‘On Service’ was confirmed by your Mr Tony Scott last February. Mr Hassett proceeded on that basis until the receipt of your letter of the 11th August 1999 which purports to terminate his engagement. Quite apart from the considerable work already undertaken, Mr Hassett now stands to lose net revenue which he estimates at $28,300.00, made up as follows
|
Gross Revenue from Publication |
$47,450.00 |
||
|
Less |
|||
|
Production expenses |
|||
|
telephone |
$4,000.00 |
||
|
postage |
$1,000.00 |
||
|
artwork |
$2,000.00 |
||
|
layout |
$2,000.00 |
||
|
typing |
$2,000.00 |
||
|
printing (3,000 copies) |
$5,000.00 |
$16,000 |
|
|
$31,450.00 |
|||
|
Less 10% allowance for bad debts |
$3,145.00 |
||
|
Balance (rounded down) |
$28,300.00 |
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If it is your intention to terminate Mr Hassett’s engagement, please confirm this in writing and provide me with details of any proposal which you might have to compensate Mr Hassett for the losses which he will sustain.
Mr Hassett has also asked me to emphasise that he holds copyright on the design of the greater majority of the advertisements which appeared in the last issue of ‘On Service’ and on [sic] the layout of the publication itself. Accordingly, they should not be reproduced without his permission. If you wish Mr Hassett to identify the particular advertisements, please advise me and I will have Mr Hassett attend to that as quickly as possible.
I await your reply.”
188 On 29 September 1999 the RSL’s solicitors Murdoch Clarke wrote to Trezise and Partners as follows [CB 400]:
“On Service – Mr Tony Hassett
We act for the RSL and have to hand a copy of your letter to our client of the 31st August with instructions to reply.
We are instructed that your client went to see Mr Scott in February with the view to acting on our client’s behalf in publishing the magazine this year. He was told that the RSL did not wish to make a decision at that time and that your client should contact them again in July. This was done and your client was informed that our client was not sure whether they wished to go ahead with the publication and two days later that decision was made firm in our client’s letter to your client. There is no engagement which has been broken and accordingly our client denies all liability.”
189 Neither CGP nor Mr Hassett published any further edition of On Service.
190 On 23 June 2000 Mr Hassett was examined under s 155 of the TPA by counsel on behalf of the Commission. The following exchange took place [CB 306]:
“Counsel: And you recall getting a letter dated 11 August 1999?
Mr Hassett: Yes, I do, and it was at that point on legal advice that I stopped pursuing any more advertising.”
Later he was asked [CB 348]:
“Counsel: Now you have said to me this morning that when you were told in July by Mr Tony Scott that you weren’t to publish On Service you thought that you might – they might have changed their mind, the RSL.
Mr Hassett: I had hoped yes.
Counsel: Yes, but that hope disappeared with the letter of 11 August?
Mr Hassett: Yes it did. Yes.”
Defence on s 58(b) charges
191 In essence the defence was based on what was said to be Mr Hassett’s experience with the CWA. He said that at an earlier stage the CWA had attempted to terminate the agreement for publication of Country Women Calling but had relented after Mr Hassett’s solicitors threatened proceedings. Mr Hassett said that he had the same expectation with regards to the RSL.
192 Mr Hassett said in evidence that as soon as he had finished with the 1997 edition of On Service (which would have been in September 1997) and after speaking with the Secretary of the CWA he commenced on the second edition of Country Women Calling.
193 Subsequently Mr Hassett received a letter from the CWA dated 20 March 1998 alleging that he had overstated the circulation and demanding that he publish in all Tasmanian newspapers the total terms and conditions of their agreement. Mr Hassett had not previously had any problems with the CWA.
194 On 24 March 1998 Piggott Wood and Baker on behalf of Mr Hassett and CGP wrote to the CWA asserting that in mid 1995 there had been an agreement between it and Mr Hassett for two editions of the magazine. The first was published in mid 1996 and the second was agreed to be delayed until March 1998. The letter stated that Mr Hassett had advertising sales amounting to about $30,000, 40 per cent of which had been paid for. It was said that the CWA had not provided the promised editorial material. There were at most two complaints from advertisers and these had been resolved. It was stated that “it appears to us that the sensible course to follow is that you promptly complete the editorial, forward it to our client and it will promptly publish the magazine in accordance with the agreement.” There being no response, this was followed up by a letter of 31 March. Amongst other things it was said [Ex 54]:
“If we do not have confirmation from you by the close of business on Friday 3 April that your client will produce the editorial material for the journal our client will institute proceedings in the Supreme Court against yours seeking an appropriate remedy. In our view our client is likely to be considered your client’s agent by the advertisers. Therefore if the publication does not proceed you will not only be faced with our client’s substantial damages claim but claims by the advertisers in respect of the non-publication of the journal.”
195 The CWA’s solicitors Clerk Walker & Stops replied on 15 June asserting that their client had provided adequate editorial material, which they detailed in the letter. Piggott Wood & Baker replied on 16 June disputing this and assuring the CWA’s solicitors that their client had “absolutely no wish to try and stall the publication”. Clerk Walker & Stops replied on 22 June again asserting that sufficient material had been supplied. The letter concluded [Ex 57]:
“As the source of the material has been with your client now for some time, our client now requires your client to proceed in line with the previous assurances given by him in relation to the preparation and publication of the magazine.”
196 On 3 September Clerk Walker & Stops wrote again complaining that two and a half months had passed since their last letter and the publication had not been released and that their client continued to receive “queries from irate advertisers”. The letter asked whether the publication had been printed and when copies would be available. A similar letter was written on 9 September. Piggott Wood & Baker replied on 24 September stating their instructions were that the publication was at the printers and would be completed within three weeks. On 27 October Clerk Walker & Stops wrote noting that the publication had not yet been provided. On 2 November Piggott Wood & Baker wrote advising that the agreed 1200 copies had been delivered. The letter said that the six months delay between December 1997 and June 1998 was solely due to the failure of the CWA to provide the material requested by their client.
197 Turning to his dealings with the RSL, Mr Hassett said in evidence that he met Mr Scott twice in late 1998 and then again in early March 1999 after On Service had been published. Mr Hassett asked him at that stage what he wanted to do about the next edition and Mr Scott said that he wanted to see what sort of feedback they got back from members and Mr Hassett should leave it for a couple of weeks and come back and see him then.
198 Mr Hassett was embarrassed about the lateness of the magazine, which had been due in October or November 1998. This was due to the CWA magazine holding him up. Then in April 1999 he went again to the RSL and spoke to Mr Scott. He said he had other magazines and he really wanted to know about the next edition. Mr Scott said “Yes we want to go ahead with it. I don’t see any problem, everybody likes the magazine”.
199 Mr Hassett saw Mr Scott and Mr Paul briefly at the Anzac Day ceremony and again in early May 1999. He suggested increasing the pages from eighty to one hundred but they were not interested. They expressed concern about the cost of postage. The next contact was in July at RSL Headquarters. By this time Mr Hassett had started work on the magazine and had about fifty to sixty advertisers. He saw Mr Scott on his way out and said [T 452]:
“I just want to let you know I am well under way and I’ve got just probably a bit over a third of the volume of the advertising.”
200 Mr Scott looked at him “with the blankest look on his face”. Mr Hassett said “Tony I have got the distinct feeling there is something wrong”. Mr Scott said that he was not going to talk about it. He told Mr Hassett to come back and see him next Friday.
201 When Mr Hassett arrived on the Friday Mr Scott said to him he had never given Mr Hassett permission in the first place. They argued about that. Mr Hassett asked that he put it in writing. A couple of days later Mr Scott rang and said “Yes, if you want it in writing well I will put it in writing”.
202 Mr Hassett received the RSL letter of 11 August 1999. On receipt of this letter he was shocked and devastated. He went to his solicitor. He believed he was certain he would be able to complete it and that the RSL would relent under pressure because as far as he was concerned he had a legal contract with the RSL. He said [T455]:
“This was the second time I‘d had something like this happen to me and the first time I was able to complete in the case of the CWA I was able to complete that and I believed that the RSL would relent in the same way under threat of strong legal action and allow me to complete the job.”
203 He said he believed that the RSL was “not in real good financial shape”. He believed the best way to handle it was to seek compensation from them. His intention in asserting copyright was that he would just strengthen the position, that the RSL would not proceed with anybody else but in fact they would allow him to continue publication.
204 Mr Trezise sent him a copy of Murdoch Clarke’s letter of 29 September. When he received this letter he was “very very disappointed and upset”. He saw his solicitor and the instructions “were to push on with the threat of legal action” with the purpose of allowing him to finish the magazine. He said he already had the experience of the CWA and they had relented and he relied on that experience and believed that they would relent and allow him to continue as well.
205 But Mr Hassett’s state of mind subsequently changed in November. He said the correspondence between the solicitors was moving too slowly and I thought then “No, it’s just not going to happen”. He received and banked the five cheques the subject of the charges. He received another cheque dated 3 December 1999 from Express Concrete (Tas) Pty Ltd in favour of the RSL for $185.25. He did not bank that cheque because by then he did not believe he could have finished in time.
Conclusion on s 58(b) charges
206 The Commission has to establish beyond reasonable doubt that there were, at the time of acceptance of the payments, reasonable grounds of which the defendants were aware, or ought reasonably to have been aware, for believing that they would not be able to supply the advertising services for which the payments were made.
207 It is not necessary to resolve disputes as to the versions of Mr Hassett on the one hand and Mr Scott, Mr Paul and Mr O’Connor on the other.
208 The RSL’s letter of 11 August 1999 was the plainest possible indication that CGP would not be publishing the next issue of the magazine. At the s 155 examination (when he was represented by counsel) Mr Hassett admitted that by that stage all hope had disappeared.
209 Mr Hassett did admit in evidence that hope did disappear when he received the Murdoch Clarke letter of 29 September. Quite apart from the problem of his clear admission at the s 155 examination, it is to be noted that the cheques in respect of two of the charges were received after that letter.
210 An examination of Mr Hassett’s dispute with the CWA does not support his case. So far from using threats of legal action to turn the CWA back from a threatened cancellation of the contract, Mr Hassett was attempting to deal with the CWA’s complaint that he was not producing their magazine as promised.
211 It is true that the letter from Trezise Partners does not accept the RSL’s termination. It speaks of the RSL “purport (ing) to terminate his engagement” and asks for a confirmation in writing “if it is your intention to terminate Mr Hassett’s engagement”. Nevertheless, as any competent lawyer would expect, no threat is made of seeking an order for specific performance.
212 At best Mr Hassett might have had some faint hope that the RSL might relent (assuming his s 155 admission can be ignored), but in the circumstances that would not be reasonable.
213 But more to the point, the critical element of s 58(b) is not that the defendant accepts payment without a reasonable belief that it will be able to supply services. Rather, the prosecutor has to establish, objectively as at the time of acceptance of payment, facts and circumstances which constitute reasonable grounds for believing that the defendant will not be able to supply the services. The relevant belief is not the defendant’s belief. The defendant may not in fact be aware of the facts and circumstances constituting the reasonable grounds; it is sufficient if it ought reasonably be aware of them.
214 Further, reasonable grounds for believing that something will not happen in the future is not the same thing as scientific certainty.
215 In the present case I am satisfied that the RSL’s letter of 11 August 1999 did provide reasonable grounds for believing that the defendants would not be able to provide advertising services in any future edition of On Service. Such a finding is not necessarily inconsistent with the defendants honestly nurturing a forlorn hope that the services might yet be delivered.
216 I therefore find the s 58(b) charges proved.
Orders
217 In both informations charges 1 to 41 are dismissed. In respect of charges 42 to 46, questions of penalty and costs will be adjourned to a date to be fixed.
218 I wish to express the Court’s grateful thanks to counsel for the defendants, Mrs Olivia McTaggart, who appeared under the Court’s Pro Bono scheme. This was a substantial case and would have been virtually impossible to try in any satisfactory way without her competent presentation of the defence case.
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I certify that the preceding two hundred and eighteen (218) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. |
Associate:
Dated: 22 July 2002
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Counsel for the Prosecutor: |
Mr G Livermore |
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Solicitor for the Prosecutor: |
Director of Public Prosecutions (Cth) |
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Counsel for the Defendants: |
Mrs O McTaggart |
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Date of Hearing: |
15-19 April, 11-13 June 2002 |
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Date of Judgment: |
22 July 2002 |
