KEY POINTS:
A Waihi farmer who has widely promoted and sold a soil fertiliser described by a district court judge as "snake oil" has been fined $60,000 and his company fined $200,000 on charges brought by the Commerce Commission under the Fair Trading Act.
Ewan Campbell and Probitas Ltd, found
guilty earlier this year of making false and misleading claims, must also pay $12,499 in costs.
Campbell was ordered to produce financial statements to the court before today's scheduled sentencing.
He failed to do so, nor did he turn up before Judge Russell Callander in Tauranga District Court, indicating that he did not accept the court's jurisdiction.
Although he went on to sentence Campbell in his absence, Judge Callander wondered aloud about the convicted man's mental state.
The judge said he had received two "disturbing" documents from Campbell, the second arriving just yesterday.
In the first a "Notice of Claim of Right," Campbell referred to himself variously as the "representation, under-writer, holder in due course and fictitious entity".
Judge Callander said it appeared to be a request that he dismiss and/or reverse all the charges against the company and himself.
"It then purports to give notice to the Commission, its employees and a witness that they had 30 days to dispute the claim of right. In default, Mr Campbell claims $1 million 'with the intent of bettering his society, himself, his wife and his progeny' and 'without ill-will, malice, aforethought, frivolity or vexation'," said the judge.
The second document was headed "Notice of Non-Attendance."
"It records the fact that nobody has responded to his notice of claim -- although I observe the 30-day period of notice did not expire until June 15," Judge Callander said.
"These documents worry me," said the judge."I wonder if his mental health may need checking out."
He had contemplated adjourning the case for Campbell to be assessed by health professionals under the Mentally Impaired Persons Act but did not think it applicable because the penalty was a fine only.
Campbell did not have to be present for his sentencing and the judge could not issue a warrant for his arrest.
Prosecutor for the Commerce Commission, Alysha McClintock, said Probitas was still being "actively marketed" and Campbell had indicated he intended to apply for a world-wide patent.
The product was based on a silica conditioner that Campbell invented, marketed and distributed. He claimed it activated the electrical and magnetic processes in the soil, releasing blocked up nutrients otherwise unavailable to plants -- something no-one else had discovered, she said.
"Maybe he truly believes that."
After drawn-out court procedures where Campbell represented himself, Judge Callander found that Probitas promotions had been proven beyond reasonable doubt to have been misleading and deceptive.
An expert witness told the court there was no scientific basis for the way Probitas was supposed to work.
Campbell, who had no scientific qualifications, had not sought to have it properly tested at any stage, said Ms McClintock.
In her submissions, she said members of the farming community had been "hoodwinked" by the so-called soil enhancing product.
"It smacks of a get-rich-quick scheme and a sham."
An aggravating feature was the "huge" potential for harm. Farmers could lose hundreds of thousands of dollars a year of their fertiliser budgets on an "undisputedly expensive product" which was less effective than others on the market.
With the New Zealand fertiliser industry having an annual turnover of around $1 billion, the potential for loss was enormous -- and so was the potential for financial gain to Campbell, Ms McClintock said.
In a deregulated market, farmers were very vulnerable to claims such as those for Probitas. Even if the product had 1 per cent of the fertiliser market, it would mean an annual turn-over of $10m.
Judge Callander said it was a shame the sentencing exercise had to be one-sided because there were no submissions from Campbell.
"But so be it. He has made that election and must live with the consequences of not advancing his side."
The judge agreed that Campbell and his company's "deliberate, deceptive marketing" had significant potential to harm farmers.
Many people who were duped did not come forward to complain because they were often dumbfounded by what had happened and felt foolish for being "sucked in."
Judge Callander said he would spread the fines imposed across the range of charges.
The company was convicted of 11 counts of breeching the Fair Trading Act and Campbell personally of five.
Campbell has notified the court he will appeal. Meanwhile, he and Probitas face 16 further charges -- eight against each of them -- relating to video promotion of the product.
The judge today set a status hearing date of August 31.
- NZPA
