BMW Australia Limited v Australian Competition & Consumer Commission [2004] FCAFC 167

FEDERAL COURT OF AUSTRALIA

BMW Australia Limited v Australian Competition & Consumer Commission [2004] FCAFC 167 TRADE PRACTICES – product safety – prescribed safety standard – vehicle jacks – standard prepared by standards body and proclaimed by gazettal – standard required 'Warning: do not get under a vehicle that is supported only by a jack: use vehicle support stands', or words to the same effect, to be marked on jack and similar warning in written instructions – whether 'Warning: do not get bodily under a vehicle that is supported by a jack' amounted to words to the same effect – vehicle not suitable for use of vehicle support stands unless raised by a trolley jack – whether prescribed warning ambiguous or absurd – whether prescribed safety standard invalid – whether standard required to satisfy test of being reasonably necessary to prevent or reduce risk of injury – form of orders – whether declaration, prohibitory injunction, audit of trade practices compliance program, recall of products and advertising were appropriate orders WORDS AND PHRASES – 'to the same effect' Trade Practices Act 1974 (Cth) ss 65C, 65E, 80, 86C Trade Practices Amendment Act (No. 1) 2001 (Cth) Federal Court of Australia Act 1976 (Cth) s 23 Australian Competition and Consumer Commission v BMW Australia Limited [2003] FCA 727, (2003) ATPR 41-944 reversing Hamlyn v Norman Ross Stores Pty Ltd (1985) ATPR 40‑514 referred to Trade Practices Commission v BMW Australia Ltd (1985) ATPR 40‑620 referred to Australian Competition & Consumer Commission v Francis [2004] FCA 487 approved Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75, (2003) 203 ALR 217 followed Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 1387, (1999) 95 FCR 114 referred to Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881, (2003) ATPR (Digest) 46-241 referred to Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548, (2003) ATPR (Digest) 46-230 referred to Australian Competition & Consumer Commission v Econovite Pty Ltd [2003] FCA 964, (2003) ATPR 41-959 referred to Australian Competition and Consumer Commission v Rural Press Ltd [2001] FCA 1065 at [33], (2001) ATPR 41-833 referred to Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213, (2002) 118 FCR 236 referred to