CATCHWORDS Trade practices - prosecution for offences against Part V of the Act - plea of guilty - imposition of fine - factors to be taken into consideration. Trade Practices Act 1974; s. 79 EVALINE HILL HAMLYN v. MARJORIE VERA BRANDON G 378 of 1983 G 379 of 1983 G 380 of 1983 G 381 of 1983 G 382 of 1983 G 383 of 1983 G 384 of 1983 LOCKHART J. 2 April 1984 Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY we GENERAL DIVISTON No. G 378 of 1983 No. G 379 of 1983 No. G 380 of 1983 No. G 381 of 1983 No. G 382 of 1983 No. G 383 of 1983 No. G 384 of 1983 MARJORIE VERA BRANDON QRDER JUDGE MAKING ORDER: Lockhart J. DATE OF ORDER: 2 April 1984 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. In matter G378 the defendant pay a fine of $750.00; 2. In matter G379 the defendant pay a fine of 3750.00; 3. In matter G380 the defendant pay a fine of 31,500.00; 4, In matter G381 the defendant pay a fine of $1,500.00; 5. In matter G382 the defendant pay a fine of $750.00; 6. Im matter G383 the defendant pay a fine of $750.00; ce 7. In matter G384 the defendant pay a fine of $1,500.00; 8. Marjorie Vera Brandon is to pay to Evaline Jill Hamlyn her costs of the proceedings. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON CORAM: LOCKHART J. DATE: 2 APRIL 1984 PLACE: SYDNEY wee ew No. G 378 of 1983 . No. G 379 of 1983 ~ No. G 380 of 1983 No. G 381 of 1983 No. G 382 of 1983 No. G 383 of 198? Me 3 344 67 1207 THE TRADE PRACTICES ACT 1974 EVALINE JILL HAMLYN and ~_ + MARJORIE VERA BRANDON REASONS FOR JUDGMENT LOCKHART J.: These are seven charges for offences against Pt. V of the Trade Practices Act 1974 ("the Act") brought against Marjorie Vera Brandon, the defendant. She has entered a plea of guilty to each of the charges. Four offences are against para. 53(a) of the Act which provides; "A corporation shall not, in trade or commerce. in connexion with the supply or possible suppiv er gceods or services or in comnexion with the promotion by any means of the supply of use of goods or services - (a) falsely represent that goods are of a particular standard, quality, grade, composition, styie or model or have had a particular history or particular previous use." The other three offences are against para. 62(1)(as which "62(1) A corporation shali not. in trade or commerce, supply goods that are intended to be used, or are of a kind likely to be used, by a consumer if the goods are of a kind - (a) in respect of which there 1s a prescribed consumer . product safety standard and which da not comply with that standard." All the offences concern the supply, in trade - OF os commerce, of children's night garments. The Minister duly" consented. ta the institution of the proceedings: s. 163.<-- Since 1978 it has been mandatory under the Act that children's night wear (sizes ranging from 0 to 14, i.e. covering children up to approximately 14 years of age) sold in Australia meet a certain flammability safety standard and be labelled with respect to fire hazard. The flammability standards are based on Australian Standard 1249 with variations and additions as referred to in Division 3 of Commonwealth Gazette number S& of i3 January i978. The labelling standards are based on AS1989 with a variation referred to in Division 3 of Commonwealth Gazette number Sil9 of 30 June 1978. The standards were declared by the Minister pursuant to sub-ss. 63A(1) and (2). The relevant provisions of AS51249 and AS1989 are set out and discussed fully by Neaves J. in Hamivn v. Moppet Grange Ptv. Limited, unreported, 15 Feoruary L934, s0 I need not rater t9 them in any caetail. The labéiling standaras requirs darments to be labelled to reflect three cateqories of risk. Night wear which does not comply with any of the three categories cannot be legally supplied. Category 1 garments are the safest; i.e. of "the. low white background which says ""Iow fire danger". - er Category 2 garments are children's night clothes designed to reduce fire hazard and they must bear a red printed label on a white background which says: "Designed to reduce fire danger -— flammable fabric." Category 3 garments are garments not classified as category 1 or 2 and they must bear a large black printed label on a ced background which says: "Warning - high fire danger - keep away from fire." The iabel also has a fire danger symbol. The defendant 1s charged: (a) that "between 1 January 1983 ana 1 April 1983 at Svdney ... Cshel did commit an offence within the meaning of section 79 of the Trade Practices Act 1974 by contravening section 53(a) 1n the said Act in that {Cshel, trading as 'Brandons Fashion Imports', did. in trade or commerce between the Stace of New South Wales and the State of Victoria in connexion with the supply of goods, namely children's night clothes, falsely represent that the said goods were of a vsartizuiar standard. "202 im mct7e nts a2an Darts 1 OR tet ' £ = Clotnes Des:aned to R e rire(b) that "on 31 March 1983 at Melbourne ... Eshel did commit an offence within the meaning.of section 79 of the Trade Practices Act 1974 in that Cshel, trading as 'Brandons Fashion Imports', did, in trade or commerce between the State of New South . _. Wales and the State of Victoria in connexzon with . the supply of goods, namely children's night clothes. falsely represent that the said goods were : of a particular standard, namely that the said ww goods were in compliance with Australian Standard... - 1249, Parts L and 2-1976, Part 2, Children's Night- ~ Clothes Designed to Reduce Fire Hazard in - contravention of section 53(a) of the Trade _~ Practices Act 1974": G379 of 1983. ote meg (c) that "between 1 January and 93 April 1983 at Sydney .». Cshed, did commit an offence within the meaning or section 79 of the Trade Practices Act 1974 in that Cshel, trading as 'Brandons Fashion Imports' im trade or commerce between the State of New South Wales and the State of Victoria did supply goods, namely a children's night garment which was of a kind likely to be used by a consumer, being goods of a kind in respect of which there was a prescribed consumer product safety standard and which goods did not comply with that standard in contravention of section 62(1)(a) of the Trade Practices Act 1974": G380 of 1983. (d) that "between 1 December 1982 and 5 January 1983 at Sydney ... Csnel did commit an offence within the meaning of section 79 of the Trade Practice Act 1974 in chat CsheJ. trading as 'Brandons Fashion Imports', 1n teade or commerce between the State of New South Waies and the State of Victoria ira Ss i a Ce) (f) (q) S. supply goods, namely a children's night garment which was of a kind likely to be used by a consumer, being goods of a kind in respect of which there was a prescribed consumer product safety standard and which did not comply with that standard in contravention of section 62(1)(a) of the Trade Practices Act 1974": G381 of 1983. that "between 1 January and 12 July 1983 at Sydney --- ECshel did commit am offence within the meaning of section 79 of the Trade Practices Act 1974 by contravening section 53(a) of the said Act in that 'Cshed, trading as 'Brandons Fashion Imports', did, in trade or commerce between the State of New South Wales and the State of Queensiand in connexion with the suppiy of qoods, na meiy children's mnignc clothes, Yfalseiy represent tha they were cf 2 particular standard. namely that they were un compliance with Australian standard 1249 Parts 1 and 2-1976, Part 2- Children's Night Clothes Designed to Reduce Fire Hazard": G382 of 1983. that "on ll July 1983 at Brisbane ... [shel did commit an offence -withim the meaning of section: 79 ~- =. of the Trade Practices Act 1974 by contravening section 53(a) of the said Act, in that (CsheT, trading as 'Brandons Fashion Imports', did, in trade or commerce between the State of New South ~-* Wales and the State of Queensland in. connexion with. 0. the supply of goods, namely children's ~night ~ -= clathes, falsely represent that they were of are" particular standard, namely that they were in - compltance with Australiam Standard 1249 Parts I and 2-1976, Part 2, Childrens Night Clothes Designed to Reduce Fire Hazard": G383 of 1983. Wee that "between 1 January 1983 and 1 March 1983 at Sydney, ... Cshe] did commit an offence within the meaning of section 79 of the Trade Practices Act 1974 in that CsheJ, trading as 'Brandons Fashion Imports', in trade ar commerce between the State of New South Wales and the State of Queensland did supply goods, namely a children's night garment which was of a kind likely to be used by a consumer, being goods of a kind in respect of which there was a prescribed consumer product safety standard and which did not comply with that standard of section 62(1) of the Trade Practices Act 1974"; G384 of 1983. The charge in matter neo. G378. under para. 53(a) of the Act, concerns the representation made by the detendant when a 'Petit Bateau" children's night gown was supplied Sy che defendant to Pooh Bear's rouse of Malvern, Victoria on or about 27 January 1983. The label attached to the nidqht gown stated, "Designed to reduce fire danger - flammable fabric", 1.e. a label appropriate to category 2 garments. In fact no label was appropriate to this night gown because it came within none cf the The charge in matter no. G379. under vara. 53(a) of the Act, concerns the representation made by the defendant when the night gown referred to in matter no. G378 was supplied by Pooh Bear's House to an officer of the Trade Practices Commission on 31 March 1983 with the same label as that mentioned in matter now G378. The charge in matter no. G380, under para. 62(1)(a) of the Act, relates to the supply by the defendant to Pooh Bear's House on or about 27 January 1983 of a "Petit Bateau" children's night gown. The charge in matter no. G381, under para. 62(1)(a) of the Act, relates to the supply by the defendant to George's Australia Limited of Collins Street, Melbourne, on or about 29 December 1982, of a "Petit Bateau" children's night gown. akel The charge 1n matter no. G382, under sara. 53:a <fF ine ee ne eee ee Act, concerns the representation made by the defendant when a "Molli" children's night gown was supplied by the defendant to Appley Dapply of Bardon, Queensland during January or February 1983. The label attached to the night gown stated, "Designed to reduce fire danger - flammable fabric", a label appropriate to category 2 garments. In fact, no label was appropriate to this night gown as it fell within none of the three categories. The charge in matter no. G383, under para. S3ia) of the Act, concerns the representation made by the defendant when the night gown referred to in charge 382 was supplied by Appley Dapply to an officer of the Trade Practices Commission on 11 July 1983. the Act, relates to the supply by the defendant to Appley Dapply # of a "Molli" children's night gown during January or February 1983. A person who contravenes a provision of Part V of the Act, other than s. 52, is guilty of an offence punishable on conviction, in the case of a person not being a body corporate, by a fine not exceeding $10,000.00: para. 79(1)(a) of the Act. The defendant in partnership with her late husband, until his death on 18 January 1983, trading as Brandons Fashion Imports, imported "Petit Bateau" brand children's night garments ~aAz* aa ea 8. from France and "Molli" brand children's night garments from Switzerland. The defenaant and her late husband surpiied chose garments to retailers in Australia from their premises at Whale Beach. The defendant continued to carry on the business after the death of her late husband. She is assisted in the running of es oe rt ct "sy ce] Tne OQ4zirsss or an a a th = MAUGRISLS. & a rs] o n mM LS one of tne <veaqistéerec vropriestors of the susiz nams "Brandons Fashion Imports". On 24 April 1980, two inspectors from the New South Wales Department of Consumer Affairs visited the defendant's premises at Whale Beach where they warned the defendant's late husband about the need to comply with the New South Wales Consumer Protection (Safer Goods) Requlations in respect of night garments for children. That regulation is based 2 on the game Australian standards as are the prescribed standards under the Act. (AS51249 and. AS1989). The defendant was present during that visit by the two inspectors. On 4 and 7 March 1983, an officer of the Trade Practices Commission, Sydney office, examined "Petit Bateau" and ""Molli" brand children's night garments on display in two Sydney retail stores. The defendant was spoken to by telephone on 7 March and by letter date 9 March, and informed that the majority of those garments examined failed to comply with the tlammability labelling standards for children's nightwear under the Act. Enclosed with the letter were, inter alla, &@ copy of the Commonwealth of Australia Gazette $8 of 13 January 1978 declaring the flammability safety standards for children's night garments, a copy of the Commonwealth of Australia Gazette $119 of 30 June 1978 declaring the flammability labelling standards for children's night garments and the Trade Practices Commission _ Summary No. 1 of 19 May 1982 dealing with flammability standards ~ pom for children's nightwear. The Commission's Summary, which is in evidences, i w & brisi ana conciss summacsy ci che relevant standards ceadily inteliigible to laymen. The defendant acknowledged receipt of the letter of 9 March by a reply dated 25 March 1983 and stated that category 3 _ se fire hazard labels had been permanently attached to all "Petit.. Bae Bateau" and ""Molli" children's nightwear. ou On 31 May 1983, two Commission, Sydney office, formally interviewed the defendant ané > > Mrs. Bretherton. The defendant admitted that she had not at any ~ time had any "Petit Bateau" children's night garments tested for compliance with AS51249 and she was not aware of any tests carried out by any other person to ascertain whether "Petit Bateau" children's night garments complied with AS12493. On ll July 1983, the Commission's Sydney office sent a telegram to the defendant seeking her assurance that all the children's night garments which failed to comply with the safety standards had been recailed from retailers. By letter of 12 July 10. 1983, Mrs. Bretherton replied on benalf of the defendant and stated that the defendant had i1ssuec a ""totai recall" of all "Petit Bateau" night dresses and dressing gowns and that the garments had been returned to the producers in Europe. It was on 11 July 1983 tnat an officer of the Commission purchased from Appley Dapply the nightaown the subject of the eAsrerA In matt Tnarcsae in LTero "2 2.7 Lhe "Ena 4ere8s = th not been contactcd by the aeéfenaant or any other verson oa if concerning fire gard labéiling of "Petit Bateau" or "Molli" children's night garments or concerning a recall of "Petit Bateau" nightgowns. The night gowns the subject of the charges before the Court were tested by the Australian Wool Testing Authority for we oe Tw -_ > compliance with the relevant parts of AS1249, and the tests * confirmed that none of them complied therewith. - as The defendant did not give eviaence before me. Counsel for the defendant acknowledged the seriousness of the offences and relied on a number of matters in miticaation of penalty. Counsel submitted that each of the charges relating to matters G378, G379, G382 and G383 are of the same nature or a substantially similar nature and occurred at or about the same oO ~ time. He submitted also that the charqes in matters G380,. G3 wu a he <{ and G3e84 likewis are of the same nature or a supstantc 11. Similar nature and occurred at or about the same time. Counsel submitted that sub-s. 79(2) of the Act therefore applied. He submitted also that all offences in essence arose out of the same set of facts irrespective of the application of sub-s. 79(2). In my opinion it 1s correct to treat the contraventions _ involved in matters G380, G381 and G384 as all falling within a a sub-s. 79(2). They are contraventions oF th ame provision of @M Part V, namely para. 62(1)(a), and are of a substantialiy similiar nature notwithstanding the fact that three different retailers in three different States are involved. I think they all occurred at or about the same time. IL also propose to apply sub-s. 79(2) ta the remaining . charges, i.e. those charges in matters G378, G379, G382 and G343., They all involved contraventions of the same provision of Part namely, para. 53(1)(a). They are of a substantially similar nature notwithstanding the fact that two different retailers in two different States are involved and notwithstanding that the period embraced by the charges is from January to mid-July 1983. I accept also that, irrespective of the application of sub-s. 79(2), all offences in essence arose out of the same set of facts. But it must be remembered that the offences fall into two categories. reflected by the application of sub-s.79(2) namely, the offences of supplying children's nightgowns in trade or commerce that did not meat the requisite standards and tte oo —~ oe —— Le ate A a ne at 12. therefore should not have been supplied at ail, and the offences or supplying chilaren's nightgowns witn a label representind that the nightgowns fell within category 2 of the labelling standards when, in truth, they did not fall even within category 3 and should never have been supplied at all. us Counsel for the defendant submitted that the death of BMean- = + 2ean? =n = an ogee ot ty ue on of supstantial senalty. s ct t= jw against the imposi 'So Brandon was a partner in the business and. as the medical evidence shows, his death followed a long period of sickness. There 1s no evidence that this affected the defendant's judgement in relation to any of the matters in issue in this prosecution; but I accept that 1t is appropriate to take this matter inta account in mitigation of penalty, and I therefore take it into. - account. Counsel for the defendant relied on the fact that the defendant has not previously been convicted of an offence of the nature of the present offences. I take that matter also into account. The offences are serious. The flammability and labelling standards are plainly intended to help in the reduction of burns suffered by children and to make parents mors aware or the burning characteristics ot children's carments through labelling. None of che garnents che subtect of the charces 13. pefore the Court met the flammability standards, and a consumer purchasing one of the garments labelled "Designed to reduce fire danaer - flammable fabric", could easily be Jluiled into a sense of false security. They did not even bear the label "Warning aabin a5 0 in question here met the minimum standards required, so that all re prohibited from sale. Garnents Ww mD The defendant was aware from at least April 1980 of the necessity to comply with Government regulations relating to the safety of night garments for children. A penalty is calle¢ for - =** ae. AN PS which will deter the defendant from committing offences of this - such offences. - I am mindful of the penalties prosecutions under s. 79 including Hamlyn v. Moppett Grande Pty. Limited (supra). Taking all relevant matters into account the Court orders that: lL. In matter G378 the defendant pay a fine of $750.00; - 2. In matter G379 the defendant pay a fine of $750.00; 3. In matter G380 the defendant pay a Tine of $1,500.00; a, In matter G381 the defendant pay a fine of $1,500.00; In matter G382 the defendant pay a fine of 5750.00; an wm In matter G383 the defendant pay a fine of $750.00; re ee i ee ae eee ee In matter G384 the defendant pay a fine of $1,500.00; era Brandon 15 to vay to Evaline Jill damivn w Marjoc1e her costs of the proceedings.