Symond, Jospeh Michael & Ors v National Registration Authority for Agricultural & Veterinary Chemicals [1998] FCA 687

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 92 of 1998

BETWEEN: JOSEPH MICHAEL SYMOND

First Applicant

JAMES DAVID SYMOND

Second Applicant

JOHN KOLENDA

Third Applicant

AND: THE NATIONAL REGISTRATION AUTHORITY FOR

AGRICULTURAL AND VETERINARY CHEMICALS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 15 JUNE 1998

WHERE MADE: MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

1. That the decision of the respondent to issue Recall Notices Nos 2 and 3 of 1998 be set aside and the matter to which that decision relates be referred to the respondent for further consideration according to law. 2. That the injunction granted on 17 March 1998 be dissolved. 3. That liberty be reserved to any party to apply on not less than 72 hours notice in writing to the other parties. 4. That the costs of all parties of the application be reserved. 5. That the application herein be otherwise dismissed. Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 92 of 1998

BETWEEN: JOSEPH MICHAEL SYMOND

First Applicant

JAMES DAVID SYMOND

Second Applicant

JOHN KOLENDA

Third Applicant

AND: THE NATIONAL REGISTRATION AUTHORITY FOR

AGRICULTURAL AND VETERINARY CHEMICALS

Respondent

JUDGE: RYAN J

DATE: 15 JUNE 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT In about August 1997, the first applicant, Joseph Symond, noticed an advertisement in a magazine emanating from the USA for insect repellent wrist bands marketed under the name "Bug Ban". After correspondence with the global distributor for "Bug Ban" products, Mr Symond procured the appointment of himself and the second applicant, Mr James Symond, as sole distributors of the products in Australia and New Zealand. Upon obtaining that appointment as sole Australian and New Zealand distributors, Joseph Symond commissioned a design and obtained a quotation dated 23 September 1997 from Australian Blister Sealing Incorporated Pty Ltd ("ABS") for the manufacture of printed "blister" packaging in which the "Bug Ban" products were to be distributed in Australia. Thereafter, on 10 October 1997, Mr Zeaiter of ABS enquired of Joseph Symond whether the "Bug Ban" products had been registered with the National Registration Authority for Agricultural and Veterinary Chemicals ("NRA"). Almost immediately after receiving that enquiry, Joseph Symond spoke by telephone with a Dr Grace Stolarek, an officer of the respondent, the NRA. He was told, in effect, that if the "Bug Ban" wrist bans comprised only oils of citronella, geranium and lemon grass compounded into a plastic band, they would not require to be registered with the NRA which was only concerned with chemical products. Accordingly, the applicants began to distribute two separate versions of "Bug Ban" wrist bands, one for adults and the other for children, in packaging bearing the legends and representations appearing in Appendix 1 and Appendix 2 to these reasons. In January 1998, Joseph Symond was advised by officers of the NRA that the earlier advice which he had received had been incorrect and that registration would be required for the packaging and labelling of the "Bug Ban" wrist bands. Accordingly, Mr Symond on 20 January 1998 made application to the NRA for registration of the "Bug Ban" products. At about the same date, officers of the NRA indicated to employees of Coles Myer Ltd, a major retailer of the products which had earlier been distributed with unregistered labelling and packaging, that the products had not been registered, could not be sold and must be recalled. The applicants' application for registration of the two types of "Bug Ban" wrist bands was granted on 29 January 1998 when approval was given for packaging and labelling corresponding with that reproduced in Appendix 3 and Appendix 4 to these reasons. Despite the registration of "Bug Ban" wrist bands with the approved labelling and packaging, the NRA, from the beginning of February, took steps to recover from retailers stocks of the product in the earlier, unapproved, form of packaging. Those steps, it seems, were taken in response to complaints from manufacturers and distributors of rival insect repellent products which were being marketed in competition with those of the applicants. On 9 February 1998, "Bug Ban" products in the earlier, unapproved, labelling and packaging were seized by an NRA officer from a pharmacy in Dee Why in New South Wales and on 18 February 1998 the NRA advised Joseph Symond by facsimile transmission that notices were in preparation for the compulsory recall of products so labelled and packaged. That message commenced with these paragraphs: The NRA has recently become aware that two products bearing labels stating that the products are BUG-BAN INSECT REPELLING WRISTBAND ('BUG-BAN') AND BUG-BAN INSECT REPELLING WRISTBAND FOR KIDS ('BUG-BAN FOR KIDS') have been supplied in NSW. These products are similar to products recently registered by yourself with the names BUG-BAN INSECT REPELLING WRISTBAND/P50578 and BUG-BAN FOR KIDS INSECT REPELLING WRISTBAND/P50579. However, the NRA has determined that the labels attached to containers of stocks of these products supplied 'in the field' differ from the NRA approved labels for your products. Regardless of any action you are taking or considering taking in relation to this matter, the NRA considers that compulsory recalls of all stocks of the products BUG-BAN and BUG-BAN FOR KIDS which carry unapproved labels will be required. I refer you to section 103(1) of the Agricultural and Veterinary Chemicals Code Act 1994 ('the Agvet Code'), which gives the NRA specific powers to issue recall notices in relation to products with unapproved labels. Compulsory recall notices, detailing the NRA's requirements in relation to these recalls are in preparation. Please note that you will be required to arrange for these recalls to take place to the retailer level. Further, if a complete list of retailers who have been supplied with these products are not available to you, then the NRA will require you to arrange for these recalls to be advertised to ensure that as many retailers as possible are made aware that these products are subject to recall. Preparation of the proposed recall notices continued after 19 February until they were issued on 26 February 1998. During that period, an internal memorandum from Mr S McDonald, the Manager, NRA Compliance, for NRA, to two other NRA officers, Mr Barden and Mr Raphael recited: We are not targeting citronella in our routine program. If it is spotted on routine visits then inspectors report and we send out a warning letter. There is little extra effort involved. When the new compliance strategy is implemented and a strategy for risk is determined we will not target citronella. However if industry lodge complaints about it we will take action as the industry perception of a level playing field in the marketplace is a high risk to the integrity of the NRS. The current action on Bugban is consistent with this as it resulted from several industrial complaints and the offending label breaks several provisions and gives the product a market advantage over the law abiding competitors. On 26 February 1998, the NRA issued Recall Notices Nos 2 and 3 of 1998 ("the recall notices") over the signature of Mr McDonald as delegate to the NRA. Recall Notice No 2 related to the "Bug Ban" wrist band for adults and was in the following terms: TO JOSEPH M SYMOND having a postal address of PO Box 197 GLADESVILLE NSW 2111 and a business address of 4 Beach St TENNYSON POINT NSW 2111. 1. This notice is issued in relation to all stocks of the product BUG-BAN INSECT REPELLING WRISTBAND/P50578 bearing the unapproved label contained in Schedule 3 of this Notice. 2. The National Registration Authority for Agricultural and Veterinary Chemicals ('the NRA') by this Notice REQUIRES you to: (a) conduct a recall of the above product in accordance with Schedule 1 to this Notice; and (b) report to the NRA on matters relating to the product and to the recall of the product in accordance with Schedule 2 to this Notice. 3. This Notice is given to you on the basis that: (a) it appears to the NRA that labels contained in Schedule 3 to this Notice and attached to the containers of stocks of the above registered product differ from the approved label kept on file by the NRA, (b) you are the registrant of the above product, and (c) you have, or have had, possession or custody of stocks of the product in these States. 4. A person to whom a recall notice is given must not fail, without reasonable excuse, to comply with the notice. The maximum penalty for non-compliance by an individual is $12,000. Schedule 1 to Recall Notice No 2 stipulated: The recall of the product shall be carried out in accordance with the 'Guidelines for Recall of Agricultural and Veterinary Chemicals' published by the NRA, unless the NRA indicates otherwise in this Notice or in any other communication. In particular, the following actions shall be carried out: 1. Stop supplying stocks of the product immediately. 2. Do not supply stocks of the product to any person on or after the date of this notice without written permission from the NRA. NOTIFICATION TO THE SUPPLIERS OF THE PRODUCT 3.(a) So far as you are reasonably capable, notify all persons to whom the product has been supplied by you or who have possession or custody of any stocks directly or indirectly because of a supply by you in these States ('suppliers') of the recall: (i) that the product is subject to compulsory recall from the date of this notice; (ii) that any stocks of the product in the possession or custody of the supplier on or after the date of this notice should be forwarded to an approved collection point (to be approved by the NRA and specified in the notification). (b) If a complete and accurate list of suppliers is available, then: (i) issue a letter by facsimile (where possible) and by post to each and every supplier on the list of suppliers; (ii) each letter must contain the following information: - the heading 'URGENT RECALL' and the full distinguishing name of the product, the registration number and pack size should appear prominently at the top of the first page of the letter; - your name and address in this State; - a statement that the product is subject to compulsory recall from the date of this notice; - a statement that any stocks of the product in the possession or custody of the supplier on or after the date of this notice should be forwarded to an approved collection point (to be approved by the NRA and specified in the notation); - a list of approved collection points (to be approved by the NRA); - a statement that the recall is at the expense of your company; - a request to retain the letter in a prominent position for one month in case stock is in transit; - a copy of the form 'INVENTORY OF RECALLED PRODUCT' (attached to this Notice); and - a request that the form 'INVENTORY OF RECALLED PRODUCT' be completed, signed and forwarded to your address or to the address given for the NRA on the form; (iii) the envelope for each letter posted is to be marked 'URGENT RECALL' in letters at least 1 cm high in the top left hand corner; (iv) a copy of the letter to be sent to suppliers must be forwarded by facsimile before 5pm on 27 February 1998 to the NRA Recall Co-ordinator (at the facsimile number given for the Co-ordinator on this notice) for approval before being dispatched. Letters must be dispatched within two working days of receiving the NRA Recall Co-ordinator's approval. (v) forward a copy of the list of identified suppliers to the NRA together with a declaration that, to the best of your knowledge, the list is complete and accurate; (c) If a complete and accurate list of suppliers is not available, then: (i) issue letters to all identified suppliers (as described in paragraph (b)), and (ii) place paid advertisements in the newspapers listed in sub-paragraph (iv) below, in the format set out in the Guidelines for Recall of Agricultural and Veterinary Chemicals published by the NRA; (iii) each advertisement is to include: - the heading 'URGENT RECALL' and the full distinguishing name of the product, the registration number and pack size should appear prominently at the top of the first page of the letter; - your company name and address; - a statement that the product is subject to compulsory recall from the date of this notice; - a statement that any person who has stocks of the product should contact you to register their name as a supplier or user of the product. (iv)advertisements shall be placed in newspapers approved in writing by the NRA. Schedule 2 to the Notice detailed the manner in which reports, including a preliminary report, interim report and final report were to be furnished to the NRA's Recall Co-ordinator. Schedule 3 consisted of a reproduction of the unapproved label which is Appendix A to these reasons. Recall Notice No 3 of 1998 was in substantially identical terms and related to the "BUG-BAN FOR KIDS INSECT REPELLING WRISTBAND/P50579". On 9 March 1998, in response to a request on behalf of the applicants, the NRA issued a written statement of the reasons for its decision to issue Recall Notices Nos 2 and 3 of 1998. Omitting formal and introductory parts, those reasons were in these terms: Findings leading to recall: To date, the NRA has received six complaints/reports related to the supply of, and/or advertising related to offers to supply, the products BUG-BAN INSECT REPELLING WRISTBAND ('BUG-BAN') AND BUG-BAN FOR KIDS INSECT REPELLING WRISTBAND ('BUG-BAN FOR KIDS'). The first complaint was received by the NRA on 21 January 1998. The NRA initiated an investigation and found that the products BUG-BAN and BUG-BAN FOR KIDS were registered by the NRA on 29 January 1998. The complaints related not only to the supply of unregistered products, but also to the promotion of these products with claims which appeared to be non-compliant with the Agvet Code. Investigation by inspectors in NSW established that some of these non-compliant claims were included on the labels of the products. A comparison of the labels on products supplied 'in the field' with the approved labels on file for the products showed that the labels supplied 'in the field' were different to the approved labels kept on file by the NRA. The NRA faxed Mr Joseph M Symond on 18 February 1998 foreshadowing the NRA's intention to require Mr Symond to conduct a compulsory recall of stocks of the products BUG-BAN and BUG-BAN FOR KIDS which were supplied bearing unapproved labels in NSW. Mr Michael Symond left a telephone message with the compliance section of the NRA on 18 February 1998. On 19 February 1998 Mr Michael Symond was contacted by telephone and acknowledged that products bearing the unapproved labels had also been supplied in Qld. Mr Michael Symond advised the NRA that the registrant had already attempted to conduct a voluntary recall of stocks of products bearing the unapproved labels. Mr Michael Symond further commented that the voluntary recalls were unlikely to have been successful as products were very likely to have been onsold to chemists and possibly other suppliers. Mr Michael Symond was advised that, on this basis, advertising of the compulsory recalls was likely to be required. Reasons for decision to recall products: 1. That stock of the products BUG-BAN and BUG-BAN FOR KIDS have been supplied bearing labels which, it appears to the NRA, differs from the approved labels kept on file by the NRA for these products. Supply of products without the approved labels appears to contravene sections 80 and 81 of the Agvet Code. 2. That the unapproved labels carry statements including "Don't be fooled by imitations with 'DEET' or other toxic chemicals", "Bug-Ban with nature's own ingredients repels flying insects naturally", "Safe for Children", "Fasten around wrist, ankle, lounge chair, picnic table or anywhere you like", "Reusable", "Lasts up to 40 hours", "Non-toxic" and "Environmentally safe". These statements appear to contravene section 89(1)(e) of the Agvet Code. 3. That supply of these products with these unapproved labels has resulted in numerous complaints to the NRA and inspectors in the states. 4. That the NRA is of the view that these products have been widely supplied in both NSW and Qld. 5. That Joseph M Symond is the registrant of the products BUG-BAN and BUG-BAN FOR KIDS. 6. That Joseph M Symond has, or has had, possession or custody of stocks of the products bearing unapproved labels in Qld and NSW. On this basis the NRA issued Joseph M Symond with Recall Notices Numbers 2 and 3 of 1998 on 25 February 1998. Material on which findings were based: · Field report from an inspector in Qld, dated 21 January 1998, referring to a complaint received by the Queensland Department of Primary Industries relating to an advertisement in the Cairns Post of 20 January 1998, placed by Coles, relating to both products. Report went on to detail action taken by Qld inspectors to remove products from suppliers shelves in consultation with the NRA. · Industry complaint received by the NRA on 3 February 1998 relating to the supply of both products, including information regarding where product is being offered for supply. Complaint also included a copy of an advertisement appearing in New Idea, Issue 39. · Industry complaint received by the NRA on 4 February 1998 related to an advertising article appearing in the Sun Herald on 1 February 1998 referring to 'Bug-Ban', including information suggesting that 90,000 units have been supplied. Complaint also referred to a second article, also referring to 'Bug-Ban', cited as appearing in the New Idea. · Field report from an inspector in Qld received by the NRA on 5 February 1998 related to an advertising article appearing in the Sun Herald on 1 February 1998. · Field report from an inspector in NSW, received by the NRA on 9 February 1998, reporting that both products were seized when found being offered for supply with unapproved labels in a store in NSW on 6 February 1998. · Industry complaint received by the NRA on 18 February 1998 relating to the supply of both products. · Facsimile from Australian Business Research Pty Ltd, dated 17 February 1998, confirming that the business name "Bug Ban Insect Repelling Wristbands" was registered by Joseph Michael Symond of 4 Beach St Tennyson Point NSW 2111 on 19 September 1997. · Facsimile addressed to Mr Joseph M Symond dated 18 February 1998. · Record of telephone conversation with Mr Michael Symond on 19 February 1998. By application filed on 16 March 1998 invoking the Administrative Decisions (Judicial Review) Act 1982 ("the AD(JR) Act"), the Fair Trading Acts of New South Wales and Queensland and the accrued jurisdiction of the Court, the applicants sought injunctions restraining the NRA from taking any further step pursuant to Recall Notices Nos 2 and 3 of 1998 or instructing inspectors to visit premises for the purposes of locating the products or advising retailers that the "Bug Ban" products were subject to recall notices. By the same application, the applicants sought declarations that the "Bug Ban" products are not "chemical products" within the meaning of the Agvet Codes and that the NRA has no power to require the products to be registered pursuant to those Codes or to prohibit the reproduction on packaging of the products of certain statements about their properties. Further declarations were sought to the effect that the NRA had no power to issue the recall notices and that the recall notices were void. As well, the applicants sought damages at common law and mandatory orders under the Fair Trading Acts. On 17 March 1998, I granted an interlocutory injunction restraining the NRA from: (a) requiring the applicants to advertise the recall of the products bearing unapproved labels ("the products"); (b) publishing notice of the issue of recall notices Nos 2 and 3 of 1998 dated 26 February 1998 in accordance with s 104 of the Agricultural and Veterinary Chemicals Code 1994 ("the Code"); (c) exercising any power of entry, search or seizure in relation to the products bearing unapproved labels at any premises other than those of the applicants; (d) giving any notice pursuant to s 103 of the Code to any person in respect of the products. By their statement of claim filed on 18 March 1996, the applicants have alleged that the decisions to require registration of the "Bug Ban" products, to issue the recall notices, not to reconsider the decision to issue the recall notices and to instruct inspectors to visit stores to locate stocks of "Bug Ban" products in unregistered packaging were reviewable under the AD(JR) Act. It is further alleged that the NRA was negligent in representing, through Dr Stolarek, that the "Bug Ban" products did not require to be registered under the Agvet Codes. The application as presently constituted raises the following questions which I shall consider separately and in order. Does the Agricultural and Veterinary Chemicals Act and the Code enacted thereunder apply to the "Bug Ban" products? It was common ground between the parties that the relevant statutory scheme was contained in the Agricultural and Veterinary Chemicals Code Act 1994 ("the Act"), the Agricultural and Veterinary Chemicals Code ("the Code") which is contained in the Schedule to the Act, and the Agricultural and Veterinary Chemicals Code Regulations 1995 ("the Regulations"). "Chemical product" is defined in s 3 of the Code in the following terms: "chemical product" means an agricultural chemical product or a veterinary chemical product, or both; "Agricultural chemical product" is defined by s 4 of the Code: 4.(1) This section defines what is meant by an agricultural chemical product for the purpose of this Code. (2) Subject to subsections (3) and (4), an agricultural chemical product is a substance or mixture of substances that is represented, imported, manufactured, supplied or used as a means of directly or indirectly: (a) destroying, stupefying, repelling, inhibiting the feeding of, or preventing infestation by or attacks of, any pest in relation to a plant, a place or a thing; or (b) destroying a plant; or (c) modifying the physiology of a plant or pest so as to alter its natural development, productivity, quality or reproductive capacity; or (d) modifying an effect of another agricultural chemical product; or (e) attracting a pest for the purpose of destroying it. (3) An agricultural chemical product includes a substance or mixture of substances declared by the regulations to be an agricultural chemical product. (4) An agricultural chemical product does not include: (a) a veterinary chemical product; or (b) a substance or mixture of substances declared by the regulations not to be an agricultural chemical product. "Substance" is defined in s 3 of the Code to include: (a) any gas, liquid, mixture or compound of gases, or mixture or compound of liquids; and (b) ... (c) ... (d) ... but does not include an excluded organism or part of an excluded organism, or material that is produced from, or matter whose production involves the use of, an excluded organism. "Place" is not defined in the Code, which, however, contains this definition of "thing": "thing", except where used as an object of the verb "to do", includes: (a) an animal; and (b) information; and (c) a document; and (d) a substance. Regulation 7(1) of the Agricultural and Veterinary Chemicals Code Regulations 1995 ("the Regulations") recites: 7(1) For the purpose of subsection 4(3) of the Code, a substance or mixture of substances included in any of the following classes of substances or mixtures of substances is declared to be an agricultural chemical product: (a) dairy cleansers for on-farm use; (b) any substance used in conjunction with an agricultural chemical product to identify areas treated with that product; (c) insect repellents for use on human beings. Mr Hayes QC who appeared with Mr Cullen of Counsel for the applicants submitted, first, that the "Bug Ban" products do not come within the definition of a chemical product in s 4 of the Code because they do not contain substances which are chemical products for the purposes of the Code. It was said that, as the definition of "a thing" in s 3 of the Code does not include human beings, then the definition of agricultural chemical product contained in s 4(2)(a) of the Code cannot apply to substances or mixtures of substances used as a means of directly or indirectly repelling insects in relation to human beings. Mr Gunst of Counsel for the respondent conceded that a substance or mixture of substances included in an insect repellent for use in relation to human beings would not fall within the definition of an agricultural chemical product in s 4(2)(a) of the Code except to the extent that, notwithstanding its use in relation to human beings, a substance or mixture of substances could nevertheless be said to be used in relation to a place or a thing. Mr Gunst submitted that insofar as the instructions contained on the packaging of the "Bug Ban" products permitted their use upon objects or in various locations, then it could be said that the substances comprised in "Bug Ban" products were agricultural chemical products for the purposes of s 4(2)(a) of the Code. Mr Gunst further submitted that, notwithstanding the construction of s 4(2)(a) which he advanced, s 4(3) of the Code clearly contemplated that regulations might be made under that sub-section declaring further substances or mixtures of substances to be agricultural chemical products. It was submitted, consequently, that Reg 7(1)(c) was a valid exercise of the power conferred by the Code to extend the definition of agricultural chemical products to include substances or mixtures of substances included in insect repellents for use on human beings. Mr Hayes, however, contended that although Reg 7(1)(c) declared any substance or mixture of substances included in insect repellents for use on human beings to be an agricultural chemical product, it was beyond power. Mr Hayes contended that the power conferred by s 4(3) of the Code to make regulations enables substances or mixtures of substances to be declared to be agricultural chemical products. Mr Hayes submitted that Reg 7 did not declare substances or mixtures of substances to be agricultural chemical products but merely listed three generic types or classifications of products. I find it unnecessary to decide whether the construction of s 4(2)(a) of the Code advanced by Mr Gunst is correct. In my view Reg 7(1)(c) makes clear that substances or mixtures of substances compiled in insect repellents for use on human beings are included within the definition of "agricultural chemical products" for the purposes of the Code. I do not accept that Reg 7 is beyond the power conferred by s 4(3) of the Code. Section 4(3) permits the making of regulations declaring substances or mixtures of substances to be agricultural chemical products for the purposes of the Code. Regulation 7 declares a substance or mixture of substances included within certain classes of substances or mixtures of substances, including insect repellents for use on human beings, to be agricultural chemical products. In my view Reg 7 is not beyond the power conferred by s 4(3) of the Code notwithstanding that the classes of the substances or mixtures of substances on which it is predicated are described in purposive terms. Should the decision to issue the recall notices be set aside under theAD(JR) Act? It seems to be common ground that the decision to issue the recall notices was a reviewable decision for the purposes of the AD(JR) Act. Mr Hayes pointed to s 5(2)(a) of the AD(JR) Act in support of the applicants' contention that the decision to issue the recall notices was an improper exercise of a power conferred by the Code in that the decision-maker took into account irrelevant considerations. Section 5 is in the following terms: 5.(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed; (c) that the person who purported to make the decision did not have jurisdiction to make the decision; (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made; (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; (f) that the decision involved an error of law, whether or not the error appears on the record of the decision; (g) that the decision was induced or affected by fraud; (h) that there was no evidence or other material to justify the making of the decision; (j) that the decision was otherwise contrary to law. (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; (c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith; (e) an exercise of a personal discretionary power at the direction or behest of another person; (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (j) any other exercise of a power in a way that constitutes abuse of the power. (3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. Section 103 of the Code clearly confers a discretion on the NRA whether or not to issue a recall notice and as to the requirements to be imposed on the notified person by that notice. Sub-sections (1) and (2) of s 103 provide: (1) If it appears to the NRA that labels attached to the containers of stocks of a registered chemical product, or of a particular batch of a registered chemical product, differ from the approved label kept in, or in conjunction with, the relevant NRA file in relation to the product, the NRA may give written notice to any person (the "notified person") who has, or has had, possession or custody of any of those stocks or of that batch requiring the person to do any one or more of the things mentioned in subsection (2).