Australian Competition & Consumer Commission v MHG Plastic Industries Pty Ltd [1999] FCA 950

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission

v MHG Plastic Industries Pty Ltd [1999] FCA 950

TRADE PRACTICES – consumer protection – non-compliance with consumer product safety standard – appropriate relief – declaration - injunctions – relevance of whether respondent will continue to supply the goods if not restrained – policy of Pt V Trade Practices Act and associated remedial provisions – whether risk to members of public in using non-complying goods – relevance of past industry testing practice to question of relief – relevance of claim of selective enforcement to question of relief – relevance of asserted hardship to respondent if injunction granted – whether balancing exercise between public safety and asserted hardship permitted when determining appropriate relief

Trade Practices Act 1974 (Cth) s65C, s80(1), s80(4) and s80(5)

Commodore Business Machines Pty Limited v Trade Practices Commission (1990) 92 ALR 563, referred to.

Campomar Sociedad Limitada v Nike International Limited (1998) 156 ALR 316, referred to.

AUSTRALIAN COMPETITION & CONSUMER COMMISSION v MHG PLASTIC INDUSTRIES PTY LTD

N 418 OF 1999

EMMETT J 28 JUNE 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N418 OF 1999

BETWEEN: AUSTRALIAN COMPETITION & CONSUMER COMMISSION

Applicant

AND: MHG PLASTIC INDUSTRIES PTY LIMITED

Respondent

JUDGE: EMMETT J

DATE OF ORDER: 28 JUNE 1999

WHERE MADE: SYDNEY

THE COURT DECLARES THAT:

1. Motor cycle helmets model "EXR", "MXR" and "RXR" manufactured by the respondent since 1 July 1996 do not comply with Australian Standard AS1698-1988 in that they do not satisfy the performance requirements specified in clauses 6.1 and 6.3 of that Australian Standard.

2. The respondent, by supplying to wholesalers and other purchasers motor cycle helmets models "EXR", "MXR" and "RXR" manufactured by the respondent since 1 July 1996, has in trade or commerce supplied goods that were intended to be used, or were of a kind likely to be used, by consumers and which did not comply with the prescribed consumer product safety standard relating to the goods, namely Australian Standard AS1698-1988, contrary to s65C(1) of the Trade Practices Act 1974.