Australian Competition & Consumer Commission v MHG Plastic Industries Pty Ltd [1999] FCA 970

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v MHG Plastic Industries Pty Ltd [1999] FCA 970 PRACTICE & PROCEDURE – stay of final orders pending appeal – stay of orders for recall of goods and refund to purchasers – whether subject matter of litigation will disappear if stay not granted – whether practicable to reverse effect of orders at first instance if appeal successful – balancing exercise between cost to intending appellant of complying with orders at first instance and risk to public safety if orders not given immediate effect – whether substantial prospect that appeal will succeed – stay of orders for seal to be affixed to reasons for judgment

Trade Practices Act 1974 (Cth), s65C(1), s83

AUSTRALIAN COMPETITION & CONSUMER COMMISSION v MHG PLASTIC INDUSTRIES PTY LTD

N418 OF 1999

EMMETT J 13 JULY 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 LTD

Respondent

JUDGE: EMMETT J

DATE OF ORDER: 13 JULY 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The orders and declarations made on 28 June 1999 be vacated and in lieu thereof the following declarations and orders be made.

THE COURT DECLARES THAT: 2. Motor cycle helmets models "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. 3. 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. THE COURT ORDERS THAT: 4. The Respondent, by its servants or agents or otherwise howsoever, be restrained from supplying to wholesalers and other purchasers motor cycle helmets models "EXR", "MXR" and "RXR" manufactured by the Respondent since 1 July 1996. 5. The Respondent, at its own expense, establish a 1800 telephone number within 14 days of the date of these orders and cause that telephone number at all times to be answered or accommodated by a recorded answering service for a period of six months after the date of these orders. 6. The Respondent, at its own expense, cause to be published in a major daily newspaper in each State or Territory and in each of the magazines "Two Wheels", "Live to Ride" and "Performance Streetbike" an advertisement in the form of Annexure A hereto and further that the Respondent take all reasonable steps to ensure that each advertisement be: (1) in newspapers, of a size not less than three columns wide (or two and a half columns where available ) by 15cm deep and, in magazines, of a size not less than 11cm wide by 15cm deep; (2) in text which is in a type size not less than 10 point; (3) within the first twenty pages of the newspaper or magazine; (4) published in newspapers once per week over three consecutive weeks with the first advertisement appearing in the first issues in which advertising space is available after 7 days of the making of these Orders; and (5) published in magazines once per issue over two consecutive issues with the first advertisement appearing in the first issues in which advertising space is available after 7 days of the making of these Orders; 7. The Respondent, in respect of any person ("owner") who: (1) telephones the 1800 number established by the Respondent in accordance with Order 5 within 6 months of the date of these orders; and (2) quotes the serial number of a model "EXR", "MXR" and "RXR" helmet having a date of manufacture after 1 July 1996; and (3) delivers the helmet bearing the serial number referred to in Order 7(2) above to the retail premises of any retailer listed in Annexure B, entitled "Schedule of Retailers" or any other retailer advised to the Applicant within 7 days of the date of these orders or, where the customer lives more than 100km from the nearest retailer listed or advised, to the Respondent at its premises in Melton by carrier nominated by the Respondent at the Respondent's expense; and (4) provides proof of purchase or ownership by production of a receipt for the helmet or by way of statutory declaration within 28 days do the following: (a) where proof of purchase is provided by the owner, refund the purchase price; (b) where proof of purchase is not provided by the owner, refund the recommended retail price at the date of manufacture of the helmet. 8. The Respondent use its best endeavours to obtain from all wholesalers and retailers in Australia all model "EXR", "MXR" and "RXR" helmets held by them and manufactured by the Respondent since 1 July 1996. 9. The Respondent (within 28 days of its obtaining any helmet pursuant to Order 8) refund to the person from whom the helmet is obtained the price of the helmet. 10. The seal of the Court be affixed to the reasons for judgment dated 15 June 1999. 11. The Respondent pay the Applicant's costs of the proceedings. 12. That Orders 7, 9 and 10 above be stayed until the final determination of any appeal or until further order. THE COURT NOTES: 12. The undertaking to the court by the Respondent that it will with all due expedition prosecute an appeal from the orders now made. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.