Australian Competition and Consumer Commission v Robinson [2011] FCA 17

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Robinson [2011] FCA 17 Citation: Australian Competition and Consumer Commission v Robinson [2011] FCA 17

Parties: AUSTRALIAN COMPETITION & CONSUMER COMMISSION v PHILIP JAMES ROBINSON

File number: SAD 67 of 2010

Judges: BESANKO J

Date of judgment: 17 January 2011

Catchwords: TRADE PRACTICES — sentencing of defendant for eight offences under s 75AZS(1) of the Trade Practices Act 1974 (Cth) — where defendant pleaded guilty to eight offences — where defendant an unsophisticated businessman who sold baby sleeping bags imported from China on eBay — where baby sleeping bags did not comply with relevant Australian Standard in relation to fire hazard labelling — where defendant warned by Australian distributor of products that items he was selling did not comply with the Standard — where defendant contacted Australian Competition and Consumer Commission ('ACCC') in relation to sale of sleeping bags — where there was factual dispute as to content of conversations with ACCC representatives — where defendant continued to sell sleeping bags — where defendant subsequently co-operated fully with authorities — whether appropriate to treat all eight offences as one offence pursuant to s 79(2) — whether appropriate to exercise power in 19B of Crimes Act not to proceed to conviction — consideration of matters relevant to penalty contained in s 16A and s 16C of the Crimes Act 1914 (Cth) ('Crimes Act') — where defendant did not have capacity to pay a substantial fine. HELD: It was not appropriate to exercise the power in s 19B of the Crimes Act because of the importance of consumer standards and the defendant's failure to make enquiries before he began selling the products and proper enquiries after he was alerted to potential problems with them. A fine of $1,000 was imposed in relation to each of the offences occurring before the defendant was contacted by the Australian distributor of the product and himself contacted the ACCC, and a fine of $1,500 was imposed in relation to each offence occurring after those events. Legislation: Federal Court Rules O 49 r 1 Trade Practices Act 1974 (Cth) ss 65C, 75AZS, 79 Trade Practices (Consumer Product Safety Standards) (Children's Nightwear and Paper Patterns for Children's Nightwear) Regulations 2007 (Cth) Crimes Act 1914 (Cth) ss 4K(4) 16A, 16C, 19B