Director of Consumer Affairs Victoria v The Reject Shop Ltd [2018] FCA 211

FEDERAL COURT OF AUSTRALIA

Director of Consumer Affairs Victoria v The Reject Shop Ltd [2018] FCA 211 File number: VID 4 of 2017

Judge: NORTH J

Date of judgment: 2 March 2018

Catchwords: CONSUMER LAW – product safety standards – children's projectile toys – pecuniary penalty – agreed penalty – whether proposed pecuniary penalty appropriate – relevant considerations for assessment of pecuniary penalty – proposed pecuniary penalty imposed

Date of hearing: 30 January 2018

Registry: Victoria

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: Catchwords

Number of paragraphs: 41

Counsel for the Applicant: Mr S Bhojani

Solicitor for the Applicant: Director of Consumer Affairs Victoria

Counsel for the Respondent: Ms P Neskovcin QC with Ms S Zeleznikow

Solicitor for the Respondent: Lander & Rogers Lawyers

ORDERS VID 4 of 2017

BETWEEN: DIRECTOR OF CONSUMER AFFAIRS VICTORIA Applicant

AND: THE REJECT SHOP LTD (ACN 006 122 676) Respondent

JUDGE: NORTH J DATE OF ORDER: 2 MARCH 2018

THE COURT DECLARES BY CONSENT THAT:

1. Between 24 January 2014 and 30 October 2015, the Respondent, in trade or commerce, supplied to consumers "Spy UFO Toy Helicopter" projectile toys when, during the period of the supply: (a) the toys were subject to the Consumer Product Safety Standard: Children's Projectile Toys, Consumer Protection Notice No. 16 of 2010 (Standard); and (b) the toys did not comply with the requirements of cl [4.18.3(e)] of the Standard, read in conjunction with [C.2.15] of the Standard, as the toys were not accompanied by instructions for use which drew attention to the hazard of aiming the toys at the user's eyes or face, and of using projectiles other than those supplied or recommended by the manufacturer, and by doing so, the Respondent contravened section 106(1) of the Australian Consumer Law and section 106(1) of the Australian Consumer Law (Vic). 2. On 26 October 2015, the Respondent, in trade or commerce, offered for supply the "Spy UFO Toy Helicopter" projectile toys when, on that date: (a) the toys were subject to the Standard; and (b) the toys did not comply with the requirements of cl [4.18.3(e)] of the Standard, read in conjunction with [C.2.15] of the Standard, as the toys were not accompanied by instructions for use which drew attention to the hazard of aiming the toys at the user's eyes or face, and of using projectiles other than those supplied or recommended by the manufacturer, and by doing so, the Respondent contravened section 106(2) of the Australian Consumer Law and section 106(2) of the Australian Consumer Law (Vic). 3. Between 24 May 2015 and 26 October 2015, the Respondent, in trade or commerce, supplied to consumers "Let's Party Balloon Helicopter" projectile toys when, during the period of the supply: (a) the toys were subject to the Standard; and (b) the toys did not comply with the requirements of cl [4.18.1(b)] of the Standard, as the toy failed to have its high speed propeller in the form of a ring, in order to reduce the risk of injury, and by doing so, the Respondent contravened section 106(1) of the Australian Consumer Law and section 106(1) of the Australian Consumer Law (Vic). 4. On 26 October 2015, the Respondent, in trade or commerce, offered for supply the "Let's Party Balloon Helicopter" projectile toys when, on that date: (a) the toys were subject to the Standard; and (b) the toys did not comply with the requirements of cl [4.18.1(b)] of the Standard, as the toy failed to have its high speed propeller in the form of a ring, in order to reduce the risk of injury, and by doing so, the Respondent contravened section 106(2) of the Australian Consumer Law and section 106(2) of the Australian Consumer Law (Vic).