Commissioner for Fair Trading v Youngdown Pty Limited [2003] NSWSC 646

New South Wales Supreme Court

CITATION : Commissioner for Fair Trading v Youngdown Pty Limited [2003] NSWSC 646 HEARING DATE(S) : Thursday 17 July 2003 JUDGMENT DATE : 22 July 2003 JURISDICTION: Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : CONTEMPT PROVED; See par 24 for orders

CATCHWORDS : CONTEMPT - ACKNOWLEDGED - APOLOGY - TECHNICAL LEVEL - DEFENDANT SHOULD PAY COSTS OF PLAINTIFF CASES CITED : Adam Phones Ltd v Goldschmidt & Ors 1999 4 All ER 486 Shoppee v Nathan & Co 1892 1 QB 245 PARTIES : Commissioner for Fair Trading v Youngdown Pty Limited trading as Go-Lo Discount Stores and Crazy Prices FILE NUMBER(S) : SC 13918/01 COUNSEL : P. Griffin (Plaintiff) D. Fagan SC with H. Stowe (Defendant) SOLICITORS : D. Catt (Plaintiff) Freehills (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 22 July 2003

13918/01 - COMMISSIONER FOR FAIR TRADING v YOUNGDOWN PTY LIMITED trading as GO-LO DISCOUNT STORES and CRAZY PRICES

JUDGMENT 1 HIS HONOUR: This is a motion brought by the Commissioner for Fair Trading (formerly the Director General of the Department of Fair Trading) (the plaintiff) seeking that the defendant corporation be adjudged guilty of contempt. The defendant operates over one hundred stores in New South Wales under the name of Go-Lo Discount Stores and in a few instances, Crazy Prices. A statement of charge has been filed with the motion in compliance with SCR Pt 55 r7, however the motion is supported by an agreed statement of facts which limits the plaintiff's allegations to nine matters only. In respect of those matters senior counsel for the defendant admitted the guilt of contempt on behalf of his client and, it should be noted, tendered its apology in respect of them in open court. 2 The defendant is the wholly owned subsidiary of a public company which is listed on the Australian Stock Exchange, Miller's Retail Limited. It acquired the defendant in June 2001. The relevant stores stock a wide variety of goods including toys. During the middle months of 2001, the plaintiff's officers were conducting inspections and other activity in relation to product safety. Suspected breaches led to an approach to this Court for statutory injunction. Consent orders were made. The agreed facts include: "The Consent Orders effectively provide for a regime of safety compliance for the Defendant, under the supervision of the Plaintiff. Reflecting the Plaintiff's concern (at the time of the orders) about the Defendant's compliance regime, the Consent Orders imposed compliance requirements which were stricter than the Defendant's statutory obligations." 3 The current motion arises out of breach of orders contained therein. 4 For convenience, and in accordance with their nature, the nine matters have been grouped. Four, which relate to requirements to have prescribed products tested to certify their compliance with applicable regulations, are designated "compliance charges" and the other five, relating to failure to provide to the plaintiff pass test reports (confirmation of compliance with safety product requirements) within a time specified in the consent orders are designated as "timing of provision charges". 5 There is considerable detail concerning the charges in the statement of agreed facts, all of which I have taken into account, but it will suffice to make brief reference to some of the circumstances rather than engage in lengthy recitation. I will deal first with the compliance charges and adopt the numbering system used in the statement of charge. 6 Charge 2. On 30 July 2002 a "toy cement truck" was acquired from goods for sale at a Go-Lo store in Wagga Wagga. The defendant had acquired a test report in February 2002 indicating failure to meet a requisite standard. The defendant had recalled these toys from its stores for the purpose of destruction. 760 units had been returned and were destroyed. The unit at Wagga Wagga was, as a matter of likelihood, overlooked by staff during the recall. 7 Charge 13. On 9 July 2002 the plaintiff's inspector saw an "inflatable dolphin" on display for sale at the Go-Lo store at the Hills Shopping Centre, Seven Hills. In May 2002 the defendant had acquired a report stating that the item passed standards requirements but this was qualified with the words "excluding section 82 packaging marking". Warning labels were mandated for this item. Appropriate warning of the required size was endorsed on the product but a warning was also required on the packaging and although this was present, it was not as big as the specified size. The defendant's compliance officer incorrectly, but genuinely, understood the report to constitute a pass report. That officer has since been replaced. 8 Charge 17. On 1 August 2002 the plaintiff's investigator saw a "tweety plush" on display for sale at the Go-Lo store, Church Street, Parramatta. The defendant had obtained a test report indicating failure to comply with standards. A recall and destruction strategy was undertaken. The item was either kept in store by personnel who did not properly comply with recall directives or it was inadvertently returned out of non-compliance stock from the defendant's warehouses. 9 Charge 31. On 29 August 2002 the plaintiff's investigator saw an "Ana star dress-up set" on display for sale at Crazy Prices store, Burwood. One of the items in the packaged set was a pair of pink-framed sunglasses. Toy sunglasses require specific labelling. In any event, in May 2002 the defendant had recognized that it did not have a pass test report for the sunglasses and it issued a stock destruction order directing that the sunglasses be removed from the dress-up sets and destroyed. They were not extracted from this item probably as a result of failure of staff to act in accordance with the instruction. 10 I turn next to the "timing of provision charges". Parts of the consent injunctive and ancillary orders obligated the defendant not to sell or offer for sale toys, other than those specified in a schedule, unless the defendant provided a pass test report in respect of such an item. There was a separate provision in the orders that copies of relevant test reports were to be provided within twenty four hours of a request in writing from the plaintiff. I have not recited the terms of the consent orders but the agreement of the parties includes concessions that the orders were ambiguous, that the defendant had a genuine belief that its conduct in relation to each of these charges did not constitute a breach of the Court's orders, but that it acknowledged that the plaintiff genuinely believed that the true construction of the orders did lead to the defendant's conduct in four cases (charges 7, 10, 14 and 16) constituting breaches. It is further expressly agreed that for the purposes of these proceedings the defendant does not contest the plaintiff's construction of the consent orders. 11 Charges 10, 7, 14 and 16 all relate to observations of items known as "plush doll" or "donkey plush" on display for sale at Go-Lo stores at Richmond, Winston Hills, Merrylands or Blacktown on either 9 or 10 July 2002. At the time the defendant was in possession of appropriate pass test reports and within six days of the inspector's observation in all cases except one, when it was within seven days, a copy pass test report was provided to the plaintiff and in all cases this was done within twenty four hours of receiving a request in writing from the plaintiff. The plaintiff's construction of the orders was that (as specified in par 7 thereof) a report should have been provided before any toy was offered for sale and that the obligation to supply a report within twenty four hours of request (as specified in par 11) was a separate obligation. 12 Charge 12 is different from these and more complex. The defendant had a test report in respect of a number of toys which report was dated 8 June 2002. Included in the tested toys was an "action soldier of fortune". This is a non-projectile toy. The defendant received and offered for sale a supply from the manufacturer of this product which was also known as "special force tank action play set". This version is a projectile toy. On 23 July 2002 an investigator examined the report of 8 Jun 2002. It was inadequate for application to a projectile toy. The defendant obtained the necessary report dated 25 July 2002 and supplied it to the plaintiff that day. The defendant had acted upon a review of a sample supplied by a manufacturer which was the non-projectile version. In fact a projectile version was supplied. The defendant has instituted procedures insisting that manufacturers provide samples of all versions and for checks to match samples supplied with post production delivery. 13 The issue before the Court is, what is the appropriate punishment for those contempts committed in those circumstances? It is an agreed fact that no one of the contempts was wilful nor, of course, were any of them contumacious. A footnote in the Supreme Court Practice to SCR Pt 55 r13 is in these terms: "There are three degrees of contempt viz: technical contempt, wilful contempt and contumacious contempt. Technical contempt usually is considered as contempt in theory only and not punishable by imprisonment: Shoppee v Nathan & Co 1892 1 QB 245. It is usually sufficient for the court to accept an apology from the person in default and to order him to pay the costs of the motion:" 14 In such a categorization all the contempts of the defendant have been manifestly technical and, I would adjudge especially in relation to charges 7, 10, 14 and 16, highly technical. The lastmentioned derived from an understandable misconstruction of ambiguous obligations and that alone would contra-indicate a need for penalty either as punishment or for deterrence. 15 There are matters to be assessed overall. 16 It should be noted that there is no suggestion of any harm consequent upon the defendant's failure to observe the consent orders. 17 I have already recorded that the present owner acquired the business operation in mid-2001. An acknowledgement that until early 2002 there were serious deficiencies in the defendant's compliance procedures should be gauged in the light of acquisition at that time. It is conceded that between January and July 2002 efforts at reform by the defendant were at times misdirected in some areas and less effective than they could have been, however the plaintiff expressly agreed that since July 2002 the focus and efficacy of the compliance reform process has been significantly improved. 18 I should summarize some further detail about these reforms. Since early 2002 the defendant has expended a considerable amount of time, money and other resources in improving its compliance systems and performance. Those efforts have been genuine, energetic and extensive. The defendant has comprehensively identified its product safety compliance obligations and instituted structural, procedural and cultural reforms to enable it effectively to comply with those obligations. That this has been achieved is confirmed by an acknowledged expert in compliance systems, not an employee of the defendant, retained as a consultant. 19 There is an express acknowledgment on the part of the plaintiff that the changes to the defendant's compliance system have been sufficiently comprehensive and sophisticated to persuade it that elements of the injunctive relief are no longer necessary. 20 The bona fides of the defendant acquire emphatic affirmation in the following which is a verbatim extract from the agreed statement of facts: "From February to July 2002, the Defendant undertook a number of steps to ensure that it was able to meet its obligations under the Consent Orders and under the Regulations, including: (a) the creation of a compliance department comprised of 4 full time staff (when there were formally (sic) no staff exclusively dedicated to compliance); (b) the compliance training of the compliance department and buyers, at a cost of more than $30,000; (c) the development of a compliance awareness across all employees of the Defendant; (d) the education of the Defendant's suppliers as to their compliance obligations when dealing with the Defendant; (e) the creation and development of detailed compliance systems and procedures, involving assistance from external consultants at a significant financial cost; (f) (pursuant to the Consent Orders) the withdrawal from sale of the entire range of toys, sunglasses, children's nightwear, candle holders and candle decorations in the Defendant's New South Wales stores as at the inception of the Consent Orders at a cost of approximately $65,000 plus loss of sales. The process of withdrawal involved: · The issuing of a directive from the Managing Director of the Go-Lo Discount Variety Stores to the manager of each of the Go-Lo stores, requiring the immediate withdrawal from sale, and the return to the warehouse, of specified stock items; · The conduct of meetings between the Managing Director and Area Managers, emphasising the importance of urgent and strict compliance with the directives. (g) the destruction of 533,022 units of stock following the above withdrawal at a cost of approximately $1.2 million. (The units destroyed did not only comprise those units which were proven to be in breach of relevant product standards. In light of the high cost of verification of compliance and the short timeframe involved, the Defendant made the commercial decision to destroy a number of lines of product without testing compliance); and (h) the retesting of more than 400 lines of toys at a cost of more than $35,000. The overall cost to the Defendant of implementing and developing its compliance system and complying with the Consent Orders over this period was in the region of $3.5 million. Efforts made from August 2002 to present From August 2002 to the present time, the Defendant has taken a number of further steps to strengthen its compliance capability and minimise the likelihood of future inadvertent breaches of the Consent Orders or the Regulations, including: (a) the engagement of Pricewaterhouse Coopers (PwC) to conduct an audit of the Defendant's compliance systems and procedures in August 2002; (b) the engagement of Sandra Birkensleigh, partner and Global Compliance & Regulation Practice Leader at PwC, and treasurer of the Australian Compliance Institute, to the position of National Compliance Executive responsible for overseeing and strengthening compliance at the Defendant and its sibling companies from 20 August 2002; (c) the significant modifications of the Defendant's compliance systems and procedures as a result of recommendations from PwC and Ms Birkensleigh; (d) the conduct of two comprehensive store audits, the first by the Defendant in August 2002 and the second by PwC in September 2002, specifically undertaken to make sure that no non-compliant stock was present in any Go-Lo store, including store rooms and office areas; (e) the conduct of regular ongoing informal store checks since the store audits; (f) the compliance training of all the Defendant's staff, and the making of all staff accountable for compliance to the appropriate degrees. This step necessitated the termination of employment of one Store Manager in late 2002 because that employee was not prepared to take an active involvement in compliance; (g) the endorsement of a compliance policy in September 2002 that: "We will only offer for sale or sell goods to our customers that comply with the relevant state and federal legislation and regulations, together with any prescribed standards. We will strive to adopt the full scope of any relevant standard that is not specifically prescribed by legislation/regulation over an agreed period of time." (h) the establishment of a compliance committee which now meets on a regular basis; and (i) the adoption of significant improvements in the Defendant's technological infrastructure, directed to upgrading the compliance capacity and functionality of the Defendant's computer system, at a cost of $500,000. The overall direct cost to the Defendant of improving and running its compliance system and complying with the Consent Orders over this period was in the region of $1.9 million, and the estimated business disruption costs are $5 million. " 21 Mr Fagan SC, who appeared with Mr Stowe for the defendant, drew attention to Adam Phones Limited v Goldschmidt & Ors 1999 4 All ER 486 where an application for committal (for contempt) was held to be such a disproportionate response to a trivial or blameless breach of a court order that it was dismissed and the applicant ordered to pay the costs. Mr Fagan did not submit that the present case was in such an extreme category. 22 I consider that it is important that the strenuous efforts on the part of the defendant to ensure compliance were commenced well before the present motion was instituted. Whilst the plaintiff has an interest in the proceedings the issue is the contempt of orders made by the Court which are not of some lesser account because they were made by consent. What is at stake is the appropriate step for the Court to take to discipline breach of its orders. The proceedings are not to penalise offences against statute or regulation. As agreed by the parties, the obligations undertaken by the defendant were stricter than required by the generally applicable law. 23 I have concluded that, taking into account all of the matters above recounted, it suffices for the Court to find the breaches and consequent contempts proved and to accept the defendant's apology. I would regard it as appropriate to order the defendant to pay the plaintiff's costs of the motion, however, I am informed that the parties have agreed to this and it is anticipated that when judgment is delivered those costs will in all likelihood have already been paid by the defendant. 24 My formal orders are: