Australian Competition and Consumer Commission v Farid
[1999] FCA 1457
•18 OCTOBER 1999
FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Farid [1999] FCA 1457
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v WAGIH VICTOR FARID
QG 124 of 1998
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v WAGIH VICTOR FARID
QG 126 of 1998DOWSETT J
18 OCTOBER 1999
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 124 OF 1998
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
ApplicantAND:
WAGIH VICTOR FARID
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 126 OF 1998
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
ApplicantAND:
WAGIH VICTOR FARID
Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
18 OCTOBER 1999
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. Applications QG 124 of 1998 and QG 126 of 1998 be dismissed.
2.The applicant pay the respondent's costs of the proceedings in respect of each application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 124 OF 1998
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
ApplicantAND:
WAGIH VICTOR FARID
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 126 OF 1998
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
ApplicantAND:
WAGIH VICTOR FARID
Respondent
JUDGE:
DOWSETT J
DATE:
18 OCTOBER 1999
PLACE:
BRISBANE
REASONS FOR JUDGMENT
I have two complaints against Wagih Victor Farid that in breach of s 79(1) of the Trade Practices Act 1974 (Cth) (the “Act”), he was knowingly concerned in a contravention of s 65C(1)(a) of the Act by a company called Shercind Pty Ltd (of which he was a director) in that the said company, in trade or commerce, supplied goods which were of a kind likely to be used by a consumer, being goods of a kind in respect of which there was a prescribed consumer product safety standard, which goods did not comply with that standard. The allegations in the two complaints relate to two pairs of sunglasses purchased by the witness C.M. Dunlop on 6 March 1998 at the Gold Coast, one pair at the Pacific Fair shopping centre and the other at the Robina shopping centre. The sunglasses bought at Pacific Fair are ex 4. They are the subject of Application 126. The sunglasses bought at Robina are ex 6. They are the subject of application 124.
In application QG 124/98 it is alleged that ex 6 ought to have been labelled as "Specific purpose sunglasses - for protection against ultra-violet radiation in sunlight for specified environments", with the additional words "Not suitable for driving" or "These lenses distort colour perception and are inappropriate for driving". It is said that ex 4, which is the subject of application QG 126/98, breaches relevant standards in that firstly, the field of view of each lens is less than 30 millimetres and secondly, that it ought to have been labelled "Specific purpose sunglasses for protection against ultra violet radiation in sunlight for specified environments".
The evidence demonstrates that the sunglasses were manufactured by Shercind, two directors of which were the present respondent, Mr Farid, and another person called Matta. At some time between August 1997 and early March 1998, exs 4 and 6 were supplied by Shercind to a company trading under the name Hound Dog, for retail sale by that company. As I understand it, none of these matters is in dispute. It is also not disputed that there were relevant safety standards and that both pairs of spectacles failed to comply with those standards as alleged.
The relevant question for present purposes is whether a tribunal of fact could be satisfied beyond all reasonable doubt that the respondent was knowingly concerned in any breach constituted by the supply of these spectacles by Shercind to Hound Dog. It is accepted that to commit such an offence, it would be necessary that the respondent know of the existence of the relevant standards and that the spectacles breached those standards. The respondent submits that there is no case to answer on either charge because the evidence is not capable of satisfying me of such knowledge to the requisite standard.
The respondent had some previous experience in the sale of sunglasses. In 1996 he participated with Mr Matta in a discussion with the witness, Ms Jurkov, who is a principal of Hound Dog, indicating to her that the products (of which exs 4 and 6 are examples) complied with relevant Australian Standards. Further, in 1997, the respondent and Mr Matta caused Shercind to enter into an agreement with another distributor pursuant to which it warranted that the spectacles to be supplied would comply with all relevant Australian Standards, including standards relating to ultra violet protection. Exhibits 4 and 6 bear labels indicating that they comply with all Australian Standards. From this evidence, I could infer that the respondent was aware of the existence of standards of some kind in 1996 when he spoke to Ms Jurkov and thereafter.
The incidents of non-compliance were not necessarily obvious. The appropriate labelling depended upon testing of the spectacles to ascertain aspects of their performance. Only after such testing could one tell, by reference to the standards, how they should be labelled. As to the second basis of complaint, that the field of vision of ex 4 is too small, that could only be determined by measurement. The extent of non-compliance was only 2 mm. The evidence established that Matta was primarily responsible for technical aspects of these products.
The matter is complicated by the fact that on 20 January 1998, in the middle of the period during which it is alleged that the supply occurred, the respondent had a conversation with the witness, Dunlop, in which she drew to his attention the fact that there were special requirements relating to spectacles such as these. It may well be that thereafter, he was on notice as to the content of the relevant standards, making it more difficult for him to plead ignorance of the requirements of those standards, but that would leave the question of whether or not he was aware of the fact that exs 4 and 6 did not comply with those standards. In any event, the value to the prosecution of the conversation with Ms Dunlop on 20 January is very limited because it is at least equally likely that the spectacles in question were supplied prior to that conversation as that they were supplied thereafter. Thus, for present purposes, I must proceed upon the basis that at the time at which Shercind supplied the spectacles to Hound Dog, the respondent did not have the benefit of the information drawn to his attention by Ms Dunlop on 20 January.
In those circumstances, the only evidence upon which the prosecution can rely to show that the respondent was aware that exs 4 and 6 did not comply with the requirements of the standards are his awareness of the existence of standards, his knowledge of the content of the distribution agreement, the labelling which actually appears on the spectacles and the evidence that he held out the spectacles to Ms Jurkov as complying with all relevant standards. There is also evidence that the company had not conducted any tests on its own behalf until after all relevant events for present purposes had occurred.
As I have said, I am willing to infer that the respondent was aware of the existence of standards, but I can find no basis in the evidence for an inference that he was aware that these spectacles did not comply with those standards. His representations to Ms Jurkov demonstrated a belief that they complied with the standards, but such belief could have come from a number of sources apart from actual testing on his part. Indeed, as I have said, it seems that there had been no testing. I cannot see how the representation, by itself or with the other evidence, can lead to an inference that the respondent knew that exs 4 and 6 did not comply with the relevant standards.
It is a circumstantial case, and as has often been pointed out, particularly in Pereira v Director of Public Prosecutions (1988) 63 ALJR1 at 3, the onus is upon the prosecution to prove knowing involvement beyond all reasonable doubt. That factual outcome depends upon its being the only rational explanation consistent with the facts. The evidence goes nowhere near that requirement in the present case. In those circumstances I have come to the conclusion that no tribunal of fact, properly directed on the law, could convict. There is no case to answer on either charge.
The applications will be dismissed.
I order the applicant to pay the respondent's costs of the proceedings in respect of each application.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 22 October 1999
Counsel for the Applicant: Mr D Boddice Solicitor for the Applicant: Commonwealth Director of Public Prosecutions Counsel for the Respondent: Mr G Diehm Solicitor for the Respondent: Turnbull & Company Date of Hearing: 18 October 1999 Date of Judgment: 18 October 1999
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