Australian Competition and Consumer Commission v Matta

[1999] FCA 1604

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Matta [1999] FCA 1604

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v SHEREF JOSHUA MATTA
QG 125 of 1998

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v SHEREF JOSHUA MATTA

QG 127 of 1998

DOWSETT J
5 NOVEMBER 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 125 OF 1998

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	SHEREF JOSHUA MATTA Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY		QG 127 OF 1998

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	SHEREF JOSHUA MATTA Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	5 NOVEMBER 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.On each count the respondent is fined five hundred dollars ($500.00), to be paid within three (3) months.

2.The respondent is to pay the applicant’s costs of the proceedings, including reserved costs.

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 125 OF 1998

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	SHEREF JOSHUA MATTA Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY		QG 127 OF 1998

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	SHEREF JOSHUA MATTA Respondent

JUDGE:	DOWSETT J
DATE:	5 NOVEMBER 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. I have previously recorded my satisfaction that the respondent, Sheref Joshua Matta, is guilty of two offences of being directly, knowingly concerned in contraventions of par 65C(1)(a) of the Trade Practices Act 1974 in that he was directly, knowingly concerned in the supply by a company of which he was a director to another company, trading under the trade name of Hound Dog, of sunglasses which did not comply with the relevant Australian Standard.  The details of the deficiencies appear in my earlier reasons but in general, the problem was that they ought to have been labelled as unsuitable for use when driving and were not so labelled.  Clearly enough, the absence of such a warning posed a significant threat to persons who purchased and wore the sunglasses whilst driving and to other people who might be affected by their diminished vision, including potential passengers, persons travelling in other cars and pedestrians.

2. It should not be thought that I take other than a serious view of the offences.  The Australian Standards are scientifically designed to meet real needs.  Those who take it upon themselves to manufacture and supply products such as sunglasses obviously have both a legal and a moral duty to comply with such Standards.  My decision in this matter indicates that I am satisfied that Matta was aware that the sunglasses did not comply with relevant Standards and that they were to be supplied notwithstanding such non-compliance.

3. For what it is worth, I think it is likely that he was, to some extent, overborne by his business partner, Farid.  Matta was then a relatively young man of about twenty-three years, but he was a professional in the sense that he was qualified as an optician and so ought to have had some awareness of the standards of his calling, including legal requirements such as the Australian Standards.  It was a serious error of judgment to become involved in this distribution.

4. It is suggested that I ought not record a conviction against him simply because he wishes to be involved in the calling of optician, and a recorded conviction may prejudice him in this regard.  I am, however, of the view that where an offence is directly relevant to the offender’s calling, it is all the more important that the fact of such conviction be available to those responsible for regulating admission to that calling.  It may be that with the passage of time, the significance of the conviction abates, but I think it proper that anybody considering this man's suitability for registration as an optician should be aware of these offences.  I consider it appropriate to record convictions in respect of both counts, and I do so.

5. The offences were obviously motivated by commercial considerations.  It therefore follows that a pecuniary penalty is likely to be the most appropriate form of punishment.  The punishment must be such as to pose a deterrent to others who may be minded to ignore the Standards.  As was pointed out by counsel for the applicant, the intention of the Act is not that people be punished for breaching it, but that it be observed.  On the other hand, it is most important that a young man such as Matta not be crushed by a pecuniary penalty which is impossible for him to meet.  Such a penalty  may seriously hinder his advancement in life, or, even worse, incite him to look to other criminal activity in order to meet present financial hardship.  I must also keep in mind the fact that he is faced with what will undoubtedly be a substantial bill for his own legal costs.  It seems likely that he will also have to pay the costs of the applicant.  In those circumstances, I consider that a moderate fine is required.  On each count I will fine him the sum of $500, a total of $1000.

6. The respondent should pay the applicant's costs of the proceedings.  I order the respondent to pay the applicant's costs of the proceedings, including reserved costs.

7. With respect to the fines, I will allow the respondent three months in which to pay.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             17 November 1999

Counsel for the Applicant:	Mr D Boddice
Solicitor for the Applicant:	Commonwealth Director of Public Prosecutions
Counsel for the Respondent:	Mr N Ferrett
Date of Hearing:	5 November 1999
Date of Judgment:	5 November 1999