Australian Competition and Consumer Commission v MHG Plastic

[1999] FCA 757

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v MHG Plastic
Industries Pty Ltd [1999] FCA 757

AUSTRALIAN COMPETITION & CONSUMER COMMISSION v

MHG PLASTIC INDUSTRIES PTY LTD

N 418 OF 1999

EMMETT J

31 MAY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 418 OF 1999

BETWEEN:	AUSTRALIAN COMPETITION & CONSUMER COMMISSION Applicant
AND:	MHG PLASTIC INDUSTRIES PTY LTD Respondent

JUDGE:	EMMETT J
DATE:	31 MAY 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant has tendered a report by B. Dowdell, G.J. Long, J. Ward and M. Griffiths entitled, “A Study of Helmet Damage and Rider Head/Neck Injuries for Crash Involved Motorcyclists”.  The tender is objected on the ground of relevance.  The applicant contends it is relevant to two issues.

2. The first issue concerns the construction of Australian Standard 1698-1988 (“the Standard”).  The introduction to the report states as follows:

   “The objective of the study was to improve head and neck protection to motorcyclists by providing information on which to base a revision of the Australian Motorcycle Helmet Standard, AS1698 ‘Protective Helmets for Vehicle Users’.  It is known from in-depth crash studies and statistical studies that helmets reduce both the frequency and severity of injuries to motorcyclists.  It appeared possible to gain further injury reduction by improvements in helmet design.”

3. I consider that, where there is an issue as to the construction of the Standard, it is relevant to consider material which, on the evidence, would have been available to those responsible for the writing and drafting of the Standard.  The ultimate weight which I give to the document is a matter for debate.  However, I consider that the report is, on its face, relevant to the question of the construction of the Standard.

4. The second basis upon which the document is tendered is that it is said to be relevant to the question of relief.  The objection taken on behalf of the respondent is that the report does not refer specifically to helmets manufactured by the respondent.  An analogy was drawn between the respective degrees of safety that one might enjoy travelling in different makes of motor vehicle.

5. However, as I, on a brief examination of the report at this stage, understand it, the report is directed to indicating the seriousness of injury which could result from impact at particular points.  Although a given helmet, even though it failed a test, might nevertheless afford adequate protection, it is relevant to understand at least the possibility as to the seriousness of injury which could result from impact at a particular point.  Again, while the question of the weight of the report will be a matter for debate, I consider that it is relevant to the second question as well. 

6. Accordingly, I will admit the report.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            31 May 1999

Counsel for the Applicant:	S.J. Gageler;  G.R. Kennett
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	G.A. Flick SC
Solicitor for the Respondent:	Freehill Hollingdale & Page
Date of Hearing:	31 May 1999
Date of Judgment:	31 May 1999