Australian Competition & Consumer Commission v MHG Plastic Industries Pty Ltd

[1999] FCA 949

Australian Competition & Consumer Commission v MHG Plastic Industries
Pty Ltd [1999] FCA 949

Australian Competition & Consumer Commission v MHG Plastic Industries Pty Ltd [1999] FCA 949

AUSTRALIAN COMPETITION & CONSUMER COMMISSION v

MHG PLASTIC INDUSTRIES PTY LTD

N 418 OF 1999

EMMETT J

28 JUNE 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N418 OF 1999

BETWEEN:

AUSTRALIAN COMPETITION & CONSUMER COMMISSION

Applicant

AND:

MHG PLASTIC INDUSTRIES PTY LIMITED

Respondent

JUDGE:

THE COURT ORDERS THAT:

Note:

EMMETT J

DATE:

28 JUNE 1999

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT (No.1)

1 On 15 June 1999, I delivered my reasons for concluding that protective helmets marketed by the respondent do not comply with a standard ("the Standard") within the meaning of section 65C of the Trade Practices Act 1974 (Cth) ("the Act"). The matter is now before me for the purposes of determining the appropriate relief in the light of the conclusions which I have reached.

2       MHG has sought to read an affidavit deposing to tests conducted recently in relation to helmets which are marketed by other manufacturers. The tests, similar to those which had been conducted in relation to the respondent's helmets, showed that the helmets of the other manufacturers did not comply with the Standard in that the helmets failed the penetration tests at sites described as G and H in my earlier reasons. It is said that the material is relevant on two bases: first, to indicate selective enforcement; and, secondly, to indicate that there would be no utility in orders restraining the respondent from continuing to supply its helmets. I do not consider that either is a ground for admission of the material.

3       This is not a prosecution. Even if it were, it seems to me, it would not be relevant to know that whoever is responsible for enforcement of relevant prohibitions is not enforcing the provisions against some members of the community, even though it seeks to enforce against the particular respondent. If there were selective enforcement, that might be a matter appropriate for inquiry as to the enforcement authority but that is not an issue before me.

4 So far as the second ground is concerned, it is not relevant to say that there are manufacturers who are contravening the Act in greater numbers than a particular respondent. That seems to be the thrust of the contention. The evidence relates to the testing of helmets of a manufacturer who supplies a significantly greater proportion of the market than the respondent. It is not for me now to speculate whether some proceedings might be taken in the future in relation to that supplier or any other supplier. However, if I am satisfied, as I have been, that the respondent's helmets do not comply with the Standard, it is irrelevant to know that there are other suppliers who are also committing contraventions of the Act, however disturbing that might be to any member of the community.

5       I reject all but the last paragraph of the affidavit in question.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        28 June 1999

DATE OF HEARING:       28 June 1999

DATE OF DECISION:       28 June 1999

PLACE:        SYDNEY

#DATE 28:06:1999

Appearances

Counsel for the Applicant:        S.J. Gageler

Solicitor for the Applicant:        Australian Government Solicitor

Counsel for the Respondent:        G.A. Flick SC

Solicitor for the Respondent:        Freehill Hollingdale & Page