Commissioner for Fair Trading v Microwave Safe Australia Pty Ltd - [2006] NSWSC 287

CITATION: Commissioner for Fair Trading v Microwave Safe Australia Pty Ltd & Anor [2006] NSWSC 287

HEARING DATE(S): 8, 9, 10, 13, 14 March 2006

JUDGMENT DATE :
19 April 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Studdert J

DECISION: (1) Declarations as sought in paras 1(a), 1(c), 1(e), 1(f) and paras 2 and 3 of the summons; (2) Order as sought in para 5 of the summons, save for the inclusion in (b) after the word "tested" of the word "regularly"; (3) Order as sought in para 6 of the summons, save, again, for the addition in (b) after the word "tested" of the word "regularly"; (4) Order that the defendants pay the plaintiff's costs; (5) To enable the parties the opportunity of being heard as to the form of the corrective advertisement the Court intends to order, the matter be listed for mention on 26 April 2006.

LEGISLATION CITED: Electricity (Consumer Safety) Act, 2004
Electricity Safety Act, 1945
Fair Trading Act, ss, 42, 44, 62, 65, 67
Occupational Health and Safety Act

CASES CITED: Aaron's Reefs Limited v Twiss (1896) AC 273
Adler v ASIC (2003) 179 FLR 1
Australian Competition and Consumer Commission v Top. Snackfoods Pty Limited & Ors (1999) ATPR 41-708
Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45
Domain Names v .au Domain Administration (2004) 139 FLR 215
Global Sportsman Pty Limited v Mirror Newspapers (1984) 2 FLR 82
Heydon, Trade Practices Law
Hornsby Building Information Centre v Sydney Building Information Centre (1978) 140 CLR
Medical Benefits Fund of Australia Limited v Cassidy (2003) 135 FCR 1
Rural Press Limited v The ACCC (2003) 216 CLR 53
Siddons Pty Limited v The Stanley Works Pty Limited (1991) 29 FCR 14
Taco Co. v Taco Bell (1982) 42 ALR 177
World Series Cricket Pty Limited v Parish (1977) 16 ALR 181

PARTIES: Commisioner for Fair Trading, Department of Commerce (Plaintiff)
Microwave Safe Australia Pty Limited (1st Defendant)
Jason Crosson (2nd Defendant)

FILE NUMBER(S): SC 11817/05

COUNSEL: P. Renehan (Plaintiff)
M. Hadley (Defendants)

SOLICITORS: Department of Commerce and Fair Trading (Plaintiff)
KQ Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Wednesday 19 April 2006

11817/05 COMMISSIONER FOR FAIR TRADING, DEPARTMENT OF COMMERCE v MICROWAVE SAFE AUSTRALIA PTY LIMITED & ANOR
JUDGMENT

1 HIS HONOUR: In these proceedings the Commissioner for Fair Trading, Department of Commerce seeks various declarations and restraining orders against the first defendant, Microwave Safe Australia Pty Limited, and the second defendant, Jason Crosson. The plaintiff also seeks orders pursuant to s 67 of the Fair Trading Act requiring the publication of corrective material.

2 At the outset it is necessary to outline the nature of the defendants’ business.

3 The second defendant holds the degree of Bachelor of Applied Science from the Sydney University of Technology, having graduated in 1993. In 1995 he decided to establish a business of microwave radiation testing, servicing microwave ovens in workplace environments. He registered the business “Microwave Safe Australia” (MSA), and later, in 2000, the first defendant was incorporated. Since that time the second defendant has been the sole director of the first defendant and he acknowledged in cross examination that most of the major decisions taken by the first defendant were made by him. He was the person who determined the content of the various Workplace Safety Bulletins relevant to this case and he was alert to what appeared on the first defendant’s website and he accepted responsibility for it.

4 In his lengthy affidavit, Mr Crosson traced how he became involved in microwave testing and the development of the first defendant's business since the date that company was incorporated. According to the second defendant, the business of MSA has grown steadily over the years, and there are now approximately 4500 customers in New South Wales and the Australian Capital Territory. In addition, there are franchised offices in Victoria, Western Australia, Queensland and South Australia.

5 Prior to 1999 the second defendant did most of the microwave testing personally, but since then other personnel have been involved in the test work, having first satisfied the defendants’ examination requirements. In a manual created by the second defendant in 1999 instruction was afforded to MSA employees, and this is set out in the second defendant’s affidavit (at paras 33-38).

6 MSA offered what is described in its manual as a “three point safety analysis”, namely:

“1. Physical condition inspection.

2. Radiation emission inspection.

3. Power output inspection.”

7 According to the second defendant, a testing device satisfying the specifications outlined in para 9 of the second defendant’s affidavit costs between $900-1800, and the annual calibration costs by a recognised laboratory range from $250 to $700. Again, according to the second defendant, the cost to the customer of providing MSA service has varied from $45 to $50 per unit in the event of a customer having numerous units to test, and in the event of the customer having only a single oven, the cost is $82.50 per oven.

8 The second defendant contends that the first defendant is presently “the world leader in radiation testing for microwave ovens”, testing between 10,000 and 12,000 ovens annually in New South Wales alone.

9 The evidence before this Court is that the defendants are presently engaged in a substantial business. Of particular significance is this case, is point two of the three point safety analysis, namely testing for radiation leakage.

10 On 23 June 1998 Comcare responded to a letter written by the first defendant to it. The author of the response was Mr McFarlane, the Manager of the OHS & Licensing Division, and he wrote:

"Dear Mr Crosson

OCCUPATIONAL HEALTH & SAFETY (COMMONWEALTH REMPLOYMENT) ACT, 1991 (OHS(CE) ACT)

RE: Microwave Oven Radiation

Further to your letter dated 9 June, 1998 in relation to an employer's 'duty of care' regarding the control of radiation leakage from microwave ovens in the workplace, the following information is supplied:

Comcare administers the above Act on behalf of the Commonwealth. It applies to Commonwealth employees only.

Section 16 of the OHS(CE) Act states that 'an employer must take all reasonably practicable steps to protect the health and safety at work of the employer's employees.' The employer's general duties are broad and continuing. The employer must provide and maintain a working environment (including plant and systems of work) that is safe for the employer's employees and without risk to their health.

Approved Codes of Practice provide practical guidance for complying with the provisions of the Act or Regulations and are recommended for use where applicable. While they are not legal requirements in themselves, they may be used in legal proceedings to show whether a person has failed to meet their requirements set out in the Act or Regulation.

The Safety Rehabilitation and Compensation Commission (SRC Commission) has issued a Code of Practice for Non-Ionising Radiation under the OHS(CE) Act, which was approved by the Minister on 16 September, 1992 (attached).

Radiofrequency Radiation, Part 1:Maximum Exposure Levels - 100kHz to 300GHz.

This means, in essence, that employer's would need to comply with the requirements of the Australian Standard in order to demonstrate that they have met their duty of care in relation to the control of radiation leakage from microwave ovens in the workplace.

Radiofrequency Fields, Part 1:Maximum Exposure Levels - 100kHz to 300GHz.

Whilst this new organisation will not remove an employer's general duty of care under the OHS(CE) Act, it may mean that the SRC Commission will defer to that Agency for future guidance on radiation issues. In the interim, the current Code of Practice remains in force as practical guidance for OHS issues in the Commonwealth."

11 I am satisfied that that letter does not reflect the current attitude of Comcare but it has been adopted by the defendants as supporting its attitude about testing for microwave radiation leakage, and Mr Crosson's evidence was that he downloaded "Comcare OHS Fact Sheet No. 38 - April 2004" from the Comcare website ("JSC 17"), and that the item was still there recently, including this "Duty of Care" statement:

"Duty of care

Occupational Health and Safety (Commonwealth Employment) Act 1991

· ARPANSA website (reference)

This advice clearly states that routine testing of microwave ovens for leakage is not required."

12 I do not propose to refer to the content of all the exhibits to Mr Crosson's affidavit to which Mr Hadley referred in the course of his submissions, but Mr Crosson's evidence is to the effect that, having seen the opportunity to provide a service testing microwave ovens, he made extensive inquiries of various authorities, and informed himself on workplace safety issues. Further, Mr Crosson has adopted and maintained the stand that what is referred to in this judgment as the manufacturing standard sets a standard to be maintained for so long as an oven is in use, and that periodic testing is justified to see that the standard is maintained.

13 Amongst the promotional means employed by the defendants to advance their business have been publications described as “Workplace Safety Bulletins” and material placed upon the first defendant’s website. The promotional material has been directed at both government and private employers throughout the State.

14 It is contended by the plaintiff that in publishing certain of this material the first defendant has engaged in conduct offending s 42(1) of the Fair Trading Act. It is also contended that the first defendant has engaged in other conduct offending the same section, and all such offending conduct is identified in para 1 of the summons. A declaration is sought against the second defendant pursuant to s 62(1)(d) of the Fair Trading Act to the effect that he has been knowingly concerned in the conduct of the first defendant about which complaint is here made. Both defendants deny any contravention of the statute, and maintain that they have not engaged in any conduct that was misleading or deceptive, or any conduct likely to mislead or deceive.

15 Mr Hadley submitted that there is a central underlying issue in this case concerning microwave ovens used in the workplace, the essence of which is this:

(i) the plaintiff contends that the discharge of an employer's duty of care to employees does not call for regular testing of microwave ovens, whereas the defendants contend to the contrary;

16 I will bear that submission in mind in considering the various matters addressed in the summons.

17 In order to establish each of the contraventions alleged against the first defendant, the plaintiff must prove on the balance of probabilities the making of the various representations and their misleading or deceptive character. The plaintiff must also, of course, prove that any representation the subject of complaint was made in trade or commerce. As to the latter requirement, it is clear that all the material in question was promotional in the interests of the defendants’ business, and I am satisfied all such material was published in trade or commerce.

18 In determining whether a particular representation is made, and in determining whether a representation made offends s 42(1) of the Fair Trading Act, the principles to be considered include the following:

(i) s 42 can be infringed by conduct capable of creating error in the recipient. Evidence that some person was in fact misled is admissible and may be persuasive, but it is not essential: see Taco Co. v Taco Bell (1982) 42 ALR 177 per Deane and Fitzgerald JJ at 202;

(ii) the test is objective and the court must decide the question for itself: again, see Taco at 202;

(iii) it is not necessary to establish that the defendant intended to mislead or deceive: Hornsby Building Information Centre v Sydney Building Information Centre (1978) 140 CLR 216 at 228;

(iv) conduct is likely to mislead or deceive if there is a real possibility of deception: Global Sportsman Pty Limited v Mirror Newspapers (1984) 2 FLR 82, and Domain Names v .au Domain Administration (2004) 139 FLR 215 at [17];

(v) s 42 will be infringed if in a particular case the language used is likely to convey to a significant number of those persons to whom the publication was made an erroneous belief: see Siddons Pty Limited v The Stanley Works Pty Limited (1991) 29 FCR 14 at 20 and Domain Names (supra) at [28];

(vi) where a representation is made to the public or a section of the public, it is necessary to assess the effect of the conduct on the “ordinary” or “reasonable” member of the group of recipients to determine whether misleading has occurred: see Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 at [102];

(vii) the apparent tension between propositions (v) and (vi) was addressed in Domain Names at [28] where the court said that “a finding that reasonable members of the class would be likely to be misled carries with it the determination that a significant number of recipients of a representation would be misled”;

(viii) a representation that is true as far as it goes may still be misleading because of what is omitted: see Hornsby Building Information Centre (supra) at 227; see also Heydon, Trade Practices Law at [11,600];

(ix) to determine whether a representation is conveyed, it is necessary to consider the whole document and to determine whether a conclusion is reasonably open from such reading: see Aaron’s Reefs Limited v Twiss (1896) AC 273 per Lord Halsbury LC at 281; and see again Heydon, Trade Practices Law at [11,590];

World Series Cricket Pty Limited v Parish

19 Against this background, I will now consider the various matters raised by the summons.

20 Firstly, the plaintiff seeks a declaration that the first defendant has contravened s 42 of the statute by making the following representation:

(a) That employers, in order to meet their duty of care towards employees, needed to have microwave ovens in the workplace tested regularly for radiation leakage.

21 A number of publications are relied upon in the summons as sources of the above representation, and I shall address each of these in turn.

The contents of a document styled “Workplace Safety Bulletin” and entitled “Microwave Oven Radiation Safety” and distributed by the first defendant to employers within New South Wales

22 There are in evidence a number of different versions of the bulletin described as the “Workplace Safety Bulletin”, but Mr Renahan identified as the document to be considered the document appearing at p 168 of the plaintiff’s bundle. I am satisfied that the defendants were responsible for its publication and that it was widely distributed.

23 That document has a logo in the right top hand corner that has no message attached to it.

24 Below the logo the body of the document is in the following terms:

“ Microwave Oven Radiation Safety

Government Testing Authorities have recently confirmed that it is possible for microwave ovens that show no sign of physical damage to emit radiation levels that exceed the Australian Standard and International emission limit.

Australian Standards and the National Health & Medical Research Council have set guidelines for permissible levels of radiation leakage from microwave ovens used in a workplace or public place environment.

The most practical way to accurately determine whether the above guidelines are being met is to have the microwave ovens tested in accordance with National Health & Research Council procedures.

'Microwave ovens used in "workplace staff rooms" are not excluded from the approvals process and should be marked with approvals identification signifying compliance with AS/NZ 3350.2.25:1997.'¹

'Employers would need to comply with the requirements of the Australian Standards in order to demonstrate that they have met their "Duty of Care" in relation to the control of radiation leakage from microwave ovens in the workplace'²

Although not mandatory, testing of microwave ovens may be included as part of a preventative maintenance program and will ensure Australian Standard radiation emission levels are being met. Departments will be taking a further step in their 'duty of care' towards this issue.

Small leakage detectors

should not be used,

Microwave Safe Australia

To arrange inspections or for further information call

1300 305 303

WORKPLACE SAFETY BULLETIN

[email protected]

25 The document is stated to be a Workplace Safety Bulletin. Having informed the reader that it is possible for microwave ovens with no apparent damage to emit excessive levels of radiation, it refers to set guidelines and then informs the reader that the practical way of finding out whether the guidelines are being met is to have the ovens tested. The bulletin goes on to refer to the specified Australian Standard and then to the need for employers to comply with the requirements of Australian Standards (including inferentially that Standard specifically identified). In order to discharge their duty of care, the reader is then advised in the next paragraph, “Though this is not mandatory, testing of ovens may be included as part of a preventative maintenance program.”

26 It seems to me that a reasonable reader of the class to which this bulletin was being directed might well conclude that under the Australian Standard and by reason of their duty of care towards their employees, employers were required to have their microwave ovens tested for radiation leakage. Earlier versions of the bulletin urged annual testing: see the version at p 51A of the plaintiff’s bundle of documents and the version at p 96 of the same bundle. These earlier versions were issued around 2000 and in the period September/November 2002 respectively. The version appearing at p 168 of the bundle was current in 2003 and was in the form received by three people who gave evidence, namely Robert Case, Dennis Rogers and Christine Di-Bella. Whilst the document used in the bulletins sent to these three witnesses did not specify annual check-ups, what it did urge was a system of preventative maintenance and that introduced the concept of a regular system of maintenance.

27 I find that the representation set out in para 1(a)(i) of the summons has been proved to have been conveyed.

28 I have been assisted in this case in determining whether the meaning contended for was reasonably open to the recipients of the bulletin by the responses of those recipients who gave evidence. Those responses I do not regard as being either “extreme” or “fanciful”: see Camponar v Nike International (supra) at [105].

29 Mr Case is an accountant who has been employed by United Protestant Association of New South Wales Limited (UPA). UPA operates a number of government funded aged care facilities. He received the bulletin on 15 July 2003 in an envelope bearing a Department of Commerce logo. In para 5 of his affidavit, Mr Case deposed:

Workplace Safety Bulletin

30 Mr Case impressed me as a thoughtful and responsible witness.

31 Ms Di-Bella received a copy of the bulletin shortly before 4 August 2003. Ms Di-Bella was at that time employed with the New South Wales Police Service as a senior occupational health and safety officer. The bulletin was sent to her home in a Department of Commerce envelope. In para 8 of her affidavit, she deposed:

Workplace Safety Bulletin

WorkCover News

32 In cross examination Ms Di-Bella said that she perceived some contradiction in the paragraph of the bulletin commencing with the words “Although not mandatory…”. Ms Di-Bella was asked this question and gave this answer (T 47):

33 Later, at T 50, Ms Di-Bella was asked these questions and gave these answers:

“Q. So, because you referred to a previous document and you refer to having this impression that employers must test their microwave ovens, I wanted to know whether you got that impression from this document--
A. Yes.

Q. Or the earlier document?
A. This one.

34 Ms Di-Bella was by no means an unintelligent witness.

35 Mr Rogers is employed by the Sydney West Area Health Service as an occupational health and safety co-ordinator, and he has held that position since 1997. He had passed on to him by another member of the service a copy of the bulletin and with it an envelope from the Department of Commerce. The receipt prompted him to communicate with the New South Wales Workcover Authority. He deposed in para 5 of his affidavit sworn on 24 March 2005:

had to

36 In cross examination Mr Rogers said that because of his profession, knowledge and background he realised that testing was not mandatory (T 84). Mr Rogers was plainly an intelligent and honest witness.

37 Plainly, Mr Rogers was not deceived or misled by the bulletin, but I accept that he entertained the perception as to how he considered the bulletin might reasonably be understood.

38 Mr Tasker and Mr Hennessy were further witnesses called by the plaintiff. Each was the recipient of a Workplace Safety Bulletin but neither bulletin was in precisely the same form as that appearing at p 168 of the plaintiff’s bundle. The bulletin Mr Tasker received had an additional paragraph relating to electromagnetic field litigation. His bulletin was received in an envelope headed “Workplace Safety Bulletin”. When he first read it, he believed it came from a government authority and conveyed to him the implication that he was obliged to have microwave ovens in the workplace tested. However, upon a careful reading he said he noted it disclosed it was not mandatory. Nevertheless, it left him with the belief that his company would be exposed to litigation if it did not test its microwave ovens.

39 Mr Hennessy, who was the director of an engineering company, received a copy of the bulletin in July 2003. His copy differed from the form of the bulletin at p 168 in the paragraph commencing “With offices throughout Australia…”. That paragraph included a description of Microwave Safe Australia as being Australia’s only national specialist microwave radiation testing body. The document also contained an additional heading above the words “Microwave oven radiation safety”. The additional heading reads “Facility managers of NSW and ACT”. Mr Hennessy is the director of an engineering company. The letter was received by the company in July 2003 in a Department of Commerce envelope which was addressed to a co-director. He was not distracted by the bulletin but considered “MSA were implying that the department either fully endorsed or were perhaps even responsible for the contents” and also that the bulletin “was designed to mislead the recipient into thinking they must have their microwaves checked by MSA”. Mr Hennessy raised the matter with the Minister for Commerce who responded that the use of the department’s envelopes was an error and that steps were being taken to ensure that it did not happen again (see the letter Exhibit A).

40 In making the representation expressed in para 1(a), and which I have found to have been conveyed, was the first defendant engaged in conduct which was misleading or deceptive or likely to mislead or deceive?

41 As previously observed, the bulletin emphasised two factors:

(i) the application of the specified standard for microwave ovens used in workplace staff rooms;

42 Footnotes identify the sources of the two emphasised paragraphs. Standards Australia is identified as the source of the first of the two emphasised passages. Comcare is identified as the source of the later paragraph.

43 The quotation attributed to Comcare finds its source in the letter written by the then manager of the Occupational Health, Safety and Licensing Division of Comcare on 23 June 1998 (see [10] above). The paragraph from which the quotation has been taken has been extracted from a nine paragraph letter and the quotation omits the words with which the paragraph began, namely “This means in essence”. Nothing turns on the omission of these five words.

44 The two paragraphs in emphasis in the bulletin have a common element, namely the reference to the Australian Standards. The particular Standard referred to is identified in the first of those two paragraphs.

45 The second defendant has consistently asserted that the Standard identified in the bulletin imposed a continuing obligation on employers to test to that Standard.

46 That view is not held by Dr Roy, the director of the Non Ionising Radiation Branch with the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA). Dr Roy has deposed to his qualifications in his affidavit and I accept that he is a highly qualified scientist with expertise in the non ionising radiation field.

47 I accept Dr Roy’s assertion that ARPANSA is “the ultimate authority on microwave oven radiation safety at the federal level in Australia” (see para 10 of his affidavit).

48 Dr Roy explained that ARPANSA’s role is

“to protect the health of Australians from radiation. We do this using exposure limits. We do not use manufacturing emission levels to help us in that regard so the emission level to us is unrelated to the health or to the risk to the Australian people.” (T 31)

49 Dr Roy considers that the emission limit for microwave ovens as set in AS/NZS/3350.2.25: is a manufacturing standard only. That standard sets in para 32 maximum leakage:

“The microwave leakage at any point 50 mm or more from the external surface of the appliance shall not exceed 50 W/m².”

50 Dr Roy considers that that standard sets the requirement to be met by the manufacturer before a microwave oven is released on the market. The effect of the doctor’s evidence is that thereafter the relevant standard is the exposure standard for radiofrequency radiation: AS 2772.1. Dr Roy’s opinion is shared by the authors of a conference paper annexed to his affidavit as Exhibit M. The authors of the paper were Mr Bangay, from ARPANSA, and Mr Zombolas, from EMC Technologies Pty Limited. Those authors conclude:

“The emission limit for microwave ovens should not be interpreted as exposure or safety limit. The limit is in place to provide a manufacturing specification and the basis for issuing an Approvals Certificate for regulatory authorities. Although the emission limit is very conservative, it is recommended that it be continued.

SAR measurements show that emission limit provides for a large margin of safety, consequently, there is no need for regular testing of emission levels for ovens that appear to be in good working order.

There is no evidence that emission levels from undamaged ovens could ever create exposure levels that may exceed the ARPANSA SAR limits for a person at 30 centimetres distance.”

51 Dr Roy has stated that it is the policy of ARPANSA to advise callers microwave oven testing is not necessary unless the microwave oven has been dropped or damaged or shows signs of deterioration. Dr Roy’s evidence is that a document headed “Fact Sheet 12”, annexed to his affidavit, has been in its present form advising inter alia that routine testing of microwave oven leakage is not considered necessary since at least 2002. Indeed, he said, that to his belief that has always been ARPANSA’s position (T 18-19). The Fact Sheet evidences information given to those inquiring as to whether there is a need for routine testing of microwave ovens for radiation emissions.

52 I record that I assessed Dr Roy as being a most impressive witness.

53 I have considered the content of the Standard AS/NZS 3350.2.25. It is apparent from a reading of it that it sets manufacturing requirements. Clause 15.101 sets requirements for temperature sensing probes and defines the test for compliance with that requirement. Clause 16.101 requires adequate insulation for the power transformer and sets a test for compliance with that requirement. Clause 18 addresses the need for endurance of the door system, and the compliance test for that is specified, involving a total of 100,000 cycles of operation. Clause 19 deals with abnormal operation tests as therein referred to. Clause 21 sets tests for determining mechanical strength, in particular relating to the function of the door. Clause 22 stipulates construction standards with compliance to be determined by inspection. Clause 32 addresses inter alia radiation, specifying appliances shall not emit excessive microwave leakage. A test is set to ensure compliance and the standard set by the clause is that earlier indicated, namely:

“The microwave leakage at any point 50 mm or more from the external surface of the appliance shall not exceed 50 W/m².”

54 The footnote to cl 32 provides that if compliance with the test is in doubt due to a high water temperature, the test is to be repeated with a fresh load.

55 It seems to me to be clear that the Standard above reviewed addresses requirements as to manufacture. Formerly the Electricity Safety Act 1945 made provision for the regulation of the sale of electrical apparatus in New South Wales and now the Electricity (Consumer Safety) Act 2004 does so. Section 21A of the earlier statute made it an offence to sell a microwave oven if it was not of a type approved by the director of the Department of Energy or by the relevant authority of some other State or of a type certified under a certification scheme. A like protection is given to consumers under s 16 of the 2004 statute which commenced on 3 February 2006. Section 16 of the new Act requires that electrical articles meet certain standards before they are sold. It is in the context of this legislative fabric that the Standard AS/NZS 3350.2.25: is to be regarded as having its operational setting. In his affidavit Dennis Spencer, an investigator with the Safety and Standards Branch of the Office of Fair Trading, Department of Commerce deposed at paras 9-12:

Electricity Safety Act, 1945.

….

Electricity Safety Act, 1945

11. The person must then submit the test report to Fair Trading for assessment. If the test report is satisfactory, Fair Trading issues an Australian Approvals Number, which the person is required to place on the articles prior to sale. Australian approvals numbers start with a letter designated for the State/Territory agency, followed by a number. For example 'N12345' means the article has been approved by the New South Wales Office of Fair Trading.

12. Standard AS/NZS 3350.2.25:1997 was the standard that previously covered the safety of microwave ovens. That standard referred to numerous tests including radiation, toxicity and similar hazards (Clause 32). The tests specified by the standard were designed to ensure that microwave ovens were safe during their life. AS/NZS 3350.2.25:1997 did not mention or refer to any testing outside that contained in the document. The standard was very similar to AS/NZS 3350.2.25:2001 and microwave ovens were required to undergo similar testing to that mentioned in paragraph 8 above."

56 I accept that evidence of Mr Spencer, who, in his oral evidence, also drew the Court’s attention to the enactment of the Electricity (Consumer Safety) Act of 2004, to which I have referred.

57 The objective of the microwave standard was specifically stated in the 2002 version (at p 74 of the second defendant’s affidavit) as follows:

“The objective of this Standard is to provide manufacturers, designers, regulatory authorities, testing laboratories and similar organisations with minimum safety requirements designed to give user protection against hazards that might occur during normal operation and abnormal operation of the appliance and which may be used as the basis for approval for sale or for connection to the electricity supply mains in Australia and New Zealand.”

58 The Court was informed that earlier versions of the Standard expressed a similar statement of the objective of the standard.

59 AS/NZS 3350.2.25 is silent as to the issue of testing for radiation leakage once an oven has been sold. This is understandable having regard to the objective of the Standard. It does not seem to me that it is directed to consideration of ongoing maintenance or testing following sale. It lays down no standard concerning periodical regular testing during the lifetime of an oven. Nor does the exposure standard AS 2772.1, which, as I observed earlier, Dr Roy considered to be the relevant standard following the acquisition of an oven in the market place.

60 AS 2772.1 sets exposure levels

“wherever people may be exposed to radiofrequency electromagnetic fields as a result of their employment and wherever the general public has access to regions in which they may be exposed.”

61 I do not propose to record the content of the exposure standard here. Maximum exposure levels were set out in the 1990 edition of the Standard for occupational environments at p 7 and for non occupational environments at p 9.

62 The 1990 edition of the exposure standard contained a preface, concluding with the following paragraph:

“Microwave ovens are prescribed items and there is no intention of changing what is essentially an International limit, unless of course the level is changed in the International forum which established it. AS 3301, and Test Specification for Particular Requirements for Microwave Ovens, will therefore remain unchanged. It is appreciated that it might appear that a microwave oven is permitted to exceed the exposure limits specified in this Standard. This is incorrect; the emission Standard permitted by AS 3301 results in exposure levels which do not exceed the levels presented in this Standard."

63 The second defendant gave this evidence as to the perceived effect of that paragraph in the preface (T 144):

“A. What it basically is saying is this whole standard covers a broad spectrum of appliances but it specifically states with microwave ovens with respect to radiation there is no need to concern yourself with the exposure because the emission limit states how much microwave radiation is permitted to be emitted from the oven and it says it will therefore remain unchanged…”

64 Notwithstanding the second defendant’s asserted perception of the effect of the preface, I do not consider that it is to be treated as giving the emission standard AS 3301 any extended application, and in any event the 1990 exposure standard lapsed in March 1999. ARPANSA was given the task of developing a new standard which was approved on 7 May 2002. It appears that there was no exposure standard between 5 March 1999 and 7 May 2002.

65 I do not consider that the emission standard AS 3350 affords support for the representation made in the Workplace Safety Bulletin upon which the summons focuses. Neither that standard nor the exposure limit standard imposes a requirement for regular testing for radiation leakage.

66 It seems to me that the ordinary reasonable recipient of the bulletin could reasonably have read this bulletin as meaning that the Standards did call for regular testing for radiation leakage, and I am satisfied that they did not. Hence, I consider the bulletin complained of offends against s 42.

67 It would not be appropriate in these proceedings to express as a general rule to apply in all cases what is required of an employer to comply with the duty of care owed to his employees concerning any microwave oven provided for the use of those employees. Each case must turn upon its own particular facts and circumstances.

68 However, the evidence that has been introduced at this hearing does not establish in my opinion that there is a general duty in employers to have microwave ovens in the workplace tested regularly for radiation leakage.

69 Plainly, ARPANSA did not consider this necessary, as is evidenced by Dr Roy’s testimony, by the Facts Sheet 12, and by the conference paper from Mr Bangay and Mr Zombolas. I should add to the evidence of Dr Roy previously reviewed part of the cross examination of this witness (T 30-31):

“Q. What I am suggesting is, as far as you know, the kind of tests they carry out would in fact detect any leakage from the oven?
A. It would.

Q. In other words, you are not suggesting that there is some flaw in their procedure that would fail to detect a leaking oven?
A. Nothing in my affidavit has made any mention of that.

Q. In fact, your problem really is, you think carrying out the kinds of tests is over-cautious unless the oven is obviously damaged?
A. I would not even agree do that. A damaged oven, even though it is not desirable, is not going to put a person at risk. You know, you are talking about duty of care, so we are talking about the exposure of people, and if we applied that exposure standard to users under normal operating conditions, the people would not come anywhere near the exposure limits and the exposure limits are extremely conservative or conservatively derived in the first instance.

70 Workcover has adopted the same approach to this issue as ARPANSA. Mr Stothard was with the Department of Industrial Relations before it became Workcover in 1998, and since then has been an inspector with Workcover. Through his evidence it was established that guidelines were published by Workcover for the testing of microwave ovens. Those guidelines are to be found in an article in Workcover News No. 49, June-August 2002. That publication has since remained open to the public on Workcover’s website. I do not propose to record the entire content of those guidelines. A recommendation is made by Workcover to have a microwave which shows signs of damage serviced and tested immediately. The document contains this advice attributed to Mr Mikl of Workcover:

“Normally microwave ovens are perfectly safe and don’t require regular testing.

By law, oven manufacturers must undertake testing before any product is launched on to the market and the ovens only need to be tested if there has been damage to the seals or doors, or if the oven is dropped or catches alight.”

71 According to Mr Stothard, Mr Mikl was principally involved with the issue of testing of microwave ovens between 2002 and 2003. He did not give evidence but I accept Mr Stothard’s unchallenged evidence that Mr Mikl is seriously ill.

72 As Mr Stothard deposed, Workcover is responsible for administering and enforcing compliance with New South Wales Occupational Health and Safety Management.

73 Mr Bonny was until recently a safety officer with Comcare. His evidence was that there is no mandatory requirement under Commonwealth legislation for microwave ovens in the workplace to be tested, and that Comcare’s policy is to refer employers to the ARPANSA information which in turn informs that routine testing of microwave ovens for leakage is not required. Further, he referred to a Comcare bulletin distributed to Commonwealth employers headed “Working With You” (summer edition, 2004). In that publication, the reader is informed of ARPANSA’s advice that routine testing of microwave oven leakage is not considered necessary. The reader is further advised, however, that if a microwave oven is damaged or appears to have deteriorated, ARPANSA advises testing of the oven against the risk of leakage exceeding the recommended limit.

74 He also said that by 4 August 2003 there appeared on the Comcare website a note advising that on the ARPANSA website advice clearly stated that routine testing of microwave ovens for leakage is not required (see document 304 in the plaintiff’s bundle, and [11] above).

75 Mr Bonny was cross examined about the Comcare letter of 23 June 1998, the extract from which appears on the defendants’ bulletin. He said he did not endorse that letter and he was not aware of any direct communication from Comcare to the defendants advising that Comcare had changed its position. Nevertheless, he said that Comcare’s position now was in accord with that of ARPANSA. I accept that this has been the position at least since the time that Facts Sheet 38 from Comcare appeared on its website in 2003. In reaching this conclusion, I do not overlook the evidence which the second defendant gave that when he searched the Comcare website he did not find the “Working With You” document. I accept that the second defendant did not find that document in the search undertaken, but he did not factor in the relevant address identified in Mr Bonny’s affidavit.

76 It may follow from this evidence that the relevant material on the Comcare website is not as readily accessible as desirable but nevertheless I am satisfied it is there and that it reflects current Comcare policy, a policy which I find to have been in place since at least 2003.

77 The defendants submitted a number of microwave ovens to ARPANSA in 2002 for testing. It was drawn to ARPANSA’s attention by the defendants that the microwave ovens submitted had been found to be leaking at a level higher than the Standard. Five ovens were received altogether by ARPANSA and these ovens were tested. It is acknowledged for the purposes of these proceedings that those ovens were leaking in excess of the emission standard.

78 It has been the experience of the defendants that in up to 12,000 ovens tested per year, .8% of the ovens tested had leaked in excess of the emission standard. Of that .8% of leaking ovens, 60% have shown no visible signs of damage (T 240). This means that one in 200 ovens tested have been found to be above the emission limit and yet show no signs of damage (T 241).

79 The evidence of leakage found by Mr Crosson and by ARPANSA in the ovens submitted by the defendants to ARPANSA does not lead me to conclude that employers needed to have their microwave ovens tested regularly for radiation leakage in order to discharge the duty of care owed to employees. It is not to be overlooked that after Mr Bangay from ARPANSA had been involved in the testing of the ovens submitted by the defendants, the conference paper given by Mr Bangay and Mr Zombolas was published. In addition to the extract recorded earlier, the following passages are noteworthy in the present context:

“ARPANSA believes that annual leakage testing of microwave ovens is not required. Ovens only need to be tested for leakage following repair or if damage is suspected. While it is possible for microwave ovens that appear in acceptable working condition to leak microwave levels that exceed the emission limit, they are not necessarily hazardous. The emission limit is primarily a manufacturing specification, exceeding the emission limit does not imply that safety will be compromised. Compliance with safety limits is determined by referring to relevant radiofrequency exposure standards and not emission limits.”

80 An employer’s duty of care is not an absolute one. Having regard to all the evidence, I consider the representation the focus of consideration in the Workplace Safety Bulletin offends s 42 of the Fair Trading Act.

81 I should add that there is a representation which is misleading and deceptive at the very beginning of the bulletin. There is a reference to government testing authorities having recently confirmed that it is possible for ovens to emit excessive radiation levels. The only government body involved in relevant testing was ARPANSA and the relevant involvement concerned the limited number of ovens which Mr Bangay was involved in testing. Any other relevant testing was performed by the defendants for radiation emission.

82 I turn to a consideration of the second publication claimed in the summons to be a source of representation (a), namely the contents of the first defendant’s website.

83 I am satisfied from the evidence of Mr Laughton, Senior Investigator with the Fair Trading Investigations Branch, that search of the first defendant’s website on 17 February 2005 disclosed the presence of the matter (a)(ii) set out in the summons and recorded below. I am further satisfied by his evidence that the relevant matter was also on the same website as at 28 July 2004 (see para 8 of his affidavit affirmed 20 April 2005 and Exhibits “RL 21” and “RL 37”, and para 10.

84 The website content here complained of is as follows:

“(a) (ii) the contents of the first defendant’s website at ‘http//microwavesafe.net’ and, in particular the following:

- the page headed ‘About Microwave Safe Australia’, where it is stated that:

‘Our aim is to ensure that the radiation levels being emitted from microwave ovens are within internationally recognised guidelines, that staff are not being exposed to excessive levels of radiation from microwave ovens, and that employers and workplaces are taking that extra valuable step in fulfilling their “Duty of Care” requirements towards this issue.

By having the microwave ovens tested by Microwave Safe Australia, workplaces can be sure that their staff are not being exposed to excessive levels of radiation from microwave ovens.

- the contents of the page headed, ‘Where does it say that I must have the microwave checked?’

[Such content is the following:

The OH&S legislation states that employers have a duty of care to ensure a safe workplace and authorities say that employers must perform regular inspections of microwave oven doors, seals, hinges and cabinets to minimise the risk that staff may be exposed to excessive levels of microwave oven radiation leakage.

AS/NZS 60335.2.25:2002

The most reliable, accurate and practical method of checking emissions is to have the ovens tested by an experienced technician using an advanced survey meter which has been regularly calibrated by a recognised laboratory (ARPANSA).

Microwave ovens which are leaking above the internationally recognised safe limit for emissions have been found in use at workplaces, including schools, which have been deemed by employers & staff to have no signs of physical damage.

A Microwave Safe Australia 3-point safety analysis of your microwave oven can detect excessive levels of radiation leakage which a regular physical damage inspection may not.]

- the contents of the page under the heading, ‘Why must I have the microwave tested every 12 months?’”

[Such content is the following:

Though not mandatory in all states, radiation leakage is a valuable further step that your organisation can take to ensure that radiation leakages from your microwave ovens are within safe limits.

Microwave Safe Australia recommends annual testing and we provide verification of compliance for 12 months (based on the condition of the oven when tested - if subsequent damage occurs the oven should be re-tested).

Physical damage inspections, required to be performed regularly under your duty of care, form one part of the Microwave Safe Australia 3-point safety analysis. Radiation leakage tests can detect leakages that physical damage inspections by you or your staff may not. Power output tests can indicate whether your microwave ovens are operating efficiently.]”

85 There were later modifications of the website content which I shall refer to presently, but I am satisfied that what appears above was on the website when the summons issued.

86 Reading the matter as a whole, it seems to me that it would be open to the ordinary reasonable reader to treat the publication as conveying that employers need to have their microwave ovens in the workplace tested for their radiation levels so as to fulfil the requirements of their duty of care. The use of the word “fulfilling” can reasonably be regarded as conveying that without taking the step of having the examination of the ovens carried out the employer has not completed the discharge of his obligation.

87 The page posing the question as to why the employer must have the microwave oven tested every twelve months, introduced the concept of regular testing.

88 Was this website material likely to mislead or deceive the ordinary reasonable reader? I consider that it was for reasons already stated when considering the Workplace Safety Bulletin. On the evidence before this Court, I find that neither annual testing nor regular testing for radiation leakage was required of the employers to discharge their duty of care towards their employees.

89 Moreover, the page addressing the issue of testing every twelve months is likely to mislead and deceive in that the only State in which testing for radiation leakage is required in Western Australia, and even there testing is not required annually but every three years.

90 New pages were introduced by the defendant as appear as Exhibit JSC 44 and JSC 45. I accept that the substitution of these pages was made following consideration of the summons and the supporting material served upon the defendants in this matter. I will return to consider these new pages later in this judgment.

91 The third publication set out in the summons as conveying imputation (a) was identified as being the content of a report which the first defendant issued to the plaintiff when it was known as the Department of Fair Trading. The report is dated 19 September 2003. It was prepared following an inspection by the first defendant of twelve ovens at the premises of the department at 1 Fitzwilliam Street, Parramatta.

92 The material complained of in the report reads:

“(iii) Report issued by first defendant to the plaintiff (then known as the Department of Fair Trading) dated 19 September 2003 which contains the following words:

- ‘Verification of compliance is valid for 12 months. It is our opinion that the ovens if properly used and maintained will continue to operate safely throughout the next 12 months. To confirm continued compliance, the ovens should be tested again in September 2004’.

Microwave Safe Australia

· Taken a further step in fulfilling its Duty of Care in respect to the control of microwave oven radiation in the workplace.

· Reduced any Perceived Risk of Injury arising from microwave radiation emissions.

· Taken the necessary precautions in respect to Strict Liability Law and microwave radiation exposure.

· Taken a further step in securing the safety and wellbeing of its employees.'"

93 The full content of the report is to be found as Annexure B to the affidavit of Wayne Land sworn on 6 April 2005. Part of the report is omitted from the matter complained of in the summons. That part of the material commencing “By having the microwave oven” appears under the heading “Conclusion” in the report.

94 It seems to me that the report suffers from the same vice as does the internet entry considered earlier. It seems to me to be open to the ordinary and reasonable reader to conclude that the report conveys that it is necessary to have the microwave ovens checked at twelve monthly intervals as a step towards doing that which it is required to do in the discharge of its duty towards its employees.

95 The report suffers from the further vice of asserting that it is necessary to have the inspections carried out in the discharge of "Strict Liability" obligations imposed by law. This lastmentioned assertion is plainly incorrect, as Mr Hadley conceded in the course of submissions. However, the assertion re-enforces the representation as to the mandatory nature of the need to have the ovens inspected regularly.

96 I am satisfied that the representation here under consideration has been conveyed by this letter. For the reasons previously stated, I consider that the representation is misleading and deceptive, although I observe that there is no evidence that any officer of the Department of Fair Trading was misled by the content. Mr Land, as an officer whose duties extended to matters of maintenance in the premises at 1 Fitzwilliam Street, Parramatta, was the recipient of the report. His evidence was that he terminated the arrangement for MSA to inspect and test microwave ovens late in 2003. The defendant had begun testing the ovens in 1997, but Mr Land was instructed by investigators within the department in 2002 that the testing was not mandatory and he was told not to have it done that year. He, nevertheless, decided to arrange for the resumption of testing in 2003, but terminated the arrangement at the end of 2003.

97 It was Mr Land’s evidence, however, that he had a conversation with Mr Crosson shortly after receipt in August 1997 of a fax from the managing agents for the owners of the building of which the department was the tenant. That fax read:

“Could you please pass the relevant information from Microwave Safe Australia on to all departments within the building and advise them that the safety inspection must be done by 15 September in accordance with Occupational Health and Safety Regulations. Try to organise all the departments to get it done on the same day and make them aware it is their responsibility to arrange payment for the testing.”

98 According to Mr Land, he then received the telephone call from Mr Crosson, to which he deposed in para 4 of his affidavit. Mr Land asserted that in that conversation Mr Crosson told him that there was a responsibility under the Occupational Health and Safety Act that microwave ovens be tested annually. It was after this conversation that arrangements were made for the tests that proceeded without interruption until 2002.

99 Mr Crosson denied that that conversation took place. His evidence was that it was Mr Land who telephoned him. In the course of the conversation he denied saying annual testing was a responsibility under the Occupational Health and Safety Act, or anything like it.

100 Both Mr Land and Mr Crosson were cross examined about the subject matter of the conversation. The conversation took place many years ago. Mr Land had no file note concerning it, and, although he asserted a clear recollection of what was said, it seems to me to be possible that his recollection is contaminated by the fax he received. Mr Land impressed me as a truthful witness, but nevertheless I find myself unable to determine what was said in this conversation in 1997.

101 This brings me to the second and the third representations which are very similar in their terms and which it is contended were conveyed by precisely the same publications.

102 The alleged representations are these:

"(b) that Australian Standards relating to microwave ovens (being AS/NZ 3350.2.25:1997, AS/NZ 60335.2.25: 2002) required such ovens used in the workplace to be tested for radiation leakage beyond the testing required for the approval of such ovens for sale by retail.

(c) that the Australian Standards relating to microwave ovens (being AS/NZ 3350.2.25:1997, AS/NZ 60335.2.25:2002) required that such ovens used in the workplace be tested regularly for radiation leakage."

103 The first of the publications relied upon in the summons as a source of the above representations is the Workplace Safety Bulletin relied upon as a source of representation (a). The content of that bulletin is set out above and I do not propose to repeat it here. The focal point of the bulletin is the fourth paragraph where there is a specific reference to the Standard AS/NZS 3350. However, that paragraph has to be read in the context of the article as a whole. The paragraph immediately following is a paragraph referring to Standards, and it is to be noted that the second paragraph in the article also refers to Standards, although no other Standard than what has been referred to as the emission standard is nominated by number.

104 I do not consider that there can be attributed to the ordinary and reasonable reader, at least on the evidence before this Court, an awareness that the approval process referred to in the bulletin was merely a pre-sale process. The bulletin does not state when or in what circumstances the approvals process and the marking is undertaken. It requires a knowledge outside the bulletin and not necessarily generally entertained by those persons to whom the bulletin was distributed to appreciate the approval procedures to which I referred earlier. Absent that appreciation, I am not persuaded that the bulletin conveys representation (b).

105 However, the position with representation (c) is different. Reading the bulletin as a whole, it seems to me open to the ordinary and reasonable reader in that group of recipients to whom the publication was directed to treat the article as conveying that the Standards required of employers the necessity to regularly test ovens used in the workplace for radiation leakage. The reader is told of the necessity for employers to comply with the requirements of the Standards in relation to the control of radiation leakage from microwave ovens. The reader is advised to include testing as part of preventative maintenance, and, as I observed earlier, this advances the notion of regular testing.

106 It has been urged that the words “although not mandatory” would make it clear to the reader that there was no mandatory obligation by reason of the standards or otherwise, but, considering the article as a whole, I am not persuaded by that submission.

107 I am satisfied that the representation is likely to have been conveyed to ordinary and reasonable members of the class reading the bulletin and, further, that the representation was likely to mislead.

108 The article so considered is properly to be regarded as misleading because, for the reasons expressed earlier, the Standard AS/NZS 3350 does not impose an obligation upon employers to perform regular testing of microwave ovens in the workplace for radiation leakage, nor is such an obligation imposed by the Exposure Standard 2772.1.

109 The next publication claimed in the summons to be a source of representations (b) and (c) is the first defendant’s website. The plaintiff relies upon the same material on the website as conveying these two representations as was earlier relied upon to convey representation (a).

110 That material I have recorded earlier at para [84].

111 The page upon which the question is posed as to “Where does it say that I must have the microwave checked?” refers to the Australian Standard. It seems to me reading the entries under the pages headed “About Microwave Safe Australia” and “Where does it say that I must have the microwave checked?”, representation (c) is conveyed. However, I do not consider that imputation (b) is conveyed by the website material to which I have referred for reasons identified in [104] above.

112 The third document which the plaintiff contends conveys representations (b) and (c) is a document described as “a document issued by the first defendant to employers and entitled ‘Unqualified technicians undertaking radiation tests’”. Mr Laughton annexed this document to his affidavit as a document which Mr Crosson signed at the time he was interviewed on 26 February 2004 (see para 6 of Mr Laughton’s affidavit). Part of the document relied upon is set out in the summons:

“(iii) a document issued by the first defendant to employers and entitled 'Unqualified Technicians Undertaking Radiation Tests' which includes the following words:

'The most accurate method of determining whether the Australian Standard guidelines for radiation emission are being met is to have the microwave ovens tested in accordance with the National Health and Research Council procedures using an advanced microwave survey metre annually calibrated by a recognised laboratory (NATA) or ARPANSA.

It is important for Facility Managers to be certain that test results are accurate and are performed in accordance with NHMRC procedures, Australian Standards (AS 2772.2, AS/NZS 60335.2.25 and 3550.2.25) and WorkCover recommendations concerning the training and experience expected of technicians.'"

113 The above document purports to advise the reader as to the most accurate method of determining whether the guidelines described are being met. The document further stresses the importance of “facility managers” being certain that test results are accurate and are being performed in accordance with the Standards. It addresses the question as to how testing should be undertaken if it is being undertaken, but I do not consider that it makes the representation that the Standard requires that testing be regularly undertaken. Indeed, I am not persuaded that it is to be read as conveying either imputation (b) or imputation (c).

114 In the result, I am not persuaded that representation (b) has been made by the defendant. However, I am persuaded that representation (c) has been made in the Workplace Safety Bulletin and on the first defendant’s website. Moreover, I am satisfied that the representation was misleading since the Standards specified do not require that microwave ovens used in the workplace be tested regularly for radiation leakage.

115 The next declaration sought concerns the alleged contravention of s 42 in the following respect:

“(d) that certain microwave ovens tested by the first defendant, as a result of the levels of radiation detected, and notwithstanding such radiation levels were well below those set out in the relevant Australian Standards, would expose the user to unsafe levels of radiation unless used in a particular way."

116 It is submitted that the above representation was conveyed in a report issued by the first defendant to the Department of Fair Trading to which I have made earlier reference, certain of its content having been relied upon in relation to the first of the misrepresentations considered.

117 Having examined the twelve microwave ovens in the premises tenanted by the Department, the first defendant presented its report and, of the twelve ovens inspected, wrote as to two of them:

“However the units located at level 6, Executive Kitchen No. 1 and level 5, File Room are emitting levels of 1.3mWcm2 and 1.8mW/cm2 respectively. It is recommended that users stand at least one metre from this units unit [sic] whilst in operation to reduce exposure levels."

118 It is submitted that it is implicit in what is written that the emission level would create some hazard unless the recommendation is adopted. It is submitted further leakage of the level reported is of no consequence and reliance is placed upon evidence given by Dr Roy. The competing submission based upon the evidence of Mr Crosson was that the oven could deteriorate before it was next inspected and what was proposed was a reasonable precaution in the interest of those who were going to be exposed. Mr Renahan submitted that the report was misleading because it suggested a hazard which did not exist. Reference was made to Heydon Trade Practices Law (11.640) in support of that submission.

119 Accepting as I do the evidence of Dr Roy, I regard the recommendation made in the letter of 19 September 2003 as unduly cautious, but it was a recommendation made to the plaintiff some eighteen months ago and it is not suggested that it was causative of any harm. I am not persuaded that the content of the letter complained of warrants the declaration sought concerning it.

120 It is convenient to deal with the alleged representations (e) and (f) together, since both focus upon the Workplace Safety Bulletin and its means of distribution in Department of Commerce envelopes. The representations and their particulars as set out in the summons are as follows:

"(e) that the first defendant had an affiliation with government authorities.

Particulars of Representation

(i) the contents of a document styled 'Workplace Safety Bulletin' and entitled 'Microwave Oven Radiation Safety' and distributed by the first defendant to employers within New South Wales;

[Reliance upon (ii) was abandoned at the hearing.]

(iii) the distribution of the document styled 'Workplace Safety Bulletin' and entitled 'Microwave Oven Radiation Safety' by the first defendant to employers in New South Wales in Department of Commerce envelopes.

(f) that the document styled 'Workplace Safety Bulletin' and entitled 'Microwave Oven Radiation Safety' was in the nature of an official information bulletin sourced from and approved by bodies such as Comcare, Standards Australia, the National Health and Medical Research Council, and the New South Wales Department of Commerce, and was designed solely to assist employers meet their workplace safety obligations, rather than being an advertisement for the first defendant.

Particulars of Representation

(i) The Workplace Safety Bulletin contains references to Standards Australia, Comcare and the National Health and Medical Research Council.

(ii) The Workplace Safety Bulletin was distributed to employers in New South Wales Department of Commerce envelopes."

121 Whilst the Workplace Safety Bulletin has appeared in various forms, it is again the format used in 2003 set out in the plaintiff's bundle of documents at p 168 which is central to these alleged representations.

122 How did it happen that copies of the first defendant's "Workplace Safety Bulletin" were distributed in Department of Commerce envelopes?

123 Mr Thelmo was employed by State Mail Service from mid 2000. In July 2001 State Mail Service, Government Printing Services and the Government Information Service combined to become "cmSolutions". The first defendant was referred to Mr Thelmo as one of his clients, and it was his understanding that the first defendant had been a client of another officer with State Mail Service before Mr Thelmo assumed responsibility. Mr Thelmo said he dealt with Mr Crosson. Mail-outs were arranged in May 2000, February 2003 and June 2003. There were distributions to nursing homes, aged care facilities, schools, state government departments and registered clubs. A number of documents were distributed for the first defendant by cmSolutions after Mr Thelmo became responsible. Relevant quotations and orders are annexed to his affidavit.

124 For the May 2002 distribution, State Mail envelopes were used. The envelope had an endorsement on it "State Mail Service, 15 Everleigh Road, Chester Hill, NSW, 2162".

125 According to Mr Thelmo, he had a conversation with Mr Crosson at a time when the supply of State Mail Service envelopes was nearly exhausted. He deposed to the conversation he had with Mr Crosson about this in para 8 of his affidavit. According to Mr Thelmo, Mr Crosson made it clear that he did not want CMS envelopes to be used for mail-outs for the defendants. I accept that this was the case. Indeed, the quotation accepted by Mr Crosson on 21 February 2002 for a mail-out of 8729 envelopes was accompanied by an instruction by Mr Crosson endorsed on his response to the quotation "Please note that envelopes are to be either 'State Mail Service' or 'Department of Public Works and Services' not 'cmSolution' envelopes."

126 Mr Crosson agrees that he conveyed to Mr Thelmo that he did not want mail-outs in "cmSolutions envelopes". According to Mr Crosson, he told Mr Thelmo:

127 Mr Crosson explained the instructions he said he gave to Mr Thelmo upon the basis that cmSolutions was a name unlikely to be known to the recipient of the envelope and this could mean that the envelope could be thrown away without even being opened.

128 There is an issue between Mr Thelmo and Mr Crosson as to how the possible use of Department of Commerce envelopes first arose. Mr Thelmo's version of the relevant conversation appears at para 8 of his affidavit. According to Mr Crosson, the use of Department of Commerce envelopes was something Mr Thelmo offered and not something that Mr Crosson required. Nothing turns on which version is correct. Following the relevant discussion, Mr Thelmo sought and obtained approval from his superior to use Department of Commerce envelopes for mail-outs for the defendants. Mr Thelmo said, and I accept, that he had no other client who made a request for Department of Commerce envelopes to be used for mail distribution.

129 What is important is that the Department of Commerce envelopes were used not only with Mr Crosson's approval but in accordance with his instructions.

130 I am satisfied that there was a large distribution of Workplace Safety Bulletins in Department of Commerce envelopes. Mr Case, Mr Tout, Ms Di-Bella, Mr Rogers and Mr Hennessy all gave evidence of receiving copies of the bulletin in Department of Commerce envelopes in or about the month of July 2003. The use of the Department of Commerce envelopes for a mail-out ceased after Mr Hennessy wrote to the responsible Minister of State on 10 July 2003 and the Minister responded that steps had been taken to ensure that envelopes would not used for such purpose again (see the letter from the Minister, Exhibit A).

131 It is to be noted that Ms Di-Bella and Mr Tout considered that the bulletin had come from the Department of Commerce and Mr Rogers and Mr Case both thought it came from a government authority because of the envelope used. Mr Hennessy thought that the Department of Commerce endorsed the content of the bulletin.

132 The Department of Commerce envelopes which were used in the distribution bear the coat of arms and the title "New South Wales Department of Commerce" in the top left hand corner. The envelope is hence very suggestive of the communication being from an arm of government.

133 When consideration is given to the bulletin itself, the logo in the top right hand corner is anonymous and there is nothing at the top of the document to identify the source of the communication. References in the bulletin to "government testing authorities" and to "Australian Standards" and to the "National Health and Medical Research Council" are references to government sources. Then there are the two quotes attributed in the footnotes to Standards Australia and to Comcare. Microwave Safe Australia is referred to in the concluding paragraph in a way that would be likely to convey to the reader an endorsement of approval:

"With offices throughout Australia, inspections may be arranged through Microwave Safe Australia, who has been servicing the government and corporate sector since 1995."

134 Under the words "Workplace Safety Bulletin" at the right hand foot of the document, there is an address stated "@hotmail.com". It was submitted that this would put the reader on notice that this was not a government related publication. An inquiry at the phone number given in bold print at the centre foot of the document would also reveal who the author was. Moreover, it was submitted that the government would not talk about one of its own agencies "servicing" another part of the government.

135 The word "affiliation" is somewhat imprecise but it is a word used in s 44(f) of the Fair Trading Act, and involves the concept of connection or association with another.

136 I have concluded that the representation 1(e) is likely to have been conveyed to the ordinary reasonable reader having regard to the envelope in which the bulletin was distributed and the format of the bulletin with the various references to arms of government. The circumstances in which Microwave Safe Australia is named in this particular bulletin connote connection, association and affiliation with government.

137 When considering the first of the representations identified in the summons and in considering this particular Workplace Safety Bulletin in that earlier connection, I referred to the misleading representation concerning the involvement of "government testing authorities". The only government testing body concerned in relevant testing was ARPANSA to the limited extent previously considered.

138 Mr Crosson was asked these questions and gave these answers (T 194-195):

"Q. I want to know what you meant in the bulletin when you said 'testing bodies have revealed'?
A. It could have been ARPANSA.

Q. See, the first time you sent any microwaves to ARPANSA was 18 September 2002, wasn't it? Just have a look at page 92 of the bundle.

A. 192?

Q. No, 92, a few pages back.
A. Yes.

Q. That's the first time you sent any microwaves to ARPANSA?
A. Yes.

Q. What I want to suggest to you is it was unlikely that at the time you placed the work place safety bulletin in the WorkCover News that it was ARPANSA you were referring to as the testing body?
A. As I said, it may have been.

HIS HONOUR: Q. That would only be one body even if it was. Can you tell me who the bodies were? There were a number of them, apparently.
A. Well, it is ARPANSA and we consider ourselves a testing body. We are not an authority.

Q. You were referring to yourself there, were you?
A. Yes.

Q. Is there any reason why you didn't indicate that in the advertisement?
A. No, your Honour."

139 The only relevant testing of ovens other than the testing carried out by the defendants was that limited testing by ARPANSA. If Mr Crosson did not consider the defendant to be an authority, then the inference is compelling that the bulletin was expressed to introduce the notion of the support of government for testing by the entity named in the bulletin, namely the first defendant.

140 I am also satisfied that the representation of affiliation was misleading. Indeed, it has not been suggested that there was any affiliation with a government agency. The only ovens which ARPANSA tested were tested in 2002 and there was no arrangement in place for testing after that. Hence, plainly there was no available basis for representing some affiliation in 2003.

141 Turning to the representation alleged in para 1(f) of the summons, I have come to the conclusion that this representation was also likely to be conveyed to the ordinary reasonable recipient of the groups to whom the bulletins were distributed. Once again, there was the format of the envelope in which the bulletin was distributed, and the format of the bulletin itself was that of an information bulletin with references throughout to government sources. It is presented as being a document containing information for the benefit of employers and not as an advertisement for the defendants.

142 I am satisfied that the document is misleading because in fact the bulletin was not an official information bulletin sourced from and approved by the bodies mentioned in it.

143 In para 2 of the summons, the plaintiff seeks a declaration in these terms:

Fair Trading Act

144 The following particulars were given in this alleged representation:

"The first defendant distributed its 'Workplace Safety Bulletin' in New South Wales Department of Commerce envelopes."

145 Section 44(f) provides relevantly:

"A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(f) represent that the person has a…affiliation the person does not have…"

146 The declaration here sought overlaps with that the subject of para 1(e) of the summons. When considering para 1(e), I dealt with the circumstances in which the Department of Commerce envelopes came to be used. Whilst the use of these envelopes was pursuant to a contract with cmSolutions, nevertheless the effect of the use was to represent an affiliation offending s 44(f). There was no relevant affiliation in fact.

147 In para 3 of the summons the plaintiff seeks the following declaration:

"A declaration that the first defendant, in trade or commerce, in connection with the supply or possible supply of services or in connection with the promotion by any means of the supply or use of services made misleading representations concerning the need for microwave ovens used in the workplace to be tested for radiation leakage."

148 By way of particulars of this representation, the plaintiff relies upon the particulars expressed in relation to the representations alleged in para 1(a) and 1(b) of the summons.

149 This declaration is sought having regard to the provisions of s 44(j) of the Fair Trading Act which provides relevantly:

(j) make a…misleading representation concerning the need for any goods or services."

150 For the reasons earlier expressed, I have concluded that the representations identified in para 1(a) and 1(b) were conveyed to the ordinary reasonable recipient of the publications identified and further that such representations were misleading.

151 For the same reasons previously expressed I conclude that the first defendant has offended s 44(j) of the Fair Trading Act.

152 In paras 4 and 6 of the summons, orders are sought against the second defendant, and I shall consider those paragraphs presently.

153 I indicated when considering paragraph 1(d) of the summons that I did not consider that the behaviour there complained of warranted the making of a declaration. However, the plaintiff has established that the first defendant has engaged in conduct which was misleading in making the representations referred to in para 1(a), 1(c), 1(e) and 1(f), and I have also found contraventions of s 44(f) and 44(j) the subject of paras 2 and 3 of the summons. Should the Court make the declarations which the plaintiff seeks in relation to these contraventions?

154 Mr Hadley submitted that in the event that the Court considers the statute has been transgressed, no more is required than declarations against the first defendant. Mr Hadley further submitted that there is no reason for concern that either defendant would defy the Court and the use of Department of Commerce envelopes has long since ceased.

155 The plaintiff has been slow to bring this matter before the court. On 2 May 2002, the Workcover Authority wrote to the Director-General of the Department of Fair Trading voicing concern about misinformation being disseminated about the need to test microwave ovens on a yearly basis (see the letter at p 44 of the plaintiff's bundle). Workcover forwarded, at that time, a letter from the first defendant advising a client that his "radiation safety certification" on its microwave ovens was to expire in the following month and that another inspection was required to "ensure Occupational Health and Safety and Australian Standard requirements are being met". Weeks later, on 7 June 2002, a file note from the plaintiff (bundle of documents p 49) records that there was a meeting of officers of the plaintiff with the second defendant, at which the plaintiff's officers made enquiries about whether there had been a misrepresentation of the need for microwave oven testing by the second defendant. The second defendant was informed that most authorities at the time were suggesting that there was no need to test microwave ovens. The second defendant did not accept that was so. The second defendant was requested to furnish copies of advertising material used by the first defendant to see whether there was a contravention of the Fair Trading Act.

156 On 14 June 2002, the second defendant wrote to the plaintiff providing current advertising leaflets, asserting that the form of them was approved by the first defendant's legal representatives and maintaining that there was no breach of the Fair Trading Act. Then, on 9 July 2002, the defendants wrote to Mr Mikl of Workcover in response to an article in the Workcover News advising the reader that microwave ovens only needed to be tested if there had been damage to the units. In that communication the defendants asserted the propriety and justification of regular testing.

157 On 22 October 2002, the Director-General of the plaintiff wrote to the second defendant stating the plaintiff's view that the first defendant's advertising material was false and misleading in asserting the need to have ovens tested to meet occupational health and safety obligations. In that letter the defendants were alerted to the possibility that the plaintiff would seek Supreme Court orders to restrain the first defendant from engaging in conduct that contravened the Act. Yet it was not until 6 May 2005 that the present proceedings were commenced.

158 On 28 October 2002, the second defendant wrote to the plaintiff expressing a willingness to take appropriate action if there had been some inadvertent offence committed and he asked for further details concerning the plaintiff's complaints.

159 An appointment was arranged at the plaintiff's Parramatta office for 29 November 2002 and by letter dated 27 November 2002, the second defendant was notified of matters to be addressed at that meeting. At the meeting the second defendant was advised that the department considered his advertising material to be false and misleading, but the second defendant did not accept this to be the position.

160 On 4 December 2002 the second defendant addressed a communication to the plaintiff, alerting the plaintiff to the material it intended to use and inviting advice from the plaintiff if it objected to the material. If it did object, the plaintiff was asked to indicate the basis of objection.

161 It would not appear that the plaintiff took any further action in the matter until it requested the second defendant to participate in a recorded interview by letter dated 16 December 2003. By that time, of course, the department was aware that the defendants had used Department of Commerce envelopes in its advertising. There was an interview on 26 February 2004 but, for reasons that have not been satisfactorily explained, a further fifteen months still elapsed before the issue of the summons in this matter.

162 The extent of the delay and the lack of a satisfactory explanation for it is a matter to be considered in determining whether, in the exercise of its discretion, the Court should make the declarations sought.

163 Notwithstanding the delay, however, I have regard to the plaintiff's role, charged as it is with enforcing the provisions of the Fair Trading Act. I am satisfied that there has been misleading advertising in the form of the material considered in this judgment and that it has continued over a considerable period of time. It therefore seems to me that there is a public interest to be served which requires the making of appropriate declarations. The making of such declarations would also serve the added function of expressing clearly to the defendants the necessity for compliance with the provisions of the Fair Trading Act. I am also influenced in the exercise of my discretion by the ongoing form of advertising by the first defendant, which I will shortly consider more closely in connection with the plaintiff's claim for injunctive relief.

164 I have therefore concluded that it is appropriate to make the declarations sought in paras 1(a), 1(c), 1(e) and 1(f), and in paras 2 and 3 of the summons.

165 The plaintiff seeks an order pursuant to s 65 of the Fair Trading Act:

"That the first defendant, by itself, its servants or agents, be restrained, in trade or commerce, from

(a) representing that employers, in order to meet their duty of care towards employees, need to have microwave ovens in the workplace tested regularly for radiation leakage;

(b) representing that Australian Standards relating to microwave ovens require that such ovens used in the workplace be tested regularly for radiation leakage;

(c) representing that microwave ovens tested by the first defendant are unsafe or require use in any particular way, by reason of the radiation levels detected, unless such radiation levels are found to be above those set out in the applicable Australian Standard;

(d) representing that the first defendant has any affiliation with government authorities;

(d) distributing any documentation to employers in New South Wales unless it is clearly identified as an advertisement for the first defendant.”

166 Once again, the matter of delay is a matter to be considered but, notwithstanding that delay and notwithstanding the submissions made by Mr Hadley, I have concluded that the injunctive relief sought against the first defendant should be granted. Again, I have regard to those matters previously considered when determining that the declarations identified should be made.

167 The defendants are, of course, still engaged in the same business of microwave radiation testing. The first defendant is still using the document described as a "Workplace Safety Bulletin" as it has been doing since 2000 or 2001 (T 183) as a means of advertising. When Mr Crosson gave evidence, he said that the bulletin most recently published some two weeks previously was inserted in a magazine called "The Australian Nursing Home and Extended Care Association Magazine". The current version of the bulletin, Exhibit K, contains features about which the plaintiff complained in the proceedings pending in this Court. For instance, the bulletin informs the reader that testing will "provide organisations with a further step in their 'duty of care'". There are, again, selective quotations from ARPANSA and the Standards Australia.

168 There are features of Mr Crosson's evidence to which Mr Renehan referred in submitting that injunctive relief should be granted apart from the ongoing use of the Workplace Safety Bulletin in a form not markedly different from that in the plaintiff's bundle at p 168.

169 Mr Renehan submitted that Mr Crosson's responses in cross examination (T 168) concerning the placement of the quotations in the bulletin at p 168 was a matter for concern. Mr Crosson did not accept that somebody reading the quotations, firstly, from the 1997 version of the Manufacturing Standard, and, secondly, from the Comcare letter, would think that the reference in the second quote was a reference to the Standard referred to in the first quote, and, in fact, the statements refer to different Standards altogether. I record that passage of the cross-examination of Mr Crosson upon which Mr Renehan's submission focussed:

"Q. Do you agree that someone reading the two quotes in bold in the work place safety bulletin would think that the reference to Australian Standards in the second quote is referring to the standard that's referred to in the first quote?
A. No. They are two separate quotes.

Q. You don't think it is even possibly confusing to have those two quotes one after the other where there is a reference to a standard in the first one, a reference to the words Australian Standards in the second one? You don't think people would think there is a reference to the same standard?
A. They could.

Q. Because the quote from Comcare does not refer to the standard that's referred to in the first quote, does it?
A. Indirectly it does.

Q. The letter from Comcare does not refer to the standard in the first quote?
A. It doesn't directly.

Q. I would like you to go back to the letter. It is at page 20 [referring to the letter from Comcare dated 23 June 1998].
A. Yes. It refers to Australian Standard AS2772.1. We have just mentioned before that the preface of the standard refers back to the emission standard.

Q. You agree with me that the letter in its terms does not refer to the manufacturing standard?
A. No, the letter doesn't refer to the manufacturing standard, it refers to the broad general standard of non-ionising radiation, which states in the preface of it that with microwave ovens you refer to the emission standard.

Q. The letter refers to the exposure standard, not the manufacturing standard; do you agree?
A. That's correct, I agree.

Q. Your process of reasoning was that because a preface in that version, 2772.1, of the exposure standard contains a reference to the manufacturing standard you were entitled in the work place safety bulletin to link those two together?
A. Could you repeat the question, please, Mr Renehan?

Q. Was your process of reasoning that even though the letter from Comcare did not refer to the manufacturing standard but rather referred to the exposure standard, because the exposure standard in the preface contained a reference to the manufacturing standard you were entitled in your work place safety bulletin to link the two?
A. Was my reasoning, no.

Q. What was your reasoning process in putting those two quotes where they appear in the work place safety bulletin?
A. Where they appear?

Q. Yes.
A. It is a document that has to have a beginning, a middle and an end. That is the flow of the document. As you see we have a beginning, we have a conclusion, we have a middle. There is no particular reason why we should have that quote there or in the second paragraph, it is just the flow of the document so it is easy to read.

Q. Why were those two quotes in bold?
A. They had to stand out.

Q. You wanted them to stand out to the reader?
A. Yes.

170 Mr Renehan submitted that the evidence referred to above could occasion the Court some concern as reflecting the second defendant's present attitude to the content of advertising material. It seems to me that there is substance in that submission because selective quoting, such as is contained in the bulletin appearing at p 168, has the capacity to mislead.

171 Returning to the current version of the Workplace Safety Bulletin (Exhibit K), it does not seem that this document evidences a change in approach to the presentation of advertising material. Again, the advertisement is presented in the form of an information bulletin, with the heading "Workplace Safety Bulletin". There are selective quotations from Standards Australia and from ARPANSA where the reading of the content of the bulletin is likely to lead an ordinary reasonable reader in the category of those to whom the bulletin is directed to conclude that periodic microwave testing is a necessary measure in order for an employer to discharge its duty of care to those in the workplace.

172 Mr Crosson was cross-examined about the objectives of his advertising and information materials. His evidence was that the first defendant's advertising had two objectives, the first being promotion of the business and the second being to provide information. He agreed that for some years past and at the present time, it is part of the business plan to present the first defendant's promotional material not as an advertisement but as an information bulletin. He denied that the presentation of the advertising material was designed to have employers believe that they have an obligation to test their microwaves (T 150). I found that answer unconvincing.

173 It seems to me that there is merit in Mr. Renehan's submission that, where as in this case the defendants have chosen to present their advertising material in a manner likely to convey to the reader that the material is an information bulletin rather than an advertisement, there is a necessity that the materials be presented in a balanced way. I do not consider the present form of bulletin is so presented.

174 I referred earlier (para 85) to the new pages introduced on the first defendant's website following consideration by the second defendant of the plaintiff's summons and supporting affidavits. The document JSC 44, having posed the question "Should I test my microwave every 12 months?" continues:

"Though not mandatory in all states, radiation leakage testing is a valuable…that your organisation can take to ensure that radiation leakages from your microwave ovens are within safe limits."

175 That paragraph conveys that there are States in which testing is mandatory. That is not the case in fact. The only State in which any testing is required is Western Australia. Hence, even now, there appears on the website advertising material which is in a misleading form in a not insignificant respect.

176 The second defendant was cross examined about this assertion on the website (at T 233):

"Q. At all times since at least 2002, testing has only been mandatory in Western Australia?
A. Yes.

Q. When did that obligation, to your knowledge, come in?
A. It's been there for many years. The - yep.

Q. Sorry?
A. That's it.

Q. I take it then that you do not consider it misleading even now in the circumstances to say 'though not mandatory in all States' when it is only mandatory in one State?
A. No, it's a national website.

Q. How many States are there?
A. Seven, eight.

Q. All right. You do not consider it misleading in the circumstances where only one State has a mandatory obligation to say "though not mandatory in all States"?
A. No.

177 I consider the above responses to be most unconvincing. The choice of language "though not mandatory in all States" is likely to mislead a reader into believing it is at least mandatory in more than one State, and it is a matter for concern that the second defendant was not prepared to recognise that likely interpretation.

178 Then there is the evidence which the second defendant gave about the report furnished to the first defendant on 19 September 2003. I set the content out when considering the third publication relied upon in the summons as conveying representation (a) (see [87] above).

179 The second defendant was cross-examined about the content of the report (T 172-173) and was asked these questions and gave these answers:

"Q. As at 1999, if we go two pages over to page 32, what I want to suggest to you is that you were representing to employers that in order to fulfil their obligations under section 15 of the Occupational Health and Safety Act they were required to have their microwaves tested?
A. No. By having the microwaves tested, and mind you we haven't used that particular quote for many, many years, but what it is saying by having the microwaves tested and ensuring that the levels and users are not exposed to radiation they have taken a step in their duty of care. So they have fulfilled their obligation. It doesn't say they have an obligation to check, it says by undertaking the service they have fulfilled that obligation.

Q. I am referring to it, Mr Crosson, and I want to know whether you presently hold the view that there's a distinction between the proposition by having your microwave ovens inspected you fulfil an obligation under a particular section of an Act and the proposition that you are required to have your microwave ovens checked pursuant to a particular section of an Act?
A. There is a definite distinction.

180 I consider it to be a matter of further concern that the second defendant continues to maintain the distinction for which he contended when justifying the content of the report dated 19 September 2003.

181 Mr Hadley submitted that even if I was satisfied that it was appropriate to grant declaratory relief in this case, the circumstances did not call for anything more than appropriate declarations. Having considered that submission, I find myself unable to accept it, particularly having regard to the matters considered above.

182 These are proceedings brought by the plaintiff in the public interest and I have come to the conclusion that injunctive relief in addition to appropriate declarations should be granted.

183 In Australian Competition and Consumer Commission v Top. Snackfoods Pty Limited & Ors (1999) ATPR 41-708 Tamberlin J considered the grant of injunctive relief would "serve the salutary purpose of focussing the attention of the respondents on the necessity to guard against misleading conduct…" I consider that same purpose would be served by the making of an appropriate order in the present case. Save for the inclusion of the word "regularly" after the word "tested" in para 5(b) of the summons, the order to be made pursuant to s 65 should be in the terms sought in para 5 of the summons.

184 The plaintiff seeks orders against the second defendant. In para 4 a declaration is sought

"pursuant to s 62(1)(d) of the Fair Trading Act 1987 that the second defendant has been knowingly concerned in the conduct of the first defendant referred to in paragraphs 1, 2 and 3."

185 In para 6 the plaintiff seeks an order pursuant to s 65 of the Fair Trading Act:

"that the second defendant be restrained in trade or commerce by himself, his servants or agents and through any corporation or by any other means"

186 Mr Crosson has been the sole director of the first defendant since the company was incorporated, and I accept his evidence that most of the major decisions of the company have been made by him. I accept that such decisions as related to the advertising and promotion of the company were his decisions. Mr Crosson's evidence was that he determined the content of the Workplace Safety Bulletins and he said he usually oversaw the content of the website (T 150).

187 Section 62 deals with offences against the Act and s 62 addresses contraventions of provisions other than s 42 or 43. The declaration sought against the second defendant is incorrectly expressed. In supplementary written submissions, Mr Renehan has conceded that the words "pursuant to s 62(1)(d) of the Fair Trading Act 1987" should not appear in para 4 of the summons. Section 62 is irrelevant for the purposes of this particular application in the summons.

188 Mr Renehan submitted that proof that the second defendant had been knowingly concerned in the conduct of the first defendant identified in paras 1, 2 and 3 of the summons involved the application of the approach expressed by Gummow, Hayne and Heydon JJ in Rural Press Limited v The ACCC (2003) 216 CLR 53 at 74 [48]:

"…In order to know the essential facts, and thus satisfy section 75B(1) of the Act [being the Trade Practices Act] and like provisions, it is not necessary to know that those facts are capable of characterisation in the language of the statute."

189 Mr Renehan properly referred the Court to the division of judicial opinion as to what is involved in proof of being "knowingly concerned": as to which see Medical Benefits Fund of Australia Limited v Cassidy (2003) 135 FCR 1 and the judgment of Moore J at 4-11 [1]-[16]; and the judgment of Stone J in the same case at 24-33 [64]-[95]. Mr Renehan also cited Adler v ASIC (2003) 179 FLR 1 and in particular the judgment of Giles JA, with which the other members of the court agreed, at 68-71 [333]-[342]. Mr Renehan submitted that by reason of the nature and extent of the second defendant's involvement in the affairs of the first defendant, the Court would find that the second defendant was aware of those facts which rendered the conduct of the first defendant misleading and deceptive in relation to the matters addressed in the summons. He submitted further that it was not necessary for the Court to find that Mr Crosson subjectively formed the view that the facts of which he was aware were properly to be regarded as misleading and deceptive.

190 I consider Mr Renehan to be correct in those submissions encapsulated in his further written submissions and recorded above. However, I am not persuaded that the making of the declaration sought in para 4 of the summons would achieve any useful purpose. The focus of the declaration sought does not extend beyond the conduct of the first defendant. I accept Mr Hadley's submission that the relevant conduct of the second defendant was conduct as the director of the first defendant aimed at securing customers for the first defendant.

191 Whilst I consider that there would be no utility in making a declaration pursuant to para 4, and hence I decline to do so, the position is otherwise in relation to the order sought in para 6. It seems to me that the making of such an order has a useful purpose, and I am satisfied that the making of such an order is warranted in all the circumstances.

192 The plaintiff seeks orders pursuant to s 67 against the first defendant. In para 7 an order is sought requiring the first defendant to publish advertisements in a form suggested or in such other form as the Court may order. In para 8 the plaintiff seeks an order requiring the first defendant to address a letter in a form suggested or in such form as the Court may order to each of the employers to whom it sent a copy of the Workplace Safety Bulletin in the period from 1 July 2003 until the date of the summons.

193 I consider some form of corrective advertising as contemplated by s 67 of the Fair Trading Act is warranted in this case. I propose to make an order pursuant to para 7 of the summons, but I decline to make an additional order pursuant to para 8. It seems to me that to require the first defendant to comply with such an order as is sought in para 8 covering advertising activity over a period of nearly two years, would be unreasonably burdensome. The evidence before the Court as to the extent of the distribution of the advertising material is, moreover, in an unsatisfactory state.

194 Bearing in mind the submissions of counsel, I propose to defer the making of the order as to corrective advertising, to afford the parties the opportunity of agreeing upon the form of the advertisement. The matter will be listed for mention seven days from the date of publication of this judgment, and, failing agreement by that date, directions will then be given so as to afford the parties the opportunity of being heard as to the content of the advertisement.

195 Mr Hadley submitted that any costs order should be limited to take account of the circumstance that no precise demands were made of the defendants before the proceedings began and the added circumstance that the use of the Department of Commerce envelopes ceased well before these proceedings were instituted. I am not persuaded by those submissions that I should limit the costs order I intend to make. The plaintiff has achieved substantial success on this summons and I consider that the proper order as to costs is that they should follow the event.

Formal orders

196 1. Declarations as sought in paras 1(a), 1(c), 1(e), 1(f) and paras 2 and 3 of the summons.

2. Order as sought in para 5 of the summons, save for the inclusion in (b) after the word "tested" of the word "regularly".

3. Order as sought in para 6 of the summons, save, again, for the addition in (b) after the word "tested" of the word "regularly".

4. Order that the defendants pay the plaintiff's costs.

**********

CITATION:	Commissioner for Fair Trading v Microwave Safe Australia Pty Ltd & Anor [2006] NSWSC 287
HEARING DATE(S):	8, 9, 10, 13, 14 March 2006
JUDGMENT DATE :	19 April 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Studdert J
DECISION:	(1) Declarations as sought in paras 1(a), 1(c), 1(e), 1(f) and paras 2 and 3 of the summons; (2) Order as sought in para 5 of the summons, save for the inclusion in (b) after the word "tested" of the word "regularly"; (3) Order as sought in para 6 of the summons, save, again, for the addition in (b) after the word "tested" of the word "regularly"; (4) Order that the defendants pay the plaintiff's costs; (5) To enable the parties the opportunity of being heard as to the form of the corrective advertisement the Court intends to order, the matter be listed for mention on 26 April 2006.
LEGISLATION CITED:	Electricity (Consumer Safety) Act, 2004 Electricity Safety Act, 1945 Fair Trading Act, ss, 42, 44, 62, 65, 67 Occupational Health and Safety Act
CASES CITED:	Aaron's Reefs Limited v Twiss (1896) AC 273 Adler v ASIC (2003) 179 FLR 1 Australian Competition and Consumer Commission v Top. Snackfoods Pty Limited & Ors (1999) ATPR 41-708 Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 Domain Names v .au Domain Administration (2004) 139 FLR 215 Global Sportsman Pty Limited v Mirror Newspapers (1984) 2 FLR 82 Heydon, Trade Practices Law Hornsby Building Information Centre v Sydney Building Information Centre (1978) 140 CLR Medical Benefits Fund of Australia Limited v Cassidy (2003) 135 FCR 1 Rural Press Limited v The ACCC (2003) 216 CLR 53 Siddons Pty Limited v The Stanley Works Pty Limited (1991) 29 FCR 14 Taco Co. v Taco Bell (1982) 42 ALR 177 World Series Cricket Pty Limited v Parish (1977) 16 ALR 181
PARTIES:	Commisioner for Fair Trading, Department of Commerce (Plaintiff) Microwave Safe Australia Pty Limited (1st Defendant) Jason Crosson (2nd Defendant)
FILE NUMBER(S):	SC 11817/05
COUNSEL:	P. Renehan (Plaintiff) M. Hadley (Defendants)
SOLICITORS:	Department of Commerce and Fair Trading (Plaintiff) KQ Lawyers (Defendants)