Reported Decision:
(2004) ATPR 42-034
Court of Appeal
CITATION: Effem Foods Ltd v Nicholls [2004] NSWCA 332 HEARING DATE(S): 9 July 2004 JUDGMENT DATE:
17 September 2004JUDGMENT OF: Handley JA at 1; Tobias JA at 31; Palmer J at 32 DECISION: 1. Leave to appeal granted.; 2. Appellant to file a notice of appeal within 14 days if not already filed.; 3. Appeal dismissed with costs. CATCHWORDS: TRADE PRACTICES - consumer protection - product liability - statutory defences - manufacturer failed to prove that defect occurred after goods left its control - ND LEGISLATION CITED: Trade Practices Act 1974 CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
Cavalier Marketing (Australia) Pty Ltd v Rasell (1990) 96 ALR 375
Cheong v Wong (2001) 34 MVR 359
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Medtel v Courtney (2003) 198 ALR 630
Stegenga v J Corp Pty Ltd (1999) ATPR 41-695
The Popi M [1985] 1 WLR 948PARTIES :
Effem Foods Ltd (Claimant)
Pamela Nicholls (Opponent)FILE NUMBER(S): CA 40790/03 COUNSEL: C Hoeben SC (Claimant)
P G Mahony (Opponent)SOLICITORS: Wotton & Kearney (Claimant)
Konstan Lawyers (Opponent)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 14495/01 LOWER COURT
JUDICIAL OFFICER :Phegan DCJ
CA 40790/03
17 SEPTEMBER 2004HANDLEY JA
TOBIAS JA
PALMER J
TRADE PRACTICES – consumer protection – product liability – statutory defences – manufacturer failed to prove that defect occurred after goods left its control
The claimant (the manufacturer) manufactured a chocolate-coated confectionary item sold under the name of Snickers bar (the bar). The opponent purchased one of these bars in a shop but when she attempted to eat it she bit into a concealed safety pin and was injured. She brought proceedings in the District Court against the manufacturer for breach of its obligations under ss 74D and 75AD of the Trade Practices Act 1974 to supply goods which were of merchantable quality and free from defects. The trial Judge overruled statutory defences under s 74D(2)(a)(i) and s 75AK(1)(a) that the defect occurred after the bar had left its control and did not exist when it was supplied by the manufacturer. The Judge found that the chances of a safety pin accidentally entering the product line, surviving and then passing the metal detector at the end were very remote but such a result was not impossible. He also found that the safety pin could have been deliberately inserted in the bar while it was in the retail shop. The Judge awarded the opponent damages and the manufacturer sought leave to appeal. It claimed that proof of the possibility of sabotage in the shop was enough to discharge its onus of proving the statutory defences. HELD: (1) Under the statutory defences the manufacturer had to establish on the civil onus that the defect occurred after the bar had left its control and did not exist when it was supplied by the…
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- Case
- [2004] NSWCA 332
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the appellant had successfully established a defence under the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)). Specifically, the appellant sought to argue that any defect in the product occurred after it left the appellant's control, thereby absolving it of liability.
The Court of Appeal considered the evidence presented regarding the manufacturing process and the circumstances under which the defect arose. It was held that the appellant had failed to discharge the onus of proving that the defect did not exist at the time the goods left its control. The court applied the principles of statutory interpretation relating to defences under consumer protection legislation, emphasising the strictness with which such defences are typically construed.
Consequently, the appeal was dismissed with costs.
Orders
Orders of the court
1. Leave to appeal granted.; 2. Appellant to file a notice of appeal within 14 days if not already filed.; 3. Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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