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Gardam v George Wills & Co Ltd

Gardam v George Wills & Co Ltd

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Case Copied 10 June 1988 35 min read

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Re: VERNON JOHN GARDAM
And: GEORGE WILLS & CO. LTD.
No. WAG 18 of 1987
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Trade Practices - prosecution - falsely representing goods are of a particular standard - children's nightdresses - mislabelled as "Styled to Reduce Fire Danger - para.53(a) Trade Practices Act - "particular standard" - whether generally recognised standard required - whether wholesaler supplying goods mislabelled by manufacturer falsely represents - to retailer - to public - s.85 defences - reasonable precautions - due diligence.

Trade Practices Act 1974

Trade Practices Revision Act 1986

Taperell Vermeesch & Harland Trade Practices and Consumer Protection (3rd ed.) para.1456

Report of Trade Practices Review Committee 1976 paras. 9.64, 9.68

Donald and Heydon Trade Practices Law Vol. 2 para.12.3.1

Given v C.V. Holland (Holdings) Pty Ltd (1977) 15 ALR 439

Thompson v J.T. Fossey Pty Ltd (No. 1) (1978) 20 ALR 496

Thompson v Riley McKay Pty Ltd (No.2) (1980) 31 ALR 507

Doolan v Waltons Ltd (1981) 39 ALR 408

Ducret v Chaudhary's Oriental Carpet Palace Pty Ltd (1987) 76 ALR 183

MacFarlane v John Martin & Co. Ltd (1977) ATPR 40-034

Gardam v Splendid Enterprises Pty Ltd (1987) ATPR 40-779

Yorke v Lucas (1985) 158 CLR 661

Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561

Darwin Bakery Pty Ltd v Sully (1981) 36 ALR 371

Wilkinson v Katies Fashions (Aust) Pty Ltd (1986) 67 ALR 137

Weitmann v Katies Ltd (1977) 29 FLR 336

Thompson v Riley McKay Pty Ltd (1980) 29 ALR 267

Barton v Croner Trading Pty Ltd (1984) 54 ALR 541

Korczynski v Wes Loftus (Aust) Pty Ltd (1985) 62 ALR 225

Brown v Riverstone Meat Co. Pty Ltd (1985) 60 ALR 595

Adams v Eta Foods Limited (1987) ATPR 40-831

HEARING

PERTH

#DATE 10:6:1988

Counsel for the Prosecutor: Mr S.W. O'Sullivan

Solicitors for the Prosecutor: Director of Public Prosecutions

Counsel for the Defendant: Mr K. Martin

Solicitors for the Defendant: Messrs. Parker & Parker

ORDER

The defendant is convicted of each of the three counts.

The defendant to pay the prosecutor's costs of the prosecution.

The hearing is adjourned to 16 June 1988 at 9.30 am for submissions as to penalty.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

JUDGE1

George Wills & Co. Ltd ("Wills") carries on business in Western Australia as a wholesaler of clothing, including children's nightwear. One of its suppliers, of some 8 1/2 years' standing, is a clothing manufacturer, Splendid Enterprises Pty Ltd ("Splendid"). Splendid carries on business under the name "Jolie Manufacturing". One of Wills' regular customers is the retailer, D.S. & M.E. Cooksley Pty Ltd ("Cooksley"). Cooksley has a shop at Morris Place, Innaloo.

On or about 6 November 1985, Cooksley placed an order with Wills for 36 nightdresses including 12 in size 0. On or about 27 November, Wills placed an order with Splendid for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1988] FCA 289
Decision Date: 10 JUNE 1988

CaseChat Overview and Summary

The case of Gardam v George Wills & Co Ltd involved the defendant, a wholesaler, who was prosecuted for falsely representing children's nightdresses as "Styled to Reduce Fire Danger." The Trade Practices Act 1974 (Cth) was invoked, specifically section 53(a), which prohibits misrepresentations regarding the standard of goods. The court had to determine whether the wholesaler, by supplying and selling the mislabelled goods, was guilty of falsely representing the products to both retailers and the public. Additionally, the court had to examine whether the wholesaler had a defence under section 85, which allows for reasonable precautions and due diligence as a defence.

The primary legal issue was whether the term "particular standard" in section 53(a) of the Trade Practices Act required a generally recognised standard. The court considered whether the wholesaler, in supplying the mislabelled goods produced by the manufacturer, was falsely representing the standard of the goods to the retailers and the public. The court also evaluated whether the defendant could rely on section 85 as a defence, considering the measures taken to prevent such misrepresentations.

The court found that the term "particular standard" did not necessitate a generally recognised standard but rather a specific, identifiable standard. The court held that the wholesaler, by supplying and selling the mislabelled goods, was indeed falsely representing the standard of the goods. The court also determined that the wholesaler had not taken sufficient reasonable precautions or exercised due diligence, thus failing to avail itself of the defence under section 85. The court concluded that the wholesaler was in breach of section 53(a) of the Trade Practices Act.

The defendant was convicted on each of the three counts. The defendant was ordered to pay the prosecutor's costs. The hearing was adjourned to 16 June 1988 to allow for submissions on the penalty. The settlement and entry of orders were to be handled in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

The defendant is convicted of each of the three counts.

The defendant to pay the prosecutor's costs of the prosecution.

The hearing is adjourned to 16 June 1988 at 9.30 am for submissions as to penalty.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

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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