Given, Robert Alexander v Robert George Quinn Snuffa Pty Ltd

In the matter of -

TRADE FPJCTTCES ACT 1974

B E T W E E N :

SNUFFA PTY. LIMTTED

Defendant

- and -

, S t y to th:

-L-

G7 of 1978

In contraventlon of s.53(a) of the Act by

statement

i n wr l t lx<

appearing on

t h c body

three

f r re ex t ingulshers d l sp layed a t

the Sydney Building Informatlon Centre

on 26 September 1 9 7 7 ,

the defendant company fa l se ly represented tha t the

extinguishers

were

a par t icu lar s tandzrd , qua l i ty

or grade by using the

words :

"This u n i t complies i n perfommnce with

ASA

163. "

G9 of 1978

In contravention

s . 5 3 ( f ) by

statement in writ ing contalncd

i n a

l e a f l e t handsd

t o an o f f i c e r of

the Trade

Pract ices

Commisslcn a t the Sydney BJllding Informatlon

C e n t r e on

26 September 1977

made a false statement concernmg the

need

f o r goods I n the following

terms;

"You

must

have an

ex t ingu i she r f i t t ed ad -~acen t t o

each exin on your van.

A t around $12.50

( r e t a l l )

we suggest a 'Snuffa ' 907 G BCF type is about

the	best value around."

I n contravention of

S . 53(c) b y a statement 1 n wri t ing contained

i n a

l e a f l e t handed

t o an o r f i c e r of

thc Trade Pract ices

Comusslon ar. the Sydney l3uildlng Informanon Centre

on 1 2

January 1973 Calscly rcprescntcd that- Snuffa

e x t i n g u ~

shcrs

had p c . ) f~Jl-l;:rIIlCC ~ I I ~ I ~

s c t e r ~ s i l c s

th-.y 6lL!

nct h a w by statjncj-:

"The maker c la ims that

the c n l t meets

t h e

e f f i c l rncy tests c a l - r i ~ d 0 1 1 1 - hy t h e N e w South Wales Board of F i r e Comnlssioners

against Class

1, 2

and

f l r e s -

i n s e c t i o n

3 of the Australlan Standarss

Speclf lcat lon ASA

163.

The

defendant, Robert

Gcorge Q'linn,

who

v a s a t t h e r e l e v a n t

times the managing d i r ec to r of

the defendant

company, has

pleaded gui l ty to e ight offences against	s.79	of	the	A c t .
They are as follows:-

G 1 2 OF-

1978

Being knowingly concerned

In the

comnission by

the defendant

company of G7 of 1978 (above).

G14 of 1978

Belng knowingly concerned

i n t h e

commission

the acfendanr

company of G9 oT 1978 (above).

G16 of 1978

Being knowingly concerned i n t h e commission by the defendant conpa!ljr of G 1 1 of 1978 (above).

G 1 7 of

1978

practices Cormnlsslon from a retailc:. 111 i*Ielbourne, Victorla

14 February 1 9 7 7 f a l s e l y rcprcscn‘icd

tha t the extingulsher

was of a par t icu lar s tandard ,

quallty o r grack by statl-ng:

“This u n i t

c o ~ n p l ~ e s

I n perfornlance with

ASA 163. “

‘Cn contravention of

s .53(a) by a s ta tc~nent

I n wr l tmg contained

i n a

l e a f l e t handed

t o an o f f l ce r of

the Tracie

Pract ices

Commission by

a r e t a i l e r I n Beckenham, Western Australla

February

1 9 7 7 fa lsely represented that Snuffa

f i r e

extinguishers were of

par t icular s tazdard, qual i ty or grade

by	s t a t ing :

“One piece,

seamiess, lrnpact extruded alulninlum

container, the strength requlrcmcnts	0:’ whxh
comply wlth ASA 163. ‘’

G20 of

1 9 7 8

A similar offence to

G17 of 1976 which occilrred i n IIendra,

Queensland on 1.7 Marc’l 1977 .

G22 of

1 3 7 0

I I

contravenilon

s .53(c)

falsely represented that thc Snuffa

f i re ex t inyuishers

had an apprmral

they did not

have

statement sppearlng on the body of a number of

rnarlnc

f l re

extinqu1shcrs sccn Iw an

o C ~ I C ? ?

0: the. Conmi :.?.~3n on 17 l.h~-ch

. .

-5-

G23 of 1978

s imilar offence to

G17

of 1978 vlnch occurred

i n Hobart,

Tasmania

Se-ntcmber 1977 with

the

v a r l a t i o n t h a t t h c

offenrllng words appeared on a sticker adhering to the handle

of	a ma1-3ne f i r e extinguisher.

Counsel

for the prosecutlon, with the consent of counsel for

the defendant and the defcndant company, tendered a statement

of f ac t s r e l l ed on by the prosecutlon.

The offences G 7 and G12

of 1970 a r l s e out of

a display a t t h e Sydney Euildlng Infolmatjor.

Centre

whlch

conslsted of three marine extlnguishers and three

ordinary extlnguishers 5emg dlsplayed

on a wall with c e r t a i n

advertising rraterial nearby.

@hotograph

teildered by

the

prosecutlon shows one exti.ngulsher wLth the offending 173rds v i s ib l e . The offences G 1 1 and G1G were i n respect of \lords

contained in

reprint

of an

a r t l c l e i n p u b l i c a t l o n e n c i t l e d

"The Austrailan Yachtlng Industry" dated

September

1975 which

r ep r in t

was

del lvcred t o an officer of the Trade Practlces

Cmunlssion

a t t h e Sydney

Bulldlng Information Centre in

January 1978.

There is i n f a c t no such body cntiCled "Yachtmg Assoclatlon

Austral ia" but thcre are

.two bodies,

one

ca l l ed

"The

Australian

. .

-0-

permissiblc to

car r ied pursuant to

a r u l e of

that Assoclatlon

requiring the carrylng

of Clre extlngulshers.

Reference

made

i n t ha t let ter t o a

tes t ca r r l ed c u t on

J u n e 1971 I n

which

"Sargom" f i re ext lnguis l ler

was

t e s t e d a t t h e

Paddlngton

Fire Stat lon.

Counsel f o r t h e defendant company s t a t ed from

the bar tab le tha t the

"Swgom"

f l rc ex t ingulshcr

was

t h e

same

i n a l l respects as the

f i r e ex t~ngu i she r

I n respect of wh~ch

the charges were la id except tha t

the composltlon of the

f i l l i n g m a t e r l a l

used

had

been

chanyed.

The nature and

purpose

the tes t ca r r i ed out

I n 1971 was

not revealed but

presumably

it was

not a

tes t of

the same na ture as tha t car r ied

out by the Standards Assoclatlon

of Austral ia (S .A .A. )

J u l y

1978 when

t h a t test

resu l ted 111 a

€mding that the Snuffa

f i re ex t ingusher d ld not rezch

fhe

standards

set

fo r po r t sb l e

f i re extlngulshers of

the

type A163.

I n pa r t i cu la r ,

i n the

last-mentloned tes t the weight

of materlal was def ic lenk,

the working pressure was def l c i en t , the body

s t rength dj d not

meet the specificacions of the s tandard,

the Jo in t between the

body and valve holder

was not wel-ded or brazed as requlred,

the body cylinder has not rechargable as

lt should have been

and

there

was

safety devlce to prevent accldental operat lon.

The Standards Assoclmtion

also reported that

the New South

Wales Rozrd of Flre Coi&x~~.ssic~ers Trainlng College

on three

occasions car r ied out

"flre tests" 111 1.9GG

and 1077 and I n all

three tests fai.lure was recordcd.

O t h c r fca turcs were found not

acccpta1~1~-

and not I n accordance with the standlrds.

c+L&n!.,-

\::,,S

~ ~ ~ l 3 c . d

1 - 5 7 t ! ~

d ~ l = ~ ~ x i ~ ; ~ t ,

( ? I ~ ~

I I I ,

or thc d-:;cndrlpL

C O I P J S I I I ~ Lo

c.xpn?a~.:,

?I:*

~t C:I,N'

; I ~ C I U L L

Li-lct tlic iz?.se SLaL<.iXxIlL

r e l a t ing t o ccnlpl.iznce with

i-11:: Sianda1-d~ Assocldtion

/ 7

- I -

Austr-alla (S .A.A.

)

standards was used to descr ibe

the a r t l c l e

except that

couDsel f o r the defendant and the defendant

company

made

reference to

the t e s t conducted I n 1971 and s t a t ed

from

the bar table that

some

re l iance was

placed on

the 1 9 7 1

t e s t .

I n the

absence of evidence

to the contrary I can

only

conclude that rezerences to

the Standards Assoclation

Australia standards as belng those

w t h which

the extlnyuishcr

complied

was

del lbera te fa l sehood or a t l eas t

made

with

reckless i l ldifference to

~ t s

t r u t h

o r f a l s i t y .

In I I a r t n e l _ l v

S h a r ~

Corporatlon of Australia P t y . Ltd.

(1975)

5 A.L.11.

493 th-. Australian Indus t r l a l Court deal t wtth

s imilar fa lse representat lon

I n whxh

vas s ta ted tha t

ce r t a in

ovens

had

the Spproval of *S.A.A..

The -Judgments and

orders

that court served not lce

severe attltude towards

such false

statements.

The offences i n t he mstan t cases

were

committed ma1nl.y

l n 1977 b u t

as late as January 1978, the

A c t

having come in to force

i n 1974.

Joslce J. regarded the width

the swindle

as a proper conslderation

I n flxinc; penalty.

Here, it was Australia wlde.

Smithers J. enumerated a number

consideratlons.

F i r s t l y t h a t Judge s a d regard

should be

had t o the Importance of

che l i n t r u e statement, and the

departure irom the standards.

H e r e the statement i s about

a safety device used to save ,propcr ty and on occaslons,

pa r t i cu la r ly i n 1Ls mar1.w

uses,

t o save human

l l f e .

I have

already deal t

th the degree of vrl1fulness of the deceptlon,

(thc ?ccol1c? I : I ; > ~ L ~ I - 1ls'ii.d b:/

211 1 : ~ ~ f ~ r ~

J.) a11d the dcqrcc of

~ ~ S ~ ~ l ~ l l ~ ~ ! ~ l ! - i O ! l .

TilC'

d,??--:lld.i!lt S !:--CGrC!

? k ? ' C O u r t

6 L d Rot

heed

the varnuqs glvcn

those reasons for ~udg~nent.

The Standards Assoclatlon of Australla is a non-profit making organlsation incorporated by Royal Char-ter which seeks t o set

s tandJrds that achieve f l tness

Cor

purpose for

which

the

a r t r c l e

1s made.

The

standards are

s e t

a f t e r

f u l l enq2iry

and a r e s t a t e d t o

be made

i n recognltion of

the community of

intel-est of prcducer and consumer.

The

facts put before

m c by

the

prnsecutlon \/ere d e f i c l e n t i n

the respect that

the

consequences

f a l l u r e

t o conply with

the Standards Assoclation standards

was

not explained in

way

which would allow me to assess accurately

how

f a r s h o r t

t he

ex tmgulshers

fe l l .

am,

t h e r e f o r e ,

l e f t

m the posl t ion

where

can not assess

the

sever i ty of

t h e f a i l u r e t o

come

t o the

standards

It affects

the ul t l inate

consumer.

However, havlng

regard t o the purpose for

w h i c h zhe standards are

set I can

conclude

t h a t

the

ex t ingushe r s

were of an

in fe r io r qua l l t y

to those

made

accordance wlth the standard

and w e r e not as

f i t f o r their purpose

t hey would

have been had

they compllcd.

-9-

t h a t Mr.

Quinn was

under

the lmpresslon that

t h e d r a f t

regulations had been adopted

a s law but as there

is no

explanation as t o how t l n s impression was formed I must conclude t h a t it was made a t lws t i n reckless dlsregard

lts

t ru t l l o r f a l s i t y .

Thc defendant Qulnn , was f irst lnterviewed about

the matters

giving rise to the prosecut ions

m June 1976, a per lod in

some

instances

long before

the offences were committed.

It is

suggested that the mdespread dls t r lbut lon

the

extinguishers

ranglng from Brisbane

t o Hobart and

P e r t h with the offendlng

words

still p r h t e d on

them

a s l a t e

as 1977 and 197’6 was

a t t r i bu tab le

the

f d c t t h a t

the ‘wholesalers would

not

co-operate

and

r e t r i eve

the ex t ingushe r s

from

the

r e t a i l e r s

so that the offending

words could be obl i te ra ted .

I	I	do	not accept tha t eq lana t ion .	There	1s no	suggestion	of
I

correctlon by advcrtlsernent or any other publicity to inform

consumers of

t h e f a l s i t y

the

statement relating to standards.

Evidence

was

tendered of a

s a t i s f ac to ry r e su l t

tes t madc

the Department of

Productlvity deslgned

t o tes t the qua l l ty

the bas l s

tha t

the ex t lngushcr

was

aerosol

cofitainer.

is apparent from the d0cumer.t rep2rtlng the r e s u l t of

t h a t t e s t

t h a t It was not as s t r lngent or a s comprehcns1.ve

as chat l a l d

dovn by

Chc S k a ? : l ~ ~ c ~ z

?\<-sociaticm

and 1c no \:ay,

111 my vlcv:,

L S S I sLs

Lhc

cl : fc rdd

CL I n i i l s plc‘;

I V ~ J C ~ A L I O ~ .

. ./l0

-10-

There appears t o m e llttle put lx fore

m e which could be

regarded as mikxgating

the sevcr l ty of

the offences which have

been committed.

There

was no attempt

prove

Eccident

mistake or

a genujne belief

the t r u t h of t he representatlons

made (except i n the case

of the reference to

the Yachtlng

Associztion), nor

was

there any r e a l e f f o r t t o

remedy the

e f f ec t s of

the falsehood and i n the agreed statement

f a c t s

tendered by

the prosecution

i t

is recorded tha t the leaf le t ,

the sublect matter

of the charges

G 1 1 and G 1 6 of

1378 was

obtainable

i n a

l a rge hardware

s to re i n Sydney

f lve days a f te r

the matters wers

f i r s t mentioned I n Court.

One of

the of femxs

occurred i n January 1978 approxim-itely 18 months

a€ te r t he

defendant,

Quinn ,

was

f i r s t mtervlewed about these matters.

Over

100,000 extlngLishers have

&en

d l s t r i b l t e d to the capltal.

ci t ies of

the

Commonwealth

and

l i t e ra ture tendered lnd ica tes

a r e t a i l p r i c e

i n excess of

$12.00

each.

The company has a paid up share capi ta l

of $2.00 and the

shareholders a t a l l times have been

the defendant

and h i s wlfe

w i t h one share

each

nornlnal

value of $1.00. Smce

incorporatlon the only directors

the

company have Seen

the defendant, Qu inn , and 111s wife.

-.L.L-

loss ,

i f

has occurred, cannot be

sh ie ld aga lns t the

imposition of

the approprlate financial penalty.

I n the case

G 2 2 of

1970 there appears to

have been

some

j u s t i f i c a t i o n f o r t h e

use

o f the offendmg

words

t h a t a

yachting body had recommended the use

of the marine version.

The offences G9

and G14 of

1978 are not

as s e r i o u s i n my view

a s t h o s e r d a t i n g t o

compliance with

S.A.A.

s tandards but

is t o be noted that

the capaclty of not less than 900 grams

r e f e r r e d t o i n

the

draf t regula t ion

was

not achieved

i n the

S.A.A.

tes t : approximately half

the charge

acceptable

extinguishing medium was found.

It was a l so put

t o me ir! mitlgation t h a t the Ford Motor Company

had adopted the defendant company's product

t o be

sold

Ford

motor

dealers

af ter

" thorough

tes t lng".

The

standards

applied

i n the

tes t

were

not revealed and the cr l ter ia for

se lec t lon of

th i s par t icu lar ex t lnguls l le r

were

not explcred.

The motlves

for such selectlon cannot

he assumed.

Such vague

information is of no assistance.

I think lt approprlate that

I record I n thls ~udcpen t t ha t

I 'indicated

to counse l

that

i f

f a c t s were

not agreed they

should he proved I n the ord lnary way.

Statement-s

from

the

bar tab le a re

s u b s t L t G t e .

-IL-

I	.
I .	I

the defendant company I

impose

the fol lomng penal t ies : -

In respec t

G7 of

1978 t h e suln of

$ 8,000

I n

respec t

G9 of 1978 the sur.: of

$ 2,000

In respect t o G 1 1 of

1978 the sum of

$10,000

On	the defendant Q u i n n I impose the following pcna1tles:-

In respec t I n respec t

G14 of 1978 the sum of

400

G16 of 1978 the sum of

$ 6,000

i n respec t to

G12, G1.7,

G20 and G23

of 1978 a penalty of $2,000 i n each

case,

a s t o t a l of

8,000

I n respec t I n respec t	to	G19 of 1978 the sum .of	$ 1,000
to	G22 of 1978 the sun of	$ 1,000

I regard G12, G17, G20 and G23 of 1978 as coming within the

terms of S. 79( 2 ) .

The t u n e of the offence G 1 1 and the additional

representation as t o f i r e tests were f a l s e sets lt

apart f ron

other offences where the same representatlon was made.

The defendant Bulnn 1s t o pay the cos t s of

the proceedings

against h i m and the defcndant. colzpany the costs of the

procee.dings agalnst It.

[1978] FCA 70

18 Aug 1978