Given, Robert Alexander v Robert George Quinn Snuffa Pty Ltd

[1978] FCA 70

In the matter of -

TRADE FPJCTTCES ACT 1974 -

B E T W E E N :

I

SNUFFA PTY. LIMTTED

Defendant

- and -

, S t y to th:

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*

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G7 of 1978

In contraventlon of s.53(a) of the Act by a statement i n wr l t lx<

appearing on t h c body of 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 of 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 of s . 5 3 ( f ) by a 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

I 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 fj re 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 3 f l r e s - i n s e c t i o n

1, 6, 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

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Belng knowingly concerned i n t h e commission by 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

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

on 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

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

on 17 February 1 9 7 7 fa lsely represented that Snuffa f i r e

extinguishers were of a 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,

I	Queensland on 1.7 Marc’l 1977 .
j	G22 of 1 3 7 0
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In contravenilon of s .53(c) falsely represented that thc Snuffa
f i re ex t inyuishers had an apprmral they did not have by a
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

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G23 of 1978

A s imilar offence to G17 of 1978 vlnch occurred i n Hobart,

Tasmania on 8 Se-ntcmber 1977 with the v a r l a t i o n t h a t t h c

I	offenrllng words appeared on a sticker adhering to the handle
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of a ma1-3ne f i r e extinguisher.
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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. A @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 a 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 oc
Austral ia" but thcre are .two bodies, one ca l l ed "The Australian

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permissiblc to be car r ied pursuant to a r u l e of that Assoclatlon

requiring the carrylng of Clre extlngulshers. Reference 1s

made i n t ha t let ter t o a tes t ca r r l ed c u t on 7 J u n e 1971 I n

which a "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

I purpose of 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. ) in 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 no 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. No

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 of

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Austr-alla (S .A.A. ) standards was used to descr ibe the a r t l c l e

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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 of

Australia standards as belng those w t h which the extlnyuishcr

complied was a 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 a

s imilar fa lse representat lon I n whxh It vas s ta ted tha t

ce r t a in ovens had the Spproval of *S.A.A.. The -Judgments and

orders of that court served not lce of a 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

of the swindle as a proper conslderation I n flxinc; penalty.

Here, it was Australia wlde. Smithers J. enumerated a number

of 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 W: 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

dJ ~ ~ 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 i n those reasons for ~udg~nent.

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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 a 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 cf f a l l u r e t o conply with

the Standards Assoclation standards was not explained in a way

which would allow me to assess accurately how f a r s h o r t t he

ex tmgulshers fe l l . I am, t h e r e f o r e , l e f t m the posl t ion where

I can not assess the sever i ty of t h e f a i l u r e t o come up t o the

standards as 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 in accordance wlth the standard and w e r e not as

f i t f o r their purpose as t hey would have been had they compllcd.

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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

of 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 of 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 EO 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
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correctlon by advcrtlsernent or any other publicity to inform

consumers of t h e f a l s i t y of the statement relating to standards.

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Evidence was tendered of a s a t i s f ac to ry r e su l t of a tes t madc by

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the Department of Productlvity deslgned t o tes t the qua l l ty on

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the bas l s tha t the ex t lngushcr was an aerosol cofitainer. it

. 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‘; of I V ~ J C ~ A L I O ~ .

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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

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been committed. There was no attempt to prove Eccident or

mistake or a genujne belief in 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 of 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

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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 of a nornlnal value of $1.00. Smce

incorporatlon the only directors of the company have Seen

the defendant, Qu inn , and 111s wife.

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loss , i f it has occurred, cannot be a 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 ln 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 it

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 of 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 by

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 no s u b s t L t G t e .

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On the defendant company I impose the fol lomng penal t ies : -

In respec t to G7 of 1978 t h e suln of $ 8,000

I n respec t to 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:-

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In respec t I n respec t to G14 of 1978 the sum of $ 400

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to 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

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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.