Pugh, I.G. v Clark Rubber Ltd

IAN GORDON PUGH v. CLARK RUBBER LIMITED
Nos. VG321 and VG322 of 1993
FED No. 577
Number of pages - 6
Trade Practices
(1993) ATPR 41-258

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Heerey J(1)

CATCHWORDS

Trade Practices - offences against Product Safety Standard provision - failure to affix warning notice and child resistant fasteners to bean bags - factors taken into account in discretionary imposition of penalty - conduct of defendant in proceedings - lack of candour - special nature of standards designed to protect human life - absence of injury.

Trade Practices Act 1974 (Cth) ss.65C(1)(a), 79(1)(a)

Crimes Act 1910 (Cth) s.19B

Pretorius v Venture Stores (Retailers) Pty Ltd (1992) ATPR 41-166

HEARING

MELBOURNE, 12 August 1993

#DATE 24:8:1993

Counsel for the applicant: Mr T Ginnane

Solicitor for the applicant: Australian Government

Solicitor

Counsel for the respondent: Mr D Armitage

Solicitor for the respondent: Blake Dawson Waldron

ORDER

The Court Orders that:

1. The defendant be fined $25,000 on the charge brought in the matter VG 321 of 1993.

2. The defendant be fined $25,000 on the charge brought in the matter VG 322 of 1993.

3. The defendant pay the prosecutor's costs including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

JUDGE1

HEEREY J The defendant has pleaded guilty to two charges of contravening s.79(1)(a) of the Trade Practices Act 1974 (Cth) by supplying goods which did not comply with a prescribed consumer product safety standard, contrary to s.65C(1)(a). The goods in question were bean bags. There were two standards which the defendant breached. First, bean bags are required to contain a warning label or notice in the following form:

"WARNING - Small Lightweight Beads Present a Severe Danger

to Children if Swallowed or Inhaled."

Secondly, bean bags must have a child-resistant slide-fastener fitted to every opening through which bean bag filling can be inserted or removed. (See Statutory Rule No. 246 of 1987, reg 11.)

1. These standards were introduced as a response to the death of children in Queensland and New South Wales from ingesting bean bag filling. The Commonwealth regulation, introduced in 1987, followed similar regulations already in force in New South Wales, Queensland, Western Australia and Tasmania.

2. The defendant, currently a member of the David Jones Group, has been in business since 1947. It operates approximately 37 stores throughout Australia, twelve of which are in Victoria. It has sold bean bags for some 20 years. There is no allegation that it has any previous convictions for breaches of consumer protection legislation.

3. On 8 July 1991 Mr Ian Pugh, a compliance officer with the Federal Bureau of Consumer Affairs, purchased bean bags from retail shops of the defendant at 1517 Dandenong Road, Oakleigh and 509 Bridge Road, Richmond. The Bureau notified the defendant on the same day of the non-compliance with the standards. The defendant arranged an immediate recall from its stores and rectification by the manufacturer.

4. On…