Secretary of the Commonwealth Department of Sustainability, Environment, Water, Population and Communities v Kaddle Pty Ltd
[2012] FCA 1176
•26 October 2012
FEDERAL COURT OF AUSTRALIA
Secretary of the Commonwealth Department of Sustainability, Environment, Water, Population and Communities v Kaddle Pty Ltd [2012] FCA 1176
Citation: Secretary of the Commonwealth Department of Sustainability, Environment, Water, Population and Communities v Kaddle Pty Ltd [2012] FCA 1176 Parties: THE SECRETARY OF THE COMMONWEALTH DEPARTMENT OF SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES v KADDLE PTY LTD (ACN 009 110 114) File number: WAD 112 of 2012 Judge: SIOPIS J Date of judgment: 26 October 2012 Date of last submissions: 23 October 2012 Place: Perth Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Counsel for the Applicant: Ms K Sanders Solicitor for the Applicant: Norton Rose Australia Counsel for the Respondent: Mr B Havilah Solicitor for the Respondent: Havilah Legal
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 112 of 2012
BETWEEN: THE SECRETARY OF THE COMMONWEALTH DEPARTMENT OF SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES
ApplicantAND: KADDLE PTY LTD (ACN 009 110 114)
Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
26 OCTOBER 2012
WHERE MADE:
PERTH
1.THE COURT DECLARES THAT:
The respondent has breached the written undertaking given by it to the applicant (the regulator of the Water Efficiency Labelling and Standards scheme established under the Water Efficiency Labelling and Standards Act 2005 (Cth) (the WELS Act)) and accepted by the applicant on 13 October 2011 pursuant to s 42 of the WELS Act (the Undertaking) in that:
(a)it failed by 24 November 2011 to send to the Department of Sustainability, Environment, Water, Population and Communities (the department) the results of the initial internal audit referred to in paragraphs 21 and 22 of the Undertaking and Annexure A of the Undertaking;
(b)it failed by 24 November 2011 to provide to the department the compliance training materials referred to in paragraph 38 of the Undertaking and paragraph 1(e) of Annexure E of the Undertaking;
(c)it failed by 22 December 2011 to provide to the department the staff declarations referred to in paragraph 1(h) of Annexure E of the Undertaking;
(d)it failed by 13 December 2011 to inform the applicant (in its capacity as the regulator under the WELS Act) of its implementation of a WELS compliance records system and provide evidence of the implementation of that system in accordance with paragraphs 24 and 26 of the Undertaking and Annexure B of the Undertaking;
(e)it failed by 13 January 2012 to provide to the department an independent auditor declaration referred to in paragraph 4 of Annexure C of the Undertaking; and
(f)it failed by 27 January 2012 to provide to the department the findings of the independent audit referred to in paragraph 30 of the Undertaking and paragraph 6 of Annexure C of the Undertaking.
2.THE COURT ORDERS THAT:
Subject to the variations to the Undertaking referred to in Order 4 below, the respondent:
(a)conduct an audit of all of its holdings of WELS products at the Retail Store (as defined in the Undertaking) in accordance with paragraph 21 and Annexure A of the Undertaking by 27 November 2012 (the Initial Internal Audit);
(b)provide to the department the results of the Initial Internal Audit in accordance with paragraph 22 and Annexure A of the Undertaking by 11 December 2012;
(c)implement a WELS compliance records system in accordance with paragraph 23 and Annexure B of the Undertaking by 14 January 2013;
(d)inform the applicant (or authorised delegate of the applicant) of its implementation of a WELS compliance records system and provide evidence of the implementation of that system in accordance with paragraph 24 of the Undertaking by 14 January 2013;
(e)cause an independent auditor to audit its holdings of WELS products at the Retail Store in accordance with the requirements of paragraphs 27, 28 and 29 of the Undertaking by 14 February 2013 (Independent Audit);
(f)provide to the department an independent auditor declaration referred to in paragraph 4 of Annexure C of the Undertaking prior to the conduct of the Independent Audit;
(g)provide the findings of the Independent Audit to the department in accordance with paragraph 30 and Annexure C of the Undertaking by 28 February 2013;
(h)implement the compliance training program in accordance with paragraph 37 and Annexure E of the Undertaking by 11 December 2012 (Compliance Training Program);
(i)provide to the department a copy of any compliance training materials referred to in paragraph 38 of the Undertaking and paragraph 1(e) of Annexure E of the Undertaking 14 days prior to the implementation of the Compliance Training Program;
(j)cause each person who completes the Compliance Training Program to sign a written declaration stating that the person has completed the Compliance Training Program in accordance with paragraph 1(g) of Annexure E of the Undertaking within 14 days of the completion of the Compliance Training Program; and
(k)provide to the department a copy of the written declarations referred to in paragraph 1(g) of Annexure E of the Undertaking within 14 days of the making of the declaration but in any event, no later than 21 February 2013;
3.The respondent otherwise comply with the terms of the Undertaking except to the extent varied by Order 4 below.
4.With effect on and from the date of this Order and for the purposes of these Orders only, the enforceable undertaking is amended as follows:
(a)The definition of:
(i)“Clever Bathrooms” in clause 1 is deleted;
(ii)In every other instance, the words “Clever Bathrooms” and “Clever Bathrooms (WA BN11200030)” are deleted and replaced with the words “Kaddle Pty Ltd (ACN 009 110 114)”;
(iii)“Retail Store” in clause 1 is amended by:
(A)deleting the words “the store located at 9/27 Exhibition Drive, MALAGA, WA 6090” and replace with “any store (whether operating from premises or on-line)”;
(B)deleting the words “at the said premises”;
(C)insert “(or on-line)” after “or other premises”;
(b)Clause 2 is amended so that the words in brackets “(Trading as: Clever Bathrooms WA BN11200030)” are deleted; and
(c)Clause 18 is amended so that the duration of the Undertaking is extended for a further period of two years from the date of this Order.
5.The respondent pay the applicant’s costs in a sum as agreed or assessed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 112 of 2012
BETWEEN: THE SECRETARY OF THE COMMONWEALTH DEPARTMENT OF SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES
ApplicantAND: KADDLE PTY LTD (ACN 009 110 114)
Respondent
JUDGE:
SIOPIS J
DATE:
26 OCTOBER 2012
PLACE:
PERTH
REASONS FOR JUDGMENT
The applicant, who is defined in s 21 of the Water Efficiency Labelling and Standards Act 2005 (Cth) (the WELS Act) as the regulator, is charged with the administration of the WELS Act. There has been established under the WELS Act a water efficiency labelling and standards scheme. That scheme prescribes the registration and labelling requirements for a number of designated water using products which include showers, toilet equipment, tap equipment, flow controllers, washing machines and dishwashers.
The respondent operated a retail business which offered for sale to the public a variety of bathroom and plumbing products including some products subject to prescribed requirements. A number of inspections of the respondent’s retail premises were carried out. The inspectors found that the respondent was not in compliance with the requirements of the WELS Act. On 13 October 2011, the applicant accepted an enforceable undertaking to engage in remedial conduct offered by the respondent, pursuant to s 42 of the WELS Act.
On 19 June 2012, the applicant commenced an application in the Court seeking declarations that the respondent had breached the enforceable undertaking and seeking orders that the respondent comply with the terms of the enforceable undertaking.
In support of the application, the applicant filed two affidavits by Mr David Jongeneel. The respondent filed an affidavit by Mr Stanislaw Mania.
The parties have now provided to the Court a minute of consent orders seeking declarations to the effect that the respondent has breached a number of the terms of the enforceable undertaking and orders that the respondent comply with the terms of the enforceable undertaking.
I am satisfied that the declarations can be made on the basis of the evidence in the affidavits. I am, therefore, content to make the declarations and orders sought in the minute.
The minute of consent orders, however, calls upon the Court to “note” in the body of the orders, the following:
5The Applicant intends to publish the details of these orders and the circumstances giving rise to them in any way he thinks fit (including publishing those details on the Department’s website and including them in news media statements, Departmental publications and other publications).
However, in my view, a notation to that effect in the body of the orders would not be appropriate. In my view, the fact that the parties’ compromise, as evidenced by the minute of consent orders, is founded on that understanding is sufficiently recognised by this reference in these reasons.
The minute of consent orders also calls upon the Court to “note” certain definitions in relation to the orders. I am content that those definitions find expression in the terms of the orders.
Subject to the aforementioned qualifications, I am content to make orders in terms of the minute of consent orders which has been provided to the Court by the parties.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 26 October 2012
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