Trade Practices Commission v Australian Feather Mills P/L

[1991] FCA 538

FOQ DISTQII~U~ION

JUDGMENT No ..-........ ...... 533 1 .?!l...

.

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY	) Nos VG 279 - 292 of 1989
)
GENERAL DIVISION	1

BETWEEN: TRADE PRACTICES COMMISSION

(Prosecutor)

m:  AUSTRAtIAN FEATHER MILLS PTY LTD

(Defendant)

Coram:	Ryan J
Date:	26 August 1991

m: Melbourne

MINUTES OF ORDER

THE COURT ORDERS THAT: Case numbered VG 285 of 1989 be

dismissed.

NOTE:  Settlement and entry of orders is dealt with in

Order 36 of Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY	) Nos VG 279 - 292 of 1989
1
GENERAL DIVISION	1

BETWEEN: TRADE PRACTICES COMMISSION

(Prosecutor)

m:  AUSTRALIAN FEATHER MILLS PTY LTD

(Defendant)

m:	Ryan J
Date:	26 August 1991

Place: Melbourne

EX TEMPORE RULINGS IN RESPECT OF INFORMATIONS

VG 282 AND VG 285 OF 1989

RYAN J.: In this matter I have been invited to permit the

respondent, in effect, to make a supplementary submission of no case to answer in respect of the two remaining informations as to which, in my reasons for judgment of 6 June 1991, I rejected the respondent's no case submission. I consider it to be an appropriate exercise of the court's discretion to take that course in respect of Information VG 285 of 1989.

the respondent desires to advance draws attention to a piece	I have come to that conclusion because the contention which
of evidence which was relevant to the question of whether the effective representation as to the composition of the subject quilt involved the identification of the species of fowl from which the component material was derived.
I did not specifically advert to that evidence in my reasons for judgment of 6 June 1991. Since an affirmative answer to

the question of whether the effective representation involved species identification was determinative in my upholding the no case submission on the remaining informations, I consider that I should receive supplementary submissions in the light of the whole of the evidence relevant to Information VG 285 of 1989.

However, I am not persuaded to take that course in relation to Information VG 282. There, the argument for the respondent involves inferences to be drawn from evidence which was fully set out in the reasons for judgment of 6 June 1991, and from evidence pertaining to quilts which were the subject of other informations. It is proper now, I consider, to require the respondent to elect whether to call evidence in respect of that information or to rely on the inferences to which I have just referred in support of a submission that the offence alleged in Information VG 282 has not been proved beyond reasonable doubt.

!.

[After hearing a supplementary submission of no case to answer I

in respect of Information VG 285 of 1989, and submissions in	, .
1 , .
reply by Counsel for the prosecutor his Honour gave the following further ruling:-]
In relation to Information VG 285 in my reasons for judgment	! .
: '
of 6 June 1991, I impliedly found that the effective
. -
representation as to the composition of the subject quilt
contained no species identification. The plastic carry bag in	l

which the quilt was apparently sold, contained a legend on a circular adhesive label about 65 millimetres in diameter: "Down 50 per cent, water fowl feathers 50 per cent. King 102"

X 8 6 " , 15 channels". The label was affixed to the left of a

large illustration printed on the facric of the bag itself of feathers and down floating against a blue background, apparently above a layered brown sphere.

Immediately above and below that illustration were the words: "DOWNIA" in capital letters and "Continental ~u'rlt" in slightly smaller copperplate script. Immediately to the right of that illustration, surrounding a drawing apparently representing a part of the channel construction of a down and feather filled quilt, in bold, highly legible type, also printed on the plastic fabric of the bag itself, were the

words :  -

"This is the genuine Downra continental qurlt. The filling is pure duck down and feather, with superior softness and resilience because it has been properly lofted. You can adjust the warmth because of the rnulti-wall construction. A Downia rs luxurious, durable and sanitised for lasting freshness. Made in Australia."

to ascertain what was the effective representation. When that	I consider it appropriate to read all that material together
is done it becomes clear in my view that the effective representation was that the quilt contained 50 per cent duck down and 50 per cent duck feather. It was therefore a representation involving species identification.
Accordingly, for the reasons which I gave on 6 June 1991,
principally in respect of Information VG 279 of 1989, the
contents of the quilt should have been analysed in accordance
with paragraph 3.2.1 or 3.2.2 of the Australian standard and
the results interpreted in accordance with paragraph K3.3 of
that standard. That was not done; and there is no acceptable
evidence that analysis in general, or even strict, compliance
with clause K.3.3.1.1 is an appropriate method of determining
the absolute percentage of duck down in a quilt which is
effectively represented to be composed of duck down and duck

.

feather.

For these reasons which should be read in conjunction with those already given in respect of VG 283 of 1989, I uphold the supplementaxy submission of no case to answer and rule that that information must, like the others, excluding VG 282, be dismissed.

I certify that this and the

preceding three (3) pages are a true copy of the Reasons for

Judgment of the Honourable

Mr Justice Ryan.

Associate

Dated: 26 &F	1991
Counsel for Prosecutor:	Mr T Ginnane
Solicitors for Prosecutor:	Director o f P ublic Prosecutions
Counsel for Defendant:	Mr C Gee QC
with Mr C Hodgekiss
Solicitors for Defendant:	Hichman, Lakeman & Holcombe
Date of Hearing:	11 - 26 February, 1991 26 August, 1991
Date of Judgement:	26 August, 1991