Trade Practices Commission v Australian Feather Mills Pty Ltd

[1991] FCA 539

IN THE FEDERAL COURT OF AUSTRALIA )

\

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION	.l
I ,
I ,

BETWEEN:  TRADE PRACTICES COMMISSION

/ I

(Prosecutor)	!
. . ,

@Q:  AUSTRALIAN FEATHER MILLS PTY LTD

;-

Coram:	Ryan J
Date:	28 August 1991

Place: Melbourne

MINUTES OF ORDER

THE COURT ORDERS THAT:	Information VG 282 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 )

)

VICTORIA DISTRICT REGISTRY	)	No. VG 282 of 1989
1
GENERAL DIVISION	1

BETWEEN: TRADE PRACTICES COMMISSION

(Prosecutor)

m:  AUSTRALIAN FEATHER MILLS PTY LTD

(Defendant)

Coram:	Ryan J
Date:	28 August 1991

Place: Melbourne

EX TEMPORE REASONS FOR JUDGMENT IN RELATION
TO INFORMATION VG 282 OF 1989

RYAN J.: The remaining information in respect of which I have ruled that the respondent had a case to answer is that numbered VG 282 of 1989. The prosecutor's evidence in respect of that information has been summarised at pages 25 to 29 of my reasons for judgment dated 6 June 1991. Those reasons should be read in conjunction with the present reasons in

behalf of AFM, as far as it has consisted of oral testimony, relation to that information. The only evidence adduced on	has been given through Dr Hickie who has been qualified as an
expert in the analysis by statistical and other means of textiles but who disavowed any detailed knowledge of the properties of feathers and down or of mixtures of those elements.
The essential question which remains, as it seems to me, is whether a sample of 1.8% of the bulk of the filling of a quilt

. . - -

I

i I. 't. -2. ,

I \, -

. ,

l.	..	:
t

taken by a technique intended to make the sample	l
l
representative of the bulk and shown on analysis to contain	I
approximately 16% of down demonstrates beyond reasonable doubt
that the percentage of down in the bulk was less than 30%. It	j '
is apparent even from a laymen's uninstructed visual observation that the constituent elements of a mixture of feathers and down are relatively volatile. When unconstrained the down, being lighter, tends to float away from the mass much more readily than the feathers. There is also evidence,

-- which I accept, that when a mass of mixture is removed from the quilt cover in which it has been constrained, particles of down have a greater tendency than feathers to adhere to the fabric of the cover. Those features of a mixture of feathers and down make it inherently likely, in my view, that there will be considerable variation in the relative proportions of feathers and down between two or more samples taken from the same quilt.

l

t

Dr Hickie carried out a statistical scrutiny of four available	I
I

results of the analysis of test samples taken from the same	I
l

batch of filling (Batch No 19/387) from which, the evidence	i
I
suggests, the filling of the subject quilt was derived. That	!
statistical scrutiny yielded a mean down content of	i
i I
approximately 18%. From that scrutiny Dr. Hickie concluded	i
!
I .
that in order to be 95% certain that the mean of test results

,c:	.
r

could be equated with the percentage of down in the bulk, one , . ,

!.	% - > .
<	. ,-

would have to conduct tests on at least eight samples.	i, , .-.
There is no evidence that the degree of variability within an individual quilt is less than the variability within a batch from which the filling of that quilt has been taken. Only one small sample has been tested in the present case. That fact, in conjunction with deficiencies in the randomness of selection and in the conditioning of the gross sample and in the selection and initial weighing of the test sample together with suspect aspects of the technique used in analysis of the test sample, most of which had a tendency to reduce the value to be ascribed to down content; all make it impossible for me to be satisfied beyond reasonable doubt that the subject quilt in absolute terms contained less than 30 per cent down.
This conclusion compels me to dismiss the remaining information and makes it unnecessary for me to consider the alternative submission advanced on behalf of the defendant. That submission was that the effective representation in respect of this quilt was that it too contained a statement of down content specifying or involving species identification
dismissed for the reasons which I outlined in my judgment of	and accordingly Information VG 282 of 1989 should also be	6 June 1991 and the supplementary reasons for judgment given on 26 August 1991 in respect of Information VG 285 of 1989.

- The order of the Court will be that Information VG 282 of 1989
be dismissed.

I certify that the preceding
three (3) pages are a true
copy of the Reasons for
Judgement herein of the

Honourable M r Justice Ryan.

Associate

Dated:  46 hp# /991

Counsel for Prosecutor:	M r T Ginnane
Solicitors for Prosecutor:	Director of Public 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 - 28 August 1991
Date of Judgement:	28 August 1991