Trade Practices Commission v Australian Feather Mills Pty Ltd

[1991] FCA 301

d0-f BR AIS P ? / B M ~ T ~ ~ & '

JUDGMENT No. so l ?! ......,,

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	1 Nos VG 279 - 292 of 1989
\

BETWEEN:  TRADE PRACTICES COMMISSION

(Prosecutor)

AND:  AUSTRALIAN FEATHER MILLS PTY LTD

(Defendant)

Coram:	Ryan J
Date:	6 June 1991

W: Melbourne

REASONS FOR JUDGMENT

There are before the Court fourteen proceedings against the defendant, Australian Feather Mills Pty Ltd ("AFM") in each of which it is alleged that AFM has contravened s.53(a) of the Trade Practices Act 1974. The charge against AFM in proceedings numbered VG 279 of 1989 is as follows:

(c)	The representation was made to one David Heffer who purchased the quilt on the said date from the
retailer.

"1.

That on or about the 10th day of Aprrl 1987 at Geelong in the State of Vrctoraa AUSTRALIAN FEATHER MILLS PTY LTD. a corporation withrn the meanang of the Trade Practices Act 1974, dad commit an offence against sectaon 19(l)(a) of the saad Act m that rn contravention of section 53(a) of the sard Act, at dad in trade or commerce, in connection with the supply of goods falsely represent that the goods were of a partrcular composition.

2.

The particulars of the charge are:

(a)	The representatron was made at the premises of 'Capt'n Snooze', (the retarler), at 32 Moorabool Street, Geelong in the said State.
(b)	The representation made was that a single bed continental quilt of the brand 'Capt'n snooze', contained a frlling composed of 300 duck down and 700

duck feather.

(a) (i) The defendant supplied the quilt to the

retailer.

(ii)  The quilt when supplied to the retailer and at the time of the representation was enclosed in a plastic bag upon which the representation appeared.

(e) The representation was false in that the fillrng of the quilt was not composed of 30% duck down but was composed of less than 30% duck down vrz: approxrmately 20.4% duck down."

At the close of the case for the prosecutor, Counsel for AFM submitted that there was no case to answer in respect of any of the fourteen informations. Although that submission was framed on several different bases, of which some were confined to single specific informations, and others applied to all of them, it is convenient for the purpose of ruling on the submission to consider separately, and in order, the present state of the evidence in relation to each information.

VG 279

The operative part of the summons in respect of this

Information has been set out above. The evidence reveals that Mr

Heffer purchased the quilt in question on 10 April 1987 and took	it to the laboratory of David J. Heffer & Associates Pty Ltd at
22 Hicks Street, Lara. It was there allocated the job number, 879249. The descriptive details of the quilt as recorded by one
of the analysts employed in the laboratory, Mrs Fe Tepper, and verified by Mr Heffer, by reference to the labelling on the outer bag in which the quilt was contained and to a sewn-in label attached to the fabric cover of the quilt itself were:

879249 CAPT'N SNOOZE ( Q p m )

General description: Continental quilt, CAPT'N SNOOZE,

single bed size, 30% duck down, 70% duck feather

Brand:	CAPT'N SNOOZE
Manufacturer:	Australian Feather Mills Pty Ltd
Slze:	single
Dimensions:	Actual - 140 X 210 cm Measured - 138.5 cm, 139 cm X 207.5, 206.5

Nominal Composition:  feather down, 30% duck down
70% duck feather

Quilt construction:	walled and channelled
Number of channels:	7
Price:	$75.00
Prlce tag:	present

Purchased from: CAPT'N SNOOZE, Hoorabool, Geelong

Speclal clams:	San~tized
Bag:	prlnted opaque plastic
Batch no:	? Feb 1987
Mass on label:	not stated
Total mass:	1640 g
Mass of cover:	820 g

F ~ l l mass: 820 g"

It appears that the entire filling of this quilt was extracted for the purpose of determining its total mass by subtracting the mass of the empty quilt cover from the total mass	of the quilt including cover and filling. In some way, a test	sample recorded as exactly 5.000 grams was amassed from the
filling which had been in the quilt as purchased. Mrs Janene Tepper, one of the employees of the laboratory, who was involved in the testing of this quilt, conceded that the mass of a test sample recorded as exactly 5.000 grams might not be accurate to the third decimal point.
The constituent elements of the test sample were separated by Mrs Janene Tepper and her sister-in-law, Mrs Fe Tepper, who was also employed as an "analyst" in Mr Heffer's laboratory. The
evidence indicates that the usual method of "analysing" a test sample was for each analyst engaged in the work to take a portion from the test sample, place it in a dish on a tray in front of her and, using a pair of tweezers, extract each constituent part from the portion. If the part so extracted had any other material adhering to it, like down, feather fibre or residual matter, that material was brushed away with the thumb and forefinger. Alternatively, the part sought to be extracted was held between the thumb and forefinger and the adherent matter was brushed away with the tweezers. The part so extracted was then placed in a separate receptacle according to whether it was down and plumules, feather fibre and so on. When that process had exhausted the test sample, the contents of each receptacle containing constituents of the same classification were consolidated in a single, tared, receptacle, and weighed. The results of the analysis undertaken as part of job number 879249 as recorded by Mrs Janene Tepper against a pro forma schedule of
headings drawn up by Mrs Fe Tepper, were:

"Initial mass 5.000 tal Mass l a l

Down + plumules	0.911
Down flbre	0.036

Waterfowl feather	<60 m	3.099
>60 m	0.675
Landfowl feather	<60 m	0.017
>60 m	0.047
Crushed feather	<60 m	0.060
>60 m	nil
Feather Fibre	0.082
Residue	0.070

TOTAL 4.997

Classification loss	0.6%
Tlme : 7.58 hrs"

The mass of down and plumules and down fibre expressed as a simple percentage of the total mass of 4.997 grams is 18.95%. Mr Heffer processed the results recorded by his analysts using a computer programme which, he claimed, applied to those figures Table K1 from Appendix K to Australian Standard 2479-1987 for "down and/or feather filling materials and filled products" ("the Australian Standard"), published by the Standards Association of

Australia.

Appendix K to the Australian Standard provides, as far as

relevant :

"METHOD FOR DETERMINING THE NOMINAL COMPOSITION

OF A FILLING MATERIm FOR LABELLING OR FOR LABEL

VERIFICATION

K1 SmPE. This appendix sets out a method for determining the

percentage nomrnal compositron, by mass, of a down and/or feather
filling material for labelling or for verifrcation of a label.

KZ PRINCIPLE. Followrng the determination of the composrtron of individual components as specified m Appendrx J, a mathematical procedure is used to calculate the nominal composltron of the components which is to be specified on a label or to verify the composltron stated on a label. If the species of fowl is to be specifred on a label or re specified on a label that requires verifrcation, a further separation together with a microscopic examination is necessary to ascertain the species content.

K3 PROCEDURE.

NOTE:  To increase confrdence t h a t f i l l ~ n g e v111 comply with t h e to l e rances

speclfLed i n t h r s Standard, it is recommended t h a t repeated d e t e m i n a t i o n s

be	carr red ou t .	The	number	of	detenninatrons	requrred	t o e s t a b l i s h a
su i t ab le	l eve l	of	confrdence w i l l depend	on	t h e u n l f o m ~ t y with	which	t h e

blend has heen made and t h e s u i t a b r l i t y of t h e sampling procedures. I n

pa r t r cu la r , ~f t h e species of fowl is t o he s p e c r f ~ e d on a l a b e l or is

specifred on a l a b e l t h a t is t o be verified, t h e number of d e t e r m ~ n a t i o n s

w ~ l l need t o be c a r e f u l l y consrdered s m c e the sample s i z e ~n Paragraph X3.2

1s small yet t h e e n t i r e f i l l i n g is t o comply with t h e appropr ia te

requirements of Clause 6 and i n p a r t ~ c u l a r Clause 6.5. Accord~ngly , t h e

number of	required	detemrnat iona	can only be e s t m a t e d f o r each	ind iv idua l
CaBe.

K3.1 Species not specified. Where the species of fowl is not to

be specifled on a label or 1s not specifred on a label which is to be verrfied, the procedure shall be as specrfred in Paragraph K3.1.1.

...

l Using Table K1. The procedure for determining the nominal

compositron of a f~lling material for labelling or verification of

a label, using Table K1 shall be as follows:

(1)	If the determination was rntended for labelling, ensure that the rnformat~on on the label complies with the percentages of components determined in (k) above.
(m)	If the determinatron was intended for verification of the composrtion specified on the label, calculate the difference between the components determined in (k) above and the respective components stated on the label.
NOTE: The compl~ance requirement is specifred in Clause 7.1.2.

TABLE K1

TABULAR FORXAT USED FOR DETERMINING THE NOMINAT,

COMPOSITION OF FILLING MATERIAL

Component	Camponent
content	content

(a. C-nent

Classif- Components calculated all& content

ication in J5 of bY in excess

sppcndh J)	Clmume 6)
\ by mass	9 b y m s 8 by m s

1 2 3 4 5

-

Wm Down and plumules P1 L1

Down fibres	P8	L2	El
Feather flbres and fluif barbs )	P9	)	E2
Crushed feathers < 6 0 m	P6	)	E3

Landfowl feathers C 6 0 m ) p4 ) L3 E4

dateriowl feathers c60m	)	p2	)	E5
Res~dual	matter	P10	L4	E6

-

WATER- Waterfowl feathers (all aieem) E5 + P3 L5

mm	Landfowl feathers (all srzes)	E4 + P5	L6	E7
FEATHERS	Crushed feathers (all srZe6)	E3 + P7	L7	E9

Down flbres ) El ) E9

L8

Feather fzbres and fluff barbs ) E2 ) E10

L9

Res~duel matter E6 E11

-

LANDEVWX Landfowl feathers (all sires) E7 L10

Crushed feathers (all sires) E8 L11 E12

Down fbres	)	E9	)	E13
Feather flbres and fluff barbs )	E10	)	L12	E14
Resrdual matter	Ell	L13	E15

where

P1 - percentage down and plumules

1

P2 - percentage waterfowl feathers <60 m	1
P3 - percentage waterfowl feathers >60 m	)
P4 - percentage landfowl feathers c60 mm	)
P5 - percentage landfowl feathers >60 m	) as determ~ned in
P6 - percentage crushed feathers c60 rm	) Paragraph S5 of Appendix J
P7 - percentage crushed feathers >60 m	)
P8 - percentage down fibre	)

P9	= percentage feather fibre and fluff barbs	)
P10 - percentage res~dual	matter	)

L - the l m r t for the appropriate component as allowed in Clause 6

and

E = the excess of the appropriate component after allocatrng the maximum limrt

allowed for a part~cular	class~ficat~on.	(1.e. E - P - L for the
appropriate component.)'

I n Table K2 to the Australian Standard the following worked

example using Table K1 is provided:

ccqonent -nant

(-=

calculated allorrd m n e u t

Classrf- Components in J5 of W in ercaas

ication sppenak 3) Clauss 6 )

B B

1	2	3	4	5
-

WWN	Down and plumules	17.3	17.3
Down fibres	5 .1	1.6 3.5

Feather f ~ b r e s and fluff barbs ) 6.6 1 1.0 5 .6

Crushed feathers < 6 0 m	1	2 .1	I	2.1
Landfowl feathers c 6 0 m	)	0.7	)	0.7
waterfowl feathers c 6 0 m	)	65.7	)	65.7

Residual matter 1.0 0 .4 0.6

-

WATER- waterfowl feathers (all sizes) 65.7 + 1.5 65.3

-

FOWL Landfowl feathers (all a~zes) 0.7 6.4

-

FEATHERS Crushed feathers (all sizes) 2 .1 2 .4

-

Down fibres 1 3.5 ) 4 .0

Feather fibres and fluff barbs )	5.6	)	5 .1
-

Residual matter 0.6 1.6

Appendix J to the Australian Standard, again so far as relevant, provides:

"HETBOD FOR DETBRZIINING THE COWOSITION OF A

FILLING HA-

J1 SCOPE. This append~x sets out a method for determining the compoertron, by mass, of a down and/or feather filling material.

JZ PRINCIPLE. A conditioned test sample of falling material

having a specifred mass is separated into xts component parts and the percentages, by mass, of each of the component parta are then calculated.

53 APPARATUS. The following apparatus is requrred:

(a)	A suitable means for separatrng the filling material into
is surtable. he separating box may have a hinged gliss lid its component parts. A separatina box as shown in Fiuure J1

and two openings in the front panel for the operator to lnsert hrs hands in order to separate the filling material rnto its component parts.

(b)	Two surtable pairs of tweezers.
(C)	An analytical balance, accurate to 0.001 g.
(d)	A sufficient number of weighing bottles.

NOTE: If the composition of the filling mater~al is not to be analysed for

the species of fowl, usually ten we~ghing bttles labelled as follows will
he requ~redr

Down and plumules; waterfowl feathers less than 60 m long; waterfowl feathers 60 mm or more m length; landfowl feathers less than 6 0 m long;

landfowl feathers 6 0 m or more in length; crushed feathers lass than 60 mm

long; crushed feathers 6 0 m or more in length; down fibre; feather fibre
and fluff barbe: and residual matter.

If the composition of the filling material 16 to be analysed for the species of fowl, a sufficient number of weLghing bottles Ln addition to the tan mentioned above will be required.

. . .

J4 PROCEDURE. The procedure shall be as follows:

(a) Approprrately label and accurately welgh each of the welghing bottles necessary to hold the component parta of the fllling material.

NOTE: See Note in Paragraph J3(d).

(b)	Collect a sample, in accordance with Appendrx C.
(c)	Weigh out approximately 5 g of test sample to an accuracy of

0.001 g.

Empty the we~ghed test sample onto the separatrng means.

Uslng the tweezers, collect a single component from the test sample and briefly examine zt vrsually for any foreign material that may have attached ltself to that component. For example, rf the component collected was down, examine it for feather fibre or resldual matter that may have adhered ztself to the down. If the forelgn material, if any, can be easlly extracted, remove it from the component and place it in the appropriate weighlng bottle.

Ensurlng that the component collected in step (e) is held firmly at a locat~on that wrll not damage rt, flick the component three times to remove parts that may have broken off from the component or other forergn matter that may have adhered to the component but whrch was not removed in step (e).

Place the collected component and any matter obtained after step (f) in t h e m respective weighing bottles.

Repeat steps (e) to (g) for each component remaining in the

test sample.

After the whole of the test sample has been separated into ~ t s component parts, reweigh each bottle contaming the components, and calculate the mass of each component.

Calculate the total mass of the separated components.

Calculate the percentage (by mass) lost during the separatron of the test sample znto its components.

mass of - total mass of

ie Percentage lost = test sample separated components X 100

mass of test sample

(m) If the percentage (by mass) lost during separation as

obtarned in step (l), is more than 28, repeat steps (b) to
(1).

(n)

If the percentage (by mass) lost during separation as obta~ned in step (l), is not more than 2%, calculate the percentage content of residual matter using the formula in Paragraph J5.

(0) If the percentage content of the resrdual matter as calculated in step (n) is more than 3%, repeat steps (b) to (n).

(p)	If the percentage content of the reszdual matter as calculated in step (n) is not more than 3%, calculate the percentage content of each of the other components separated uslng the formula in Paragraph J5.
(q)	If the specres of the fowl is not to be specified on a label or is not specified on a label whlch 1s to be verified, determine the nominal composition of the test sample in accordance w ~ t h the procedures in Paragraph K3.2 of Appendix

K.

(r) If the specres of the fowl is to be specrfred on a label or 1s specified on a label which is to be verified, determine the nominal composit~on of the test sample ln accordance wlth the procedures in Paragraph K3.2 of Appendrx K.

55 PERCENTAGE OMPOSITION OF COMPONENTS. Calculate the analysed

percentage, by mass, of each of the components using the following

formula:

Percentage of = Total mass of that com~onent x 100

particular component Total mass of - Total mass lost

test sample durrng separation

. . .

Appendix C ordains the following method for obtaining a sample of a filling material:

"METHOD FOR OBTAINING A SAMPLE OF A FILLING

HATERIAL

C1 SCOPE. This appendix sets out a method for obtaining a sample

from a gross sample of down and/or feather f~lling material.

C2 PRINCIPLE. A gross sample of filling materral is conditioned and divrded into a specif~ed number of piles or heaps, approxrmately equal in bulk. A portion of the frlling material LE then taken from each pile or heap to make up the requrred amount of fillrng materral.

C3 APPARATUS. The following apparatus is required:

(a)	A condrtioned environment as specified m Paragraph B3(a) of Appendlx B.
(b)	A sampllng table having, if requrred, 20 rectangles of equal area marked out on the table top.

C4 PROCEDURE. The procedure shall be as follows:

(a) After collectrng and condrtioning a gross sample of the

frlling materral, remove rt from the conditioning container

and arrange the entire gross sample on the sampling table.

Ensure that the table is srtuated rn a substantially draught-free area in the conditionrng environment to prevent any of the frlling material from blowing away.
NOl'JI: Appendrx A sets out a recornended samplrng procedure for collecting a gross sample of a f~lling mater~al and Append~x B sets out a method for

condit~onmg a filling materral.

(b) Dlvide the frlling material xnto 20 lots, approximately equal in bulk.

NOTE: The arrangement and drv~sion may be ~mplifred if the sampling table has 20 rectangles of equal area marked out on rt. However, to minimiza losses due to draughte etc, it ~s suggeeted that each of tha 20 lots be

placed into indxv~dual containers.
(c)	To obtain a sample for the approprrate test to be undertaken, collect the requrred mass of the filling materral that is specified in the appropriate appendix by taking small quantrties of the filling material from each of the 20 lots. Each sample shall include a proportional amount, by masa, of fibre and residue found rn the gross sample. "

Appendix A (omitting the description of a procedure for sampling from bulk) prescribes the following procedure for collecting a gross sample:

"A1 SCOPE. This appendix sets out a recommended procedure for

obtarnang a gross sample of down and/or feather filling materials.
A2 PRINCIPLE. A gross sample of the filling material as obtained by collectrng small quantities of the frllrng materaal from a

specifred number of positions wrthin the bulk mater~al

or product.

A 3 APPARATUS.

The following apparatus is required:

(a) A su~table

gross sample collecting meane for extracting lots

of approxamately 7.5 g or less of the frllrng material from
bulk stock or the like.

(b)

A sealable gross sample container capable of holdrng approxrmately 150 g of filling material.

(c)

A eu~table cutting means capable of cutting through the casing of a product, if the gross sample is to be obtained from a product containing down and/or feather fillrng material.

A4.2 Sampling from product. The procedure for obtaining a gross

sample of down and/or feather frlling materaal from a product

shall be as follows:

(a)	Where the mass of the frllrng material in a product is at least 150 g, mark the product so as to divide it into 20 zones of approximately equal quantity of fillrng materaal.
(b)	Where the mass of the falling materral in a product is less than 150 g, obtain the least number of products with the rdentical classaf~cation which would result in a combined mass of at least 150 g of filling material and mark the products so as to divrde them into 20 zones of approximately equal quantity of falling materaal.
(C) Carefully, without damaging any of the fillrng material, cut a segment from each of the 20 zones on the product in such away that the filling material contarned wrthin the whole of the segment weighs approxlmately 7.5 g.

NOTE: Each seqment i s to be approxlmately regular in shape and is to

comprLse the full th~cknees of the product.

( d ) Obtain approxrmately 150 g gross sample of frlling material by collectrng the filling material contaaned within the whole cross-sectaon of each of the segments and placing each amount collected into the gross sample container.

NOTE: The use of mechanrcal means e.g. a vacuum cleaner, to extract the

fLlllng mater~al from each se~ment rs not recommended because of the

possib~lxty of contaminating the f ~ l l ~ n g material..

Appendix B in turn stipulates that the gross sample should be conditioned as follows:

"B4 PROCEDURE. The procedure shall be as follows:

(a) After collecting a gross sample of the filling material, open the container with the frllrng material, in a subatantrally draught-free area and place the entire gross sample into the conditioning container.

NOTES:

1.	Appendix A sets out a recommended sampling procedure for collecting a grose sample of down andlor feather filling material.
2.	The contarner with the frlling material is to be opened in a substant~ally draught-free area to prevent any of the filling material

from blov~ng away when it is transferred to the conditioning container.

(b)	Place the conditioning contarner into the conditioned envrronment.
(c)	Leave the gross sample of frlling materral in the condrtroned environment untrl the fillrng material is condrtroned to constant mass. That is, periodically weigh the conditionrng container wrth the gross sample until there is not more than 0.5 g d~fference between euccessive weighings, over a period of 1 h or more.

Ensure the complete condrtioning and relaxation of the frlling materral is achieved by mixing the filling material thoroughly and periodrcally.

NOTE: TO obtaln conditioning of the frlllng mater~al to constant mass it may

be necessary to leave the fillrng material in the cond~txoning envrronment

for 3 days to 5 daya."

Mr Heffer's calculations in accordance with cl. 55 of Appendix J to the Australian Standard yielded, for the quilt the subject of this information, a percentage component of down and plumules of 18.2%. By use of a computer programme applying to the figures recorded by the analysts some formula, which is not clearly discernible to me as being prescribed by the Australian Standard, Mr Heffer then assessed the "tested" down content of

the same quilt to be 20.4%. As a result of a suggestion made in	the course of cross-examination by Counsel for AFM, Mr Heffer
divided the actual assay of 18.2% for down and plumules by 0.85 to arrive at a "calculated" down content of 21.4%. The justification for that method of calculation is to be found in c1.6.1 of the Australian Standard which stipulates:

"6.1 DOWN. When determrned in accordance with Appendix J, the percentage composrtron by mass of a fillrng material classified as

DOWN shall conform to the following limits:

( a )	Down and plumules ........ ... 85.0 percent min.
( b )	Down f r b r e ........ ........ ... 8.0 percent max.
( c )	Feathers (waterfowl, land- fowl, and/or crushed) l e s s than 60 nun long; f ea the r
f i b r e and f l u f f barbs ....... 5.0 percent max.
( d )	Residual ma t t e r ........ ..... 2.0 percent max."

It is common ground that the principles to be applied by a court on a submission of no case to answer in a case such as the present are those to be found in the following passage from the joint judgment of the High Court in Mav v O'Sullivan (1955) 92 C.L.R. 654 at 658:

"When, a t t h e c l o s e of t h e case f o r t h e prosecutron, a submiasion

LS made t h a t t h e r e rs 'no case t o answer', t h e ques t ion t o be decided is not whether on t h e evidence a s r t s t ands t h e defendant ought t o be convrcted, but whether on t h e evrdence a s it s t ands he could lawful ly be convicted. This r e r e a l l y a ques t ron of law.

Unless t h e r e r e some s p e c i a l s t a tu to ry provrsion on t h e sub jec t , a

r u l i n g t h a t t h e r e a 'case t o answer' has no e f f e c t whatever on t h e onus of proof, which rests on t h e prosecution from beginning t o end. Af te r t h e prosecution has adduced evidence s u f f i c r e n t t o

support proof of t h e rssue, t h e defendant may o r may not c a l l

evidence. Whether he does o r not, t h e questron t o be decided rn

t h e end by t h e t r i b u n a l is whether, on t h e whole of t h e evidence

before r t , ~t rs s a t i s f i e d beyond reasonable doubt t h a t t h e

defendant 1s g u r l t y . This is a question of f a c t . I n decidrng t h i s

questron it may rn some cases be leg i t imate , a s i s pointed ou t i n

Wrlson v. But tery (1926) S.A.S.R. 150 f o r r t t o t a k e i n t o account

t h e f a c t t h a t consrderatron making t h e inference of t h e defendant has not given evidence a s a

q u r l t from t h e evidence f o r

t h e prosecut ion l&	unsafe than it- might	otherwise poss ib ly
appear: c f . Morsan v. Babcock & Wilcox, per I saacs J.	(1929) 43

C.L.R. 163, a t p. 178. But t o say t h r s i s a very d ~ f f e r e n t t h i n g

from	saying t h a t t h e onus of	proof	s h i f t s .	A	mag i s t r a t e who	has
decided	t h a t t h e r e	i s a	'case	t o answer'	may	q u i t e cons i s t en t ly ,

r f no t h e evrdence f o r t h e prosecution. evidence is c a l l e d f o r t h e defendant, r e f u s e t o convic t on

The prosecutron may have made 'a

prima	f a c r e c a s e ' ,	b u t it does not follow t h a t i n t h e absence of	a
' s a t i s f a c t o r y	answer'	t h e defendant	should be convicted."

However, counsel for AFM also invoked an ancillary discretion to dismiss each information, even if, on application of the principle in Mav v OISullivan to the evidence as it stands, the defendant could lawfully be convicted. The nature of

that discretion was identified as follows by McGarvie J. in
Wilson v Kuhl [l9791 V.R. 315 at 319:

"In a case where there is evidence which, if accepted, would provide evidence of each element of the charge, a magistrate may et111 in some cases be entitled to exercise a drscretion to d ~ s m ~ s s the ~nfonnation wrthout calling on the defendant. Where technically there is evidence on which the defendant could lawfully be conv~cted but the magistrate concludes that there rs a mere sc~ntrlla of evrdence or that the evidence is so lacking in weiaht or reliabxlrtv that no reasonable tribunal could safelv conhct on it, he may dismiss the rnformatron: Bennev v. ~owlinq

[l9591 V.R. 237 at p. 242; Moonev v. James, [l9491 V.L.R. 22 at p.
32; Practice Note, [l9621 1 All E.R. 448.

The positron is smilar upon a crim~nal trial before judge and pry. Where technrcally there is evrdence on which the accused could lawfully be conv~cted but the judge concludes that it would be unsafe or unsatisfactory to convlct on the evidence, he may withdraw the case from the pry. R. v. Mansfreld, [l9771 1 W.L.R.

1102; [l9781 1 All E.R. 134.

The exercrse of a discretion to drsmrss an information notwrthstanding that technrcally there is a case to answer is not strlctly a ruling that there is no case to answer. However, it 1s often referred to as such, e.g.: SharD v. Hotel Internatronal

Ltd., [l9691 V.R. 103 at p. 108; R.v. Mansfreld, [l9771 1 W.L.R.

1102 at D. 1105: 119781 1 All E.R. 134 at D. 139. The effect of the exercise of.th'e drkretion is, of course, that the defendant is not called on to answer the prosecution's case."

Both in the course of cross-examining witnesses and in
submissions that there is no case to answer, Counsel for AFM have

made some telling criticisms, common to all or most of the

informations, of the procedures followed and sampling techniques	applied by Mr Heffer's laboratory in testing the relevant quilts
and one pillow. Much has been made of omissions of steps laid down in the Australian Standard and other departures from the procedures there stipulated.
The evidence related to the quilt which is the subject of Information VG 279 does not indicate whether, or how, a gross sample was assembled before the test sample was extracted. It follows that there is no evidence that the gross sample was conditioned to a point where there was not more than 0.5 g difference between successive weighings over a period of one hour or more. Indeed, the evidence does not indicate that there was any conditioning at all of the gross sample if one was taken.
Similarly, the use of a thumb and forefinger to brush away matter adhering to a single component extracted from the test sample and held by tweezers is open to criticism in the light of the requirements of Appendix J to the Australian Standard. As well, the evidence tends to show that the mass of exactly 5.00 g ascribed to the test sample resulted from a rounding up or down of some more precise figure and was not accurate to 0.001 g as required by cl. J4(c) of the Australian Standard.
These criticisms have considerable force. However, having regard to the marked discrepancy between the results of the analysis and the represented content of the quilt, the combined effect of the criticisms would not have persuaded me either to
uphold the submission of no case to answer in respect of this Information or to dismiss the Information at this stage in
exercise of the discretion outlined in Wilson v Kuhl (suura). Nevertheless, a more fundamental defence against conviction on this information arises from the fact that a species of fowl, namely duck, was specified on the labelling containing the relevant representation.
Clause K3.2 of Appendix K to the Australian Standard provides as follows:

"Where the species of fowl is to be specifled on a label or is specrfied on a label which 1s to be verified, the procedure shall be as specified in Paragraph K3.2.1 and/or K3.2.2, as appropriate and the analysrs interpreted as specifred in Paragraph K3.3.

MOTE: The compliance requirement i a spee~fred in Clauee 7 .2 . "

Clause 7.2 of the Australian Standard is in these terms:

"7.2 Composition with species identification. Where the species of fowl as to be rdentlfied or is rdent~fzed on a label, the composlt~on of the filling materral for inclusion on the label or for verlflcation of the label shall be in accordance with Clause 7.2.1 or 7.2.2.

7.2.1 Determinat~on for labelling. Where the composition of the fllling material is to be determined for labelling, and the species of the fowl is to be identified on the label, the informat~on on the label shall comply with the species and composltlon determined in accordance with Paragraph K3.2 of Appendlx K.

7.2.2 Determination for verif~cation of a label. Where the composltlon of the filling material rs to be determined for verrfication of a label and the speclee of fowl is identified on the label, the rnformation on the label shall be considered as be~ng correct when the filllng is analysed in accordance with Paragraph K3.2 of Appendrx K and-

(a)	each species specrfied on the label 1s the same as that identified; and
(b)	the drfference between the percentage content of each apecres spec~fled on the label and that determrned is not greater than the appropriate tolerance specified rn Table 2."

Table 2 in turn stipulates:

"TOLERANCES W R VERIFICATION OF A LABEL WITB SPECIES IDENTIFICATION

DOWN	+ 9.5
WATERFOWL FEATHERS	f10.0

NOTE: The tolerances specifrad in Table 2 are ~ntended to allow for smpling

drfferences etc. Acoord~ngly these tolerances are only to be applied when determ~nlng the composLtron of a f~llrng maeer~al for the verrfication of a label. These tolerances are not to be appl~ed when determm~ng the composition of a

fill~ng mater~al for labelling."

It has been conceded by Hr Heffer that although a label which claimed respective percentages of "duck down" and "duck feather" was one which specified a species of fowl, his laboratory did not, in making the analysis of this or any other quilt bearing a similar label, follow the procedure specified in paragraph 3.2.1 or 3.2.2 of the Australian Standard. Nor was the analysis interpreted as specified in paragraph K3.3. Had the analysis been interpreted in that way the label would have been verified if it claimed a down content within 9.5% above or below that revealed by the analysis. Mr Heffer explained the disregard of cll. K3.2 and 7.2 by saying that he regarded the task of his laboratory as being to "determine whether the down percentage regardless of species conforms with the nominated amount on the product". However, there is no acceptable evidence that analysis in general accordance with cl. K3.1.1 is an appropriate method of determining the absolute percentage of duck down in a given quilt which is substantially composed entirely of duck down and duck feather.

On the interpretation of the Australian Standard which I should have been verified in accordance with cl 7.2 as one which	favour, I consider that the sewn-in label on the subject quilt
specified the composition of the filling with species identification. That would have resulted in verification had the down content revealed by the analysis been within 9.5% above or below the stated down content of 30%. However that method of analysis was not followed. Nor is there any acceptable evidence as to the result likely to have been achieved had it been followed. No evidence has been adduced from Mr Heffer or anybody else that testing of a quilt said to contain duck down solely according to the methods prescribed in cl. K3.1 provides a reliable indication of the absolute percentage of duck down in the total composition of the filling.
For this reason I uphold the submission of no case to answer on Information VG 279.
VG 280
The summons in respect of this Information alleges a false representation that "a single bed continental quilt of the brand 'Heritage' contained a filling composed of 50% small duck feather, 50% duck down" whereas the filling in fact contained only approximately 35.2% duck down. The quilt in question was supplied by AFM to Myers Stores Limited. M r French, the Quality Assurance Manager for that company, then, on about 12 May 1987, sent it to Mr Heffer's laboratory for testing, having first removed the sewn-in label which read:

"HERITAGE

SINGLE BED

140 cm X 210 cm

CONTINENTAL

QUILT

50% small duck feather
50% duck down

100% cotton cover ALL NEW MATERIALS

MIN FILL WT:800 gms

CARE INSTRUCTIONS

Arr regularly DRY CLEAN ONLY

Air before re-use MADE IN AUSTRALIA"

At the laboratory the quilt was assigned the job number 879317/1 and on 18 May 1987 its description and dimensions were recorded by Mrs Fe Tepper. As with the quilt to which Information VG 279 is related, it seems that the filling of this quilt was completely removed and weighed to permit the following to be noted:

"TOTAL MASS:	1700 gms
MASS OF COVER:	850 gms
FILL MASS:	850 gms"

In some way a test sample, recorded as having an initial mass of exactly 5.000 grams, was collected either from a gross sample or from the aggregate of the filling after it had been totally extracted. That test sample was analysed by Mrs Fe Tepper, Mrs Janene Tepper and Mrs Cheryl McAulif fe in, I infer, substantially the same way, which is described above, as the quilt the subject of Information VG 279. The results of that analysis, as recorded by Mrs Janene Tepper, were:

"Initlal mass 5.000 tal Mass (al

Down + plumules 1.530

Down flbre 0.084

Waterfowl feather	<60 mm	2.930
260 mm	0.136
Landfowl feather	<60 mm	0.005
>60 mm	nil
Crushed feather	<60 mm >60 mm
Feather Flbre

Claseification loss : 1.3%
Time : 10 hra"

The mass of down and plumules and down fibre expressed as a simple percentage of the total mass of 4.934 grams is 32.71%. After subjecting the data produced by the analysts to the calculations which his computer was programmed to perform, Mr Heffer calculated the percentage component of down and plumules to be 31.00% and that of down fibre to be 1.7%. From those figures he derived a "tested" down content of 35.2%. Division of 31.00% by .85 yields a "calculated" down content of 36.4%.

Although there is a marked discrepancy between each of those percentage expressions of down content and the 50% claimed on the sewn-in label, the species identification constituted by the words on that label "small duck feather" and "duck down" required testing, on the proper construction of the Australian Standard, in accordance with c11.7.2 and K3.2 of that Standard.

Accordingly, for the reasons indicated in respect of VG 279,

the submission of no case to answer on this information must also

succeed.
VG	2 8 1

The representation which is the subject of this information is said to have been made to Mr David Heffer on or about 2 Nay 1987 when he attended at the premises of the Target store, Malop Street, Geelong. Ffr Heffer there purchased a single bed continental quilt of the "Target" brand which he had selected from a rack along a wall in that store. The opaque plastic bag in which the quilt was packaged bore the printed statement that the filling was composed of 20% down and 80% duck feather. The quilt had been supplied to the retailer by AFM. It is alleged the representation was false in that the quilt contained only 13.6% down.

Mr Heffer purchased the quilt for the purposes of the Quality Assurance Scheme operated by the Quilted Products Manufacturers Association of Australia. After selecting the quilt and paying for it, Mr Heffer took it back to his laboratory. There he completed a requisition form and wrote on the plastic bag containing the quilt the job number assigned to it, 879298 . The quilt was then placed in an area set aside for products awaiting testing.

On 6 and 7 May 1987 an analysis on this quilt was carried out by Mrs Fe Tepper and Mrs Janene Tepper. The description of the quilt as recorded by Mrs Janene Tepper was:

"6 May 1987

879298 QP- Target

General descr~ption	Continental quilt, TARGET, (Best Quality), single bed size, 20% duck down, 80% duck feather
Brand:	TARGET
Manufacturer:	not stated
Size:	s~ngle
Dimensions:	Actual - 135 X 210 cm Measured - 137.5, 137 x 209, 210
Nominal Composition:	20% duck down 80% duck feather
Quilt construction:	walled, channelled
Number of channels:	7

Price:	Reg: $62.00	SALE PRICE $55.00
P r ~ c e	tag:	present - stick on label

Purchased from:	Target, Malop St, Geelong
Special claims:	Sanitized, 3-5 blanket equivalent guarantee
Bag:	printed opaque plastic carry handle
Batch no:	not stated
Mass on label:	900 (g)
Total mass:	1620 (g)
Mass of cover:	800 (g)  Fill mass: 820 (g)"

Those entries suggest that the whole of the filling was extracted before a test sample was obtained. Whether the test sample was collected from a gross sample, or from the whole body of the filling after it had been extracted, is not clear. At all events, a test sample was collected, the initial mass of which was recorded as 4.999 grams.

That test sample was analysed by Mrs Fe Tepper and Mrs Janene Tepper and a set of results was recorded. Those results were later struck through and the following results were substituted for them:

"Initial mass 4.999 fqL Mass lpl

Down + plumules 0.570

Down fibre 0.047

Waterfowl feather	c60 mm	3.451
>60 mm	0.530
Landfowl feather	<60 mm	0.043
>60 mm	nil
Crushed feather	<60 mm	0.125
>60 mm	nil
Feather Fibre	0.061
Residue	0.060

TOTAL 4.887

Classificat~on	loss	2.2%
TLme : 8.25 hrs"

The reason for that revision is unclear. M r Heffer suggested that when he examined the separated components he was not satisfied

that the analysis had been conducted with a minimum of cross- contamination. His evidence was that he therefore required a check to be carried out and any components which were misallocated to be placed in their correct bins. Mrs Janene Tepper surmised that the separated components had been reweighed because originally they had been placed in a slightly smaller weighing container than the correctly tared one which should have been used. However, she conceded that she had no independent

recollection of the events of 7 May 1987 and that Mr Heffer's

explanation may well be correct. Mrs Fe Tepper gave no evidence related to the revision of these test results. The recorded figures show an increase in the mass of each of the components of between .006 and .013 which tends to indicate that what occurred was a re-weighing rather than a re-allocation of material between components which would have resulted in the mass of some components being larger, and that of others being smaller. However, the variation between the increase in mass of the various components suggests some explanation other than the mere

use of a differently tared weighing container. Whatever actually	occurred, the recorded classification loss was changed from 0.3%
(which was clearly erroneous) to 2.2%. It is also clear that the test sample was not re-aggregated before the revision was carried out.
From the revised figures which I have just discussed, Mr Heffer calculated the percentages of the various components to be :

down and ~ lurnules	11.7%
down f ~ b r ; waterfowl feather <60 nun	1 .0%

70.6%

waterfowl feather >60 nun	10.9%
landfowl feather <60 nun	0.9%

crushed feather	<60 nun	2.6%
feather	f i b r e	1 .3%

res idual matter 1.2%

By application of the formula with which his computer was programmed he arrived at a "tested" down content of 13.6%. Division of the "raw" percentage of 11.7% for down and plumules by .85 yields a "calculated" down content of 13.7%.

However, I consider that the effective representation by AFM as to the down content of this quilt was that it contained 20% duck down as well as 80% duck feather. That was the nominal composition recorded by Mrs Janene Tepper, presumably from the sewn-in label, which record Mr Heffer says he checked in the controlled atmosphere room of his laboratory. Accordingly, a test of this quilt in accordance with the Australian Standard should have treated it as bearing a label on which the species of fowl was specified. That in turn required testing in accordance with

Standard. Since the quilt obviously was not tested in that way,	c1.7.2.1 and Paragraph K3.2 of Appendix K to the Australian
the submission of no case to answer on this information must be upheld for the reasons given in respect of Information VG 279.
Even if the conclusion which I have just reached were not open, I would have dismissed this Information at this stage in exercise of the discretion discussed in Wilson v Kuhl (supra). That result would have been justified by the combined effect of absence of evidence of the taking or conditioning of a gross sample, the apparent use of thumb and forefinger to brush adherent matter from each component, the uncertainty created by the revision of the recorded mass of each component, and the high classification loss of 2.2%. Indeed, the latter element alone could be pointed to as invalidating the test of this quilt because of the instruction in paragraphs (1) and (m) of cl. J4 of Appendix J to the Australian Standard which require the tester to:

"(1) Calculate the percentage (by mass) lost during the separation

of the test sample lnto its components.

mass of - total mass of

ie Percentage lost = test sam~le seDarated components X l00

mass of test sample

(m)	If the percentage (by mass) lost during separation as
obta~ned Ln step (l), is more than 2%, repeat steps (b) to (l)."

Had that instruction been followed in respect of this quilt, the whole process from the collection of a test sample from a gross sample of the filling materials would have been repeated. Since that did not happen and since the remnants of the filling are not	now available for further testing it would, I consider, be unsafe	to convict AFM on this information.
VG 282
The representation alleged in the summons in respect of this information is said to have been made on 8 May 1987 at the premises of Myer Melbourne. It was to the effect that a single bed continental quilt of the brand "Downia" contained a filling composed of 30% pure down, feather content 70%. The falsity of that representation is said to consist in the fact that the filling of the quilt was composed, not of 30% pure down, but of approximately 16.4% pure down.
The evidence presently before the Court discloses that Mr Heffer, on 8 May 1987, attended at the premises of Myer Melbourne and selected two quilts which were on display in the bedding section of that department store. He purchased both quilts and took them to his laboratory where each was assigned a job number. The job numbers so assigned were 879312 and 879313. The quilt to which 879312 was assigned was taken to the controlled atmosphere room. In due course, one of the laboratory analysts, Mrs Janene Tepper prepared a record for that job number noting its general description as "continental quilt, Downia, single bed, 30% down,
70% feather," and recorded its nominal composition as "30% pure
down, 70% feather". That information, Mrs Tepper said, was derived from the printing on the outside of the plastic bag in which the quilt had been packaged and was checked against what
was noted on the label sewn into the outside of the fabric of the quilt cover itself. Mr Tepper also recorded a batch number, 19-
387 which she said appeared either on the plastic outer bag or
the sewn-in label.
It appears from the evidence that the quilt was weighed intact and recorded a mass of 1780 grams. All of the filling was then removed, probably by one of the laboratory analysts, Mrs Fe Tepper, two or three handfuls from each channel being placed in a gross sample bin, and the remainder, including the last remnants, which were removed by means of a vacuum cleaner, being put in a large plastic garbage bag. A test sample, the mass of which was recorded as exactly 5.000 grams, was then taken in one "grab" from the gross sample. The test sample was then analysed, presumably in the usual way described above in relation to Information VG 279. The components of that test sample were separated by three of the laboratory analysts, Mrs Fe Tepper, Mrs Janene Tepper and Mrs Cheryl McAuliffe, who between them spent six hours and forty minutes of analyst time on taking the samples from that quilt and analysing them.
The results of the analysis, as recorded by Mrs Janene Tepper, were as follows:

"Initial mass 5.000 taL Mass 1 0 ~

Down + plumulee	0.715
Down fibre	0.041

Waterfowl feather	<60 mm	3.427
>60 mm	0.556

Landfowl feather 4 0 mm 0.011

>60 mm 0.019

Crushed feather	<60 m	0.073
>60 m	nil
Feather Fibre	0.050
Realdue	0.071

TOTAL 4.963

Classif~catron loss	0%
Tune : 6.66 hra"

As with the earlier informations, Counsel for AFM have pointed to various omissions of steps laid down, or departures from the procedures specified in, the Australian Standard. Those omissions or departures included, in respect of the quilt the subject of information No VG 282, a failure to collect a part of the gross sample from at least 20 positions on the quilt, a failure to condition the gross sample to a point where there was not more than 0.5g difference between successive weighings over a period of one hour or more and the use of a thumb and forefinger to brush away adherent matter from the single component. Another departure by Mr Heffer's laboratory from the procedures laid down by the Australian Standard, which was common to each test carried out, concerned the method of obtaining a test sample from the gross sample.

Expressed as a simple percentage of the total mass of the components of the test sample, the mass of down and plumules and down fibre revealed by the test of the sample taken from quilt no. 879312 amounted to 15.233%. (In Appendix K to the Australian Standard, down fibre is treated as a contaminant.) As I understand the evidence, when the test sample results in respect of that quilt were subjected to the calculations said by Mr Heffer to be required by the Tables to Appendix K of the

Australian Standard "for determining the nominal composition of	filling material" a result of 16.4% "tested down content" was
yielded.
In the light of the marked discrepancy between the results of analysis of the test sample and the represented composition of 30% down, I am led to conclude that there is evidence on which
AFM could lawfully be convicted of falsely representing that the
filling of the subject was composed of 30% pure down. It is
undesirable, at this stage, for me to indicate the extent to
which I consider that the criticisms of the methods and
procedures adopted by M r Heffer's laboratory are justified. It
suffices to say that I have not been persuaded that any
shortcomings in sampling or analysis are such that no reasonable
court could safely convict on the basis of results derived

-.

therefrom. Of course, it does not follow from the conclusion just reached, that if AFM were to elect to call no evidence, I would be satisfied beyond reasonable doubt that it is guilty.

Accordingly, the submission that there is no case to answer on Information VG 282 is rejected.

VG 283

The summons in respect of this information alleges a representation on or about 12 May 1987, also at the premises of Myer Melbourne, that a single bed continental quilt of the brand "Downia" contained a filling composed of 30% pure down, feather content 70%. That representation is said to have been false

because the filling was composed of only approximately 16.7% pure

down.

On the present state of the evidence, it is open to find that, on 12 May 1987, Mr Korczynski, who was then an officer of the Trade Practices Commission, selected and purchased a "Downia" brand single bed quilt from the bedding section of Myer Melbourne. That quilt was in a plastic carry bag which bore on the front a larger and smaller representation of two ducks supporting a shield together with the following printed statements:

"DOWNIA
CONTINENTAL QUILT

For generatlons, feather and down fllled quilts have been a European tradltlon. Today, with the latest technology, Downia continues the tradit~on in a Qullt modif~ed to cater for Austral~a's unique temperature variations and conditions. Containing only Pure Down and Feathers. Downia updates a great European tradition.

CONTAINS 30% PURE DOWN

FEATHER CONTENT 70%

BED S I Z E S- DOWIZ- W?3m KlEG

WILT SIZB 140 I 210 an 180 X 210 cm 210 X 210 cm 245 X 210 cm

COIOUR CUDX [ B m I

WALLED Al3D (9aRnaLLED.

On 19 May 1987, M r Korczynski delivered that and another quilt to the laboratory of David J. Heffer and Associates Pty Ltd for testing. The relevant quilt had sewn into the outer side of the fabric cover a label bearing the numbers "19-387" and the legend "30% duck down, 70% duck feather". It was assigned the test number 879333/1. Samples of filling to make up a gross

the cover of the quilt. Those slits were then sealed with sample were taken from slits made at twenty different places on	sticking tape.
A test sample, the mass of which was recorded as exactly 5.000 grams, was then taken from the gross sample. The components of that test sample were then separated and weighed in the same way as the test sample discussed in relation to Information VG
282. The same three analysts worked on this quilt which occupied
them for a total of 10 hours and 25 minutes. The results of the analysis as recorded, again by Mrs Janene Tepper, were:

"Inrtial mass 5.000 fa

Down + plumulee	0.707
Down f ~ b r e Waterfowl feather	0.094
3.216 0.452
Landfowl feather	0.126 0.083
Crushed feather	0.083
nil
Feather Fibre	0.072

Residue	(man made fibre	0.083
(	0.054

TOTAL 4.970

Classification loss	0.6%
Time : 10.5 hrs"

The mass of down and plumules and down fibre expressed as a simple percentage of the total mass of 4.970 grams is 16.12%. On

Mr Heffer's application to the figures set out above of the

Tables to Appendix K of the Australian Standard a "tested down content" of 16.7% was arrived at.

Although, as distinct from the sampling technique adopted for the quilt the subject of Information VG 282, samples were taken from twenty different positions on this quilt, that technique was also criticized by Counsel for AFM because of a conscious determination not to take any sample from a point closer than about 20 cm from either end of the quilt. Moreover, it did not conform with cl. A4.2(c) of Appendix A to the Australian Standard which requires the analyst to:

"(c) Carefully, without damagrng any of the filling material, cut a segment from each of the 20 zones on the product in such a way that the filling material contained within the whole of the segment welghs approximately 7.5 g.

NOTE: Bach segment 1 . to be approximately regular in ahaps and l a to comprise

the full th~ckness of the product."

As well, sampling and analysis of the subject quilt were open to attack on the grounds of inadequate conditioning and the use of a thumb and forefinger in the process of separating components from adherent matter. Doubts were also raised in the course of cross-examination as to whether the mass of the test sample was exactly 5.000 grams or whether the actual mass had been rounded up or down for ease in calculation of the classification loss.

All of these are cogent criticisms, but for the reasons indicated in respect of Information VG 282, having regard to the marked discrepancy between the test result and the represented content, they would not have been sufficient for me to uphold the submission of no case to answer, or to dismiss the information at

Kuhl (SuDra). However I consider the effective representation in	this stage in exercise of the discretion outlined in Wilson v
respect of this quilt was that its filling comprised 30% duck down and 70% duck feather. Accordingly, I must uphold the submission of no case to answer for the independent reason explained above in relation to Information VG 280.
VG 284
By the relevant summons it is alleged that on 01: about 14 May 1987, AFM, at the premises of Target Australia Pty Ltd, Geelong, falsely represented that a queen size continental quilt contained a filling composed of 20% duck down and 80% duck feather. The falsity of the representation was said to arise from the fact that the percentage of duck down in the composition of the filling was approximately 13.4%.
The evidence discloses that in early May 1987 a quilt was sent by Target Australia Pty Ltd to Mr Heffer's laboratory. It
was there assigned the number 879323. The quilt itself was not tendered in evidence, having been returned to Target Australia Pty Ltd. However, Mr Heffer swore that he checked "the general description of the quilt by referring to what my analysts had recorded, the bag containing the quilt and the sewn-in label". The descriptive details as recorded by one of the analysts, Mrs Janene Tepper, were:

"13 May 1987

879323 Target Aust	Target (Beat Quality)
General description	Continental quilt, TARGET,

20% duck down, 80% small duck feather

(Best Quality), queen bed,

Brand:	TARGET Best Qualrty
Manufacturer:	not stated
s~ze:	queen bed
Dimensions:	Actual - 210 X 210 cm Measured - 208, 207.6 X 209, 207.5
Nomrnal Composition:	20% duck down 80% small duck feather
Qu~lt construction: Number of channels:	walled, channelled
11
~rrce:	$99.00
Price tag:	present - stick on type
Purchased from:	Target
Special clarms:	Sanitized, fully guaranteed
Bag:	printed opaque plastic carry handle
Batch no:	23-487
Mass on label:	1300 (g)
Total mass:	2500 ( g )
Mass of cover:	1260 (g)
Fill mass:	1240 (g)"

Mrs Janene Tepper took a gross sample from the subject quilt between 12.30 and 1.00 p.m. on 13 May 1987. On the next day Mrs Fe Tepper and Mrs McAuliffe carried out the separation and analysis of components of a test sample, spending, between them 6 hours and 5 minutes on that work. The mass of the test sample was again recorded as exactly 5.000 grams and the results of the weighing of its components, as recorded by Mrs Cheryl McAulif fe, were :

"Initlal mass 5.000 i a l Mass (a1

Down + plumules	0.584
Down frbre	0.030

Waterfowl feather 4 0 mm 3.614

>60 mm 0.477

Landfowl feather	<60 mm	0.002
260 mm	0.014

Crushed feather 4 0 mm 0.079

>60 m nrl

Feather Fibre	0.062
Residue	0.066
-

TOTAL 4.928

Classification loss	1.4%
Tune : 6.58 hra'

The mass of down and plumules and down fibre expressed as a
simple percentage of the total mass of 4.928 grams is 16.12%. On
Heffer's application to the figures set out above of the
Tables to Appendix K of the Australian Standard a "tested down
content" of 13.4% and a "calculated content" of 14% was arrived
Because the representation on the carry-bag and the sewn-in
label of this quilt was expressly to the effect that it contained

20% && down and 80% small duck feather, it should have been
tested, on the construction of the Australian Standard, which I
favour, in accordance with the procedure specified in paragraphs

3.2.1 and 3.2.2. As well, the results should have been

interpreted in the way indicated in paragraph K3.3 of Appendix K which would have required the label to be verified if it claimed a down content within 9.5% above or below that revealed by the analysis. None of those requirements was observed, and there is no evidence that analysis solely in accordance with cl. K3.1.1 is an appropriate test of the truth of the claimed percentage of duck down in a quilt said to consist wholly or substantially of duck down and small duck feather.

Even if there were such evidence, the criticisms going to
conditioning, the collection points from which the gross sample

was amassed, and the weighing and analysis of the gross sample

which have been discussed in relation to Information VG 283 can	be made with equal force in the context of the present
Information VG 284. If, contrary to my interpretation of the Australian Standard, the tolerances stipulated in Table 1 have any application to verification of a label with species identification, a label specifying a down content of less than
30% is to be regarded as verified if the down content determined
after a strict application of the procedures laid down in the Australian Standard is within 2.5% above or below the stated down content. In the present case, I consider that the determined and calculated down content of 13.7% and 14% respectively are close enough to the permitted lower limit of 17.5%, in light of conceded departures from the procedures laid down by the Standard and the specific criticisms to which I have referred, to raise a reasonable doubt whether the actual down content of the subject quilt was not 20%.
For these reasons I uphold the submission that the defendant has no case to answer on Information VG 284.
VG 285
The summons in respect of this information alleges that on or about 26 June 1987 at the premises of Grace Bros. Pty. Ltd., Chatswood AFM falsely represented that a "King Size" continental quilt of the brand "Downia" was of a particular composition, namely 50% pure down, 50% feathers. The representation is said to have been false because the filling of the quilt was composed of only approximately 34.5% down.
There is evidence that, on 26 June 1987, Mr Korczynski, the officer of the Trade Practices Commission to whom I have already referred, attended at the Chatswood premises of Grace Bros. Pty. Ltd. in the company of Dr Sherman, the quality control manager for Grace Bros., and there selected three "Downia" brand continental quilts.

The quilts were severally marked "GB1" , "GB2" and "GB3",

initialled by both Mr Korczynski and Dr Sherman, and dated. They were taken into the custody of Dr Shennan who put them into the boot of his car.

Subsequently on 10 July 1987, four quilts were received at Mr Hefferls laboratory. On arrival they bore the identifying marks "GBl", "GBZ", "GB3" and " X " . The one marked "GB2" was assigned the laboratory job number "879462" and the following details were recorded in respect of it by Mrs McAuliffe:

"14 July 1987
879462 Grace Bros. Pty. Ltd.

General description: Continental quilt, DOWNIA, 50% down, 50% waterfowl feathers, king size, Sample C, Identified as GB.2 dated 26/6.

Brand:	DOWNIA
Manufacturer:	Siam Feather and Forest Products Ltd
Srze:	King
Dimensions:	nominal - 102 X 86 measured - 250, 250 cm X 210, 210 cm
Qurlt construction:	walled, channelled
Number of channels:	15
Pr~ce:	$99.00
Prrce tag:	present - stick on type

Purchased from: Grace Bros.

Specialclaims: Sanitized
Bag:	printed opaque plastic carry handle
Batch no:	not stated
Mass on label:	not stated
Total mass:	2450 g
Mass of cover:	1750 g
F111 mass:	700 g"

It seems that the entire contents of this quilt were extracted for the purpose of establishing the total mass of its filling. However it is unclear whether a gross sample was first taken before the process of total extraction was completed. At all events, a test sample was apparently amassed in some way and the results of analysis of that sample carried out by Mrs McAuliffe and Mrs Fe Tepper, as recorded by Mrs McAuliffe, were:

"Inltlal mass 5.000 isL

Down + plumulee	1.517
Down fibre	0.061

Waterfowl feather	<60 mm	2.874
260 m	0.244
Landfowl feather	c60 m	0.026
>60 mm	nil
Crushed feather	<60 m	0.046
>60 mm	0.009
Feather Flbre Residue

TOTAL 4.919

Classrf~cat~on	loss	1.6%
Time : 8.75 hrs"

Expressed as a simple percentage of the total mass of 4.919 grams, the combined mass of down plumules and down fibre amounts to 32.08%. Mr Heffer determined from the same figures, by applying to them his understanding of Appendix K of the Australian Standard, a maximum down content of 34.5%. It is

common ground that the figure of 30.8% down and plumules

calculated by Mr Heffer, if divided by .85, yields a "calculated

down content" of 36.2%.

Criticisms similar to those discussed in respect of Information VG 282 can validly be made of the conditioning, sampling and analysis undertaken in respect of this quilt. However, for the reasons indicated above in the discussion of that information, I am unable to uphold the submission of no case to answer on Information VG 285.

VG 286

This information is related to another of the quilts selected by Mr Korczynski from those on display at the Chatswood Store of Grace Pros. Pty. Ltd. It is alleged that AFM falsely represented that a single bed continental quilt of the brand "Downia" contained a filling composed of "50% pure down, feather content 5 0 % " . The falsity of that representation is alleged to have consisted in the fact that the filling of the quilt was composed, not of 50% pure down, but of approximately 36.2% down. On arrival at Mr Heffer's laboratory on or about 10 July 1987, the quilt marked GB1 was assigned the job number 879462A.

The details referable to that job number as recorded by Mrs

McAuliffe were:

"13 July 1987
879462 Grace Bros Pty Ltd

General description continental quilt, DOWNIA, 50% down, 50% feather, single bed. Sample is identified as 'G.B.l' (dated 26/6/87).

Brand:	DOWNIA
Manufacturer:	Australian Feather Mllls Pty Ltd
sue:	single
Dimensions:	Nominal - 140 X 210 cm Measured - 135, 136 X 203.5, 208 cm
Qullt construction:	walled, channelled
Number of channels:	7
Price:	$120.00
Prlce tag:	present,  stick on type

Purchased from: Grace Bros.

Special claims:	Sanitized
Bag :	printed  opaque plastic carry handle
Batch no:	19 April 1987
Maes on label:	800 g
Total mass:	1640 g
Naes of cover:	840 g
Fill mass:	800 g"

That record did not accurately transcribe the sewn-in label on the quilt cover which bears the legend:

140 cm x 210 cm
CONTINENTAL QUILT
50% DUCK DOWN
50% DUCK FEATHER
MIN. FILL WT 800 GRAMS
100% COTTON COVER"

However, the plastic carry-bag in which the quilt was delivered to Mr Heffer's laboratory, as well as stating that it contained a single bed continental quilt measuring 140 X 210 cm, represented in two places that the quilt "contains 50% pure down feather content 50%" without identifying the species of fowl from which the down or feathers had been obtained.

As with the quilt the subject of Information VG 285, the entire contents of this quilt were extracted in the laboratory. Part of those contents was appropriated in some way to constitute a gross sample from which a test sample was apparently derived. The results of the analysis of that test sample carried out over 8 hours and 41 minutes on 13 and 14 July 1987 by Mrs Fe Tepper, Mrs McAuliffe and Mrs Janene Tepper, as recorded by Mrs McAuliffe, were:

"Initial mass 5.000 (a

Down + plumulea

Down fibre

Waterfowl feather	c60 mm 260 mm
Landfowl feather	<60 mm >60 mm
Crushed feather	c60 mm >60 mm
Feather Fibre Residue

TOTAL 4.994

Classifacat~on loss 0.1%

Tame : 8 .41 hrs"

The combined mass of down plumules and down fibre as a simple percentage of 4.994 grams amounts to 32.26%. When Mr Heffer applied his understanding of Appendix K of the Australian Standard to the same figures, he derived a maximum down content of 36.2% and a water fowl feather content of 63.8%. It is common ground that the basic percentage of 31.9% attributed by Mr Heffer to down and plumules when divided by 0.85 yields a "calculated" down content of 37.5%.

On the interpretation of the Australian Standard which I favour for the reasons set out in respect of the quilt which is the subject of Information VG 279, I consider that the sewn-in label on the present quilt contains the effective representation as to its composition and should have been verified in accordance with cl. 7.2 as one which specified the composition of the filling with species identification. That would have resulted in verification had the down content revealed by the analysis been within 9.5% above or below the stated down content of 50%. However that method of analysis was not followed. Nor is there any acceptable evidence as to the result likely to have been achieved had it been followed. The "raw", "determined" and "calculated" down content revealed by the evidence are not so far below the minimum down content of 40.5% permissible for a product claimed to contain 50% duck down for it to be possible to be satisfied beyond reasonable doubt on the evidence, as it presently stands, that the down content of the subject quilt, measured in absolute terms, was less than 50%.

Accordingly, I uphold the submission of no case to answer in respect of Information VG 286.

VG 287

This information is related to a quilt which was purchased by Mr Heffer's sister-in-law, Mrs Bronwyn Caddy. The particulars ,annexed to the relevant summons disclose that a false representation was allegedly made to Mrs Caddy on or about 1

December 1987 that a single bed continental quilt of the brand	"Arctic Down" contained a filling composed of 50% pure down and
50% feathers whereas the filling in fact contained only approximately 42.4% down.
A quilt was delivered by Mrs Caddy to Mr Heffer's laboratory some time after l December 1987 and was there assigned the job number 879865. The details of the quilt, as recorded by Mrs Janene Tepper, were:

"19 February 1988

879865 pp- ARTICDOWN

General description: continental quilt, ARTICDOWN, 50% down,

50% feather, s~ngle	bed.
Brand:	ARTICDOWN
Manufacturer:	Australian Feather Mills Pty Ltd
Size:	single bed
Dimensions:	Nomlnal - 135 X 210 cm Measured - 137, 137.5 x 207, 208
purlt construction:	walled, channelled
Number of channels:	7
Price:	$85.00
Price tag:	present, stick on type

Purchased from: Target

Specral claims:	Sanrtized
Bag:	pr~nted opaque plastic  carry handle
Batch no:
Maes on label:	770 (g)
Total mass:	1570 (g)
Mass of cover:	810 (g)
Fill mass:	760 (g)"

An adhesive paper label stuck on the plastic carry bag in which this quilt was received at the laboratory bears the

inscription:

"ALL NEW FILLING

CONTAINS

DUCK DOWN

DUCK FEATHER - ~

SINGLE
135 X 210 cm
770
MASS FILL WEIGHT"

Although the nominal dimensions and the "mass on label" recorded by Mrs Tepper could only have been obtained from that adhesive label, the quilt was tested as one requiring verification of a label without species identification and not as one identifying duck as the species of fowl which yielded the down and feather components.

As with the quilt the subject of Information VG 286, the whole of the filling was extracted from this quilt. A gross sample was also taken from which a test sample was massed. Mrs Janene Tepper, Mrs McAuliffe and Mrs Fe Tepper then spent between them 10 hours and 55 minutes on 18, 19 and 22 February 1988 analysing the test sample. The results of that analysis as recorded by Mrs Janene Tepper were:

"Initial mass 5.042 (a1

Down + plumules

Down frbre

Waterfowl feather	c60 mm >60 mm
Landfowl feather	c60 mm >60 mm
Crushed feather	c60 mm >60 mm
Feather Fibre Resldue

TOTAL

Classification loss : nil

Tlme : 10 hrs 55 min"

Down and plumules and down fibre thus represented, as a Hefferfs application to the same figures of the calculations	"raw" percentage, 33.67% of the total mass of the test sample. Mr
required by Appendix K of the Australian Standard yielded a result of 36.4% down and plumules, and 3.0% down fibre. That converted, according to Mr Heffer, to "a maximum amount of 42.4% down" which could be claimed leaving 54.5% water fowl feather and 3.1% crushed feather. By dividing the 36.5% which Mr Heffer ascribed to down and plumules by .850 a "calculated" down content of 42.8% is arrived at.
I consider that the outer carry bag including the adhesive paper label and the sewn-in label in combination amounted to a representation that the filling of this quilt was composed of 50% duck down and 50% duck feather. For the reasons given in respect of Information VG 286, I am therefore led to conclude that the submission of no case to answer on Information VG 287 must be upheld.
Even if I am wrong in concluding that this quilt should have been treated as bearing a label requiring verification in accordance with cl. 7.2.2 and Table 2 of the Australian Standard, the conditioning, analysis and weighing carried out in respect of it have been subject to deficiencies similar to those discussed in respect of Information VG 283 (other than the possible rounding of the mass of the test sample to exactly 5.000 grams). In addition, the fact that the total mass of the analysed components exceeded the initial mass means that there must have been some error in establishing the initial mass or in weighing
or recording the masses of the individual components. In the light of these aspects of the evidence, the "tested" and
"calculated" down content of this quilt, being respectively 42.4% and 42.8%, are not far enough below the minimum permissible content of 45% allowed by the tolerance of 5% specified in Table 1 of the Australian Standard to exclude a reasonable doubt that the actual down content was less than 50%.
For that independent reason, I would have reached a similar conclusion had I considered that resort to Mr Heffer's calculations was, on the evidence, properly applicable to a determination of the down content of this quilt.
VG 288
The summons in respect of this information alleges that AFM on or about 26 April 1988 falsely represented that a single bed size continental quilt of the brand "Downia" contained filling composed of 30% duck down and 70% duck feather. The falsity of the representation was said to arise from the fact that the filling of the quilt contained only approximately 18.2% duck down.
The quilt in question was forwarded at the end of April 1988 to Mr Heffer's laboratory by the Feather Factory, an Adelaide- based manufacturer of feather and down-filled products. It was assigned job number 881129 and was taken to the controlled- atmosphere room where in some manner all of the contents were removed from the quilt cover. Either before or after the bulk of
which four test samples were taken. The first of those was the contents had been removed, a gross sample was extracted from
analysed by Mrs Fe Tepper, Mrs McAuliffe, Mrs Janene Tepper and Mrs Phelps who between them spent 8 hours and 55 minutes on the task between 3 and 5 May 1988. Mrs Janene Tepper recorded a description of the quilt and the following results of the analysis :

"Initial mass 5.038 is1 Mass 1aL

Down + plumules	0.725
Down fibre	0.106
Waterfowl feather	<60 mm >60 mm
Landfowl feather	<60 mm >60 mm
Crushed feather	<60 mm >60 mm
Feather Flbre
Residue

TOTAL 5.008

Classification loss	:	0 . 6 %
Time : 8 hrs 55 m m "

The mass of down and plumules and down fibre thus recorded expressed as a percentage of the total mass of the first test sample, after classification, of 5.008 grams amounts to 16.59%. Mr Heffer calculated down and plumules content as 14.5% and the maximum amount of down which could be claimed as 17%, the balance being 80.8% water fowl feather and 2.2% crushed feather. Division of the initial down and plumules content of 14.5% by .85 yields a "calculated" down content of 17.05%.

On 22 August 1988, M r Korczynski in company with M r Mineely,

another officer of the Trade Practices Commission, attended at Mr

Heffer's laboratory and took possession of a collection of quilt	covers, extracted samples and remnants of filling and related
items including the three extra test samples taken in the course of processing job number 881219. Each extra test sample was in a small plastic envelope. One of those test samples was labelled "Retest 3" and signed, initialled and dated for purposes of identification by each of Mr Korczynski and Mr Mineely. That test sample with others was returned to Mr Heffer in a sealed box on
20 March 1989. The box was opened at the laboratory in the
presence of Mr Szann, an executive officer employed by the Standards Association of Australia. The plastic envelope containing Re-test 3 was then opened and its contents were placed in a small plastic crate. The inside of the envelope was brushed to remove any adherent matter and the contents of the crate were then analysed under Mr Szann's supervision by at least Mrs Janene Tepper, Mrs Fe Tepper, and Mrs McAuliffe.
The task of analysing the sample labelled "Retest 3" was allocated job number 881458C in respect of which the following results were recorded by Mrs Janene Tepper:

" I n i t i a l mass 4 .942 f q l Mass Is1

Down + plumules

Down f ~ b r e

Waterfowl feather	4 0 nun >60 nun
Landfowl feather	<60 nun >60 nun
Crushed feather	<60 nun >60 nun

Feather Fibre Residue	TOTAL	4.930
Classxf icat ion	l o s s	:	0.2%"

On the application of Mr Heffer's computer programme to those figures the assay of down and plumules was expressed as 15.4%, that of down fibre as 2.4% and that of waterfowl feather less than 60 mm in length as 60.2%. Mr Heffer calculated the maximum down content which could be claimed as 18.2%, leaving a claimable balance of 80.1% waterfowl feather and 1.7% crushed feather. It is agreed that when the "raw" 15.4% for down and

plumules is divided by .850, a "calculated" down content of 18.1%
for Retest 3 is arrived at.

It is clear from the particulars provided by the summons that the representation on which this information is based was as to a specified content of duck down. Therefore, on the construction of the Australian Standard which I consider correct, the label should have been verified in accordance with cl. 7.2.2 and Table 2. In the absence of evidence of any attempt to do so, there is no acceptable evidence of measurement of the down content of this quilt by application of an authoritative standard. I have thus concluded that the submission of no case to answer on this information must be upheld for the first only of the reasons given above for taking that course in relation to Information VG 287.

VG 289

The summons in respect of this information alleges another premises of Rushford's Manchester Lane store at Werribee that a	false representation by AFM on or about 28 May 1988 at the
single bed size continental quilt of the brand name "Downia" contained a filling composed of 30% duck down, 70% duck feather whereas, in fact, it contained only approximately 25.6% duck down.
The relevant quilt was purchased by Mr Heffer on 28 May 1988 and on arrival at his laboratory it was assigned the job number 881219. A gross sample was extracted from 20 slits made more or less randomly across the quilt cover except that no slit was closer than 25 cm to an end of the quilt. As with the quilt the subject of VG 288, four test samples were taken from the gross sample. One of those was analysed by Mrs Janene Tepper, Mrs McAuliffe and Mrs Fe Tepper on 9 June 1988 and the other test samples were delivered to Messrs Korczynski and Mineely on 22 August 1988.
The results of the analysis of the first test sample from job number 881219 as recorded by &S McAuliffe were:

"9 June 1988

881219 QPMm DOWNIA

General descript~on: continental quilt, DOWNIA, single bed, 30% duck down, 70% duck feather, actual measurements 204, 203, 203 X 136.5, 134, 134 cm, 7 channels, total mass - 1720 g

Classification

Initial mass 4.942	Mass
Down + plumules	1.069
Down fibre	.072
Waterfowl feather	3.070 .l96

Landfowl feather	.070
.014
Crushed feather	.l59 Nil
Feather Fibre	.056

Residue 0.086

TOTAL 4.930

Classification loss : 0.3%
Tune : 6 hours"

The combined mass of down and plumules and down fibre expressed as a percentage of the net mass of the test sample was 23.81%. Mr Heffer arrived at 22.3% of down and plumules which, when divided by .85, gave a "calculated" down content of 26.2%. He also determined that the maximum down content which could be claimed on the basis of the first test sample was 25.6%.

One of the remaining three test samples from this quilt was labelled "Re-test 2 " and was returned to Mr Heffer's laboratory at the same time as "Re-test 3". Re-test 2 was analysed under Mr Szann's supervision as job number 881458B and these results were obtained:

"Initlal mass 4.599 (a Mass (a1

Down + plumules	0.922
Down flbre	0.108

Waterfowl feather	<60 mm	2.834
>60 mm	0.351
Landfowl feather	<60 mm	0.100
>60 mm	nil
Crushed feather	<60 mm	0.132
260 mm	nil
Feather Fibre	0.066
Residue	0.055

TOTAL 4.568

Claesificat~on loss : 0.67%"

The combined mass of down and plumules and down fibre the net mass of that sample was 22.54%. Mr Heffer quantified down	identified on analysis of Re-test 2 expressed as a percentage of
and plumules as 20 .2% which when divided by .85 yielded a "calculated" down content of 23 .7%. Mr Heffer also determined the maximum down content which could be claimed on the basis of the re-test to be 23 .7%.
As with the quilt the subject of Information VG 288, the representation in respect of this quilt was as to a specified content of duck down and feather. Since there is again no evidence of any attempt to verify that representation in accordance with cl. 7.2.2 and Table 2 of the Australian Standard, it follows that, for the same reasons as those given in respect of Information VG 288, the submission of no case to answer in respect of this information must be upheld.
VG 290
The summons related to this information likewise alleges the making of a false representation that a single bed size continental quilt contained a filling of 30% duck down, 70% duck feather. The quilt from which the relevant samples were taken was in fact a "queen" size, the dimensions of which were recorded by Mrs Fe Tepper as approximately 205 cms X 204 cms. However, that discrepancy between the summons and the evidence would have been readily curable by amendment had the evidence not made it clear that both the test and re-test samples were analysed in broadly the way indicated by the Australian Standard as appropriate for
verification of a label without species identification, and yielded respectively a down and plumules content as quantified by
Mr Heffer of 17.6% and 17.4% which converted to a "calculated" down content of 18.5% on the first analysis and 18.1% on the re- test.
The remains of the quilt and carry bag tendered in evidence make it clear that the representation alleged clearly identified the species from which the filling had been obtained as "duck". Accordingly, for the reasons indicated in respect of Informations
VG 288 and VG 289, the submission of no case to answer is also
upheld on this Information.
VG 291
The summons related to this Information alleges that AFM falsely represented that a single bed size continental quilt contained a filling composed of 50% duck down, 50% duck feather whereas in fact it contained only approximately 41.6% duck down. The evidence reveals that the quilt in question was tested at Mr Heffer's laboratory in substantially the same manner as the quilt to which Information VG 289 is related except that neither of the two duplicate test samples extracted from the gross sample was subjected to a re-test. As well, the mass of the test sample actually analysed was lower, being only 2.869 grams. From the analysis of that test sample Mr Heffer calculated its "actual composition" as:

"41.6%	down
50.1%	waterfowl feather

- landfowl feather

8.3%	cruehed feather
-	e x c e s s r e s ~ d u a l matter"

That analysis also yielded a "calculated" down content of 41.5%.

Because the alleged representation as to this quilt was in respect of a specified content of duck down and duck feather, and because there has been no attempt to verify that representation by application of cl. 7.2.2 and Table 2 of the Australian Standard, for the reasons given in respect of Information VG 289, the submission of no case to answer must be upheld. Moreover, independently of that reasoning, having regard to the selective method of taking the gross sample, the relative smallness of the test sample and the other available criticisms of the sampling and analytical techniques involved, I am led to conclude that the reported levels of down content are not such as to exclude a reasonable doubt that the actual down content was less than 50%.

VG 292

The charge in the summons related to this Information is that AFM falsely represented that a pillow of the brand name "Downia" contained a filling composed of 70% down, 30% feather, whereas the filling of the pillow in fact contained only approximately 59.6% down.

The evidence reveals that when purchased from Adair's of Hoppers Crossing, the pillow was enclosed in a plastic carry bag on which the following printing appeared:

"DOWNIA

LUXURY PILLOW

For generations, Down and Featherfilled prllows have been a European traditron. Today, with the latest technology, Downia

continues this tradrtion, making luxury pillows filled with pure
duck down and feather. A Downia Pillow will remain plump and

resilient, keeping rts shape for years to come.

SIZB FIRM ICeDIOH SOST U Z W - S O P T CUSSIQUX

STANDARD	70B
45 X 7 0 cm	DDwn

30% Rather

After purchase it was removed to Mr Heffer's laboratory where it was assigned the job number 881737. The legend on the sewn-in label attached to the fabric cover of the pillow was:

ULTRASOFT PILLOW

STANDARD SIZE 45 cm X 70 cm

CONTENTS: ALL NEW FILL
70% DUCK DOWN

30% DUCK FEATHER FILL HASS: 600 GR

100% COTTON COVER

HADB IN AUSTRALIA

AOSTWALIM - R

HILLS m. LTD. 35-41 N e w t o n Rd.

Wether~l l Park

N.S.W. 2164
REGISTERED TPADE MARK''

It was there taken to the controlled atmosphere room and, on Mr Heffer's evidence, "was analysed according to the Australian Standard". That appears to have involved taking a gross sample from which a test sample of 3.052 grams was extracted which was then separated into its component parts yielding the following results as recorded by Mrs McAuliffe:

"Mass of sample

Mass ( % )

Component Down and plumules	1.574
Down fibre	0.104
Waterfowl feather - less than 60 mm	0.928

- greater than 60 mm 0.090

Landfowl feather - less than 60 mm 0.038

- greater than 60 mm 0.016

Crushed feather - less than 60 mm 0.120

- greater than 60 mm nil

Feather Fibre	0.078
Residue	0.079
TOTAL	3.027
Classification loss : 0.8%
Analysis time	: 5.08 h"

Mr Heffer calculated the "raw" percentages of those components to include 52% down and plumules, 3.4% down fibre and 30.6% waterfowl feather less than 60 mm in length. The application of the computer programme to the same figures yielded a "tested" or maximum claimable down content of 59.6%. It is common ground that the "raw" figure of 52% when divided by .85 yields a "calculated" down content of 61.1%.

Two duplicate test samples were taken from the same pillow, the total contents of which were apparently removed to provide the gross sample. One of those test samples was subsequently analysed under Mr Szann's supervision as "Re-test 4" bearing job number 881458 and yielded these results:

"In~tial mass (a) 4.780 Mass (Q

Down + plumules 2.270

Down	f ~ b r e	0.266
Waterfowl feather	<60 m	1.540
>60 m	0.096
Landfowl feather	<60 m	0.090
>60 nun	0.048

Crushed feather	<60 nun	0.151
>60 mm	nil
Feather Fibre	0.133
Residue	0.099

TOTAL 4.693

Classif~cation	loss 1.8%"
From these re-test results in turn Mr	Heffer derived "raw"

percentages of 48.4% down and plumules, 5.7% down fibre and 32.8% waterfowl feather less than 60 mm in length. By application of the same computer programme he derived a maximum claimable or "testedw down content of 56.9%. It is also agreed that the "raw" "tested" down content of 56.9%. It is also agreed that the "raw" down and plumules content of 48.4% when divided by .85 yields a "calculated" down content of 56.9%.

Although it is not indicated in the particulars of the change appearing in the summons related to this information, I consider the combined effect of the statements on the plastic carry bag and the sewn-in label on the pillow amounted to a representation that it was composed of 70% && down and 30% duck feather. Accordingly, in the absence of any attempt to verify that representation by application of c1.7.2.2 and Table 2 of the Australian Standard, the submission of no case to answer is upheld for the first of the reasons indicated in respect of Information VG 291. Moreover, as with the quilt in that case, the pillow here was tested by use of test samples which were both below the 5.00 grams stipulated in cl J4(c) of Appendix J to the Australian Standard. That deficiency in combination with the absence of evidence of conditioning of the gross sample and the

other criticisms which can be made of the sampling and analytical	processes which were employed would have left me independently
with a reasonable doubt that the actual down content was less than 70% particularly when regard is had to the tolerance of plus or minus 10% stipulated in Table 2 of the Australian Standard for verifying a down content which is claimed with species identification.
CONCLUSION
In the result, therefore, the submission of no case to answer is upheld in relation to each of Informations VG 279, 280,
281 , 283 , 284 , 286, 287, 288, 289 , 290 , 2 9 1 and 292 which
accordingly must be dismissed. I shall hear Counsel on arrangements for the resumed hearing of the remaining Informations VG 282 and 285.

I certify that this and the preceding fifty-seven (57) pages are a true copy of the Reasons for Judgment of His Honour Mr Justice Ryan.

Date :  b 1- / q Y /

Counsel for Prosecutor:	Mr T. Ginnane
Solicitors for Prosecutor:	Director of Public Prosecutions
Counsel for Defendant:	Mr C. Gee, QC with M r C. Hodgekiss
Solicitors for Defendant:	Hickman, Lakeman & Holcombe
Date of Hearing:	11 - 26 February 1991
Date of Judgment:	6 June 1991