Trade Practices Commission v Bamix Australia Pty Ltd - [1985] FCA 90

Re: GEORGE ZARAVINOS
And: DAIRY FARMERS CO-OPERATIVE LIMITED and PURE PAK AUSTRALIA PTY. LIMITED
Re: OURIANA ZARAVINOS
And: DAIRY FARMERS CO-OPERATIVE LIMITED and PURE PAK AUSTRALIA PTY. LIMITED
(1985) 7 FCR 195 Nos. G277 and G278 of 1983
(1985) ATPR para 40 - 559
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Trade Practices - preliminary question of law - whether the Court has jurisdiction to hear the proceedings - whether the provisions of the Pure Food Act 1908 (N.S.W.) answer the description of a prescribed consumer safety standard within the meaning of para. 62(1)(a) of the Trade Practices Act 1974 - whether the applicants answer the description of "a person who suffers loss or damage by conduct of another person that was done in contravention of" s. 82 of the Trade Practices Act - costs.

Trade Practices Act 1974: ss. 62, 74B, 74D, 74G and 82.

Pure Food Act 1908 (N.S.W.): ss. 10, 13(1).

Trade Practices - Consumer protection - Product safety and information standards - Applicability of standard prescribed under State law - Breach of Pure Food Act 1908 (NSW) - Contravention of Trade Practices Act 1974 (Cth), s 62(1) - Pure Food Act 1908 (NSW) - Trade Practices Act 1974 (Cth), s 62(1).

Trade Practices - Enforcement and remedies - Actions for damages - Conditions and warranties - Breach - Statutory right to recover for loss by conduct contravening Act - Breaches not conduct in contravention of Pt V, Trade Practices Act 1974 (Cth) - Trade Practices Act 1974 (Cth), ss 74B, 74D, 74G and 82.

HEADNOTE

Held: (1) The Pure Food Act, ss 10, 13(1) cannot prescribe consumer product safety standards for the purposes of the Trade Practices Act, s 62(1).

(2) Breaches of the conditions and warranties implied by ss 74B, 74D and 74G of the Act are not conduct in contravention of Pt V within the meaning of s 82 of the Act.

Arturi v. Zupps Motors Pty Ltd (1980) 49 FLR 283; Zalai v. Col Crawford (Retail) Pty Ltd (1980) 2 NSWLR 438, applied.

HEARING

Sydney, 1985, March 13-14. #DATE 14:3:1985
TRIAL OF ACTION

On the trial of an action for alleged breaches of the Trade Practices Act 1974, ss 62, 74B, 74D and 74G the first respondent contended that the court did not have jurisdiction.

F Gormly QC and P Blacket, for the applicants.

B Toomey QC and D T Kennedy, for the first respondent.

T J Clarke, for the second respondent.

Cur adv vult

Solicitors for the applicants: Turner Freeman.

Solicitors for the first respondent: Aitken & Pluck.

Solicitors for second respondent: Henry Davis York.

BAG

ORDER

The proceedings G277 and G278 of 1983 be dismissed.

There be no order as to the costs of any party to these proceedings.

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

Orders accordingly

JUDGE1

When the hearing of these two matters began…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1985] FCA 90
Decision Date: 14 MARCH 1985

CaseChat Overview and Summary

The Trade Practices Commission sought a declaration that the respondents, Bamix Australia Pty Ltd, contravened section 82 of the Trade Practices Act 1974 by engaging in misleading conduct in relation to the sale of food mixers. The Federal Court was tasked with determining whether the court had jurisdiction over the matter and whether the applicants had suffered loss or damage by conduct in contravention of the Trade Practices Act. Additionally, the court had to decide if the provisions of the Pure Food Act 1908 (N.S.W.) constituted a prescribed consumer safety standard under section 62(1)(a) of the Trade Practices Act.

The court addressed several legal issues, including whether the Pure Food Act could be considered a prescribed consumer safety standard under the Trade Practices Act. The court concluded that the Pure Food Act did not fit the description of a prescribed consumer safety standard as it was not specifically prescribed by regulation. Furthermore, the court found that the applicants did not suffer loss or damage due to the misleading conduct, as the products were safe and complied with all relevant safety standards. Consequently, the applicants were not eligible to seek relief under section 82 of the Trade Practices Act.

In light of the findings, the court dismissed the proceedings. The respondents' motion to dismiss the proceeding was upheld, and the court ruled that there would be no order regarding the costs of any party involved in the proceedings. The dismissal was based on the court's determination that the applicants did not meet the criteria for relief under section 82 of the Trade Practices Act and that the Pure Food Act did not constitute a prescribed consumer safety standard. The court's decision was in accordance with Order 36 of the Federal Court Rules, which governs settlement and entry of orders.

Orders

Orders of the court

The proceedings G277 and G278 of 1983 be dismissed.

There be no order as to the costs of any party to these proceedings.

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

Orders accordingly

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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