Director of Consumer Affairs v Nightingale Electrics Pty Ltd

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Counsel for the Applicant: Mr M Colbran QC with Mr S Bhojan

Solicitor for the Applicant: Department of Justice and Regulation (Consumer Affairs Victoria)

Counsel for the Respondents: Ms G Costello with Mr T Maxwell

Solicitor for the Respondents: Gil Boffa & Associates

BETWEEN: DIRECTOR OF CONSUMER AFFAIRS Applicant

AND: NIGHTINGALE ELECTRICS PTY LTD (ACN 107 719 540) First Respondent

GEORGE CHARLES ANDERSON Second Respondent

JUDGE: PAGONE J DATE OF ORDER: 22 march 2016

Pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"), the Court declares, by consent, that: A NIGHTINGALE ELECTRICS PTY LTD ACN 107 719 540 ("Nightingale") Miniature Motorbikes

1. Between about 20 March 2014 and 29 April2014, Nightingale by supplying, in trade or commerce, to consumers by way of sale through a store it operated and the internet, 4 Miniature Motorbikes or "monkey bikes", powered by internal combustion engines not certified under the "Road Vehicle Certification System" operated by the Australian Government Department or Agency, having responsibility for the certification of road vehicles ("Miniature Motorbikes"), being goods that: (a) are intended to be used, and are of a kind likely to be used, for personal or domestic use; (b) are of a kind for which there is a permanent ban order in force, namely, the permanent ban on Miniature Motorbikes with unsafe design features, declared on 1 February 2011, under Consumer Protection Notice No. 24 of 2011 and revised on 20 August 2011 ("the ban order"); and (c) do not comply with the ban order because the Miniature Motorbikes, not being fitted with a drum type braking system, do not incorporate floating or sliding type brake callipers that compensate for any increased movement in their components arising from wear, as required by paragraph 2(b) of the Particulars of Goods of the ban order - has contravened sub-s 118(1) of Schedule 2 to the Competition and Consumer Act 2010 (Cth) and/or sub-s 118(1) of the Australian Consumer Law and Fair Trading Act 2012 (Vic) ("ACL (Vic)").
2. Between 20 March 2014 and 29 April 2014, Nightingale, by offering to supply, in trade or commerce, to consumers through a store it operated and the internet, 2 Miniature Motorbikes, being goods the supply of which is prohibited because they: (a) are intended to be used and are of a kind likely to be used, for personal or domestic use; (b) are of a kind affected by the ban order; and (c) do not comply with the ban order because the Miniature Motorbikes, not being fitted with a drum type braking system, does not incorporate floating or sliding type brake callipers that compensate for any increased movement in their components arising from wear, as required by paragraph 2(b) of the Particulars of Goods of the ban order - has contravened sub-s 118(2) of the ACL and/or sub-s 118(2) of the ACL (Vic).
3. Between 20 March 2014 and 29 April 2014, Nightingale, in or for the purposes of trade or commerce, by possessing or having control of 2 Miniature Motorbikes, being goods the supply of which is prohibited, because they: (a) are intended to be used and are of a kind likely to be used, for personal or domestic use; (b) are of a kind affected by the ban order; and (c) do not comply with the ban order because the Miniature Motorbikes, not being fitted with a drum type braking system, does not incorporate floating or sliding type brake callipers that compensate for any increased movement in their components arising from wear, as required by paragraph 2(b) of the Particulars of Goods of the ban order - has contravened sub-s 118(3) of the ACL and/or sub-s 118(3) of the ACL (Vic). Trolley Jacks
4. Between about 25 July 2013 and 29 April 2014, Nightingale, by supplying, in trade or commerce, to consumers by way of sale through a store it operated and the internet, Trolley Jacks with a capacity up to and including 2.5 tonnes ("Trolley Jacks"), being goods that: (a) are intended to be used and are of a kind likely to be used, for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Consumer Product Safety Standard for Trolley Jacks, imposed under Consumer Protection Safety Standard No. 10 of 2008 ("the Trolley Jacks Standard"); and (c) do not comply with the Trolley Jacks Standard because the Trolley Jacks failed to have permanently adhered to them the prescribed safety warning in the prescribed form, contrary to the requirements of Clause 7.1(b) of the Trolley Jacks Standard - has contravened sub-s 106( 1) of the ACL and/or sub-s 106( 1) of the ACL (Vic).
5. Between 25 July 2013 and 29 April 2014, Nightingale, by offering to supply, in trade or commerce, to consumers through a store it operated and the internet, 24 Trolley Jacks, being goods the supply of which is prohibited because they: (a) are intended to be used and are of a kind likely to be used, for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Trolley Jacks Standard; and (c) do not comply with the Trolley Jacks Standard because the Trolley Jacks failed to have permanently adhered to them the prescribed safety warning in the prescribed form, contrary to the requirements of Clause 7.1(b) of the Trolley Jacks Standard - has contravened sub-s 106(2) of the ACL and/or sub-s 106(2) of the ACL (Vic).
6. Between 25 July 2013 and 29 April 2014, Nightingale, in or for the purposes of trade or commerce, by possessing or having control of 24 Trolley Jacks, being goods the supply of which is prohibited because they: (a) are intended to be used and are of a kind likely to be used, for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Trolley Jacks Standard; and (c) do not comply with the Trolley Jacks Standard because the Trolley Jacks failed to have permanently adhered to them the prescribed safety warning in the prescribed form, contrary to the requirements of Clause 7.1(b) of the Trolley Jacks Standard - has contravened sub-s 106(3) of the ACL and/or sub-s 106(3) of the ACL (Vic). Car Jacks
7. Between 16 September 2013 and 29 April 2014, Nightingale, by supplying, in trade or commerce, to consumers through a store it operated and the internet, Car Jacks with a capacity of up to and including 8 tonnes ("Car Jacks"), being goods that: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Safety Standard imposed under Consumer Protection Safety Standard No. 1 of 2010 ("the Car Jacks Standard"); and (c) do not comply with the Car Jacks Standard because they did not have permanently adhered to them a warning notice containing the prescribed safety warning in the prescribed form, contrary to the requirements of Clause 7.1.1.3 of the Car Jacks Standard - has contravened sub-s 106( 1) of the ACL and/or sub-s 106( 1) of the ACL (Vic).
8. Between 16 September 2013 and 29 April 2014, Nightingale, by offering to supply, in trade or commerce, to consumers through a store it operated and the internet, 23 Car Jacks, being goods the supply of which is prohibited because they: (a) are intended to be used and are of a kind likely to be used for personal use; (b) are of a kind for which there is a safety standard in force, namely, the Car Jacks Standard; and (c) do not comply with the Car Jacks Standard because they did not have permanently adhered to them a warning notice containing the prescribed safety warning in the prescribed form, contrary to the requirements of Clause 7.1.1.3 of the Car Jacks Standard - has contravened sub-s 106(2) of the ACL and/or sub-s 106(2) of the ACL (Vic).
9. Between 16 September 2013 and 29 April 2014, Nightingale, in or for the purposes of trade or commerce, by possessing or having control of 23 Car Jacks, being goods the supply of which is prohibited because they: (a) are intended to be used and are of a kind likely to be used for personal use; (b) are of a kind for which there is a safety standard in force, namely, the Car Jacks Standard; and (c) do not comply with the Car Jacks Standard because they did not have permanently adhered to them a warning notice containing the prescribed safety warning in the prescribed form, contrary to the requirements of Clause 7.1.1.3 of the Car Jacks Standard - has contravened sub-s 106(3) of the ACL and/or sub-s 106(3) of the ACL (Vic). Vehicle Support Stands
10. Between 17 December 2013 and 29 April 2014, Nightingale, by supplying, in trade or commerce, to consumers through a store it operated and the internet, Vehicle Support Stands with a capacity up to and including 1.5 tonnes ("Vehicle Support Stands"), being goods that: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Safety Standard imposed under the Consumer Protection Safety Standard No. 12 of 2008 ("the Vehicle Support Stands Standard"); and (c) do not comply with the Vehicle Support Stands Standard because the Vehicle Support Stands failed to have permanently adhered to, or clearly marked on, as the case may be: (i) them, details of the maximum working height, in mm, legibly in English, contrary to the requirements of Clause 8(c) of the Vehicle Support Stands Standard; (ii) them, a warning notice containing the prescribed safety warning, or in words to the same effect, legibly in English, contrary to the requirements of Clause 8(e) of the Vehicle Support Stands Standard; (iii) them, details of the manufacturing batch identification, legibly in English, contrary to the requirements of Clause 8(f) of the Vehicle Support Stands Standard; (iv) the packaging in which they were presented, details of the "height lowered", being the minimum height, in mm, of the engagement head of the Vehicle Support Stands when in use, contrary to the requirements of Clause 9(a) of the Vehicle Support Stands Standard; and (v) the packaging in which they were presented, details of the "height raised", being the minimum height, in mm, of the engagement head of the Vehicle Supports Stands when in use, contrary to the requirements of Clause 9(b) of the Vehicle Support Stands Standard - has contravened sub-s 106(1) of the ACL and/or sub-s 106(1) of the ACL (Vic).
11. Between 17 December 2013 and 29 April 2014, Nightingale, by offering to supply, in trade or commerce, to consumers through a store it operated and the internet, 35 Vehicle Support Stands, being goods the supply of which is prohibited because they: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Vehicle Support Stands Standard; and (c) do not comply with the Vehicle Support Stands Standard because the Vehicle Support Stands failed to have permanently adhered to: (i) them, details of the maximum working height, in mm, legibly in English, contrary to the requirements of Clause 8(c) of the Vehicle Support Stands Standard; (ii) them, a warning notice containing the prescribed safety warning, or in words to the same effect, legibly in English, contrary to the requirements of Clause 8(e) of the Vehicle Support Stands Standard; (iii) them, details of the manufacturing batch identification, legibly in English, contrary to the requirements of Clause 8(f) of the Vehicle Support Stands Standard; (iv) the packaging in which they were presented, details of the "height lowered", being the minimum height, in mm, of the engagement head of the Vehicle Support Stands when in use, contrary to the requirements of Clause 9(a) of the Vehicle Support Stands Standard; and (v) the packaging in which they were presented, details of the "height raised", being the minimum height, in mm, of the engagement head of the Vehicle Supports Stands when in use, contrary to the requirements of Clause 9(b) of the Vehicle Support Stands Standard - has contravened sub-s 106(2) of the ACL and/or sub-s 106(2) of the ACL (Vic).
12. Between 17 December 2013 and 29 April 2014, Nightingale, in or for the purposes of trade or commerce, by possessing or having control of 35 Vehicle Support Stands, being goods the supply of which is prohibited because they: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Vehicle Support Stands Standard; and (c) do not comply with the Vehicle Support Stands Standard because the Vehicle Support Stands failed to have permanently adhered to: (i) them, details of the maximum working height, in mm, legibly in English, contrary to the requirements of Clause 8(c) of the Vehicle Support Stands Standard; (ii) them, a warning notice containing the prescribed safety warning, or in words to the same effect, legibly in English, contrary to the requirements of Clause 8(e) of the Vehicle Support Stands Standard; (iii) them, details of the manufacturing batch identification, legibly in English, contrary to the requirements of Clause 8(f) of the Vehicle Support Stands Standard; (iv) the packaging in which they were presented, details of the "height lowered", being the minimum height, in mm, of the engagement head of the Vehicle Support Stands when in use, contrary to the requirements of Clause 9(a) of the Vehicle Support Stands Standard; and (v) the packaging in which they were presented, details of the "height raised", being the minimum height, in mm, of the engagement head of the Vehicle Supports Stands when in use, contrary to the requirements of Clause 9(b) of the Vehicle Support Stands Standard - has contravened sub-s 106(3) of the ACL and/or sub-s 106(3) of the ACL (Vic). Sunglasses
13. Between about 1 January 2011 and 29 April 2014, Nightingale, by supplying, in trade or commerce, to consumers spectacles comprising tinted lenses of nominal zero refractive power mounted in a spectacle frame ("Sunglasses"), being goods that: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Sunglasses and Fashion Spectacles Safety Standard imposed under Consumer Protection Safety Standard No. 13 of 2003 ("the Sunglasses Standard"); and (c) do not comply with the Sunglasses Standard because they did not have, in the form of: (i) an indelible marking on the Sunglasses frame; or (ii) a removable label affixed to the lens; or (iii) a removable label securely attached or tied to the frame; or (iv) any combination of the means identified in paragraphs (a) to (c) above information sufficient to identify: (1) the manufacturer or supplier of the Sunglasses; and (2) the lens category number and description in accordance with Table 4 of the Sunglasses Standard - contrary to the requirements of Clauses 4.1.1 and 4.2.1 of the Sunglasses Standard has contravened sub-s 106(1) of the ACL and/or sub-s 106(1) of the ACL (Vic).
14. Between about 1 January 2011 and 29 April 2014, Nightingale, by offering to supply, in trade or commerce, to consumers through a store it operated, 1,598 Sunglasses, being goods that: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Sunglasses Standard; and (c) do not comply with the Sunglasses Standard because they did not have, in the form of: (i) an indelible marking on the Sunglasses frame; or (ii) a removable label affixed to the lens; or (iii) a removable label securely attached or tied to the frame; or (iv) any combination of the means identified in paragraphs (a) to (c) above information sufficient to identify: (1) the manufacturer or supplier of the Sunglasses; and (2) the lens category number and description in accordance with Table 4 of the Sunglasses Standard - contrary to the requirements of Clauses 4.1.1 and 4.2.1 of the Sunglasses Standard and has contravened sub-s 106(2) of the ACL and/or sub-s 106(2) of the ACL (Vic).
15. Between about 1 January 2011 and 29 April 2014, Nightingale, in or for the purposes of trade or commerce, by possessing or having control of the 1,598 Sunglasses, being goods the supply of which is prohibited because they: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Sunglasses Standard; and (c) do not comply with the Sunglasses Standard because they did not have, in the form of: (i) an indelible marking on the Sunglasses frame; or (ii) a removable label affixed to the lens; or (iii) a removable label securely attached or tied to the frame; or (iv) any combination of the means identified in paragraphs (a) to (c) above information sufficient to identify: (1) the manufacturer or supplier of the Sunglasses; and (2) the lens category number and description in accordance with Table 4 of the Sunglasses Standard - contrary to the requirements of Clauses 4.1.1 and 4.2.1 of the Sunglasses Standard and has contravened sub-s 106(3) of the ACL and/or sub-s 106(3) of the ACL (Vic). Elastic Luggage Straps
16. Between about 1 January 2011 and 29 April 2014, Nightingale, by supplying, in trade or commerce, to consumers Elastic Luggage Straps, being goods that have a hook, buckle or other fastening device at each extremity, designed to be used for the purpose of securing luggage or other objects ("Elastic Luggage Straps"), that: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Safety Standard imposed under the Trade Practices (Consumer Protection Safety Standards) Regulations 1979 ("the Elastic Luggage Straps Standard"); and (c) do not comply with the Elastic Luggage Straps Standard because they did not have permanently attached to them a label bearing the prescribed warning in the prescribed form, contrary to the requirements of sub-Regulations 11C(3), (4), and (5) of the Elastic Luggage Straps Standard - has contravened sub-s 106(1) of the ACL and/or sub-s 106(1) of the ACL (Vic).
17. Between about 1 January 2011 and 29 April 2014, Nightingale, by offering to supply, in trade or commerce, to consumers 199 Elastic Luggage Straps, being goods that: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Elastic Luggage Straps Standard; and (c) do not comply with the Elastic Luggage Straps Standard because they did not have permanently attached to them a label bearing the prescribed warning in the prescribed form, contrary to the requirements of sub-Regulations 11 C(3), (4 ), and (5) of the Elastic Luggage Straps Standard - has contravened sub-s 106(2) of the ACL and/or sub-s 106(2) of the ACL (Vic).
18. Between about 1 January 2011 and 29 April 2014, Nightingale, in or for the purposes of trade or commerce, by possessing or having control of the 199 Elastic Luggage Straps, being goods the supply of which is prohibited because they: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Elastic Luggage Straps Standard; and (c) do not comply with the Elastic Luggage Straps Standard because they did not have permanently attached to them a label bearing the prescribed warning in the prescribed form, contrary to the requirements of sub-Regulations 11 C(3), (4), and (5) of the Elastic Luggage Straps Standard - has contravened sub-s 106(2) of the ACL and/or sub-s 106(3) of the ACL (Vic). Aquatic Toys
19. Between 30 March 2014 and 29 April 2014, Nightingale, by supplying, in trade or commerce, to consumers Aquatic Toys, being articles designed or clearly intended for use in play by children under 14 years of age, intended to bear the mass of a child in water, whether inflatable or not, and whether or not worn, or otherwise, attached to the body ("Aquatic Toys"), being goods that: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Safety Standard imposed under the Consumer Protection Notice No. 2 of 2009 ("the Aquatic Toys Standard"); and (c) do not comply with the Aquatic Toys Standard because they did not carry the prescribed warning statement, in the prescribed form , contrary to the requirements of Clause 4.19 of the Aquatic Toys Standard - has contravened sub-s 106(1) of the ACL and/or sub-s 106(1) of the ACL (Vic).
20. Between 30 March 2014 and 29 April 2014, Nightingale, by offering to supply, in trade or commerce, to consumers 4 Aquatic Toys, being goods that: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Aquatic Toys Standard; and (c) do not comply with the Aquatic Toys Standard because they did not carry the prescribed warning statement, in the prescribed form, contrary to the requirements of Clause 4.19 of the Aquatic Toys Standard - has contravened sub-s 106(2) of the ACL and/or sub-s 106(2) of the ACL (Vic).
21. Between 30 March 2014 and 29 April 2014, Nightingale, in or for the purposes of trade or commerce, by possessing or having control of the 4 Aquatic Toys, being goods the supply of which is prohibited because they: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Aquatic Toys Standard; and (c) do not comply with the Aquatic Toys Standard because they did not carry the prescribed warning statement, in the prescribed form, contrary to the requirements of Clause 4.19 of the Aquatic Toys Standard - has contravened sub-s 106(2) of the ACL and/or sub-s 106(3) of the ACL (Vic). Portable Swimming Pools
22. Between 30 March 2014 and 29 April 2014, Nightingale, by supplying, in trade or commerce, to consumers Portable Swimming Pools, being soft-sided inflatable swimming pools ("Portable Swimming Pools") that: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Safety Standard imposed under the Consumer Goods (Portable Swimming Pools) Safety Standard 2013 ("the Portable Swimming Pools Standard"); and (c) do not comply with the Portable Swimming Pools Standard because ,they did not: (i) display the prescribed warning statement, permanently printed on, or embossed into, the fabric of the Portable Swimming Pools, contrary to the requirements of sub-ss 6(2) and 6(4) of the Portable Swimming Pools Standard; (ii) display conspicuously, so as to be visible to a purchaser, the prescribed warning, in the prescribed form, permanently on the retail packaging of the Portable Swimming Pools or on a label affixed to the retail packaging, contrary to the requirements of sub-ss 7(1 ), 7(2) and 7(4) of the Portable Swimming Pools Standard; and (iii) display the prescribed safety sign in the prescribed form , permanently printed or embossed on the fabric of the retail packaging of the Portable Swimming Pools next to the warning statements referred to in sub-paragraph (c)(ii) above, contrary to the requirements of s 8 of the Portable Swimming Pools Standard - has contravened sub-s 106(1) of the ACL and/or sub-s 106(1) of the ACL (Vic).
23. Between 30 March 2014 and 29 April 2014, Nightingale, by offering to supply, in trade or commerce, to consumers 39 Portable Swimming Pools, being goods that: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Portable Swimming Pools Standard; and (c) do not comply with the Portable Swimming Pools Standard because they did not: (i) display the prescribed warning statement, permanently printed on, or embossed into, the fabric of the Portable Swimming Pools, contrary to the requirements of sub-ss 6(2) and 6(4) of the Portable Swimming Pools Standard; (ii) display conspicuously, so as to be visible to a purchaser, the prescribed warning, in the prescribed form, permanently on the retail packaging of the Portable Swimming Pools or on a label affixed to the retail packaging, contrary to the requirements of sub-ss 7(1 ), 7(2) and 7(4) of the Portable Swimming Pools Standard; and (iii) display the prescribed safety sign in the prescribed form, permanently printed or embossed on the fabric of the retail packaging of the Portable Swimming Pools next to the warning statements referred to in sub-paragraph (c)(ii) above, contrary to the requirements of s 8 of the Portable Swimming Pools Standard - has contravened sub-s 106(2) of the ACL and/or sub-s 106(2) of the ACL (Vic).
24. Between 30 March 2014 and 29 April 2014, in or for the purposes of trade or commerce, by possessing or having control of the 40 Portable Swimming Pools, being goods the supply of which is prohibited because they: (a) are intended to be used and are of a kind likely to be used for personal, domestic, or household use; (b) are of a kind for which there is a safety standard in force, namely, the Portable Swimming Pools Standard; and (c) do not comply with the Portable Swimming Pools Standard because they did not: (i) display the prescribed warning statement, permanently printed on, or embossed into, the fabric of the Portable Swimming Pools, contrary to the requirements of sub-ss 6(2) and 6(4) of the Portable Swimming Pools Standard; (ii) display conspicuously, so as to be visible to a purchaser, the prescribed warning, in the prescribed form, permanently on the retail packaging of the Portable Swimming Pools or on a label affixed to the retail packaging, contrary to the requirements of sub-ss 7(1), 7(2) and 7(4) of the Portable Swimming Pools Standard; and (iii) display the prescribed safety sign in the prescribed form, permanently printed or embossed on the fabric of the retail packaging of the Portable Swimming Pools next to the warning statements referred to in sub-paragraph (c)(ii) above, contrary to the requirements of s 8 of the Portable Swimming Pools Standard - has contravened sub-s 106(3) of the ACL and/or sub-s 106(3) of the ACL (Vic). B GEORGE CHARLES ANDERSON ("Anderson")
25. Anderson, a director of Nightingale, has, by: (a) selecting, ordering, purchasing, or otherwise acquiring the Miniature Motorbikes for supply, offer of supply, or possession, in or for the purposes of trade or commerce in Australia, by Nightingale; (b) authorising or approving the supply, offer to supply, or possession, in or for the purposes of trade or commerce in Australia, any such goods by Nightingale; and (c) refusing or refraining (other than inadvertently) from ensuring that the Miniature Motorbikes supplied by Nightingale, or offered to supply, or in the possession of Nightingale, in or for the purposes of trade or commerce in Australia, complied with the ban order made under Part 3-3 Divisions 1 and 2 of the ACL or Part 3-3 Divisions 1 and 2 of the ACL (Vic) - been directly or indirectly, knowingly concerned in and party to or otherwise involved in the contraventions of s 118 of the ACL and s 118 of the ACL (Vic) by Nightingale.
26. Anderson, a director of Nightingale, has, by: (a) selecting, ordering, purchasing, or otherwise acquiring the: (i) Trolley Jacks; (ii) Car Jacks; (iii) Vehicle Support Stands; (iv) Sunglasses; (v) Elastic Luggage Straps; (vi) Aquatic Toys; and (vii) Portable Swimming Pools- for supply, offer of supply, or possession, in or for the purposes of trade or commerce in Australia, by Nightingale; (b) authorising or approving the supply, offer to supply, or possession, in or for the purposes of trade or commerce in Australia, any such goods by Nightingale; and (c) refusing or refraining (other than inadvertently) from ensuring that such goods complied with the safety of consumer goods provisions made under Part 3-3 Divisions 1 and 2 of the ACL or Part 3-3 Divisions 1 and 2 of the ACL (Vic) - been directly or indirectly, knowingly concerned in and party to or otherwise involved in the contraventions of s 106 of the ACL and s 106 of the ACL (Vic) by Nightingale. THE COURT ORDERS BY CONSENT THAT: Pecuniary Penalties (s 244 ACL (Vic)) 1 Nightingale pay to the State of Victoria a pecuniary penalty of $60,000 for the contraventions of the ACL and ACL (Vic), as found by the Court to be established, within 30 days of the date of this order. Destruction and disposal of goods (s 232 ACL and ACL (Vic)) 2 Pursuant to section 224 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) in respect of the contraventions of sections 106 and 118, the Court orders that Anderson pay to the State of Victoria the amount of $60,000. 3 Pursuant to section 232(6)(d) of the ACL or ACL (Vic), the Applicant be permitted to destroy and dispose of the contravening goods, which were seized by the Applicant on 29 April 2014. 4 Nightingale and Anderson pay the Applicant the costs of and any costs incidental to the destruction and disposal of the contravening goods. Such payment is to be made by the Respondents to the Applicant within 7 days of a written request by the Applicant to the Respondents, quantifying the costs of, and any costs incidental to, the destruction and disposal of the contravening goods. Costs 5 Nightingale and Anderson pay a contribution to the Applicant's costs of the proceeding fixed in the sum of $15,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 The Director of Consumer Affairs Victoria seeks declaratory and other orders against Nightingale Electrics Pty Ltd ("Nightingale") and Mr George Charles Anderson. Nightingale and Mr Anderson have consented to the orders sought by the Director and the parties have agreed the facts, and have filed joint submissions, in support of the orders which concern conduct alleged by the Director to constitute contraventions of provisions regarding the safety of consumer goods in Schedule 2 to the Competition and Consumer Act 2010 (Cth) ("the ACL") and the Australian Consumer Law and Fair Trading Act 2012 (Vic) ("the 2012 Victorian Act"). The Director has agreed with Nightingale and Mr Anderson to seek (a) declaratory relief against both Nightingale and Mr Anderson, (b) the imposition of an agreed civil penalty against Nightingale, (c) an order for the destruction and disposal of the contravening goods which were seized by the Director from Nightingale on 29 April 2014, and (d) an order that Nightingale and Mr Anderson pay a contribution to the Director's legal costs fixed at $15,000. The Director had previously sought other orders which, by agreement, are no longer sought. 2 Twenty-four declarations are sought against Nightingale for contravention of provisions of the ACL or the 2012 Victorian Act and two declarations are sought against Mr Anderson for being knowingly concerned in, and a party to, or otherwise involved in, contraventions of provisions of the ACL or the 2012 Victorian Act. Section 21 of the Federal Court of Australia Act 1976 (Cth) confers power upon the Court to make declarations in proceedings of this kind, but as a judicial act, the Court will generally not make declarations on admissions or upon consent of the parties unless the Court is satisfied of the facts by evidence: see BMI Limited v Federated Clerks Union of Australia (1983) 51 ALR 401, 412-3; Forster v Jododex Australia Pty. Limited (1972) 127 CLR 421, 437-8. The general rule against the making of declarations upon admission or the parties' consent is to preserve the integrity of the court and of the judicial process which could otherwise be compromised by the parties obtaining judicial orders that are not founded upon fact or which should not be made. It is, however, a rule of practice that will not be followed where appropriate and necessary to do justice between the parties: BMI Limited, 412-3; Australian Competition and Consumer Commission v Bridgestone Corporation (2010) 186 FLR 214, [17]; Animatrix Limited v O'Kelly [2008] EWCA Civ 1415, [54]. In Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665 Kiefel J said at [58]-[59]: 58 The power to grant declarations (s 21 of the Federal Court of Australia Act 1976 (Cth)) is unconfined. Order 35A itself imposes no constraints upon the relief sought. Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2). 59 It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration. Millett J made declaratory orders in Patten v Burke Publishing Co Ltd [1991] 1 WLR 541 where justice to the plaintiff required it. The order however operated principally inter partes and it might be doubted whether it would be of interest to other persons. Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made 'upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the Court'. (emphasis in original) Her Honour's approach in this respect was described as "entirely appropriate" by the Full Court in Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (ACN 075 400 529) (2007) 161 FCR 513, at [92]. 3 The parties in this case seek declaratory orders by consent upon a statement of facts agreed between them for the purposes of s 191 of the Evidence Act 1995 (Cth). In Bridgestone Corporation, Finkelstein J said at [16] that s 191 did no more than to give to agreed facts the status of a pleading and did not alter the rules laid down for obtaining a declaration in relation to a public right. His Honour at [12] declined to follow Besanko J who in Australian Competition and Consumer Commission v Skins Compression Garments Pty Ltd [2009] FCA 710 had said at [13] that evidence was not required to prove the existence of agreed facts by reason of a statement of agreed facts under s 191. Other cases have adopted the approach which had been taken by Besanko J in Skins Compression Garments and that approach is supported by the weight of authority: see Australian Competition and Consumer Commission v Cosic Holdings Pty Ltd [2009] FCA 1579, 51; Australian Competition and Consumer Commission v Wilson Parking 1992 Pty Ltd [2009] FCA 1580; Minister for the Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58, [30]-[38]; Australian Competition and Consumer Commission v P & N Pty Ltd [2014] FCA 6, [2]; Australian Competition and Consumer Commission v Renegade Gas Pty Ltd (trading as Super Gas NSW) [2014] FCA 1135, [4]. 4 Section 191 of the Evidence Act 1995 (Cth) provides: 191 Agreements as to facts (1) In this section: agreed fact means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed. (2) In a proceeding: (a) evidence is not required to prove the existence of an agreed fact; and (b) evidence may not be adduced to contradict or qualify an agreed fact; unless the court gives leave. (3) Subsection (2) does not apply unless the agreed fact: (a) is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding; or (b) with the leave of the court, is stated by a party before the court with the agreement of all other parties. Section 191 does not in terms provide that facts agreed for the purposes of the section are established as evidence, but the effect of s 191(2) is to remove the need to prove the existence of an agreed fact by evidence. The effect of the section, as Finkelstein J said in Bridgestone Corporation at [16], is that it "gives to agreed facts the status of a pleading". An admission of a fact in a pleading operates to remove the fact from the area of controversy and "no purpose [is] to be served by admitting any evidence" on that part of the case which is taken out of controversy by admission: see Pioneer Plastic Containers Ltd v Commissioner of Customs and Excise [1967] Ch 597, 601; Bridgestone Corporation, [15]; Divcom v Devine Shipping [1996] 2 VR 79, 80; Collie v Marlow Nominees Pty Ltd [2001] VSC 39, [94]-[98]. A formal admission in the course of judicial proceedings, as explained in Wigmore on Evidence in Trials at Common Law (rev ed Chadbourne JH, Little, Brown and Company, 1981), Vol 4, 1064, acts as a formal waiver of proof with the effect of "its conclusiveness upon the party making it, i.e. the prohibition of any further dispute of the fact by him, and of any use of evidence to disprove or contradict it": Wigmore on Evidence in Trials at Common Law (rev ed Chadbourne JH, Little Brown and Company, 1981), Vol 9, 2590; see also Dale CMC, Greenwood CW, Williams S, Stringer FA, Daniell's Chancery Practice (7th ed, Stevens and Sons, 1901), 489-491; Powell M, Roscoe's Digest of the Law of Evidence on the trial of Actions at nisi prius (15th ed, Stevens and Sons, 1884), 59-61, 69ff. That, of course, does not mean that the Court is bound to make the declarations sought upon the agreed facts, but the agreed facts supply the evidentiary basis upon which any declaration on the issues engaged by the parties may be made if the Court is "satisfied that the facts are true": see Australian Competition and Consumer Commission v P & N Pty Ltd [2014] FCA 6, [2]. 5 The Court can be confident in the present case that the agreed facts are true and that they provide a sound and proper foundation for making the declaratory orders sought. The agreed facts forms a coherent narrative and is inherently credible: see Minister for the Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58, [34]-[36]; Australian Competition and Consumer Commission v P & N Pty Ltd [2014] FCA 6, [2]. The facts were agreed between parties who had a real and opposing interest in the litigation and were signed by legal practitioners with duties to the Court to ensure the proper administration of justice. The parties had each filed opposing pleadings and opposing evidence, including expert evidence, upon which they had intended to rely in disputed proceedings before ultimately agreeing upon the statement of facts. One of those parties is a regulatory authority charged by statute with public duties who had investigated the facts. To a large extent the contravention in this case depended upon a comparison between the regulations and what appeared on labels and warnings on articles. The dispute between the parties had in many instances depended largely upon whether words and warnings upon items for sale contravened the regulations when properly construed. There was otherwise no substantive dispute between the parties about the primary evidence upon which most of the contraventions depended and there was no real contest in the proceeding about the credit or the credibility of witnesses. The contraventions in the agreed statement of facts were also supplemented by handing to the Court copies of the regulations which had to be complied with and providing also a significant number of examples of the contravening items from which the fact and extent of contravention could be ascertained. Mr Anderson was also available during the course of the hearing and gave oral testimony about his personal circumstances and remorse. Some of the evidence was explored by the Court with counsel appearing for the parties. 6 The declarations sought concern contraventions in the sale and supply by Nightingale of consumer goods and the involvement of Mr Anderson in Nightingale's conduct. Nightingale carried on business as a wholesaler and retailer of a large variety of goods through an internet website and a store located in Altona North in the State of Victoria. Mr Anderson was Nightingale's sole director and secretary and effectively held all of the shares in Nightingale through control of its corporate shareholder Omaday Pty Ltd. Mr Anderson was the person ultimately responsible to select, order, purchase, authorise and approve the goods to be supplied by Nightingale in carrying on both its wholesale and its retail businesses. He was actively engaged in controlling and conducting those businesses. 7 Nightingale sold approximately 100,000 product lines during the relevant time in which eight were identified by the inspectors of Consumer Affairs Victoria as contravening relevant consumer law provisions. The eight products were miniature motorbikes, trolley jacks, car jacks, vehicle support stands, sunglasses, elastic luggage straps, aquatic toys and portable swimming pools. 8 The first three declarations sought by the Director concerns the miniature motorbikes sold by Nightingale in contravention of a ban order declared on 1 February 2011 under Consumer Protection Notice No. 14 of 2011 revised on 16 August 2011 under Consumer Protection Notice No. 24 of 2011. The facts agreed between the parties included agreement that miniature motorbikes of the kind acquired and sold by Nightingale can cause serious injury if they lack safety features or are ridden illegally on roads. In about March 2014 Mr Anderson ordered and purchased six miniature motorbikes described as "pocket bikes with an engine capacity of 49cc" from Big Aussie Deals Pty Ltd. Two of those miniature motorbikes were seized together with other goods by officers of Consumer Affairs Victoria on 29 April 2014. The other four miniature motorbikes had been sold to members of the public. 9 The miniature motorbikes seized from Nightingale's premises on 29 April 2014 did not comply with the Particulars of Goods of the ban applicable to miniature motorbikes which covered those which had acquired by Nightingale for sale of which four were seized on 29 April 2014. Paragraph 2 of the Particulars of Goods of the ban order applicable to the miniature motorbikes stated: 2 Braking System (a) A motorbike must have a braking system capable of acting on the front and rear wheels; (b) Unless the motorbike is fitted with a drum type braking system, the braking system must incorporate a floating or sliding type brake calliper that compensates for any increased movement of its components arising from wear; and (c) The braking system must automatically distribute the braking effort applied by a person riding the motorbike to the braking system's control leaver equally onto each brake lining without the need for an adjuster at the brake calliper. Clause 2(b) required that the miniature motorbikes have the relevant braking system incorporated as part of the calliper. The parties agreed that the miniature motorbikes seized from Nightingale's premises had a manually adjusted cable that compensated for the increased movement caused by the wear of components but that it was not a part of the calliper. The calliper, therefore, did not compensate for the increased movement of its component parts arising from wear as required by clause 2(b) of the ban order. 10 The next three declarations sought by the Director concern trolley jacks acquired for sale by Nightingale. In late July 2013 Mr Anderson ordered and purchased for sale by Nightingale a number of trolley jacks. A trolley jack is a device designed to raise part of a vehicle by the vehicle's chassis, and if used incorrectly can lead to serious injury or death. The relevant mandatory standard covers a variety of requirements for trolley jacks including design, construction, performance and labelling. Twenty-four articles of five different models were seized from Nightingale's premises on 29 April 2014 being models numbered TJ-9160, TJ-9161, TJ-9162, TJ-9163 and NSI-2200. Each of the trolley jacks were found not to comply with the safety standard imposed under Consumer Protection Safety Standard No. 10 of 2008. Clause 7.1 of the that standard provided: The hydraulic trolley jack shall be permanently and legibly marked in English with the following: (a) The nominated capacity stated as 'Working Load Limit . . . kg'. (b) A warning notice bearing the words as shown in Figure 2 in letters not less than 5 mm high on a contrasting background. (c) Clear and necessary operating instructions for the hydraulic trolley jack as follows: (i) The unlifted wheels of the vehicle should be chocked. (ii) The load should be centrally located on the head cap. (iii) No person should remain in a vehicle that is being lifted. (iv) The vehicle manufacturer owner's manual should be consulted prior to the lifting of the vehicle. (v) The hydraulic trolley jack should be used for lifting and lowering only. (d) A statement specifying the correct hydraulic fluid for use with the hydraulic trolley jack and a requirement that it be kept at the recommended level. (e) Name and address in Australia or New Zealand of the manufacturer, importer or other supplier of the hydraulic trolley jack. (f) The manufacturing batch identification. Notes: 1 A permanent marking is one that cannot be removed without the use of a tool such as a screwdriver or scraper. 2 A label which has a surface that can absorb grease is not suitable. 3 Plastic labels complying with AS 2581 may be suitable. The trolley jacks did not comply with these requirements in a number of respects. All of the trolley jacks were hydraulic trolley jacks and had some form of warning notice or label attached to them. The warning notices or labels of three of the models (TJ-9160, TJ-9161 and TJ-9162), however, did not comply with the requirements in clauses 7.1(b) and (f) because they did not contain the words "and be free to roll during lifting and lowering" as shown in figure 2, and did not contain details of the manufacturing batch identification. Another of the models (TJ-9161) did not comply with the requirements of clauses 7.1(b) and (f) because they did not contain the warning prescribed as set out in figure 2 and did not contain details of the manufacturing batch identification. The warning notices or labels attached to model NSI-2200 did not comply with the requirements of clause 7.1 because they did not contain the words "Working Load Limit" as prescribed by 7.1(a), the words "the unlifted wheels of the vehicle should be chocked" as prescribed by clause 7.1(c)(i), the words "the load should be centrally located on the head cap" as prescribed by clause 7.1(c)(ii), the words "no person should remain in a vehicle that is being lifted" as prescribed by 7.1(c)(iii), the words "the hydraulic trolley jack should be used for lifting and lowering only" as prescribed by 7.1(c)(v), the words identifying the correct hydraulic fluid for use in the hydraulic trolley jack and a requirement that it be kept at the recommended level as prescribed in clause 7.1(d), the name and address in Australia or New Zealand of the manufacturer, importer or other supplier of the hydraulic trolley jack, as prescribed in clause 7.1(e), and details of the manufacturing batch identification as prescribed in clause 7.1(f). 11 The next three declarations sought by the Director concern car jacks which Nightingale had for sale. Twenty-three car jacks were seized from Nightingale's premises on 29 April 2014 which Nightingale offered for sale through its premises and its website. Nightingale had ordered and purchased at least 44 car jacks between mid-September 2013 and 29 April 2014. A car jack is a device designed to raise a vehicle and can cause injury or death if an unsafe car jack is used or is used inappropriately. Safety standards are imposed in respect of car jacks under s 104 of the ACL by Consumer Protection Safety Standard No. 1 of 2010. All of the car jacks seized on 29 April 2014 were hydraulic vehicle jacks that were required to comply with clause 7.1.1.4 of the car jacks standard which stated: In addition to the general requirements of Clause 7.1.1.1, hydraulic jacks shall be permanently and legibly marked with a statement specifying the correct hydraulic fluid for use with the jack and a requirement that it be kept at the recommended level. None of the 23 car jacks seized on 29 April 2014 complied with the requirements of this clause because they did not contain a statement specifying the correct hydraulic fluid in the car jack. 12 The next three declarations sought by the Director concern vehicle support stands which Nightingale had for sale. Thirty-five vehicle support stands were seized from Nightingale's premises on 29 April 2014. Raising and supporting a motor vehicle with a vehicle support stand can be hazardous because of the weight of the vehicle and its lack of stability when raised. Injury and death can occur if an unsafe vehicle support stand is used or if a vehicle support stand is used inappropriately. Consumer Protection Safety Standard No. 12 of 2008 applies to vehicle support stands and by clause 8 provides: 8 MARKING Each vehicle support stand shall be permanently and legibly marked in English with the following or words to the same effect: (a) Name and address of the manufacturer, importer or other supplier of the vehicle stand. (b) The nominated capacity stated as 'Working Load Limit . . . kg'. (c) The maximum working height, in millimetres. (d) Clear and adequate operating instructions. (e) A warning notice stated as follows: WARNING: USE ONLY IN PAIRS AND ON HARD LEVEL SURFACES (e.g. CONCRETE), ENSURING THE STAND IS POSITIONED UNDER A SOLID PORTION OF THE VEHICLE AND THAT THE LOCKING MECHANISM IS FULLY ENGAGED. (f) The manufacturing batch identification. All of the vehicle support stands seized on 29 April 2014 had some form of warning notice or label attached to them but they did not comply with the requirements of the standard because the warning labels or notices did not contain: (a) the name and address of the manufacturer, importer or other supplier of the vehicle support stand as prescribed by clause 8(a); (b) the nominated capacity of the vehicle support stand stated as "working load limit…kg" as prescribed by clause 8(b); (c) details of the maximum working height in millimetres as prescribed by clause 8(c); and (d) details of the manufacturing batch identification as prescribed by clause 8(f). 13 Clause 9 of the vehicle support standard also required certain information to be clearly marked on the packaging. Clause 9 of the standard provided: 9 PACKAGING If the vehicle support stands are packaged, the following information should be clearly marked on the packaging: (a) The 'height lowered' being the height of the engagement head, in millimetres; (b) The 'height raised' being the maximum height of the engagement head, in millimetres; (c) The nominated capacity stated as 'Working Load Limit . . . kg'. NOTE: Manufacturers making a statement of compliance with the Australian/New Zealand standard on a product, packaging, or promotional material related to that product are advised to ensure that such compliance is capable of being verified. The packaging of the vehicle support stands were agreed between the parties to be in lacking clear marking of details of the height lowered and the height raised as required by clauses 9(1) and (b) respectively. 14 The next three declarations sought by the Director concern sunglasses which Nightingale had for sale. Officers from Consumer Affairs Victoria seized 1,598 pairs of sunglasses on 29 April 2014 which had been ordered and purchased in 2009 by Mr Anderson from The Mad Russian Pty Ltd for sale by Nightingale. Sunglasses are used to protect the eyes from high levels of exposure to sunlight which can cause serious eye injury. Consumer Protection Safety Standard No. 13 of 2003 was applicable to the sunglasses seized from Nightingale. The parties agreed that the sunglasses did not comply with the requirements in clauses 4.1.1 and 4.2.1 of the sunglasses safety standard. Clause 4.1 prescribed the information to be supplied in relation to sunglasses and clause 4.2 dealt with the method of marking and labelling. Clauses 4.1.1 and 4.2.1 provided: 4.1.1 All assembled sunglasses and individual sunglass lenses The following information shall be supplied with every pair of assembled sunglasses and with individual sunglass lenses: (a) Identification of manufacturer or supplier. (b) Lens category number and description in accordance with Table 4. For photochromatic lenses both lens categories shall be named and described. (c) Number of this Standard, AS/NZS 1067. […] 4.2.1 Form of labelling The information required shall be supplied in the form of an indelible marking on the sunglass frame, a removable label affixed to the lens, or a removable label securely attached or tied to the frame, or any combination of these means. Table 4 contained four columns dealing with each of five lens categories applicable to the sunglasses identified and whether, and if so what, additional information and symbols were required in respect of each category. Table 4 was as follows: Some of the sunglasses seized on 29 April 2014 had plastic labels attached to their lenses or swing tags attached to the frames of the sunglasses but some had no labels or swing tags attached to them. However, none of the sunglasses had any form of the labelling required by clause 4.2.1 of information sufficient to identify the manufacturer or supplier of the sunglasses or the lens category and description in accordance with Table 4. 15 The next three declarations sought by the Director concern elastic luggage straps which Nightingale had for sale. One hundred and ninety-nine sets or packs of elastic luggage straps were seized from Nightingale's premises on 29 April 2014. Mr Anderson had ordered and purchased 1,400 sets or packs of elastic luggage straps around 2009 for sale by Nightingale. Elastic luggage straps can be dangerous products if used inappropriately. The most commonly reported injuries from elastic luggage straps are to the eyes. Such injuries can occur where straps are stretched beyond their capacity causing the strap to unhook and to spring back at the user at a high speed. Regulation 11C of the Trade Practices (Consumer Product Safety Standard) Regulations 1979 (Cth) applies to elastic luggage straps and requires that they have permanently affixed labels or notices bearing prescribed safety warnings. Regulation 11C(3), (4) and (5) provides: (3) Elastic luggage straps must have permanently attached to them a label bearing the following warning: WARNING. Avoid eye injury. DO NOT overstretch. ALWAYS keep face and body out of recoil path. DO NOT use when strap has visible signs of wear or damage. (4) The label must: (a) bear the word 'warning' in upper case black letters and not less than 4 millimetres in height on a yellow background; and (b) bear the words 'do not' and 'always' in upper case black letters of not less than 2 millimetres in height on a yellow background; and (c) bear the remaining words in lower case black letters of not less than 2 millimetres in height on a yellow background. (5) The label must be clearly displayed. Only some of the elastic luggage straps seized on 29 April 2014 had labels containing a form of warning notice or statement attached to them. However, none displayed clearly the warning in the form prescribed by regulation 11C(3) and in the manner prescribed by regulations 11C(4) and (5). 16 The next three declarations sought by the Director concern aquatic toys which Nightingale had for sale. Floatation and aquatic toys come in various shapes, sizes and materials and are popular with children for playing in water. Floatation toys can also help children stay afloat while they play in water. Four aquatic toys were seized on 29 April 2014. The four aquatic toys seized were doughnut shaped rings which had been purchased with other aquatic toys by Mr Anderson in about March 2014 from Wattletree Services Pty Ltd for sale by Nightingale. Consumer Protection Notice No. 2 of 2009 imposed safety standards to be complied with in relation to the sale and supply of floatation toys and aquatic toys applicable to the four seized from Nightingale's premises. Clause 4.19 provided that aquatic toys "shall carry a warning in accordance with B.2.6" which provides: Aquatic toys should carry a statement that it is not a life-saving device, followed by a warning that the toy should only be used in shallow water and under supervision. Some of the aquatic toys contained a form of warning printed on them, but none had a warning printed on them displaying clearly the warning in the form and the manner prescribed by clause B.2.6. 17 The last three declarations sought by the Director against Nightingale concern portable swimming pools which Nightingale had for sale. Forty portable swimming pools were seized from Nightingale's premises which had been ordered and purchased by Mr Anderson from Wattletree Services Pty Ltd for sale by Nightingale. Inflatable and portable pools can present a danger because they are not usually fenced and may not be completely drained when not in use. Portable pools can pose a safety risk especially for children under the age of five years and are required to be sold with labels and warnings which are displayed conspicuously to be visible to a purchaser and user. Section 7 of the Consumer Goods (Portable Swimming Pools) Safety Standard 2013 provided for warning messages on the retail packaging for portable swimming pools. Section 7(2) applied to portable swimming pools with a depth of less than 300 millimetres and required that the warning message include the following statement: WARNING! Children have drowned in portable swimming pools. Ensure active adult supervision at all times. Do not leave children unsupervised in or around the pool - keep them within arms' reach. Empty and store safely after use. Each of the 40 portable swimming pools seized were less than 300 millimetres and did contain a warning but not as required by s 7(2). 18 Section 8 of the Swimming Pool Safety Standard provided for a safety sign to be displayed on portable swimming pools. Section 8 provided: 8 Safety sign on portable swimming pools (1) For paragraph 104(2)(c) of the Australian Consumer Law, a portable swimming pool must display a safety sign. (2) The safety sign is: Note The safety sign is WSM002, included in both the International Organization for Standardization standard ISO 20712-1:2008 Water safety signs and beach safety flag - Part 1: Specifications for water safety signs used in workplaces and public areas and Australian/New Zealand Standard AS/NZS 2416.1:2010 (incorporating amendment No. 1) Water safety signs and beach safety flags Part 1: Specifications for water safety signs used in workplaces and public areas (ISO 20712-1:2008,MOD). (3) The safety sign must be: (a) not less than 40 mm in diameter; and (b) in blue and white colours, as depicted in subsection (2); and (c) permanently printed or embossed on the portable swimming pool, on a background that provides a distinct contrast to the colour of the background of the safety sign; and (d) placed next to the warning message. (4) The safety sign must not be distorted. Some of the portable swimming pools had warnings printed on them but none displayed the sign prescribed by s 8(2) above or in the manner prescribed by s 8(3) and (4). 19 It is appropriate for the declaratory orders sought to be made by the Court on the foregoing contraventions. In Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2006] FCA 1730, Nicholson J said at [6]: 6 So far as concerns the declarations against each of the respondents proposed in the Minute of Consent Orders, I consider they are within s 21 of the Federal Court of Australia Act 1976 (Cth) and appropriate for the following reasons. They: 1. are an appropriate vehicle to record the Court's disapproval of the contravening conduct (Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1993) 41 FCR 89 at 100; Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309 at [36] (Chen 132 FCR)); 2. serve to vindicate the Commission's claim that the respondents contravened the Act (Australian Competition and Consumer Commission v Goldy Motors (2000) 23 ATPR 41-801 at [34] (Goldy Motors 23 ATPR)); 3. are of some assistance to the Commission in the future in carrying out the duties which are conferred upon it by the Act (Goldy Motors 23 ATPR at [34]); 4. are of assistance in clarifying the law (Goldy Motors 23 ATPR at [34]; Australian Competition and Consumer Commission v. Chaste Corporation Pty Ltd (in liq) [2005] FCA 1212 at [146]); 5. may inform consumers of the dangers arising from a respondent's contravening conduct (Chen 132 FCR at [48]); and 6. may deter corporations from contravening the Act (Australian Competition and Consumer Commission v. Midland Brick Co Pty Ltd (2004) 207 ALR 329 at [22]). The declarations sought in this case give effect to the finding of breaches of the relevant provisions on the facts before the Court. The Director seeks the 24 declaratory orders of contravention by Nightingale and also two declaratory orders that Mr Anderson was directly or indirectly knowingly concerned in and a party to or otherwise involved in those contraventions contrary to the provisions of the ACL or the 2012 Victorian Act. Nightingale is found to have breached the provisions referred to above and Mr Anderson is culpably responsible in these breaches. He was directly and knowingly concerned in and a party to the contraventions and was otherwise involved in them. Declaratory orders are an appropriate vehicle to record the Court's disapproval of the contravening conduct and to vindicate the regulator's claim of contravention in addition to providing some assistance to the regulator in carrying out the duties conferred by law into the future. The fact of declarations assist to inform consumers of the dangers arising from contravening conduct of the kind established against Nightingale and Mr Anderson and assist in deterring persons from contravening the legislation in the future. 20 It is also appropriate to make the orders for the destruction of the goods seized on 29 April 2014. The goods do not comply with the relevant provisions for their sale and safe use and have no purpose beyond their use as evidence of contraventions in this proceeding. An order for the destruction and disposal of the non-compliant goods may be made pursuant to s 232(6)(d) of the ACL which specifically provides that the Court may grant an injunction to "destroy or dispose of goods". It is appropriate for an order of that kind to be made in respect of these goods because they have the potential to cause harm and pose a health or safety risk to the community and should be removed from the community permanently. 21 The Director also seeks and order by consent for the payment of a pecuniary penalty of $60,000 by Nightingale Electrics. The Director is empowered to commence proceedings for the recovery, on behalf of the State of Victoria, of a pecuniary penalty under s 228 of the ACL by reason of s 7 of the 2012 Victorian Act. Section 224(1) of the ACL empowers the Court to order a person to pay a pecuniary penalty where it is satisfied that a person has contravened any of the specified provisions or has been involved in a contravention of such a provision. Section 224(4) provides, however, that a person is not liable to more than one pecuniary penalty in respect of the same conduct. The contraventions by Nightingale are found to be of s 106(1), (2) and (3) and of s 118(1), (2) and (3). Section 224 of the ACL sets out a table with the applicable maximum penalties that may be imposed for each act or omission to which the section applies. The maximum pecuniary penalty applicable for each admitted contravention by a body corporate is $1.1 million. The parties, however, have jointly submitted that a pecuniary penalty on Nightingale in a global sum of $60,000 is appropriate. 22 It is appropriate to take into account the agreed penalties submissions in the process of the Court itself determining the appropriate penalty to impose. In Commonwealth v Director Fair Work Building Industry Inspectorate (2015) 326 ALR 476 the majority said at [46]: …Middleton J and McKerracher J were correct in their view that there is an important public policy involved in promoting predictability of outcome in civil penalty proceedings and that the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers. As was recognised in Allied Mills and authoritatively determined in NW Frozen Foods, such predictability of outcome encourages corporations to acknowledge contraventions, which, in turn, assists in avoiding lengthy and complex litigation and thus tends to free the courts to deal with other matters and to free investigating officers to turn to other areas of investigation that await their attention. At [58] the majority said: Possibly, there are exceptions to the general rule. There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty. To do so is no different in principle or practice from approving an infant's compromise, a custody or property compromise, a group proceeding settlement or a scheme of arrangement. (footnotes omitted; emphasis in original) The Court, however, is not bound to accept the agreed amount and should not do so if it is not satisfied that the sum is appropriate. 23 The process of determining the appropriate penalty is not to be embarked by commencing with the maximum penalty and proceeding to make reductions or discounts from the maximum amount that could be imposed. The Full Court said in Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 at [43]: 43 It is incorrect to commence with the maximum penalty and engage in a ratcheting down exercise. The process to be applied in arriving at a particular penalty figure was considered in the context of criminal sentencing by the High Court in Markarian. This process provides, by analogy and with adjustment, guidance as to how the Court should approach the assessment of pecuniary penalties in the present context. In Markarian, Gleeson CJ, Gummow, Hayne and Callinan JJ held the following: (a) Assessment of the appropriate penalty is a discretionary judgment based on all relevant factors (at [27]); (b) It will rarely be appropriate to start with the maximum penalty and to proceed by making a proportional deduction from that maximum (at [31]); (c) The Court should not adopt a mathematical approach of increments or decrements from a predetermined range, or assign specific numerical or proportionate value to the various relevant factors (at [37] citing Wong v The Queen at 611 and 612 per Gaudron, Gummow and Hayne JJ); (d) It is not appropriate to determine an "objective" penalty and then adjust it by some mathematical value given to one or more factors such as a plea of guilty or assistance to authorities; and (e) The Court "may not add and subtract item by item from some apparently subliminally derived figure" to determine the penalty to be imposed (at [39]). Section 224(2) of the ACL requires the Court to have regard to "all relevant matters" in determining the appropriate pecuniary penalty including, but not limited to, (a) the nature and extent of the act of omission and of any loss or damage suffered as a result of the act or omission, (b) the circumstances in which the act or omission took place, and (c) whether the person has previously been found by a court to have engaged in similar conduct. 24 The factors relevant to the imposition of a civil penalty under the former s 76 of the Trade Practices Act 1974 (Cth) for contraventions of the restrictive trade practices provisions have generally been regarded as relevant and applicable to a consideration of the penalties to be imposed for contraventions of the Australian Consumer Law: Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352, [88]-[92], 23-29; Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 2) [2012] FCA 535, [92]; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629, 58-62; Australian Competition and Consumer Commission v Apple Pty Ltd [2012] FCA 646, [16]-[22]. The factors which the parties jointly submitted come within the expression "all relevant matters" for present purposes was said to include all of the following: (a) The nature and extent of the contravening conduct (including the period over which it extended); (b) Any loss or damage suffered; (c) The circumstances in which the contravening conduct took place; (d) Whether the person has previously been found by the Court to have engaged in similar conduct; (e) The degree of deliberateness or carelessness involved (including whether the conduct was systematic or covert; (f) The size of the contravener (including the contravener's position of influence and importance in its industry sector); (g) The financial position of the contravener; (h) Any profit made from the contravening conduct; (i) Whether the contravention arose out of the conduct of senior management of the contravener or at a lower level; (j) Whether the contravener's business has a culture conducive to compliance with the Australian Consumer Law; (k) Whether the contravener co-operated with the relevant authority's investigation and including the contravener's approach to defending the proceeding; and (l) The views and submissions of the relevant authority responsible for enforcement of the law. 25 The contravening conduct in this case flowed from a failure by Nightingale and Mr Anderson to have in place a safety compliance program. The nature of the contravention which followed was the acquisition, possession, offer and sale of goods which Nightingale would not have had if it had put in place a compliance program which would have detected contravening goods. Nightingale had previously been involved in proceedings initiated against it by the then Director of Consumer Affairs Victoria, and on 5 July 2007 Nightingale had been found to have contravened s 44 of the former Fair Trading Act 1999 (Vic) and was ordered by Cavanough J to put in place a product safety compliance program designed to ensure that Nightingale would not supply goods in contravention of any permanent ban order pursuant to ss 35 and 40 of the Fair Trading Act 1999 (Vic) or which did not comply with any prescribed safety standard. Mr Anderson had not been a party to that proceeding although he was the sole director of Nightingale at all times relevant through the course of the Supreme Court proceedings. It was not contended in this proceeding that there had been any breach of the 2007 order of the Supreme Court, but it is reasonable to infer that the experience of the 2007 Supreme Court proceedings ought to have put Nightingale and Mr Anderson on notice of the risks of not having in place a comprehensive product safety compliance program. They ought at least to have been more conscious of the need to have in place that which would have ensured compliance with their legal obligations. On the other hand in November 2014 Nightingale did engage an expert to put in place, and did put in place, a comprehensive product safety compliance program suitable for a small company. This was done in consultation with the Director's staff and alleviated the Director's concern about the ongoing risk of compliance. Nightingale also agreed to an order made by this Court on 12 December 2014 for a public warning notice which was published in December 2014. 26 The nature and extent of the contravening conduct was the supply, offer to supply, and possession for those purposes, of non-compliant goods extending from 1 January 2011 in respect of some of the non-compliant goods until 29 April 2014, but there is no evidence of any actual loss or damage suffered by the contraventions although the supply did expose the purchasers or third parties to potential injury. The contravening conduct was deliberate and not accidental but the possession, offer for supply and supply of the non-compliant goods, was not with the intention of possessing, offering for supply or supplying contravening goods. It is also relevant to note that the contraventions were in most cases of having inadequate, rather than no, labels, notices and warnings. The contraventions were not of a flagrant disregard of an obligation to have labels, notices and warnings or of selling goods without them, but of a failure to ensure strict compliance. That does not excuse the contraventions but the penalty should reflect the contraventions themselves and not assume that they were of the most egregious or flagrant kind. Similarly, the contravention concerning the brake systems on the miniature motorbike was not one that could be detected by a visual inspection and might only be identified by an expert or technical investigation. That also does not excuse the conduct but describes the nature and extent of the contraventions flowing from an absence of an appropriate compliance programme. 27 The size of the corporation is a relevant factor in determining the amount of penalty. Nightingale is a small company which had been conducting a relatively small business. The business had been started by Mr Anderson's father and was always conducted as a small business until its sale in an arms' length transaction for $2.2 million. The object of a pecuniary penalty is both specific and general deterrence: Australian Competition and Consumer Commission v Renegade Gas Pty Ltd (trading as Super Gas NSW) [2014] FCA 1135 at [79]; NW Frozen Foods v Australian Competition & Consumer Commission (1996) 71 FCR 285, 294-5. A penalty that would deter a small company might have little effect on a very large one whilst the size of a penalty needed to deter a large company might be oppressive if imposed upon a small one. In Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330, Allsop CJ said at [92]: These authorities make it clear that Coles' financial resources do not alone justify a higher penalty than might otherwise be imposed. However, they are clearly relevant to considering the size of the penalty required to achieve the end of specific deterrence and can be weighed against the need to impose a sum which will be recognised by the public as significant and proportionate to the seriousness of the contravention for the purposes of achieving general deterrence. Further, the resources of Coles are relevant to understanding whether it can pay (and not be crushed by) an appropriate penalty, especially when one takes account of revenue earned by products sold using the impugned phrases. The size and financial position of Nightingale is relatively small. The total value of all goods acquired by Nightingale for resale as disclosed to the Director was $6,134,661 for the 2012 financial year and $4,923,523 in the 2013 financial year. The gross value of sales of goods sold by Nightingale in those years was $7,715,832 and $7,610,573 respectively. It had an average of 11 full time employees during the period 1 January 2013 to 30 April 2014 with a wages bill over $416,000. The business was sold in May 2015 for $2.2 million to an arms' length third party. Any penalty to be imposed upon Nightingale is likely to be borne by Mr Anderson who is now retired and not in good health. 28 The profit from the contravening conduct was also relatively modest. The non-compliant goods were acquired by Nightingale for resale at an average mark up of between 30% to 40%. The miniature motorbikes were acquired for $200 per unit. The trolley jacks were acquired for between $33.62 and $170 per unit (depending upon capacity), the car jacks for between $16.75 and $52.50 (depending upon capacity), the vehicle support stands for between $27 and $46, the elastic luggage straps for between $6 and $6.23 per pack of 10 or 25 respectively, and the aquatic toys and portable swimming pools for $5,000 in total. There was no evidence before the Court of the cost of the sunglasses but it can be inferred that their cost would not have been substantial relative to the other amounts. 29 The level of management involved in the contravening conduct by Nightingale was restricted to Mr Anderson. Mr Anderson co-operated in his examination under s 126 of the 2012 Victorian Act conducted as part of the Director's investigation. The Director accepts that Nightingale complied with the statutory notice served on it as part of the Director's investigation by providing the information sought and by producing the documents required. Nightingale also agreed to an order for a public warning notice which was published in December 2014 at a cost to Nightingale of $62,290.90 in advertising costs. Nightingale agreed to the Director's request to offer refunds to any purchasers for the non-compliant goods returned. 30 Mr Anderson has acknowledged that the eight product lines did not comply with necessary safety provisions and has expressed his regret that that was the case. The Director accepts that there is now no future risk of product safety contraventions by Nightingale because its business has been sold to an arms' length third party and that Mr Anderson is now retired and suffering from significant ill-health. It is accepted as an agreed fact that Mr Anderson has been deeply affected by the proceedings and that his intention had always been to sell good quality and safe goods. He has now retired and remains a director of Nightingale but only as a vehicle through which he manages his personal finances. He inherited the business from his father and has no living relatives. His treating general medical practitioner has reported that Mr Anderson has a heart and lung condition that requires him to attend specialists. Mr Anderson's physical attendance in Court confirmed the facts in the agreed statement that Mr Anderson is not in good health and that he regretted the contravening conduct. 31 It is also relevant that the course adopted by Nightingale and Mr Anderson of agreeing facts and joining in submissions has resulted in a significant saving of time and costs to the Director and to the Court. The proceeding had been listed for a five day trial with a possible two days in reserve. The agreement reached with the Director enabled the latter to achieve most of his public interest objectives of the proceeding and to use the savings from avoiding a fully contested hearing for the pursuit of other matters which also raised public interest concerns. 32 The penalty imposed on Nightingale will ultimately and effectively be borne by Mr Anderson. A penalty of $60,000 would be inadequate in comparable circumstances but for the small size of the company, the age and health of Mr Anderson and the fact that there is no future risk of contravening conduct by Nightingale or Mr Anderson. In those circumstances the agreed amount of $60,000 is appropriate as the penalty to be imposed upon Nightingale. 33 The Director would ordinarily be entitled to costs in the proceeding and will be awarded the agreed amount. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.