Hamlyn, E.J. v. Mark Foys Pty Ltd [1982] FCA 212

JUDGE MAKING ORDER: FRANKI J. DATE OF ORDER: 8 October 1982 WHERE MADE: Sydney. THE COURT ORDERS THAT:

1. The defendant is convicted of the offence charged.
2. The defendant is fined $1000 to be paid to the Registrar

of the Court within 28 days. 3. The defendant is to pay the prosecutor's costs except

those in relation to the motion to amend the Information

NEW SOUTH WALES DISTRICT REGISTRY) NO. G. 144 of 1982

I have decided to give an oral judgment in this matter, which may not be as detailed as a reserved judgment would have

been but which will avoid the delay which would otherwise have

These are criminal proceedings brought by an officer of the Trade Practices Commission, the prosecutor, against Mark Foy's Pty. Limited, seeking the imposition of a fine under s.79

of the Trade Practices Act 1974, ("the Act") based upon a

By Commonwealth of Australia Gazette $169 of 17 August 1981, the Minister declared certain consumer product information standards for the purpose of s.63 of the Act. The standard

prescribed was that of Australian Standard 1957-78 as approved by

the Standards Association on 24 November 1978 in relation to "Care labelling of clothing, household textiles, furnishing,

On 20 August 1981 a Mrs. Fail paid a deposit upon a dress at a store of the defendant's and paid the rest of the purchase money on 15 October 1981. The defendant is charged as a corporation which, in trade or commerce, supplied the dress which was intended to be used by Mrs. Fail, and that it, the defendants, did not comply with the prescribed consumer product

No particulars were provided prior to the hearing, but during the hearing the prosecutor indicated that she relied on the failure to label the dress appropriately in relation to washing, category B in the standard; drying, category C in the standard; and ironing, category D in the standard. No question was raised as to the validity of the prescription of the

standard. On page 3 of the standard it is stated that:

"Where appropriate a phrase from each of the washing, drying, ironing and dry-cleaning phrase categories 1s to be stated on the label".

In the section headed "Labelling" on page 4 paragraph

appropriate, adequate instructions from each of the care instruction categories B, C, D and E set out in table 1 applicable to the particular article or piece goods. Phrases of a general nature, and those indicating that a treatment 1s prohibited or that special care 1s to be taken shall be used only in conjunction with the appropriate care instructions.

Where both Jlaundering and dry-cleaning treatments are appropriate to the care of an article, the label shall carry adequate instructions for both teatments and both sets of instructions shall be given on the same side of the label.

Where appropriate care instructions are not included in table 1, other phrases may be used provided that such phrases actually describe the required care procedure."

Table 1 sets out the following categories - A. General and Warnings; B. Washing; Cc. Drying; D. Ironing; E. Dry cleaning; and F. Leather and Fur Cleaning - and prescribes in

respect of each category in the second column care instruction

and in the third column certain notes in relation to the phrases

Paragraph 4.2 on page 4 deals with what are called made-up articles, and paragraph 4.2.2. deals with the label and

"The care instructions shall be given on a permanent label, complying with the following requirements :-

(a) the label shall be accessible or examination by a prospective purchaser, or, where this 1s not possible because of the manner in which the article is

packaged, displayed or folded. The same care instructions shall be provided additionally on the package or on a

removable label or ticket attached to the article, or on a pamphlet accompanying the article.

on the appropriate care instructions in accordance with clauses 4.1 and 4.2."

With the consent of the defendant I gave leave to amend the information and no question as to its validity has arisen, but a submission was made that the minister's consent, as required by s.163(4) had not been proved. I rejected this submission and my reasons appear in the transcript.

The dress carried a label, permanently attached to it. On one side appeared the words "Mimmina, made in Italy, 73 per cent acetate - 27 per cent silk"; and on the other side, "dry- clean only, do not use chlorinated solvents". Below these words

appeared four symbols. There was evidence that these symbols are

known, at least in some countries, as representing respectively e "do not wash, do not bleach, moderate iron (150 C),maybe cleaned

Column 2 of table 1 of the standard sets out the care instructions which have to be provided on the label where it is appropriate. The label on the garment did contain a symbol which is set out in the standard, showing the form of drying cleaning which was appropriate, and also the notation "dryclean only". In

my opinion it was not necessary to mark the garment with any care

instructions in relation to washing, category (B), because it was

A notation in table 1 in relation to washing states that

the phrase "do not wash" 1s considered to be a stronger term than "dryclean only", but it is felt that "dryclean only" would be more acceptable in some cases. The evidence was that it appears that washing did not damage the dress. Certainly the label contained a symbol which meant "do not bleach" but I am not satisfied that this was necessary. In my opinion there was no failure to adequately label the garment in relation to care instructions concerning washing. In my opinion it would not be appropriate to embody any instructions in relation to category

(Cc), drying, where the goods are marked ""dryclean only".

This leaves for consideration the allegation that the goods were not appropriately marked in relation to category (D), ironing. The evidence was that Mrs. Fail ironed the dress she

purchased with a steam iron and this caused the stain.

There was evidence from a senior lecturer in textile technology, which was put before the court by the prosecutor, that "cold and hot water when spilled onto the dress caused a barely noticeable discoloration. Hand-pressing, with a steam iron, did not cause any discolouration, except when water from the iron was intentionally sprayed onto the material". There was

no evidence as to the mechanics of ironing with a steam iron, but

it was submitted by the prosecutor that category (D) required, in this case, not only a notation dealing with the temperature of the aron, but also the notation which appeared in column 2 of category (D); namely, "do not steam iron". In my opinion the evidence does not satisfy me beyond reasonable doubt that 1t was appropriate to place such an instruction upon the label. The evidence of the senior lecturer rather suggests that if a steam

iron is used in the ordinary way no damage will result.

This leads me to consider whether the label should have been marked "warm iron". There is evidence that one of the

symbols on the label had the meaning that a moderate iron up to ay

150°C could be used. The note in column 3 against the words "warm iron", 1n category (D), stated: a "For fabrics containing acetate ... 150 Cc."

The label on the dress bore the marks "73 percent acetate, 27 percent silk". The order which was placed for the dress by the defendant required that the garment should have a sewn-on label stating the country of origin and the fibre composition. The dress was tendered without objection, and in my opinion I should regard the marking on the label as being sufficient to show that

the dress was made of a fabric which contained acetate.

It seems to me therefore that the standard required that

the Label be marked with the words "warm 1ron" and that this was

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not done, although a symbol which to some people, but not to Mrs. Fail, had the same meaning was clearly marked on the label. I am

therefore satisfied that the defendant should be convicted.

I turn now to the question of penalty. This category of offence 1s one which the prosecutor accepts is the first under the Act. It seems that compliance with the prescribed standards,

at least in the case of imported goods, may involve considerable

Whilst the breach in this case cannot be adequately

described as technical only, it involved the use of a_ symbol recognized in many places instead of the words required by the standard. The defendant raised the defence provided by s.85(1) of the Act, which was in substance that the contravention was due to the default of another person and that it took reasonable precaution and exercised due diligence to avoid the contravention. Ultimately this defence was only faintly pressed

It was argued that the supplier was in breach of contract in not appropriately labelling the garment. Even if this were so, I do not think the defendant took reasonable

precautions or exercised due diligence to avoid contravention.

The maximum penalty provided by s.79 1s $50,000. It was

conceded that the defendant had not previously been convicted of

It 1s difficult to fix an appropriate penalty in a case such as this. Persons must comply with the Act no matter how

That Parliament has fixed such a high penalty indicates that it regards breaches of the Act as serious. I consider that

(1) That the defendant is convicted of the offence charged.

(2) The defendant is fined $1000 to be paid to the registrar of the court within 28 days. (3) The defendant is to pay the prosecutor's costs except in

relation to the motion to amend the information and summons.

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