The Federal Court, Perth has declared by consent that TWM Imports Pty Ltd breached the Trade Practices Act 1974 by supplying trolley jacks that did not comply with the prescribed consumer product safety standard relating to trolley jacks.*
The court found that the jacks failed to comply with the prescribed standard in relation to design and construction, requirements for performance, marking requirements of the jack, marking requirements of the packaging as well as the clause relating to the maintenance, safe usage, and assembly instructions that should be supplied with the jack.
The declarations followed Australian Competition and Consumer Commission action.
"The case reaffirms yet again that suppliers must strictly comply with the requirements of mandatory consumer product safety standards prescribed by the Act", ACCC Chairman, Mr Graeme Samuel, said today.
"This jack was one of the worst that we have come across, because it collapsed during testing. Mr Samuel said. "Compliance in relation to the mandatory compulsory safety standards is essential, even more so when it comes to people's lives being at risk".
In granting relief by consent between the ACCC and TWM, Justice Lee made the following orders:
- a declaration that TWM Imports had contravened the Act by supplying trolley jacks that did not comply with the prescribed consumer product safety standard relating to trolley jacks
- injunctions restraining TWM Imports for a period of five years from supplying or offering to supply trolley jacks that do not comply with the prescribed consumer product safety standard
- findings of fact
- an order that TWM Imports Pty Ltd make arrangements to collect the trolley jack from any person wishing to return the trolley jack
- an order for public notices
- an order that TWM Imports Pty Ltd implement a trade practices compliance program, independently audited and reported on, and costs.
In a related matter, ASEMA International Pty Ltd has provided court-enforceable undertakings to the ACCC after the ACCC had considered that ASEMA had engaged in misleading or deceptive conduct and falsely represented that ASEMA's testing services were of a particular standard in relation to its testing of the TWM trolley jacks which were the subject of the Federal Court proceedings.
In or around June 2003, TWM contracted ASEMA to test a trolley jack. ASEMA agreed to test the jack for compliance with Australian Standard AS/NZS 2615:1995.
Following testing, ASEMA issued a "Compliance Certificate" to TWM. The Compliance Certificate, issued by ASEMA stated amongst other things: "This Trolley Jack meets the requirements of Clause 6 – Performance of Australian Standards AS/NZS 2615:1995".
The ACCC was of the view that in issuing the Compliance Certificate to TWM, ASEMA breached sections 52 and 53(aa) of the Act.
ASEMA has given court-enforceable undertakings that it will:
- cease to use the words “compliance certificate” when issuing test certificates
- ensure that all test certificates issued will include all assumptions made and the context of the testing and
- implement and maintain a trade practices compliance program.
"The ACCC is pleased that the parties to the conduct, TWM and ASEMA, have accepted their responsibilities and have taken action to address the ACCC’s concerns", Mr Samuel. "The ACCC considers misleading or deceptive conduct very seriously, especially in this case, as consumers using the jacks could have been seriously injured or worse".
*Australian/New Zealand Standard AS/NZ 2615:1995