Effem Foods Ltd v Nicholls [2004] NSWCA 332

Effem Foods Ltd v Nicholls [2004] NSWCA 332

The statutory defences required the manufacturer to prove on the balance of probabilities that the defect occurred after the Snickers bar left its control or did not exist at the time of supply. The evidence established only that deliberate sabotage in the retailer's shop was a bare or speculative possibility. Given the absence of evidence of tampering, motive, threats, recalls or a disgruntled employee, and the need to give weight to the presumption of innocence because the alleged sabotage would be criminal, the manufacturer did not discharge its onus. The trial judge was correct to reject the defences.

Jurisdiction
Australia
Judgment Date
17 September 2004
Procedural Posture
Trade Practices Consumer Protection Product Liability Claim Under the Trade Practices Act 1974 / Application for Leave to Appeal and Appeal From District Court Judgment
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['merchantable Quality' 'defective Goods' 'statutory Defences' 'burden of Proof' 'balance of Probabilities' 'presumption Against Criminality in Civil Proceedings']
['trade Practices' 'consumer Protection' 'product Liability'] ['merchantable Quality' 'defective Goods' 'statutory Defences' 'burden of Proof' 'balance of Probabilities' 'presumption Against Criminality in Civil Proceedings']

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Procedural Posture

Trade Practices Consumer Protection Product Liability Claim Under the Trade Practices Act 1974 / Application for Leave to Appeal and Appeal From District Court Judgment

Legal Issues

  1. 1 ['Whether the manufacturer established the defence under s 74D(2)(a)(i) of the Trade Practices Act 1974 that the defect occurred by reason of an act or default of a person after the goods left its control.' 'Whether the manufacturer established the defence under s 75AK(1)(a) of the Trade Practices Act 1974 that the defect did not exist at the supply time.' "Whether proof that post-manufacture sabotage in the retailer's shop was possible was sufficient to discharge the manufacturer's onus of proof."]

Ratio Decidendi

The statutory defences required the manufacturer to prove on the balance of probabilities that the defect occurred after the Snickers bar left its control or did not exist at the time of supply. The evidence established only that deliberate sabotage in the retailer's shop was a bare or speculative possibility. Given the absence of evidence of tampering, motive, threats, recalls or a disgruntled employee, and the need to give weight to the presumption of innocence because the alleged sabotage would be criminal, the manufacturer did not discharge its onus. The trial judge was correct to reject the defences.

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['Leave to appeal granted.' 'Appellant to file a notice of appeal within 14 days if not already filed.' 'Appeal dismissed with costs.']