Spittles v Michael's Appliance Services Pty Ltd & Ors [2008] HCATrans 304 (26 August 2008)

Last Updated: 1 September 2008

[2008] HCATrans 304

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S189 of 2008

B e t w e e n -

JAMES SPITTLES

Applicant

and

MICHAEL’S APPLIANCE SERVICES PTY LTD

First Respondent

MAYTAG (AUSTRALIA) PTY LTD

Second Respondent

AUSTMONT CATERING EQUIPMENT PTY LTD

Third Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 AUGUST 2008, AT 10.46 AM

Copyright in the High Court of Australia

MR B.W. RAYMENT, QC: May it please your Honours, I appear with my learned friend, MR R.S. McILLWAINE, SC, for the applicant. (instructed by Velleley & Associates)

MR B.W. WALKER, SC: May it please the Court, I appear with MR D.J. BARNETT for the first respondent. (instructed by Moroney Lawyers)

HAYNE J: Yes, Mr Rayment?

MR RAYMENT: Your Honours, we submit that when you have regard to the provisions of Part VA adopting, as they do by section 75AB, provisions of section 74A of the statute, which is the first part of Division 2A of the previous part, it is to be observed that a person will be deemed to have manufactured within the meaning of this statue if merely it is held out as a manufacturer by a brand or permitted its name to be used on goods by way of brand so that a person might have had nothing to do with the supply of the goods at any point of time in the chain which leads to the ultimate purchase by somebody and yet be a person who by the deeming provision is a person who is taken to have manufactured the goods and that, we submit, is of some assistance in arriving at an understanding of the meaning of the word “supply” in section 75AD when you look at that case, that is, the word must be given an extended meaning which would capture the case of such a person and that extended meaning would be something along the lines of allowing the goods to be put into commerce bearing the name of the defendant.

Similarly, in our respectful submission, when you look at the definition of “manufactured” in section 75AA extending as it does to a person who processes and a person who assembles, a similar meaning would be attributed to the word “supply” in section 75AD of putting the goods into commerce in an assembled or processed state and we submit that the Court of Appeal misled itself by looking for a particular kind of transaction which might result in an acquirer coming into possession of the goods or to particular kinds of transactions of supply of the kinds mentioned in the definitions section in the Act which of course is a general provision for the purposes of the statute and a merely inclusive definition. If anything more than to have put the goods into commerce in an altered state or assembled state is necessary, it is constituted on the facts found by the relinquishing of custody on the part of the defendant, we submit.

All of that, we submit, follows from, first, the stated purpose of the part which one finds with the heading of Part VA “Liability of manufacturers and importers for defective goods”, which is of course remedial legislation entitled to a liberal construction, and from the fact that the distinction suggested by the Court of Appeal of a case of bailment rather
than mere custody of the goods on the part of the assembler is the very kind of distinction that which was had in mind by the legislature. That leads, we submit, to inconvenience or improbability of result if that distinction affects the construction of the section.

HAYNE J: Where do you say we most conveniently find the error to which you point in the Court of Appeal’s reasons?

MR RAYMENT: It is in the various passages which we pointed to in the reply, your Honours. It is paragraphs 18 and 20 and it is paragraphs 6, 7 and 8 in the reasoning below. In effect, it has been held you need a certain kind of supply by way of sale, lease, exchange, or something closely analogous to it, whereas the section speaks more generally, in our respectful submission, in its context. It requires one to take into account the part name, the purpose of the legislation and the fact that it is remedial. Those are our submissions.

HAYNE J: Yes. Thank you, Mr Rayment. We will not trouble you, Mr Walker.

The decision of the Court of Appeal in this matter was right. Special leave to appeal is refused and will be refused with costs.

AT 10.52 AM THE MATTER WAS CONCLUDED