Cable makers didn’t violate consumer law, judge says
Consumer Goods June 22, 2018 11:38 am By Cat Fredenburgh | Melbourne

A judge has found the Australian Cablemakers Association did not violate the consumer laws when it sent letters to several Ministers complaining that an electrical cable supplied by Midland Metals was unsafe.

In a June 21 judgment, Justice Robert McDougall dismissed the case brought by Singapore-based cable manufacturer Midland Metals alleging the ACA engaged in misleading or deceptive conduct when then-Chairman Frederick Persson from Prysmian Power Cables sent letters to all the Ministers responsible for electrical safety regulation in their state claiming Midland’s aerial bundled cable was unsafe and didn’t meet Australian and New Zealand standards. The ACA called on the Ministers to investigate the matter.

The judge said that even if the claims in the letter were misleading or deceptive, they could not have led the Ministers into error because they would have sought advice from staff, who would have consulted with the local electricity regulator.

“Thus, even if the letter had made all the representations that Midland says it did, and even if they were all misleading or deceptive, it is unlikely in the extreme that the letter by itself could have led a Minister into error. The overwhelming probability is that, as happened, the Minister would seek advice upon the letter,” Judge McDougall said.

The judge said the claims in the letters had overstated the evidence in the full report that was attached to the letter, providing further evidence that the Ministers would not have been led into error when looking at the total context in which the letter would have been received.

The ACA, which represents Australian cable manufacturers, started an initiative to test products to ensure their safety. As part of that, ACA member Prysmian tested the Midland cable to see how well it would withstand heat during a bushfire.

In the letter, the ACA said Midland’s cable’s had failed to meet a standard used to test how well a cable would survive during a bushfire, saying that during the test the cable “was not only found to fall but also dripped molten polymer from the cable potentially adding to the burning fuel in a bushfire situation.”

Midland’s counsel, Bernard Coles QC, argued that the letter made a number of misleading representations, including that its cable failed to comply with the heat radiation test, was unsafe, should not be used without further investigation and contributed to the risk of bushfire.

Queens Counsel for Midland said the representations could not be sustained because the tests had not been performed properly. He also said it was absurd to suggest that in a bushfire intense enough to melt the polymer coating of a cable, the added fuel load caused by the molten polymer dropping to the ground would intensify the fire.

Midland sought declaratory relief and an injunction. It did not seek damages.

Midland was represented by Bernard Coles QC with University Chambers, PB Walsh with Owen Dixon Chambers, and solicitors with Church & Grace Solicitors.

The ABA was represented by Michael Izzo with Eleven Wentworth, Julie Granger with 7 Wentworth Selborne, and solicitors with Johnson Winter & Slattery.

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Cat Fredenburgh

Cat Fredenburgh has been covering legal news for 12 years. She was previously Editor-in-Chief at US legal news publication Law360. She is the Co-Founder of Lawyerly.