New South Wales Consolidated Acts

TRADE MEASUREMENT ACT 1989 - SECT 34

34 Defences concerning short measure

(1) It is a defence in proceedings under section 32 against a person who packs a pre-packed article if it is established that the deficiency in measurement:

(a) arose after the packing of the article and the marking of the package and was attributable wholly to factors for which reasonable allowance was made in stating the measurement marked on the package, or

(b) resulted from something that the defendant could not reasonably have foreseen or for which the defendant could not reasonably have made allowance.

(2) It is a defence in proceedings under section 32 against a person who sells a pre-packed article if it is established:

(a) that the defendant obtained the article from another person within Australia who packed the article or sold it to the defendant and the defendant identified that other person to an inspector,

(b) that the package containing the article was marked apparently as required by this Act when the defendant received it, and

(c) that the defendant sold the article in the same state as it was in when the defendant obtained it.

(3) The defence under subsection (2) is not available to a defendant in relation to the sale of a pre-packed article ( "the offending article") if:

(a) a finding by an inspector in relation to another pre-packed article sold by the defendant indicated that its sale would have been an offence under section 32 had that defence not been available,

(b) that other pre-packed article was of the same kind, and had the same measurement marked on the package, as the offending article, and

(c) the inspector informed the defendant of that finding before the sale of the offending article,

unless the defendant establishes that the offending article was not in the defendant’s possession when the defendant was informed of the inspector’s finding.

(4) It is not a defence in proceedings under section 32 merely to establish that the deficiency in measurement did not exist when the article was packed or when the package was marked.