Section 44 — Fair Trading Act 1986: Defences

44 Defences (1) Subject to this section, it is a defence to a prosecution for an offence against section 40 of this Act if the defendant proves— (a) That the contravention was due to a reasonable mistake; or (b) That the contravention was due to reasonable reliance on information supplied by another person; or (c) That— (i) The contravention was due to the act or default of another person, or to an accident or to some other cause beyond the defendant's control; and (ii) The defendant took reasonable precautions and exercised due diligence to avoid the contravention. (2) For the purposes of subsection (1)(b) and (c) of this section, the term another person does not include— (a) A servant or agent of the defendant; or (b) Where the defendant is a body corporate, a director, servant or agent of the defendant. (3) A defendant is not, without the leave of the District Court, entitled to rely on the defence provided by subsection (1)(b) of this section that the contravention was due to reasonable reliance on information supplied by another person, or by subsection (1)(c)(i) of this section that the contravention was due to the act or default of another person, unless the defendant has, not later than 7 days before the date on which the hearing of the proceedings commences, served on the informant a notice in writing identifying that person. (4) It is a defence to a prosecution for an offence against section 40 of this Act, or to any other proceedings under this Part of this Act, in relation to a contravention of a provision of this Act committed by the publication of an advertisement, if the defendant proves— (a) That the defendant's business is publishing or arranging for the publication of advertisements; and (b) That the defendant received the advertisement, or the information contained in the advertisement, as the case may be, in the ordinary course of that business and did not know and had no reason to suspect that the publication of the advertisement or the publication of the advertisement containing that information, as the case may be, would constitute a contravention of the provision. (5) Subject to subsection (6) of this section, it is a defence to a prosecution for an offence against section 40 of this Act, or to any other proceedings under this Part of this Act, in relation to a contravention of section 28 of this Act, if the defendant proves— (a) That the goods to which the proceedings relate were acquired by the defendant for the purpose of resupply from a person (not being an agent of a person outside New Zealand) who carried on in New Zealand the business of supplying such goods; and (b) That the defendant did not know, and could not with reasonable diligence have ascertained, that the goods did not comply with the consumer information standard or that the defendant had not complied with that standard in relation to the goods, as the case may be, or that the defendant relied in good faith on a representation by the person from whom the defendant acquired the goods that a consumer information standard had not been prescribed for those goods. (6) A defendant is not, without the leave of the District Court, entitled to rely on any defence provided by subsection (5) of this section unless the defendant has, not later than 7 days before the date on which the hearing of the proceedings commences, served, in the case of proceedings for an offence, on the informant, and in the case of any other proceedings, on the person commencing those proceedings, a notice in writing identifying the person by whom the goods were supplied. Compare: Trade Practices Act 1974 (Aust),

s 85(1)-(5) Subsection (5) was amended, as from 8 July 2003, by section 12 Fair Trading Amendment Act 2003 (2003 No 31) by substituting the expression “ section 28 ” for the expression “ section 27 ” . See section 16 of that Act as to proceedings already barred and pending proceedings.