Case: I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109
Outcome: applied
In my view, the appellant's approach is a realistic one. The competing products were presented side by side to consumers. As already noted, the effect of the offending packaging was likely to induce consumers into thinking that they were getting the same product from the same source but would be saving money by not having to pay for more elaborate packaging, which they did not need. The misleading and deceptive conduct only has to be one among a number of causes which contributes to a consumer decision harmful to a plaintiff. As Gleeson CJ said in I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109 at [33] : In most business transactions resulting in financial loss there are multiple causes of the loss. The statutory purpose would be defeated if the remedy under s 82 were restricted to loss of which the contravening conduct was the sole cause. 60 While the appellant's claim is based on gross profit lost, that seems a practical measure in the circumstances of this case. It is a modest claim because it assumes that all sales lost were of the small box, which had the lowest margin. It would be an artificial exercise to attempt to calculate some proportion of that profit which represented savings of fixed costs. This case was properly brought in the Federal Magistrates Court, a jurisdiction which is expected to operate as informally as possible: Federal Magistrates Act 1999 (Cth) ss 3(2)(a) and 42 . In a case of this nature parties should not feel they have to engage forensic accountants and similar experts. 61 The appeal will be allowed and the judgment below set aside. In lieu thereof there will be judgment for the appellant against the respondents (the liability of the first respondent under s 79(1)(c) of the Trade Practices Act was not in dispute). The amount of that judgment will be $3684.20 plus appropriate interest under s 51A of the Federal Court of Australia Act 1976 (Cth). 62 There remain the questions of costs. As already mentioned, the learned Magistrate made an order for indemnity costs. The respondents had made Calderbank offers as follows: &#8226; 5 April 2006: an undertaking to cease selling products with the offending packaging &#8226; 27 April 2006: the undertaking, $3775 for costs and $1200 damages &#8226; 19 May 2006: the undertaking, $4331 for costs and $2706 damages &#8226; 2 June 2006: the undertaking, $4331 for costs and $9000 damages. (The time for compliance with this offer was extended on two occasions). 63 I direct that the appellant within seven days file written submissions as to interest and costs and that the respondent file answering submissions within seven days thereafter. I certify that the preceding sixty three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey Associate: Dated: 7 December 2007 Counsel for the Appellant: C Golvan SC Solicitors for the Appellant: Middletons Counsel for the Respondent: S Minahan Solicitors for the Respondent: F A L Lawyers Date of Hearing: 23 November 2007 Date of Judgment: 7 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1922.html