Case: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: referred to
is likely to mislead or deceive if there is a real and not a remote possibility of it doing so. The person in receipt of the representation must labour under some error: Taco at 200 . In reaching such a conclusion, it is appropriate to ignore assumptions that a member of the public may make which are extreme or fanciful. It is necessary to consider the likely reaction to the representations by ordinary or reasonable members of the class of persons to whom the representation is directed: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 ( Campomar ). In Parkdale it was made plain that, in assessing objectively the effect of a representation, there may be more than one reasonable response in any given circumstance. It is necessary to have regard to the personal capacity and experience of different people, acting reasonably. In Campomar at 87, the High Court said: The initial question which must be determined is whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers. The relevant section of the public must therefore be identified, and the context in which the representation was made must be considered. Whilst all persons must be considered, conduct must be tested against ordinary or reasonable members of the class and not those whose approach to the communication is fanciful or extreme: Campomar at 86-7. The question is therefore whether there is a class of persons who are likely to have received an ACF Notice (for it was not suggested by the Council that persons who had not received an ACF Notice might be misled by such a notice) and who reasonably understood that it was issued or authorised by the Council; or that ACF was associated or affiliated with the Council; or that the notice was issued for recovery of a fine, expiation fee or other penalty imposed by law; or that ACF was authorised by law to recover a fine, expiation fee or other penalty imposed by law; or finally that the claim in the ACF Notice was not in respect of a claimed contractual debt. It is plain enough, also from Campomar at [106], that it is not sufficient for the conduct to cause confusion for it to be misleading or deceptive. That is not a sufficient level of error on which to base a finding that s 52 has been breached. The question is whether a class of the potential target audience, approaching the communication reasonably, would be likely to be misled or deceived: see Taco at 181 ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88. There is some debate about whether the relevant class must be "significant" in number. I do not need to explore that because, as appears below, I find that the relevant class was significant in number. Of course, any notice by ACF based upon breach of Park Fast's parking conditions necessarily had certain content. But there is no good reason offered for why the name Adelaide City Fines was chosen, as I do not accept Mr Lester's explanation for why it was chosen. There is no monopoly in the words Adelaide City. But here, ACF or its promoters selected a name which had those words and a descriptive noun in its name which carries particular connotations, but did so to enter a field of activity in which the Council for many years had carried on the function of imposing fines by its Expiation Notices: cf Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37. The general layout and presentation of the first ACF Notice reflects closely that of the first Expiation Notice. It did not need to do so. The earlier draft document, contrary to Mr Lester's evidence, clearly was prepared by adopting the first Expiation Notice and I infer that the first ACF Notice evolved from that draft. There is no other explanation for the choice of the general layout and presentation of the first ACF Notice. Consequently, that intention supports an inference that it was effectuated so as to lead to the contravention alleged: see Campomar at [33]; Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 per Gummow J at 394; Telmak Teleproducts (Australia) Pty Ltd v Coles Myer Ltd [1989] FCA 272 ; (1989) 89 ALR 48 at 69; Apand Pty Ltd v The Kettle Chip Company Pty Ltd (1994) 52 FCR 474 at 496. Indeed, in Nylex Corp Ltd v Sabco Ltd (1987) ATPR 40-752 at 48,179 Woodward J said where there is clear evidence of an intention to deceive, a court will readily find a breach of s 52 of the TP Act.