Case: Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: cited
may be misleading or deceptive if it induces error but it is not sufficient merely to show that it may have led to confusion or caused people to wonder: Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 198 per Gibbs CJ. In the present case the representations complained of are alleged to have been made to the general public or a broad cross-section thereof. In Campomar Sociedad Limitada &amp; Anor v Nike International Limited &amp; Anor [2000] HCA 12 ; (2000) 202 CLR 45 , the High Court stated at 84-85: It is in these cases of representations to the public, of which the first appeal is one, that there enter the "ordinary" [the phrase "ordinary purchaser" was used by Mason J in Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 210] or "reasonable" [the term used by Gibbs CJ in Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 199] members of the class of prospective purchasers. Although a class of consumers may be expected to include a wide range of persons, in isolating the "ordinary" or "reasonable" members of that class, there is an objective attribution of certain characteristics. Thus, in Puxu [(1982) [1982] HCA 44 ; 149 CLR 191 at 199], Gibbs CJ determined that the legislation did not impose burdens which operated for the benefit of persons "who fail[ed] to take reasonable care of their own interests". In the same case, Mason J concluded that, whilst it was unlikely that an ordinary purchaser would notice the very slight differences in the appearance of the two items of furniture in question, nevertheless such a prospective purchaser reasonably could be expected to attempt to ascertain the brand name of the particular type of furniture on offer [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 210-211]. Where the persons in question are not identified individuals to whom a particular misrepresentation has been made or from whom a relevant fact, circumstance or proposal was withheld, but are members of a class to which the conduct in question was directed in a general sense, it is necessary to isolate by some criterion a representative member of that class. The inquiry thus is to be made with respect to this hypothetical individual why the misconception complained has arisen or is likely to arise if no injunctive relief be granted. In formulating this inquiry, the courts have had regard to what appears to be the outer limits of the purpose and scope of the statutory norm of conduct fixed by s 52 [ cf Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5 ; [1999] 2 AC 22 at 30-31]. Thus, in Puxu , Gibbs CJ observed that conduct not intended to mislead or deceive and which was engaged in "honestly and reasonably" might nevertheless contravene s 52 [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 197]. Having regard to these "heavy burdens" which the statute created, his Honour concluded that, where the effect of conduct on a class of persons, such as consumers, was in issue, the section must be "regarded as contemplating the effect of the conduct on reasonable members of the class" [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 199].