Case: Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: referred to
order to determine whether there has been any contravention of s 52(1) of the Trade Practices Act it is necessary to determine whether or not the conduct complained of amounted to a representation which has led or would be likely to lead to a misconception arising in the minds of that section of the public to whom the conduct (which may include refraining from doing an act) has been directed. Where the persons to whom the conduct has been directed are members of a class, it is necessary to isolate by some criterion a representative member of that class to determine whether a misconception is likely to arise from the conduct alleged (see the judgment of the Full Court of the High Court in Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 ('Campomar') at [98]-[103]). In Taco Bell at 200, Deane and Fitzgerald JJ emphasised that 'no conduct can mislead or deceive unless the representee labours under some erroneous assumption' (cited with approval in Campomar at [104]). The task of the Court is to determine whether any misconceptions or deceptions alleged to arise or to be likely to arise from the conduct complained of are properly to be attributed to the ordinary or reasonable members of the section of the community towards whom the conduct has been directed. The Court may disregard assumptions drawn by persons to whom the conduct is directed, where those assumptions or their reactions are extreme or fanciful (see Campomar at [104]-[105]). Conduct which produces or contributes to confusion or uncertainty may or may not be misleading or deceptive for the purposes of s 52. Ordinarily, a tendency to cause confusion or uncertainty will not suffice to establish conduct of the type described in s 52. The question whether particular conduct causes confusion or wonderment cannot be substituted for the question whether the conduct answers the statutory description contained in s 52 (per Deane and Fitzgerald JJ in Taco Bell at 201; see also Campomar at [106]). As to whether conduct may be categorised as misleading or deceptive Deane and Fitzgerald JJ said in Taco Bell at 202: 'Irrespective of whether conduct produces or is likely to produce confusion or misconception, it cannot, for the purposes of s 52 , be categorized as misleading or deceptive unless it contains or conveys, in all the circumstances of the case, a misrepresentation. The difficulty which will commonly arise in a s 52 case is in determining whether the conduct contains or conveys, in all the circumstances, a misrepresentation and in assessing the significance to that question of evidence that one or more persons were in fact led into error. In extreme, but not necessarily infrequent, cases, it may be correct to hold that, as a matter of law, conduct said to contravene s 52 is incapable of conveying the untrue meaning alleged or any other false meaning. Such cases aside, whether or not conduct amounts to a misrepresentation is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances. In some cases, such as an express untrue representation made only to identified individuals, the process of deciding that question of fact may be direct and uncomplicated. ...' (see also Campomar at [100] and Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [36] - [37] ).