mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Harkins v Butcher [2002] NSWCA 237 ; [2005] 55 NSWLR 558
Outcome: cited
The more specialised the report or the more remote from the corporation's area of business, the easier it will be to establish that the corporation is merely passing on the information "for what it's worth". In Harkins v Butcher [2002] NSWCA 237 ; [2005] 55 NSWLR 558, for example, the New South Wales Court of Appeal found that an agent who distributed a brochure incorporating a copy of a survey diagram to purchasers was not liable for a contravention of s 52 on the basis that ' the recipients would know that the agents did not hold themselves out as professional surveyors, and had not carried out the survey themselves ' (at [47]). The Court of Appeal's decision was affirmed by a majority of the High Court, who had regard to the nature of the parties, the character of the transaction and the contents of the brochure itself in deciding that the agent ' did no more than communicate what the vendor was representing, without adopting it or endorsing it ' ( Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [40] ).
Case: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216
Outcome: cited
That is not, however, the totality of the representation in these advertisements. A statement which is literally true may still be misleading and deceptive if it conveys to others ' something more than the literal meaning which the words spelled out ' ( Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216 at 227). The elucidator, which refers to the "leading research company" is used to validate an assertion that the "7 out of 10" preference relates to Holiday Skin users generally, not to restrict it. The television advertisement portrays a group of women who are presented as representative of women generally. There is no suggestion that these women personally participated in the "use" test, but there is, in my view, a clear assertion that Summer Glow is the better product because the results of the market research can be extrapolated to them. The print advertisement expands the application to "every woman" or, at least, every user of Holiday Skin.
Case: Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd (1986) 6 IPR 227
Outcome: cited
Unilever has represented to the consumer that the preference exhibited by Holiday Skin users is supported by the "use test". The study was silent as to the preference of Holiday Skin users under the age of 25, who represented a substantial proportion of those users. The onus is on Johnson to establish that the representation was misleading and deceptive but, following Burchett J's observations in Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd (1986) 6 IPR 227 at 234, if Johnson establishes that there is no foundation in the study for a statement in the advertisements, that may be sufficient proof that the statement is misleading. As his Honour recognised, the question is whether the context in which the representation is made implies that adequate foundation exists for making it. Johnson submits that the claim made was not supported to the degree that the ordinary and reasonable consumer would understand and that the evidentiary onus shifts to Unilever to show that consumers will not be mislead. 106 A comparison, said to be supported by a "use test" conducted by a "leading research company", gives the impression that the study has been carefully conducted and that the results support the precise statement made. A reader or viewer, seeing the reference to the leading research company, would understand that the study had been conducted properly and with care and that it fully supported the claim based upon it (cf RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164 at 166). As in Janssen , the context of these advertisements must be, or is likely to be, taken as implying that there is an adequate foundation in the market research to enable the statement to be made. If Unilever chose to advertise that comparison, it was obliged to ensure that it did not mislead the public. The making of such a comparison, without adequate foundation, is misleading.
Case: Johnson &amp; Johnson Pacific Pty Limited v Unilever Australia Limited (2006) 69 IPR 232
Outcome: cited
Johnson applied to the Court for an interlocutory injunction to restrain Unilever from so advertising Summer Glow. Justice Tamberlin granted interlocutory relief ( Johnson &amp; Johnson Pacific Pty Limited v Unilever Australia Limited (2006) 69 IPR 232 (' Johnson (No 1) '). 5 The proceedings now are before the Court for final orders. The issues that arise are: (1) What representations are made by the Summer Glow advertisements? (2) Are those representations misleading and deceptive? (3) Is Unilever liable for any contravention of s 52 of the Act? 6 Johnson alleges that Unilever contravened the Act by representations made in three advertisements: &#8226; a television advertisement, first broadcast on national television on 27 March 2006 ('the television advertisement'); &#8226; a print advertisement, first published in the print media in April 2006 ('the print advertisement'); and &#8226; an online advertisement, first published at http://www. dovefacecare.com.au ('the website') on or about 28 March 2006 ('the internet advertisement').
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: cited
A contravention of s 52 may occur even when a corporation is acting reasonably and honestly ( Campomar at [103] citing Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 197). A corporation will not be liable for merely relaying false information when it is clear that the corporation does not adopt the information ( Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666). However, the fact that a corporation acts honestly and reasonably and does not intend to mislead or deceive does not necessarily absolve it from liability ( Parkdale at 197; Yorke ). It is a matter of fact in each case. Unilever submits that the reference to the "use test" in the elucidator would lead the consumer to understand that it had been carried out bona fide by a research house and that Unilever relied upon it. That representation was true.
Case: RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164
Outcome: cited
A comparison, said to be supported by a "use test" conducted by a "leading research company", gives the impression that the study has been carefully conducted and that the results support the precise statement made. A reader or viewer, seeing the reference to the leading research company, would understand that the study had been conducted properly and with care and that it fully supported the claim based upon it (cf RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164 at 166). As in Janssen , the context of these advertisements must be, or is likely to be, taken as implying that there is an adequate foundation in the market research to enable the statement to be made. If Unilever chose to advertise that comparison, it was obliged to ensure that it did not mislead the public. The making of such a comparison, without adequate foundation, is misleading.
Case: Reiffel v ACN 075 839 226 [2003] FCA 194 ; (2003) 132 FCR 437
Outcome: cited
The study did, of course, test the comparable Dove and Johnson light variants. For this reason, it may be that the second representation is closer to a "half-truth" than the first representation. However, if a bald preference claim is suggested by the "elucidator" and that claim requires qualification, then to make it without qualification is misleading ( Reiffel v ACN 075 839 226 [2003] FCA 194 ; (2003) 132 FCR 437 at [38] and [48] [50]). Unilever knew that the Johnson dark variant was on the market at the time it published the advertisements but no qualification was given in respect of the variants tested. The bald preference claim was misleading or deceptive, or likely to mislead or deceive the consumer to whom it was directed. 79 As to the third and fourth representations, Johnson accepts that 73 % of participants in the study preferred Summer Glow and that that result, as a matter of mathematics, is capable of supporting a general preference claim of 7 out of 10. Johnson contends, however, that the deficiencies in the study methodology mean that no preference claim is justifiable. 80 Unilever makes a number of overarching submissions: &#8226; Johnson accepts that Colmar Brunton is a reputable market research company. &#8226; No suggestion was made that Colmar Brunton participated in the formulation of a study designed to secure a particular result. &#8226; The most that Johnson's evidence can suggest is that certain variations in the study methodology might have given different results but this is mere speculation. &#8226; In the absence of proof that the results would have been so different that the making of the alleged representation by Unilever was misleading or likely to be so, Johnson has not discharged the onus to prove a breach by Unilever of s 52.
Case: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Outcome: cited
Where the persons to whom the conducted is directed are not identified individuals, but members of a class to which the conduct is directed in a general sense, it is necessary to isolate a representative member of that class ( Campomar at [103]). The question then is whether a misconception is likely to arise on the part of that representative consumer from the conduct alleged ( Campomar at [103]); Astrazeneca at [34]). For there to be a contravention of s 52 , the ordinary or reasonable representee must be shown to labour under some erroneous assumption ( Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 200; Campomar at [104]). The question is whether any misconceptions or deceptions alleged to arise from the advertisements are properly to be attributed to the ordinary or reasonable members of the class of the public towards whom the conduct has been directed ( Campomar at [104] [105]; Astrazeneca at [37]).
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
A contravention of s 52 may occur even when a corporation is acting reasonably and honestly ( Campomar at [103] citing Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 197). A corporation will not be liable for merely relaying false information when it is clear that the corporation does not adopt the information ( Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666). However, the fact that a corporation acts honestly and reasonably and does not intend to mislead or deceive does not necessarily absolve it from liability ( Parkdale at 197; Yorke ). It is a matter of fact in each case. Unilever submits that the reference to the "use test" in the elucidator would lead the consumer to understand that it had been carried out bona fide by a research house and that Unilever relied upon it. That representation was true. 115 It is the case that the study was a specialised report. It can not be said, however, that the study was remote from Unilever's business. Unilever is engaged in the sale of consumer products to the public and conducts advertising to sell those products. It was not suggested that Unilever had no knowledge or understanding of market surveys. Indeed, Unilever issued sophisticated instructions to Colmar Brunton and indicated in clear terms the result it wished to achieve. It cannot be said that Unilever in any way disclaimed a belief in the truth or falsity of the comparison or the study on which it was based or was merely ' passing it on for what it is worth ' ( Yorke at 666). To the contrary, the results of the study were conveyed to the public as part of an integrated advertising campaign. In the circumstances, Unilever adopted them; it was not a ' mere conduit ' ( Gardam v George Wills &amp; Co Ltd (1988) 82 ALR 415 at 427).
Case: Sovereign Life Assurance Company v Dodd [1892] 2 QB 573
Outcome: followed
leading English case of the composition of classes is Sovereign Life Assurance Company v Dodd [1892] 2 QB 573 ( Sovereign Life ). In that case Bowen LJ said (at 583) that classes must be defined so as to prevent confiscation and injustice and that a class must be "confined to those persons whose rights are not so dissimilar as to make it impossible for them to consult together with a view to their common interest". This approach has often been cited with approval. I do not see why it is "impossible" for Kingsway and Assif SA "to consult" with all other holders of in-the-money options with a view to persuading them to vote against the Option Scheme on the ground that the consideration being offered for their options is inadequate because it is not calculated according to the Black-Scholes methodology (cf Sovereign Life , above). According to their contention, all holders of in-the-money options will be underpaid for the same reason: that they are denied the benefit of receiving any consideration for loss of the prospect of an increase in the value of the underlying shares and the corresponding prospective increase in the value of their options. All holders of in-the-money options have a "common interest" or "community of interest" in considering the merits of this contention. For the above reasons I was not persuaded that the two classes of option holders proposed were inappropriate. It will remain open to Kingsway and Assif SA (and others) to contend on the second court hearing that the Option Scheme should not be approved because it is unfair or oppressive to them. Share Scheme Deed Poll and Option Scheme Deed Poll
Case: UDL Argos Engineering &amp; Heavy Industries Co Ltd v Li Oi Lin [2001] HKCFA 54 ; [2001] 3 HKLRD 634
Outcome: referred to
UDL Argos Engineering &amp; Heavy Industries Co Ltd v Li Oi Lin [2001] HKCFA 54 ; [2001] 3 HKLRD 634 Lord Millett (at [27]) emphasised that the test was based on similarity or dissimilarity of legal rights against the company, not on similarity or dissimilarity of interest derived otherwise than from such legal rights. His Lordship stated: The question is whether the rights which are to be released or varied under the Scheme or the new rights which the Scheme gives in their place are so different that the Scheme must be treated as a compromise or arrangement with more than one class.
Case: In the matter of Opes Prime Stockbroking Limited (2009) 73 ACSR 385
Outcome: referred to
court will not ordinarily order that a meeting be convened unless the scheme is of such a nature and cast in such terms that if it receives support from the statutory majority at the meeting, the court would be likely to approve it on the final hearing: F T Eastment &amp; Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 at 72; Re Central Pacific Minerals NL [2002] FCA 239 at [8] . Nonetheless, the court is not bound by the decision of the meeting so that if, for example, the court considered that there had been oppression, it would not approve the Scheme: see, for example, In the matter of Opes Prime Stockbroking Limited (2009)73 ACSR 385 at [66]. CONSIDERATION The Share Scheme Under the proposed Share Scheme, all of Sino Gold's issued ordinary shares not already owned by members of the Eldorado Group will be acquired by Eldorado Pacific. The consideration to be received by the Sino Gold shareholders will be: The new Eldorado shares will rank equally with each existing Eldorado shares. In In the matter of Opes Prime Stockbroking Limited (2009) 73 ACSR 385 , Finkelstein J said (at [66]): The application of the relevant test involves a comparison of the rights creditors have in the absence of the scheme and any new rights that are established under the scheme: Re T &amp; N Ltd (No 3) [2007] 1 All ER at 882. Once those differences are identified the question whether they form separate classes must be assessed with the following factors in mind. First, when creditors are broken up into classes, each class is given power to veto the scheme and that is a process that undermines the basic approach of decision by majority: Nordic Bank Plc v International Harvester Australia Ltd [1983] 2 VR 298 , 301. Second, there is a built-in safeguard against majority oppression in that the court is not bound by the decision of the meeting. Thus, it is necessary to ensure that there is no oppression by the minority. Third, practical considerations are relevant. If a judge is too assiduous in identifying classes, it is possible to end up with any number of classes. In the end, schemes of arrangement are propounded in a business context. The judge should adopt a practical business-like approach to the issue, as would the creditors if they were to decide the matter.
Case: Re Solution 6 Holdings Ltd (2004) 50 ACSR 113
Outcome: cited
Samuel has expressed the opinion that the valuation methodology adopted for the in-the-money options is fair and reasonable (the Grant Samuel report is annexure A to the Scheme Booklet). An "intrinsic" valuation method formed the basis of the scheme that was approved in Re Solution 6 Holdings Ltd (2004) 50 ACSR 113 (Jacobson J described the calculation at [7]). As noted earlier, out-of-the-money options are those that have a strike price at or above A$7.17 (or C$6.49). The view could be taken that they have no value. However, because the underlying shares will continue to trade in the future, there is the possibility that their value will increase by the expiry date for those options, so that the options will become "in-the-money" options with an intrinsic value after all. So long as they remain unexercised, the options may fluctuate between being in-the-money and out-of-the money. The extent to which this is likely to occur depends on the volatility of the market for the underlying shares, the level of the exercise price, the period that the option has yet to run to its expiry date, and, no doubt, other considerations. The question of what value is to be ascribed to out-of-the-money options is difficult. In the Option Scheme they have been valued using the Black-Scholes option pricing methodology which takes into account factors of the kind mentioned. Grant Samuel has discussed the appropriateness of applying that methodology (in section 9.7 at pp 90-91 of its report), and has expressed the opinion that the valuation arrived at for the out-of-the-money options is "generous" and is "fair and reasonable and in the best interests of holders of [out-of-the-money] options and [that] overall the option proposal is fair and reasonable and accordingly in the best interests of option holders".
Case: Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd [2004] FCA 819 ; (2004) ATPR 42-011
Outcome: considered
The proceeding against the second respondent be otherwise dismissed.' 3 Having heard submissions I made the declaration and orders sought and indicated that I would publish my reasons at a later date. These are those reasons. 4 The Court is not, of course, bound to make orders giving effect to terms of settlement agreed on between the parties. The principles to be applied by the Court in determining whether to order the imposition of a pecuniary penalty for contravention of the Act, where parties propose a particular sum, are expounded in N W Frozen Foods Pty Ltd v Australian Competition &amp; Consumer Commission (1997) 71 FCR 285 at 290-5. They are refined and elaborated upon in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51] to [58]; (2004) ATPR 41-993 at [51] to [58]. I am also mindful of the observations of Emmett J in Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd [2004] FCA 819 at [46] to [56]; (2004) ATPR 42-011 at [46] to [56]. In particular, I note the following observations made by his Honour in that case: '[53] ... there is a public interest in prompting settlement of litigation, particularly litigation that is likely to be lengthy and complex. Thus, in giving weight to a joint submission on a proposal that would resolve a proceeding, the Court can have regard to the savings of resources both for a regulator, such as the Commission, and for the Court if the proposal were to be accepted. The savings in resources, for example, are capable of being used by the regulator to increase the likelihood that other contraveners will be detected and brought before the court. [ 54] The view of a regulator such as the Commission as a specialist body is relevant in determining the question of penalty, although it is by no means determinative. The Court will expect a regulator such as the Commission to explain to it the process of reasoning that has led to the resolution proposed. In particular, if a proposed penalty involves a discount from that which might otherwise be considered to be the appropriate penalty so as to reflect a degree of cooperation, the Court would expect the Commission to explain the basis upon which the discount had been calculated. ... [56] The Court will be mindful that, where an agreed penalty is proposed, there may be elements of compromise involved in both sides. Thus, it may be that evidentiary difficulties perceived by the Commission would warrant the abandonment of some claims. Certainty of outcome for both parties may be a very significant factor in the reasoning process that leads to agreement on penalty. For reasons such as those, if the Court is not disposed to impose a penalty proposed by the parties, it would be appropriate to give the parties the opportunity to withdraw consent for all of the proposed orders and to permit the proceeding to continue on a contested basis." See also Commerce Commission v New Zealand Milk Corporation Ltd [1994] 2 NZLR 730 at 733.