mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd (2003) 11 Tas R 242
Outcome: cited
When considering whether conduct is misleading or deceptive, a court must consider the conduct as a whole and should accordingly consider whether the entire representation in question, including the disclaimer, is misleading or deceptive: see Butcher at [152]. For a disclaimer to prevent the conduct in question from being misleading or deceptive, it must either communicate information to the relevant class such that they are not misled at all, or provide information to the relevant class so that, in an evidentiary sense, it is unable to be shown that the relevant class relied on the representation: Karmot Auto Spares Pty Ltd v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560 at 572; Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd (2003) 11 Tas R 242. When considering the effectiveness of a disclaimer its form and the manner of its execution, as much as its substance, are relevant factors: Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd [1989] ATPR 46-048.
Case: Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] ATPR 42-106
Outcome: cited
The relevant legal principles have been well traversed by Australian courts. A two-step analysis is required. First, it is necessary to ask whether each or any of the pleaded representations is conveyed by the particular events complained of: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [105] ; National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] ATPR 42-000 at [18] per Dowsett J (with whom Jacobson and Bennett JJ agreed) and Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] ATPR 42-106 at [37]. That is, do the 12 Events singularly or collectively convey either of the Coverage Representations and do the 3 Events singularly or collectively convey the CDMA Comparison Representation. 19 As noted, under the two-step analysis that has been described, the court cannot consider each event in isolation. Each event must be considered within the context of the advertising campaign of which it formed part: see Telstra Corporation Ltd v Optus Communications Pty Ltd (1996) 36 IPR 515 at 523-524; Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326 at 338; Astrazeneca at [24]; Johnson &amp; Johnson Pacific Pty Ltd v Unilever Australia Ltd (No 2) [2007] ATPR 42-136 at [16]. In a national advertising campaign it would ordinarily be expected that there would be a dominant message and, in such a case, particular attention should be paid to that dominant message. In Telstra Corporation at 524, that principle was stated as follows: In television and print advertising where a false dominant impression is conveyed, its message will not be ameliorated by the accuracy of the detailed message which is derived from a careful analysis of all the constituent parts of the advertisement.
Case: Australian Competition and Consumer Commission v Telstra (2004) 208 ALR 459
Outcome: cited
Secondly, it is necessary to ask whether the representations conveyed are false, misleading or deceptive or likely to mislead or deceive. This is a "quintessential question of fact": Australian Competition and Consumer Commission v Telstra (2004) 208 ALR 459 at [49].
Case: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: cited
Because the conduct complained of in the present matter was not directed at a specific individual both questions that have been identified must be considered by reference to the class or classes of consumers likely to be affected by the conduct: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199 per Gibbs CJ; Nike at [102], [103], [105] and [106]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [36] per Gleeson CJ, Hayne and Heydon JJ. 116 When considering whether conduct is misleading or deceptive, a court must consider the conduct as a whole and should accordingly consider whether the entire representation in question, including the disclaimer, is misleading or deceptive: see Butcher at [152]. For a disclaimer to prevent the conduct in question from being misleading or deceptive, it must either communicate information to the relevant class such that they are not misled at all, or provide information to the relevant class so that, in an evidentiary sense, it is unable to be shown that the relevant class relied on the representation: Karmot Auto Spares Pty Ltd v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560 at 572; Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd (2003) 11 Tas R 242. When considering the effectiveness of a disclaimer its form and the manner of its execution, as much as its substance, are relevant factors: Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd [1989] ATPR 46-048.
Case: Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) 14 IPR 293
Outcome: cited
Part of this contextual approach requires consideration of any "hangover effect" caused by earlier advertising. That is, it is necessary to consider whether an impression obtained from an earlier but related advertisement may need to be taken into account in determining whether a later advertisement is misleading: see Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) 14 IPR 293 at 299, cited in Singtel Optus Pty Ltd v Telstra Corporation Ltd [2004] FCA 859 at [43] ; and Optus Communications at 338.
Case: Finucane v New South Wales Egg Corp (1988) 80 ALR 486
Outcome: cited
In .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [12]-[26] Finkelstein J provided a useful summary of the approach that might be taken where a court is required to assess conduct by reference to a specific class or classes of consumers and did that by particular reference to Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202-203 per Deane and Fitzgerald JJ and Nike at [100]-[103]. The approach may be summarised in six points, as follows: (1) first, identify the relevant section or sections of the public by reference to which the issue is to be tested. The target section or sections of the public would, of course, vary according to the facts of each case: Parkdale at 209 per Mason J; Finucane v New South Wales Egg Corp (1988) 80 ALR 486 at 516. The relevant section or sections of the public may be confined by factors such as the time period over which the alleged representations were made and the geographical circulation of the advertisements containing the alleged representations. (For an example of geographical circulation defining the relevant test section, see Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 at 446); (2) second, having identified the relevant section or sections of the public, consider who comes within that section or those sections. This may include the astute and the gullible, the intelligent and the not so intelligent, the well educated and the poorly educated: see also Parkdale at 199 per Gibbs CJ; (3) third, it is permissible, but not essential, to have regard to evidence that some person has in fact been misled, though this evidence will not be conclusive; (4) fourth, it is necessary to enquire whether any proven misconception has arisen because of the misleading or deceptive conduct; (5) fifth, where the persons alleged to have been misled are members of a class, it is necessary to isolate a representative member of the class and enquire whether that hypothetical person is likely to be deceived; (6) sixth, when considering the likely effect of the misrepresentation on this hypothetical person, he or she should be judged as an "ordinary" or "reasonable" member of the class, excluding reactions to the representation that are "extreme" or "fanciful".
Case: Freeman &amp; Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480
Outcome: cited
As the express words make clear, s 84(2)(b) of the Act is concerned with both actual and "ostensible or apparent authority": see Freeman &amp; Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503. 132 Consistent with that view of s 84(2)(b) of the Act , the ACCC contends that Telstra is liable on two grounds: first, that each of the Events was published by one of Telstra's dealers and secondly, by reason of the prominence of the Telstra branding in each of the Events. 133 A copy of a dealership agreement between Telstra Corporation Ltd and De Graaff Holdings Pty Ltd incorporating licence terms and mobile service terms ("the dealership agreement") was adduced into evidence as representative of the contractual arrangements between Telstra and its dealers. The terms of the dealership agreement are, unsurprisingly, confidential. For that reason, I do not propose to set out the terms of the agreement in any detail.
Case: Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629
Outcome: cited
I have carefully reviewed each Event several times and have sought to assess the likely effect of each Event on mobile phone users, including potential mobile phone users. In undertaking that task I have been conscious of the fact that a detailed inspection of the transcript of the television and radio advertisements must give a misleading impression of what is conveyed. However, in reviewing each Event I also had at the forefront the following caution from Lindgren J in Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 at [47] regarding television advertising: ... [A]part from the difference between a one-off viewing and repeated viewings, the circumstances in which a judge attends to a television commercial for the purposes of a case are not those in which members of the public do so. First, members of the public watch a commercial after and before viewing other things, rather than in isolation. Second, unlike the judge, they do not carefully view the commercial with a special interest in noting and memorising its features. Third, they view the commercial, not in the calm of chambers, but against a background of distractions, such as domestic activity, or simply a preoccupation with other more interesting or pressing concerns. Fourth, usually they do not know in advance that the commercial is about to commence. 41 Similar caution must be adopted when reviewing the other, non-television Events. 42 With that caution in mind, I shall now set out a more detailed description of each of the 12 Events.
Case: Johnson &amp; Johnson Pacific Pty Ltd v Unilever Australia Ltd (No 2) (2007) ATPR 42-136
Outcome: cited
As noted, under the two-step analysis that has been described, the court cannot consider each event in isolation. Each event must be considered within the context of the advertising campaign of which it formed part: see Telstra Corporation Ltd v Optus Communications Pty Ltd (1996) 36 IPR 515 at 523-524; Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326 at 338; Astrazeneca at [24]; Johnson &amp; Johnson Pacific Pty Ltd v Unilever Australia Ltd (No 2) [2007] ATPR 42-136 at [16]. In a national advertising campaign it would ordinarily be expected that there would be a dominant message and, in such a case, particular attention should be paid to that dominant message. In Telstra Corporation at 524, that principle was stated as follows: In television and print advertising where a false dominant impression is conveyed, its message will not be ameliorated by the accuracy of the detailed message which is derived from a careful analysis of all the constituent parts of the advertisement.
Case: Karmot Auto Spares Pty Ltd v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560
Outcome: cited
When considering whether conduct is misleading or deceptive, a court must consider the conduct as a whole and should accordingly consider whether the entire representation in question, including the disclaimer, is misleading or deceptive: see Butcher at [152]. For a disclaimer to prevent the conduct in question from being misleading or deceptive, it must either communicate information to the relevant class such that they are not misled at all, or provide information to the relevant class so that, in an evidentiary sense, it is unable to be shown that the relevant class relied on the representation: Karmot Auto Spares Pty Ltd v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560 at 572; Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd (2003) 11 Tas R 242. When considering the effectiveness of a disclaimer its form and the manner of its execution, as much as its substance, are relevant factors: Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd [1989] ATPR 46-048.
Case: Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd [1989] ATPR 46-048
Outcome: cited
When considering whether conduct is misleading or deceptive, a court must consider the conduct as a whole and should accordingly consider whether the entire representation in question, including the disclaimer, is misleading or deceptive: see Butcher at [152]. For a disclaimer to prevent the conduct in question from being misleading or deceptive, it must either communicate information to the relevant class such that they are not misled at all, or provide information to the relevant class so that, in an evidentiary sense, it is unable to be shown that the relevant class relied on the representation: Karmot Auto Spares Pty Ltd v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560 at 572; Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd (2003) 11 Tas R 242. When considering the effectiveness of a disclaimer its form and the manner of its execution, as much as its substance, are relevant factors: Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd [1989] ATPR 46-048.
Case: Lisciandro v Official Trustee in Bankruptcy (1996) 69 FCR 180
Outcome: cited
Section 84(2)(b) is an enlarging provision intended to widen the common law principles relating to agency rendering a person's conduct that of the company if it can be said to have been "engaged in on behalf of" the company or "at the direction or with the consent or agreement of" a servant of the company: Trade Practices Commission v Sun Alliance Australia Ltd [1994] ATPR 41-286 at 41,848 and the cases cited therein and Lisciandro v Official Trustee in Bankruptcy (1996) 69 FCR 180 at 188-189 per Ryan and Drummond JJ.
Case: National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] ATPR 42-000
Outcome: cited
The relevant legal principles have been well traversed by Australian courts. A two-step analysis is required. First, it is necessary to ask whether each or any of the pleaded representations is conveyed by the particular events complained of: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [105] ; National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] ATPR 42-000 at [18] per Dowsett J (with whom Jacobson and Bennett JJ agreed) and Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] ATPR 42-106 at [37]. That is, do the 12 Events singularly or collectively convey either of the Coverage Representations and do the 3 Events singularly or collectively convey the CDMA Comparison Representation.
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: cited
Because the conduct complained of in the present matter was not directed at a specific individual both questions that have been identified must be considered by reference to the class or classes of consumers likely to be affected by the conduct: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199 per Gibbs CJ; Nike at [102], [103], [105] and [106]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [36] per Gleeson CJ, Hayne and Heydon JJ. 17 In .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [12]-[26] Finkelstein J provided a useful summary of the approach that might be taken where a court is required to assess conduct by reference to a specific class or classes of consumers and did that by particular reference to Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202-203 per Deane and Fitzgerald JJ and Nike at [100]-[103]. The approach may be summarised in six points, as follows: (1) first, identify the relevant section or sections of the public by reference to which the issue is to be tested. The target section or sections of the public would, of course, vary according to the facts of each case: Parkdale at 209 per Mason J; Finucane v New South Wales Egg Corp (1988) 80 ALR 486 at 516. The relevant section or sections of the public may be confined by factors such as the time period over which the alleged representations were made and the geographical circulation of the advertisements containing the alleged representations. (For an example of geographical circulation defining the relevant test section, see Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 at 446); (2) second, having identified the relevant section or sections of the public, consider who comes within that section or those sections. This may include the astute and the gullible, the intelligent and the not so intelligent, the well educated and the poorly educated: see also Parkdale at 199 per Gibbs CJ; (3) third, it is permissible, but not essential, to have regard to evidence that some person has in fact been misled, though this evidence will not be conclusive; (4) fourth, it is necessary to enquire whether any proven misconception has arisen because of the misleading or deceptive conduct; (5) fifth, where the persons alleged to have been misled are members of a class, it is necessary to isolate a representative member of the class and enquire whether that hypothetical person is likely to be deceived; (6) sixth, when considering the likely effect of the misrepresentation on this hypothetical person, he or she should be judged as an "ordinary" or "reasonable" member of the class, excluding reactions to the representation that are "extreme" or "fanciful".
Case: Singtel Optus Pty Ltd v Telstra Corporation Ltd [2004] FCA 859
Outcome: cited
Part of this contextual approach requires consideration of any "hangover effect" caused by earlier advertising. That is, it is necessary to consider whether an impression obtained from an earlier but related advertisement may need to be taken into account in determining whether a later advertisement is misleading: see Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) 14 IPR 293 at 299, cited in Singtel Optus Pty Ltd v Telstra Corporation Ltd [2004] FCA 859 at [43] ; and Optus Communications at 338.
Case: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Outcome: cited
In .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [12]-[26] Finkelstein J provided a useful summary of the approach that might be taken where a court is required to assess conduct by reference to a specific class or classes of consumers and did that by particular reference to Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202-203 per Deane and Fitzgerald JJ and Nike at [100]-[103]. The approach may be summarised in six points, as follows: (1) first, identify the relevant section or sections of the public by reference to which the issue is to be tested. The target section or sections of the public would, of course, vary according to the facts of each case: Parkdale at 209 per Mason J; Finucane v New South Wales Egg Corp (1988) 80 ALR 486 at 516. The relevant section or sections of the public may be confined by factors such as the time period over which the alleged representations were made and the geographical circulation of the advertisements containing the alleged representations. (For an example of geographical circulation defining the relevant test section, see Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 at 446); (2) second, having identified the relevant section or sections of the public, consider who comes within that section or those sections. This may include the astute and the gullible, the intelligent and the not so intelligent, the well educated and the poorly educated: see also Parkdale at 199 per Gibbs CJ; (3) third, it is permissible, but not essential, to have regard to evidence that some person has in fact been misled, though this evidence will not be conclusive; (4) fourth, it is necessary to enquire whether any proven misconception has arisen because of the misleading or deceptive conduct; (5) fifth, where the persons alleged to have been misled are members of a class, it is necessary to isolate a representative member of the class and enquire whether that hypothetical person is likely to be deceived; (6) sixth, when considering the likely effect of the misrepresentation on this hypothetical person, he or she should be judged as an "ordinary" or "reasonable" member of the class, excluding reactions to the representation that are "extreme" or "fanciful".
Case: Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444
Outcome: cited
In .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [12]-[26] Finkelstein J provided a useful summary of the approach that might be taken where a court is required to assess conduct by reference to a specific class or classes of consumers and did that by particular reference to Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202-203 per Deane and Fitzgerald JJ and Nike at [100]-[103]. The approach may be summarised in six points, as follows: (1) first, identify the relevant section or sections of the public by reference to which the issue is to be tested. The target section or sections of the public would, of course, vary according to the facts of each case: Parkdale at 209 per Mason J; Finucane v New South Wales Egg Corp (1988) 80 ALR 486 at 516. The relevant section or sections of the public may be confined by factors such as the time period over which the alleged representations were made and the geographical circulation of the advertisements containing the alleged representations. (For an example of geographical circulation defining the relevant test section, see Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 at 446); (2) second, having identified the relevant section or sections of the public, consider who comes within that section or those sections. This may include the astute and the gullible, the intelligent and the not so intelligent, the well educated and the poorly educated: see also Parkdale at 199 per Gibbs CJ; (3) third, it is permissible, but not essential, to have regard to evidence that some person has in fact been misled, though this evidence will not be conclusive; (4) fourth, it is necessary to enquire whether any proven misconception has arisen because of the misleading or deceptive conduct; (5) fifth, where the persons alleged to have been misled are members of a class, it is necessary to isolate a representative member of the class and enquire whether that hypothetical person is likely to be deceived; (6) sixth, when considering the likely effect of the misrepresentation on this hypothetical person, he or she should be judged as an "ordinary" or "reasonable" member of the class, excluding reactions to the representation that are "extreme" or "fanciful".