Case: Australian Competition and Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3
Outcome: referred to
considerations apply equally to representations by advertising as to other forms of conduct. Whether a representation has been made in advertising material must be assessed not by a particular statement taken in isolation, but by the statement in its context and, where appropriate, in the surrounding circumstances: Trade Practices Commission v Optus Communications Pty Ltd &amp; Optus Mobile Pty Ltd (1996) 64 FCR 326 ( Optus ) at 336-8; Australian Competition and Consumer Commission v Thorn Australia Pty Ltd [2004] FCA 157 at [13] - [14] ; Australian Competition and Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3 ( Signature ) at [25]-[28]. I have taken into account the asterisk where it appears, and the footnote text. In that regard, I note what Stone J said in Signature [2003] FCA 3 at [26] in the following terms: I agree with the respondent's submission that George Weston Foods Pty Ltd v Goodman Fielder Ltd (2001) 49 IPR 553 ('the Wonder White case') is authority for the fact that an asterisk can be sufficient to draw the attention of a consumer to a qualification of a representation. That case concerned, inter alia, the packaging of the respondent's bread which declared in large typeface 'Now Twice the Fibre*'. Moore J observed that: "the asterisk is prominent and would be taken to signify some qualification or explanation of the words used. One could expect a consumer interested in the fibre content to seek out the qualification or explanation. Not only is the explanation within 2 cm of the words used on the package (albeit in much smaller type) but it is repeated elsewhere on the packaging." In my view, the asterisk is quite prominent and is sufficient to direct attention to the asterisk at the bottom of each page. The footnote disclaimer accompanied by the asterisk is not hard to find and is not hidden. But the context is clear, by the relative size of the headline and the footnote: the footnote is not to contradict the headline, but to explain or qualify or limit it. If it were simply to contradict the headline, one would expect the footnote to be much more prominent. In my view, the footnote on each page was of limited effect. It said two things: that discounts were off "regular prices"; and that no further discounts apply to catalogue lines. As noted above, the footnote on page 1 of the sale catalogue added that the banner content excluded television, sound, digital cameras and toys (on page 1 only). The corrective advertising sought by the ACCC is said to match the placement of the advertising in the sale catalogue giving rise to the contraventions. In my view, there is no real purpose in making such an order in the present circumstances. The injunctive order will prevent the form of advertising which gave rise to the contraventions. There is no evidence of any consumer having suffered loss as a result of the contravening conduct. There was a significant period after the sale catalogue was published before these proceedings were instituted, and a further period has since elapsed. In those circumstances, it is difficult to see how the proposed corrective advertising would serve any useful purpose: see Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483 ; St Lukes Health Insurance v Medical Benefits Funds of Australia [1995] FCA 1314 per Northrop J at [34]; Wizard Mortgage per Merkel J at [27]; Signature [2002] FCA 3.