Case: Australian Competition and Consumer Commission v Wizard Mortgage Corporation Ltd [2002] FCA 1317
Outcome: referred to
Scarfe, since the conduct giving rise to the contraventions, has introduced and developed its Advertising Rule Book. It appears to address the circumstances giving rise to the present contraventions. However, as in any substantial retail organisation with an extensive product range, there may be scope for different views about the way such a document should be construed or applied. So too is there such scope, notwithstanding a compliance program and its Compliance Manual and its Advertising Rule Book and ongoing training, for oversight or error. The fact that Harris Scarfe committed the contraventions despite the extensive external and internal structures and resources it utilised to avoid contravening the TP Act provides reason to specifically prohibit the offending advertising style. The steps taken by Harris Scarfe to avoid such contraventions in the future may provide a reason not to make any injunctive order (cf Australian Competition and Consumer Commission v Wizard Mortgage Corporation Ltd [2002] FCA 1317 ( Wizard Mortgage ) per Merkel J at [22]). However, having regard to the past history including the 2004 undertaking, and the 2006 undertaking, my conclusion on balance is that it is appropriate to make the injunctive order in the terms sought. 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. In Australian Competition and Consumer Commission v Telstra Corporation Limited (ACN 051 775 556) [2007] FCA 2058 , Gordon J summarised the principles concerning the issue of whether corrective advertising should be made. Her Honour said at [4]: Section 86C of [the TP Act] confers power on the Court to make an order for corrective advertising. Corrective advertising may have a number of purposes: (1) to protect the public interest by dispelling an incorrect or false impression that has been created as a result of misleading or deceptive conduct ( Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2003) 135 FCR 1 at [49] (Full Court) and ACCC v Wizard Mortgage Corporation Ltd (2002) ATPR 41-903 at [27]) especially where all of the misleading or deceptive conduct arose out of advertisements and other public statements and promotions; (2) to alert consumers to the fact of the misleading or deceptive conduct and inform them that they might have some remedy if they relied upon any of the misleading or deceptive conduct: Medical Benefits Fund [2003] FCAFC 289 ; (2003) 135 FCR 1 at [54] ; (3) as an "aid in the enforcement of the primary orders and the prevention of repetition of the contravening conduct": ACCC v Real Estate Institute (WA) Inc (1999) 95 FCR 114 at 133 per French J, cited with approval in Medical Benefits Fund [2003] FCAFC 289 ; (2003) 135 FCR 1 at [51] .