Case: Leeks v FXC Corporation [2002] FCA 72 ; (2002) 118 FCR 299
Outcome: cited
Dynamic Supplies submits that Brother Japan was engaged in 'trade and commerce' within the meaning of s 4 of the TPA because the provenance of the units can be traced from Australia back though America and ultimately to their manufacturer in Japan. It submits that it there is sufficient evidence of defectiveness of the units. Mr Piccinini deposed that the units were returned to Dynamic Supplies by customers, who then received a refund. Counsel for Dynamic Supplies submitted that the only commercially sensible inference is that the refund was paid because the units were defective. This evidence is supported, it is said, by inferences to be drawn from a consistent pattern according to which defective units were replaced by Brother Australia and the thoroughness of the practices by which Mr Dobrowolski of Brother Australia inspected and tested the units. Dynamic Supplies also submits that, since it is agreed that Brother Japan manufactured the products, there is no difficulty in establishing that Brother bears the liability rather than Dynamic Supplies: see Leeks v FXC Corporation [2002] FCA 72 ; (2002) 118 FCR 299 at 302. 95 The cross-claim must fail in this case due to the lack of sufficient evidence establishing the defectiveness of the units. The assertion by Mr Piccinini that Dynamic Supplies provided refunds to its consumers is not sufficient evidence of the defectiveness of the units. There are no details of specific defects or their nature and extent. Refunds may be given for many reasons other than discovery of a fault in the product, for example, to maintain goodwill, for public relations purposes, to enhance reputation, or as a matter of general corporate policy when goods are claimed to be defective. Normally, a retailer making a claim under ss 74D and 74H will adduce some specific evidence in the form of documents, photographs or statements, as to the fault and give evidence as to how the product fails to function properly and why it has been deemed defective. In cases such as the present where the product can no longer be obtained, at least some evidence identifying the type of defect, and when and how the defect was ascertained in the particular products, should be adduced. This evidence may be in the form of, for example, test sheets, affidavits by the person who inspected and identified the defect, or documentation which identifies the defective product and its defects. The inferences which Dynamic Supplies submits should be drawn in this case are not open on the sparse evidence adduced. 96 In light of my finding that the evidence does not establish the defectiveness of the units, it is not necessary for me to express an opinion on Brother's submission that it has not engaged in 'trade and commerce' for the purposes of TPA. Accordingly, I do not propose to deal with that question in these reasons. 97 For these reasons, the cross-claim should be dismissed. 98 I allow the applicants' claim that the respondent has infringed the registered trade marks, and has engaged in misleading and deceptive conduct in contravention of ss 52 and 53 of the TPA and the tort of passing off. I dismiss the respondent's cross-claim. I direct the applicants to draft, file and provide to the respondent Draft Short Minutes of Orders in respect of the precise form of the orders arising out of these reasons for judgment, costs and directions as to the future conduct of these proceedings. I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 26 September 2007 Counsel for the Applicants Mr R Macaw QC and Ms J Baird Solicitor for the Applicants Corrs Chambers Westgarth Counsel for the Respondent Mr G Clarke SC and Mr R Millar Solicitor for the Respondent Home Wilkinson Lowry Dates of Hearing: 4, 5, 6, 12, 13 and 14 June 2007 Date of Judgment: 26 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1490.html