mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177
Outcome: discussed
proceeding does not attempt to break new ground in the application of ss 52 and 53(e) of the TP Act. The applicable principles are now well established: see eg Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 ( Parkdale ); Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 ( Taco Bell ). The test is an objective one for the Court upon the whole of the evidence. Not every member of the public needs to have been misled or capable of having been misled for the conduct to be misleading or deceptive. The test is applied to the public, or a relevant section of the public, to whom the representation is made or in relation to whom the conduct is engaged in, including the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations. See Taco Bell at 202. That passage was referred to with approval in Parkdale at 199 but, as the passage from Parkdale quoted above shows, it is to be measured against reasonable members of the class. In the submissions, no difference was identified between the application of s 52 and s 53(e) to the relevant conduct. The applicability of s 53(e) is similarly a question of fact to be assessed objectively in the context of the conduct and the surrounding circumstances: Taco Bell at 202.
Case: Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82
Outcome: referred to
is misleading or deceptive if it induces or is capable of inducing error (to adopt the expression in Harris Scarfe's written submissions). That must of course be understood as applying not in an absolute sense, but in relation to consumers or to a relevant class of consumers. Evidence of members of the public having been misled is not conclusive: Parkdale at 198-9. Of course, the converse is also not necessarily correct. That is, the absence of evidence that members of the public have been misled does not necessarily negate the fact of a contravention having occurred. It has also been held that the words "likely to mislead or deceive" do not add much to the section: Parkdale at 198. In the submissions, nothing was made of those particular words. It is sufficient if there is a real chance that the conduct will mislead or deceive: Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87.
Case: Trade Practices Commission v Optus Communications Pty Ltd &amp; Optus Mobile Pty Ltd (1996) 64 FCR 326
Outcome: discussed
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]. Where printed advertising is under consideration, it is appropriate to consider not simply the words or images depicted but also their relative emphasis (whether by print size, location, colour or other manner of presentation) to determine whether the asserted representation has been made in its overall context. So, where, as here, particular words or figures are accompanied by an asterisk and the asterisk apparently directs attention to a footnote, it is necessary to do more than treat the whole of the communication as one piece of text. It is necessary to look to the way the asterisk is placed, the size of the footnote relative to the text in the body of the advertisement, and the terms of the footnote: see per Davies J in Trade Practices Commission v QDSV Holdings Pty Ltd (t/as Bush Friends Australia) [1994] FCA 1562 ; (1995) 128 ALR 551 at 559. Whilst, as his Honour says, the ideal is that qualifying words should be in the same sized print as the print which catches the eye, it is not necessary for qualifying print to be in that size to avoid the large print which first catches the eye from conveying a representation without regard to the qualification. See the discussion in Optus at 339-41; Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402 at [35]-[41].
Case: Australian Competition and Consumer Commission v Thorn Australia Pty Ltd [2004] FCA 157
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].
Case: Chief Executive Officer, Australian Competition and Consumer Commission v Medical Benefits Fund of Australia Ltd (No 2) [2002] FCA 1097
Outcome: referred to
the case of television advertising, necessarily the message is conveyed visually with images and in this case printed text and generally with oral text. It is relatively fleeting (although the fleeting impression is often sought to be reinforced by iteration or abridged iteration, sometimes in successive advertisements). Nevertheless, it is still necessary to determine the overall impression of what is conveyed from consideration of all parts of the television presentation to ensure the message is taken in context: Chief Executive Officer, Australian Competition and Consumer Commission v Medical Benefits Fund of Australia Ltd (No 2) [2002] FCA 1097 ( MBF No 2 ) at [45].
Case: Trade Practices Commission v QDSV Holdings Pty Ltd (t/as Bush Friends Australia) [1994] FCA 1562 ; (1995) 128 ALR 551
Outcome: discussed
printed advertising is under consideration, it is appropriate to consider not simply the words or images depicted but also their relative emphasis (whether by print size, location, colour or other manner of presentation) to determine whether the asserted representation has been made in its overall context. So, where, as here, particular words or figures are accompanied by an asterisk and the asterisk apparently directs attention to a footnote, it is necessary to do more than treat the whole of the communication as one piece of text. It is necessary to look to the way the asterisk is placed, the size of the footnote relative to the text in the body of the advertisement, and the terms of the footnote: see per Davies J in Trade Practices Commission v QDSV Holdings Pty Ltd (t/as Bush Friends Australia) [1994] FCA 1562 ; (1995) 128 ALR 551 at 559. Whilst, as his Honour says, the ideal is that qualifying words should be in the same sized print as the print which catches the eye, it is not necessary for qualifying print to be in that size to avoid the large print which first catches the eye from conveying a representation without regard to the qualification. See the discussion in Optus at 339-41; Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402 at [35]-[41].
Case: Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402
Outcome: referred to
printed advertising is under consideration, it is appropriate to consider not simply the words or images depicted but also their relative emphasis (whether by print size, location, colour or other manner of presentation) to determine whether the asserted representation has been made in its overall context. So, where, as here, particular words or figures are accompanied by an asterisk and the asterisk apparently directs attention to a footnote, it is necessary to do more than treat the whole of the communication as one piece of text. It is necessary to look to the way the asterisk is placed, the size of the footnote relative to the text in the body of the advertisement, and the terms of the footnote: see per Davies J in Trade Practices Commission v QDSV Holdings Pty Ltd (t/as Bush Friends Australia) [1994] FCA 1562 ; (1995) 128 ALR 551 at 559. Whilst, as his Honour says, the ideal is that qualifying words should be in the same sized print as the print which catches the eye, it is not necessary for qualifying print to be in that size to avoid the large print which first catches the eye from conveying a representation without regard to the qualification. See the discussion in Optus at 339-41; Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402 at [35]-[41]. 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] .
Case: Australian Competition and Consumer Commission v Nationwide News Pty Ltd (1996) 36 IPR 75
Outcome: referred to
conclusions reflect the passage quoted with evident approval by Heerey J in Australian Competition and Consumer Commission v Nationwide News Pty Ltd (1996) 36 IPR 75 at 85 from the decision of the United States Supreme Court delivered by Hugo Black J in Federal Trade Commission v Standard Education Society [1937] USSC 142 ; 302 US 112 (1937) at 115: The fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom he transacts business. Laws are made to protect the trusting as well as the suspicious. The best element of business has long since decided that honesty should govern competitive enterprises, and that the rule of caveat emptor should not be relied upon to reward fraud and deception.
Case: Federal Trade Commission v Standard Education Society [1937] USSC 142 ; 302 US 112 (1937)
Outcome: cited
conclusions reflect the passage quoted with evident approval by Heerey J in Australian Competition and Consumer Commission v Nationwide News Pty Ltd (1996) 36 IPR 75 at 85 from the decision of the United States Supreme Court delivered by Hugo Black J in Federal Trade Commission v Standard Education Society [1937] USSC 142 ; 302 US 112 (1937) at 115: The fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom he transacts business. Laws are made to protect the trusting as well as the suspicious. The best element of business has long since decided that honesty should govern competitive enterprises, and that the rule of caveat emptor should not be relied upon to reward fraud and deception.
Case: Trade Practices Commission v Cue Design Pty Ltd (1996) 85 A Crim R 500
Outcome: referred to
my view, it is appropriate to make a declaratory order in respect of the contraventions I have found to be established. It will be in the form proposed by the ACCC. The facts that the contraventions occurred notwithstanding Harris Scarfe's efforts to comply with the TP Act over quite some time, and that they occurred notwithstanding in particular the 2004 undertaking and the 2006 undertaking, indicate to my mind that it is appropriate to make the declaratory order sought, as relevant to the contraventions, rather than permit Harris Scarfe to provide yet another undertaking to the ACCC. Moreover, and perhaps more importantly, the acceptance of a s 87B undertaking is within the discretion of the ACCC. It does not appear that the Court has power to oblige the ACCC to accept such an undertaking: Trade Practices Commission v Cue Design Pty Ltd (1996) 85 A Crim R 500 ; Australian Competition and Consumer Commission v Monza Imports Pty Ltd [2001] FCA 1455. The ACCC is not prepared to do so in respect of these contraventions. Even if it could be obliged to do so, contrary to the decisions referred to, I would not impose upon the ACCC the acceptance of yet a further s 87B undertaking. Then, rather than there be no formal recording of the contraventions, I would make the relevant declaratory order sought.
Case: Australian Competition and Consumer Commission v Monza Imports Pty Ltd [2001] FCA 1455
Outcome: referred to
my view, it is appropriate to make a declaratory order in respect of the contraventions I have found to be established. It will be in the form proposed by the ACCC. The facts that the contraventions occurred notwithstanding Harris Scarfe's efforts to comply with the TP Act over quite some time, and that they occurred notwithstanding in particular the 2004 undertaking and the 2006 undertaking, indicate to my mind that it is appropriate to make the declaratory order sought, as relevant to the contraventions, rather than permit Harris Scarfe to provide yet another undertaking to the ACCC. Moreover, and perhaps more importantly, the acceptance of a s 87B undertaking is within the discretion of the ACCC. It does not appear that the Court has power to oblige the ACCC to accept such an undertaking: Trade Practices Commission v Cue Design Pty Ltd (1996) 85 A Crim R 500 ; Australian Competition and Consumer Commission v Monza Imports Pty Ltd [2001] FCA 1455. The ACCC is not prepared to do so in respect of these contraventions. Even if it could be obliged to do so, contrary to the decisions referred to, I would not impose upon the ACCC the acceptance of yet a further s 87B undertaking. Then, rather than there be no formal recording of the contraventions, I would make the relevant declaratory order sought.
Case: BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167
Outcome: referred to
form of injunctive order is quite specific. It is not generic, in the sense that it simply prohibits conduct which the TP Act prohibits: see BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167. It captures the form of advertising in the sale catalogue which has led to the contravention. Such conduct occurred notwithstanding Harris Scarfe's compliance program, and the considerable effort and expense which Harris Scarfe had in the past put into trying to avoid conduct in contravention of ss 52 and 53 of the TP Act. An injunction in those terms should therefore deter Harris Scarfe from engaging in such conduct during the period of its currency: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 268.
Case: Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd [2004] FCA 693 ; (2004) 207 ALR 329
Outcome: referred to
purpose is not to add to Harris Scarfe the possible exposure to contempt of court if it commits a further contravention such as those which have been established. It is to add the additional incentive, or deterrence, of quite specific injunctive orders to prevent the re-occurrence of the offending conduct, albeit in the context of voluntary action already taken by Harris Scarfe which makes the risk of such re-occurrence quite small. It will, however, be limited in time to a period of three years: Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd [2004] FCA 693 ; (2004) 207 ALR 329 at [45] .
Case: Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483
Outcome: cited
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.
Case: St Lukes Health Insurance v Medical Benefits Funds of Australia [1995] FCA 1314
Outcome: cited
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.
Case: Australian Competition and Consumer Commission v Telstra Corporation Limited [2004] FCA 1132
Outcome: referred to
have not overlooked that, in Australian Competition and Consumer Commission v Telstra Corporation Limited [2004] FCA 1132 , Gyles J granted an injunctive order for five years. His Honour discussed that question at [5]. In my view, however, the period of three years, acting as a reinforcement in the manner I have described, is appropriate to enable the advertising practices of Harris Scarfe to have been cemented so as to thereafter carry little or no risk of like contravening conduct. The orders for corrective advertising and refinement of Harris Scarfe's compliance program are founded upon s 86C of the TP Act. It relevantly provides: (1) The Court may, on application by the Commission, make one or more of the orders mentioned in subsection (2) in relation to a person who has engaged in contravening conduct. (2) The orders that the Court may make in relation to the person are: (a) ... (b) a probation order for a period of no longer than 3 years; and (c) ... (d) an order requiring the person to publish, at the person's expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order. (3) ... (4) In this section: "Probation order" , in relation to a person who has engaged in contravening conduct, means an order that is made by the Court for the purpose of ensuring that the person does not engage in the contravening conduct, similar conduct or related conduct during the period of the order, and includes: (a) an order directing the person to establish a compliance program for employees or other persons involved in the person's business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening, similar conduct or related conduct; and (b) an order directing the person to establish an education and training program for employees or other persons involved in the person's business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and (c) an order directing the person to revise the internal operations of the person's business which lead to the person engaging in the contravening conduct.
Case: Australian Competition and Consumer Commission v Telstra Corporation Limited (ACN 051 775 556) [2007] FCA 2058
Outcome: referred to
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] .
Case: Australian Competition and Consumer Commission v Prouds Jewellers Pty Ltd (No 2) [2008] FCA 476
Outcome: cited
principles were applied by Moore J in Australian Competition and Consumer Commission v Prouds Jewellers Pty Ltd (No 2) [2008] FCA 476. In the light of the injunctive order proposed to be made, and in the particular circumstances, I do not think any of those three purposes would usefully be served now by corrective advertising. The public interest is adequately protected by the injunctive order, in effect reinforcing the voluntary action taken by Harris Scarfe. The absence of any identified consumer who suffered loss as a result of the contravening conduct makes it quite unlikely now that corrective advertising would alert any particular consumer to the possibility of a remedy. And I have already indicated the injunctive order itself is to aid in preventing a repetition of the contravening conduct.