Case: Campomar Sociedad Limitada &amp; Anor v Nike International Limited &amp; Anor [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: applied
if it is established that the corporation did intend to mislead, a Court may be more likely to find that the conduct complained of was misleading: Campomar Sociedad Limitada &amp; Anor v Nike International Limited &amp; Anor [2000] HCA 12 ; (2000) 202 CLR 45 at 63. In the present case the representations complained of are alleged to have been made to the general public or a broad cross-section thereof. In Campomar Sociedad Limitada &amp; Anor v Nike International Limited &amp; Anor [2000] HCA 12 ; (2000) 202 CLR 45 , the High Court stated at 84-85: It is in these cases of representations to the public, of which the first appeal is one, that there enter the "ordinary" [the phrase "ordinary purchaser" was used by Mason J in Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 210] or "reasonable" [the term used by Gibbs CJ in Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 199] members of the class of prospective purchasers. Although a class of consumers may be expected to include a wide range of persons, in isolating the "ordinary" or "reasonable" members of that class, there is an objective attribution of certain characteristics. Thus, in Puxu [(1982) [1982] HCA 44 ; 149 CLR 191 at 199], Gibbs CJ determined that the legislation did not impose burdens which operated for the benefit of persons "who fail[ed] to take reasonable care of their own interests". In the same case, Mason J concluded that, whilst it was unlikely that an ordinary purchaser would notice the very slight differences in the appearance of the two items of furniture in question, nevertheless such a prospective purchaser reasonably could be expected to attempt to ascertain the brand name of the particular type of furniture on offer [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 210-211]. Where the persons in question are not identified individuals to whom a particular misrepresentation has been made or from whom a relevant fact, circumstance or proposal was withheld, but are members of a class to which the conduct in question was directed in a general sense, it is necessary to isolate by some criterion a representative member of that class. The inquiry thus is to be made with respect to this hypothetical individual why the misconception complained has arisen or is likely to arise if no injunctive relief be granted. In formulating this inquiry, the courts have had regard to what appears to be the outer limits of the purpose and scope of the statutory norm of conduct fixed by s 52 [ cf Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5 ; [1999] 2 AC 22 at 30-31]. Thus, in Puxu , Gibbs CJ observed that conduct not intended to mislead or deceive and which was engaged in "honestly and reasonably" might nevertheless contravene s 52 [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 197]. Having regard to these "heavy burdens" which the statute created, his Honour concluded that, where the effect of conduct on a class of persons, such as consumers, was in issue, the section must be "regarded as contemplating the effect of the conduct on reasonable members of the class" [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 199]. There are a number of matters that emerge from the High Court's statement of principle in Campomar that will guide a Court in determining whether there has been a contravention of s 52 in a situation where the representations complained of have been made to the general public or a section thereof. First, it is necessary to identify the relevant class of people to whom the scratch cards were distributed. It is clear that the relevant class was very wide comprising readers of a broad range of newspapers and magazines with widespread appeal and circulation. It would include people who had not previously received premium mobile phone content and who were unfamiliar with the nature of such services, the manner in which they are activated or the prices charged for them. Secondly, it is necessary to identify the members of that class with a view to postulating a hypothetical individual to whom the attributes of the class can be attributed. That person will be an "ordinary and reasonable" member of that class who takes reasonable care of his or her own interests. But that is not to say that he or she will always be alert to the existence of fine print that might qualify in important ways more prominent statements which capture their attention to begin with.