ss. 52, 53(a), 53(eb). Alleged misleading or deceptive conduct, false or misleading representations.
Proceedings instituted on 28.11.03 in the Federal Court, Sydney, alleging misleading country of origin labelling of a honey drink, the ‘Ixon Club Propolis Drink’.
On 16 December 2003 Justice Wilcox granted the ACCC leave to effect service outside the Commonwealth on Ixon in Japan.
The next directions hearing will be on 11.6.04 in the Federal Court, Sydney.
ss. 52, 53(e), 53A. Alleged misleading or deceptive conduct, false or misleading representations.
Proceedings instituted on 5.12.03 in the Federal Court, Melbourne, alleging real estate underquoting in the advertisements for the sale of a property in Victoria. This did not accurately reflect the wishes of the vendors or the market value of the property.
A directions hearing was set for 15.3.04 before Registrar Efthim.
s. 52. Alleged misleading or deceptive conduct in relation to the authenticity of Aboriginal souvenirs.
Proceedings instituted on 5.9.03 in the Federal Court, Brisbane, against Australian Aboriginal Art Pty Ltd (AAA) and its former directors, Mr Henry de Jonge and Mr Bruce Read. The AAA has allegedly engaged in misleading or deceptive conduct by making certain representations about the authenticity of the Aboriginal-style souvenirs it manufactured and distributed to souvenir retailers throughout Australia and advertised on its website. By placing stickers on souvenir products stating ‘Australian Aboriginal Art’, ‘Aboriginal Art’ and/or ‘Authentic’, AAA represented that those souvenirs were made by Aboriginal artists or artists who were of Aboriginal descent.
Most of the artists employed by AAA are neither Aboriginal nor of Aboriginal descent. The ACCC also alleged that both Mr de Jonge and Mr Read were knowingly concerned in the alleged contraventions by AAA. The ACCC is seeking declarations, injunctive relief, orders for corrective advertising to be provided to retailers of AAA souvenirs and to be placed on its website and orders requiring Mr de Jonge and Mr Read to attend a trade practices compliance seminar.
Mr de Jonge is a director of Australian Icon Products Pty Ltd (AIP) and Mr Read was the former general manager of that company. The ACCC had earlier instituted proceedings against AIP regarding similar conduct. However, AIP went into liquidation and its assets were allegedly transferred to AAA. The ACCC sought both default and summary judgment against AIP and the matter has been stood over to be heard concurrently with the AAA matter.
On 9.10.03 directions providing for an interlocutory timetable were made by consent. The matter was returned for further directions on 8.12.03. The matter has been set down for trial on 6.5.04.
Proceedings for contempt instituted on 30.9.03 in the Federal Court, Sydney, against Mr David ZeroPopulationGrowth Hughes.
Mr Hughes has allegedly supplied contraceptives in breach of orders made by Justice Alsop in March 2002.
In 2002 the ACCC successfully brought an action against Mr Hughes, trading as Crowded Planet, for breaches of the Trade Practices Act about advertisements published on the internet on the supply of oral contraceptives.
The ACCC alleged that Mr Hughes has not complied with those orders by supplying contraceptives into the United States of America and contracting to supply in Australia.
Henry Kaye and National Investment Institute Pty Ltd,
s. 52. Alleged misleading or deceptive conduct.
Proceedings instituted on 30.9.03 in the Federal Court, Melbourne, against Mr Henry Kaye and National Investment Institute Pty Ltd (NII) alleging misleading and deceptive conduct over the promotion of a ‘millionaires’ property investment strategy.
At an initial hearing on 8.10.03 in the Federal Court, Melbourne, Henry Kaye and NII agreed not to publish any further advertisements promoting his ‘millionaires’ property investment strategy pending the final outcome of the court proceedings.
On 25.11.03 NII went into voluntary external administration, and the ACCC’s proceedings against the company (but not Mr Kaye) were automatically stayed under s. 440D of the Corporations Act 2001.
At a directions hearing on 24.12.03 Justice Goldberg set down an amended interlocutory timetable after considering factors including issues relating to the appointment of a receiver and administrator to NII.
On 18.2.04 NII went into liquidation following a meeting of creditors, and the ACCC’s action is being pursued against Mr Kaye.
The trial of the case started on 9.3.04 before Justice Kenny.
Domain Names Australia Pty Ltd and Chesley Paul Rafferty,
ss. 52, 64(2A). Alleged misleading or deceptive conduct, unsolicited services—asserted right to payment.
Proceedings instituted on 17.9.03 in the Federal Court, Melbourne, against internet domain name supplier, Domain Names Australia Pty Ltd and its sole director, Chesley Paul Rafferty. The ACCC alleges that Domain Names has made false or misleading representations to businesses that held a registered internet domain name since at least June 2003. Domain Names sent notices inviting them to register a new internet domain name that was substantially similar to the business’s existing domain name and styled like an invoice.
The matter was heard at trial on 19.11.03 before Justice Finkelstein. Awaiting judgment.
ss. 52, 53(e). Alleged false, misleading or deceptive conduct regarding the price of legal services provided by Morgan Buckley to clients.
Proceedings instituted 27.6.03 in the Federal Court, Darwin, against Morgan Buckley and Anthony Whitelum, a partner and legal practitioner of the law firm.
Morgan Buckley has allegedly issued tax invoices for legal fees to a client that implicitly represented that the invoices had been calculated in accordance with the retainer agreement between Morgan Buckley Pty Ltd and the client.
The ACCC alleged that the fee invoices had not been calculated in accordance with the retainer agreement with the result that the client had been overcharged. The case has been tentatively listed for hearing on 28.6.04.
ss. 52, 53(c), 55A. Alleged misleading and deceptive conduct, false or misleading representations, misleading conduct in relation to services.
Proceedings instituted on 1.7.03 in the Federal Court, Sydney.
Australian Biologics provides medical services including thermography, live blood analysis and the Bolans clot retraction test. It promoted these services in printed brochures and on the internet.
Australian Biologics allegedly did not have reasonable grounds for making several specific statements about thermography, live blood analysis and the Bolans clot retraction test.
The matter has been listed for hearing on 26.7.04.
s. 52. Alleged misleading and deceptive conduct in relation to representations that hand painted or carved Indigenous-style souvenirs were done by persons of Aboriginal descent.
On 19.3.03 proceedings were instituted in the Federal Court, Brisbane. On 4.4.03 interim orders, including injunctions and corrective notices, were granted by consent.
Directions hearing 23.5.03 adjourned until 4.7.03. Australian Icon went into voluntary administration on 23.6.03 and resolved on 2.7.03 that it would be wound up. A notice of motion seeking leave to proceed and summary judgment regarding declaratory relief and costs was filed on 27.6.03 and adjourned to 12.9.03. On 10.7.03 an amended notice of motion was filed seeking default judgment in the alternative and declaratory relief only. On 12.9.03 there was a hearing of an amended notice of motion and application for leave to proceed, adjourned to 6.5.04—to be heard together with ACCC v Australian Aboriginal Art Pty Ltd & Ors for which proceedings were instituted on 5.9.03.
Global Pre Paid Communications Pty Ltd and In-Touch Networks Pty Ltd,
ss. 52, 59. Alleged misleading representations about the level of projected profitability, location support and maintenance of vending machines that sell pre-paid telephone cards.
On 19.3.03 proceedings instituted in the Federal Court, Sydney.
On 9.4.03 the first directions hearing. Justice Gyles ordered timelines for requests for further and better particulars and filings of defences.
On 11.6.02 the companies were placed under external administration.
On 17.7.03 the second directions hearing. Justice Gyles ordered that the applicant file and serve the ACCC’s amended statement of claim by 21.7.03; the respondent file and serve their defences by 18.8.03 and that the respondent could make any notice of motion (in relation to pleadings) by 13.8.03.
On 25.7.03 a notice of motion seeking orders for substituted service on two individuals yet to be served was made. The court agreed with the ACCC’s proposed orders regarding service and all individuals have since been served.
On 7.8.03 a notice of motion was filed by 3rd and 4th respondents to strike out the statement of claim and on 13.8.03 the strike out application was heard and judgment was reserved. On 31.10.03 the statement of claim was stuck out and the ACCC was given 28 days to file an amended statement of claim. In his judgment Justice Gyles was not critical of the ACCC and was also sympathetic to the difficulty in drafting a statement of claim of this nature.
On 28.11.03 he ordered an extension on filing the further amended statement of claim which was then filed on 18.12.03. A further directions hearing is scheduled for 19.4.04.
Emerald Ocean Distributors Pty Ltd, Slendertone Health and Beauty Pty Ltd,
ss. 51A, 52, 53(c). Alleged false and misleading representations by a firm about the benefits of electronic muscle stimulation products.
Proceedings instituted on 19.7.00 in the Federal Court, Perth. A directions hearing was held on 18.12.01. Leave was granted to the respondents to join the parent company, Bio Medical Research Ltd located in Ireland, as a cross respondent to the action and to serve notice outside of Australia and in Ireland. On 4.4.02 Justice Nicholson ruled that the cross-claim issue was to be heard at the trial for the main action. The trial commenced on 22.7.02 and the matter has been partly heard. A directions hearing was held on 7.11.02 with arguments put forward on the admissibility of the respondent’s expert and lay witnesses.
Justice Nicholson provided a ruling on these issues on 4.2.03, allowing most of the ACCC’s objections to the respondent’s lay witnesses to stand, but allowed the respondent’s expert witnesses to give evidence.
The trial recommenced on 11–14.3.03, 19–20.6.03 and 28–29.7.03 and 17.12.03.The ACCC has sought leave to amend its application which was objected to by both respondents. Submissions from all parties on this issue were filed with the court following orders by Justice Nicholson. Proposed consent orders for the filing of closing submissions by all parties once Justice Nicholson has ruled on the ‘leave to amend’ issue have been provided to the court.
ss. 52, 56, 58. Alleged misleading or deceptive conduct, bait advertising and accepting payment not intending to supply.
Proceedings instituted on 23.1.01 when the ACCC asked for an interim injunction in the Federal Court, Adelaide. A hearing on 24.1.01 removed the matter to the WA Federal Court. An ex parte interim injunction restrains the company from, among other things, advertising and accepting orders for computers and/or upgrades, and freezes the company’s business bank account.
On 31.7.02 Info4pc and James Rae, were fined a total of $14 000 and ordered to pay costs on two motions for contempt of court dated 31.1.01 and 7.5.01.
Procedural orders regarding discovery and other matters were made on 2.4.03. The matter is now only continuing against the director, James Rae, in view of ASIC’s deregistration of Info4pc following failure by the company to comply with the reporting requirements of the Corporations Act 2001. Further directions are being sought.
ss. 52, 53(a), 53(eb), 55. Alleged misleading country of origin claims.
Proceedings were instituted on 13.8.01 in the Federal Court, Melbourne. Between March 1999 and June 2000 Berri allegedly supplied Coles Supermarkets Australia Pty Ltd with Farmland brand orange juice concentrate that was labelled ‘Made in Australia from Australian Fruit Juice’. The product allegedly contained imported juice.
The ACCC instituted further proceedings against Berri on 14.12.01 alleging the use of a seasonal qualifier on its pineapple juice products was misleading. The two proceedings have now been consolidated.
On 1.11.01 the ACCC instituted contempt proceedings against World Netsafe Pty Ltd and its sole director, Terence Butler. On 2.11.01 consent orders were made on the basis of the following undertakings by Mr Butler, that he:
would not to leave Australia without first receiving the ACCC’s written consent
would deliver all of his passports to the Registrar of the Federal Court who would hold it or them unless authorised in writing by the ACCC to release it or them to Mr Butler
would not, before 9.11.01 sell or agree to sell his property situated at Brookfield, Brisbane.
On 9.11.01 through his legal representatives, Mr Butler undertook not to sell, dispose or further encumber or otherwise deal with his interest in his Brookfield property without first giving the ACCC five business days written notice of his intention to do so. Justice Spender also ordered by consent of all parties that Mr Butler:
complete a statement of the financial position of World Netsafe and a personal statement of his own financial position by 26.11.01
deliver to the Registry of the Federal Court a list of documents on the financial position of him and the company on or before 26.11.01
attend before the Registrar of the Federal Court to give information and answer questions about his personal property and the property of World Netsafe on a date to be notified by the Registrar.
On 6.3.03 Justice Spender found two counts of contempt against Mr Butler relating to one of the World Netsafe websites and the lack of information to the ACCC in accordance with the substantive orders of 8.12.00. On 16.12.03 Justice Spender ordered that on the first and second counts of contempt:
Butler pay a fine of $1000 within 28 days
Butler be imprisoned for one month with a warrant for committal to prison issued
the warrant lie in the Registry and not be executed provided Mr Butler publish a notice on the website www.worldnetsafe.com.au for a period of six months and cause a copy of the notice to be sent to the ACCC along with a list of names and addresses of those persons who were sent the notice by post.
The ACCC was also ordered to pay a third of the respondent’s costs on the notice of motion for committal of contempt.
NRMA Health Pty Ltd trading as SGIC Health and SGIO Health, NRMA Insurance Ltd and Saatchi & Saatchi Australia Pty Ltd,
ss. 12DA, 12DB, 12DF of the ASIC Act. Alleged misleading or deceptive conduct.*
Proceedings instituted on 5.11.01 in the Federal Court, Sydney, against NRMA Health Pty Ltd, NRMA Insurance Limited and Saatchi & Saatchi Australia Pty Ltd alleging misleading and deceptive advertising of health insurance products.
The companies allegedly used print advertisements that depicted a woman nursing a new born baby, made representations guaranteeing ‘free delivery’ ‘no matter how advanced your pregnancy is’ to entice consumers to transfer or join their health insurance funds. The ACCC sought court orders including declarations that the companies contravened the relevant provisions of the Australian Securities and Investments ACCC Act 1989.
On 4.7.02 the Federal Court made orders by consent for NRMA Health Pty Ltd and NRMA Insurance Ltd. The orders included declarations that NRMA Health breached the relevant provisions of the ASIC Act, a requirement that NRMA Health inform consumers of the misleading conduct, waiver of waiting periods for those who were misled and the availability of refunds for excesses and co-payments.
* Proceedings were instituted under ss. 12DA, 12DB(1)(c), 12DB(1)(e), 12DB(1)(g), 12DF of the ASIC Act as opposed to the Trade Practices Act. Until March 2002 health insurance was regulated through the ASIC Act. ASIC had, however, formally delegated the regulation of all consumer protection aspects of health insurance to the ACCC through the use of nominated ACCC officers as delegates.
ss. 12DA, 12DB, 12DF of the ASIC Act. Alleged misleading or deceptive conduct.*
On 16.12.03 the Full Federal Court overturned the original decision that John Bevins Pty Ltd, the advertising agency for Medical Benefits Fund of Australia Ltd (MBF), was knowingly concerned in contraventions by virtue of its role in creating misleading advertisements. The Full Federal Court previously affirmed an earlier decision that television advertising by MBF between May and June 2001and on billboards in August and September 2001 was misleading.
Justices Stone, Mansfield and Moore agreed that John Bevins Pty Ltd was not knowingly concerned in MBF's contravention. Justice Stone found to have been knowingly concerned, the advertising agency would have to have known the advertisements were misleading or deceptive. Justices Moore and Mansfield did not agree with this approach. The respective approaches to the interpretation of what is required to prove accessorial liability in the context of s. 52 of the Act and its analogues is currently the subject of an application by the ACCC for special leave to appeal to the High Court.
* Proceedings were instituted under ss. 12DA, 12DB(1)(c), 12DB(1)(e), 12DB(1)(g), 12DF of the ASIC Act as opposed to the Trade Practices Act. Until March 2002 health insurance was regulated through the ASIC Act. ASIC had, however, formally delegated the regulation of all consumer protection aspects of health insurance to the ACCC through the use of nominated ACCC officers as delegates.
See ACCC news release: Full Federal Court upholds decision that MBF Health Insurance advertising was false and misleading
ss. 51A, 51AA, 51AC, 52, 53(a), 53A, 53(c), 53(e). Alleged representations as to future events without reasonable grounds, unconscionable conduct, misleading or deceptive conduct, misleading representations about the standard, quality, value, grade, composition, style, model, or history of goods or services, false or misleading representations in relation to the sale of land, misrepresentations about the performance characteristics of goods, false or misleading representations about the price of goods and services.
On 18.12.03 the Federal Court, Brisbane, found Oceana Commercial and various parties innocent of an alleged property marketing scheme on the Gold Coast. The ACCC will appeal some aspects of the judgment.
According to Justice Kiefel the ACCC did not establish that the prices paid were above the fair market value or that the lawyer involved in the conveyancing of the property had contravened the Act. The appeal will be heard before the Full Federal Court in May 2004.
ss. 52, 53(a), 55. Alleged misleading labels on cordial products.
Proceedings instituted on 22.3.02 in the Federal Court, Melbourne. Cadbury Schweppes are allegedly supplying drink products labelled with pictures of real fruit when they do not contain the fruit pictured.
The trial took place on 18 and 19.6.03 and the parties are now awaiting judgment.
ss. 52, 55A, 64. Alleged misleading or deceptive conduct, certain misleading conduct in relation to services, assertion of right to payment for unsolicited goods or services or for making entry in directory.
On 28.3.02 proceedings instituted in the Federal Court, Perth. The Swiss-based company, IT&T AG, allegedly engaged in misleading and deceptive conduct in its operations of an international fax directory.
On 2.5.02 the ACCC filed an ex parte notice of motion. Justice Nicholson granted leave to serve out of jurisdiction. On 13.8.03 Justice Nicholson made orders giving IT&T AG leave to file a notice of appearance and a defence within the timeframes set out in the orders. Failure to file a notice of appearance and a defence within these timeframes (28 and 56 days respectively of service of the orders on the respondent) will result in judgment against IT&T AG. The matter is listed for trial on 8.7.04.
ss. 52, 56. Alleged misleading or deceptive conduct, bait advertising.
Proceedings instituted on 7.11.02 in the Federal Court, Melbourne, against three companies in the Harvey Norman group. Before the introduction of the GST in June 2000, national advertising was allegedly conducted for Harvey Norman Computers and Communications stores which featured a promotion for GST-related software.
Investigation of this matter began in July 2000 but was delayed because of other court proceedings during the process of investigation. The ACCC also took action to have five franchisee companies reinstated that were voluntarily de-registered during the investigation process.
A further directions hearing is scheduled for the first available date in May 2004.
ss. 52, 53 and 55. Alleged misleading or deceptive conduct in the promotion of certain products which were represented as assisting in weight loss.
Civil proceedings instituted in the Federal Court, Melbourne, on 31.10.02. The ACCC is seeking declarations that Mr Francis breached the Act when he promoted a series of products that could supposedly assist in weight loss. Directions hearings were held on 21.11.02 and 31.3.03. An application for final orders to be made in the proceedings by consent of the parties was heard on 6.5.03. The ACCC is waiting for the court’s decision.
ss. 52, 51A, 53(c). Alleged misleading or deceptive conduct, representations as to future matters, misrepresentations that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have.
Proceedings were instituted on 14.11.02 against Pest Free Australia Pty Ltd, a company that supplies a device that claims to rid premises of rats, cockroaches and other pests.
The ACCC alleged that Pest Free made false and misleading representations about the performance characteristics of its ‘Plug In Pest Free’ electronic device in various media advertisements, on its website and in various brochures and promotional material.
A preliminary hearing before Justice Emmet took place on 11 and 12.2.04 to determine a number of questions. The judge has reserved his judgment in the matter.
See ACCC news release: ACCC Institutes Against Pest Free Australia Pty Ltd Over its Plug-in Pest Free Device Alleging Misleading Conduct
