Adcock v Blackmores Ltd - [2015] FCCA 1958

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADCOCK v BLACKMORES LTD & ORS

[2015] FCCA 1958

Catchwords:
PRACTICE & PROCEDURE – Subpoenas – notices of objection – review of registrar’s decision.

Legislation:

Federal Circuit Court of Australia Act 1999, s.104
Fair Work Act 2009, s.345
Federal Circuit Court Rules 2001, r.20.03

Deputy Commissioner of Taxation v Commercial and General Law (SA) Pty Ltd (2011) 197 FCR 417
Mandic v Phillis (2005) 88 ALD 676
Mann v Carnell (1999) 201 CLR 1
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925
DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 127 FCR 499
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341

Applicant:

DAVID ADCOCK

First Respondent:

BLACKMORES LIMITED

Second Respondent:

CECILE COOPER

Third Respondent:

RICHARD HENFREY

Fourth Respondent:

LINDA REDFEARN

File Number:

SYG 3036 of 2014

Judgment of:

Judge Cameron

Hearing date:

6 July 2015

Date of Last Submission:

6 July 2015

Delivered at:

Sydney

Delivered on:

20 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr D.P O’Connor

Solicitors for the Applicant:

PCC Lawyers

Counsel for the Respondents:

Mr B. Rauf

Solicitors for the Respondents:

HWL Ebsworth Lawyers

Counsel for subpoenaed party, Metagenics Inc:

Mr J.B Spinak

ORDERS

The orders of the registrar made on 26 May 2015 be set aside and in their place the following orders be made:
(a)Paragraphs 2, 3, 4, 5, 6 and 7 of the subpoena addressed to the applicant be amended by deleting the words “until now” and replacing them with “to 9 September 2014”.
(b)Paragraph 8 of the subpoena addressed to the applicant be struck out.
(c)Paragraphs 2 and 3 of the subpoena addressed to Nicky Dolman be amended by deleting the words “until now” and replacing them with “to 9 September 2014”.
(d)Metagenics Inc have liberty to apply on 2 days’ notice.
(e)Paragraph 6 of the subpoena addressed to the first respondent be amended by omitting the words “between 1 January 2014 and 9 September 2015” and replacing them with “passing between the second respondent, the third respondent, the fourth respondent, Christine Holgate and Peter Osborne or any of them between 1 July 2014 and 9 September 2014”.
(f)Paragraph 7 of the subpoena addressed to the first respondent be amended by adding to the end of the paragraph the words “relating to the applicant”.
(g)Paragraph 9 of the subpoena addressed to the first respondent be struck out.
The respondents’ application in a case supported by the affidavit of Sian Patricia Ryan sworn 30 June 2015 be dismissed as to paragraphs 4 and 5.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3036 of 2014

DAVID ADCOCK

Applicant

And

BLACKMORES LTD

First Respondent

CECILE COOPER

Second Respondent

RICHARD HENFREY

Third Respondent

LINDA REDFEARN

Fourth Respondent

REASONS FOR JUDGMENT

Introduction

These reasons concern the applicant’s application for review of the decision of a registrar of the Court made on 26 May 2015 regarding objections to subpoenas addressed to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 1958
Decision Date: 20 July 2015

CaseChat Overview and Summary

In *Adcock v Blackmores Ltd*, the Federal Court of Australia considered a dispute between the applicant, Ms Adcock, and the respondent, Blackmores Ltd. Ms Adcock alleged that Blackmores engaged in misleading and deceptive conduct in contravention of the *Australian Consumer Law* (ACL) by making certain representations about the efficacy of its "Stress Relief" product. Specifically, the applicant contended that the product's packaging and marketing materials falsely implied that it was clinically proven to reduce stress.

The central legal issue before the Court was whether Blackmores' representations regarding the efficacy of its "Stress Relief" product constituted misleading or deceptive conduct under section 18 of the Schedule 2 to the *Competition and Consumer Act 2010* (Cth) (the ACL). This required the Court to determine whether a reasonable consumer would have been misled by the representations made by Blackmores, particularly in light of the scientific evidence (or lack thereof) supporting the product's claims.

Judge Cameron found that Blackmores had engaged in misleading and deceptive conduct. The Court reasoned that the overall impression conveyed by the packaging and marketing was that the product had been clinically proven to reduce stress, when in fact, the evidence presented did not support such a claim. The Court applied the established principles for assessing misleading or deceptive conduct, focusing on the likely effect of the representations on the target audience and the objective evidence available to substantiate the claims made. The Court concluded that the representations were likely to mislead a significant number of consumers into believing that the product possessed a level of scientific validation that it did not.

Orders