Australian Competition and Consumer Commission v Birubi Art Pty Ltd

The Australian Competition and Consumer Commission (ACCC) brought an action against Birubi Art Pty Ltd, a wholesaler, for alleged misleading or deceptive conduct under the Australian Consumer Law (ACL). The dispute centered on whether Birubi engaged in conduct that misled consumers by implying that certain product lines were hand painted, or made, by Aboriginal people and/or were made in Australia when the products were actually manufactured in Indonesia. The court was required to determine the scope of the surrounding circumstances to be considered in assessing whether false or misleading representations were made and whether these circumstances included the way the products were presented by third-party retailers, the characteristics of other products for sale, and the products' price placement relative to other products.

The court found that the surrounding circumstances could include the manner in which the products were presented in retail outlets by third parties, the characteristics of other products for sale in those outlets, and the products' price placement vis-a-vis other products. It was held that all the products breached section 18 and subsection 29(1)(a) and (k) of the ACL, while the boxed boomerangs, didgeridoos and message stones breached section 33 of the ACL. The court concluded that it was likely that a reasonable consumer would be misled into thinking that the products were hand painted by Aboriginal persons and were made in Australia. This finding was made despite the absence of a direct dispute as to the literal truth of the express representations.

The court allowed the application for declaratory relief in part and directed the parties to file and serve an outline of written submissions on the terms of the declaratory relief proposed. The matter was listed for case management for the second stage of the trial, and the parties were directed to endeavour to agree on the terms of the declaratory relief in the first instance.