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Bembridge v Just Spectacles Pty Ltd

Bembridge v Just Spectacles Pty Ltd

Case [2006] WASC 185 25 August 2006

Misrepresentation

Unconscionable Conduct

Consumer Protection

False Advertising

Consumer Law

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BEMBRIDGE -v- JUST SPECTACLES PTY LTD [2006] WASC 185

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 185
Case No:	SJA:1013/2006	Heard:	10 AUGUST 2006
Coram:	MURRAY J	Delivered:	25/08/06
No of pages:	15	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
PDF Version

Parties:	KARIN HOPE BEMBRIDGE JUST SPECTACLES PTY LTD
Catchwords:	Criminal law and procedure Prosecution for false and misleading advertising Poster displayed in shopping mall Whether poster constituted a false or misleading representation concerning conditions applicable to a free offer Whole context of poster to be considered but not allied advertisements Relevance of suggestion of mere puffery Whether representation by poster materially inaccurate
Legislation:	Fair Trading Act 1987 (WA), s 12, s 13, s 69
Case References:	ACCC v Commonwealth Bank (2003) 133 FCR 149 Mitchell v Valherie (2005) 93 SASR 76 Nationwide News Pty Ltd v ACCC (1996) 71 FCR 215 Pappas v Soulac Pty Ltd (1983) 50 ALR 231 Samuels v Western Australia (2005) 30 WAR 473 SAP Australia Pty Ltd v Sapient Australia Pty Ltd (1999) 169 ALR 1 ACCC v Kaye [2004] FCA 1363 ACCC v Nationwide News Pty Ltd (1996) 36 IPR 75 ACCC v Signature Security Group Pty Ltd [2003] FCA 3 Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 Cassidy & Anor v Medical Benefits Fund of Australia & Anor (No 2) [2002] FCA 1097 Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608 Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (2000) ATPR 41-751 George Weston Foods Limited v Goodman Fielder Ltd (2000) 49 IPR 553 Gillette Australia Pty Ltd v Energizer Australia Pty Ltd [2005] FCA 1647 Guthrie v Doyle Dane Bernbach Pty Ltd (1977) 30 FLR 116 Medical Benefits Fund of Australia Ltd v Cassidy (2004) 205 ALR 402 National Exchange Pty Ltd v ASIC [2004] FCAFC 90 Parkdale Custom Build Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 St Luke's Health Insurance v Medical Benefit Fund of Australia Ltd (1995) ATPR 40 Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 111 ALR 61 Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326 Universal Telecaster v Guthrie (Q) Ltd (1978) 32 FLR 360

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BEMBRIDGE -v- JUST SPECTACLES PTY LTD [2006] WASC 185 CORAM : MURRAY J HEARD : 10 AUGUST 2006 DELIVERED : 25 AUGUST 2006 FILE NO/S : SJA 1013 of 2006 BETWEEN : KARIN HOPE BEMBRIDGE

Applicant

AND

JUST SPECTACLES PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R K BLACK

File No : PE 37350 of 2004

Catchwords:

Criminal law and procedure - Prosecution for false and misleading advertising - Poster displayed in shopping mall - Whether poster constituted a false or misleading representation concerning conditions applicable to a free offer -…

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.

Continue reading Bembridge v Just Spectacles Pty Ltd

Details

AGLC: Bembridge v Just Spectacles Pty Ltd [2006] WASC 185
Case: [2006] WASC 185
Decision Date

CaseChat Overview and Summary

Bembridge v Just Spectacles Pty Ltd is a case in which the Supreme Court of Western Australia considered whether a poster displayed by the respondent constituted a false or misleading representation in contravention of the Fair Trading Act 1987 (WA). The poster in question displayed the phrase 'Double for Nothing' and offered a second pair of glasses free when one pair was purchased. The respondent was acquitted of the charge, but the complainant sought leave to appeal the decision. The appeal was allowed on the basis that the poster made a materially inaccurate representation, and the qualification of the offer in small print was not effective in conveying the conditions to the ordinary reader. The court found that the poster constituted a false or misleading representation concerning the existence of conditions applying to the offer. The appeal was allowed, the acquittal set aside, and a conviction substituted. The matter was remitted for consideration of the appropriate penalty.

Orders