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Commissioner for Fair Trading v Microwave Safe Australia Pty Ltd

Commissioner for Fair Trading v Microwave Safe Australia Pty Ltd

Case [2006] NSWSC 287 19 April 2006

Misleading or Deceptive Conduct

Misrepresentation

Unconscionable Conduct

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CITATION: Commissioner for Fair Trading v Microwave Safe Australia Pty Ltd & Anor [2006] NSWSC 287

HEARING DATE(S): 8, 9, 10, 13, 14 March 2006

JUDGMENT DATE :
19 April 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Studdert J

DECISION: (1) Declarations as sought in paras 1(a), 1(c), 1(e), 1(f) and paras 2 and 3 of the summons; (2) Order as sought in para 5 of the summons, save for the inclusion in (b) after the word "tested" of the word "regularly"; (3) Order as sought in para 6 of the summons, save, again, for the addition in (b) after the word "tested" of the word "regularly"; (4) Order that the defendants pay the plaintiff's costs; (5) To enable the parties the opportunity of being heard as to the form of the corrective advertisement the Court intends to order, the matter be listed for mention on 26 April 2006.

LEGISLATION CITED: Electricity (Consumer Safety) Act, 2004
Electricity Safety Act, 1945
Fair Trading Act, ss, 42, 44, 62, 65, 67
Occupational Health and Safety Act

CASES CITED: Aaron's Reefs Limited v Twiss (1896) AC 273
Adler v ASIC (2003) 179 FLR 1
Australian Competition and Consumer Commission v Top. Snackfoods Pty Limited & Ors (1999) ATPR 41-708
Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45
Domain Names v .au Domain Administration (2004) 139 FLR 215
Global Sportsman Pty Limited v Mirror Newspapers (1984) 2 FLR 82
Heydon, Trade Practices Law
Hornsby Building Information Centre v Sydney Building Information Centre (1978) 140 CLR
Medical Benefits Fund of Australia Limited v Cassidy (2003) 135 FCR 1
Rural Press Limited v The ACCC (2003) 216 CLR 53
Siddons Pty Limited v The Stanley Works Pty Limited (1991) 29 FCR 14
Taco Co. v Taco Bell (1982) 42 ALR 177
World Series Cricket Pty Limited v Parish (1977) 16 ALR 181

PARTIES: Commisioner for Fair Trading, Department of Commerce (Plaintiff)
Microwave Safe Australia Pty Limited (1st Defendant)
Jason Crosson (2nd Defendant)

FILE NUMBER(S): SC 11817/05

COUNSEL: P. Renehan (Plaintiff)
M. Hadley (Defendants)

SOLICITORS: Department of Commerce and Fair Trading (Plaintiff)
KQ Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Wednesday 19 April 2006

11817/05 COMMISSIONER FOR FAIR TRADING, DEPARTMENT OF COMMERCE v MICROWAVE SAFE AUSTRALIA PTY LIMITED & ANOR
JUDGMENT

1 HIS HONOUR: In these proceedings the Commissioner for Fair Trading, Department of Commerce seeks various declarations and restraining orders against the first defendant, Microwave Safe Australia Pty Limited, and the second defendant, Jason Crosson. The plaintiff also seeks orders pursuant to s 67 of the Fair Trading Act requiring the publication of corrective material.

2 At the outset it is necessary to outline the nature of the defendants’ business.

3 The second defendant holds the degree of Bachelor of Applied Science from the Sydney University of Technology, having graduated in 1993. In 1995 he decided to establish a business of microwave radiation testing, servicing microwave ovens in workplace environments. He registered the…

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

AGLC: Commissioner for Fair Trading v Microwave Safe Australia Pty Ltd [2006] NSWSC 287
Case: [2006] NSWSC 287
Decision Date: 19 April 2006

CaseChat Overview and Summary

The Commissioner for Fair Trading, Department of Commerce, initiated legal proceedings against Microwave Safe Australia Pty Limited (MSA) and its director, Jason Crosson, alleging that they engaged in misleading and deceptive conduct under the Fair Trading Act. The plaintiff claimed that MSA published promotional material suggesting that employers had to regularly test their microwave ovens for radiation leakage to meet their duty of care, which was misleading and deceptive. The court found that the promotional material conveyed the misleading representation that regular testing was necessary, contrary to expert evidence and authoritative guidelines. The court also found that MSA used Department of Commerce envelopes for mailing their promotional material, falsely suggesting an affiliation with government authorities. The court granted the plaintiff's requests for declarations and injunctive relief, and ordered corrective advertising. The court further ordered that the defendants pay the plaintiff's costs.

Orders