Country Road Clothing Pty Ltd v Najee Nominees Pty Ltd

[1991] FCA 135

NOT FOR DISTRIBUTION

JUD~MENT No. \35 / .... 91 .....

FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY ) VG No. 67 of 1991

)

GENERAL DIVISION	j
BETWEEN:

COUNTRY ROAD CLOTHING PTY LTD

Applicant

- and -

-E NOMINEES PTY LTD

Respondent

JUDGE:	Heerey J.
PLACE :	Melbourne
DATE :	28 March 1991

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EX TEMPORE =SONS FOR JUDGMENT

The procedural history of this case thus far will have emerged from the reasons I have already given. After those reasons were given in open court, counsel for Country Road made an application for leave to amend the statement of claim and to call evidence as to the location of Country Road shops at which the suit pictured in the advertisement was available for sale. It was said that there are only 11 such shops in Australia out of a total of 65 Country Road shops.

issues were.

The object of this application, it is said, is to put a case to show that the advertisement complained of is predicated on a false basis, namely that the ordinary consumer was able to make the comparison suggested in the advertisement. In my view it would be quite wrong to accede to that application. This case, for obvious commercial reasons, has had an accelerated progress but it was clear yesterday what the

This new matter is a matter entirely within the knowledge of Country Road and although litigation in substance was foreshadowed by a letter of demand on 18 March and despite the intensive preparation that must have been involved in connection with this case and in the running of it, the point has not emerged until today. Apart from anything else, part of Mr Gillard's submissions yesterday touched on the factual question whether the reader of the advertisement would or could make the comparison which the advertisement invites and that argument was taken into account in my coming to the conclusion that I did as to the meaning of the advertisement.

I think the application is without merit and it is dismissed.

I certify that this and the

preceding page are a true copy of the Reasons for Judgment of the Honourable Mr Justice Heerey

Dated: 2Y ;991

Appearances
Counsel for the Applicant:	Mr R Gillard QC with
Mr C D Golvan
Solicitors for the Applicant:	Coltmans
Counsel for the Respondent:	Mr R Merkel QC with Mr D Collins
Solicitors for the Respondent:	Howie and Maher
Dates of Hearing:	26, 27 March 1991