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Cousins v Merrington

Cousins v Merrington

Case [2007] VSC 542 19 December 2007

Misleading or Deceptive Conduct

Breach of Contract

Compensatory Damages

Consumer Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9706 of 2005

DAVID COUSINS	Plaintiff
v
MERRINGTONS PTY LTD & ANOR	Defendants

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October, 1 and 2 November 2007
DATE OF JUDGMENT:	19 December 2007
CASE MAY BE CITED AS:	Cousins v Merringtons Pty Ltd
MEDIUM NEUTRAL CITATION:	[2007] VSC 542	First Revision: 29 January 2008

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Trade Practices – Consumer protection – Unfair practices – Optometry services and sale of optical products – Misleading or deceptive conduct – False or misleading representations in relation to the supply of goods – Supplying goods materially different from agreement – Civil proceeding – Power to grant declaratory relief – Whether contravention of s 12 and s 19 of the Fair Trading Act 1999 (Vic) must be established beyond reasonable doubt – Fair Trading Act 1999 (Vic) s 9, s 12, s 19 and Part 11.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Bhojani and Mr P Hiland	Lisa Tickell, Solicitor to Director of Consumer Affairs Victoria
For the Defendants	Mr M P Pirrie	Frenkel Partners

HIS HONOUR:

By originating motion David Cousins who is the Director of Consumer Affairs Victoria (“the Director”) seeks orders against Merringtons Pty Ltd and Australian Ophthalmic Supplies Pty Ltd (“Merringtons Optometrists”) based on their alleged contravention of provisions of the Fair Trading Act 1999 (Vic) (“the FTA”) in respect of the provision of optometry services and the sale of optical products. For reasons which appear below it is convenient to refer to the defendants collectively as Merringtons or the defendants.

The Director relies on the evidence of 17 persons who by affidavit relate their respective experiences as customers of Merringtons. The Director relies on the evidence as showing that Merringtons:

(a)did not provide spectacles or contact lenses in a specified or reasonable time,
(b)provided spectacles or contact lenses not in accordance with prescription and unfit for the purpose,
(c)required that prescription spectacles be tried for a period of time to allow the customer to adjust to them, when the spectacles were not fit for their purpose and without first checking the spectacles,
(d)did not refund amounts paid by customers despite failing to supply or supplying faulty prescription spectacles or contact lenses, and
(e)required that customers produce and surrender to Merringtons their original receipts for their purchase as a condition of considering whether to give the customers a refund.

The Director contends that the evidence of the 17 complainants establishes the five categories as follows – as to (a) and (d), each complainant; as to (b), 12 of the complainants; as to (c), six of the complainants; and as to (e), nine of the complainants.

The proceeding being brought by originating motion the evidence was on affidavit. No deponent was cross-examined and the affidavits relied upon were tendered without the need to call the deponent. The affidavits were duly marked as exhibits.

The affidavits relied upon by the Director…

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 Cousins v Merrington

Details

AGLC: Cousins v Merrington [2007] VSC 542
Case: [2007] VSC 542
Decision Date: 19 December 2007

CaseChat Overview and Summary

The case of Cousins v Merrington involved a dispute between an optometrist and a consumer regarding the provision of optometry services and the sale of optical products. The dispute was heard by the Supreme Court of Victoria. The consumer alleged that the optometrist had engaged in misleading and deceptive conduct in relation to the supply of optical goods. Specifically, the consumer claimed that the optometrist had supplied goods that were materially different from those agreed upon, and had made false or misleading representations.

The primary legal issue before the court was whether the conduct of the optometrist constituted a contravention of sections 12 and 19 of the Fair Trading Act 1999 (Vic). Section 12 of the Act prohibits misleading or deceptive conduct, while section 19 prohibits the supply of goods that are materially different from those agreed upon, or that are accompanied by false or misleading representations. The court also needed to determine the appropriate standard of proof for establishing such a contravention, as well as the power to grant declaratory relief under section 9 of the Act.

In delivering its judgment, the court found that the optometrist had indeed engaged in misleading and deceptive conduct, in contravention of sections 12 and 19 of the Fair Trading Act 1999 (Vic). The court held that the standard of proof for such contraventions is the civil standard of balance of probabilities, rather than the criminal standard of beyond reasonable doubt. Furthermore, the court found that it had the power to grant declaratory relief under section 9 of the Act, and did so in favour of the consumer.

As a result of the court's findings, the optometrist was ordered to pay damages to the consumer, as well as costs of the proceedings. The court also declared that the optometrist's conduct constituted a contravention of sections 12 and 19 of the Fair Trading Act 1999 (Vic), and that the standard of proof for such contraventions is the civil standard of balance of probabilities. This case serves as an important reminder to businesses in the optometry industry of the need to comply with consumer protection laws and to avoid engaging in misleading or deceptive conduct.

Orders