Cousins v Merrington

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 may be described as follows, in summary. Each of the 17 complainants swore one or (in the case of six complainants) two affidavits. In the case of four complainants there were affidavits by a treating optometrist. There was also an affidavit from an optometrist, David Southgate, who gave opinion evidence as to matters of ophthalmic practice and in respect of issues arising on the evidence of seven of the complainants. In addition there were some other affidavits which related to the facts and circumstances of certain of the complainants, and two affidavits by officers of Consumer Affairs Victoria.

The defendants relied on one affidavit sworn by Neil Arthur Purvis the General Manager of each defendant company.

Later in the judgment I refer further to the matter of the affidavits and the evidence.

For an evidentiary reason which arose during the hearing of objections to admissibility it became appropriate, and was accepted, that the matter of relief (assuming it arose) be deferred until I decided whether the Director had established a case. If and to the extent that the case is established I will hear counsel on the matter of relief.

I should say that the relief sought is extensive, including a raft of declarations and injunctions, orders for paying the 17 complainants their loss and damage suffered, and the publication and displaying of a public notice. Costs are also sought. On the matter of pecuniary loss and damage of the complainants, it is common ground that all complainants have received a full refund of the amounts they paid to Merringtons, some before and some after the commencement of the proceeding.

Although I do not rule on relief in this judgment it is necessary to refer to the basis on which the relief sought is founded as that indicates the provisions of the FTA that are relevant to the case and introduces the way in which the case is put.

As I have said, the originating motion seeks declarations, injunctions, orders for the payment of the amounts of loss and damage, and an order requiring the publication and displaying of a public notice. Each head of relief relies on a different statutory basis.

First, the declaratory relief is sought pursuant to the power to make a declaratory judgment in s 36 of the Supreme Court Act 1986 (Vic). More particularly:

(a)Four declarations are sought based on the defendants’ contravention of s 9 of the FTA. These declarations are general in terms (in the sense that they do not refer to individual complainants) and declare that the defendants have engaged in contravening conduct in the circumstances respectively comprehended by categories (a) to (e) above.
(b)Five declarations are sought based on the defendants’ contravention of s 12(k), (l) and (n) of the FTA, again expressed in general terms and comprehending conduct referred to in categories (a) to (e).
(c)Finally a raft of declarations is sought based on the defendants’ contravention of s 19 of the FTA. All of these declarations are specific to the complainants and are set out under the name of each complainant.

The injunctions, nine in all, are sought pursuant to s 149 and s 149A of the FTA.

The orders for the payment of loss and damage suffered are sought pursuant to s 158 of the FTA.

Finally, the public notice order is sought pursuant to s 149A and s 153(1) of the FTA.

It is thus apparent that the relief sought is founded on a variety of provisions in the FTA. It is necessary that I refer to these and some other provisions of the FTA.

Before referring to those provisions it is convenient to note that until 30 May 2007 the FTA did not expressly confer on the Court a power to make declaratory orders in a proceeding such as the present in respect of a contravention of the FTA. Since 30 May 2007 s 158(2)(h) – to which I refer below – has conferred power to make an order declaring that the defendant has contravened a provision of the FTA or the regulations. This proceeding commenced on 5 December 2005. It was not submitted by counsel for the defendants that the Court did not have power to grant declaratory relief. Rather, it was submitted that the power should not be exercised in respect of a contravention of s 12 or s 19 of the FTA as those sections provide only for the imposition of a penalty by way of a criminal proceeding and that the Court in its civil jurisdiction should not make a declaration in respect of alleged criminal conduct. I deal with the submission below.

It is convenient to say, for the sake of clarity, that apart from the above recent amendment to s 158(2) the Court had and has power to grant declaratory relief in a proceeding based on the contravention of a provision in Part 2 and 2A of the FTA[1]. The power is conferred by s 36 of the Supreme Court Act. The like conclusion was reached some years ago in the Federal Court of Australia in relation to the power to grant declaratory relief where s 52 of the Trade Practices Act 1974 (Cth) (“the TPA”) was held to have been contravened; see FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd[2] and on appeal RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd[3]. There, in the absence of power to grant declaratory relief in s 163A of the TPA it was held that the power to make declaratory orders was also to be found in s 21 of the Federal Court of Australia Act 1976 (Cth), which is the equivalent provision to, and to the same effect as, s 36 of the Supreme Court Act.
[1]I refer only to Parts 2 and 2A as the present case concerns only provisions in those Parts.
[2](1992) 108 ALR 479 at 507 per Foster J.
[3](1993) 112 ALR 511 at 514 per Davies J and at 522-524 per Beaumont and Spender JJ.

With this introduction I refer to the provisions of the FTA. In the present context it is useful to commence with the statement of purposes in s 1 which provides that:

“The main purposes of this Act are –
(a)to promote and encourage fair trading practices and a competitive and fair market;
(aa)to protect consumers;

(b)to regulate trade practices;
…
(c)to provide for the safety of goods or services supplied in trade or commerce and for the information which must be provided with goods or services supplied in trade or commerce; …”

Section 4 makes provision for representations as to future matters, as follows:

“(1)For the purposes of Part 2, if a person makes a representation about a future matter, including the doing of, or the refusing to do any act, and the person does not have reasonable grounds for making the representation, the representation is deemed to be misleading.”

Sub-section (2) provides that a person who makes a representation about a future matter “bears the burden of proving that he or she had reasonable grounds for making the representation”.

Sections 9, 12 and 19 are contained in Part 2 - Unfair Practices. Referring to them in turn, s 9(1) provides that:

“A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

Section 12 is concerned with false representations in relation to goods and services. Relevantly it provides that:

“A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion or advertising by any means of the supply or use of goods or services-
…
(k)make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy; or
(l)make a false or misleading representation about the production, manufacture, preparation or supply of any goods; or
…
(n)make a representation that is false, misleading or deceptive in any material particular.
Penalty:600 penalty units, in the case of a natural person.
1200 penalty units, in the case of a body corporate.”

Section 19 deals with accepting payment without being able to supply goods or services as ordered. It provides that:

“(1)A person who, in trade or commerce, accepts payment or other consideration for the supply of goods or services, and who-
(a)does not supply all the goods or services within the period specified by the person or, if no period is specified, within a reasonable time; or
(b)supplies goods or services that are materially different from the goods or services to which the agreement to supply related-

is guilty of an offence and liable to a penalty of not more than-
(c)600 penalty units, in the case of a natural person; or
(d)1200 penalty units, in the case of a body corporate.

(2)Sub-section (1) applies whether or not the payment or other consideration accepted by the person represents the whole or a part of the payment or other consideration for the supply of the goods or services.”

The Director submitted that certain of the contracts to supply prescription spectacles[4] were contracts to which s 19 of the Goods Act 1958 (Vic) (“Goods Act”) applied and that the contracts of the other complainants were contracts to which Part 2A of the FTA applied. The relevance here is the implied conditions of fitness for purpose and merchantable quality in the Goods Act and in Part 2A, the latter of which commenced operation on 1 June 2004. The provisions of Part 2A apply where the cash price of the goods or services is not more than $40,000[5]. Each contract in this case was for an amount less than $40,000. Section 32FA(1) of the FTA provides that s 16(3), 17, 18, 19 (a) and (b) and 20 of the Goods Act do not apply to contracts of supply to which Part 2A applies. In lieu of those provisions of the Goods Act the FTA contains provisions for the implication of similar (but not in all respects identical) conditions and warranties. Relevantly for present purposes s 32H provides for the implication of a condition in a contract of supply of goods by description, that the goods will correspond with the description. Section 32HA provides for the implication of conditions in a contract of supply by sample. Then, directly relevant to the present case concerning the supply of goods, is the provision in s 32I for the implication of a condition of merchantable quality and in s 32IA of a condition that the goods be reasonably fit for the purpose for which they are required. Then, concerning contracts for the supply of services, s 32J(a) provides for an implied condition that the services be rendered with due care and skill and s 32J(b) and s 32JA provide for an implied condition that the services be reasonably fit for the purpose.
[4]Those for the complainants Adams, Carlow, Herbert, Collinson, Gal and Trenton.
[5]Section 32D.

Continuing on in Part 2A, s 32OA makes provision for a purchaser under a contract of supply of goods to rescind for innocent misrepresentation. Then, s 32P makes provision for the situation where a purchaser discharges a contract of supply of goods by reason of repudiation or breach of condition by the supplier or by rescission in accordance with s 32OA. The section provides for the adjustment of rights including that the purchaser return the goods and the supplier refund the consideration paid or provided under the contract. Finally, s 32PA provides for the time when a discharge or rescission has effect. It is sufficient in this respect to refer to sub-s (a) which provides that the discharge or rescission has effect only if the supplier is aware that the purchaser treats the contract as at an end.

Part 11 of the FTA makes provision for enforcement and remedies in the case of contravention of the Act. The provisions relevant to this case – ss 149, 149A, 153 and 158 – are found in Division 2 – Remedies and legal proceedings. I refer to each of those provisions although only to the extent necessary for this judgment.

Section 149 provides that:

“(1)The Minister, Director or any other person may apply to the Supreme Court, County Court or Magistrates' Court for the grant of an injunction restraining a person from engaging in conduct that constitutes-
(a)a contravention of any provision of this Act; or
(b)attempting or conspiring to contravene such a provision; or
(c)aiding, abetting, counselling or procuring a person to contravene such a provision; or
(d)...
(e)being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision.

(2)The Court may grant an injunction restraining a person from engaging in conduct of the kind referred to in paragraphs (a) to (e) of sub-section (1)-
(a)if the Court is satisfied that the person is engaging in or has been engaging in conduct of that kind, whether or not it appears to the Court that the person intends to engage again or continue to engage in the conduct; or
(b)if it appears to the Court that, in the event that the injunction is not granted, it is likely that the person will engage in conduct of that kind, whether or not that person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind; or
… .”

Whereas the power under s 149 is to restrain conduct, s149A empowers the Court to grant an injunction requiring a person to do an act or thing. It provides:

“(1)The Supreme Court or the County Court, on the application of the Minister, the Director or any other person, may grant an injunction requiring a person to do any act or thing if the Court is satisfied that the person is engaging in or has been engaging in conduct that constitutes-
(a)a contravention of any provision of this Act; or
(b)attempting or conspiring to contravene such a provision; or
(c)aiding, abetting, counselling or procuring a person to contravene such a provision; or
(d)…
(e)being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision.

(2)The power of the Court under this section to grant an injunction requiring a person to do an act or thing may be exercised-
(a)whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and
(b)whether or not the person has previously refused or failed to do that act or thing; and
(c)whether or not there is an imminent danger of substantial damage to any person if the first person refuses or fails to do that act or thing.

(3)Without limiting sub-section (1), an injunction under this section may require a person-
(a)to institute a training program for the person's employees in relation to compliance with this Act;
(b)to refund money to purchasers;
(c)to transfer property to purchasers;
(d)to disclose information about the person's business activities or business associates;
(e)to honour any promise made in the course of misleading or deceptive conduct or in a false representation;
(f)to destroy or dispose of goods used for the purpose of a contravention of this Act.

(4) …
(5) … .”

Section 153(1) empowers the Court on the application of the Minister or Director to make an “adverse publicity order” (as defined in sub-s (3)) in relation to a person who has contravened or been involved in a contravention of Part 2 and 2A (and other Parts) of the FTA.

Provision for further remedial orders is made in s 158. Although each complainant has been refunded the consideration paid or provided to Merringtons, I understand that relief is still sought under this provision. Relevantly it provides:

“(1)In any proceedings for an offence against, or a contravention of, this Act, the court may make any order it considers fair if the court finds that-
(a)the person against whom the proceedings were brought (the defendant) has contravened a provision of this Act (including a provision under Part 2); and
(b)another person (the injured person) has suffered or may suffer loss or damage as a result of the contravention of this Act.

(2)Without limiting sub-section (1), the orders that may be made under this section include-
(a)an order that the whole or any part of a contract between the defendant and the injured person which is affected by the contravention or any agreement collateral to such a contract is void on and from the time specified in the order; or
(b)…

(c)…
(d)an order that the defendant-
(i)refund to the injured person money paid by that person under the contract or agreement; or
(ii)…

(e)an order that the defendant pay the amount of any loss or damage suffered by the injured person as a result of the breach to the injured person; or
(f)…
(g)…
(h)an order declaring that the defendant has contravened a provision of this Act or the regulations.

(3) ...
(4)The court may also make an order under this section against a person involved in a contravention of a provision of this Act.”

I now deal with the defendants’ submission on the matter of declaratory relief in respect of a contravention of s 12 and s 19 of the FTA. It was submitted that as those sections provide only for the imposition of a penalty by way of a criminal proceeding the Court in the exercise of its civil jurisdiction should, as a matter of discretion, not order declaratory relief pertaining to the alleged breach of those sections. Counsel referred to Principles of Remedies[6] where the authors refer to policy reasons why Courts exercising civil jurisdiction have traditionally been reluctant to make declarations concerning matters of criminal law, especially once criminal proceedings have been commenced. There is the matter of the different standard of proof, that the civil court may usurp the function of the criminal jury or prejudice the result of the trial and that the declaration may be sought as a means of delaying a criminal trial.
[6]Covell & Lupton, Butterworths, 3^rd ed, paras 11.17 and 11.18 at p 308-309.

It was further submitted by the defendants’ counsel that if the Court were to consider making declarations as to the contravention of s 12 and s 19, it was necessary that such contravention be established on the criminal standard. That is, in this civil proceeding the Director bore the onus of establishing contravention beyond reasonable doubt. This is because the sections provide only for a criminal penalty.

As far as the first submission is concerned the position is made clear in Sankey v Whitlam[7] where Gibbs ACJ observed[8] that the power of the Supreme Court of New South Wales to make a declaration under a provision such as s 75 of the Supreme Court Act 1970 (NSW) is a very wide one, as had been decided in Foster v Jododex Aust Pty Ltd[9]. A like power is contained in s 36 of the Supreme Court Act 1986 (Vic). Gibbs ACJ then stated that:

“It is clear enough that the power of the court is not excluded because the matter as to which a declaration is sought may fall for decision in criminal proceedings.”

[7](1978) 142 CLR 1.

[8]At 20.

[9](1972) 127 CLR 421 at 435-436.

While the power to make declaratory orders exists, such orders lie in the discretion of the Court and are made only if it is appropriate to do so on a consideration of the relevant circumstances. It is axiomatic that a relevant and important consideration would be if the proposed declaration pertained to conduct the subject of a pending, threatened or apprehended criminal proceeding. If nevertheless the declaration were made it would be because it was considered appropriate, and a responsible exercise of the power to do so, in the circumstances. The first thing to observe about the present case is that there is neither a pending nor a threatened criminal proceeding nor on the materials would such a proceeding seem to me to be reasonably apprehended. However, no question of a declaration arises until the Director has established his case of a contravention or contraventions of s 12 or s 19.

That leads to the second submission that as s 12 and s 19 provide only for a criminal penalty, the Director must establish his case of contravention of those provisions beyond reasonable doubt. In my opinion the submission misapprehends the true operation of the FTA and I reject it, for the following reasons.

The FTA, and its predecessor the Fair Trading Act 1985 (Vic), are and were modelled on the consumer protection provisions of the TPA “partly to take advantage of the body of case law which had developed in the preceding decade and partly to implement an agreement between” the States and Territories to extend the cover of the TPA to persons and entities to which the TPA did not extend. The agreement was for uniform legislation of which the TPA was the model[10].
[10]See Houghton v Arms (2006) 225 CLR 553, [21] at 561 and [25] at 563; Zeus & RA Pty Ltd v Nicolaou (2003) 6 VR 606, [73] at 625.

For this reason there is much similarity between the FTA and the TPA, as indeed there had to be to achieve “uniform fair trading legislation across Australia”[11]. The FTA is not drafted in identical terms to the TPA, but any differences are readily seen and allowance accordingly made including in reading decisions given under the TPA. Nevertheless the common purpose of consumer protection is expressed in both statutes, and manifest in their provisions. For this reason much assistance is derived from authoritative decisions given under similar or analogous provisions of the TPA[12], and when considering the decisions of other Australian courts it is important to keep in mind the desirability of uniformity of approach[13].
[11]Zeus & RA Pty Ltd v Nicolaou (2003) 6 VR 606, [73] at 625.
[12]Cousins v SJS Imports (2005) ATPR ¶42-043, [23] at p 42-524; [2004] VSC 521, [23] at 8-9.
[13]Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Astvilla Pty Ltd v Director of Consumer Affairs Victoria [2006] VSC 289, [173] at 45-46.

It is important not to approach the FTA as though through the somewhat narrower eye of a private cause of action at law. The FTA is concerned with the protection of the public interest in the area of its operation. The provisions in Part 2 of the FTA, and in particular s 9, s 12 and s 19, like the equivalent provisions in the TPA, establish a statutory norm of conduct to be observed by persons engaged in trade or commerce[14]. A failure by a person, in trade or commerce, to act in accordance with a particular statutory norm of conduct does not in itself confer upon another party a cause of action in the sense customarily used in referring to a private cause of action at law. For instance, all that is established when a person in trade or commerce engages in conduct that is misleading or deceptive or likely to mislead or deceive is that the statutory norm of conduct has been contravened. That in itself does not create a liability in that person or confer a right of action against that person in favour of any other person. The approach taken in the provisions of the TPA equivalent to those in Part 2 of the FTA is to provide for the consequences of failure to comply with a norm of conduct in a later Part of the statute. With the exception of the provision for penalties in s 12 and s 19 and a number of other provisions in Part 2 of the FTA, the same approach is taken in the FTA. Notwithstanding this approach of including penalties in certain sections in Part 2 of the FTA, it is clear that s 12 and s 19 (to mention only those provisions in Part 2) prescribe a norm of conduct for the purpose of protecting consumers. The provision for penalties in those sections, indeed in many sections in Part 2, does not alter that as being the correct understanding of the purpose and intendment of the provisions. The inclusion of the provision for penalty in a number of sections in Part 2 may be regarded as a convenience of legislative drafting, which also serves to emphasise the importance and seriousness of observance of the statutory norm of conduct.
[14]Brown v Jam Factory Pty Ltd (1981) 53 FLR 340; Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1988) ATPR ¶40-916; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, [17] at 602 per Gleeson CJ and McHugh J, [35] at 608 per Gaudron J, and [79] at 622 per Gummow J.

For present purposes one then turns to Part 11 of the FTA. Here there is seen a clear distinction between a criminal and a civil proceeding based on a contravention of Part 2 or 2A of the FTA. In Division 1 of Part 11, s 142A provides that proceedings for an offence against the FTA or a Consumer Act (as defined in s 3) or the regulations made under either Act may be brought by the Director or a person authorised by the Director. It is clear that any such proceeding would turn on satisfaction of the criminal standard of beyond reasonable doubt. However the Director has not instituted a criminal proceeding.

Rather, the Director seeks relief under the provisions referred to earlier in Division 2 of Part 11. These provisions confer power on the Director to seek, and the Court to order, relief by way of a civil proceeding. In each instance the trigger is that the defendant has engaged in conduct in contravention of “any provision” of the FTA. It is axiomatic that that includes the provisions in Part 2.

In my opinion there is nothing in those provisions, or in s 12 or s 19, or any other provision of the FTA whether read alone or in conjunction with any other provision or indeed regarding the FTA read as a whole, that expressly or by necessary implication reflects an intention, or requires, that the expression “any provision” be read down to exclude s 12 and s 19 or that has the effect that insofar as those sections are concerned in a civil proceeding brought under Part 11 a contravention of those sections, but not say s 9, must be established beyond reasonable doubt. The FTA permits a dichotomy of criminal and civil proceedings, in stipulated circumstances. In the case of contravening conduct that constitutes an offence in a criminal proceeding brought by the Director under Part 11, Division 1, the case must be established beyond reasonable doubt, whereas if the Director proceeds by way of a civil proceeding under Division 2 the case will be determined on the balance of probabilities. In my view that conclusion accords with the structure, purpose and intendment of the FTA.

It is now convenient to turn to the evidence and the establishment or otherwise of the Director’s case of contraventions of the FTA. I do not repeat but now develop the earlier references to the evidence at [2]-[6] above.

The first point to note concerns the order in which the affidavits were filed. In summary:

(a)On 22 February 2006 the Director filed affidavits of each complainant (except for George Paterakis), the affidavit of David Southgate and the affidavit sworn by officers of Consumer Affairs Victoria, Sergio Diaz and Brian Kenneth Wearne.
(b)That was followed, but not until 7 August 2006, by the defendants’ filing the affidavit of Purvis.
(c)On 28 August 2006 the Director filed a second affidavit of Wearne in support of an application to add Merringtons Optometrists as a defendant to the proceeding. This application followed the references to, and description of the business of, the defendants in Purvis’s affidavit. The joinder was duly ordered on 30 August 2006.
(d)Then, between November 2006 and February 2007 the Director filed further affidavits as follows:
(i)As to the complainant Elizabeth Adams, an affidavit by her optometrist Geoff Leunig.
(ii)As to the complainant Lauren Brewer, a second affidavit by her and an affidavit by her husband Peter Brewer.
(iii)As to the complainant Denise Cochrane, an affidavit by her husband Ross Cochrane.
(iv)As to the complainants Ivan Gal, Judith Herbert, Ian Jemmeson, Annette Johnson and Poppy Paterakis, a second affidavit by each of them.
(v)As to the complainant Anne Mary Larkins, an affidavit by Lisa Couacaud the store manager of OPSM Brighton of which Larkins was a customer and as to her history of acquiring contact lenses from that store.
(vi)An affidavit by the complainant George Paterakis, being the father of the complainant Poppy Paterakis, and which affidavit was re-sworn during the trial to correct an error in jurat.
(vii)As to the complainant Jennifer Patterson, affidavits sworn by two optometrists, John Khalil and Ian Breadon of Breadon and Khalil Optometrists who deposed to seeing her professionally in April and May 2005 respectively.
(viii)As to the complainant Ernest Trenton, an affidavit by an ophthalmologist Dr Mark Ellis as to attendances at the Hawthorn Eye Clinic, and an affidavit from William Law the managing optometrist of OPSM Doncaster, each sworn from business records.

(ix) A second affidavit by the expert witness David Southgate.

It is important to note that the defendants did not file an answering affidavit to any of the affidavits filed subsequent to Purvis’s affidavit.

In their affidavits the complainants described their dealings with Merringtons, recording events in a chronological way including details of conversations in some instances stating the name of the person with whom they dealt. In several instances – Adams, Brewer, Cochrane, Larkins, Patterson and Trenton – they were supported on the facts by affidavits of other deponents. In addition, George and Poppy Paterakis, who had gone to Merringtons together, supported the other. Further, in his first affidavit David Southgate dealt specifically with and gave evidence supportive of the cases of the complainants, Adams, Carlow, Chandler, Cochrane, Collinson, Mann and Patterson.

As against this, the defendants relied on the one affidavit of their general manager, Purvis. The structure of his affidavit was as follows:

(a)In paragraphs 1 to 26 he gave a history of Merringtons, described the defendants’ business which is conducted from 22 practice premises with a staff of approximately 195 in Victoria and from 23 practice premises elsewhere in Australia, set out his qualifications and experience, said that Merringtons Optometrists has continuing education and training programs across all areas of the company, referred to a Procedure Manual maintained by Merringtons Optometrists and available at each practice premises which set out the company policy to be implemented by staff including as to handling telephone calls, dealing with patients and their complaints, pursuing service, dealing with refunds and credits and setting out warranties for spectacles and contact lenses. He produced the Manual and a training course manual. He said that staff are required to know the information in the Procedure Manual and he referred to training sheets and question sheets required to be answered periodically. The relevant parts of the Procedure Manual are referred to in the affidavit. While I have regard to all to which Purvis made reference it is not necessary to set out the parts of the Manual he referred to.
(b)In the remainder of his affidavit (paragraphs 27-233) Purvis purported to answer the initial affidavits of the complainants.

A deal of the hearing time was taken up with objections to admissibility. Dealing first with the Director’s evidence, I ruled inadmissible, and lined out, certain parts of the affidavits of Adams, Carlow, Cochrane, Collinson, Cooke, Gal, Patterson and Trenton; the first (but not the subsequent) affidavits of Brewer, Herbert and Poppy Paterakis; and the first and second affidavits of Jemmeson. As to the first affidavit of Wearne I did not admit paras 4-6 and 11-14 for the purpose of the hearing on liability.

Counsel for the Director subjected the Purvis affidavit to a barrage of objections to admissibility. The objections concerned the response to the complainants’ affidavits. The objection was hardly surprising. In the first place this part of the affidavit was replete with hearsay as to which Purvis stated at the outset that where he deposed to information given to him by another person he believed the information to be true and correct unless he stated otherwise. This was of course said in the context of a trial as distinct from an interlocutory application on which hearsay evidence may be received provided the source is disclosed and the deponent swears as to his belief in the truth of the matter. I was invited to refuse to receive the affidavit as a whole but declined that course in favour of receiving the affidavit but excluding inadmissible portions. There was no prejudice to the Director in taking this course and it avoided any risk of delay in the trial.

I refused to admit, and struck a line through, much of Purvis’s response to the complainants. The basic problem was that he had not been involved in any of the subject transactions. Nevertheless, unrestrained by the restrictions of the rules of evidence the observance of which would have greatly limited the scope of any evidence he could have given in chief, he proceeded to give evidence of the contents of patient records without producing the records, to give evidence in the nature of commentary, and argumentative in nature, on the subject complainants’ evidence and to use the Procedure Manual in this process on the assumption that Merringtons employees had acted in accordance with it, but without any employee concerned providing an affidavit as to the truth or otherwise of the evidence of the complainants as to what was said and done in the course of the subject transaction. Moreover, there was a studied failure to state in relation to each complainant why the relevant member or members of staff had not provided affidavits. Purvis referred to the existence of patient records but did not disclose whether in any and which of the complainants’ transactions the relevant employee could or could not be identified, and if so naming that person, or disclose the efforts (if any) made to have that person give evidence and why (in each case) those efforts were unsuccessful. Such evidence might have gone to explain why Purvis came to swear the affidavit he did. But even then it would not explain the inclusion of a vast amount of inadmissible material in his affidavit. The conclusion reasonably to be drawn, and that which I do draw, particularly in combination with the failure to answer any of the Director’s further affidavits and the decision not to cross-examine, is that the defendants determined not to have employees give evidence but for better or worse to chance their arm with the Purvis affidavit. Of course conducting the defence in this way circumscribed any practical ability to cross-examine the complainants as their evidence had not been put in issue by affidavits of employees of the defendants.

The consequence of so basing their defence on the facts, deliberately and advisedly as I infer bearing in mind the long time in which the defendants and their lawyers had to consider the matter and having regard to the self-evident nature of the above discussion, is to expose the defendants to attack in two areas, first of not putting their case to the complainants in cross-examination in accordance with Browne v Dunne[15] and, secondly in relation to the drawing of inferences as referred to in Jones v Dunkel[16].
[15](1893) 6 R 67.
[16](1959) 101 CLR 298.

The difficulty in the first area was apparent when in his final address counsel for the defendants submitted that the complainants’ evidence should not be accepted. He submitted that the passage of time has been such as to have affected their memory of events. In other words I should regard their evidence as unreliable. And as to their evidence as to when spectacles would be ready for collection, I should prefer the view that Merringtons employees had advised them in accordance with the Procedure Manual and not as the complainants stated in evidence. These were somewhat audacious submissions by a party who had chosen not to cross-examine. It is no answer in this respect that the Director also chose not to cross-examine Purvis; there was, after all, little if anything in the admissible material that was worth cross-examining Purvis on, and in my view the case was sensibly conducted by the Director in determining not to cross-examine him.

The second aspect of Jones v Dunkel is self-evident in the circumstance that the defendants did not call employees who could have given evidence as to the transactions. The unexplained failure to call such evidence leads, appropriately in the present circumstances, to drawing of the inference that if called any such employee would not have assisted the defendants’ case. And failure to call any such employee whose evidence might have contradicted evidence in the Director’s case may also enable such evidence of a Director’s witness to be accepted more readily. It also enables an inference otherwise open on the facts to be more readily drawn. It does not however permit a gap in the evidence to be filled[17].
[17]See Jones v Dunkel (1959) 101 CLR 298 at 305 per Dixon CJ, at 305 and 308 per Kitto J, at 312 per Menzies J and at 320-321 per Windeyer J.

The next evidentiary point to note concerns the Director’s contention that certain of the representations alleged to have contravened s 9, s 12 or s 19 were representations about a future matter within the meaning of s 4 of the FTA. By letter dated 21 February 2006 the Director advised the defendants’ solicitor of certain paragraphs of the affidavits of all complainants then sworn, other than Collinson (and George Paterakis who had not then sworn an affidavit), which contained matters which the Director would contend constituted representations as to future matters within the meaning of s 4. I note that of the paragraphs relied on para 10 of Jemmeson’s affidavit was ruled inadmissible and therefore must be excluded from consideration in this respect.

The defendants did not respond to the Director’s letter. In particular the defendants did not advise any reasonable grounds for making the representations referred to. They left the matter to submissions at the trial.

I now turn to the evidence. Bearing in mind there are 17 complainants, the question is how it might conveniently be referred to. It seems unnecessary to set out the evidence of and in support of each complainant. The evidence discloses patterns of conduct which the Director contends can be regarded as falling under separate headings, as previously indicated. Regarding the matter in that way, in the first instance at least I will take the approach of referring to the complainants whose affidavits were the first (Adams) and the last (Trenton) in the tender of the affidavits.

I can say at the outset however, having carefully considered all of the evidence and counsel’s submissions, that none of the evidence relied on by the Director suffered from improbability or inherent unlikelihood that could warrant it not being accepted. Indeed I accept the Director’s evidence, preferring it to the evidence of Purvis if and whenever there is conflict. In my view the complainants, and the other witnesses as to facts and events, have given an account of the relevant events and discussions and their experiences as accurately as they could from their best memory. Their evidence is expressed in a reasonable and not argumentative manner notwithstanding a degree of upset and annoyance suffered in the matter such that led them to complain of Merringtons’ conduct to Consumer Affairs.

It is convenient to commence with the evidence of the complainant Elizabeth Adams. The Director relies on her evidence as illustrating each category of conduct referred to at [2] above.

When she swore her affidavit in December 2005 Adams described herself as a 48 year old dairy farmer of Labertouche who had worn spectacles for about eight years for general use and reading. Her optometrist, Geoff Leunig, stated in his affidavit that Adams had been a patient of his practice since about December 1995, with subsequent attendances in 1996, 1998 and 2003. Adams said that in or about late April 2004 while at Fountain Gate Shopping Centre she noticed a Merringtons store offering 50 percent off all frames. At this time she had broken her multifocal spectacles and needed a new pair urgently. Merringtons being optometric retailers she decided to purchase a new pair of spectacles. She entered the store and informed a Merringtons employee named Leanne that she wanted to purchase a new pair of spectacles. Leanne advised that she needed to have her eyes tested by their resident optometrist. An appointment was made for Adams to attend the following week for examination by the optometrist. Adams duly attended the appointment and her eyes were tested by a male optometrist who prepared a prescription. She could not recall his name. Medicare paid the cost of the eye examination. Adams then chose a frame and paid a $50 deposit; a receipt subsequently provided by Leanne states the date of this payment as 13 May 2004. The total cost for the spectacles was $592.05. The Merringtons sales assistant who served Adams said words to the effect “Your glasses will be ready in two weeks. We will give you a call when they are ready”.

Adams said that on returning to the store two weeks later Leanne advised her that her spectacles were not ready and asked if they could be posted. Adams refused posting, saying that she wanted to pick them up in case there was something wrong.

About a week later Leanne advised Adams by telephone that her spectacles were ready. Adams went to the store and was served by Leanne. Adams tried the spectacles on and could not see properly and informed Leanne of this. Leanne replied to the effect that “You should try them for a week and if you still have problems with them, bring them back”. Adams agreed to a week’s trial and paid the balance of $542.05. The receipt subsequently provided by Leanne states the date of this payment as 22 May 2004. This date, and the earlier date of 13 May, suggests that the time between ordering the spectacles and their provision was less then the period of two to three weeks indicated by Adams; nothing turns on this.

Over the next week Adams trialled the spectacles, wearing them while driving, working and reading. But everything looked blurry through the spectacles and she suffered headaches. After the week she returned to Merringtons and informed Leanne that she was still having problems with the spectacles. An optometrist examined the spectacles made some adjustments to the arms and told Adams to try them again.

After a couple more weeks in which Adams still had trouble seeing with the spectacles and suffered headaches, she returned to Merringtons. She was seen by another optometrist who re-checked her eyes. She had to leave her spectacles at the store so that new lenses could be fitted.

About three weeks later Adams returned to the store to collect her spectacles. She could not recall who served her. She noted that new lenses had been fitted to the frame. The lenses were about double the thickness of the previous lenses. Adams tried the spectacles but could not see properly – images were blurry and when she looked down objects appeared hollow. She informed staff at the store of this but they replied that she needed to trial the spectacles for a week. As requested Adams trialled the spectacles for a week but could not see properly with them. She returned to Merringtons where she saw Leanne and informed her of the problem. Leanne replied in words to the effect “New lenses will have to be made and you will have to choose new frames”. Leanne did not say what was wrong with the spectacles. Leanne gave Adams a selection of four frames to choose from. Adams selected a frame.

On a date that Adams could not recall she returned to Merringtons and tried on the new spectacles but could not see properly through them. With this pair people looked further away. Again Leanne said words to the effect of “Please try wearing them for a little while to see if you can get used to them”. Adams agreed to take them home and try them. However when she wore the spectacles she had problems seeing how far things were and she could not read. And if she wore them for too long she developed headaches. In this situation she wore her spare pair of spectacles which had an out of date prescription. She thought it strange that she could see better out of her spare spectacles than with Merringtons’ new spectacles.

In these circumstances Adams decided to try another optometrist and on 6 October 2004 went to Leunig & Farmer Eyecare in Warragul where she was seen by Leunig. He examined her eyes, and the prescription and spectacles which she had obtained from Merringtons, which Adams showed him. I note that the examination date on the prescription is 17 August 2004 which suggests that it was the second examination by the Merringtons optometrist when she left her spectacles at the store for new lenses to be fitted.

Leunig prescribed new multifocal spectacles for Adams which she duly purchased from his business. She obtained the spectacles on or around 6 November 2004 and could see properly with them.

Leunig gave evidence as to the Merringtons prescription and spectacles. He observed that the spectacles were not properly produced or assembled as the lenses were not inserted into the frames correctly, and he so advised Adams. They were fitted off axis, that is not straight or horizontal. In addition, he found that Merringtons’ prescription for each eye individually was significantly different from what he found. The Merringtons spectacles presented with a stronger prescription in the left eye which would have caused blurry distance vision and blurry near vision with the result that she would not have been able to see clearly. The prescription for the right eye was similar. In addition Merringtons had found astigmatism whereas he did not. This misdiagnosis led to misprescription and contributed to distorted vision and eye strain.

On 6 October 2004 Leunig sent a facsimile to Merringtons for the attention of Merlyn in which he compared the last pair of spectacles Leunig & Farmer prescribed (in March 2003) with those received from Merringtons. The facsimile commences with the words “In answer to your phonecall”.

So advised by Leunig, Adams returned to Merringtons and saw Leanne. I find that this occurred shortly after 6 October 2004. Adams informed Leanne that she could not see properly with Merringtons spectacles and that another optometrist had advised her that Merringtons’ prescription was wrong. She gave the Merringtons spectacles to Leanne and requested a refund of her money. Another female staff member said she could not get a refund. However Leanne said words to the effect of “I will see what I can do. Can I have your receipts please?” Adams gave Leanne her receipts.

To the date of swearing her affidavit in December 2005 Merringtons had not given Adams a refund. This was notwithstanding Adams and her husband speaking with Leanne and another staff member, Janet McGregor, about the refund. In this process McGregor had wrongly claimed that Adams had not given Merringtons her receipts and also asked Adams to write to someone senior at Merringtons head office requesting a refund. It was unclear to Adams why she had to write. She noted that she had wasted a lot of time travelling between her home and Merringtons’ store. In March 2005 she decided to complain to Consumer Affairs Victoria because Merringtons had not provided a refund.

It is convenient to now refer to the evidence of Southgate. While his evidence was generally relevant to the case, his evidence included observations on Adams’ case. Southgate has been an optometrist in private practice since 1982. His qualifications to give evidence as an expert were not challenged. He had been provided with Adams’ affidavit (and those then sworn by Carlow, Chandler, Cochrane, Collinson, Mann and Patterson), and had been requested by Consumer Affairs Victoria to comment on Merringtons’ conduct in those cases and in particular on:

(a)What checking processes should reasonably be expected of an optometrist when a patient complains about the appropriateness of their spectacles.
(b)What might be considered reasonable timeframes for the supply of spectacles.
(c)What might be considered a reasonable timeframe for lens coatings to last.
(d)Whether it is good or acceptable practice to recommend a patient wear a pair of spectacles with an identified fault.

In his initial affidavit sworn in February 2006 Southgate expressed his opinions on those matters. Before referring to this evidence I interpolate a reference to certain evidence in his second affidavit sworn on 25 October 2007. That is that Purvis, whose qualifications Purvis had stated in his affidavit, is a clinical dispenser, not an optometrist. Southgate stated that in his opinion a clinical dispenser does not necessarily have the clinical training and expertise to comment on what is appropriate optometric practice, whether or not they work alongside optometrists. I note that Purvis provided no evidence in answer to this whether by elucidation of his experience or otherwise. Nor, as mentioned, did the defendants’ counsel cross-examine Southgate on his evidence with a view to finding support for Purvis as possessing suitable experience to enable him to give opinion evidence. I note that Southgate’s evidence allows the possibility that a clinical dispenser may have the clinical training and expertise to comment on what is appropriate optometric practice. As Purvis was not cross-examined on his qualifications and experience it is difficult to make a finding as to his qualification to provide opinion evidence on matters of optometric practice. In my opinion, in the circumstances, that difficulty is properly resolved by preferring the evidence of Southgate wherever it is in conflict with evidence of Purvis. I do so not merely because I accept Southgate’s evidence but also because in my view Purvis’s evidence is to be regarded with the greatest circumspection having regard to his role as a senior employee of the defendants arguing against the Director’s case and seeking dismissal of the proceeding, also having regard to the matters discussed above concerning his affidavit, and by reason of doubt as to his qualification to give opinion evidence as to optometric practice. I accept Southgate as an appropriately qualified expert and prefer his evidence to that of Purvis wherever there is conflict with the latter.

Returning then to the evidence of Southgate in his initial affidavit he said this as to the checking processes reasonably to be expected of an optometrist when a patient complains about the appropriateness of their spectacles. As to proper and reasonable practice, Southgate said that before patients are notified that their spectacles are ready for collection, the spectacles should be checked by a suitably qualified person to verify that they are made up as prescribed and ordered. That would usually be an optical dispenser, but could also be an optometrist. For a variety of reasons it is not uncommon for patients collecting new spectacles to express concern as to whether they are completely correct and suitable for them. This may be especially the case, for example, if they are wearing spectacles for the first time or where there is a large change in prescription or a different lens design such as a multifocal instead of single vision. Where patients express concern as to whether their new spectacles are suitable for them at the time of delivery, it is reasonable to expect that the optometrist or dispenser delivering the spectacles re-check at that time whether they have been made up correctly as prescribed and ordered. That should take no more than 5-10 minutes and involve measuring the lens power on a vertometer, marking the optical centres and checking the interpupillary distance as well as any prism. In the case of multifocal and bifocal lenses, the position of the reading section of the lens, especially its height in the frame, should also be checked. The frame should also be checked to ensure that it is straight before being adjusted to the patient’s face. He noted that Adams, Chandler, Cochrane, Mann and Patterson expressed concern when collecting their new spectacles, and that Carlow stated that she was not given the opportunity of trying her new spectacles when collecting them. He noted that only Cochrane recalled having had the spectacles re-checked at delivery, Mann stating that that procedure was not performed. Southgate said that it was possible that re-checking of spectacles occurred without the patients knowing or mentioning it in their affidavit. For example Chandler recalled the Merringtons sales assistant stating that “the lenses were made in accordance with Dr Workman’s prescription” from which one might infer and hope that the assistant had checked the spectacles first, but one could not be certain that that was the case.

Southgate said that should the optometrist or dispenser check the spectacles and determine that they are made as prescribed and ordered it is reasonable to advise the patient that this is the case and to suggest that the patient endeavour to wear their spectacles for a short period such as a week or so. While that advice is reasonable, that is only the case if the spectacles have first been re-checked. The patient should also be advised to return should they find that they are unable to adapt to the new lenses. Southgate noted that Adams, Carlow, Cochrane, Mann and Patterson were advised to persevere with their new spectacles for periods of up to two weeks, that Adams was the only patient who stated that she was advised to return if she still encountered difficulties, and that Chandler was advised that the prescription given by his ophthalmologist might have been incorrect.

Southgate then said that should the patient return still dissatisfied after persevering with their new spectacles for a period of time as advised, reasonable practice would involve the optometrist offering and arranging to re-examine the patient, as well as personally re-checking the patient’s spectacles. Southgate noted that Adams, Chandler, Cochrane, Mann and Patterson returned after unsuccessfully trying to adapt to their new spectacles and were subsequently re-examined by Merringtons. Southgate noted that Carlow was not re-examined because re-checking of her spectacles revealed the lenses to have been fitted upside down. Had Carlow’s spectacles been checked properly before delivery and re-checked when she first expressed her concerns to Merringtons she would not have had to telephone Merringtons the day after collecting the spectacles, persevered with them for two weeks and subsequently returned. He referred to the facts of the six cases of Adams, Carlow, Cochrane, Mann, Patterson and Chandler and stated that Merringtons could have saved them considerable time and trouble by re-checking their spectacles at the first opportunity, that is at the time that the patients were collecting their new spectacles and expressed concern at their suitability. This appeared not to have occurred and was less than reasonable practice. Furthermore, despite re-examining those patients, re-checking and in some cases re-making their spectacles, in none of them was Merringtons able to satisfactorily resolve the patients’ difficulties.

As to whether it is good or acceptable practice to recommend a patient wear a pair of spectacles with an identified fault, Southgate said a distinction was needed between a “fault” identified by the patient and one identified by the supplier (optometrist). There is, Southgate opined, little or no question that it is not acceptable practice for an optometrist to supply spectacles that he or she knows to be faulty. But this is not necessarily the case where it is the patient who has identified the “fault” as the patient does not have the technical knowledge to categorically state that their spectacles are “faulty”. As he had already observed, there may be a wide variety of reasons why patients may not adapt to their new spectacles instantly. In the cases at least of Carlow, Chandler, Mann and Patterson, although the spectacles provided by Merringtons were eventually determined to be faulty, the “fault” was not known to Merringtons at the time of the initial complaint although if Merringtons had re-checked the spectacles when the patients had expressed concern as to suitability at the time of delivery the fault would have become apparent earlier.

Southgate then turned to the matter of the timeframe for the supply of spectacles. A generous timeframe was one week for stock single vision lenses, two to three weeks for specially ground single vision and multifocal lenses, and four to six weeks for lenses supplied from overseas. That was subject to the following qualifications: occasionally circumstances can arise where those timeframes might reasonably be exceeded, including but not limited to frames that are difficult to fit such as rimless and nylon rim frames, prescriptions where sections of the lens are relatively thin and more subject to breakage, and higher and more complex prescriptions with specialist lens coatings. More complex lenses often involve a number of processes, and the failure of one can mean that the other processes need to be repeated. Further, optical retailers are dependent on the performance of their wholesale lens laboratories in meeting timeframes and laboratories’ performance can vary over time. Even allowing for such matters, the delays in supply experienced by Cochrane (around 10 weeks after Merringtons decided to remake the lenses), Mann (over 3 months), and Patterson (about 4-5 months after they were meant to be ready in early December 2004), were far greater than should reasonably be expected.

Finally he referred to the problem that Collinson had with the multicoating of the spectacles lenses. Special lens coatings are available to enhance the visual performance and durability of spectacles lenses. Multicoating is frequently used to reduce reflection and therefore increase the transmission of light through lenses which results in better quality vision (especially at night-time), reduces lens reflections and improves cosmesis as the lenses become less visible in the frame. They also increase the scratch-resistance and therefore the durability of lenses. The multicoat is applied to the lens after it has been ground. Once the lens has been used, however, the multicoat cannot be ground or polished off the lens, nor can a multicoat be applied or re-applied to lenses that have already been cut to the shape of a frame used and undergone even slight amounts of wear. A consequence of this is that once a multicoat becomes crazed or defective the underlying lens is effectively rendered useless and must be replaced. Southgate considered that 12 months was an absolute minimum expectation for the life of a lens multicoating. It is more common for retail optical dispensers to provide a two year warranty for multicoatings, at least partially because this is supported by the lens laboratories, so two years could also be regarded as a reasonable period for lens multicoatings to last. Southgate considered that should a multicoat fail to last 12 months it is incumbent on the retail supplier of the lens to make an arrangement with the patient to replace the whole lens at a significantly reduced cost, possibly even (but not necessarily) at no charge. As to this Collinson found that the multicoat applied to his multifocal spectacles lenses began to peel severely within 10 months of purchase and that he presented to Merringtons 13 months after purchase, but Merringtons were not prepared to repair or replace the lens or provide a refund. Southgate was of the opinion that the absence of any effort or offer on Merringtons’ part was less than reasonable.

I now refer to Purvis’s admissible evidence responding to Adams’ affidavit. He stated that Merringtons requires that patient records be kept when a patient attends at a Merringtons practice for an eye test and prescription. He said that Merringtons Optometrists has never had a staff member named “Leanne” working at the Fountain Gate practice. I interpolate that he otherwise said nothing as to who the staff member or members might have been who dealt with Adams, or as to inquiries to ascertain such staff member. Purvis then said that when a patient advises dispensing staff, as Adams did, that when she trialled the spectacles she could not see properly and agreed to further trial them, Merringtons staff are required, initially, to re-check the spectacles to the optometry record for correctness. This is a further check on the spectacles, as jobs are also checked on their completion, in accordance with the Procedure Manual.

Purvis then said that it was a regular occurrence that patients receiving spectacles require a period of time to adjust to them. He then said that the advice to Adams to try them for a week and that if she still had problems to bring them back, was appropriate.

Purvis said that the lenses were re-made in June and July 2004, that new frames were provided in August 2004 and, that also in August, Adams was given a further eye test and lenses were again re-made.

On the matter of the Merringtons prescription criticised by Leunig, Purvis observed merely that a prescription is a matter of opinion of the optometrist.

As to a refund, Purvis referred to company policy in the Procedure Manual which states that in no circumstances is there any practice to give refunds or credits, they will only be made by head office. The policy also requires production of the original receipts issued by Merringtons. This is to ensure that the refund is made to the correct person and to avoid practice staff having time taken up assessing and actioning a request for a refund.

I now refer to the evidence in the matter of Trenton. He is an aged pensioner having been born on 28 January 1915. He needs to wear spectacles all the time. On 11 March 2003 he visited Merringtons at Doncaster Shoppingtown to purchase a new pair of spectacles. He already had a prescription from his eye specialist James Martin and thus did not require an examination by their optometrist. I interpolate that the evidence of Dr Ellis of the Hawthorn Eye Clinic, based on the records of that clinic, disclose that Trenton had been seen by Dr Martin, since retired from the clinic, in 1996, 15 July 1997 and for the last time on 5 May 2003.

When he attended at Merringtons he provided his prescription to a sales assistant named Haydon who said he needed to choose a frame. After he had chosen a frame Haydon said words to the effect “Your glasses will be ready in two weeks. We will call you when they are ready to be picked up”. The spectacles cost $506.80 as to which Trenton paid a deposit of $185 and as to which he claimed part of the cost against his private health insurer which Merringtons billed directly.

After four weeks and not having received a telephone call from Merringtons Trenton telephoned the store and inquired as to the status of his order. He was advised by a Merringtons representative that his spectacles had been ready for some time. On 17 April 2003 he returned to Merringtons to collect his spectacles. However, when he put the spectacles on and tried to read something he found all the text was blurry. He told Haydon who said words to the effect that “You have to get used to them; take them home and wear them for a couple of weeks”. As this was not the first pair of spectacles Trenton had purchased and he had a strong feeling that something was wrong with them, he again informed Haydon that he believed something was amiss with the spectacles. However as Haydon insisted that he take the spectacles home and trial them, Trenton reluctantly agreed to do so. Haydon said words to the effect of “If you are still unhappy with the spectacles after two weeks, bring them back to the store and Merringtons would replace them”. On this representation Trenton paid the balance of the purchase monies due, $186.80, and received a receipt for the payment.

After wearing the spectacles for two weeks and still being unable to see properly with them, Trenton returned to Merringtons where he again spoke with Haydon who said words to the effect that “There is nothing wrong with your spectacles. There must be an error with your prescription from Mr Martin. You should go back to Mr Martin to have your eyes re-tested”.

Trenton duly went back to Martin and took his spectacles with him. As mentioned earlier, the records of the Hawthorn Eye Clinic show that Trenton saw Martin on 5 May 2003. Martin recorded Trenton’s advice that he was not happy with the spectacles he had obtained from Merringtons and that his vision was blurred from near sight. The records also disclose that on 17 April 2003 Haydon at Merringtons Optometrists rang seeking information about prescriptions for spectacles written by Martin for Trenton in October 2002 and February 2003.

After seeing Martin, Trenton returned to Merringtons and spoke with Haydon who agreed that his spectacles were no good. Haydon said words to the effect of “Why don’t you choose another smaller frame, and I will have another pair of spectacles made for you”. Trenton did as he suggested and chose another pair of frames. Then Haydon said words to the effect of “I will need to get approval from the Area Manager first”. Approval must have been given as Haydon said “You’ll be informed when your spectacles are ready to be picked up”.

Not having received a telephone call from Merringtons and still wearing his broken pair of spectacles, Trenton decided to return to Merringtons to ascertain what was happening with his spectacles. By this stage about four months had passed since he first went to Merringtons. When he arrived at the store he noticed there were two female staff in attendance and after waiting for some time one of them introduced herself to him. He cannot recall her name. Trenton said that he was here to collect a pair of spectacles that should have been ready for some time to which she replied that his spectacles had not been sent yet, that they will be here in a few days and they would let him know when they had arrived. Trenton responded by asking if she was sure that someone will let him know when his spectacles have arrived. He had been told on two other occasions, but no-one ever called him. She replied “yes”.

After waiting three weeks and not receiving any communication from Merringtons, Trenton decided to telephone them. He was told his spectacles were ready for him to collect and he immediately returned to Merringtons. When he arrived he noticed the same two female staff there again. When he was eventually attended to, he introduced himself and explained that he was there to collect his spectacles. The female staff member who attended to him said words to the effect of “Oh, you are Mr Trenton”, and then went to retrieve his spectacles. She placed them on the counter in front of him and just stood there looking at him. He asked her words to the effect of “What would you like me to do with them?” to which she replied “Put them on”. He tried the spectacles and noticed that he could see distant objects generally, but was unable to read words as they appeared blurry. He tried to adjust the spectacles in an attempt to achieve focus. However this was of no use, he could still not read anything. During this time the female staff member made no attempt to assist him. He asked her what her role was and she replied that she was an optometrist. After struggling with the spectacles for a while he told the optometrist that he could not see with them, that he had had enough and wanted his money back, the spectacles were no good. She said she could not provide a refund, only her manager could do that, however the area manager would not be in the store until the following afternoon.

Trenton returned to Merringtons the following afternoon and spoke with another Merringtons staff member who said words to the effect of “The area manager didn’t come today, but you may like to speak with John Bricle or Chris Piper. Here are their telephone numbers”. He contacted both but neither was able to help him. Instead he was given the name of the area manager, Janet McGregor and her telephone number to contact. He telephoned McGregor who said that she did not anticipate any difficulty in getting a refund for him however he would need to return all the original receipts to Merringtons. She said that “You should get the cash this week”. He made a note of that remark on the back of a Merringtons business card.

Trenton decided to provide copies of his receipts to Merringtons and retain the originals, as they were the only evidence he had that he had paid for the spectacles and he knew that the Merringtons store would have its own copy of the original receipt. Two weeks then passed and not having heard from Merringtons he telephoned McGregor. She said words to the effect of “I would see headquarters and let you know”. He asked her when she would let him know and she replied to the effect of “In a few days”.

A further two weeks passed in which he did not hear from McGregor. He telephoned her and she advised that “headquarters have refused your refund”. Trenton asked on what grounds and she replied that his circumstances did not meet their criteria and suggested that he “return to Merringtons and seek a solution”. Trenton asked how anyone there could do anything for him when they do not have authority and she replied that she did not know what else he could do. He asked for the address of her headquarters which she refused to provide “as it is against Merringtons policy”.

As he was unable to continue using his old spectacles and Merringtons had not provided him with a pair of spectacles he could see with, Trenton went to another optometrist, OPSM Doncaster on 9 September 2003 and ordered a pair of spectacles using Martin’s prescription. He paid a deposit of $100 and the balance of $429.20 a week later when he collected his spectacles. The spectacles worked perfectly.

Trenton made a complaint to Consumer Affairs Victoria in October 2003 and also to the Health Services Commissioner about Merringtons. The Commissioner subsequently provided Trenton with a response from Purvis dated 21 November 2003 in which he stated that both pairs of spectacles made for Trenton were made to Australian standards. Trenton observed that whether or not that was so he could not see with them. He considered it unreasonable to have to wait over four months to be supplied with spectacles he could see with and to have had to chase Merringtons to see if they were ready. Further, he had lost $506.80 which was a lot of money to him as he survived on an aged pension. That included the subsidy paid by his private medical insurer because he was not entitled to a further subsidy when he purchased the replacement pair of spectacles from OPSM in September 2003.

To make matters worse, on 11 November 2003 Merringtons wrote to him advising that his spectacles were ready and waiting to be collected and that he owed $31.10. In fact, he had paid all monies due.

I refer now to the evidence of Purvis in response to Trenton’s affidavit. Purvis stated that in the process of handling Trenton’s complaint he undertook an evaluation of the two pairs of spectacles manufactured by Merringtons and supplied to Trenton. He ascertained that both pairs of spectacles had been made to the prescription provided by Martin and that the two pairs of spectacles were made to Australian standards. The only other positive evidence that Purvis gave in relation to Trenton was to state the number of pairs of spectacles and contact lenses sold through the Doncaster Shoppingtown practice in the 2002/2003 financial year; he gave such evidence as part of his response to each complainant.

That completes the reference to the evidence of Trenton.

Having referred to the evidence of the first and the last complainant it is convenient to note how counsel put the case in final address. Counsel for the defendants provided me with a written outline to which he spoke with succinct submissions drawing out the points he wished to emphasise. He did not go back to and analyse the facts of and concerning each complainant and submit whether or not in light of that analysis the plaintiff had established any of the contraventions alleged. Rather, the submissions took the approach of identifying considerations against which the case was to be tested. But these considerations did not condescend to an evidentiary analysis of the case of each complainant. It was left to me to sift, analyse and conclude on the facts.

Counsel for the plaintiff also addressed succinctly but he provided me with a 26 page document of references to the evidence which supported the orders sought. The document had the following structure. Under each head of declaratory relief reference was made to the relevant paragraph or paragraphs of the affidavits of the complainant and any other deponent including Purvis relevant to that matter. In this way the plaintiff identified the evidence that was relevant to, and which I should consider in determining, the issue in question. In providing the references in this way, and because it was desired to conclude the hearing speedily, counsel did not undertake an oral analysis of the evidence to establish the various contraventions alleged. I would add that for my part I do not consider it necessary to engage in an appreciable elaboration of the facts pertaining to each complainant and each alleged contravention. To do so would result in a judgment of considerable length beyond the occasion, as I consider it. I have nevertheless referred to the evidence to the extent I have thus far as it provides the overall context and because there are similarities in the facts and circumstances of the cases of Adams and Thornton on the one hand and those of the other complainants on the other hand. That is not to say that the facts and circumstances are identical in each case but that overall a similarity of picture is seen.

On 15 November, almost two weeks after I reserved judgment, the defendants’ solicitor delivered to my Associate and the plaintiff a written submission on matters of evidence together with a bundle of cases that counsel for the defendants had referred to in his submissions at trial. The purpose of the submission on evidence was to substantiate, by references to the complainants’ affidavits, a submission made at the hearing that the complainants had not identified the name of the person to whom they assert they spoke, and that with the passage of time between the transaction and the swearing of the affidavits the defendants had been prejudiced in their ability to address the assertions, and that in the circumstances the Court could not be satisfied to the required standard that the plaintiff had made out an entitlement to the orders sought.

The first thing to be said about this further submission is that it was provided without my leave and indeed without the consent of the plaintiff being sought. It is a presumption and an arrogance for a party to furnish a submission following the reservation of judgment unless with the leave of the judge. It has been pointed out time and again that the trial, including the making of submissions, finishes with the reservation of judgment. If a party thereafter wishes to make an additional submission it should first seek leave from the judge to do so and it is only in the event of leave being granted that the submission should be provided. There are many reasons for this. One is the finality of the trial. Another is the extra cost and vexation on the other party who must be afforded an opportunity to respond. Another is the possible delay caused to the preparation of the judgment by reason of considering further matters or by reason of having to allow the opposite party to deal with them. Another is that the submission may lead to a re‑opening of facts. And so on. But essentially the trial is the time and place for all to be put that is then and there considered appropriate. It is not to be thought that a half thought through approach at trial can be corrected or supplemented by a subsequent, if not series, of written submissions. I have said this because this sort of thing has become common and it must stop.

By letter to my Associate the plaintiff objected to my considering the further evidentiary submission. I have read the submission. All that it does is refer to the paragraphs in the complainants’ affidavits which refer to the date or time when they spoke to an identified or unidentified person. The submission does no more than provide a convenient reference to the affidavits thus giving precision to the submission made during the trial. Of course this should have been done at the trial but there is no question of further evidence or of re‑opening an issue. There is no prejudice to the plaintiff in my reading the submissions. It is merely a check to ensure I peruse all relevant material in considering my decision. In the circumstances, and while it was wrong for the solicitors for the defendants to furnish the submission without leave, I will have regard to it.

It is convenient at this point to refer to further of the defendants’ submissions. Counsel noted that the first nine declarations (referred to at [12](a) and (b) above) did not identify the particular matters that constituted the contravention of s 9 and s 12(k), (l) and (n) of the FTA. By contrast the balance of the declarations (referred to at [12](c)) were specific as to the facts which constituted a contravention of s 19 of the FTA.

Counsel then moved to the first four declarations which concerned the alleged contravention of s 9. It is convenient to refer to these declarations in the terms in which they appear in paragraph 1 of the originating motion, namely:

A.Merringtons Pty Ltd (“Merringtons”) and/or Australian Ophthalmic Supplies Pty Ltd (“Merringtons Optometrists”), in trade or commerce, has or have engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 9 of the Fair Trading Act 1999 (Vic) (“the Act”) by making to customers of Merringtons and/or Merringtons Optometrists representations that prescription spectacles for those customers would be ready in accordance with the customers’ order within a specified period when in fact such spectacles were not ready within the specified period or any reasonable timeframe.
B.Merringtons and/or Merringtons Optometrists, in trade or commerce, has or have engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 9 of the Act by encouraging or requiring customers, to whom it or they supplied prescription spectacles that were not fit for purpose, to try using such prescription spectacles for a period of time to allow the customers to adjust to the prescription spectacles as supplied by Merringtons and/or Merringtons Optometrists when in fact the customer could not adjust to such prescription lenses within the period of time specified or at all because the prescription lenses supplied by Merringtons and/or Merringtons Optometrists were not fit for purpose and Merringtons and/or Merringtons Optometrists thereby created a health or safety risk.
C.Merringtons and/or Merringtons Optometrists, in trade or commerce, has or have engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 9 of the Act by refusing or failing to pay refunds to customers to whom it or they supplied prescription spectacles or contact lenses that were not fit for purpose or where the customers had lawfully repudiated their agreements with Merringtons and/or Merringtons Optometrists for the supply of prescription spectacles or contact lenses as the case may be.
D.Merringtons and/or Merringtons Optometrists, in trade or commerce, has or have engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 9 of the Act by requiring as a condition of considering whether or not to provide or providing a refund to customers that customers produce and surrender to Merringtons and/or Merringtons Optometrists the original receipt as proof of purchase and without any assurance or acceptance that Merringtons and/or Merringtons Optometrists would in fact provide a refund to the customer whereas customers could properly prove their purchase by means other than production and surrender of the original receipts.

As to declaration A counsel submitted that there was no conduct that was misleading or deceptive or likely to mislead or deceive where (as he submitted was the case):

(a)There was no evidence that in deciding to purchase spectacles or contact lenses the complainants acted in reliance on a statement that the spectacles or contact lenses made to prescription would be available in an identified period. In a majority of instances – which I note were not specified – the decision to purchase was made prior to enquiring when the spectacles or contact lenses would be ready. Further, there was no evidence that the statements led any complainant into error.
(b)As often as not the evidence did not support the contention that one of the defendants represented that spectacles made to prescription would be provided in a defined period of time, but were not.
(c)Even if such a statement was made, the making of it did not establish that the person who made it did not intend to perform it when it was made or that the intention lacked any, or any adequate, foundation. Such statements should, it was submitted, be treated as statements of present intention or ability, as opposed to statements about future intent, and there was no evidence to show that the statements were made dishonestly or recklessly. In any event, Southgate’s evidence as to the time frame for the supply of spectacles indicates that the statements were reasonable although possibly subject to variables beyond the control and scope of the person who made the statement.
(d)The complainants did not identify the proper (full) name of the person to whom they assert they spoke, nor identify the defendant which employed that person.
(e)The evidence did not identify the defendant which each complainant asserts he or she was a customer of.
(f)There was no causal link between the statements and any loss and damage suffered by a complainant, particularly bearing in mind that there has been a full refund.

As to declaration B, counsel submitted that for the reasons stated in relation to declaration A the plaintiff had not established a case to warrant the declaration. Further, as noted by Southgate and Purvis, customers sometimes required time to adjust to new spectacles. There were also the defendants’ ongoing attempts to achieve customer satisfaction.

As to declaration C, the defendant relied again on the reasons stated in relation to declaration A, and on the following further matters, and submitted that the plaintiff had not established a case to warrant the declaration. The further matters are these:

(a)There did not appear to be admissible evidence identifying –
(i)The relationship to the complainant and one or other of the defendants.
(ii)That any spectacles or contact lenses were not fit for their purpose. As to this it was submitted that there was a dispute on the evidence (often the complainant’s own evidence) as to the reasons for which the complainants were experiencing “adjustment problems and issues”, as to which matter the evidence of Southgate on the possible causes of, and reasons for, customers experiencing adjustment problems with spectacles and contact lenses made to prescription was telling.
(iii)Of which defendant the complainant was a customer.
(iv)How the refusal or failure to pay a refund led the complainant into error.

(b)All persons who have claimed refunds have received a refund.
(c)Any contravention was de minimis, innocently made and with the payment of the refund not sufficient to justify making a declaration.

As to declaration D, it was submitted that this required the plaintiff to establish:

(a)The relationship between one or other of the defendants and the person who required the complainant to produce and surrender to one or other of the defendants, stating which, the original receipt and without any assurance or acceptance that one or other of the defendants, stating which, would provide a refund to the complainant.
(b)That the complainant was a customer of one or other of the defendants, stating which.
(c)That the impugned conduct was misleading and deceptive or likely to mislead or deceive in contravention of s 9.

More particularly it was submitted that the plaintiff had not established a case to warrant making declaration D. Among other things there was not admissible evidence identifying:

(a)the name of the person who engaged in the impugned conduct;
(b)the relationship between the person who requested the original receipt and which of the defendants;
(c)the defendant of which the complainant was a customer;
(d)how the complainant relied upon the impugned conduct and was thereby led into error;
(e)the nexus between the impugned conduct and any loss and damage alleged, bearing in mind a refund has been made.

Finally as to the matter of refunds, it was submitted that there were good bona fide reasons for the refund policy, that the best proof of purchase was by production of the original receipt. It was submitted that a requirement to provide the original receipt could not constitute conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 9. Even if there was such a contravention the matter was de minimis, trivial, the conduct was innocent and, with the payment of the refunds to the complainants, not sufficient to justify making the declaration sought.

There is in these submissions a commonality of contentions or themes in relation to the four declarations sought in respect of the alleged contraventions of s 9. They are seen also in the submissions concerning the five declarations sought in respect of the alleged contravention of s 12, although with some variations and additions by reason of the different issues arising under s 12.

Having mentioned that, it is appropriate to set out the five declarations sought in respect of the alleged contravention of s 12. They are in the following terms, namely:

E.Merringtons and/or Merringtons Optometrists, in trade or commerce, in connexion with the supply or promotion of the supply of goods, namely, prescription spectacles or contact lenses, has or have made a false or misleading representation concerning the existence, exclusion, or effect of a condition, warranty, right or remedy in contravention of s 12(k) of the Act by making to customers of Merringtons and/or Merringtons Optometrists a representation that those customers were not entitled to a refund regarding their purchase of prescription spectacles or contact lenses whereas those customers were and are entitled to refunds because the prescription spectacles supplied by Merringtons and/or Merringtons Optometrists to those customers were not fit for their purpose and/or the customers had lawfully repudiated their contracts with Merringtons and/or Merringtons Optometrists.
F.Merringtons and/or Merringtons Optometrists, in trade or commerce, in connexion with the supply, possibly supply or promotion of the supply of goods, namely, prescription spectacles or contact lenses, has or have made a false or misleading representation concerning the existence, exclusion, or effect of a condition, warranty, right or remedy in contravention of s 12(k) of the Act by making to customers of Merringtons and/or Merringtons Optometrists a representation that those customers were required to produce and surrender their original receipts as proof of purchase or as a condition of Merringtons and/or Merringtons Optometrists considering whether or not to pay a refund to those customers regarding their purchase of prescription spectacles or contact lenses whereas those customers were and are entitled to prove their purchase from Merringtons and/or Merringtons Optometrists by means other than production and surrender of the original receipts.
G.Merringtons and/or Merringtons Optometrists, in trade or commerce, in connexion with the supply, possible supply or promotion of the supply of goods, namely, prescription spectacles or contact lenses, has or have made a representation that was false, misleading or deceptive in a material particular in contravention of s 12(n) of the Act by making to customers of Merringtons and/or Merringtons Optometrists a representation that those customers were required to produce and surrender their original receipts as proof of purchase or as a condition of Merringtons and/or Merringtons Optometrists considering whether or not to pay a refund to those customers regarding their purchase of prescription spectacles or contact lenses whereas those customers were and are entitled to prove their purchase from Merringtons and/or Merringtons Optometrists by means other than production and surrender of the original receipts.
H.Merringtons and/or Merringtons Optometrists, in trade or commerce, in connexion with the supply, possible supply or promotion of the supply of goods, namely, prescription spectacles, has or have made a false or misleading representation about the production, preparation or supply of the prescription spectacles in contravention of s 12(1) of the Act by making to customers of Merringtons and/or Merringtons Optometrists representations that spectacles for those customers would be ready in accordance with the customers’ order within a specified period when in fact such spectacles were not ready within the specified period or any reasonable timeframe.
I.Merringtons and/or Merringtons Optometrists, in trade or commerce, in connexion with the supply, possible supply or promotion of the supply of goods, namely, prescription spectacles, has or have made a representation that was false, misleading, or deceptive in a material particular, namely, the time within which the prescription spectacles would be ready for collection by the customer, in contravention of s 12(n) of the Act by making to customers of Merringtons and/or Merringtons Optometrists representations that the spectacles for those customers would be ready in accordance with the customers’ order within a specified period when in fact such spectacles were not ready within the specified period or in any reasonable timeframe.

I have regard to all of the defendants’ submissions concerning those declarations but consider that it is not necessary to refer to the submissions in the way that I have in relation to s 9. I take the same course and for the same reasons in relation to the declarations sought based on the defendants’ alleged contraventions of s 19. I do not set out these latter declarations as they are many in number (29 in all) and are fact specific in relation to the particular complainants.

A contention running through the defendants’ submissions was that the plaintiff should have established the name (even the full name) of the person with whom the complainants dealt or who made a relevant statement to a complainant or who engaged in impugned conduct. A further contention was that the plaintiff was required to establish, in relation to each complainant, of which defendant he or she was a customer, by which defendant the person who attended to and spoke to them was employed, with which of the defendants the transaction was entered into, which defendant supplied the spectacles or contact lenses, and which defendant was to but refused or failed to provide a refund. I am of the view that these contentions are without substance and do not avail the defendants, for the following reasons.

As to the first contention, there is nothing in the terms of s 9, s 12 or s 19 that supports the existence of such an evidentiary requirement, and in my view there is none. The question is really one of the sufficiency of the evidence to establish the plaintiff’s case, insofar as it relies on the evidence of any particular complainant. It is for me to determine the probative weight of the evidence considered in light of the relevant facts and circumstances. As to that I am well satisfied, as I have mentioned earlier, that the complainants are honest and reliable witnesses who have given evidence of their best recollection. It is well understandable that a complainant might not have known, or forgotten, the name – let alone the full name – of a person who attended them in a Merringtons shop. In no case here do I consider that the omission of provision of the attendant’s name reflects adversely on the probative value of the evidence otherwise given. In so finding I have taken account, as the defendants urged I should, of the passage of time between the occurrence of relevant events and the swearing of the complainants’ affidavits; that includes having taken account of the references in the defendants’ submission provided after the hearing.

Furthermore I do not accept the contention that the defendants have been prejudiced by the failure of complainants to state the name of the person with whom they dealt or who made a relevant statement or who engaged in impugned conduct combined with the passage of time between the relevant events and the swearing of the complainants’ affidavits. The evidence of Purvis does not provide a cogent basis on which it could be concluded that the defendants could not by endeavours including reference to patient records and other inquiries have been able to identify who dealt with the complainants or to have ascertained the truth or otherwise of the substance of the matters alleged. I have already referred to, and do not repeat, the deficiencies in Purvis’s evidence. Further, if and to the extent that any difficulty which the defendants in fact experienced in identifying the employees who dealt with complainants and ascertaining the substance of the matters was attributable to the way in which their business was conducted including the failure to maintain proper records, that difficulty is not one that the complainants are responsible for or the consequences of which should be visited on the plaintiff or complainants in terms of lifting the evidentiary bar. The FTA is but one among a raft of legislative and regulatory provisions which place burdens upon those undertaking activity in trade or commerce, and who, with the object of being able to satisfy the requirements of such provisions, must have in place appropriate administrative and other structures to enable compliance and be able to deal with complaints.

The further contention as to the proper defendant and which defendant employed the employee in the shop and the other matters referred to above, does not avail the defendants in my view. The difficulty which this submission must confront lies in the way in which the defendants conduct their business in the sense of the manner of presentation to their customers.

The relevant facts and circumstances are these. According to Purvis, Merringtons Pty Ltd provides optometry services such as eye examinations. It is not in the business of selling spectacles, contact lenses, sunglasses etc. On the other hand, in its business Merringtons Optometrists deals in optical products such as the sale of spectacles, contact lenses and sunglasses etc and also in the manufacture and wholesaling of optical products. It is evident that the Merringtons shops attended by the complainants provided both such optometry and product sale services, which indicates that each company conducted business through the shops. Then, the head office of both companies was at premises in Tullamarine from which Merringtons Optometrists also conducts its importing, manufacturing and wholesaling operations. Purvis said that the defendants conducted business from retail outlets operated by them throughout Australia, including 22 in Victoria which he referred to as “practice premises”. Purvis further said that in the conduct of its business Merringtons Optometrists retains a staff of approximately 195 across these 22 practice premises, the staff including optometrists, optical dispensers, optical mechanics and trainees. He did not say whether Merringtons Pty Ltd retained staff at these practice premises. I do not know whether that silence means that the optometrist members of staff are retained or employed by Merringtons Optometrists notwithstanding that the business of Merringtons Pty Ltd is the provision of optometry services. Precisely how and why this might be so (if it is) was not explained. It might be of course that there is an agreement between the companies which regulates matters relating to the employment and arrangements for staff and the conduct of the practices including such matters as the entity which is the employer, the terms on which the staff are engaged in relation to their services being available for each company and liability for staff wages and expenses. Such matters could not be known to the complainants as members of the public who attended at a Merringtons shop.

In their affidavits the complainants said that they attended at “a Merringtons store” or “Merringtons” (for example Adams), or “Merringtons or Merringtons Optometrists” (for example Brewer), or just “Merringtons” (for example Carlow), or “Merringtons Pty Ltd” and “Merringtons” (for example Gal). The description of the shop as a Merringtons store is understandable for when the complainants attended at a Merringtons practice premises there was nothing to distinguish between Merringtons Pty Ltd and Merringtons Optometrists let alone to identify that there were two such distinct entities conducting business at the practice. It was all presented as Merringtons, both in terms of the physical presentation of the premises and the internal provision of services. There was no distinction between the staff, from the optometrist who conducted the eye examination to the staff at the counter, in terms of they being employed by either company. Accepting, as I do, that Merringtons Pty Ltd and Merringtons Optometrists both conducted business at the practice premises it is evident, and in my view is reasonably to be taken, that the staff acted for and represented both businesses in the provision of services in the practices. But to the customers there was no indication that the services they received may have involved two companies. That of course may not be unusual as a business may be operated under a complex ownership and administrative structure that is not known to a customer of the business. As I have said, the nature and terms of the business structure were not fully disclosed by Purvis, and they never were disclosed to the complainants. What is known in this case, because it is the conclusion reasonably to be drawn on the evidence, is that the operating structure adopted was that the companies conducted their businesses through the common front of a Merringtons shop or “practice premises” and that the staff acted for and represented each. To all external appearances it was one business called Merringtons.

This conclusion accords with and is confirmed by the stationery used in the business and provided to the complainants.

Receipts for customer payments were issued by “Merringtons P/L P.J. & J.C. Merrington/AOS P/L”. Bearing in mind that “AOS” would be a reference to Merrington Optometrists, receipts issued to customers (including the complainants) were issued in the name of both Merringtons Pty Ltd and Merringtons Optometrists. Prescription forms and the business letterhead and business cards sent or provided to customers bore the name “Merringtons” and under it the word “Optometrists” with no reference to a company name. The prescription form also included “Established P J & J C Merrington” under the word “Merrington Optometrists”. Credit card vouchers simply stated “Merringtons”. To this may be added information obtained by the plaintiff on company and business name searches and from the website of Merringtons Optometrists. The first point is that Merringtons Optometrists is not, and was not, a registered business name. On the other hand Merringtons is a business name registered by Merringtons Pty Ltd since August 1996, the business of which is stated (on the business name extract) to be the supply of optometric services and products. This would indicate that Merringtons Pty Ltd was involved in the provision of services at the practice premises. Merringtons Pty Ltd was incorporated in 1988 and has a sole director Peter John Merrington. J C Merrington and J P Merrington ceased to be directors in 1997. Purvis said that Peter John Merrington was the managing director of Merringtons Pty Ltd and Merringtons Optometrists. His father is J C Merrington who has retired.

The website of Merringtons Optometrists refers to it conducting business as Merringtons. In other words, while Merrington Pty Ltd owns the name Merringtons, Merringtons Optometrists (an unregistered name) presents itself as conducting business as Merringtons.

Finally on this aspect I note that counsel for the plaintiff submitted that the Court should approach the defendants’ submission bearing in mind the public policy objectives of the FTA. In other words to require a customer to undertake company searches and investigations of corporate structures and the relationship between a company and its apparent employees to satisfy submissions of the type made here would be to put at risk the ability of a customer or the plaintiff to establish a case of contravention under Part 2 or Part 2A of the FTA. It could undermine the achievement of the policy objectives of the FTA. While the submission is understandable, and I consider it to be relevant to the approach properly to be taken to matters under the FTA, yet there must of course be evidence which establishes that a person or company named as a defendant is properly so named. That is the present case.

Another point made in the defendants’ submissions was that the plaintiff had not established a causal link between the statements alleged to have been made, or the impugned conduct, and any loss and damage alleged to have been suffered by a complainant. While it is true that the originating motion seeks orders for payment to the complainants of monies they paid for spectacles or contact lenses or the amount of any loss and damage suffered by them as a result of the alleged contraventions of the FTA, it is not a requirement of establishing a contravention of a norm of conduct that a person has suffered loss or damage. The question is whether a prescribed norm of conduct has been contravened. The norms of conduct do not require, for the establishment of their contravention, that loss or damage has been suffered. As mentioned earlier, the consequences of a contravention are found later in the legislation. As I have also mentioned it is establishment of a contravention that triggers the power to grant relief such as by way of declaration or injunction. That relief can be granted without proof of the suffering of loss or damage. None of this can be surprising if it is steadily borne in mind that the object of the FTA, in the present context, is the protection of the public as distinct from the pursuit of a private right of action.

Another aspect of the defendants’ submissions which it is convenient to refer to now was that there was no evidence that any of the complainants were led into error by reason of the statements made to them, or that any statement made or information provided led a complainant into error. Counsel for the defendants asked rhetorically how had any of the complainants been misled, none of them said they would have acted differently if it had not been for the alleged statements. There are two answers to this submission, the first being one based on principle and the second being based on the evidence. As to principle, whether conduct constitutes a contravention of the FTA, for instance because it is misleading or deceptive or likely to mislead or deceive, is determined objectively on a consideration of the relevant facts and circumstances. It is not necessary that the person to whom the subject statement was made was actually misled or deceived. The phrase “likely to mislead or deceive” makes this clear. See Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd[18]; Taco Co of Australia Inc v Taco Bell Pty Ltd[19]. In Global Sportsman Pty Ltd v Mirror Newspapers Ltd[20] it was observed that conduct is likely to mislead or deceive if that is a real or not remote chance or possibility regardless of whether it is less or more than 50 percent. Thus it is not a requirement that the plaintiff establish that the complainants were in fact misled and acted otherwise than they would have. The second difficulty with the submission is an evidentiary one for as was submitted by counsel for the plaintiff and as I accept, the effect of the evidence of the complainants is that the statements led them along a false path. That is, they were misled in critical respects, essentially as to the timely provision of prescription spectacles and contact lenses that were fit for the purpose.
[18](1982) 149 CLR 191 at 197 per Gibbs CJ.
[19](1982) 42 ALR 177.
[20](1984) 2 FCR 82 at 87.

These observations and findings bring me to the question of the establishment of the alleged contraventions of the FTA. While not each case is the same, as to which I refer to some instances below, what emerges clearly is a failure to provide in a timely manner spectacles or contact lenses that were fit for the purpose, and on the complainant terminating the contract for breach to refund the price paid in a timely manner. There is no doubt that included in this was conduct that contravened s 9, s 12 and s 19. It is important to keep the central simplicity of the case in mind as the raft of orders and findings sought by the plaintiff has the tendency to overshadow the case with unnecessary complexity. This is seen in the request for findings of multiple contraventions in relation to some complainants but also in the overlapping of subject matter dealt with by the declarations. If ultimately declarations are to be granted it will be necessary to give consideration to limiting them to the central substance of the matter thereby avoiding repetition in relief.

I now refer to the cases of Adams and Trenton, the facts of which it is not necessary to repeat.

In Adams’ case it may be taken that she was provided with spectacles within the period of two weeks or so close thereto that a day or so more is immaterial. The point however is that she was told that her spectacles would be ready, which was reasonably to be understood as meaning that spectacles would in that time or, I would add, as near thereto as was reasonable in the circumstances, be provided that were properly made in accordance with a prescription from an eye examination properly undertaken. Moreover when Adams was initially given the spectacles, and subsequently when she was requested to trial them, it was reasonably to be understand that Merringtons staff had checked the spectacles to ensure they were properly made and in accordance with prescription particularly when, and from the outset, Adams said she could not see properly with the spectacles. The submission that Merringtons staff acted reasonably and appropriately in requesting her to trial the spectacles to allow for a period of adjustment or to get used to the new spectacles lacked substance in my view. The premise of the submission is that the spectacles had been properly prescribed and made whereas in Adams’ case there was an instant and repeated objection to being able to see with them, and with a further eye examination being subsequently undertaken by Merringtons. What is revealed is a lamentable failure, sustained over several months, to provide spectacles fit for Adams’ use. The errors lay in both the eye examinations and the spectacles provided. The facts reveal a litany of sustained incompetence, through which Adams was led on by misleading statements, the premise of which was that Merringtons’ work was of a proper professional standard.

Then the fact that Adams’ requirement in spectacles was readily able to be accommodated was demonstrated by the timely manner in which Leunig examined her eyes and supplied spectacles that worked.

Finally, Adams, as was open to her to do, brought the transaction with Merringtons to an end, on account of their failure to perform the contract of supply and requested a refund. The failure of course was to supply spectacles in a timely manner that were fit for the purpose, which constituted a breach of the term of fitness for purpose implied by s 19 of the Goods Act. Wrongly her money was not refunded.

The circumstances of Adams’ case fall within declarations A to D inclusive. The condition stipulated in the representation set out in declaration D was or was likely to be misleading or deceptive because it represented that Merringtons could only consider the request for a refund if the original receipt was provided when the fact was that the imposition and observance of the condition could not have been necessary to enable Merringtons to consider the request. In the first place Merringtons must surely have had a copy of the receipt in their records. In the second place a copy of the original receipt issued to the customer would be sufficient. It is thus difficult if not impossible to see the need for the condition from Merringtons’ point of view. But it is readily foreseeable how it might work to the disadvantage of the customer. From the point of view of the customer the sting in the condition would be if he or she had provided his or her original receipt without retaining a copy and the refund was refused, and wished to take the matter further. In that event, the customers may be disadvantaged if an issue were to arise as to the ability of the customer to prove the payment.

In my opinion the circumstances of Adams’ case fall within declarations E to I inclusive. I am of the same opinion in relation to declarations J to L which arise under s 19.

I conclude therefore that in the case of Adams the plaintiff has established contraventions of s 9, s 12 and s 19.

In so concluding I have not overlooked the defendants’ submissions concerning the representations about future matters. While the plaintiff identified paragraphs in Adams’ affidavit that included representations of that kind counsel for the defendants did not condescend to an analysis of the particular representations, as distinct from making a generalised submission. Furthermore, it does not seem to me that in all instances the passages referred to as containing representations on future matters truly were of that nature. In Adams’ case the evidence referred to is in paragraphs 7, 9, 10 and 11 where on three occasions the Merringtons employee asked Adams to try the spectacles again or words to that effect, and on one occasion she was told new lenses would have to be fitted. The first three requests were misleading or deceptive or likely to be so because they would reasonably be understood in the context as meaning that the spectacles were properly made to a proper prescription whereas they had not been and no proper consideration could have been made on which to found the request to keep trying the spectacles. The fourth was a statement of present position or conclusion. It is significant that the defendants did not give evidence of objectively reasonable facts and circumstances and existing at the time of the making of these statements on which the statements could have been founded. The evidence of Purvis as to what was done in this respect in Adams’ case was really conjecture and of no persuasion. If anything, in referring to what Merringtons staff are required to do when a patient states that she cannot see properly, the facts indicate that the staff did not carry out any or any sufficient check. If the staff re-checked the spectacles to the optometry record for correctness, it is clear that that record was incompetently prepared. But I am not prepared to accept that Merringtons staff did conduct such a check.

I now refer to Trenton’s case. Here too the contraventions of the FTA are manifest. There is no need for elaboration. The case falls within declarations A to I inclusive and JJ and KK which arise under s 19.

As clearly as contraventions of the FTA are established in respect of Adams and Trenton, contraventions are also established as alleged by the plaintiff in respect of the other complainants. As mentioned earlier there were differences in the circumstances pertaining to the complainants. One or another factor present in the case of one or more complainants was not present in the case of another or other complainants. In the case of Chandler, for instance, there is no evidence of a representation as to when his spectacles would be ready or that Merringtons requested his original receipt in relation to his request for a refund. But the facts otherwise bespeak manifest failure to provide spectacles fit for his use (in his case in contravention of s 32IA of the FTA) and establish circumstances within declarations B, C, E, R and S. Then, in the case of Collinson, the problem was the premature peeling of the coating on the multifocal reading/driving spectacles. The premature failing of the coating constituted a failure to provide Collinson with spectacles fit for purpose in accordance with the term implied by the Goods Act and also in contravention of s 19(1)(b) of the FTA, and establish circumstances within declarations C, E and V. In another case, that of Herbert, spectacles were never provided and thus there was no issue of trialling spectacles as Herbert cancelled the order and requested a refund of her $50 deposit on account of Merringtons’ failure to provide the spectacles within the represented time of seven days or a reasonable time thereafter. In the circumstance that she was required to provide her original receipt as a condition of considering her request for a refund, her case falls within declarations A, C, D, F, G, H, I and Z. In another case again, that of Jemmeson, Merringtons failed to refund $156 being the amount charged to him for supplying spectacles with photochromic lenses, which Jemmeson had not ordered and which Merringtons took back and replaced; the case falls within declarations C and AA.

If it were necessary to do so I could set out the facts concerning the other complainants, but it seems to me not to be necessary to do so. In so considering the matter I bear in mind that this judgment does not conclude the case as I have yet to deal with the matter of relief. There will thus be a further hearing when I will hear counsel on that matter and otherwise as they may be advised and as may be appropriate for the proper determination of the issues raised in the litigation.

[2007] VSC 542

19 December 2007