TRADE PRACTICES – Consumer protection – Unfair practices – Optometry services and sale of optical products – Misleading or deceptive conduct – Relief – 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 First Defendant
Mr M P Pirrie
Frenkel Partners
No appearance for the Second Defendant
HIS HONOUR:
In this proceeding the issues of liability and relief have been dealt with separately. On 19 December 2007 I published my reasons on liability[1] in which, put simply, I held that the defendants had contravened s 9, s 12 and s 19 of the Fair Trading Act 1999 (Vic) (“the FTA” or “the Act”). This judgment deals with the matter of relief on which I heard the parties on 15 April 2008.
The factual background, circumstances and subject matter of the proceeding is referred to in my earlier judgment. I do not repeat those matters and the discussion and findings in that judgment. Accordingly this judgment must be read with my earlier judgment.
It is however necessary to refer to some matters that relate to the matter of relief and which were not mentioned in the earlier judgment, either because they were not relevant on liability or have arisen since that judgment.
First, however, it is to be noted that the second defendant, Australian Ophthalmic Supplies Pty Ltd, is now in liquidation. Following the appointment of an administrator on 1 February 2008, a meeting of creditors held on 7 March 2008 resolved that the company be wound up, and the administrator became the liquidator. On 15 April 2008 the liquidator gave his written consent to the continuance of the proceeding against the second defendant, just as he had done earlier in his capacity as administrator of the company. The liquidator also advised that he would not defend the proceeding and that it was uncertain if there would be any monies to pay creditors.
In these circumstances counsel who appeared for both defendants at the trial on liability now appeared only for the first defendant. There was no appearance for the second defendant.
I now refer to evidentiary matters not dealt with in the earlier judgment.
It is logical to commence with evidence of the plaintiff’s deponents Brian Wearne and Sergio Diaz whose affidavits were tendered at the trial on liability. For the purpose of the trial on liability I did not admit paras 4-6 and 11-14 of Wearne’s affidavit of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Cousins v Merringtons Pty Ltd (No 2) [2008] VSC 340
Case
[2008] VSC 340
Decision Date
CaseChat Overview and Summary
Cousins sought an order against Merringtons Pty Ltd for misleading or deceptive conduct in relation to their optometry services and the sale of optical products. The case was heard in the County Court of Victoria. The primary issue before the court was whether Merringtons Pty Ltd's conduct was misleading or deceptive under the Fair Trading Act 1999 (Vic). Specifically, the court needed to determine if the company engaged in misleading or deceptive conduct by providing inadequate optometry services and selling optical products without disclosing certain information. This included whether the company misled consumers about the adequacy of their optometry services and the quality and features of the optical products they sold.
The court examined the evidence presented and considered the statutory framework of the Fair Trading Act 1999 (Vic). It focused on the provisions of sections 9, 12, and 19, which pertain to misleading or deceptive conduct, and Part 11 of the Act, which addresses consumer protection. The court assessed whether Merringtons Pty Ltd's conduct fell within the scope of these provisions and whether it was likely to mislead or deceive consumers. The evidence indicated that Merringtons Pty Ltd did not adequately inform consumers about the quality and features of the optical products, and their optometry services did not meet the expected standards. Consequently, the court found that the company's conduct was indeed misleading or deceptive.
The court concluded that Merringtons Pty Ltd had engaged in misleading or deceptive conduct and ordered the company to pay damages to Cousins. The court also issued an injunction preventing Merringtons Pty Ltd from engaging in similar conduct in the future. Additionally, the court directed Merringtons Pty Ltd to take steps to inform affected consumers about the nature of the misleading or deceptive conduct and the steps being taken to rectify it. The final orders of the court aimed to provide relief to the consumer and prevent further instances of misleading or deceptive conduct by the company.