Fletcher v Nextra Australia Pty Ltd

In the case of Fletcher v Nextra Australia Pty Ltd, the respondent, Nextra Australia, pursued a claim against the appellant, Mr Fletcher, alleging misleading or deceptive conduct in contravention of section 18 of the Australian Consumer Law. The dispute arose from an article posted by Mr Fletcher on his online blog, which was critical of a promotional flyer published by Nextra Australia. The blog was authored by Mr Fletcher, who was also the director and co-owner of a rival franchise group. The primary judge found in favour of Nextra Australia, and Mr Fletcher appealed the decision.

The legal issues before the court included whether the publication of the blog article constituted conduct in trade or commerce under section 18 of the Australian Consumer Law, whether the allegedly misleading or deceptive representations, as pleaded, were established at trial, and whether the alleged representations were matters of opinion which were honestly held. The court had to determine if the blog article made false or misleading representations, and if so, whether these representations were made in the course of trade or commerce. Additionally, the court needed to assess if the representations were factual or opinionated, and if the latter, whether they were honestly held.

The court found that the blog article did indeed constitute conduct in trade or commerce, as Mr Fletcher's multiple business interests, including his directorship and ownership of newsXpress, a separate blog, and his own newsagent business, supported this conclusion. The court held that the blog article made misleading or deceptive representations, such as suggesting that newsagents had not switched to Nextra or News Extra, and that some franchisees were insolvent due to the Nextra franchise system. The court also determined that the representations were not honestly held opinions, as they were based on false information. Consequently, the appeal was dismissed, and Mr Fletcher was ordered to pay the costs of the respondent.

In summary, the court found that Mr Fletcher's blog article constituted misleading or deceptive conduct in trade or commerce, and that the primary judge's findings were correct. The appeal was dismissed, and Mr Fletcher was ordered to pay the respondent's costs.