L.N. Kalnin T/a Medical Industries Australia v Johnson & Johnson

The Federal Court of Australia heard an appeal concerning alleged breaches of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)). The appellant, L.N. Kalnin trading as Medical Industries Australia, alleged that the respondent, Johnson & Johnson, had engaged in misleading and deceptive conduct and had engaged in conduct that was likely to mislead or deceive. The dispute centred on representations made by Johnson & Johnson regarding the availability of a particular surgical stapling device.

The primary legal issue before the Court was whether Johnson & Johnson's conduct in relation to the supply of the surgical stapling device constituted misleading or deceptive conduct in contravention of section 52 of the Trade Practices Act 1974 (Cth). This involved determining whether the representations made by Johnson & Johnson were, in fact, misleading or deceptive in the circumstances, and whether the appellant had suffered loss or damage as a result of such conduct.

The Court considered the nature of the representations made by Johnson & Johnson, including statements about the device's availability and the reasons for its discontinuation. It applied the established principles for assessing misleading or deceptive conduct, focusing on the likely effect of the representations on a reasonable member of the target audience. The Court found that the representations made by Johnson & Johnson were not misleading or deceptive, as they accurately reflected the commercial realities and the company's intentions regarding the product. Consequently, the appeal was dismissed.