JUDGES:	Walker, Orr and Kenny JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2025
DATE OF JUDGMENT:	19 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 229
JUDGMENT APPEALED FROM:	[2024] VSC 608 (Forbes J)

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PRACTICE AND PROCEDURE – Interlocutory decision concerning practice and procedure – Application for leave to appeal and application for leave to cross-appeal – Application below for summary dismissal or strike out of parts of pleading – Whether applicant and cross-applicants established substantial injustice – Where applicant a defendant in group proceeding concerning claims relating to cosmetic surgery procedures – Where plaintiffs allege cross-applicants liable as accessories – Plaintiffs’ allegations include false, misleading or deceptive conduct – Plaintiffs granted leave to amend statement of claim – Amendments alleged implied representations to ‘potential patients’ – Amendments alleged representations made on social media – Whether amended pleadings disclose a cause of action – Whether conduct said to convey misleading representations adequately pleaded – Whether pleaded facts and particulars of knowledge adequate to establish accessorial liability – Leave to appeal allowed in part – Appeal allowed – Leave to cross-appeal refused.

Supreme Court (General Civil Procedure) Rules 2015, r 23; Civil Procedure Act 2010, s 63.

Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260; Kennedy v Shire of Campaspe [2015] VSCA 47; Kajula Pty Ltd v Downer EDI Ltd (2024) 76 VR 75; Fei v Hexin Pty Ltd (2024) 75 VR 581; Coles Myer Ltd v Victorian WorkCover Authority [2002] VSCA 144, applied.

CONSUMER LAW – False, misleading or deceptive conduct – Group proceeding – Where plaintiffs allege representations made to ‘potential patients’ of cosmetic surgery service – Whether assessment of whether representations were misleading etc to be assessed by reference to individual claimants or hypothetical reasonable person – Issue to be determined at trial – Where plaintiffs unable to plead detail content of social media said to convey representations – Pleadings ‘meld’ misleading representations with conduct said to convey representations.

Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’) ss 2, 18, 29, 34.

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; Self Care IP Holdings Pty Ltd (2023) 277 CLR 186; Karpik v Carnival plc (The Ruby Princess) [2023] FCA 1280; Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435, considered.

CONSUMER LAW – False, misleading or deceptive conduct – Accessorial liability – Group proceeding – Nature of involvement in representations required for accessorial liability – Whether pleaded facts and particulars of knowledge adequate to establish accessorial liability.

Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’) ss 2, 18, 29, 34.

Productivity Partners Pty Ltd v Australian Competition and Consumer Commission (2024)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lanzer v Lombardo

Details

AGLC: Lanzer v Lombardo [2025] VSCA 229
Case: [2025] VSCA 229
Decision Date: 19 September 2025

CaseChat Overview and Summary

Lanzer v Lombardo involved a group proceeding in the Supreme Court of Victoria concerning claims relating to cosmetic surgery procedures. The plaintiffs alleged that the defendants, including Lombardo, were liable as accessories for false, misleading or deceptive conduct. The defendants applied for summary dismissal or striking out parts of the plaintiffs' pleadings, which were subsequently amended. The plaintiffs sought leave to appeal from the orders made by the trial judge, and Lombardo sought leave to cross-appeal.

The court was required to determine whether the plaintiffs established a substantial injustice warranting leave to appeal, and whether the defendants established a substantial injustice warranting leave to cross-appeal. The court also had to assess whether the amended pleadings disclosed a cause of action, whether the conduct alleged to convey misleading representations was adequately pleaded, and whether the pleaded facts and particulars of knowledge were adequate to establish accessorial liability.

The court allowed the plaintiffs’ appeal in part, finding that the trial judge should have granted leave to amend the pleadings to include allegations of implied representations to ‘potential patients’ and representations made on social media. The court held that the question of whether the representations were misleading was to be determined at trial, and the court could not make a final determination on the pleadings alone. The court also found that the plaintiffs had adequately pleaded the content of the social media said to convey representations, even though the plaintiffs could not plead the detail. The court allowed the defendants’ appeal in part, finding that the trial judge should not have struck out the allegations of accessorial liability, as the pleaded facts and particulars of knowledge were adequate to establish accessorial liability. The court refused Lombardo’s leave to cross-appeal.

The court made orders setting aside the orders of the trial judge and substituting new orders. The plaintiffs were granted leave to amend their pleadings, and the allegations of accessorial liability were to proceed to trial.

Orders