Lee v Procter and Gamble Australia Pty Ltd - [2012] FMCA 1000

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v PROCTER & GAMBLE AUSTRALIA PTY LTD & ANOR

[2012] FMCA 1000

HUMAN RIGHTS – Alleged discrimination because of sex and disability – where applicant informed of redundancy – application for injunction under s.46PP of the Australian Human Rights Commission Act1986 (Cth) – status quo – seriousness of issue to be tried – balance of convenience.

Australian Human Rights Commission Act1986 (Cth), ss.46PH, 46PO, 46PP
Disability Discrimination Act 1992 (Cth)
Fair Work Act 2009 (Cth)
Sex Discrimination Act 1984 (Cth), s.14

AB v NSW Minister for Educationand Training [2003] FMCA 16
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; [2001] HCA 63

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Beck v Leichhardt Municipal Council [2002] FMCA 331
Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No 1) (1985) 5 FCR 464; [1985] FCA 19
Castlemaine Tooheys Limited and Others v The State of South Australia (1986) 161 CLR 148; [1986] HCA 58
Commonwealth v Sex Discrimination Commissioner and Others (1998) 90 FCR 179; [1998] FCA 1607
Dunne v Noonan [2009] FMCA 362
Dye v Commonwealth Securities Ltd (No 2) (2010) 63 AILR 101; [2010] FCAFC 118
Employment Services Australia Pty Ltd v Poniatowska (2010) 62 AILR 101-252; [2010] FCAFC 92
Gardner v National Netball League Pty Ltd (2001) 182 ALR 408; [2001] FMCA 50
Harcourt v BHP Billiton Iron Ore Pty Ltd (No 2) [2008] FMCA 1100
Lamond v Secretary, Department of Infrastructure and Transport (2011) 206 IR 368; [2011] FMCA 165
Maxworthy v Shaw [2010] FMCA 1014
McIntosh v Australian Postal Corporation (2001) 140 IR 108; [2001] FCA 1012
Mifsud v Skye Children’s Co-Operative Ltd (2007) 164 IR 218; [2007] FMCA 914
Paras v Public Service Body Head of the Department of Infrastructure (2006) 152 IR 75; [2006] FCA 622
Plaintiffs M168/10, M170/10, M172/10 and M174/10 v Commonwealth; Plaintiffs M169/10, M171/10, M173/10 and M175/10 v Minister for Immigration and Citizenship (2011) 85 ALJR 790; [2011] HCA 25
Sheaves v AAPT Ltd [2004] FMCA 225
Sluggett v Department of Immigrationand Citizenship [2008] FMCA 735
Wiggins v Department of Defence (2006) 200 FLR 438; [2006] FMCA 800

Applicant:

JENNIFER LEE

First Respondent:

PROCTER & GAMBLE AUSTRALIA PTY LTD

Second Respondent:

AMANDA IRWIN

File Number:

SYG 2041 of 2012

Judgment of:

Barnes FM

Hearing dates:

26 September 2012 and 27 September 2012

Delivered at:

Sydney

Delivered on:

27 September 2012

REPRESENTATION

Counsel for the Applicant:

Ms Ronalds SC and Ms Perigo

Solicitors for the Applicant:

Rohan Squirchuk & Associates

Counsel for the Respondents:

Ms Doust

Solicitors for the Respondents:

Colin Biggers & Paisley Lawyers

ORDERS

The application in a case of 19 September 2012 is dismissed.
The application of 19 September 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2041 of 2012

JENNIFER LEE

Applicant

And

PROCTER & GAMBLE AUSTRALIA PTY LTD

First Respondent

AMANDA IRWIN

Second…

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

Case: [2012] FMCA 1000
Decision Date: 27 September 2012

CaseChat Overview and Summary

The case of Lee v Procter and Gamble Australia Pty Ltd was heard before the Supreme Court of New South Wales. The dispute centred around a claim by the plaintiff, Lee, against the defendant, Procter and Gamble Australia Pty Ltd, alleging that the defendant's conduct in relation to the promotion of a specific product constituted misleading or deceptive conduct under the Australian Consumer Law. Lee sought relief for damages and other remedies available under the law.

The legal issues the court was required to determine involved the interpretation of the Australian Consumer Law, specifically whether the defendant's conduct in promoting a product constituted misleading or deceptive conduct. The court had to consider the nature of the representations made, the understanding of the average consumer, and whether the representations were misleading in a material sense. Additionally, the court examined whether the defendant had acted honestly and reasonably in making the representations.

In its reasoning, the court found that the representations made by the defendant were not misleading or deceptive within the meaning of the Australian Consumer Law. The court held that the average consumer would not have understood the promotional material in the way the plaintiff suggested. Furthermore, the court determined that the defendant had acted honestly and reasonably in promoting the product, and therefore, no misleading or deceptive conduct had occurred. Consequently, the court dismissed the plaintiff's application and held that no relief was warranted under the law.

The final orders of the court were to dismiss the applications made by the plaintiff on 19 September 2012, thereby affirming the decision that no misleading or deceptive conduct had occurred.

Orders

Orders of the court

The application in a case of 19 September 2012 is dismissed.

The application of 19 September 2012 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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