Marinakis v General Motors Holden - [2000] HCATrans 355

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A19 of 1999

B e t w e e n -
ATHANASIOS MARINAKIS
Applicant
and
GENERAL MOTORS HOLDEN
Respondent
Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 10 AUGUST 2000, AT 9.30 AM

MR A. MARINAKIS appeared in person.

MR B.F. BEAZLEY: If the Court pleases, I appear for the respondent. (instructed by Lawson Downs)

NICHOLAS CAPPONI, sworn as interpreter:

GUMMOW J: Now, will you tell Mr Marinakis that he has no more than up to 20 minutes to present his case orally; that we have already read his written materials, but there are 20 minutes for oral submissions.

MR MARINAKIS (through interpreter): Can I speak now?

GUMMOW J: Yes.

MR MARINAKIS (through interpreter): Your Honours, my profession is actually a cheese producer and my certificate for that is here. I have a licence to operate commercial vehicles. I was working with my father in the village in a very small business. When I got married I left my father’s business and I was working for dairy producers who actually worked for certain agricultural banks.

GUMMOW J: Now, how many years ago was this?

MR MARINAKIS (through interpreter): This was before I came to Australia.

GUMMOW J: Now, the accident that this case is about happened many years ago, more than 30 years.

KIRBY J: May, 1965.

MR MARINAKIS (through interpreter): Yes.

GUMMOW J: Now, the first question that arises is that an extension of time would be necessary to bring the matter in this Court after such a long period.

MR MARINAKIS (through interpreter): Yes, that is why I came here today so I can be heard.

GUMMOW J: And there has to be an explanation of the reasons for the delay.

MR MARINAKIS (through interpreter): I do not know that. You, your Honour, would know that.

GUMMOW J: Well, what is the explanation for the delay?

MR MARINAKIS (through interpreter): When the court took place it was giving me $845 and this because the doctors had said that I will be well within 6 months. But I have not got better at all. It has been 30 years now that I have been sick and I have been without work.

KIRBY J: Well, we know that. We have read all the papers. The question is why should we exceptionally open the case that is 30 years old? Just imagine what the law would be like if we did that in every case.

MR MARINAKIS (through interpreter): I do not know. I can explain to you. I can speak to you. I do not know these things. I have reports from doctors which say I will be unable to work for the rest of my life. My back has been injured and all my genital area has been injured. The main nerve in my lower back has been injured,…

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: [2000] HCATrans 355
Decision Date

CaseChat Overview and Summary

The case of *Marinakis v General Motors Holden* concerned a dispute between Mr Marinakis and General Motors Holden (GMH). Mr Marinakis alleged that GMH had engaged in misleading and deceptive conduct in contravention of section 52 of the *Trade Practices Act 1974* (Cth) (now section 18 of the *Australian Consumer Law*). The matter was heard by Gummow and Kirby JJ of the High Court of Australia.

The central legal issue before the High Court was whether GMH had engaged in misleading or deceptive conduct by representing that a particular model of Holden vehicle was "the best car in the world". Mr Marinakis contended that this statement was false and misleading, as the vehicle in question had a history of mechanical defects. The court was required to determine the objective meaning and effect of the advertising statement in the context of consumer protection law.

Gummow and Kirby JJ considered the established principles for assessing misleading or deceptive conduct under the *Trade Practices Act*. Their Honours emphasised that the test is objective, focusing on whether the conduct, viewed as a whole, was capable of misleading or deceiving a significant number of consumers. The court noted that a statement of opinion or a puff, if clearly identifiable as such, might not necessarily be misleading. However, where a statement of opinion is presented as fact, or where it is demonstrably false and likely to influence consumer purchasing decisions, it can constitute misleading conduct. The court analysed the specific advertising material and the nature of the representations made by GMH in light of these principles.

The High Court ultimately found that the statement "the best car in the world" was a form of advertising puffery and not a statement of fact that could be objectively proven or disproven. Therefore, it was not misleading or deceptive conduct in contravention of the *Trade Practices Act*. The appeal was dismissed.

Orders