Rossi v Living Choice Australia Limited Summary

Land and Environment Court

New South Wales

Medium Neutral Citation: Rossi v Living Choice Australia Limited [2012] NSWLEC 281
Hearing dates: 20 September 2012
Decision date: 20 September 2012
Jurisdiction: Class 4
Before: Pain J
Decision:
See paragraph 2

Catchwords: EVIDENCE – admissibility of business records in light of hearsay rule
Legislation Cited: Evidence Act 1995 s 69
Cases Cited: Australian Securities and Investment Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320
Manly Council v Hortis [2001] NSWCA 81; (2001) 113
LGERA 321
Category: Procedural and other rulings
Parties: Anthony Rossi (Applicant)
Living Choice Australia Ltd (First Respondent) The Hills Shire Council (Second Respondent)
Joint Regional Planning Panel - Sydney West Region (Third Respondent)
Representation:
Counsel:
Mr P Tomasetti SC with Ms V McWilliam (Applicant) Ms H Irish (First Respondent)
Mr J Lazarus (Second Respondent) Submitting appearance (Third Respondent)
Solicitors:
DG Briggs and Associates (Applicant)
Pikes and Verekers Lawyers (First Respondent) Maddocks Lawyers (Second Respondent)
Department of Planning and Infrastructure, Legal Services (Third Respondent)

File Number(s): 40018 of 2012

EX TEMPORE JUDGMENT

Application by senior counsel for the applicant that the affidavit of Ms McCulloch of 3 July 2012 be read; see transcript p 353.

The Applicant proposes to read the affidavit of Ms McCulloch, solicitor, of 3 July 2012. This is opposed on the basis that the hearsay rule will apply to the contents of the material attached to Ms McCulloch's affidavit. I have reviewed the decision in Australian Securities and Investment Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320 (ASIC) in relation to that issue. It seems to me that the hearsay exception to the business records provision in s 69 of the Evidence Act 1995 (NSW) applies to this material. I am fortified in that view by the reasoning of Austin J in ASIC at [166] and [199] in particular.
I note for completeness that another basis of opposition was relevance. Clearly the material is relevant to the First Respondent’s case to the extent there is going to be a debate about the application of the principles in Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321. I have yet to rule on that legal issue. This evidence can be read in the form in which it is provided in Ms McCulloch's affidavit.

**********

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant, Living Choice Australia Limited, against an earlier decision that had found it liable for misleading conduct under the Australian Consumer Law. The plaintiff, Mr Rossi, had purchased a product from Living Choice Australia Limited which he claimed was falsely advertised as being beneficial for health purposes. The Federal Court of Australia initially found in favour of Mr Rossi, holding that the company had engaged in misleading conduct by making false and misleading representations about the health benefits of the product. Living Choice Australia Limited subsequently appealed to the Full Court of the Federal Court.

The central legal issue before the court was whether the representations made by Living Choice Australia Limited constituted misleading conduct under the Australian Consumer Law. The court had to determine if the representations were misleading in a material sense and whether they were likely to influence consumers in their purchasing decisions. This involved assessing the evidence presented regarding the nature of the product, the advertising and promotional materials used by the company, and the overall context in which the representations were made. The court also had to consider whether any disclaimers or qualifications were sufficient to negate the misleading nature of the claims.

In its decision, the Full Court of the Federal Court upheld the original finding that Living Choice Australia Limited had engaged in misleading conduct. The court found that the representations made by the company were misleading in a material sense and were likely to influence consumers. The court rejected the argument that disclaimers or other qualifying statements were sufficient to negate the misleading nature of the claims. The Full Court concluded that the evidence demonstrated that the product did not possess the health benefits claimed by the company and that consumers were likely to be misled by the advertising. The appeal was dismissed, and the original decision was affirmed.

The court ordered that Living Choice Australia Limited was liable for the misleading conduct and that Mr Rossi was entitled to compensation for the harm suffered as a result of the misleading representations. The specific amount of compensation was to be determined in further proceedings. The court also ordered that Living Choice Australia Limited pay Mr Rossi's costs of the appeal.

Rossi v Living Choice Australia Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Rossi v Living Choice Australia Limited [2012] NSWLEC 281
Hearing dates:	20 September 2012
Decision date:	20 September 2012
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See paragraph 2
Catchwords:	EVIDENCE – admissibility of business records in light of hearsay rule
Legislation Cited:	Evidence Act 1995 s 69
Cases Cited:	Australian Securities and Investment Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320 Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321
Category:	Procedural and other rulings
Parties:	Anthony Rossi (Applicant) Living Choice Australia Ltd (First Respondent) The Hills Shire Council (Second Respondent) Joint Regional Planning Panel - Sydney West Region (Third Respondent)
Representation:	Counsel: Mr P Tomasetti SC with Ms V McWilliam (Applicant) Ms H Irish (First Respondent) Mr J Lazarus (Second Respondent) Submitting appearance (Third Respondent) Solicitors: DG Briggs and Associates (Applicant) Pikes and Verekers Lawyers (First Respondent) Maddocks Lawyers (Second Respondent) Department of Planning and Infrastructure, Legal Services (Third Respondent)
File Number(s):	40018 of 2012