Specsavers Pty Ltd (ACN 097 147 923) v The Optical Superstore Pty Ltd (ACN 095 737 894)

In the Federal Court of Australia, Specsavers Pty Ltd (Specsavers) filed an application against The Optical Superstore Pty Ltd (The Optical Superstore) seeking an interlocutory injunction. Specsavers, a competitor in the retail spectacles market, sought to restrain The Optical Superstore from publishing certain advertisements that allegedly misrepresented discounts and sale prices. The specific injunctions sought by Specsavers aimed to prevent The Optical Superstore from publishing advertisements claiming discounts of 40% or 70% on frames, unless those frames had been sold at higher prices for at least one month prior to the offer, and from advertising goods as being available at a lower price for more than three months. Specsavers also sought to ensure that any claims regarding complete sets of glasses containing frames and prescription lenses were accurate.

The legal issues before the court revolved around whether The Optical Superstore's advertisements constituted misleading or deceptive conduct under the Trade Practices Act 1974 (Cth) (TPA). The court had to consider whether the advertisements breached sections 52, 53(e), and 75AZC(1)(g) of the TPA, which prohibit misleading, deceptive, or false conduct in trade or commerce. The court also had to weigh the balance of convenience in deciding whether to grant the interlocutory injunction sought by Specsavers. This involved assessing the delay in seeking the injunction and its potential impact on both parties.

In determining the application, the court noted that while there had been a delay by Specsavers in seeking an interlocutory injunction, it did not weigh heavily in the balance of convenience assessment. The court concluded that interlocutory injunctive relief should not be granted. It observed that the evidence did not sufficiently establish that The Optical Superstore's advertisements were misleading or deceptive, and that the balance of convenience did not favour Specsavers. Consequently, the motion for interlocutory relief was refused. The court ordered a speedy trial of the application and set directions for a hearing. The costs of the application were ordered to be costs in the cause, and liberty was reserved to either party to apply further.