Terry v Leventeris - [2011] HCATrans 274

[2011] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A12 of 2011

B e t w e e n -
CHRISTOPHER JAMES TERRY
Applicant
and
NICHOLAS LEVENTERIS AS REPRESENTATIVE OF THE ESTATE OF SOPHIA LEVENTERIS (DECEASED)
Respondent

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 29 SEPTEMBER 2011, AT 11.52 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR M.C. LIVESEY, QC, for the applicant. (instructed by Hunt & Hunt Solicitors)

MR R.J. WHITINGTON, QC: May it please the Court, I appear with my learned friend, MR B.J. KRUPKA, for the respondent. (instructed by Wallmans Lawyers)

MR WALKER: May it please your Honours. The evidence of Mr Daniels’ affidavit shows that most of the claims administered in this State include a component which would be governed by the law that raises the issues in this case. That does not mean that most cases raise this issue. It means that there is a claim of a kind that needs to comply with the law in question. At the relevant time it was, as your Honours know, subsection 24H(3) of the Wrongs Act 1936 (SA) which has been materially re-enacted thereafter. It is alive, an important issue. The scale of things is an annual scale of the kind of cases that would be governed by the rule in question of about $50 million.

The question therefore arises, what does this case throw up in relation to the meaning of the statutory provision because it is, in our submission, that this is a case in many ways of a usual kind, but of a kind urgently needing the intervention of this Court, namely there was a statute governing, and it has not been straightforwardly observed in the fashion that its terms call for.

BELL J: Can I just take this up with you? If one looks to the Court of Appeal’s judgment at application book 40, paragraph 37, the court notes, one would think unexceptionally, that what is important is to apply the statutory test, and a test is stated ‑ ‑ ‑

MR WALKER: They accurately set it out, yes.

BELL J: Now, I appreciate there are matters that you say underlie its application to the facts of this case, but what do you say stands in the judgment of the Court of Appeal in the nature of error?

MR WALKER: That is the page I was going to start with too, your Honour, but it is the next two paragraphs that really are the critical demonstrations of error. In the next two paragraphs, there is, in our submission, an elision of a factual difference over the relevant period following the accident in the findings of fact at first instance, to which I will come, and second, there is an acknowledgment – see paragraph 39 in particular – that the trial judge did not…

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 Terry v Leventeris

Details

AGLC: Terry v Leventeris [2011] HCATrans 274
Case: [2011] HCATrans 274
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were Terry (the applicant) and Leventeris (the respondent). The dispute concerned the respondent's alleged contravention of s 18 of the Australian Consumer Law (ACL), which prohibits misleading or deceptive conduct in trade or commerce. The matter came before the High Court of Australia on appeal from the Full Federal Court.

The central legal issue before the High Court was whether the respondent's conduct in advertising and selling a particular type of mattress constituted misleading or deceptive conduct under s 18 of the ACL. Specifically, the court had to determine whether the representations made about the mattress's therapeutic qualities were substantiated and, if not, whether they were likely to mislead or deceive consumers.

The High Court considered the principles governing misleading or deceptive conduct under the ACL, particularly in the context of advertising therapeutic claims. The court emphasised that representations about therapeutic benefits must be based on reasonable grounds at the time they are made. If such grounds are lacking, the representations are likely to be considered misleading or deceptive, as consumers are likely to be led to believe that the product possesses qualities it does not. The court analysed the evidence presented regarding the scientific basis for the claims made about the mattress and found that the respondent had failed to establish reasonable grounds for those claims.

The High Court allowed the appeal, finding that the respondent had contravened s 18 of the ACL. The court remitted the matter to the Federal Court for the determination of appropriate remedies.

Orders