Australian Competition and Consumer Commission v Ascot Four Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 21 August 2008
• Neutral Citation: [2008] FCA 1295

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Ascot Four Pty Ltd

[2008] FCA 1295

TRADE PRACTICES – prosecution under s 75AZC in Pt VC of the Trade Practices Act 1974 (Cth) – whether corporation made a false or misleading representation about the price of goods – advertising of jewellery in catalogue with stated price and strike through price – jewellery previously ticketed at strike through price but never sold at or near strike through price – whether false or misleading – held that catalogue represented to a group of ordinary and reasonable potential consumers that, in purchasing the jewellery items, there would be a saving of the difference between the catalogue sale price and the strike through price – defendant found guilty

TRADE PRACTICES – prosecution under s 75AZC in Pt VC of the Trade Practices Act 1974 (Cth) – whether necessary for prosecution to prove that no reasonable consumer could reasonably have understood representation in a way that was not false or misleading – consideration of usefulness of cases concerning the analogues of the sections in Pt VC in Pt V of the Act, particularly s 53(3) – held that s 75AZC did not require the prosecution to prove that

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 applied

Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 applied

Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 followed

Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 followed

Knight v R (1992) 175 CLR 495 followed

Trade Practices Commission v Cue Design Pty Ltd (1996) 85 ACrim Rep 500 considered

Australian Competition and Consumer Commission v Allans Music Group Pty Ltd [2002] FCA 1552 considered

Ducret v Chaudhiry’s Oriental Carpet Palace Pty Ltd (1987) 76 ALR 182 considered

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ASCOT FOUR PTY LTD

SAD.282 of 2006

MANSFIELD J

21 AUGUST 2008

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD.282 of 2006

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Prosecutor
AND:	ASCOT FOUR PTY LTD Defendant

JUDGE:	MANSFIELD J
DATE OF ORDER:	21 AUGUST 2008
WHERE MADE:	ADELAIDE

THE COURT FINDS THAT:

1. On Count 1, namely that on or about the 24^th day of November 2005, being a corporation in trade or commerce, in connection with the supply of goods or in connection with the promotion of the supply of goods, the defendant did make a false or misleading representation about the price of goods; contrary to s 75AZC(1)(g) of the Trade Practices Act 1974 (Cth),

the defendant is guilty.

2. On Count 2, namely that on or about the 24^th day of November 2005, being a corporation in trade or commerce, in connection with the supply of goods or in connection with the promotion of the supply of goods, the defendant did make a false or misleading representation about the price of goods; contrary to s 75AZC(1)(g) of the Trade Practices Act 1974 (Cth),

the defendant is guilty.

3. On Count 3, namely that on or about the 24^th day of November 2005, being a corporation in trade or commerce, in connection with the supply of goods or in connection with the promotion of the supply of goods, the defendant did make a false or misleading representation about the price of goods; contrary to s 75AZC(1)(g) of the Trade Practices Act 1974 (Cth),

the defendant is guilty.

4. On Count 4, namely that on or about the 24^th day of November 2005, being a corporation in trade or commerce, in connection with the supply of goods or in connection with the promotion of the supply of goods, the defendant did make a false or misleading representation about the price of goods; contrary to s 75AZC(1)(g) of the Trade Practices Act 1974 (Cth),

the defendant is guilty.

5. On Count 5, namely that on or about the 24^th day of November 2005, being a corporation in trade or commerce, in connection with the supply of goods or in connection with the promotion of the supply of goods, the defendant did make a false or misleading representation about the price of goods; contrary to s 75AZC(1)(g) of the Trade Practices Act 1974 (Cth),

the defendant is guilty.

6. On Count 6, namely that on or about the 24^th day of November 2005, being a corporation in trade or commerce, in connection with the supply of goods or in connection with the promotion of the supply of goods, the defendant did make a false or misleading representation about the price of goods; contrary to s 75AZC(1)(g) of the Trade Practices Act 1974 (Cth),

the defendant is guilty.

7. On Count 7, namely that on or about the 24^th day of November 2005, being a corporation in trade or commerce, in connection with the supply of goods or in connection with the promotion of the supply of goods, the defendant did make a false or misleading representation about the price of goods; contrary to s 75AZC(1)(g) of the Trade Practices Act 1974 (Cth),

the defendant is guilty.

8. On Count 8, namely that on or about the 24^th day of November 2005, being a corporation in trade or commerce, in connection with the supply of goods or in connection with the promotion of the supply of goods, the defendant did make a false or misleading representation about the price of goods; contrary to s 75AZC(1)(g) of the Trade Practices Act 1974 (Cth),

the defendant is guilty.

9. On Count 9, namely that on or about the 24^th day of November 2005, being a corporation in trade or commerce, in connection with the supply of goods or in connection with the promotion of the supply of goods, the defendant did make a false or misleading representation about the price of goods; contrary to s 75AZC(1)(g) of the Trade Practices Act 1974 (Cth),

the defendant is guilty.

10. On Count 10, namely that on or about the 24^th day of November 2005, being a corporation in trade or commerce, in connection with the supply of goods or in connection with the promotion of the supply of goods, the defendant did make a false or misleading representation about the price of goods; contrary to s 75AZC(1)(g) of the Trade Practices Act 1974 (Cth),

the defendant is guilty.

11. On Count 11, namely that on or about the 24^th day of November 2005, being a corporation in trade or commerce, in connection with the supply of goods or in connection with the promotion of the supply of goods, the defendant did make a false or misleading representation about the price of goods; contrary to s 75AZC(1)(g) of the Trade Practices Act 1974 (Cth),

the defendant is guilty.

AND THE COURT ORDERS THAT

12. The information be stood over to a date to be fixed for the purpose of considering what, if any, further orders should be made.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD.282 of 2006

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Prosecutor
AND:	ASCOT FOUR PTY LTD Defendant

JUDGE:	MANSFIELD J
DATE:	21 AUGUST 2008
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The defendant is a trading corporation. At all material times, that is from about 1 July 2005 to the early months of 2006, it was the proprietor of a jewellery retailer business trading under the name “Zamel’s”. In that time, it operated a chain of 69 jewellery stores: South Australia (14), Victoria (24), Western Australia (24), Tasmania (2) and the Australian Capital Territory (5).

2 In November 2005, the defendant caused to be published a pre-Christmas sale catalogue (the Christmas catalogue) advertising for sale during the period 24 November 2005 to 24 December 2005 (the sale period) various jewellery items. The Christmas catalogue was advertised by a variety of means, including the print and electronic media – both television and radio – in each State and Territory in which the defendant operated a jewellery retail store, as well as in each of its stores and on the internet.

3 The prosecutor has charged the defendant with 11 counts of making a false or misleading representation about the price of certain items of jewellery in the Christmas catalogue, contrary to s 75AZC(1)(g) of the Trade Practices Act 1975 (Cth) (the TP Act). Each count alleges that the defendant, by the Christmas catalogue, represented that a particular item of jewellery had been sold at the advertised “strike through” price, or that the purchase of that item of particular jewellery during the sale period would result in a saving to the purchaser of the difference between the price as specified in the Christmas catalogue (the sale price), and the strike through price. The prosecutor says that each of the representations was false or misleading because the highest price at which the particular item of jewellery was or had been sold within a substantial period prior to the Christmas catalogue being published was substantially less than the strike through price.

4 The defendant has pleaded not guilty to each of the counts.

5 It is common ground that each offence under s 75AZC(1) of the TP Act is an offence of strict liability: see s 75AZC(2). The prosecutor must prove its case on each count beyond reasonable doubt.

6 The prosecutor’s evidence was not directly contested. In essence, it comprised affidavits of two of its officers relating to the course of the investigation into the alleged offences, the information gathered in the course of that investigation, including material provided by the defendant in response to a notice under s 155 of the TP Act, and the analysis of the information so acquired. That material was helpfully presented in a folder containing, separately...