Canberra:FEDERAL COURT OF AUSTRALIARe: COUNTRY ROAD CLOTHING PTY LTDAnd: NAJEE NOMINEES PTY LTDNo. V G67 of 1991FED No. 119Trade PracticesCOURTIN THE FEDERAL COURT OF AUSTRALIAVICTORIA DISTRICT REGISTRYGENERAL DIVISIONHeerey J.(1)CATCHWORDSTrade Practices - alleged misleading and deceptive conduct - printed comparative advertisement - meaning conveyed by advertisement - invitation to compare different products - factual accuracy of advertisement.Trade Practices Act 1974, ss.52, 53(a), 53(aa), 53(e), 55, 79.Morgan v Odhams Press Ltd (1971) 1 WLR 1239Lewis v Daily Telegraph Ltd (1964) AC 234HCF Australia Ltd v Switzerland Australia Health Fund Pty Ltd  FCA 333; (1988) ATPR 49,108Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336Rejfek v McElroy  HCA 46; (1984) 112 CLR 517HEARINGMELBOURNE27:3:1991Counsel for the Applicant: Mr R. Gillard QC withMr C.D. GolvanSolicitors for the Applicant: ColtmansCounsel for the Respondent: Mr R. Merkel QC withMr D. CollinsSolicitors for the Respondent: Howie and MaherDECISIONIn the "Good Weekend" colour supplement to The Age published on Saturday, 16 March 1991 the Respondent, Najee Nominees Pty Ltd ("Najee") published a double page advertisement. The total area of the advertisement is approximately 39cm x 27cm. About three-quarters of the advertisement is taken up with three photographs of the same man wearing a navy blue double breasted suit. In each photograph he is wearing the same shirt and tie. Across the bottom of each photograph there are the following respective words (reading from left to right):Pure New WoolGaberdine Suit byCOUNTRY ROAD$995Pure New WoolGaberdine Suit byHUGO BOSS$795Pure New WoolGaberdine Suit byNAJEE 9.2.5$3492. Along the top of the advertisement in white letters 2.5cm high are the words:WHY PAY MORE3. Along the bottom of the advertisement, again in white against a coloured background, in letters 1cm high are the words:COMPARE SUITS, THEN COMPARE PRICES4. To the right of the photographs of the three suits there are the following words in letters 0.5cm high:Price tags no longerdictate style and quality.From this point of view, therationale behind the Najee9.2.5 suit becomes morerational than ever.Perfectly tailored in purenew wool gaberdine, it'sdesigned to work nine tofive and beyond.5. There then follows the pure new wool trademark with the words "Cool Wool" and underneath that some words containing more details about prices of Najee suits, shirts, trousers and shoes. This material is not relevant for present purposes.6. Underneath the price details are the words:Available exclusively at all of the following Najee Storesfollowed by locations of a number of Najee outlets in Victoria and other States.7. The applicant, Country Road Clothing Pty Ltd ("Country Road") is a well known retailer of clothing, including high quality men's suits. It claims that in publishing this advertisement Najee committed a breach of s.52(1) of the Trade Practices Act 1974 which provides:52. (1) A corporation shall not, in trade or commerce,engage in conduct that is misleading ordeceptive or is likely to mislead or deceive.8. Breaches of ss.53(a), (aa) and (e) and s.55 are...
Re Country Road Clothing Pty Ltd v Najee Nominees Pty Ltd  FCA 101 (27 March 1991)
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