Re Country Road Clothing Pty Ltd v Najee Nominees Pty Ltd [1991] FCA 101 (27 March 1991)

 
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Canberra:

FEDERAL COURT OF AUSTRALIA

Re: COUNTRY ROAD CLOTHING PTY LTD

And: NAJEE NOMINEES PTY LTD

No. V G67 of 1991

FED No. 119

Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

Heerey J.(1)

CATCHWORDS

Trade 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 1239

Lewis v Daily Telegraph Ltd (1964) AC 234

HCF Australia Ltd v Switzerland Australia Health Fund Pty Ltd [1988] FCA 333; (1988) ATPR 49,108

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Rejfek v McElroy [1965] HCA 46; (1984) 112 CLR 517

HEARING

MELBOURNE

27:3:1991

Counsel for the Applicant: Mr R. Gillard QC with

Mr C.D. Golvan

Solicitors for the Applicant: Coltmans

Counsel for the Respondent: Mr R. Merkel QC with

Mr D. Collins

Solicitors for the Respondent: Howie and Maher

DECISION

In 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 Wool

Gaberdine Suit by

COUNTRY ROAD

$995

Pure New Wool

Gaberdine Suit by

HUGO BOSS

$795

Pure New Wool

Gaberdine Suit by

NAJEE 9.2.5

$349

2. Along the top of the advertisement in white letters 2.5cm high are the words:

WHY PAY MORE

3. Along the bottom of the advertisement, again in white against a coloured background, in letters 1cm high are the words:

COMPARE SUITS, THEN COMPARE PRICES

4. To the right of the photographs of the three suits there are the following words in letters 0.5cm high:

Price tags no longer

dictate style and quality.

From this point of view, the

rationale behind the Najee

9.2.5 suit becomes more

rational than ever.

Perfectly tailored in pure

new wool gaberdine, it's

designed to work nine to

five 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 Stores

followed 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 or

deceptive or is likely to mislead or deceive.

8. Breaches of ss.53(a), (aa) and (e) and s.55 are...

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