Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd (No 3) [2006] FCA 1066

Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd (No 3) [2006] FCA 1066

The advertisement was misleading and deceptive in that it represented falsely that the nasal spray had cured or alleviated Mr Turpie of impotence/erectile dysfunction and that he had confessed this in the presence of his wife with her approval. These representations were untrue. The first and second respondents caused the publication of these representations, knowing they were misleading or deceptive, thereby contravening s 52 of the Trade Practices Act 1974 (Cth).

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent/cross Claimant: Advanced Medical Institute Pty Ltd (ACN 095 238 645); Second Respondent: Philip Somerset trading as ColbyCo Media; Third Respondent/cross Respondent: Ian Bruce Turpie
Jurisdiction
Australia
Judgment Date
15 August 2006
Procedural Posture
Civil / Final Judgment
Outcome
Declaration of contravention made; cross-claim dismissed; no injunction or corrective advertising ordered; costs awarded to applicant on main claim; no order as to costs on cross-claim.
Legal Topics
Misleading or Deceptive Conduct, Advertising, Celebrity Endorsement, Section 52 Trade Practices Act
Trade Practices Misleading or Deceptive Conduct Advertising Celebrity Endorsement Section 52 Trade Practices Act

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Parties

Australian Competition and Consumer Commission

Applicant

Advanced Medical Institute Pty Ltd (ACN 095 238 645)

First Respondent/cross Claimant

Philip Somerset trading as ColbyCo Media

Second Respondent

Ian Bruce Turpie

Third Respondent/cross Respondent

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Whether the advertisement was misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the Trade Practices Act 1974 (Cth)
  2. 2 Whether representations made in the advertisement were false
  3. 3 Whether the second respondent was knowingly concerned in the contravention

Ratio Decidendi

The advertisement was misleading and deceptive in that it represented falsely that the nasal spray had cured or alleviated Mr Turpie of impotence/erectile dysfunction and that he had confessed this in the presence of his wife with her approval. These representations were untrue. The first and second respondents caused the publication of these representations, knowing they were misleading or deceptive, thereby contravening s 52 of the Trade Practices Act 1974 (Cth).

Court Disposition

Declaration of contravention made; cross-claim dismissed; no injunction or corrective advertising ordered; costs awarded to applicant on main claim; no order as to costs on cross-claim.

Orders

  • The first respondent engaged in misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) by causing a misleading advertisement to be published.
  • The second respondent was knowingly concerned in the contravention by the first respondent.