Australian Competition & Consumer Commission v Danoz Direct Pty Ltd (ACN 003 546 709) [2003] FCA 881

Australian Competition & Consumer Commission v Danoz Direct Pty Ltd (ACN 003 546 709) [2003] FCA 881

The Court found that, except for those mechanical descriptions of the device supported by evidence, the representations made about the AbTronic's ability to produce weight loss, reduce body fat, flatten the stomach, and to give equivalent results to 600 sit-ups, as well as certain claims about muscle toning and benefits, were made without reasonable grounds and were misleading contrary to ss 52, 51A and 53(c) and (e) of the Trade Practices Act. The individuals involved in preparing and approving these representations to the public (notably Mr Quinn and Mr Schereck for specific claims) were knowingly involved in the contraventions. However, the Court was not satisfied that Mr Ozana (second...

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: Danoz Direct Pty Ltd (ACN 003 546 709); Second Respondent: Moshe Ozana; Third Respondent: Michael William Ronald Quinn; Fourth Respondent: Aaron Schereck
Jurisdiction
Australia
Judgment Date
22 August 2003
Procedural Posture
Civil / Trial Judgment
Outcome
Declarations of contravention made; orders for corrective advertising; order for compliance programme; no general order for refunds granted; matter adjourned for parties to submit further proposals on relief and costs.
Legal Topics
Misleading or Deceptive Conduct, False Representations as to Goods, Section 52 Trade Practices Act, Section 51 a Trade Practices Act, Section 53 Trade Practices Act, Aiding and Abetting Contraventions, Corrective Advertising, Declarations, Compliance Programs
Consumer Law Trade Practices Misleading or Deceptive Conduct False Representations as to Goods Section 52 Trade Practices Act Section 51 a Trade Practices Act Section 53 Trade Practices Act Aiding and Abetting Contraventions +3 more

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Parties

Australian Competition and Consumer Commission

Applicant

Danoz Direct Pty Ltd (ACN 003 546 709)

First Respondent

Moshe Ozana

Second Respondent

Michael William Ronald Quinn

Third Respondent

Aaron Schereck

Fourth Respondent

Procedural Posture

Civil / Trial Judgment

Legal Issues

  1. 1 Whether representations about the AbTronic made by the first respondent in advertisements, website, and catalogues constituted misleading or deceptive conduct or were likely to mislead or deceive under the Trade Practices Act 1974 (Cth)
  2. 2 Whether there were reasonable grounds for representations as to future matters (s 51A)
  3. 3 Whether individuals aided, abetted, counselled or procured contraventions (s 75B)

Ratio Decidendi

The Court found that, except for those mechanical descriptions of the device supported by evidence, the representations made about the AbTronic's ability to produce weight loss, reduce body fat, flatten the stomach, and to give equivalent results to 600 sit-ups, as well as certain claims about muscle toning and benefits, were made without reasonable grounds and were misleading contrary to ss 52, 51A and 53(c) and (e) of the Trade Practices Act. The individuals involved in preparing and approving these representations to the public (notably Mr Quinn and Mr Schereck for specific claims) were knowingly involved in the contraventions. However, the Court was not satisfied that Mr Ozana (second...

Court Disposition

Declarations of contravention made; orders for corrective advertising; order for compliance programme; no general order for refunds granted; matter adjourned for parties to submit further proposals on relief and costs.

Orders

  • Declarations that first respondent's representations about the AbTronic were misleading or deceptive or likely to mislead or deceive under s 52 of the Trade Practices Act 1974 (Cth) and that the third and fourth respondents were knowingly concerned in the contraventions for specified claims.
  • Order that first respondent is to broadcast corrective advertisements on same television stations, publish in The Australian newspaper, website and next catalogue, as per schedule for at least two weeks.