Midland Metals Overseas v Australian Cablemakers Association [2018] NSWSC 938

Midland Metals Overseas v Australian Cablemakers Association [2018] NSWSC 938

Even assuming the letters made the representations alleged by Midland and that some were incorrect, the conduct was not misleading or deceptive or likely to mislead or deceive because, viewed objectively and in context, the recipient Ministers had ample departmental and regulatory expert resources, were overwhelmingly likely to seek advice before acting, and were not likely to be led into error by the letters themselves or by the conduct of sending them. The subsequent evidence confirmed that each Minister sought advice and did not act on the assertions in the letter contrary to that advice.

Jurisdiction
Australia
Judgment Date
21 June 2018
Procedural Posture
Commercial List Proceedings Alleging Misleading or Deceptive Conduct in Contravention of S 18 of the Australian Consumer Law, Seeking Declaratory and Injunctive Relief / Principal Judgment After Hearing
Outcome
Proceedings dismissed with costs, subject to liberty to apply for further or other costs orders.
Legal Topics
['misleading or Deceptive Conduct' 'australian Consumer Law S 18' 'representations of Opinion' 'electrical Cable Safety Standards' 'objective Characterisation of Conduct']
['commerce' 'consumer Law' 'equity Commercial List'] ['misleading or Deceptive Conduct' 'australian Consumer Law S 18' 'representations of Opinion' 'electrical Cable Safety Standards' 'objective Characterisation of Conduct']

Case Brief

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Procedural Posture

Commercial List Proceedings Alleging Misleading or Deceptive Conduct in Contravention of S 18 of the Australian Consumer Law, Seeking Declaratory and Injunctive Relief / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendants made each of the representations alleged by the plaintiff.' 'Whether in making the representations alleged the defendants engaged in conduct in trade or commerce.' 'Whether in making each representation alleged the defendants engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law.' 'The appropriate relief.' 'Whether Mr Persson was personally liable for any contravention of s 18.']

Ratio Decidendi

Even assuming the letters made the representations alleged by Midland and that some were incorrect, the conduct was not misleading or deceptive or likely to mislead or deceive because, viewed objectively and in context, the recipient Ministers had ample departmental and regulatory expert resources, were overwhelmingly likely to seek advice before acting, and were not likely to be led into error by the letters themselves or by the conduct of sending them. The subsequent evidence confirmed that each Minister sought advice and did not act on the assertions in the letter contrary to that advice.

Court Disposition

Proceedings dismissed with costs, subject to liberty to apply for further or other costs orders.

Orders

  • ['Order that the proceedings be dismissed.' "Subject to orders (3) to (5), order the plaintiff to pay the defendants' costs." 'Grant leave to any party to seek some further or other order as to costs; any such application to be made by written submissions sent to the other parties and forwarded to my Associate,...