Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 3) [2012] FCA 504

Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 3) [2012] FCA 504

The respondents suffered a compensable loss of commercial opportunity to profit from continued advertising; however, loss must be measured based on a shorter campaign duration and a modest 4% average uplift in sales of prescription glasses. Damages are to be calculated using the agreed model with specified input parameters, and costs for the first part of the hearing are apportioned 30% to Specsavers, 70% to The Optical Superstore.

Parties
Applicant: Specsavers Pty Ltd; First Respondent: The Optical Superstore Pty Ltd; Second Respondent: Optom Admin Pty Ltd; Third Respondent: William Chin; Fourth Respondent: Northern Coast Optical Pty Ltd; Fifth Respondent: Townsville Optical Pty Ltd; Sixth Respondent: Bundaberg Optical Pty Ltd; Seventh Respondent: Unique Eyewear Pty Ltd; Eighth Respondent: Ipswich Optical Pty Ltd
Jurisdiction
Australia
Judgment Date
17 May 2012
Procedural Posture
Damages, Assessment Pursuant to Undertaking as to Damages (following Interlocutory Injunction) / Post Liability, Assessment of Damages and Costs
Outcome
Applicant's claim for loss of profits failed, but respondents established compensable loss of commercial opportunity; damages to be calculated as per findings using agreed model; costs apportioned.
Legal Topics
Assessment of Damages Under Undertaking to the Court, Misleading or Deceptive Conduct, Interlocutory Injunctions, Loss of Commercial Opportunity, Costs Apportionment
Equity Damages Competition Law Consumer Law Assessment of Damages Under Undertaking to the Court Misleading or Deceptive Conduct Interlocutory Injunctions Loss of Commercial Opportunity +1 more

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Parties

Specsavers Pty Ltd

Applicant

The Optical Superstore Pty Ltd

First Respondent

Optom Admin Pty Ltd

Second Respondent

William Chin

Third Respondent

Northern Coast Optical Pty Ltd

Fourth Respondent

Townsville Optical Pty Ltd

Fifth Respondent

Bundaberg Optical Pty Ltd

Sixth Respondent

Unique Eyewear Pty Ltd

Seventh Respondent

Ipswich Optical Pty Ltd

Eighth Respondent

Procedural Posture

Damages, Assessment Pursuant to Undertaking as to Damages (following Interlocutory Injunction) / Post Liability, Assessment of Damages and Costs

Legal Issues

  1. 1 Whether the respondents suffered compensable loss directly flowing from the interlocutory injunction restraining broadcast of television commercial
  2. 2 Measurement of damages for lost commercial opportunity
  3. 3 Suitability of proxy advertising campaigns to calculate lost profits

Ratio Decidendi

The respondents suffered a compensable loss of commercial opportunity to profit from continued advertising; however, loss must be measured based on a shorter campaign duration and a modest 4% average uplift in sales of prescription glasses. Damages are to be calculated using the agreed model with specified input parameters, and costs for the first part of the hearing are apportioned 30% to Specsavers, 70% to The Optical Superstore.

Court Disposition

Applicant's claim for loss of profits failed, but respondents established compensable loss of commercial opportunity; damages to be calculated as per findings using agreed model; costs apportioned.

Orders

  • The first respondent pay 30% of the applicant's costs incurred in, or in connection with, the first part of the proceeding.
  • The applicant pay 70% of the first respondent's costs incurred in, or in connection with, the first part of the proceeding.