Cassidy v Saatchi & Saatchi Australia Pty Ltd [2004] FCAFC 34

FEDERAL COURT OF AUSTRALIA

Cassidy v Saatchi & Saatchi Australia Pty Ltd [2004] FCAFC 34 MISLEADING CONDUCT – misleading conduct in relation to financial services – misleading advertisements prepared by advertising agency but vetted and approved by principal – principal arranged publication of advertisements through separate entity – whether advertising agency made the representations contained in the advertisements – whether advertising agency contravened s 12DA(1) of Australian Securities & Investments Commission Act 2001 (Cth) as principal – no allegation that advertising agency liable as accessory under s 12DN of Act TRADE PRACTICES – misleading conduct – advertising agency – consideration of circumstances in which advertising agency preparing advertisements which are misleading may be liable as principal for contravention of s 12DA(1) of Australian Securities & Investments Commission Act 2001 (Cth) in terms equivalent to s 52 of Trade Practices Act 1974 (Cth) Australian Securities and Investments Commission Act 1989 (Cth) Australian Securities & Investments Commission Act 2001 (Cth) ss 12DA, 12DA(1), 12DB, 12DN, 12GB, 12GD, 12GF, 12GI, 12GM Trade Practices Act 1974 (Cth) ss 52, 53, 53(e),65A, 65A(1)(b), 75B, 79, 80, 82, 85(3), 87 Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR 453 noted Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 applied Brown v Jam Factory Pty Ltd (1991) 35 ALR 79 referred to Cassidy v NRMA Health Pty Ltd [2002] FCA 1228 discussed Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575cited Gardam v George Wills & Co Ltd (1988) 82 ALR 415 considered Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 applied Henville v Walker (2001) 206 CLR 459 cited Parkdale Custom Built Furniture Pty Ltd v Puxu Pty (1981) 149 CLR 191 discussed Taco Company of Australia Ltd v Taco Bell Pty Ltd (1982) 42 ALR 177 considered Thompson v Riley McKay Pty Ltd (1980) 29 ALR 267 considered Thompson v Australian Capital Television Pty Limited (1996) 186 CLR 574 referred to Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 followed Webb v Bloch (1928) 41 CLR 331 considered