Nationwide News Pty Ltd v Australian Competition & Consumer Commission [1996] FCA 1120

CATCHWORDS TRADE PRACTICES - contravention of s 53 (g) of Trade Practices Act 1974 - making a "misleading representation concerning the ... effect of any condition" - advertisement in newspaper, on television and over radio of mobile telephone as "free" - prosecution by former Trade Practices Commission - requirement that person enter into contract to outlay substantial monies - whether statement that "conditions apply" sufficient to overcome effect of word "free". TRADE PRACTICES - penalty for contraventions - advertisement of mobile telephone as "free" in newspaper, on television and over radio - making of "misleading representation concerning the ... effect of any condition" in contravention of s 53 (g) of Trade Practices Act 1974 - six contraventions of substantially similar nature occurring at about the same time - imposition of identical penalty of $20,000 in respect of each of the six contraventions, arrived at as being one sixth of $120,000 intended to be imposed overall - whether judicial discretion properly exercised, having regard to the different facts of the six contraventions, and in particular, the different propensities of the respective advertisements to mislead. WORDS AND PHRASES - offer of "free" goods or services in commercial advertising.

Trade Practices Act 1974 ss 53 (g), 79 (2) FTC v Standard Education Society 302 US 112 (1937) In re Samuel Stores Inc (1938) 27 FTC 882 Progress Tailoring Co v FTC 153 F 2d 103 (1946) Book-of-the-Month Club Inc v FTC 202 F 2d 486 (1953) Fraser v NRMA Holdings Ltd (1994) 52 FCR 1 (Gummow J) Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 (FC) Trade Practices Commission v Optus Communications Pty Ltd (1996) 34 IPR 176 (FCA/Tamberlin J) NATIONWIDE NEWS PTY LIMITED v AUSTRALIAN COMPETITION & CONSUMER COMMISSION No NG 758 of 1996 Spender, Lindgren, Lehane JJ Sydney 20 December 1996