Australian Competition & Consumer Commission v Hughes [2002] FCA 270

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Hughes [2002] FCA 270

TRADE PRACTICES – application under ss 52 and 53 of the Trade Practices Act 1974 (Cth) in respect of the sale of oral contraceptive tablets on an internet website – advertisements constituting misleading or deceptive conduct, or conduct likely to mislead or deceive, by representations as to price, usage and effects – false or misleading representations as to price – representations through advertisements that goods or services have performance characteristics, uses or benefits they do not have – failure to include qualifying or warning statements amounting to misleading or deceptive conduct, or conduct likely to mislead or deceive, including illegality of supply without a prescription in Australia and the United States. Trade Practices Act 1974 (Cth) ss 5, 6, 52, 53, 80, 80A Ramset Fasteners (Aust) Pty Ltd v Advanced Building Systems Pty Ltd (1999) 164 ALR 239 applied Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 referred to Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 referred to Mikaelian v CSIRO (1999) 163 ALR 172 referred to Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 111 ALR 649 applied Australian Competition and Consumer Commission v Richard David Hughes trading as Crowded Planet N 941 of 2000 ALLSOP J 18 MARCH 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 941 of 2000

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: RICHARD DAVID HUGHES trading as CROWDED PLANET

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 18 MARCH 2002

WHERE MADE: SYDNEY

THE COURT DECLARES THAT: 1. The respondent has in trade or commerce through the use of telephonic services, engaged in conduct that was misleading or deceptive, or was likely to mislead or deceive, contrary to section 52 of the Trade Practices Act 1974 (Cth) (the Act) by publishing or causing to be published advertisements at the "Crowded Planet" internet site located and associated with the domain name http://www.crowded.org/ (the site) representing to the public that: (a) Crowded Planet could supply newer oral contraceptives at lower prices resulting in consumers saving money; (b) users of Microgynon AE 50 ED – "Can miss one"; and (c) the use of Noriday AE 28 has "nil side effects". 2. The respondent has, in trade or commerce through the use of telephonic services, in connexion with the supply or possible supply of goods or services or in connexion with the promotion of supply or use of goods or services, made a false or misleading representation with respect to the price of oral contraceptives, that Crowded Planet could supply certain contraceptives at lower prices resulting in consumers saving money, contrary to section 53(e) of the Act by publishing or causing to be published advertisements at the site representing to the public the matters set out in paragraph 1(a) above. 3. The respondent has, in trade or commerce through the use of telephonic services, in connexion with the supply or possible supply of goods or services or in connexion with the promotion of supply or use of goods or services represented that Microgynon AE 50 ED and Noriday AE 28 have performance characteristics, uses or benefits they do not have contrary to section 53(c) of the Act by publishing or causing to be published advertisements at the site representing to the public the matters set out in paragraphs 1(b) and (c) above. 4. The respondent has in trade or commerce through the use of telephonic services, engaged in conduct that was misleading or deceptive, or was likely to mislead or deceive, contrary to section 53(c) of the Act by offering oral contraceptives for sale on the site without publishing, or causing to be published, on the site the following information: (a) that it is illegal for Crowded Planet to supply oral contraceptives listed on the site, being those in Attachment "A", to persons in Australia without a prescription; (b) that there are significant health risks in taking some oral contraceptives without first obtaining medical advice about the suitability of those medications for use by the particular individual; (c) that within Australia free medical assistance, including where appropriate the issuing of a prescription, is available to Australian citizens and permanent residents who are contemplating using oral contraceptives; (d) that it is significantly less expensive to obtain oral contraceptives upon prescription from a pharmacy in Australia than it is to buy them from the respondent; (e) that it is illegal for Crowded Planet to supply oral contraceptives listed on the site, being those listed in Attachment "A", in the United States; (f) that it is illegal for Crowded Planet to supply "Norlevo" in Australia; and (g) that it is illegal for a person to acquire the oral contraceptives listed on the site, being those listed in Attachment "A", in Australia without a prescription.