A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services:
(a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use;
(aa) falsely represent that services are of a particular standard, quality, value or grade;
(b) falsely represent that goods are new;
(bb) falsely represent that a particular person has agreed to acquire goods or services;
(c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;
(d) represent that the corporation has a sponsorship, approval or affiliation it does not have;
(e) make a false or misleading representation with respect to the price of goods or services;
(ea) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods;
(eb) make a false or misleading representation concerning the place of origin of goods;
(f) make a false or misleading representation concerning the need for any goods or services; or
(g) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.
6 The power to grant declaratory relief is set out in s 21 of the Federal Court of Australia Act 1976 (Cth), which provides:
Declarations of right
(1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A suit is not open to objection on the ground that a declaratory order only is sought.
7 There is a line of authority that in litigation of this type, the Court should make declarations by consent only after being satisfied that it is appropriate that the orders should be made. This line of authority was helpfully the summarised comparatively recently by Reeves J in Australian Competition and Consumer Commission v Grove & Edgar Pty Limited [2008] FCA 1956 at [18]-[21]:
When the Court is asked to make declarations of right by consent it is required to scrutinise the orders sought to satisfy itself that it has the power to make those orders and to ensure, after due consideration, that they are appropriate: see ACCC v Real Estate Institute Industry of Western Australia Inc[1999] FCA 18; (1999) 161 ALR 79 at [1] and [17], ACCC v Virgin Mobile Australia Pty Ltd (No. 2) [2002] FCA 1548 at [1] and BMW Australia Limited v ACCC(2004) FCAFC 167, (2004) 207 ALR 452, (2004) ATPR 42-012 ( 'BMW' ) at [35]. On this aspect it should be noted that there is a long held view that a declaration, being a judicial act, should only be made on evidence and not simply on admissions or deemed admissions: see Bank of Kuwait and the Middle East v Ship MV Mawashi Al Gasseem (No.2) (2007) FCA 815 at [10] per Mansfield J and the cases referred to therein, particularly the observations of Kiefel J in ACCC vDataline.Net.Au Pty Ltd [2006] FCA 1427, (2006) 236 ALR 665.
The strictures mentioned above mean, among other things, that the Court has to ensure that the declaration sought is directed to determining a legal controversy and not to answering abstract or hypothetical questions: see Ainsworth at 582. Further the Court is required to ensure that the party seeking the declaration has a real interest in seeking that relief: see Forster at 437 and Ainsworth at 582. And, finally, the Court has to ensure that there are sufficient consequences flowing from the making of the declaration that it is appropriate for it to exercise its discretion to do so.
This latter aspect may include the public interest in having such a declaration made to indicate the Court's disapproval of particular conduct, assist in clarifying the law on a particular matter, or assist to inform consumers about a particular matter of concern: seeMedical Benefits Fund of Australia Limited v Cassidy [2003] FCAFC 289, (2003) 135 FCR 1, (2003) ALR 402 ('MBF') at [50] - [52]; ACCC v Info4PC.com Pty Ltd (deregistered) [2006] FCA 1534 at [8], ACCC v Goldy Motors Pty Ltd[2000] FCA 1885 at [30] and [34]; Tobacco Institute at 99-100,ACCC v Midland Brick Co Pty Ltd [2004] FCA 693; (2004) 207 ALR 392 at [21] and ACCC v Pacific Dunlop [2001] FCA 740 at [59]- [69].
However, the Court should not impede settlements by refusing to give effect to the terms of settlements made by the parties where the proposed orders are within the Court's jurisdiction and appropriate. Thus, the Court should be slow to substitute its own view of the orders or undertakings for those which have been agreed by the parties as part of the terms of settlement: see ACCC v Real Estate Institute Western Australia (above) at [22], ACCC v Virgin Mobile Australia Pty Ltd (No. 2) (above) at [2] and ACCC v Info4PC.com (above) at [18].
8 However it is necessary, in my opinion, to bear in mind the cautionary observations of Kiefel J in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 at [58]-[59]:
... The practice [of refusing to make declarations on deemed admissions] is one of long standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2).
It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration. Millett J made declaratory orders in Patten v Burke Publishing Co Ltd [1991] 1 WLR 541 where justice to the plaintiff required it. The order however operated principally inter partes and it might be doubted whether it would be of interest to other persons. Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made 'upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the Court'.
9 It may be that these observations are capable of having a wider field of operation (beyond orders made on deemed admissions), particularly when the party adversely affected by the declaratory orders is represented by experienced counsel, as is the case in the present proceedings. However, approaching the matter in an orthodox way, I was satisfied that the declarations I made were justified having regard to the facts conceded by the respondent which, in large measure, were evident in any event from the copies of the advertisements relied on by the ACCC in its application.
10 For the preceding reasons I made the orders in Annexure B on 8 April 2009.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.