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[2008] VSC 340
Supreme Court of Victoria
2008-09-05
HANSEN J
Original judgment source is linked above.
TRADE PRACTICES - Consumer protection - Unfair practices - Optometry services and sale of optical products - Misleading or deceptive conduct - Relief - Fair Trading Act 1999 (Vic), s 9, s 12, s 19 and Part 11.
Lisa Tickell, Solicitor to Director of Consumer Affairs Victoria
1 In this proceeding the issues of liability and relief have been dealt with separately. On 19 December 2007 I published my reasons on liability[1] in which, put simply, I held that the defendants had contravened s 9, s 12 and s 19 of the Fair Trading Act 1999 (Vic) ("the FTA" or "the Act"). This judgment deals with the matter of relief on which I heard the parties on 15 April 2008.
2 The factual background, circumstances and subject matter of the proceeding is referred to in my earlier judgment. I do not repeat those matters and the discussion and findings in that judgment. Accordingly this judgment must be read with my earlier judgment.
3 It is however necessary to refer to some matters that relate to the matter of relief and which were not mentioned in the earlier judgment, either because they were not relevant on liability or have arisen since that judgment.
4 First, however, it is to be noted that the second defendant, Australian Ophthalmic Supplies Pty Ltd, is now in liquidation. Following the appointment of an administrator on 1 February 2008, a meeting of creditors held on 7 March 2008 resolved that the company be wound up, and the administrator became the liquidator. On 15 April 2008 the liquidator gave his written consent to the continuance of the proceeding against the second defendant, just as he had done earlier in his capacity as administrator of the company. The liquidator also advised that he would not defend the proceeding and that it was uncertain if there would be any monies to pay creditors.
5 In these circumstances counsel who appeared for both defendants at the trial on liability now appeared only for the first defendant. There was no appearance for the second defendant.
6 I now refer to evidentiary matters not dealt with in the earlier judgment.
7 It is logical to commence with evidence of the plaintiff's deponents Brian Wearne and Sergio Diaz whose affidavits were tendered at the trial on liability. For the purpose of the trial on liability I did not admit paras 4-6 and 11-14 of Wearne's affidavit of 21 February 2006. In paras 4-6 Wearne gave a history of the number and classification of complaints received about "Merringtons Optometrists". As to that, during the hearing on relief I repeated my stated view that the case with which I am concerned is that founded on the evidence of the 17 complainants referred to in my earlier judgment. Further, I did not know the facts concerning any other person who had made a complaint to Consumer Affairs Victoria and, thus, could not assume that any such complaints have substance. After discussion counsel for the plaintiff did not press reliance on paras 4-6.
8 At the hearing on 15 April 2008 counsel for the first defendant objected to the admission of para 11 of Wearne's affidavit. This paragraph set out a quotation from the 2003-2004 Annual Report of Consumer Affairs Victoria pertaining to the number and type of complaints received about Merringtons Optometrists. I ruled that I would admit para 11 but on the basis that it was no more than a statement of what was in the annual report and that it did not establish that there was truth or substance in any of the complaints referred to.
9 I turn then to other matters in paras 12-13 of Wearne's affidavit and paras 4-11 in Diaz's affidavit. They deposed that on 20 October 2004 they met with Neil Arthur Purvis, the general manager of the defendants, and Merlyn McCreery, customer liaison officer of "Merringtons Optometrists". The purpose of the meeting was to discuss the concerns of Consumer Affairs Victoria with the escalating number of complaints received regarding "Merringtons Optometrists". I interpolate that "Merringtons Optometrists" referred to the business conducted at the Merringtons stores. Diaz prepared, and produced and exhibited, a file note of the meeting; Wearne deposed to his belief that the file note accurately reflected the meeting. Both Diaz and Wearne deposed that at the conclusion of the meeting it was agreed that Consumer Affairs Victoria and Merringtons Optometrists would work together towards completing an enforceable undertaking pursuant to s 146 of the Act.
10 Diaz deposed that as a result of the meeting, on 28 October 2004 he emailed to Purvis a list of 24 then unresolved complaints. On 4 November 2004 Diaz received from Purvis a letter dated 22 October 2004 to which was attached a table detailing Merringtons Optometrists' response to the 24 unresolved complaints.
11 Diaz then deposed that on 4 March 2005 the general manager, compliance and enforcement of Consumer Affairs Victoria wrote to the first defendant advising that it was prepared to forego alternative enforcement actions in relation to Merringtons' conduct, upon Merringtons and Mr P J Merrington entering into an enforceable undertaking pursuant to s 146 of the Act. An undertaking was enclosed which identified the breaches of the Act which Merringtons will be required to remedy upon the terms and conditions in the undertaking. It was requested that the undertaking be signed and returned. A meeting was offered to clarify any aspect.
12 This letter was responded to by a letter from the first defendant's solicitors dated 21 March 2005. The letter stated that as part of the concerns raised by Consumer Affairs Victoria in relation to the first defendant's refund policy, the first defendant had requested details of consumer complaints. In particular, the first defendant had sought, but had not been provided with, details of any investigations into the complaints and the conclusions in each case. Until the information was provided the solicitors could not properly advise the first defendant who looked forward to a mutually acceptable resolution of the matter.
13 In response, in a letter to the first defendant's solicitor dated 23 March 2005, Consumer Affairs Victoria stated that on 28 October 2004 Purvis was given a schedule of the then unresolved complaints; a copy was attached. The letter continued:
"Consumer Affairs Victoria continues to receive complaints from consumers regarding the goods and services provided by your client notwithstanding our discussions with representatives of your client regarding those previous complaints.
Your client is aware of the nature of those complaints and of the concerns held by Consumer Affairs Victoria with respect to its conduct and I advise that I do not propose disclosing to you or your client any further information in relation to Consumer Affairs Victoria's investigations in this matter."
14 No response having been received to that letter, on 8 April 2005 Consumer Affairs Victoria wrote again to the first defendant's solicitors requesting advice "as to your client's further instructions in this matter by 15 April 2005". In the absence of a response Consumer Affairs Victoria "will progress the matter on the basis that your client does not wish to enter into the proposed enforceable undertaking".
15 No response was ever received to the letters of 23 March 2005 and 8 April 2005.
16 That leaves para 14 of Wearne's affidavit which was objected to as being argumentative. It was in the form of a submission but at the same time put into evidence the relevant Australian Standard which was a matter proper for my consideration.
17 Returning to the chronology of events, as foreshadowed Consumer Affairs Victoria took action and the originating motion was filed on 5 December 2005.
18 Being an originating motion the evidence was by affidavit. I referred to the affidavits in my earlier judgment at [5], [6], [43], [44] and [46]. At [5] I referred to there being two affidavits by officers of Consumer Affairs Victoria; they were the affidavits of Wearne and Diaz referred to above and which were sworn on 21 February 2006.
19 It is important to note that in his affidavit - which was not sworn until 7 August 2006 - Purvis did not answer those affidavits of Wearne and Diaz. That is, he said nothing as to the matters deposed to by them as to the meeting on 20 October 2004 and the subsequent correspondence. And, notwithstanding that the plaintiff filed further affidavits, the defendants did not file another affidavit.
20 Following my judgment on liability, the parties filed affidavits on the matter of relief. For the first defendant affidavits of Purvis (sworn 14 March and 11 April 2008) and its solicitor (sworn 14 March 2008) were filed. For the plaintiff two answering affidavits (sworn 27 March and 14 April 2008) were sworn by a solicitor employed in the compliance and enforcement branch of Consumer Affairs Victoria. I now refer to the matters deposed to in those affidavits.
21 In his affidavits Purvis deposed to the following matters:
(a) He had read my judgment, and reflected on and understood the gravity and seriousness of the criticisms.
(b) The defendants had never intended to engage in conduct in contravention of legislation governing the provision of goods and services to the community.
(c) He unreservedly apologised to all 17 complainants. He had also instructed Merringtons' solicitor to send to each of the complainants a letter of apology (being Exhibit NAP 3 to his affidavit sworn on 11 April 2008) for any inconvenience experienced in dealing with Merringtons. The letter was also to enclose a copy of the notice and Charter of Rights referred to below.
(d) In its conduct of the proceeding Merringtons took steps to reduce the demand the proceeding had on the resources of the Court, by electing not to cross-examine any witness. That expedited the trial and reduced inconvenience to the witnesses.
(e) The defendants had suffered adverse publicity. This took the following form:
(f) He referred to his earlier evidence as to the number of Merringtons stores in Australia (52) and Victoria (22 with approximately 195 employees) during the period of the 17 complaints.
(h) He asserted that "data" he had observed showed yearly increases in "traffic flow" into the practices in the range of 5-10 percent since about 1998. The increased volume of patients "may be one of the explanations for complaints received by Consumer Affairs". I interpolate as to this, that apart from the objection of plaintiff's counsel that this evidence was irrelevant, it was argumentative speculation supposedly based on undisclosed "data" and not accompanied by disclosure of the other "explanations", nor related to the facts of the complainants' cases.
(i) Merringtons had attempted to address "the situation" by upgrading its training courses for optical mechanics and optical dispensers. Many of its training courses became TAFE accredited; para 16 of his affidavit sworn on 14 March 2008 indicates that this occurred during the course of the proceeding and that by late 2006/early 2007 Merringtons had completed a transition for its TAFE accredited courses to be incorporated into a TAFE accredited college. The college was achieving better quality assurance in stores and faster delivery of product.
(j) In an effort to ensure customers are not misled or deceived, Merringtons has prepared a Charter of Rights to be published in brochures and displayed at its stores; a copy of the Charter was Exhibit NAP 1. An A3 sized notice containing the Charter of Rights has been displayed in stores since late March 2008. Purvis deposed that the Charter of Rights "will also be" mailed to all its current patients at an estimated cost of $80,000. The Charter states:
For 109 years, Merringtons Pty Ltd Optometrists have served millions of patients across Australia. Therefore we understand the importance of customer service for our patients. The Optometry Charter of Rights is a commitment by Merringtons Optometrists that has been borne out of Merringtons concern to ensure that we provide the best service, the best products and the best value.
Merringtons patients can expect the following from all Merringtons Practices:
2. Provision of timely service and quality glasses; and
We will achieve our obligations to provide the above, with the following promises to you, the consumer.
○ We will only call you once your glasses have passed our final checking processes, which we aim to do as quickly as is possible.
○ All Optometrists will be fully qualified and registered, and that they regularly endeavour to keep in contact to help you monitor the health of your eyes.
○ We will respond in detail by phone or in writing to all written customer enquiries within three working days.
○ Whilst we cannot give you any assurances as to when your prescription will be available, we will always use our best endeavours to ensure we can have your prescription to you as soon as possible.
○ You only need to make a payment on your glasses once you are happy to take your glasses home.
○ The quality of workmanship on your lenses will be guaranteed for three months.
○ The quality of workmanship on your frames will be guaranteed for one year.
○ All Merringtons spectacles will hold a lifetime of free cleaning and adjustments.
○ We will endeavour to resolve all disputes quickly and fairly, through our 1800 Customer Liaison line.
○ If it is recommended by our Optometrists that you require a prescription change within four weeks, we will fit new lenses to your frames in the same form at no extra cost.
○ Our credit and refund approval process will be completed and if honoured, will be dispatched to the original payer within 5 days in the form originally paid, or otherwise, as agreed."
(k) On 11 March 2008 all Merringtons staff attended a compulsory meeting in relation to:
(l) Also since late March 2008 Merringtons has placed an A3 sized notice in the shop front window of stores advising of this proceeding, the findings of the Court, the errors of Merringtons and the steps taken to remedy the errors. The notice will remain on display for such period as the Court deems fit. The notice states:
A judge of the Supreme Court of Victoria at Melbourne has found that we contravened sections of the Fair Trading Act and his judgement identifies that we failed to meet our standards of care and service to those customers. He considered 17 complaints from customers.
We're sorry and we are doing everything we can to make sure it doesn't happen again. And we want to make it up to all our customers.
Merrington's [sic] takes these findings extremely seriously because of our proud record of service to hundreds of thousands of Australians over nearly 110 years.
We have improved our procedures in the last five years. This year we have strengthened our training program and staff procedures manual to make further improvements to our customer service. We have introduced an improved refund policy with more rights for consumers.
And today we introduce an industry first: a Customer Charter to celebrate and enshrine the rights of customers. The charter is our commitment to provide the best possible service to all our customers, including a complaints mechanism and prompt response to problems raised by our customers. Please ask our friendly staff for a copy of the charter.
Last year, the law was changed to expressly allow the courts to make declarations that companies had contravened the Fair Trading Act or its regulations.
In December, Justice Hansen in the Supreme Court of Victoria made such declarations against Merringtons. He was dealing with 17 complaints from customers of Merringtons over the period 2002 to 2005.
Justice Hansen was asked to declare and made findings that the complaints showed that in these cases, Merringtons did not provide spectacles or contact lenses in a specified or reasonable time; provided spectacles or contact lenses not in accordance with prescription and unfit for the purpose; required that prescription spectacles be tried for a period of time to allow the customer to adjust to them, when the spectacles were not fit for their purpose and without first checking the spectacles; did not refund amounts paid by customers despite failing to supply of [sic] supplying faulty prescription spectacles or contact lenses; and required that customers produce and surrender to Merringtons their original receipts for their purchase as a condition of considering whether to give the customers a refund.
The judge said in his orders that all complainants had received a full refund of the amounts they paid to Merringtons, some before and some after the court action was commenced.
Since the judgment, Merringtons has introduced new procedures and training designed to make sure there is no repeat of the 2003 incidents. These new procedures include a stronger refund policy for customers and new guidelines for advising customers when they collect their new spectacles or lenses.
Merringtons has also introduced an industry-first Customer Charter to celebrate and enshrine the rights of consumers. A copy is being sent to all customers in Victoria and will be available from all Merringtons outlets."
(m) Merringtons had drafted an advertisement which Purvis said (in his affidavit sworn on 14 March 2008) would be run in the Herald Sun newspaper in the following three weeks; the advertisement was Exhibit NAP 2. The advertisement, which would cost $7,000, referred to findings in the proceeding and steps being taken by Merringtons to rectify its errors. However, as by a letter dated 26 March 2008 the plaintiff expressed the view that the advertisement was inadequate, and against the risk that the Court should require a different public notice and to avoid the cost of an unnecessary advertisement, the proposed advertisement was not published.
22 I now refer to the plaintiff's response to the first defendant's affidavits.
23 First, by the above letter dated 26 March 2008 the plaintiff also stated that the proposed Charter of Rights did not identify any redress available to customers or any consequence for the failure of Merringtons to comply with the Charter. The letter also expressed the view of the plaintiff that for reasons stated the proposed notice (Exhibit NAP 3) was inadequate.
24 In a letter in response dated 8 April 2008 the first defendant both took issue with the plaintiff's views and stated the first defendant's position. The letter concluded with a request for a meeting to discuss orders that could be agreed upon for making by the Court on 15 April 2008.
25 On 10 April 2008 the plaintiff replied by facsimile expressing surprise at the request for a meeting to discuss orders as the first defendant had not provided a substantive response to draft orders provided by the plaintiff on 30 January 2008, and noting that in the time now available the plaintiff could not attend a meeting. The letter requested a response to the plaintiff's draft orders, and otherwise noted that the plaintiff took issue with a number of points in the letter.
26 There would seem to have been no further correspondence prior to the hearing on 15 April 2008.
27 At [21(d)] above I refer to the evidence of Purvis that the defendants had expedited the trial by not cross-examining witnesses, and thereby reducing inconvenience to the witnesses. This evidence led the plaintiff to draw attention to aspects of the defendants' pre-trial conduct which, it was submitted, reflected its attitude to the complainants and a lack of comprehension of the seriousness of the issues. These matters, to which I now refer, are of course additional to the events referred to above which occurred prior to the commencement of the proceeding.
(a) The plaintiff's counsel submitted that the defendants' delay in filing the Purvis affidavit indicated a cavalier approach to the concerns and complaints of its customers. This was reflected in the Other Matters section of the order of the senior master made on 2 August 2006. Before setting out that statement it should be noted that initially on 24 January 2006 the senior master ordered that the first defendant (which was then the only defendant) file and serve any affidavit by 4 April 2006. That not having been done, on 23 May the plaintiff filed a summons seeking an order that the defendant file and serve any affidavit by 29 May, failing which it not be entitled to rely on an affidavit without leave. On 24 May 2006 the senior master extended the time for filing and serving any affidavit to 16 June 2006. That not having been done, and the matter coming on before the senior master on 2 August 2006, the defendant filed an affidavit seeking to explain its non-compliance and proffering an apology. The senior master extended the time for the defendant to file and serve any affidavit to 7 August 2006 but with the following statement in the Other Matters section of the order:
"The defendant not only failed to file and serve any affidavit by the extended time ordered on 24 May 2006, it failed pursuant to the liberty to apply to seek and justify a further extension. An affidavit which wholly inadequately details what took place before the expiration of the extended [time] and proves that the defendant has preferred the conduct of its usual business to the prosecution of its defence of this proceeding, was only made and filed this day. In the circumstances the Court considers there has been, on the part of the defendant, a contumelious disregard for its obligations as ordered in this proceeding, rendered worse by its total failure to take advantage of the indulgence granted it by the Order made on 24 May 2006. The order in paragraph 1 is made only because, in the ultimate interests of justice being done in this proceeding, the Court is not satisfied that the defendant, despite its conduct, ought not have a further, limited opportunity to adduce evidence."
(b) On 3 April 2007 the listing master fixed the proceeding for trial on 30 October 2007 on an estimate of duration of 10 days, the defendants having estimated 7-10 days based on the statement of their counsel that all witnesses would be cross-examined.
(c) Notwithstanding that for the purpose of setting down the defendants had certified that discovery was complete and all affidavits filed, on 8 October 2007 the defendants requested that within two days the plaintiff provide the full medical, optometric and ophthalmic records of all the complainants, it being stated that this would assist cross-examination. The defendants also sought an adjournment to consider the requested material. The plaintiff opposed both requests. As to discovery, the documents were either irrelevant or never in the possession, custody or power of the plaintiff.
(d) On 18 October 2007 the defendants advised that all deponents were required for cross-examination for an estimated time of a half hour to an hour per deponent. Accordingly, the plaintiff filed and served a subpoena on each witness. The plaintiff also made travel arrangements for each witness, these arrangements including booking train tickets, taxis and, where necessary accommodation for overnight stay.
(e) On 24 October 2007 the defendants served a summons returnable on 25 October 2007 seeking orders that the plaintiff on or before 16 November 2007 make discovery of:
of the patients/complainants who had sworn affidavits in the proceeding.
The summons also requested that the trial fixture be vacated and that the proceeding be referred to mediation. On 29 October 2007 the listing master dismissed the summons with costs.
(f) On the evening prior to the trial the defendants advised the plaintiff that they did not require the attendance of any witness for cross-examination. The plaintiff then had to undo the arrangements for witnesses' attendance.
28 Finally, the plaintiff referred to the following matter which occurred subsequent to the trial and judgment on liability. As mentioned above, on 30 January 2008 the plaintiff provided the defendants with proposed orders and requested a response. The defendants never responded.
29 The plaintiff submitted a minute of the orders it proposed as appropriate. These were the proposed orders it provided to the defendants on 30 January 2008. The orders modified and reduced in number the orders sought in the originating motion. The structure of the orders sought is:
(a) They commence with four declarations of conduct in contravention of s 9 of the FTA. There is some rewording and restructuring of the four declarations sought in the originating motion.
(b) There are then three declarations of conduct in contravention of s 12 of the FTA in lieu of the five declarations sought in the originating motion. The reduction is the result of some rewording and amalgamation.
(c) There are then three declarations, two of them in the alternative, of contravention of s 19 of the FTA, in lieu of the 28 in the originating motion. The greater number in the originating motion was the result of separate orders for each complainant. While the subject matter of the declarations has not changed, they include each complainant in respect of whom the offending conduct occurred.
(d) A raft of injunctions is sought, including for a compliance program, which somewhat vary from those expressed in the originating motion but nevertheless are within the ambit of the issues dealt with and the findings made in the liability judgment.
(e) Then, as in the originating motion, an order is sought pursuant to s 158 of the FTA for payment of the loss or damage suffered by the complainants.
(f) Finally, and as in the originating motion, the plaintiff seeks an order pursuant to either or both of s 149A or s 153 requiring the defendants to publish a notice in the Herald Sun and for six months display the notice in their stores in Victoria. A form of notice was attached to the orders.
30 In addition to their oral submissions the plaintiff's counsel provided me with:
(a) a written outline of argument supplementary to the outline provided at the trial on liability;
(b) a lengthy document detailing, in relation to each order sought, the evidence relating thereto;
(c) a written submission on the relevance of publicity received to mitigation of penalty;
(d) a written submission in relation to the effect of the second defendant's administration;
31 Counsel for the first defendant also provided me with a lengthy written outline, and addressed oral submissions.
33 As mentioned above, since 7 March 2008 the second defendant has been in liquidation, and it is unlikely creditors will receive a dividend. Further, the liquidator, and previously in his capacity as administrator, has given his consent to the proceeding continuing against the company.
34 Notwithstanding the status and financial of the second defendant, the plaintiff seeks as against it all of the above orders except the injunctions. It would however seem inappropriate to order that the second defendant display a notice in a Merringtons store. That is because the second defendant is being wound up and it is to be assumed that it is not conducting business at any of the stores or at all.
35 The fact of the administration and now liquidation of the second defendant is not a bar to the granting of the relief sought. There is much authority to this effect in decisions of the Federal Court of Australia under the TPA. In Australian Competition and Consumer Commission v The Vales Wine Company Pty Ltd[2] the defendant company was fined and ordered to pay costs for contraventions of s 53 of the TPA notwithstanding that the company was in liquidation and the fines would not be recovered. As to the relevance of these circumstances O'Loughlin J said[3]:
"The company is now in liquidation and I have been informed that there would be no hope of any penalties or costs being recovered. This state of affairs should not, however, dissuade a court from assessing appropriate penalties. Even though they may not be recovered, they will serve as a warning throughout the wine industry and elsewhere of the attitude of the Court to offences of this nature."
36 The insolvent status of the company in that case was if anything worse than that of the second defendant in the present case. In the present case the liquidator has advised merely that a dividend is unlikely whereas in the case before O'Loughlin J there was "no hope" of the penalties or costs being recovered.
37 The same approach was taken by Heerey J in Australian Competition and Consumer Commission v GIA Pty Ltd[4], by Goldberg J in Australian Competition and Consumer Commission v SIP Australia Pty Ltd[5], by Heerey J in Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd[6], and by Weinberg J in Australian Competition and Consumer Commission v Australian Abalone Pty Ltd[7].
39 Byrne was a proceeding brought by a Workplace Field Inspector for the imposition of a pecuniary penalty for a contravention of the Workplace Relations Act 1996 (Cth) and for payment of compensation to a former employee. The case was heard and determined in February 2008 while the second defendant was in administration. As in the present case the administrator consented to continuance of the proceeding but took no part in it. The Court imposed a penalty of $60,000 and ordered payment to the former employee of $6,668.97 by way of compensation for damage suffered by her as a result of contraventions of the Workplace Relations Act.
40 McAlary-Smith was a decision of the Full Court on 20 February 2008 on appeal from the Victorian Magistrates' Court ordering the second defendant to pay penalties for contraventions of an award in relation to several employees. The result of the appeal was to reduce the total penalty to $66,000.
41 In neither Byrne nor McAlary-Smith was there consideration whether the fact of administration was relevant to the decision to impose a penalty. At the same time, as McAlary-Smith was argued on 8 November 2007 it could not be assumed that the Full Court was aware that the second defendant was in administration when judgment was given.
42 Consistently with the above authority, the reasoning in which is equally applicable to a proceeding such as the present under the FTA, I approach the matter of relief against the second defendant but in particular any monetary order on the basis that an order is not precluded by reason of the company being in the process of winding up and in such a parlous financial situation that any dividend to creditors is unlikely.
43 Counsel for the plaintiff presented submissions under each heading of relief sought commencing with the proposed declaratory orders. The submissions, which incorporated the written outline of argument provided at the trial on liability, referred to numerous authorities either as containing statements of principle or authoritative discussion or being illustrative applications thereof. While I have regard to all to which I was referred it is unnecessary to labour this judgment by setting out all of the references. I take the same approach with the first defendant's submission. With that approach I summarise the parties' submissions as follows.
44 The plaintiff had reduced and to an extent reworded the declarations sought in the originating motion in an endeavour to reflect "the gist of the findings"[10] and achieve the plaintiff's public interest objectives. There were a variety of reasons why it was appropriate to grant the declarations. These included the public interest nature of the proceeding, the vindication of the plaintiff's claim of conduct contravening the FTA, the importance of the declarations as a statement of the appropriate standard of conduct in the industry, as a mark of the court's disapproval of such conduct, that the declarations may deter others from contravening the FTA, and that the declarations may be of some assistance to the plaintiff in carrying out his duties under the FTA in particular by clarifying for the business community that conduct such as occurred in this case might contravene not merely s 9 but also s 12 and s 19 and for which the plaintiff could bring criminal proceedings in another case. Further, while there was some overlap between the s 9 and s 12 declarations there was none between the s 9 and s 19 declarations. As to the acknowledgment of the above as relevant considerations in determining whether to grant the declarations counsel referred to the following cases decided under the TPA, but the principles in which were applicable to the FTA - Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc[11]; Australian Competition and Consumer Commission v IMB Group Pty Ltd[12]; Australian Competition and Consumer Commission v Goldy Motors Pty Ltd[13]; Australian Competition and Consumer Commission v Chen[14]; Australian Competition and Consumer Commission v Eurong Beach Resort Ltd[15]; Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union[16]. These considerations established that in the circumstances of this case there was utility in granting the declarations.
45 The first defendant's primary submission was that declaratory orders should be refused on the ground that they would be of no utility. If, however, the Court considered that declarations ought be made they should be limited to the first four in the plaintiff's proposed orders; they are the four declarations of conduct in contravention of s 9 of the FTA. The first defendant submitted that declarations of conduct in contravention of s 12 and s 19 were repetitious and added unnecessary complexity.
46 As to why the declarations lacked utility, the first defendant relied on the following:
(i) Seventeen complainants was a very small percentage of persons to whom the defendants sold spectacles and contact lenses in the period of the complainants' dealings.
(ii) The total amount paid by the 17 complainants for their spectacles or contact lenses was $6,045.15.
(iv) Seven of the 11 retail premises in which the complaints arose are no longer operated by the defendant. Further, of those seven stores, three of them were in the defendant's five busiest retail premises.
(v) Merringtons' remorse and apology - expressed by Purvis - and the following significant changes in the conduct of its business made in response to the Court's findings -
(vi) Publicity already given to the findings of the Court and the notice placed in the shopfront windows.
(vii) Changes in policy and procedures in the conduct of the business, addressed to the findings and criticisms of the Court.
47 Counsel emphasised that the injunction power conferred by s 149 and s 149A is exercised by reference to public interest considerations found in the FTA. It is the centrality of the public interest that renders the approach to the grant of an injunction under s 149 or s 149A unlike the approach in a case between individuals on a private right of action. Under the FTA for instance the plaintiff need not have suffered or be likely to suffer damage by reason of the offending conduct. Nor is it required that the defendant intends to engage in contravening conduct in the future, although the absence of such an intention is a relevant factor in deciding whether to grant injunctive relief. Indeed, an injunction may be granted "to mark the court's disapproval" of the offending conduct, even if there be no evidence of intention to further engage in such conduct and even if a monetary penalty was to be imposed or other relief granted[17]. And, as French J has observed, apart from the purpose of restraining an apprehended repetition of contravening conduct, an injunction may be granted to deter a defendant from repeating the offence, the deterrence being the sanctions for contempt of court[18]. French J further observed of the injunction power that:
"The remedy is flexible and may be applied in service of a variety of functions to support the policy of the Act."
48 It is convenient to state that while these submissions as to the injunction power were based on decisions on the injunction power in the TPA in my view they are applicable to s 149 and s 149A of the FTA.
49 Counsel for the plaintiff submitted that a fair consideration of the evidence regarding the defendants' dealings with customers and Consumer Affairs Victoria, and their conduct in this proceeding justified a conclusion that the defendants would not do anything unless compelled by order to do so. It was further submitted that while the matters deposed to by Purvis in his affidavit of 14 March 2008 were to be welcomed they do not amount to a realistic program of compliance with the requirements of the FTA. Certainly, they are well short of the Australian Standard AS3806-2006 on Compliance Programs. The conclusion to be drawn in the circumstances was that the defendants still did not understand their obligations under the FTA. Indeed Purvis seemed to blame the employees, who concerning refunds seemed to be implementing policy, rather than management accepting responsibility for what occurred.
50 Counsel for the first defendant acknowledged that injunctive relief was an available option but submitted that in the circumstances none of the orders sought should be made. They were variously described as "unwarranted, unnecessary, unworkable and unduly restrictive of Merringtons in the conduct of its business" and invited further litigation. In support the following factors were relied on:
(i) The steps taken since the liability judgment were such that repetition of the offending conduct was not a real likelihood.
(ii) The orders would or could, if made, put Merringtons in a position where it could inadvertently be in breach (and in contempt of court), as for instance where a new employee made an unauthorised comment to a customer without appreciating the terms of the injunction.
(iii) The establishment of an allegation of breach of the injunctions could involve the trial of a myriad of issues of fact.
51 One of the injunctions sought was an order for a compliance program, which the first defendant opposed. As to this, counsel for the first defendant relied on the following matters:
(i) The number of stores in Australia and Victoria through which Merringtons conducted business.
(ii) Of the 17 complainants, five were from three of the five busiest stores in Australia.
(iii) Of the 11 stores from which complaints emanated, seven are no longer operated.
(iv) The large customer base in the relevant period.
(v) The amount involved in the 17 complaints, $6,045.15, had been refunded.
(vi) Merringtons has initiated responsible and appropriate changes in the conduct of the business.
In these circumstances the compliance program proposed by the plaintiff would be unnecessarily burdensome on Merringtons in the conduct of its business.
52 It was submitted that in the circumstances it was appropriate to award a modest sum as general damages for at least the complainants Adams, Brewer, Carlow, Chandler, Cochrane, Cooke, Jemmeson, Larkins, Patterson and Trenton. The relevant circumstances were their being deprived (in some cases for lengthy periods) of proper spectacles or contact lenses, the inconvenience and the waste of time and costs incurred in repeated attendances at the defendants' stores in attempts to collect the product ordered, and the endeavours to obtain a refund.
53 It was further submitted that the circumstances warranted the award of a modest sum by way of aggravated damages in respect of the complainants Adams, Carlow, Cooke, Patterson and Trenton. The particular circumstances warranting the extra damages were the extent of the physical inconvenience caused to them in travelling to Merringtons, my findings at [128]-[139] of my liability judgment and the policy objectives underpinning s 158. The New South Wales Court of Appeal in Collings Construction Co Pty Ltd v Australian Competition and Consumer Commission[19] had decided that aggravated damages, being compensatory and not punitive in nature, were allowed by s 87(1) of the TPA. It was submitted that the reasoning and decision in Collings was applicable to s 158 of the FTA; the defendants did not submit to the contrary and I accept that general and aggravated damages may be awarded under s 158.
54 Counsel for the first defendant submitted that it was neither open on the originating motion nor fair in the circumstances to award general or aggravated damages to any of the complainants. The claim in the originating motion was for payment to the complainants of the amount of the loss or damage suffered by them as a result of Merringtons' contraventions of the FTA, and Annexure "A" to the originating motion listed the 17 complainants as "Customers for whom Orders for refunds, loss or damage and interest are sought". It was on that basis that the proceeding was tried, and the defendants defended the case. That basis was, it was submitted, that there was no claim for general or aggravated damages.
55 It is convenient to interpolate here that in the plaintiff's written outline at the trial on liability it was submitted that the broad terms of s 149A and s 158 enabled the Court to assess and award refunds, compensation or loss to the complainants in accordance with the evidence. Then, in his address at the trial on liability counsel for the plaintiff referred to the decision of the New South Wales Court of Appeal in Collings that s 87(1) of the TPA allowed an award of aggravated damages. The point of the reference was to inform me of the decision on that point with a view to encouraging me to express the view that s 158 of the FTA was also to be understood as allowing aggravated damages, thus providing guidance for future cases, as distinct from requesting an award of such damages in this case. But the plaintiff's counsel did also say that "talking about actually making an award of damages ... will be dealt with later if Your Honour is so minded and depending on the outcome of Your Honour's findings". To these statements counsel for the defendants objected at the time that a claim for aggravated damages was being raised for the first time. And at the hearing on relief counsel for the first defendant said that the originating motion did not claim general or aggravated damages, and that the orders sought by the plaintiff did not make such a claim. However Annexure "A" to the order now proposed stated that "Orders for loss or damage - including general and aggravated damages are sought". It was submitted by the first defendant's counsel that it was inappropriate to thus identify claims for damages at this stage of the proceeding. Counsel asked what evidence was relied upon to support the claims for general and aggravated damages, and how was the first defendant to meet the claims? It was further submitted that the conduct of the employees - who sought to satisfy the complainants - did not warrant awarding such damages and, finally, that the Court should not entertain the application.
56 Put shortly, the plaintiff submitted that in the circumstances, and having regard to the importance of deterrence, both specific and general, and of informing the industry and public, it was appropriate to order publication of the proposed notice. The order was sought under s 149A or s 153 of the FTA, as to which counsel engaged in an historical excursus concerning the history and interpretation of the relevant provisions in the TPA that suggested that s 149A provided for orders that were non-penal in nature whereas s 153 was penal in nature. There is no need to set out or discuss these matters. Counsel for the first defendant conceded that s 153 authorised the proposed order whether the order be intended as penal or non-penal. The question was whether the order should be made. I will proceed on the basis of the concession, noting only that counsel for the plaintiff made clear that the order was sought for the purpose of informing people and not as punishment.
57 The first defendant opposed these orders. As to publication in the Herald Sun, the opposition was based on the cost and the potential effects of the notice on Merringtons' business. As to publication by notice in each Victorian store, various factors rendered it unnecessary namely - the notice already placed in the shopfront window of each store, the adverse media comment already occasioned, that Merringtons had shown remorse and contrition in changing its policies, practices and procedures in response to criticisms in the trial judgment, and that Merringtons would already have placed a notice in the Herald Sun but for the plaintiff's opposition.
58 I now turn to the determination of the relief that is just and appropriate in all of the circumstances of the case. In doing so I have regard to the submissions made in relation to each head of relief considered in the overall context. In that respect it is noticeable that common threads ran through the submissions. The plaintiff emphasised the failings in the defendants' attitude and approach to its customers and their earlier failure to recognise their shortcomings and take remedial action, a tendency for management not to accept responsibility, the public interest nature of the case, and the importance of the various factors referred to in the plaintiff's submissions on declaratory relief. The first defendant emphasised its apology, remorse and contrition, the small number of complainants relative to its customer base, the steps taken by it following and in the light of the liability judgment, and the adverse publicity received.
59 It is necessary to say something about the relevance and effect of adverse publicity, in particular to consider what is properly to be regarded as "adverse" in this sense. It is also important to distinguish between publicity constituted or initiated by a press release of Consumer Affairs Victoria on the one hand, and articles in the media and the ophthalmic newspaper on the other hand. As to the former, it is in fact a function of the plaintiff under s 100(1)(i) of the FTA to educate and inform people on fair trading issues. As to the latter it is a legitimate function of the media, let alone an industry newspaper, to publicise decisions of the Courts.
60 Guidance as to the relevance of adverse publicity is provided by decisions of the Federal Court of Australia in prosecutions under the TPA to which I was referred by counsel for the plaintiff. They are Eva v Southern Motors Box Hill Pty Ltd[20]; Trade Practices Commission v Cue Design Pty Ltd[21]; Australian Competition and Consumer Commission v Nationwide News Ltd[22]; Australian Competition and Consumer Commission v Nissan Motor Company (Australia) Pty Ltd[23]. Although these cases concerned prosecutions which resulted in the imposition of fines while the present case is civil in nature and the relief sought does not include a monetary penalty, the reasoning is nevertheless apposite. In the above cases the question arose whether "adverse" publicity should be taken into account in mitigation of penalty. In the present case counsel for the first defendant submitted that the adverse publicity suffered by the first defendant, but logically also the second defendant, was to be taken into account in its, or their, favour in determining the nature and extent of the relief to be granted. In effect, to a greater or lesser extent relief could, and should, be limited on account of the adverse publicity.
61 The above cases indicate that "adverse" means unfair or incorrect reporting. They recognise that a prosecutor may issue a media release concerning a case but where that occurs before the trial "appropriate restraint in tone and content is required"[24] to avoid the defendants suffering damage that would not have occurred had the media release been fair and accurate[25]. Subject to that a reasonably worded, accurate news release serves a useful purpose; without it the media is left to make their own inquiries and compile their own summaries, which carries a risk of inaccuracy[26].
62 In my view these statements, with which I respectfully agree, are equally applicable to the issue of adverse publicity in the present civil proceeding. So approaching the matter I have considered the press releases and articles referred to.
63 In my opinion there is no unfairness or inaccuracy in the press releases of Consumer Affairs Victoria nor in my opinion are they misleading in any respect. They are such as in their terms were appropriate to be published pursuant to the statutory function of informing people on fair trading issues and alerting the media in succinct terms to the commencement of the case and subsequently the decision on liability.
64 It is also to be borne in mind that publicity of the type complained of is foreseeable as the consequence of conduct such as that engaged in by the defendants. In truth the defendants are the authors of their own misfortune. That engaged in the offending conduct and then thumbed their nose at the attempts of the plaintiff to resolve the problems without resort to litigation.
65 In my opinion, also, no reasonable complaint could be made of the newspaper articles, including the industry paper. It was not alleged that they, or indeed the press releases, suffered from any particular unfairness or inaccuracy or misleading element. Rather, the submission was that taken together they constituted adverse publicity which ought be taken account of as a factor mitigating against the grant of relief as the Court may otherwise consider just in the circumstances. I reject the submission. In my view the publicity referred to was the mere and foreseeable consequence of the conduct engaged in. Were it otherwise, the fact of publicity of relevant matters by the moving party in the litigation or the media generally, might have the effect of limiting the exercise of statutory power conferred for the protection of the public.
66 I turn then to the specific relief sought. In my view the case for granting declaratory orders is overwhelming in view of the defendants' conduct found in my judgment on liability and the circumstances referred to in this judgment. I do not repeat my earlier finding. I add only that the conduct was reprehensible. I will with some modification to the terms thereof grant the declarations sought other than the alternative para 9.
67 The injunctive relief falls into two categories. First is seven injunctions that restrain the defendants from engaging in contravening conduct of the type found in the liability judgment. Second is an order for a compliance program. The considerations pertaining to each differ.
68 I can say at once that the conduct of the defendants, which conduct includes their attitude of careless regard for the interests of and arrogance to the complainants, their pre-litigation conduct and continuing refusal to enter a compliance program, their "trust me" attitude, and the disregard for the interests of their customers, warrant the imposition of a compliance program, and I will so order. In view, however, of the second defendant being wound up and apparently no longer conducting a business the order will be confined to the first defendant. Lest the position change I will reserve the question whether the second defendant should implement a compliance program.
69 As to the balance of the injunctive relief, the question is whether it is necessary in the circumstances. Those circumstances include the several matters relied on by the first defendant together with the relief that I will order. Of particular relevance to some of the injunctions are the changes to business practices and procedures concerning the taking of deposits, not requiring a payment unless the customer is happy with the product and not requiring the original receipt for refund purposes. I do not mean that as an all inclusive list of changes introduced to avoid the problems experienced by the 17 complainants but as referring to areas at the heart of the complaints. It may be considered that the first defendant having taken the steps that it has, time and events should be left to run their course and injunctive relief be refused, at least for the present. Against that however is the consideration that injunctive relief may be considered to add a significant deterrent effect to the relief granted when regard is had to the possible consequence of non-compliance. And there I think is the rub, for considering the contravening conduct of the defendants, their pre-litigation conduct and continuing refusal to come to terms, and their conduct of the litigation which forced the plaintiff to establish his case at every point, there is real cause for concern as to the observance of the statutory norms of conduct when the dust of this case has settled down. I propose to grant some but not all of the injunctions sought. I exclude injunctions which in my view are unnecessary or not appropriate for discretionary reasons, including the potential for difficulty in enforcement. Otherwise, and for reasons mentioned above, I will not restrain the second defendant.
70 That brings me to the claims for general and aggravated damages for the complainants specified earlier. In my view it is open on the originating motion to claim such damages. But, in addition, the matter was referred to by the plaintiff's counsel at the trial on liability, and the proposed orders provided to the defendants in January made the fact of such claims clear. I reject the first defendant's submission that it was not open to the plaintiff to claim such damages for the identified complainants.
71 I agree with the plaintiff's counsel that if any damages are to be awarded they should be in a modest sum only. All complainants have received a full refund of amounts expended in their transaction with the defendants. The refunds were made without interest and it was not submitted that interest should be ordered. And, without downplaying the significance to the individual complainants of their expenditure it yet is the fact that the amounts were relatively small. And, also without downplaying the annoyance and inconvenience occasioned to them as a result of the defendants' conduct, the extent of which varied considerably between the complainants, it is important to retain an overall perspective. Having considered the circumstances pertaining to each complainant I am of the view that it is just and appropriate that the defendants pay to the plaintiff for each of Adams, Carlow, Chandler, Cochrane, Cooke, Jemmeson, Larkins, Patterson and Trenton the amount of $300 as general damages. I do not propose to order aggravated damages. If aggravated damages were to be considered I agree with the plaintiff's counsel as to the complainants in respect of whom such damages might be considered. I consider however that the general damages indicated are sufficient and just compensation without ordering an amount of aggravated damages in favour of any of those complainants.
72 That brings me to the final head of relief, an order requiring the publication and display of a public notice.
73 By its own actions the first defendant recognised the importance, if not the likely requiring by the Court, of notice to the public and its customers of the Court's resolution of the case. It prepared a notice for publication in the Herald Sun and a notice to display in its stores. Those notices were drafted with knowledge of the notice that the plaintiff proposed, as that notice was part of the orders provided on 30 January 2008. But the notices prepared by the first defendant differed significantly in content and tone from that proposed by the plaintiff. Not surprisingly the first defendant's notice was drafted with a view to making the best of a bad situation and sought to portray the defendants in a favourable light. In fact, as mentioned earlier, the first defendant's notice was not published in the Herald Sun as a result of the plaintiff objecting to its adequacy. In my view the objection was reasonably taken. I also consider that the notice that has been, and continues to be, displayed in stores is inadequate. Indeed it was unavoidable that it would be as it was drafted prior to orders being made, and was thus anticipatory in that sense.
74 In my view it is appropriate that the result of the case be published by notice in the Herald Sun and displayed in Merringtons stores in Victoria. In the first instance however the parties should confer as to the terms of that notice. That presently proposed by the plaintiff requires amendment to accord with the orders actually to be made. It also seems to me to be reasonable that it refer to the number of complainants, to the fact of refund of the amounts they paid to Merringtons, and the amount of general damages awarded to nine of the complainants. There may be some other matter. I will resolve any difference as to the content of the notice. Apart from the content of the notice the order will be as proposed by the plaintiff.
75 Leaving aside then the order as to the public notice, there will be orders as follows:
(a) Declare that the first defendant ("Merringtons") and second defendant ("Merringtons Optometrists") in trade or commerce, have engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 9 of the Fair Trading Act 1999 (Vic) ("the Act") by making to customers of Merringtons and Merringtons Optometrists representations that prescription spectacles or contact lenses as ordered by those customers would be ready for collection within a specified period when in fact such spectacles or contact lenses were not ready within the specified period or any reasonable time frame.
(b) Declare that Merringtons and Merringtons Optometrists, in trade or commerce, have engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 9 of the Act by encouraging or requiring customers, to whom they supplied prescription spectacles that were not fit for their purpose, to use such prescription spectacles for a period of time to allow the customers to adjust to the prescription spectacles when in fact the customers could not adjust to such prescription lenses within the period of time specified or at all because the prescription lenses were not fit for purpose.
(c) Declare that Merringtons and Merringtons Optometrists, in trade or commerce, have engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 9 of the Act by refusing or failing to pay refunds in a timely manner to customers who, before or after being supplied with prescription spectacles or contact lenses under an agreement to supply same, had lawfully rescinded their agreements with Merringtons and Merringtons Optometrists.
(d) Declare that Merringtons and Merringtons Optometrists, in trade or commerce, have engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 9 of the Act by requiring, as a condition of providing a refund to customers, that the customers produce and surrender to Merringtons and Merringtons Optometrists their original receipts as proof of purchase and without any assurance or acceptance that Merringtons and Merringtons Optometrists would provide a refund to the customers whereas customers could properly have proved their purchase by means other than production or surrender of the original receipt.
(e) Declare that Merringtons and Merringtons Optometrists, in trade or commerce, in connection with the supply, possible supply or promotion of the supply of goods, namely, prescription spectacles or contact lenses, by making to their customers representations that those customers were not entitled to a refund regarding their purchase of prescription spectacles or contact lenses whereas they were entitled to refunds because:
(i) the prescription spectacles and contact lenses supplied by Merringtons and Merringtons Optometrists to those customers were not fit for their purpose and the customers had lawfully rescinded their contracts with Merringtons and Merringtons Optometrists; or
(ii) the customers had lawfully rescinded their contracts with Merringtons and Merringtons Optometrists before supply of the prescription spectacles or contact lenses, as the case may be,
(iii) a false or misleading representation concerning the existence, exclusion, or effect of a condition, warranty, right or remedy in contravention of s 12(k) of the Act;
(iv) a representation that was false, misleading or deceptive in a material particular in contravention of s 12(n) of the Act.
(f) Declare that Merringtons and Merringtons Optometrists, in trade or commerce, in connection with the supply, possible supply or promotion of the supply of goods, namely, prescription spectacles or contact lenses, by making to their customers representations that those customers were required to produce and surrender their original receipts as proof of purchase in return for Merringtons and Merringtons Optometrists considering whether or not to pay a refund to those customers regarding their purchase of prescription spectacles or contact lenses whereas those customers were entitled to prove their purchase from Merringtons and Merringtons Optometrists by means other than production or surrender of the original receipts have made:
(i) a false or misleading representation concerning the existence, exclusion, or effect of a condition, warranty, right or remedy in contravention of s 12(k) of the Act;
(ii) a representation that was false, misleading or deceptive in a material particular in contravention of s 12(n) of the Act.
(g) Declare that Merringtons and Merringtons Optometrists, in trade or commerce, in connection with the supply, possible supply or promotion of the supply of goods, namely, prescription spectacles and contact lenses, by making to their customers representations that spectacles or contact lenses as ordered by those customers would be ready within a specified period, when in fact such spectacles were not ready within the specified period or any reasonable timeframe, have made:
(i) a false or misleading representation about the production, preparation or supply of the prescription spectacles in contravention of s 12(l) of the Act;
(ii) a representation that was false, misleading or deceptive in a material particular in contravention of s 12(n) of the Act.
(h) Declare that Merringtons and Merringtons Optometrists have, in trade or commerce, accepted payment from:
for the supply of prescription spectacles or contact lenses, and not supplied those goods as ordered within the time specified by Merringtons and Merringtons Optometrists or within any reasonable time, in contravention of s 19 of the Act.
(i) Declare that Merringtons and Merringtons Optometrists have, in trade or commerce, accepted payment from:
for the supply of services, namely, eyesight examination and prescription services and supplied incorrect prescriptions, being services that were materially different from the services to which the agreement to supply related, in contravention of s 19 of the Act.
(j) Merringtons by its servants or agents or otherwise howsoever, be restrained from:
(i) making or causing to be made a representation to a customer that prescription spectacles or contact lenses or both prescription spectacles and contact lenses ordered by the customer will be ready as ordered within a specified time frame or any representation to substantially the same effect unless Merringtons and Merringtons Optometrist knows or has reasonable grounds for believing that such prescription spectacles or contact lenses will be ready within that specified time frame.
(ii) refusing or failing to pay a refund in a timely manner to any customer:
(iii) requiring a customer to produce or surrender an original receipt as a condition of Merringtons considering whether or not to pay a refund or paying a refund to that customer
(iv) encouraging or requiring any customer to try using prescription spectacles or contact lenses for a period of time to allow the customer's eyes to adjust to the prescription spectacles or contact lenses as supplied by Merringtons unless Merringtons has confirmed that the lenses fitted in the spectacles or the contact lenses are correct and in accordance with the customer's prescription and that the lenses have been properly fitted in the spectacle frames.
(i) implement within three months of this order and maintain for three years a Compliance Program:
(ii) ensure that a member of the Australian Compliance Institute or a firm of solicitors with expertise in consumer protection or trade practices law reviews the Compliance Program, at Merringtons' expense, at the end of 18 months following implementation of the Compliance Program with a view to identifying and implementing improvements to the Program, and that Merringtons implement any improvements recommended in such a review.
(iii) retain, at its own expense, a member of the Australian Compliance Institute or a firm of solicitors with expertise in consumer protection or trade practices law to provide the Director of Consumer Affairs Victoria with a report on its compliance with the Program. The report must cover the first 18 month period of implementing the Compliance Program (and include any improvements recommended) and be provided to the Director of Consumer Affairs Victoria within 21 months of this order.
(l) The question whether the second defendant implement a Compliance Program is reserved.
(m) Merringtons and Merringtons Optometrists pay the plaintiff for and on behalf of the complainants Elizabeth Adams, Denise Carlow, Richard Chandler, Denis Cochrane, Leanne Cooke, Ian Jemmeson, Anne Larkins, Jennifer Patterson and Ernest Trenton the sum of $300.00 as to each complainant as damages suffered as a result of Merringtons' and Merringtons Optometrists' contraventions of the Act.
76 I will hear counsel on the terms of the order for the public notice and on the question of costs.
[10] Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, 91 [89].
[17] Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 363; (1984) 4 FCR 296, 300; ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248, 254-257 per Lockhart J.
[18] ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248 at 268.
[20] [1977] FCA 2; (1977) 15 ALR 428, 436-437.
[21] (1996) ATPR 41-475, 41,834-41,836.
[22] (1996) ATPR 41-519, 42,507.
[23] (1998) ATPR 41-660, 41,352-41,353.
[24] Eva v Southern Motors Box Hill Pty Ltd [1977] FCA 2; (1977) 15 ALR 428, 437.
[25] Australian Competition and Consumer Commission v Nissan Motor Company (Australia) Pty Ltd (1998) ATPR 41-660, 41,352.
[26] Trade Practices Commission v Cue Design Pty Ltd (1996) ATPR 41-475, 41,836.
Cousins
Merringtons Pty Ltd & Anor
(2003) 216 CLR 53
(1993) 41 FCR 89
(2003) 132 FCR 309
(1984) 4 FCR 296
(1992) 38 FCR 248
(1998) 43 NSWLR 131
(1977) 15 ALR 428