FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1595

ORDERS

THE COURT ORDERS THAT:

1.    The application for declaratory relief is allowed in part.

2.    In the absence of agreement as to the terms of the declaratory relief to be granted in order to give effect to these reasons, on or before 4 pm on Tuesday, 30 October 2018 the parties are to file and serve an outline of written submissions not exceeding 5 pages in length in support of the terms of the declaratory relief proposed and indicating whether or not a further hearing is requested or they are content for the terms of the declaratory relief to be determined on the papers.

3.    The matter is listed for case management for the second stage of the trial at 9.30 am on Wednesday, 7 November 2018.

4.    There by liberty to apply on 48 hours’ notice.

THE COURT NOTES THAT:

5.    The parties are to endeavour in the first instance to agree the terms of declaratory relief which otherwise give effect to these reasons.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1.1    The originating application

1    By an originating application filed on 22 March 2018, the applicant, the Australian Competition and Consumer Commission (the ACCC), seeks declarations under the Federal Court of Australia Act 1976 (Cth) (the FCA Act), together with an injunction, civil penalties, a disclosure order, and a compliance program order under the Australian Consumer Law (the ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the CCA).

2    The respondent, Birubi Art Pty Ltd (Birubi), operates as a wholesaler of approximately 1300 product lines of wide variety to approximately 152 retail outlets across Australia.

3    The ACCC seeks relief in respect of alleged implied representations made by Birubi over the period 1 July 2015 and 14 November 2017 (the relevant period) about the provenance and characteristics of five product lines containing visual images, symbols and styles of Australian Aboriginal art. The focus of the ACCC’s case is upon the impact of the alleged representations upon purchasers and prospective purchasers, as opposed to the retailers who purchased the products from Birubi for sale to the public. The five product lines in question are loose boomerangs (the loose boomerangs), boomerangs presented in boxes (the boxed boomerangs), bullroarers, bamboo didgeridoos, and message stones (cumulatively, the Products). Three of these products, namely the loose boomerangs, boxed boomerangs and bullroarers, reproduce artwork designed by an artist, Trisha Mason, who identifies, and is recognised, as an Aboriginal Australian (the Trisha Mason Products) pursuant to a royalty agreement concluded between Birubi and Ms Mason on or about 1 October 2014 (the royalty agreement). It is not in dispute that all of the Products are produced by artisans in Indonesia.

4    The ACCC seeks declarations in two categories, namely:

(1)    during the relevant period, by representing to consumers that each of the Products were hand painted by Australian Aboriginal persons (the Hand Painted by an Aboriginal person representation) or made by an Australian Aboriginal person (the Made by an Aboriginal person representation), in trade and commerce, Birubi:

(a)    engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18 of the ACL;

(b)    in connection with the supply or possible supply of goods, or the promotion of the supply of goods, made false or misleading representations that the Products were of a particular style or have had a particular history in contravention of subs 29(1)(a) of the ACL; and

(c)    engaged in conduct that was liable to mislead the public as to the nature, manufacturing process, or characteristics of the Products in contravention of s 33 of the ACL.

(2)    during the relevant period, by representing to consumers that the Products were made in Australia (the Made in Australia representation), Birubi, in trade or commerce:

(a)    engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL; and

(b)    in connection with the supply or possible supply of goods, or the promotion of the supply of goods, made false or misleading representations concerning the place of origin of goods, in contravention of subs 29(1)(k) of the ACL.

1.2    Matters in issue

5    This judgment addresses only the question of whether the alleged contraventions have been established thereby founding a basis for declaratory relief. In the event that I find all or some of contraventions to have been established, Birubi has conceded that declarations are appropriate but has asked to be heard on the precise terms of that relief. In that event, it will also be necessary to afford the parties the opportunity to be heard on the other relief sought by the ACCC, including to lead further evidence on penalty.

6    There was considerable common ground between the parties relevant to the question of liability.

7    First, it was not in issue that each of the Products (aside from the message stones) were objects of cultural significance to Aboriginal peoples, and that the art, symbols and designs depicted on the Products were art, symbols and designs of a character culturally associated with Aboriginal peoples.

8    Secondly, there is no dispute that Biribi’s conduct in wholesaling the Products was conduct in trade or commerce within the meaning of the ACL.

9    Thirdly, it is not in issue that none of the alleged representations were expressly made by Birubi; nor is any issue taken with the literal truth of those express representations made on the Products themselves or their packaging or labels. The contravening conduct alleged is by implied representations only.

10    Fourthly, it is not in dispute that, in the event that the Court should find that the implied representations alleged were made, those representations were false. Thus, with respect to the Made in Australia representation it was common ground that during the relevant period, the Products:

(1)    were manufactured in Indonesia and not in Australia;

(2)    were supplied by Birubi in Australia; and

(3)    were not labelled so as to disclose the fact that they were made in Indonesia.

11    With respect to the Hand Painted by an Aboriginal person and Made by an Aboriginal person representations, it was accepted by Birubi that there was no evidence that anyone in Indonesia who was involved in the manufacture of the Products identified as an Australian Aboriginal person (notwithstanding the longstanding and historically significant Makassar trade route).

12    The issues between the parties at this stage of the proceeding therefore largely reduce to the question of whether the implied representations were made. In this regard, the parties were divided as to the circumstances relevant to resolving this question. The ACCC’s case that the implied (false and misleading) representations were made turns upon the characteristics of the Products themselves and their labelling and packaging, as well as the imputed attributes of a reasonable ordinary member of the class of purchasers or potential purchasers of the Products. Birubi denies that the ordinary member of the class acting reasonably would or may draw the alleged inferences. In particular, Birubi alleges that the surrounding circumstances for these purposes must include the way in which the Products were presented in the various retail outlets to which they were supplied and offered for sale to the public (the Outlets), and the characteristics of other products also likely to be sold in those outlets, as well as their price placement vis a vis other products. When considered in that broader context, Birubi contends that a reasonable ordinary member of the class would not draw the implied representations alleged by the ACCC. However, even if the Court should find that the broader context is relevant as alleged by Birubi, the ACCC submits that the same representations would be implied by an ordinary and reasonable member of the class of purchasers.

1.3    Summary of findings

13    My conclusions are expressed in more detail in the conclusion. In short, however, for the reasons set out below, I consider that the breaches of s 18 and subs 29(1)(a) and (k) of the ACL alleged with respect to all of the Products have been established. I also find that Birubi has breached s 33 of the ACL with respect to the boxed boomerangs, didgeridoos and message stones, but not with respect to the loose boomerangs and the bullroarers.

14    It is important also to emphasise that in making these findings, I have not found that Birubi had any intention to mislead potential purchasers of the Products. As I later explain, the question of whether the sections in issue were contravened is an objective one. Nor was there any challenge to the literal truth of express representations made on the Products such as the representation made on some products that royalties were paid to the Aboriginal artist whose work had been reproduced on those products.

2.    THE EVIDENCE

2.1    Witnesses for the ACCC

15    In support of its application, the ACCC sought to rely upon:

(1)    the affidavit of Robert Michael Albertson Kill, investigator employed by the ACCC, affirmed on 16 May 2018; and

(2)    the affidavit of Jane Roisin Black, senior investigator employed by the ACCC, affirmed on 16 May 2018.

16    Both witnesses were cross-examined.

17    The affidavit of Mr Kill was read without objection. In the case of Ms Black’s affidavit, objection was initially taken to paragraphs [3]-[7] and the annexures thereto on the ground of relevance. The objections related to correspondence between the ACCC and Mr Benjamin David Wooster, the sole director of Birubi, pursuant to which Mr Wooster: (a) voluntarily disclosed information about certain of Birubi’s products; and (b) subsequently provided information by (relevantly) letters dated 21 December 2017 and 14 January 2018 in response to a notice under subs 155(1)(a) and (b) of the CCA dated 14 November 2017 to Birubi (and variations altering the due date for the reply).

18    It was, however, ultimately not in issue that the answers given, and material produced, in response to the s 155 notice was admissible in these proceedings being civil in nature: see Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678 at 49 at [131] (Finn J); see also ss 81, 83 and 87, of the Evidence Act 1995 (Cth) (the Evidence Act) as to the admissibility of the admissions against interest made in the answers.

19    More specifically, at the hearing Birubi did not press objections to those pages of annexure JRB-2 to Ms Black’s affidavit at pp. 76-79, 83-90, and 92-100 of the Court Book comprising sales ledgers (the sales ledgers). Otherwise, the affidavit and annexures were read with the qualification that [3]-[7] and their accompanying annexures were read subject to relevance and on the basis that the ACCC would take the Court to anything relevant in chief so as to enable Birubi the opportunity to object if so advised after hearing submissions as to why it was said that particular portions were relevant. These passages were helpfully identified in the ACCC’s list of relevant extracts from the annexures to Ms Black’s affidavit, which was handed up at the hearing.

20    The sales ledgers listed sales by Birubi to identified retail outlets in Australia for the period 1 January 2016 to 13 April 2017 and tallied the total amount received during the two separate financial years this period encompassed, of the following products:

(1)    “C701 Coaster set 6 Tribal Gathering” and “NTC05 Table cloth Col. Bush Berries” for the purposes of demonstrating the nature of the outlets to which Birubi supplied products (which I note were not products to which this proceeding related but the ledgers were said to identify some of the types of the retail outlets to which Birubi supplied products); and

(2)    “BOAN08 Boomerang Cont. T. Mason 20cm” and “DITB40 Didgeridoo bamboo Trad. 40cm”, being one of each of the product lines of the loose boomerangs and didgeridoos respectively which are the subject of this proceeding.

2.2    Witnesses for the respondent

21    In support of its defence, Birubi sought to rely upon:

(1)    the affidavits of Leslie Edward Moore, solicitor, sworn on 30 May 2018 and 17 July 2018 (Mr Moore’s first and second affidavits respectively);

(2)    the affidavit of Mr Wooster, the sole director of Birubi, sworn on 30 May 2018 (Mr Wooster’s first affidavit) which was read save for paragraph 27; and

(3)    the affidavit of Mr Wooster sworn on 29 August 2018 as corrected in an unsworn, marked up version of his affidavit which he adopted in cross-examination and which was marked as Exhibit R-1 (Mr Wooster’s second affidavit).

22    Both witnesses were cross-examined.

2.3    Ruling on the admissibility of Mr Moore’s contextual evidence in his first affidavit

23    In his first affidavit, Mr Moore gave evidence that he attended two businesses on 30 May 2018 which Mr Wooster had told him currently stocked Birubi products, namely, Mak3 Gifts on Surfers Paradise Boulevard, Surfers Paradise, in Queensland, (Mak3 Gifts) and the Spirit of Australia Gallery on the Gold Coast Highway, Surfers Paradise, Queensland (the Spirit of Australia Gallery). Mr Moore took an extensive number of photographs of the stock located at both premises, including Birubi stock. Mr Wooster’s second affidavit was sworn for the purpose of providing further detail of the content of the photographs exhibited in Mr Moore’s first and second affidavit. Birubi submitted that the purpose of the evidence was to show what the outlets selling Birubi stock are like generally. That evidence was admitted subject to relevance for the reasons explained below.

24    The ACCC submitted that the evidence was irrelevant on two grounds, namely: the photographs were not of outlets to which any of the Products in question had been supplied during the relevant period; and the photographs were taken outside the relevant period. It is true there was no evidence that Mak3 Gifts or the Spirit of Australia Gallery stocked any of the Products in question in the relevant period. That notwithstanding, there was no challenge to Mr Moore’s evidence that the outlets stocked Birubi products as at 30 May 2018. In my view, while of limited use, the evidence is nonetheless indicative of some of the types of Outlets to which the Products in issue here were supplied and the types of products which they displayed for sale, and can be admitted for those purposes.

2.4    Ruling on the admissibility of Mr Moore’s contextual evidence in his second affidavit

25    In his second affidavit, Mr Moore gave evidence that on a visit to Darwin on or about 22 to 23 June 2018, he and Mr Wooster also visited the Mason Galleries, NT Souvenirs and Darwin Souvenirs. Mr Moore took photographs of the products for sale, prices and the store setup at each of those retailers’ premises. These photographs were annexed to his second affidavit, together with a table explaining what the photographs depicted. In order to meet certain objections filed by the ACCC in advance of the hearing, Mr Wooster sought and was granted leave to file and serve his affidavit sworn on 29 August 2018 to identify those photographs annexed to Mr Moore’s affidavits which depicted examples of the Products the subject of these proceedings. However, the ACCC maintained its objection to Mr Moore’s second affidavit on other grounds.

26    It was not in issue that during the relevant period, Birubi sold the bamboo didgeridoos to Darwin Souvenirs, bullroarers to the Mason Gallery, and boxed boomerangs and message stones to NT Souvenirs. However, in the ACCC’s submission, the photographs were still irrelevant because they depicted the store premises outside the relevant period and there was no evidence linking those photographs to the store setup and stock during the relevant period. In this regard, the ACCC placed emphasis upon the fact that it would have been open to Birubi to call evidence to address this gap from the shopkeepers themselves or, more importantly, from Mr Wooster given his evidence that he regularly visited the stores stocking his product lines and would observe how the stores presented his product lines during those visits.

27    Against this, Birubi submitted that evidence of each of the store premises and set up was admissible, despite the photographs having been taken after the relevant period. In support of that submission, counsel for Birubi relied by analogy upon the decision of the Queensland Court of Appeal in Astway Pty Ltd v Council of the City of the Gold Coast [2008] QCA 73. In that case, the appellant sought a declaration that the respondent Council no longer required land within seven years of its compulsory acquisition for the purpose for which it was acquired thereby enlivening a statutory obligation to offer the land for sale to the former owner. In support of that claim, the appellant objected to what it characterised as “retrospectant” evidence, being documentary evidence relating to the Council’s actions and decisions after the expiry of the relevant seven-year period. Justice Atkinson (with whose reasons Holmes JA agreed at [1]) held that the retrospectant evidence was admissible, being “a type of circumstantial evidence in which the subsequent occurrence of an act, state of mind or state of affairs justifies an inference that the act was done, or that the state of mind or affairs previously existed.” (at [43]). However Atkinson J also observed that “such evidence may need to be treated with some circumspection in terms of the weight attached to it: see Melchior v Cattanach [2001] QCA 246 at [136]; R v N [2006] VSCA 111 at [37].”

28    Birubi also submitted that the question of whether the implied false representations were made must be considered having regard to the surrounding circumstances (see further below at [77]-[101]), and not merely by reference to the Products and their packaging. In its submission, the evidence was relevant to this aspect of its defence, because it provided a basis on which the Court could draw inferences about the way in which the Outlets displayed the Products to potential purchasers, their placement with other objects for sale which were expressly “trumpeted” as “Australian Made” and/or made or hand painted by Aboriginal artists, and as to the differential pricing of these rival goods with the Products. That evidence in turn was said to be relevant to the conclusions which customers might reach about the origins and production of the Products as opposed to those other objects for sale. While Birubi did not lead evidence as to why shop owners had not been called to give evidence which might address the gap in the evidence linking the photographs to the presentation of the Products as at the relevant time, Birubi submitted that no adverse inference could be drawn, but accepted that this may affect the appropriate weight given to the evidence. No adverse inference should be drawn because, in its submission, it could be inferred that this decision was driven by practical concerns, namely, to avoid involving clients in litigation unless necessary and subsequently, and more fundamentally, in the interests of ensuring that the trial ran no longer than necessary.

29    In my view, the photographs of the Mason Galleries, NT Souvenirs and Darwin Souvenirs are potentially relevant to the general context in which the Products were presented for sale by these and similar retail outlets at the relevant time, and more generally as being indicative of some of the kinds of outlets where the Products were sold. On this basis, I would admit the evidence albeit with caution as to the weight to be afforded to the evidence with respect to contentious issues.

30    Finally, while it was suggested to Mr Moore in cross-examination that he may have been selective in taking certain of the photographs so as to focus upon photographing certain objects from other suppliers with higher price-tags than the Birubi products, Mr Moore gave clear and straight-forward evidence that he did not act in this manner. I accept his evidence and note that ultimately no suggestion was made in closing in reliance upon this line of cross-examination.

3.    THE PRODUCTS

3.1    General

31    Schedule 1 to the applicant’s amended Concise Statement contains photographs of one example of each of the five product lines in issue in the proceeding, including their packaging (where applicable) and their labelling (the sample Products). Birubi admitted that these photographs accurately depict the Products. Larger, higher resolution copies of these photographs were contained in the bundle of applicant’s photos (Exhibit A-1), together with photographs reproduced from Mr Kill’s affidavit of the Mason Gallery taken on 10 November 2017 when a sample product was purchased by the ACCC, printouts of the Mason Gallery Website reproduced from Ms Black’s affidavit, and photographs provided by the ACCC in response to Birubi’s request for particulars. The sample Products themselves were also received in evidence.

32    The five sample Products were purchased in the following manner.

(1)    Mr Kill, then a graduate with the ACCC, visited the Mason Gallery on Cavanagh Street in Darwin, Northern Territory, on 10 November 2017 at the instruction of Ms Black and purchased a boxed bullroarer for $35.00.

(2)    On 7 November 2017, Mr Kill purchased the boxed boomerang and message stone from NT Souvenirs on Smith Street, Darwin, in the Northern Territory for $28.95 and $9.95 respectively.

(3)    On 21 October 2016, Ms Black purchased the loose boomerang for $20.99 from Oz Australia on High Street, Fremantle, Western Australia.

(4)    On 3 November 2016, Mark Holden purchased the bamboo didgeridoo for $9.99 from Australia the Gift on George Street, Sydney, New South Wales.

33    There are a number of different product codes for each of the Products. In the case of the loose boomerangs, boxed boomerangs, didgeridoos and bullroarers, the different codes define different lines of the product defined by their size. In the case of the message stones, the different product codes relate to different designs on the stones. While the sample products each comprise only one example from each product line, importantly it was accepted by Birubi that they were illustrative of the Products, as packaged and labelled, for the period of their supply over the relevant period. In this regard, it was not in issue that not all of the Products were supplied over the whole of the relevant period. Specifically, it appears from Birubi’s response to the s 155 notice and evidence given by Mr Wooster (albeit that there is some uncertainty) that the dates on which various product lines were first supplied in Australia were as follows:

34    The evidence did not, however, reveal the date on which the loose boomerangs were first supplied in Australia (sample product code BOAN08). Birubi also advised that DIBP and DIBB ceased supply in the form referred to in Annexure A to the s 155 notice in August 2017.

35    Furthermore, while evidence was not led (at least at this stage of the proceedings) of the total number of the Products allegedly supplied by Birubi over the relevant period, it is clear that the number of Products supplied was substantial. Thus in its revised response to the s 155 notice, Birubi identified sales of the Products totalling at least 12,974 for the financial year ending 30 June 2017. Birubi also identified that 1,429 boomerangs in product line BOAN08 were supplied between 1 January 2016 and 13 April 2017, and in the same time period 4,034 didgeridoos were supplied in the product line DITB40. In total the ACCC identified, and Birubi conceded at the hearing, that over 18,000 of the Products were supplied to retailers in Australia during the relevant period. As such, it was not in issue that the total number of the Products supplied to retail outlets by Birubi over the whole of the relevant period would have exceeded that figure.

3.2    Production of the Trisha Mason Products

36    Mr Wooster gave unchallenged evidence regarding the Trisha Mason products (i.e., the loose boomerangs, boxed boomerangs and bullroarers). As earlier mentioned, these products reproduce artwork produced by an Aboriginal artist, Trisha Mason, pursuant to the royalty agreement with Birubi. The ACCC accepted that Ms Mason identifies as a person of Aboriginal ethnicity and that she is accepted by her local Aboriginal community as a person of Aboriginal ethnicity.

37    Mr Wooster explained that Ms Mason is the most popular artist with the retail outlets supplied by Birubi, with some retailers wanting to stock only the Trisha Mason Products because of their quality and consistency. However he explained that the production of a commercially viable quantity of such products is an issue, and, as Ms Mason could not physically paint the commercial quantities required to meet demand, it was necessary to produce commercial quantities of stock by digital manufacturing, screen, offset printing or hand-painting by artisans.

38    Birubi has one supplier of commercial stock based in Indonesia named Enigma (Eniquema) (the Indonesian Supplier). While the Indonesian Supplier supplies a number of Birubi’s competitors, Birubi has used the Indonesian Supplier since about 2006. Since then, the Indonesian Supplier has been used by Birubi primarily to reproduce designs by Ms Mason. The Indonesian Supplier provides any packaging, prints, swing tags and the labelling for the products. However, the final decision as to the text on those labels is made by Mr Wooster.

39    The Trisha Mason Products were produced by a process described by Mr Wooster as follows:

(a) Trisha Mason produces a number of prototype blanks (i.e. an artefact such as a boomerang in a raw unfinished state) or canvas glued to cardboard. Several styles are produced of varying artwork and colours for commercial production (Prototypes).

(b) The Prototypes are mounted and/or photographed for production to specific instructions to persons who copy those artworks for commercial production (the Instruction Sets).

(c) A copy of the Instruction Sets are produced for each supplier to Birubi who are contracted to produce commercial quantities of either hand painted or digitally manufactured stock based on the original designs/artworks.

(d) Some product lines are produced by digital manufacturing or by screen or offset printing (e.g. coasters and placemats, magnets, stickers etc).

(e) Hand painted product lines are produced by artisans. Birubi has a sole supplier from Indonesia who employs the artisans who hand paint the stock from the Prototypes and Instruction Sets on a commercial quantity.

3.3    Production of the bamboo didgeridoos and message stones

40    Mr Wooster’s evidence as to the means by which the bamboo didgeridoos and message stones were produced was also not challenged.

41    Bamboo didgeridoos of the kind the subject of this proceeding were produced by the Indonesian supplier for Birubi from about March 2016 until they were discontinued in or about December 2017. At that time, Mr Wooster decided that the quality was inferior to the Trisha Mason Products and he migrated the product line to a “‘Trisha Mason’ style of product”.

42    Mr Wooster explained that the product code for the bamboo didgeridoos subject to this proceeding was DITB40 and that this identified it as a “40cm traditional painted product”. These didgeridoos were described by Mr Wooster as “a very low-cost item which commonly retail for about $12.95 per piece. It was the bottom of the souvenir range.” He intended the bamboo didgeridoos to be a cheap product which would compete with similar products being imported by other souvenir wholesalers. I note that Mr Wooster’s evidence on this point does not specifically address the other bamboo digeridoo product lines subject to this proceeding.

43    As to production of the sample bamboo didgeridoo, Mr Wooster explained that:

28. The specification when ordering the didgeridoos was very simple. I specify the length, blank material, that Aboriginal style be used and that each product had to have two Australian animals on it, one of them being a kangaroo. Based on the knowledge the Indonesian Supplier had acquired, they simply produced samples which I approved then made the didgeridoos in the quantity ordered.

44    The message stones were also acquired from the Indonesian Supplier and Mr Wooster explained that they were hand painted. However, in the case of the message stones, Mr Wooster specified and briefed the Indonesian Supplier with the Aboriginal symbols to be used and his understanding of the meaning of the symbols. He further explained that:

30. …. I obtained the aboriginal symbols graphic from internet research (mainly Google) and simply printed them off when I saw a symbol which I thought would make a good product. To my understanding from the research I completed, the symbols were common symbols (similar to a hieroglyphic) which Aboriginal [persons] used to communicate in written form. They are not produced in the same way that the Trisha Mason products are produced but are based on the symbols I provided to the Indonesian Supplier obtained from the Internet.

31. Message stones were similarly [a] very cheap part of the souvenir range. They were only ever intended to be a cheap keepsake by a frugal purchaser. Some of the Symbols can be seen in artworks by Trisha Mason and are recognised as Aboriginal Symbols used in Aboriginal Art.

45    Mr Wooster explained that the message stones were not a popular item and he discontinued the line in March 2018.

3.4    The retail outlets to which the Products were supplied

46    The parties also accepted that the retail outlets to which the Products were supplied (the Outlets) were illustrated by the sales ledgers to which I have earlier referred, even though those ledgers were confined to the sale of the bamboo didgeridoos and loose boomerangs. The sales ledgers relating to the loose boomerangs identified by the code “BOAN08” for the period 1 January 2016 to 13 April 2017 identified retail outlets at which the products were for sale as including Australia the Gift at locations around Australia, Cairns Didgeridoos, City Convenience Store in Sydney, Heinemann Australia (which Mr Wooster explained was located at Sydney Airport), Kiama Visitor Centre, Kings Canyon Resort, Melbourne Souvenirs (OzLand), the Mount Lofty Summit Gift Shop, South Australian Museum Shop, and Souvenirs Plus at Bondi Beach. The sales ledgers identify a range of similar retail outlets for the sale of the bamboo didgeridoos over the period 1 January 2016 to 13 April 2017 including Australia the Gift on George Street, Sydney (where the sample bamboo didgeridoo received in evidence was purchased), Everything Australian and Everything Tropical at Port Douglas in Queensland, Free Choice Tobacconist at Lismore, Heinemann Australia at Sydney Airport, Kakadu Snacks and Souvenirs, Melbourne Souvenirs (OzLand), and Opal Paradise in Cairns.

47    In addition, as earlier mentioned, the boxed bullroarer was purchased from the Mason Gallery in Darwin which had been a retail customer of Birubi since about August 2015, albeit that it was not a large customer and made orders about once a year through the Birubi website. The bullroarer purchased by Mr Kill from the Mason Gallery on 10 November 2017 had been displayed at the front of the Mason Gallery near the window with what appears to be approximately 15 boxed bullroarers, as well as a smaller number of unboxed bullroarers, variously labelled “Birubi Art Australia” and “Birubi Art Pty Ltd”. Mr Kill also saw a range of “dot paintings” displayed for sale at the Mason Gallery, as well as other objects such as boomerangs, rugs and woven baskets, as was apparent in the photographs which he took at the time. A screenshot taken by Mr Wooster from a promotional video available on the website of the Mason Gallery on an unknown date, and photographs taken of the Mason Gallery by Mr Moore on 22 and 23 June 2018, similarly depict Birubi products on shelves with other apparently similar souvenirs, together with large pieces of Aboriginal art.

48    It was not in issue that Birubi has no control or say in how its stock is displayed for sale by retailers, its retail price, its location within a particular outlet, or the other goods with which Birubi stock is placed. That notwithstanding, Mr Wooster often visits various Birubi retailers’ stores on sales trips in order to “review how Birubi’s products are going in the market, which product is left on the shelves (i.e. not sold)”, and what similar products from other suppliers are being sold with Birubi’s products. Mr Wooster was aware that retailers often removed Birubi products from their packaging for display. He also often saw Birubi products “mingled with other suppliers’ products on display stands, both Birubi stands and non-Birubi stands.” Birubi supplied these display stands at the request of retailers.

49    Finally, I accept Mr Wooster’s evidence that Birubi seldom offers to provide stands to new suppliers as they cost Birubi money. I also accept his evidence about a sticker affixed to a stand supplied by Birubi on which Birubi loose boomerangs were stacked which was depicted in a photograph put to him in cross-examination. The sticker headed Birubi Art described how Birubi worked with a pool of talented Aboriginal artists. Mr Wooster explained that he had been surprised to see the photograph when a copy was provided to his solicitors by the ACCC and considered that it must have been affixed to the stand by a storeman in error. It was, in his words, “an anomaly” and typically Birubi would paint only the words “Birubi Art” on any stands which it supplied. As such, in making findings about the implied representations, I have disregarded the sticker photographed on the stand.

4.    RELEVANT PRINCIPLES

4.1    The relevant statutory causes of action

4.1.1    Section 18, ACL

50    Section 18 of the ACL provides that:

(1)     A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

51    It was not in issue that Birubi is a person for the purposes of the ACL and that the conduct complained of was engaged in trade or commerce.

52    Nor was it in dispute that representations, including those which are implied, may constitute “conduct” for the purposes of ss 18 and 33 of the ACL: see e.g. Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; (2014) 317 ALR 73 (Coles Supermarkets) at [38] (Allsop CJ) (with respect to conduct comprised of representations that par-baked bread was freshly baked in-store) and subs 4(2) of the CCA. Furthermore, as the parties accepted, conduct is “likely” to mislead or deceive for the purposes of (now) s 18 if there is “a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent’”: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 (Global Sportsman) at 87 (the Court) (citations omitted); see also Noone (Director of Consumer Affairs Victoria) v Operation Smile (Aust) Inc [2012] VSCA 91; (2012) 38 VR 569 at [60] (Nettle JA) (Warren CJ and Cavanough AJA agreeing relevantly at [33]). There is however no requirement to establish that significant members of the public have been misled: .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424 (.au Domain) at [25] (Finkelstein J).

53    I later consider what is meant by misleading and deceptive, and the circumstances in which the making of a representation may be implied, as is alleged by the ACCC here: see below at [62]-[70].

4.1.2    Section 29, ACL

54    Section 29 of the ACL relevantly provides that:

(1)    A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services in connection with the promotion by any means of the supply or use of goods or services:

(a)    make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or

…

(k)    make a false or misleading representation concerning the place of origin of goods;…

    (emphasis added)

55    As such, s 29 applies only to a “representation” rather than the broader concept of “conduct” used in s 18, and proscribes only false or misleading representations about specific matters. Nonetheless, its reach encompasses representations made orally or in writing, and may include pictorial material, as well as other conduct in an appropriate case (at least to the extent that is embraced within the ordinary meaning of the word): Given v Pryor (1979) 39 FLR 437 at 440-441 (Franki J).

56    The principles relevant to subs 29(1)(a) of the ACL were not in issue and I adopt as an accurate description of relevant principle, the ACCC’s summary, with which Birubi agreed, as follows:

21. “Particular” does not mean “precise”, just an indicated or certain standard, quality, grade etc: Gardam v George Wills & Co Ltd (1988) 82 ALR 415 per French J [at 423].

22. The application of the term “style” has been described as “obvious”. The Honourable Dyson Heydon, writing extra-judicially, has said that “[t]o call furniture ‘Danish’ or ‘Danish Modern’ is probably false if it was not produced entirely in Denmark, and to call it ‘Danish designed’ is false if it was not entirely designed or styled in Denmark.”

23. A representation can be about the history of a thing even though it does not comprehend the whole of the period during which the thing has been in existence. The processes and place of manufacture of a chattel are part of its history: Korczynski v Wes Lofts (Australia) Pty Ltd (1985) 10 FCR 348 [at 353 (Jenkinson J)]; Australian Competition and Consumer Commission v Lovelock Luke Pty Ltd (1997) 79 FCR 63.

24. As is the case with s 18 of the ACL, intent is irrelevant to a determination of whether a breach of s 29 of the ACL has occurred: Darwin Bakery Pty Ltd v Sully (1981)[36 ALR 371 at 376 (the Court)].

25. Statements made in labels affixed on goods can be treated as representations made by the person who affixed them: Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 at 106 (the Court).

57    Further, with respect to subs 29(1)(k) of the ACL, it was not in issue that to describe goods as made in Australia is to make a statement concerning their “place of origin” for the purposes of subs 29(1)(k) of the ACL. As Gummow J held in Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101 (Netcomm) at 106, “‘Origin’ directs attention … to the beginnings of existence of the goods with reference to a source or cause of that existence; the concept is that of beginning regarded in connection with its cause.” As his Honour then held at 107, “[t]o say of goods that they were made in Australia plainly is to make a statement concerning their place of origin. The making of goods involves the steps and procedures which preceded and resulted in the formation or composition of the goods”.

58    Accordingly, the issue for resolution with respect to s 29 is whether, as the ACCC alleges, Birubi made a false or misleading (implied) representation that the Products were of a particular style and had a particular history, and/or made false representation that the goods were made in Australia, in breach of subs 29(1)(a) and (k) respectively of the ACL.

4.1.3    Section 33, ACL

59    Finally, s 33 of the ACL provides that:

A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or quantity of any goods.

(emphasis added)

60    Again the principles relevant to s 33 were not in issue. In contrast to s 18 of the ACL, s 33 applies only if the relevant conduct “is liable” to mislead. It has been held that this means that s 33 applies to a narrower range of conduct than s 18 and requires proof that it is more probable than not that the public would be misled: Coles Supermarkets at [44] (Allsop CJ); see also Westpac Banking Corporation v Northern Metals Pty Ltd (1989) 14 IPR 499 at 502 (Northrop J); Trade Practices Commission v J & R Enterprises Pty Ltd (1991) 99 ALR 325 at 338-339 (O’Loughlin J); and Australian Competition and Consumer Commission v Turi Foods Pty Ltd [2013] FCA 665 (Turi) at [79] (Tracey J).

61    The issue raised with respect to s 33 is whether, as alleged by the ACCC, Birubi engaged in conduct liable to mislead the public into thinking that the Products were hand painted by an Australian Aboriginal person or made by an Australian Aboriginal person. No issue was taken by Birubi with the proposition that representations about these matters may constitute conduct liable to mislead as to “the nature, the manufacturing process, [or] the characteristics” of the Products.

4.2    What is meant by “misleading or deceptive”, “false or misleading” and “mislead”?

62    It has been held that there is no meaningful difference between the words “misleading or deceptive” and “mislead or deceive” in s 18 of the ACL, “false or misleading” in subs 29(1)(a), and “mislead” in s 33. Furthermore, s 18 and subss 29(1)(a) and (k) of the ACL are in effectively the same terms as their predecessor provisions, s 52 and subs 53(a) and (eb) of the Trade Practices Act 1974 (Cth) (the TPA), save that the phrase “[a] person must not” is used in the ACL rather than the phrase “[a] corporation shall not” in the TPA. That difference is not of any relevant consequence here, as was also the case in Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 (TPG Internet) at [11] (French CJ, Crennan, Bell and Keane JJ). As such, the consideration by authorities of whether conduct was “misleading or deceptive” or “false or misleading” conduct for the purposes of ss 52 and 53 of the TPA remains relevant to ss 18, 29 and 33 of the ACL.

63    Bearing these matters in mind, the principles to be applied in determining whether conduct is false, misleading or deceptive can conveniently be summarised as follows. In so summarising the relevant principles, I emphasise that they are interrelated.

64    First, the question of whether representations are misleading or deceptive or likely to mislead or deceive is a question of fact: Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987; (2004) 208 ALR 459 at [49] (Gyles J). That said, the test is an objective one. Thus, while evidence that an erroneous conclusion has been formed by reference to the impugned conduct is admissible and may be persuasive, it is not essential. The Court must determine the question for itself: Global Sportsman at 87 (the Court). It also follows that an intention to mislead or deceive is not an element of s 18 (or ss 29 or 33) of the ACL, even though the respondent’s intention in making the representation (for example, to create a favorable impression in relation to an offer) may be relevant to the question of whether it may be inferred that a representation is misleading or deceptive or likely to be so: TPG Internet at [55]-[56] (French CJ, Crennan, Bell and Keane JJ); Australian Competition and Consumer Commission v Nonchalant Pty Ltd (in liq) [2013] FCA 605 at [10] (Gordon J). Equally, save where the representation is about the maker’s state of mind, the maker’s belief in the accuracy of the meaning conveyed by the statement is irrelevant to the question of whether the meaning conveyed by the statement is false: Australian Competition and Consumer Commission v Homeopathy Plus [2014] FCA 1412; (2014) 146 ALD 278 (Homeopathy Plus) at [124] (Perry J).

65    Secondly, the question of whether conduct is misleading or deceptive (or likely to be so) “… is concerned with the effect or likely effect of conduct upon the minds of those by reference to whom the question of whether the conduct is or is likely to be misleading or deceptive falls to be tested”: Global Sportsman at 87 (the Court) (emphasis added). Similarly as French CJ explained in Campbell v Backoffıce Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 (Backoffice Investments) at [25], and as was subsequently endorsed in TPG Internet at [49], the characterisation of conduct as misleading or deceptive or as likely to mislead or deceive “generally requires consideration of whether the impugned conduct viewed as a whole has a tendency to lead a person into error” (emphasis added). “That is to say…”, as their Honours explained in their joint reasons in TPG Internet at [39], “there must be a sufficient causal link between the conduct and error on the part of persons exposed to it.” In practical terms, Allsop CJ in Coles Supermarkets explained that this means that:

41. It is necessary to view the conduct as a whole and in its proper context. This will or may include consideration of the type of market, the manner in which such goods are sold, and the habits and characteristics of purchasers in such a market… The context will also include relevant disclaimers or explanations: Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; … [2004] HCA 60 at [49] (where the disclaimer, in small print, but in a short document, was “there to be read”).

42. In assessing advertising material, the “dominant message” of the material will be of crucial importance: TPG at [45].

66    Thirdly, in line with these principles, the question of whether or not any loss was suffered is logically irrelevant to a consideration of liability under these provisions, although in practice characterizing conduct may require assessing its effects upon the notional consumer: Australian Competition and Consumer Commission v Dell Computers Pty Ltd [2002] FCA 847 at [32] (Jacobson J); Backoffıce Investments at [24] (French CJ).

67    Finally, the question of whether the representation or conduct had a tendency to lead a consumer into error can meaningfully be addressed only once the class of persons likely to be affected and their relevant attributes have been identified. As Gibbs CJ held in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 (Parkdale) at 199:

…consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by [sic] regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will [of] course depend on all the circumstances.

See also CPA Australia Ltd v Dunn [2007] FCA 1966 at [27] (Weinberg J); Turi at [75] (Tracey J); .au Domain at [12] - [25] (Finkelstein J).

68    The High Court further explained the approach to be adopted in Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 at [103] (Campomar) in the following passage:

103. … it is necessary to isolate by some criterion a representative member of that class. The enquiry thus is to be made with respect to this hypothetical individual why the misconception complained has arisen or is likely to arise if no injunctive relief be granted. In formulating this enquiry, the courts have had regard to what appears to be the outer limits of the purpose and scope of the statutory norm of conduct fixed by s 52. Thus, in [Parkdale], Gibbs CJ observed that conduct not intended to mislead or deceive and which was engaged in “honestly and reasonably” might nevertheless contravene s 52. Having regard to these “heavy burdens” which the statute created, his Honour concluded that, where the effect of conduct on a class of persons, such as consumers, was in issue, the section must be “regarded as contemplating the effect of the conduct on reasonable members of the class”.

69    Thus at [105] the High Court held that, in assessing the reactions or likely reactions of the ordinary or reasonable members of the class of prospective purchasers of a mass-marketed product for general use, the court may well disregard those assumptions by persons whose reactions are “extreme or fanciful”.

70    As I explained in Homeopathy Plus, it is useful to illustrate how the task of assessing what can reasonably be expected of the relevant class is undertaken, by contrasting the circumstances in TPG Internet and Parkdale respectively:

123. …. greater attention might be imputed to what might colloquially be called “small print” where the target audience consists of potential purchasers in the calm of a showroom who are visiting with a substantial purchase in mind (as was the case in [Parkdale]) as opposed to that which might reasonably be expected of the target audience regarding representations and qualifications in advertisements that were an unbidden intrusion on the consciousness of the target audience intended to arrest its attention (as in TPG Internet). In the latter case, “…the attention given to the advertisement by an ordinary and reasonable person may well be ‘perfunctory’, without being equated with a failure on the part of the members of the target audience to take reasonable care of their own interests”: TPG Internet at [47]. In such a case, many members of the general public may absorb only the general thrust: as above. Thus, the majority held in TPG Internet that “questions of carelessness by consumers in viewing advertisements may be relevant to that question of characterisation.”: at [49]. Relevantly also in TPG Internet, the tendency to lead potential customers into error arose because the advertisements themselves selected certain words for emphasis and relegated the balance to relative obscurity. Thus, in all of the circumstances, the majority held that carelessness in absorbing all of the detail was not an unreasonable response.

5.    HAS THE ACCC ESTABLISHED THAT THE IMPLIED REPRESENTATIONS WERE MADE?

5.1    Identification of the class to whom the representations were made

71    The first question, therefore, in assessing whether the representations were likely or liable to be misleading and deceptive is to identify the class of persons to whom the representations were made and the attributes of an ordinary member of that class acting reasonably in all the circumstances (the reasonable member). Equally where it is said that the representations are implied, the issue is determined by considering whether an ordinary member of the class, acting reasonably, would draw the implied false and misleading representation in all of the circumstances: Dynamic Lifter Pty Ltd v Incitec Ltd (1994) 30 IPR 198 (Dynamic Lifter) at 203 (Whitlam J).

72    As the ACCC submitted, the class of persons to whom the representations were relevantly made is comprised of those who, it can be inferred, frequented the Outlets (as described at [46] above). The Outlets comprised souvenir shops, gift shops, museum gift shops, shops described as galleries, and convenience stores; each of which sell souvenirs, keepsakes and gifts. The Outlets, not surprisingly, tended to be located at places frequented by tourists including Sydney Airport and popular tourist destinations such as Bondi Beach, Kings Canyon, Mount Lofty, and Cairns. Furthermore, at least in the case of the Mason Gallery, the Products were also sold alongside what the Birubi described as “more expensive, authentic artworks”, as well as a variety of other souvenirs, gifts and mementos. As such, it was not in issue that the relevant class of purchasers and potential purchasers of the Products includes international tourists, interstate tourists, and those seeking to purchase a gift. Moreover, it is clear that the Products were not directed toward sophisticated consumers of Aboriginal art. As such, I agree with the ACCC that the potential class of consumers is a broad one and should be presumed to include “the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, and men and women of various ages pursuing a variety of vocations”: Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93 (Lockhart J) (cited with approval by Deane and Fitzgerald JJ in Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 (Taco Bell) at 202; see also Australian Competition and Consumer Commission v Telstra Corporation Ltd [2007] FCA 1904; (2007) 244 ALR 470 (ACCC v Telstra) at [17] (Gordon J).

73    Added to this, the ACCC also submitted that international tourists “may be accepted to have a relatively low degree of familiarity with Aboriginal art and cultural practices and to rely to a greater degree upon matters disclosed to them by the sellers of such goods than would otherwise be the case”. As such, the ACCC submitted that the hypothetical purchaser would not be astute to the intricacies of the Aboriginal art world, nor astute to identifying anything about the likely mode of production or origin by reference to price. However, the ACCC submitted that the hypothetical purchaser would recognize the symbols, designs, artwork and cultural objects on, and represented by, the Products as characteristic of that which would be made by Indigenous Australians.

74    Against this, Birbui submitted that, to the extent that tourists are one of the defining features of the class, they have the “know-how” and resources to travel, and it can be assumed therefore that they are reasonably educated and unlikely to be unusually vulnerable or gullible. This, in Birubi’s submission, is consistent with that part of the ACCC’s case outlined above that ordinary members of the class would be familiar with Aboriginal symbols, designs and cultural objects. Ultimately, in Birubi’s submission, apart from references to notions of common sense and a general understanding of the sorts of people who visit the Outlets and the nature of the Outlets themselves, there is very little evidence about the members of the class in question led by the ACCC. As such, Birubi submitted that, in the absence of such evidence, “one must approach the issue as to what the advertising material conveyed to them on the footing that they are taken to be ordinary and reasonable readers of the material”, quoting Keane JA (with whose reasons Williams and Atkinson JJA agreed) in Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 (Downey) at [70].

75    Birubi submitted that I ought not to go beyond Keane JA’s statement of principle in Downey in characterising the class, and not make assumptions about the kind of people who patronise the Outlets and may purchase the Products. I do not accept that submission. First, Keane JA’s comment seems directed, not to the question of who appropriately comprised the class of consumers who may purchase the Products, but to the question of the standard against which the effect of the conduct is to be tested, that is, the ordinary reader who is a member of the class acting reasonably). Nonetheless, it may be accepted, as Birubi submits, that international tourists may have the know-how to travel and a degree of education. Further, it can reasonably be inferred that it is highly likely that a prospective purchaser would consider purchasing items such as the Products because they recognise the association between such objects and their designs, on the one hand, and traditional Aboriginal art and cultural objects, on the other hand. This association is also chosen for emphasis on the labelling on the Products, as is explained below, as a feature rendering the Products more attractive to prospective purchasers. In this regard, Mr Wooster explained that Birubi “create[s] the packaging to highlight the product within the package.” However, it is also reasonable to infer that, at least in the case of overseas visitors, their familiarity with Aboriginal art and cultural practices is likely to be limited.

76    Finally, with respect to the assessment of what the ordinary member may reasonably infer from the Products, this is not a case such as Parkdale where the target audience is potential customers visiting a showroom with a substantial purchase in mind. Nor, at the other end of the spectrum, does the present case equate to the purchase of a staple product, such as bread, among many other items in a supermarket (as in Coles Supermarkets) or involve an advertisement constituting an unbidden and arresting intrusion on the consciousness of the targeted audience (as in TPG Internet). Nonetheless, in my view, the nature of the purchase, the pricing of the Products, the nature of the outlets in which they are presented for sale, and the composition of the target audience, render it likely that the reasonable hypothetical purchaser would typically absorb the dominant message conveyed by the Products and their presentation, rather than engaging in a close intellectual analysis of what was and was not stated and depicted on the products and their labelling. As such, I accept the ACCC’s submission that the choices made by potential customers will likely be affected by an “intuitive sense” of attraction and association based upon the impression conveyed by the Products and their labelling, “rather than by any process of analytical or logical choice” (adapting the passage from Coles Supermarkets at [43]).

5.2    The issue as to the width of the surrounding circumstances relevant to determining whether the false and misleading representations were impliedly conveyed

77    As earlier explained, the primary issue between the parties turns upon whether each or any of the implied representations pleaded by the ACCC was conveyed in the circumstances: ACCC v Telstra at [14] (Gordon J).

78    It will be recalled that the ACCC accepts that the representations are not expressly made but that it is incumbent on it to demonstrate that they are implied. In other words, while the various statements made on the Products were literally true, the combined effect of the design, symbols, labelling and cultural associations of the objects, together with what was not said on the products or their labels, is said to result in them conveying the alleged false representations. As Stephen J explained in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 227-228 in relation to then s 52 of the TPA, “To announce an opera as one in which a named and famous prima donna will appear and then to produce an unknown young lady bearing by chance that name will clearly be to mislead and deceive. The announcement would be literally true but none the less deceptive, and this because it conveyed to others something more than the literal meaning which the words spelled out…. a statement which is literally true and accurate may nevertheless carry with it a false representation” (emphasis added). Equally, half-truths may be misleading where the insufficiency of information permits a reasonably open, but wrong, conclusion to be drawn: Coles Supermarkets at [46] (Allsop CJ).

79    It was not in issue that determining whether or not something more than literal meaning has been conveyed is a question of fact and involves a consideration of the surrounding circumstances: e.g. Taco Bell at 202 (Deane and Fitzgerald JJ) and Campomar at [100] (the Court). As Reeves J explained in Bennett v Elysium Noosa Pty Ltd (in liq) [2012] FCA 211; (2012) 202 FCR 72 at [40]:

… it is important to note that the determination of the question of fact whether a statement was made that constitutes a representation… is of a different kind to the determination whether an implied representation was made. With both, the ultimate issue is whether the applicant was led into error by the representation; see Parkdale at 198. However, the exercise involved with the latter is to determine whether what was actually said or done, in all the relevant circumstances, conveyed something more, such that it led the applicant into error… Similarly, in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546 … where it may have been literally true to say that the restaurant concerned had seating arrangements for 128 persons. Nonetheless, Lockhart J held at 555 – 556 that the provision of a card on which the words “Seats 128” appeared immediately above the word “Licensed”, combined with a sign on the front of the restaurant which said “Fully Licensed”, conveyed the impression that the restaurant was licensed to seat 128 persons when in fact it was only licensed to seat 84. I should add that while Lockhart J came to this conclusion at 556, his Honour also proceeded to deal with the case as one involving a representation by silence (see at 556 – 557). Burchett J agreed with Lockhart J at 568 and Foster J dissented on a different aspect at 568 – 571.

80    While the ACCC submits that context is relevant, as earlier indicated its approach to the relevant context was narrower than that urged by Birubi. In the ACCC’s submission, consideration of the Products themselves, together with the images and representations made on the Products and their packaging, are central to appreciating how the reasonable member would understand these Products and what they might reasonably infer about them. As I later explain, in support of the implied representations, the ACCC relies on the words, images and labels included on, or attached to, the Products or as part of their packaging, and the following matters:

(1)    all of the Products, aside from the message stones, are objects known as traditional Aboriginal cultural objects;

(2)    the artwork, symbols and/or designs reproduced on the Products are characteristic of Aboriginal artwork, symbols and designs; and

(3)    there is no reference on the Products or their labels or packaging to the Products having been made in Indonesia.

81    When these characteristics and the express representations are considered together, the ACCC submits that the Products stand in a different category from, for example, a keyring depicting the Sydney Harbour Bridge or a road sign depicting a kangaroo or emu. The key characteristic is that they are presented either as Australian Aboriginal cultural objects with corresponding Australian Aboriginal art, designs and/or symbols, or in the case of the message stones are decorated with designs that would be associated with Aboriginal culture and art. This impression, in the ACCC’s submission, is reinforced by the labelling, and (where applicable) the packaging, of all the Products. This characteristic is said to be key because the class of persons to whom the Products were addressed would recognise these as typical of objects, symbols, designs and art made by Aboriginal people, without being knowledgeable about the Aboriginal art market and price placement.

82    Birubi, on the other hand, submitted that there was no real risk that a reasonable member would be misled into thinking that that the Products were hand painted, or handmade, by an Aboriginal person, or made in Australia. It relied in particular upon the truth of what was stated on the labels, on inferences that purchasers could reasonably be expected to draw based upon statements that the Trisha Mason products were reproductions for which royalties were paid, and the retail setting in which the Products were displayed for sale in the Outlets. It is convenient to start with the last of these matters, as it pertains to all of the Products.

5.3    Relevance of the retail environment in which the Products were displayed for sale

83    Birubi’s submission that no false or misleading representations are conveyed when the Products are considered in their retail context is premised among other things upon the Court finding that competing products which were made in Australia, and/or made or hand painted by an Aboriginal person expressly and prominently displayed those claims, in contrast with the Products, and were more highly priced than the Products.

84    In support of its submission that these broader surrounding circumstances must be taken into account, Birubi relied upon the statement by Gibbs CJ in Parkdale at 199 that:

The conduct of a defendant must be viewed as a whole. It would be wrong to select some words or act, which, alone, would be likely to mislead if those words or acts, when viewed in their context, were not capable of misleading.

85    Birubi also placed relied upon the decision of Allsop CJ in Coles Supermarkets, with particular weight upon his Honour’s explanation of the applicable approach as follows:

41. It is necessary to view the conduct as a whole and in its proper context. This will or may include consideration of the type of market, the manner in which such goods are sold, and the habits and characteristics of purchasers in such a market…

(emphasis added)

86    Thus in Coles Supermarkets, Allsop CJ took into account contextual matters not simply pertaining to the product (par-baked bread) itself, but store signage, the “availability of bread on show”, and the in-store bakery, as combining “to communicate to the ordinary purchaser of bread that baking takes place on the premises and is freshly done” (Coles Supermarkets at [49]). By analogy, Birubi submitted that the “manner in which” the Products were sold in this case requires consideration of the kinds of retail outlets which stocked the Products, their layout, other products displayed for sale with the Products, and so forth.

87    A potential difficulty with the reliance which Birubi seeks to place upon these decisions, however, is that Gibbs CJ refers to the need to view the conduct of the defendant as a whole. Consistently with this, in Coles Supermarkets, the contextual matters which Alsop CJ took into account, such as store signage and store layout, was conduct undertaken by Coles and was taken into account by his Honour as part of the means by which Coles communicated the impugned representation about the baking of fresh bread to customers. By contrast, in the present case Birubi seeks to rely upon conduct by third parties (retailers and the producers of competing products) as part of the surrounding circumstances which the reasonable member may or would take into account in drawing inferences about the provenance and means of production of the Products. Furthermore, that conduct, namely the pricing, stocking and display of products in retail outlets, is conduct which Mr Wooster accepted was not within Birubi’s control.

88    It may be that the fact that broader contextual matters are within the control of a third party or outside the control of the person allegedly engaging in the misleading or deceptive conduct does not necessarily mean that those matters are irrelevant to a consideration of whether or not particular conduct or representations are likely or liable to mislead or deceive. Certainly matters such as the prevailing market conditions in which goods are represented may bear upon whether or not the representations are misleading (as Allsop CJ explained in Coles Supermarkets). In any event, this issue was not the subject of developed argument in the absence of which it would be undesirable to decide the point of principle.

89    Rather, the ACCC submitted that the evidence, even if admitted, falls well short of establishing the contextual matters on which Birubi seeks to rely. Further and in any event, the ACCC submitted that neither the range of locations at which the Products were sold, nor their price, would alter the impression which an the reasonable member would gain from the Products and their packaging, namely, that the Products were hand painted or handmade by an Australian Aboriginal person in Australia. For reasons I later explain, I accept those submissions in relation to context.

90    First, Birubi submitted that the evidence established that, within the five retail outlets photographed (and by inference, other outlets where the Products were sold), there were goods claiming expressly to be Australian made, including products displaying the “Australian made” logo. It further submitted that the reason why these stickers and the logo were used was to distinguish between those products which were Australian made and those which were not, and that, in so doing, products making those express representations gained a competitive advantage. Equally, Birubi submitted that there were also products expressly representing that they were made or painted by Aboriginal people which would also thereby have a competitive advantage. As a result, Birubi submitted that a prospective purchaser at an Outlet would be exposed to products that expressly make such claims and products, such as those in question here, which do not. In that context, Birubi submitted that it is highly unlikely that the reasonable member would consider that the Products, which do not make any express claim that they were made in Australia, or that they were made or hand painted by an Australian Aboriginal person, were nonetheless made in Australia and/or were made or painted by an Australian Aboriginal person. Further, Birubi submitted that, if a consumer is not led by the product, labelling and context to conclude that the Product is made in Australia, then that consumer would be unlikely to draw any conclusion as to the ethnicity of the person who made the product.

91    I accept that if the ordinary member of the class could not reasonably conclude that the product was made in Australia, it is unlikely that the reasonable member could nonetheless infer that the product was made or hand painted by an Australian Aboriginal person; indeed that possibility is in my view remote. However, I agree with the ACCC that the presence or absence of express claims on other products displayed in the same outlets to have been made in Australia is not inconsistent with the representation that the Products were made in Australia being implied, especially given the prominence afforded to the word “Australia” on the Products or in the case of the message stones, on the packaging (as I later explain). I also accept that the presence or absence of express claims on other products displayed in the same outlets to have been hand painted, or made, by an Australian Aboriginal person would not negate an inference which the ordinary member of the class may reasonably draw that the Products were hand painted by an Australian Aboriginal person.

92    Secondly, Birubi submitted that a reasonable member of the class would be unlikely to conclude that the Products were painted by anyone in particular, or manufactured in any particular way, in circumstances where the Products are sold in a retail environment where multiple instances of the one product are on display. Birubi submitted that this feature of the Products’ display would suggest that they were mass-produced. This conclusion was said to be all the more likely given the express representation that “royalties are paid” in the case of the Trisha Mason Products, making it clear that they are reproductions and not “one off” originals. Specifically, Birubi submitted that:

35. … Because the Boomerangs, again like the other Birubi products, are relatively inexpensive and are sold alongside much more expensive items, they are unlikely to be regarded as authentic in the sense that each one is individually painted by an Aboriginal person. The Outlets commonly carry both inexpensive keepsakes and more expensive, authentic artworks. The Reasonable Member, seeing the range of things available, is unlikely without express representations, to conclude that comparatively inexpensive items, obviously mass-produced, have aspects of authenticity such as being hand painted by a person of a particular ethnicity.

36. If matters of authenticity were important, the obvious disparity in price would likely lead the Reasonable Member to inquire as to the reasons for that disparity. That enquiry would likely reveal that the more expensive product was a one-off product actually made by an Aboriginal person, that being the basis upon which the higher price is demanded.

93    I note that there was no evidence that the Outlets were aware that the Products were manufactured in Indonesia.

94    Equally, Birubi submits that the reasonable member would be aware that the mere reference to “Australia” on the Products (or in the case of the message stones, on the packaging) does not necessarily mean that they were made in Australia. Relying again upon the retail setting as conveying that the Products are mass-produced and comparatively inexpensive when assessed against Australian made products, Birubi submits that the reasonable member would be unlikely to conclude that the Products were made in Australia given “[t]he common experience of the modern retail environment… that mass-produced, inexpensive reproductions are often manufactured overseas.”

95    However, in my view, statements on the labels and packaging of the Products that they are hand painted, handmade, and/or hand crafted, is likely to negate any implication that they are mass-produced to the reasonable member. Furthermore, in the context of an object of Aboriginal cultural significance, the reasonable member would infer that the reason why hand painted, handmade and/or hand crafted are considered to be features worthy of prominence is because the Product was hand painted, handmade or crafted by an Aboriginal person, thereby enhancing its cultural value and attractiveness to consumers.

96    Moreover, the evidence is insufficient to establish the proposition that the Products are relatively inexpensive as against those other products in the Outlets which expressly state that they are Australian made (including those bearing the “Australian Made” logo) and/or hand painted, or made, by Australian Aboriginal persons. It is also insufficient to establish that the retail setting in which the Products were presented for sale and which encompassed many and varied outlets would have indicated that the Products were mass-produced.

97    In this regard, evidence was led of photographs taken by Mr Moore of only a very small number of the many retail outlets across Australia where the Products (and other Birubi products) were supplied for sale, and of a small range only of prices of other products within those outlets. Moreover, as earlier mentioned, Mr Wooster gave evidence that he had no control over the pricing of Birubi products by retail outlets to which they were supplied, how they were displayed and other products that they were displayed with. Furthermore, despite his evidence that he regularly visited retail outlets stocking his product lines and would observe how the outlets presented his product lines during those visits, Mr Wooster did not give evidence about the pricing of the Products as against other products in the various retail outlets, or how they and other products were displayed. It follows that Birubi failed to lead evidence in chief (by affidavit or, with leave, orally) on a topic on which Mr Wooster could have been expected give direct evidence. In these circumstances, the inferences that Birubi seeks to draw as to the price placement of the Products vis a vis other products across the range of Outlets during the relevant time, and as to the manner in which they were displayed as at that time, should not be drawn: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 (Handley JA) at 418.

98    Further and in any event, the evidence that was provided would have been insufficient to establish that a prospective purchaser may regard the pricing of the Products vis a vis other products as suggesting that the Products were not hand painted, or made, by an Aboriginal person and/or not made in Australia. There was no evidence of the price of the vast majority of the products portrayed in the photographs taken at the five outlets of which evidence was led. Further, where there was evidence as to the price of other products, there was no obvious pattern which emerged establishing the price differential which Birubi said would have been apparent to a prospective purchaser. The examples given in the table below suffice to illustrate the difficulty.

99    Thus, even with respect to the most expensive of the didgeridoos photographed by Mr Moore, there was no evidence that those products bore “Made in Australia” logo or stickers, or express representations that they were hand painted, or made, by an Aboriginal person.

100    It follows that there was nothing about the prices of the sample Products which ranged between $9.99 to $35.00 (as set out at [32] above) which might have alerted the ordinary purchaser acting reasonably to the fact that the Products were not made in Australia or hand painted, or made, by an Australian Aboriginal person, or ought to have prompted the reasonable member to make further inquiries about the provenance and means of production, as submitted by Birubi. Nor is this a case concerning expensive products selling for several hundred or thousand dollars, where it may well be reasonable to expect a prospective purchaser to make inquiries about the provenance and authenticity of the objects (cf Parkdale at 209).

101    For these reasons, I consider that the evidence is insufficient to establish that relative pricing or other aspects of the retail setting on which Birubi relies may have impacted upon the inferences which a member of the class acting reasonably might have drawn about the Products. The question is therefore whether a member of the class acting reasonably is “likely” or “liable” to have been misled in the respects alleged by reference to the products themselves, including their labelling and (where relevant) their packaging. This question in turn must be addressed having regard to each of the Products in turn.

6.    THE TRISHA MASON PRODUCTS

6.1    The loose boomerangs

6.1.1    The loose boomerang and representations made, and artwork and images reproduced, on the product and its labelling

102    The product codes for the loose boomerangs were BOAN06, BOAN08, BOAN10, BOAN12, BOAN14, BOAN16, BOAN18, BOAN20, and BOAN22. The sample Product which was purchased by the ACCC and is depicted below is the loose boomerang, product code BOAN08.

103    The front of the sample loose boomerang presented as follows:

104    The rear of the sample loose boomerang bore the word “AUSTRALIA” and labels were affixed as shown below:

6.1.2    Birubi’s submissions based upon express representations made on the loose boomerangs

105    Birubi submits that the fact that the label on the sample loose boomerang states that “Art featured is from originals by Australian Aboriginal artist Trisha Mason” plainly identifies the product as a reproduction, rather than an original piece of art or craftsmanship. That being so, Birubi contends that an ordinary member of the class would not reasonably assume that the reproduction was painted by a person of any particular ethnicity. This conclusion is reinforced, in Birubi’s submission, by the statement on the label that “[r]oyalties are paid”. This is because the concept of royalties is commonly understood and, Birubi submits, it can therefore be inferred that it is a concept which the reasonable member would be familiar with and would understand the implications thereof. Thus in Birubi’s submission:

…People such as the Reasonable Member understand that a singer will be paid a royalty even though she has not personally manufactured the CD on which the song is recorded. People understand that an artist will be paid a royalty even though he may not have had a hand in the reproduction of his artwork.

106    Birubi also argues that, because royalties are commonly paid when copies of original artwork are reproduced and sold, the representation that the product is a reproduction draws attention to the importance of the original artwork, as opposed to the method by which it is reproduced, and tends against any suggestion that the reasonable member would infer that the loose boomerang was hand painted by an Australian Aboriginal person. Birubi also submits that the statement on the label that it “[s]upports and promotes ethical dealings with Aboriginal people” would be read in the context of the statement that “[r]oyalties are paid” and “[a]rt featured is from originals…” and reassure the potential purchaser that the artist, Ms Mason, is receiving appropriate remuneration.

6.1.3    Findings as to representations allegedly conveyed by the loose boomerangs

107    I accept that members of the class may well interpret the label in the manner submitted by Birubi. Moreover, given the matters relied upon by Birubi summarised at [105]-[106] above, I am not persuaded on the balance of probabilities that the ordinary member of the class would reasonably be misled into thinking that the loose boomerang was hand painted, by an Aboriginal person; that it was made by an Aboriginal person. As to the latter, I have also taken into account that nothing on the sample loose boomerang or its labelling states or suggests that it was made by an Aboriginal person. However, while this means that the ACCC has failed to establish a breach of s 33 of the ACL to this extent, this does not dispose of the question of whether there has been a breach of ss 18 and 29 by the implied representations.

108    It will be recalled that it suffices to establish a breach of s 18 and subs 29(1)(a) if there is a real, but not remote, risk that a member of the class acting reasonably would be misled. I do not consider that the factors explained at [105]-[106] above suffice to dispel the real risk that a reasonable purchaser may infer from the loose boomerang and its labelling that it is made in Australia and is hand painted by an Australian Aboriginal person.

109    First, integral to the impression which the loose boomerang conveys is the fact that a boomerang is readily recognisable as a traditional Australian Aboriginal cultural object. Equally significant is the fact that the artwork and designs on the loose boomerang feature visual images, symbols and styles recognised as being characteristic of Australian Aboriginal art as painted by Australian Aboriginal artists. The loose boomerang and its artwork would thereby tend naturally to suggest an association between Australian Aboriginal people and the production of the item, and therefore also with Australia.

110    Secondly, the label affixed to the back of the loose boomerang represented in clear and prominent lettering “HAND PAINTED”.

111    Thirdly, the word “AUSTRALIA” in large lettering is painted (it would appear) onto the back of the loose boomerang itself.

112    In the fourth place, the label also:

(1)    stated in large capital lettering that “Art featured is from originals by Australian Aboriginal Artist Trisha Mason”;

(4)    stated directly above this statement that “Birubi Art Pty Ltd supports and promotes ethical dealings with Aboriginal people”; and

(5)    reproduced an image of a man playing a didgeridoo which is a well-known traditional Aboriginal cultural activity.

113    In the fifth place, there is nothing inherent in the loose boomerang which indicates that it is mass-produced. To the contrary it states, as mentioned, that it is hand painted and presents as such with the designs (particularly the dot pattern) on the front of the sample loose boomerang and the word “AUSTRALIA” on the back of the loose boomerang being slightly raised and uneven.

114    Finally, there is nothing on the loose boomerang or its labelling which identified it as having been made in Indonesia.

115    Viewed together, these characteristics of the loose boomerang convey a connection with Aboriginal Australian culture and an impression of authenticity and provenance such that there is a real, and not remote, risk that a member of the class acting reasonably would be misled into thinking that the loose boomerang was made in Australia and was hand painted by an Australian Aboriginal person.

116    In this regard, as I have earlier found, I do not consider that an ordinary member of the class would have a sophisticated understanding of Aboriginal art, culture or designs. International visitors in particular may be accepted to have a relatively low degree of familiarity with Aboriginal art and culture. However, contrary to the submission by Birubi, this does not mean that such a person would be “unfamiliar with those symbols and artwork” and therefore unable to draw any meaning from them. Rather, in line with my earlier findings as to the composition of the class, it can be inferred that prospective purchasers, whether international or Australian, would be attracted to the loose boomerangs precisely because they recognise the cultural association between the object, and the art, designs and symbols used, on the one hand, and Australian Aboriginal people and culture, on the other hand.

117    Moreover, in the context of a low cost item such as the loose boomerang which would typically be purchased as a momento, souvenir or small gift, I consider that it is perfectly reasonable for a member of the class of potential purchasers to rely upon the dominant message implicitly conveyed by the Product and its labelling. The significance of the purchase, in other words, does not suggest that a member of the class acting reasonably should undertake a close intellectual analysis of what explicit representations are made and what is not expressly said, and/or make further inquiries.

6.2    The boxed boomerangs

6.2.1    The boxed boomerang and representations made, and artwork and images reproduced, on the product and its labelling

118    The product codes for boxed boomerangs were as follows BBC06, BBC08, BBC10, BBC12 and BBC14. The sample Product which was purchased by the ACCC and is depicted below is the boxed boomerang product code BBC08 (incorrectly referred to as BOAN08 in Schedule 1 to the amended Concise Statement).

119    The boxed boomerang and stand was presented in its packaging as follows:

120    The labels on the left and right hand sides were respectively as follows:

121    The words “AUSTRALIA” appeared on the back of the boxed boomerang as reproduced below:

122    Additional labels were attached to the back of the box as follows:

123    The large label is as follows:

124    For clarity, the last label reads (contact details omitted):

BIRUBI ART Pty Ltd

100% Australian owned

Suppliers of quality Australian souvenirs, genuine Aboriginal art, and the exclusive worldwide licensee for Aboriginal flag products. Birubi Art supports and promotes ethical dealings with all Aboriginal people.

Trisha Mason

A highly awarded Aboriginal artist, Trisha Mason is a descendent of the Kamilaroi tribe of eastern Australia. Trisha’s artwork reflects her love of her Aboriginal culture and ancestry. Trisha’s artwork is faithfully reproduced from originals onto a variety of quality products.

Royalties are paid.

6.2.2    Findings as to the representations allegedly conveyed by the boxed boomerangs

125    In my view the boxed boomerang, plaque on the stand, labelling and packaging would implicitly convey to the reasonable member the false and misleading representations that it is made in Australia and is hand painted by an Australian Aboriginal person. If it were necessary, I would also have found that the Made by an Aboriginal person representation (being the ACCC’s alternative submission to the Hand Painted by an Aboriginal person representation) was established.

126    First, for the reasons earlier given at [108], the boxed boomerang and its artwork is immediately recognisable as a characteristically Aboriginal object decorated with characteristically Aboriginal artwork. As such, it naturally tends to suggest a relationship between Australian Aboriginal people and the production of the item.

127    Secondly, there are a number of features which convey, even more strongly than the loose boomerangs, a connection with Aboriginal Australian culture and an impression of authenticity and provenance such that it is probable (i.e. more than 50%) that a member of the class acting reasonably would be misled into thinking that the boxed boomerang was hand painted by an Australian Aboriginal person.

(1)    The stand on which the boomerang is intended to be displayed bears a plaque reading “handcrafted Australian boomerang”. The plaque and the words written on it are readily visible through the clear plastic cover on the box.

(2)    The first label affixed to the front of the plastic cover on the boxed states “[a]uthentic Aboriginal art”, while the large label on the back of the box emphasises that Birubi is “100% Australian owned” and is a supplier of “quality Australian souvenirs, genuine Aboriginal art…”.

(3)    The second label affixed to the front of the plastic cover states that:

BIRUBI ART

SUPPORTS AND PROMOTES ETHICAL DEALINGS WITH ALL ABORIGINAL PEOPLE

HAND MADE

ROYALTIES ARE PAID

Again therefore the emphasis is placed upon the item being “hand made”. Further, this description of the object follows immediately after the references to ethical dealings with all Aboriginal people thereby strongly suggesting a link between the item’s manufacture and Aboriginal people. This impression is further reinforced by the depiction on the same label of a person playing a didgeridoo, being a widely recognised instrument traditionally played by Australian Aboriginal people.

(4)    The impression that the boxed boomerang is painted by (and made by) an Australian Aboriginal person is also strongly reinforced by the labels on the back of the box. Thus one label on the back chooses for emphasis to state only the words “100% hand painted” – a feature which the reasonable member would readily assume was emphasised because it increased the cultural value of the boxed boomerang. This assumption is even more likely in the context of the statements on the first two labels and the plaque on the boomerang’s stand.

(5)    Furthermore, unlike the loose boomerangs, there is no reference on any of the labels to the fact that the art featured on the boomerang is from originals by the Aboriginal artist, Ms Mason. Rather, as the ACCC submits, the large label on the back of the box is expressed as a general statement about Ms Mason’s artwork and products featuring her artwork, rather than specifically referring to the boxed boomerangs, and again emphasises that Birubi supports and promotes ethical dealings with all Aboriginal people.

(6)    The back of the boomerang itself depicts only the word “Australia”. The fact that the boomerang was made in Indonesia is not disclosed. In this respect I note that consumers purchasing the boxed boomerang would not see the word “Australia” unless they opened the box to inspect the object. However, it is an understandable and natural action for a prospective purchaser to want to inspect the object itself, and it can reasonably be supposed that they may do so.

(7)    Again, as in the case of the loose boomerang, nothing indicates that the boxed boomerang is mass-produced. The representations conveyed by its labelling to which I have referred strongly suggests rather that it is hand crafted and hand painted, as does the style in which the word “Australia” is written which is suggestive of hand writing and the slightly raised and uneven texture of the painted parts of the boomerang.

128    In my view, having regard to these features, the overwhelming impression conveyed to the reasonable member by the object, images, and representations made on the boomerang, its stand and its packaging is that the boxed boomerang was made in Australia and was hand painted by an Aboriginal person. Furthermore, even if the reasonable member of the class inferred from the large label on the back and the reference to “royalties” on one of the front labels that the art on the boomerang was a reproduction from original art by an Aboriginal artist, the impression that the boxed boomerang was nonetheless hand painted by an Aboriginal person, and is “authentic” and “genuine” in this sense is so compelling that a member of the class is “likely”, and indeed “liable”, to be misled into thinking that the reproduction was hand painted by a person of Australian Aboriginal ethnicity.

6.3    The Bullroarers

6.3.1    The bullroarer and representations made, and artwork and images reproduced, on the product and its packaging and labelling

129    The product codes for the bullroarers are BRBT06 and BRBT08. The sample Product, which was purchased by the ACCC and is depicted below, is the bullroarer product code BRBT06.

130    The front of the sample bullroarer in its box presented as follows:

131    A closeup of the label on the front of the box reads:

132    The front of the bullroarer appears as follows:

133    The word “Australia” is painted on the back of the bullroarer:

134    The bullroarer also included a stand and labels affixed to the rear of the box:

135    A closeup of the rear of the box is as follows:

136    The text of the large label on the back of the box reads as follows (contact details omitted):

Bullroarer

Used by Australian Aboriginals as a form of communication and an instrument for initiation ceremonies. When spun on the end of a string, it can produce a loud roaring sound which carries over a long distance. To some Australian Aboriginals, the sound is the voice of a great ancestral spirit. It is also referred to as the “Bush telephone”

Trisha Mason

A highly awarded Aboriginal artist, Trisha Mason is a descendent of the Kamilaroi tribe of eastern Australia. Trisha’s artwork reflects her love of her Aboriginal culture and ancestry. Trisha’s artwork is faithfully reproduced from originals onto a variety of quality products. Royalties are paid.

BIRUBI ART PTY LTD

100% Australian owned

Suppliers of quality Australian souvenirs, genuine Aboriginal art, and the exclusive worldwide licensee for Aboriginal flag products. Birubi Art supports and promotes ethical dealings with all Aboriginal people.

6.3.2    Findings as to the representations allegedly conveyed by the bullroarers

137    The label on the front of the box for the bullroarers states that “Art featured is from originals by Australian Aboriginal artist Trisha Mason” and that “ROYALTIES ARE PAID”. Further generic details are given on the large label on the back of the box about Ms Mason’s Aboriginal heritage, and the connection between her artwork, on the one hand, and Aboriginal culture and her ancestry, on the other hand. The large label on the back of the box also reinforces the message on the front of the box that the artwork is a reproduction, referring generally to the fact that Ms Mason’s artwork “is faithfully reproduced from originals onto a variety of quality products”, repeating the reference to royalties, and referring to Birubi’s support and promotion of ethical dealings with all Aboriginal people. Based upon these matters, Birubi submitted that, as in the case of the loose boomerang, the reasonable member would be aware that the artwork on the bullroarer was a reproduction and as a result there was no real risk that she or he would infer that the artwork was hand painted or handmade by a person of Aboriginal ethnicity.

138    As in the case of the loose boomerangs, these features lead me to conclude that the ACCC has not established that it is more probable than not that a reasonable member of the class would be misled into thinking that the bullroarer was hand painted or handmade by an Australian Aboriginal person. However, in my view the bullroarer has a number of features which together are likely (in the sense of there being a real risk) to convey to a reasonable member of the class that the bullroarer was made in Australia and was hand painted by an Australian Aboriginal person.

139    First, bullroarers are perhaps less well known as a traditional Aboriginal object than boomerangs and didgeridoos, particularly to international visitors. However, the artwork appearing on the bullroarer is immediately recognisable as characteristically Australian Aboriginal artwork and the label on the back of the box explains in some detail the author’s understanding of the cultural significance of bullroarers to Aboriginal Australians. As a result, there is again a natural tendency to assume a relationship between Aboriginal people and the production of the item.

140    Secondly, Ms Mason is identified on the front label as an “Australian Aboriginal artist” and the word “Australia” appears on the front label under the reference to Birubi Art. These statements imply that this traditional Aboriginal object is made in Australia, as does the prominence given to the word “Australia” painted on the back of the bullroarer itself. In this respect I note that consumers purchasing the bullroarer would not see the word “Australia” unless they opened the box to inspect the bullroarer which a prospective purchaser may well do. In any event, there was evidence before me that the bullroarers were removed from their packaging by retailers, making that word visible to potential purchasers examining the product. Nor is there any statement explaining that the object was in fact produced in Indonesia.

141    Thirdly, the large label on the back of the box emphasises in a generic statement that Birubi is “100% Australian owned” and is a supplier of “quality Australian souvenirs, genuine Aboriginal art…” The fact that the bullroarer falls into this higher category of Birubi products is reinforced by the fact that it comes with a stand so that it can be displayed by the purchaser, albeit that the stand does not bear a plaque. While the evidence of pricing was limited and was not within Birubi’s control, I also note that this label is consistent with the fact that the bullroarer was the most expensive of the Products followed by the boxed boomerang which was also sold with a stand.

142    In the fourth place, the impression that the bullroarer is hand painted by an Aboriginal person is suggested by the fact that one of the two labels on the back of the box states “100% hand painted”. There was a real risk that a reasonable member of the class would tend to assume this is a feature emphasised because it increased the cultural value of the bullroarer, even though the prominence given to the fact that the item was a reproduction means that I do not consider that it is probable that the reasonable member would infer this, in contrast to the position with respect to the boxed boomerang.

143    Finally, as in the case of the other Products, nothing indicates that the bullroarer is mass-produced. Any such inference would be rebutted by the label identifying that the object is “100% hand painted”. That the object is hand painted is also reinforced by the fact that the word “Australia” is written in an uneven manner suggestive of hand writing and the slightly raised and uneven texture of the painted parts of the bullroarer.

144    In my view, having regard to these features, the impression conveyed by the object, images, and representations made on the bullroarer, its stand and its packaging is that the bullroarer was made in Australia and was hand painted (and handmade) by an Aboriginal person. Furthermore, even if the reasonable member inferred from the large label on the back and the reference to “royalties” on one of the front labels that the art on the bullroarer was a reproduction from original art by an Aboriginal artist, the impression remains that the bullroarer was nonetheless hand painted by an Aboriginal person, and is “authentic” and “genuine” in this sense. Thus in my view the reasonable member is “likely” in the sense of a real risk, but not “liable” in the sense of a more than 50% probability, to be misled into thinking that the reproduction was hand painted by a person of Australian Aboriginal ethnicity and made in Australia.

7.    THE DIDGERIDOOS

7.1    The bamboo didgeridoo and representations made, and images and designs painted, on the bamboo didgeridoo and its labelling

145    The product codes for the bamboo digeridoos were DIBP03, DIBP04, DIBP05, DIBB40 and DITB40. The sample Product which was purchased by the ACCC and is depicted below is the bamboo didgeridoo product code DITB40.

146    The bamboo didgeridoo was painted with designs and symbols and a label was tied onto it as depicted below:

147    The word “AUSTRALIA” was painted onto the bamboo didgeridoo as follows:

148    The front of the label tied to the bamboo didgeridoo was as follows:

149    The rear of the label tied to the bamboo didgeridoo was as depicted below:

150    For clarity the front of the label read:

BIRUBI ART PTY LTD

[image of a person playing a didgeridoo]

Aboriginal artwork is the written language of the Australian Aboriginal people developed and passed on through the generations spanning over 50,000 years of Aboriginal culture. The artworks depicted on this artifact [sic] signify the Aboriginal peoples [sic] relationship with the land and their ancestral spirits. This piece has been individually hand crafted and painted.

151    The rear of the label read (omitting contact details in Australia):

Exclusively by:

BIRUBI ART PTY LTD

“BIRUBI” is an Aboriginal word meaning “Southern Cross”, wich [sic] is a constellation of stars, and culturally important to all Australians. Birubi Art Pty Ltd is a wholly Australian owned company specialising in hand painted Aboriginal artifacts, [sic] canvas originals, and Aboriginal flag items.

Traditional and Contemporary Aboriginal artwork depicts the culture and dreamings of the Aboriginal people over the last 50,000 years. Theses stories or dreamings feature numerous artwork styles, each one influenced by geographic tribal location and Aborigina [sic] beliefs, passed down by elders over many genrations [sic].

The colours of the Aboriginal flag represent black for the Aboriginal people, red for the earth, ochre as used in ceremonies and yellow to symbolise the sun, the constan [sic] renewal of life.

7.2    Findings as to representations allegedly conveyed by the bamboo digeridoo

152    In my view the bamboo didgeridoo and its labelling considered together would implicitly convey to the reasonable member the false and misleading representations that it is made in Australia and is hand painted by an Aboriginal person. While, given this conclusion, it is unnecessary to decide, I would have found in any event that the Made by an Aboriginal person representation (being the ACCC’s alternative submission to the Hand Painted by an Aboriginal person representation) was implicitly made.

153    As in the case of the boxed and loose boomerangs, a reasonable member would immediately recognise the didgeridoo as a traditional Aboriginal cultural object, and that this product has been decorated with characteristically Aboriginal artwork or designs. The object therefore by its nature tends to suggest a relationship between Australian Aboriginal people and its production, and therefore that it was made in Australia. That impression would be confirmed in the mind of an ordinary reasonable member of the class by the fact that the word “AUSTRALIA” appears prominently on the didgeridoo in a manner suggestive of handwriting, the absence of any reference to the didgeridoo being made in Indonesia, and the label. Thus the front of the label attached to the didgeridoo is decorated with the image of a person playing a didgeridoo, being (as I have said), a traditional Aboriginal cultural activity, and explains the author’s understanding of the cultural significance of Aboriginal artwork, before describing the didgeridoo as “individually hand crafted and painted.” In this context, a reasonable member of the class would almost certainly infer that the didgeridoo was “individually hand crafted and painted” by an Aboriginal person in Australia and therefore that the description of how it was produced was intended to enhance its cultural value and attractiveness to potential purchasers. The writing on the rear of the label further strengthens that impression. It explains first the Aboriginal origins and meaning of the name “Birubi”, referring to Birubi as “a wholly Australian owned company specialising in hand painted Aboriginal artifacts, [sic] canvas originals, and Aboriginal flag items.” Secondly, it describes the author’s understanding of the significance of Aboriginal dreamings in traditional and contemporary Aboriginal artwork, before setting out the author’s explanation for the colours of the Aboriginal flag. Finally, unlike the Trisha Mason Products, there is no reference on the didgeridoo or its label (generically or specifically) to artwork or designs being a reproduction of an original and/or that royalties are paid.

154    In my view, having regard to these features as a whole, the overwhelming impression conveyed to the reasonable member of the class by the bamboo didgeridoo, together with the images and representations made on the label, is that it was made in Australia and was hand painted (and handmade) by an Aboriginal person. This dominant message is so compelling that I consider that a member of the class is not merely “likely” (in the sense of a real risk for the purposes of ss 18 and 29), but “liable” (in the sense of a greater than 50% probability for the purposes of s 33) to be misled into thinking that the reproduction was hand painted by a person of Aboriginal ethnicity in Australia. I do not consider that the fact that the bamboo didgeridoo was purchased by the ACCC for only $9.99 (even assuming this was representative generally of the pricing of a bamboo didgeridoo in this product line and code) would disabuse a reasonable member of the class of this impression, or lead her or him to make inquiries. This is particularly the case given that the designs on the bamboo didgeridoo are basic and simple, the object itself is unfinished on the inside and fairly obviously a cut segment of bamboo, and is only 40cm long. The didgeridoo is not a carefully crafted object decorated with intricate designs or artwork which the reasonable purchaser might have inferred would have taken a great deal of time to make.

8.    THE MESSAGE STONES

8.1    The message stone and representations made, and the symbol and design painted, on the message stone and its labelling

155    The product codes for the message stones were MEST01 through to MEST17. The sample Product which was purchased by the ACCC and is depicted below is the message stone product code MEST17.

156    The message stone was painted with a design and symbol and presented in its packaging as follows:

157    The rear of the package is depicted in the photograph below:

158    The words on the label on the back of the packet are:

8.2    Findings as to representations allegedly conveyed by the message stone

159    First, message stones are less well known as a traditional Aboriginal object than boomerangs and didgeridoos, particularly by international visitors. However, the symbol appearing on the message stone is likely to be recognised as characteristic of Australian Aboriginal symbols in a generic sense. Furthermore, the card inside the packet (the insert) explains that “[t]he message stone has been part of Aboriginal life since the Dreamtime” and describes it as being “hand painted” with an “Australian Aboriginal symbol” meaning “TOGETHERNESS”. The label on the top of the packet also prominently states “ABORIGINAL ART” and “HAND PAINTED” from which the reasonable member is likely to infer that the message stone was hand painted by an Aboriginal person, as well as having been made in Australia. These inferences are reinforced by the reference to “AUSTRALIA” below “Birubi” on the front label, the absence of any reference to the message stone being produced in Indonesia, and the emphasis on the back of the insert to the fact that Birubi is a “100% AUSTRALIAN OWNED COMPANY”. Nor, if the reasonable member read the small lettering underneath this description of Birubi on the back of the insert, would she or he be disabused of these key messages. This lettering reads:

Supports and promotes ethical dealings with Aboriginal people.

Sole world wide license holder for Aboriginal flag products.

160    As such, this small lettering (which I consider the reasonable member may well read, as there is only a small amount of information about the product provided) tends to reinforce the key message that the message stone is hand painted by an Aboriginal person and is made in Australia. In particular, even though there is no representation that the symbol is a reproduction of an original by an Australian Aboriginal artist, the reasonable member would, in my view, infer from this statement that the message stone was produced in the course of such ethical dealings with Australia Aboriginal people. Yet it will be recalled that the symbol was obtained by Mr Wooster from the internet (see above at [44]).

161    That said, in my view a reasonable member of the class would infer that the message stone was mass-produced from the method of its packaging and the inclusion of an apparently standard insert explaining the symbol on the stone. Furthermore, the message stone was purchased by the ACCC from NT Souvenirs for only $9.95. Despite the inadequacy of the evidence generally as the pricing of the Products in the Outlets, it is fair to assume in Birubi’s favour from the nature of the object and its packaging that it was likely to be marketed as a cheap souvenir or momento by the Outlets (as Mr Wooster explained in his evidence). However, in light of the emphasis given to the message stone being “hand painted” and the references to Aboriginal culture and art, I do not consider that these other features relating to the product detract from the key message implicitly conveyed to the reasonable member that the message stone was hand painted by an Aboriginal person and made in Australia. The message stone appears to be a smooth stone of a kind that is commonly found in a river bed or on the beach, the design on the front of the stone is very simple, and the back (which can easily be checked in the package) is unpainted. This is not an object which a reasonable member of the class might infer had taken much time to make and therefore have inferred that it would have been more expensive if it had been made by an Aboriginal person and was authentic in this sense.

162    As such, I consider that it is not only “likely” (in the sense of a real risk for the purposes of ss 18 and 29), but “liable” (in the sense of a greater than 50% probability for the purposes of s 33) that a reasonable member of the class would be misled into thinking that the message stone was hand painted by a person of Aboriginal ethnicity. I also consider that it is likely that such a person would infer that the message stone was made in Australia.

9.    CONCLUSION

163    For the reasons given above including the matters conceded by Birubi (as set out in particular at [7]-[11] and [33] above), in my view Birubi, by representing in trade and commerce during the relevant period to consumers that the loose boomerangs, boxed boomerangs, bullroarers, didgeridoos and message stones were hand painted by Australian Aboriginal persons, engaged in misleading or deceptive conduct in breach of s 18 and subs 29(1)(a) of the ACL. As to the latter, the implied representation that the Products were hand painted by Australian Aboriginal persons was a false or misleading representation that they were of a particular style or had a particular history. I also consider that Birubi engaged in conduct that was “liable” (in the sense of more likely than not) to mislead the public into inferring that the boxed boomerangs, didgeridoos and message stones were hand painted by Australian Aboriginal persons in contravention of s 33 of the ACL, but do not consider that any breach of s 33 with respect to the loose boomerangs and bullroarers has been established.

164    Furthermore, during the relevant period, by representing to consumers that the loose boomerangs, boxed boomerangs, bullroarers, didgeridoos and message stones were made in Australia, Birubi, in trade or commerce, engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18 of the ACL; and made false or misleading representations concerning the place of origin of goods in connection with the supply or possible supply of goods, or the promotion of the supply of goods, in contravention of subs 29(1)(k) of the ACL.

165    As requested by Birubi, I will afford the parties the opportunity to be heard as to the terms of the declaratory relief to be awarded.

Associate:

Dated:    23 October 2018