Australian Competition and Consumer Commission v Nooravi [2008] FCA 2021 (29 August 2008)

Last Updated: 9 March 2009

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Nooravi [2008] FCA 2021

Trade Practices Act 1974 (Cth) s 52

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v FARZAD NOORAVI and HOMA NOORAVI
QUD215 of 2008

LOGAN J
29 AUGUST 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD215 of 2008

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	FARZAD NOORAVI First Respondent HOMA NOORAVI Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	29 AUGUST 2008
WHERE MADE:	BRISBANE

THE COURT DECLARES THAT:

1. Each of the First and Second Respondents, by representing on their website and from their galleries in Queensland that the products they offered for sale, including products for sale for delivery interstate and overseas, which products included, inter alia, boomerangs, didgeridoos, bull roarers, clapsticks, swords, shields, fire makers, spear throwers, painted wooden swords, painted wooden shields, painted ceramics and paintings (collectively "artworks") were "Aboriginal Art" or "Aboriginal Artefacts" when in fact some of the said items were not painted or created by persons of Aboriginal descent has:
   • 1.1 in trade or commerce involving the use of telephonic services; and
   • 1.2 in trade or commerce between Australia and places outside Australia, among the States or between a State and a Territory,

engaged in conduct which is misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the Trade Practices Act 1974 (Cth) (the Act).

2. Each of the First and Second Respondents, by representing that certain artists whose work they offered for sale on their website and in their galleries in Queensland, including for delivery interstate and overseas, were of Aboriginal descent when in fact the said artists were not of Aboriginal descent has
   • 2.1 in trade or commerce involving the use of telephonic services; and
   • 2.2 in trade or commerce between Australia and places outside Australia, among the States or between a State and a Territory,

engaged in conduct which is misleading or deceptive or likely to mislead or deceive, in contravention of s 52 of the Act.

3. Each of the First and Second Respondents, by affixing cards which bear the words "Certificate of Authenticity of Original Aboriginal Art" to certain artworks offered for sale in their galleries in Queensland for delivery interstate and overseas, which were painted by persons who were not of Aboriginal descent has, in trade or commerce between Australia and places outside Australia, among the States or between a State and a Territory, engaged in conduct which is misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the Act.
   

THE COURT ORDERS THAT:

4. Each of the Respondents be restrained, for a period of 5 years, in trade or commerce:
   • 4.1 involving the use of postal, telegraphic or telephonic services; or
   • 4.2 between Australia and places outside Australia, among the States or between a State and a Territory,

whether by themselves or by their servants or agents or otherwise howsoever, from:

4.3 describing or referring to products as "Aboriginal Art" or "Aboriginal Artefacts"; or
4.4 using the words "Aboriginal Art" on any certificate, label, artist profile or other advertising material supplied or displayed with or in relation to any product; or
4.5 in relation to any product featuring Aboriginal style designs or motifs, describe that product as "authentic", "genuine" or "traditional"; or
4.6 otherwise representing that a product was painted, crafted, decorated or otherwise produced by a person of Aboriginal descent;

unless the said Respondent reasonably believes that the said product was painted, crafted, decorated or otherwise produced as the case may be by a person of Aboriginal descent and the said respondent has sought and obtained from the person who painted, crafted, decorated or otherwise produced the product as the case may be a statement that the person is of Aboriginal descent.

5. Each of the Respondents be restrained, for a period of 5 years, in trade or commerce:
   • 5.1 involving the use of postal, telegraphic or telephonic services; or
   • 5.2 between Australia and places outside Australia, among the States or between a State and a Territory,

whether by themselves or by their servants or agents or otherwise howsoever, from representing that a person is of Aboriginal descent, unless the Respondent reasonably believes that the person is of Aboriginal descent and the said Respondent has sought and obtained a statement from that person that the person is of Aboriginal descent.

6. Each of the Respondents be restrained, for a period of 5 years, in trade or commerce:
   • 6.1 involving the use of postal, telegraphic or telephonic services; or
   • 6.2 between Australia and places outside Australia, among the States or between a State and a Territory,

whether by themselves or by their servants or agents or otherwise howsoever, from representing that a person has a tribal name, unless the Respondent reasonably believes that the person has and uses the tribal name and:

6.3 the Respondent reasonably believes that the person is of Aboriginal descent and the said Respondent has sought and obtained a statement from that person that the person is of Aboriginal descent; or
6.4 if the person is not of Aboriginal descent, the use of the tribal name is clearly qualified by a prominent statement to the effect that the person is not of Aboriginal descent.

7. The Respondents, within 28 days of this order, send a letter on their letterhead in the form of annexure "A" to these orders, with such letter accurately to be completed by inclusion of the details indicated, to each person who purchased an item painted, crafted, decorated or otherwise produced as the case may be by Stephen McLean, Paul Whiteman or Diane Sharp
   • 7.1 through the website; or
   • 7.2 through one of the respondents' galleries for delivery to an address interstate or overseas.
8. The Respondents, within 35 days of this order, provide the applicant with a list of names and addresses of customers to whom they sent letters in accordance with the preceding order.
9. The respondents pay the applicant's costs of and incidental to these proceedings in the agreed sum of $7500, within 90 days of the date of order.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD215 of 2008

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	FARZAD NOORAVI First Respondent HOMA NOORAVI Second Respondent

JUDGE:	LOGAN J
DATE:	29 AUGUST 2008
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This matter was instituted by the Australian Competition and Consumer Commission (the Commission) in respect of alleged breaches of the Trade Practices Act 1974 (Cth) (the Act). To give them a general description of those allegations concerning the making of false or misleading statements in respect of the provenance of various works of art which were purported to be the work of persons of Aboriginal descent and ancestry.
2. The parties to the proceeding have filed in court a consent. The terms of that consent, in effect, reflect an acknowledgement on the part of the respondents of particular breaches of the Act. The parties propose that there be declarations and injunctions which carry into effect relief sought by the Commission in respect of the contraventions alleged. I have read the terms of that consent. It seems to me that the proposals by the parties do more than merely seek the making of orders which reflect nothing more than the terms of the statute.
3. In other words, I am satisfied, having regard to the terms of the consent, that the release sought does provide in a meaningful way for orders, the breach of which would enable effective relief to be sought. The only concern that I had with the making of orders in terms of the consent was, in a sense, a trifling one and a matter of grammar, that being that in para 7, line 2, there appears a split infinitive.
4. The parties have also agreed that costs in this matter ought to be fixed, and it seems to me appropriate to carry that particular sentiment into effect as well.
5. The orders that I make in this matter are in terms of those proposed in the consent filed in court, save that in respect of para 7, line 2, instead of it reading, “such letter to be accurately completed” the order will read, “such letter accurately to be completed”. And for the avoidance of doubt and insofar as the same is necessary, I do fix costs in the agreed sum of $7500, and I note that the order which I have approved makes provision for its payment within a specified time.
   

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated: 9 March 2009

Solicitor for the Applicant:	Australian Government Solicitor
Solicitor for the Respondents:	Mr T Kimpton

Date of Hearing:	29 August 2008
Date of Judgment:	29 August 2008