Safe Breast Imaging and Misleading and Deceptive Conduct

In a follow up to TimeBase' previous article on the Perth-based breast imaging company, BreastCheck, the Federal Court has found that the associated breast imaging company, Safe Breast Imaging Pty Ltd, has also engaged in misleading and deceptive conduct.

Facts of the Case

The litigation started in January 2012 when The Australian Competition and Consumer Commission (ACCC) instituted proceedings against Safe Breast Imaging Pty Ltd and its sole director Joanne Firth, alleging false and misleading conduct in relation to the provision of breast imaging services.

Safe Breast Imaging and Breast Check used a device known as the Multifrequency Electrical Impedance Mammograph to capture images of a customers' breasts. Breast Check also used a digital infrared thermographic camera to capture images.

The Case Against Safe Breast Imaging

The ACCC alleged that Safe Breast Imaging and Breast Check made false and deceptive representations in pamphlets entitled “Breast Imaging. Not a Mammogram” and headed with the phrase: “Vision. Reduce deaths from breast cancer in young women”. 

The ACCC also alleged that between May 2009 and August 2011 Safe Breast Imaging also falsely represented that its breast imaging service included the delivery of a customer report prepared by a medical doctor, namely Dr Alexandra Boyd . On the contrary, in many instances the reports provided to customers by Safe Breast Imaging were not prepared by a medical doctor.

In the case of ACCC v Safe Breast Imaging Pty Ltd [2014] FCA 238 (18 March 2014), Justice Barker further found that Safe Breast Imaging had engaged in misleading and deceptive conduct in regard to the pamphlets, and that Mr Firth, the sole director, shareholder and person responsible for the conduct of the company was knowingly concerned in the contraventions and was liable as an accessory.

Justice Barker has invited Safe Breast Imaging and the ACCC to make submissions ahead of handing down his final orders in regards to relief granted and the terms of the orders.

A hearing will be held in the Federal Court in Perth on 10 June 2014 to determine the relief that will be ordered however the ACCC is seeking declarations, injunctions, an order for publication to assist in remedying the contraventions, pecuniary penalties, an order disqualifying Ms Firth from managing corporations and costs.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

ACCC Media Release - Another breast imaging provider found to have engaged in misleading conduct

ACCC v Safe Breast Imaging Pty Ltd [2014] FCA 238 (18 March 2014)