oe ee ee ra oe OA armenian te Thee r ™~ [ae yostion C/A L CATCHWORDS TRADE PRACTICES - CONSUMER PROTECTION ~ MISLEADING OR DECEPTIVE CONDUCT ~ TRADE OR COMMERCE ~ ADVERTISEMENTS IN REFERENDUM CONCERNING BEEF MARKETING ~ INJUNCTION ~ TRADE PRACTICES ACT 1974 s. 52. (1) and s. 80 (1) (f) FARMERS' UNION OF W.A. (CINC.) v. P.G. MACKIE. WESTRALIAN FARMERS CO-OPERATIVE AND WEST AUSTRALIAN NEWSPAPERS LTD, W.A. No. G4 of 1977 SMITHERS, J. c 16th SEPTEMBER 1977 DECISION DELIVERED 16/9/1977 PERTH SMITHERS, J. FARMERS! UNION OF W.A. CINC.) v. P.G. MACKIE AND ORS ORAL JUDGMENT a HIS HONOUR: This is an application under s. 80 of the Trade Practices Act 1974 under which the court may grant an injunction on the application of any person restraining a person from engaging in conduct that constitutes, or would constitute, a breach of Part V of the Act. Section 52 is in Part V. Section 52 (1) states that - NA corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." In this case the misleading conduct is the publication, by two corporations who run businesses as newspaper publishers and are therefore engaged in that aspect of trade and commerce of advertisements to the effect of that set out on p.3 of the Farmer and Grazier of 1 September 1977 in the following terms - "Beef producers! Acquisition costs producers of local lamb135 cents/kg* Acquisition will cost beef producers ? Avoid a compulsory middle man, support question 2. (16 kg. red 2 - 18/8/77 after all killing costs etc. paid )*. Inserted by 'the Small Farmers! Meat Lobby! ". If that advertisement is misleading then the newspapers have been guilty of publishing a misleading advertisement. It was in trade and commerce not only in that it was published by the newspapers in the course of their own trade and commerce, namely, the business of publishing mattersof interest to the public, but also the advertisement relates to steps in progress to determine the methods under which cattle should be sold by cattle ayes oy wernes © raisers, the laws or arrangements that should be made as to the persons to whom they would sell or desire to sell their cattle in the course of their trade and commerce in cattle., The advertisement was calculated to influence people to favour one method as against another. Although the newspapers did not engage in trade or commerce in respect of cattle, the subject matter of the advertisement which they published was directly and intrinsically related to trade and commerce in the matter of cattle. The activation of the subject matter by the newspapers in publishing the advertisements was an intrusion into that trade and commerce. The publications, being calculated to influence people engaged in that trade and commerce in decisions they had to make in carrying on that trade and commerce and to influence them to alter their positions therein, the publishing corporations aid on this occasion intrude into the trade and commerce in beef and they did so at the request and for the benefit of persons who were themselves engaged in that trade and commerce, who had a 7 cattle trade interest therein, and they did so for reward. Accordingly, in my view, the newspapers published wer these statements in "trade and commerce" within the meaning of that expression in s. 52. For reasons indicated during argument I consider that the advertisements if misleading were calculated to mislead consumers within the contemplation of Part V of the Act. : - If that is so, them, although the first defendant ; is not a corporation, he would be a person within the reach of the Trade Practices Act if he influenced or procured or was concerned in a contravention of s. 52 by a corporation (s.80(1 )(T)) a ee ee a - ete 8 fee ee a tha Tee ee a a 3. In this case there is no dispute that Mr. Mackie did initiate and arrange for, and he and his collegues no doubt paid for, the advertisements which were inserted. Therefore, if -they were misleading, then there were misleading statements in trade and commerce and under the new commercial morality which is the object of the Trade Practices Act they could and ought to be restrained. I think it is proper to say that an injunction is a serious remedy because it subjects the defendant to imprisonment if it is broken and it frequently had to be granted in terms which are not precise and which leave the defendant at peril should he misjudge the quality of a future act, thinking it does not contravene the injunction when it does. As it is a serious remedy I think it is correct to say that in a case such as this the court should feel satisfied, not beyond reasonable doubt but satisfied, that the contravention of s. 52 alleged actually occurred. a eee ee The main complaint about this advertisement is directed to the first substantial sentence, namely "Acquisition costs ' producers of local lamb 13 cents a kilogram" with its asterisk and its reference, apparently, to the 16 kilogram red 2 of the 18 August. . Perhaps I should say with or without the asterisk, on the ground that it would be quite possible one would look at this statement, read that first paragraph and never read any further. 4. The question is what does it mean? What would a reasonable, sensible beef producer justifiably think he was being told? € - T think that I should infer that such a person would know the meaning of "local lamb" and in any event I think the construction of the sentence indicates that the lamb being talked about is local lamb. To my mind, in the end, you have to attribute to that expression the meaning of "lamb which finds its wway onto the local market", or perhaps is intended to find its way onto the local market. If so, this sentence is saying that acquisition costs either all or some producers of local lamb or producers overall of local lamb 13 cents per kilogram. I think the latter. If that statement is not untrue, I do not see how it can mislead. The onus is upon the plaintiff to satisfy the court that it is untrue or that it is likely to mislead. I do not see how it can mislead if it is substantially true. T therefore do not see how the plaintiff can establish its case for an injunction unless the plaintiff satisfies the court that it is untrue. The evidence before me indicates that the W.A. Lamb Marketing Board purchases lamb at prices which it declares and . which are known as the producers' price; that it sells lamb on the export market and that it sells lamb on the local market and it publishes the price which it receives for the local lamb. The evidence before me is that if the difference between those prices is measured and if then allowance 'is made for the ee eo Tee 5. killing costs, there are from time to time and were currently round about August, differences, in a sense the profit of the Board, in relation to some categories of lamb of more than 13 per cent, substantially more; in relation to other categories the differences were less and substantially less. Whether overall, however the difference would be less than 13 cents per kilogram it is impossible for me to say. I think I should say also that although I do not accept in toto the argument of Mr. Chaney as to the political atmosphere in which the advertisement takes its place that this advertisement appears in an overall setting of a referendum. The total number of beef producers, who run into some thousands, are being asked to decide whether they would prefer an acquisition scheme or would prefer not to have an acquisition scheme. The referendum procedure postulates, really, that there is to be debate and that there is to be debate on almost a political plane, and it is in that context that advertisements like this have to be read. As has been indicated, it would be quite intolerable that in the ordinary political confrontations which take place all statements which happen to relate to trade and commerce could be brought before this court and people restrained, but notwithstanding that and whatever the background, if misleading statements are made in trade and commerce the fact that they are made also in the political contest would not oust the jurisdiction of the court. There may well be cases in which it would be proper for the court to act. All this is relevant, T think, to an asseccrent -s to whether peonle readine this would 6. be misled, whether they would not just consider it as part of the cut and thrust of the campaign and would quite well realise that undoubtedly it was made in a partisan spirit and had to be.read as such and with due caution. I would not doubt that in the great majority of cases that would be what would happen. ! Accordingly, for all these reasons, I am not satisfied that the statement was, in the sense in which I think it was written and the sense in which I think it would be understood by the readers who would see it, untrue or that it was calculated to mislead or that it was misleading in the relevant sense. I do not wish to be thought to encourage ambiguous statements. t must be understood that ambiguous statements which may mislead are perilous things to indulge in,. in trade and commerce, in these days. The plaintiff's claim will be dismissed with costs. ' q mut ' . ee a ee a ee few een ow