oe en tee oe Ste oe we a ae te ee a ee IN THE FRDPRAL COURT S OF AUSTRALIA Sha SOUTH WALES DISTRICT RFGISTRY GENERAL DIVISION Reasons for Judgment: Delivered as Between And G No. 70 of 1977 Robert E. Phelps (Annlicant) Western Minine Cornoretion Ttd, and Others (Respondents) Franki J. 8 November 1977 a a ca ee, The applicant seeks injunctions under s.80 of the Trade Practices Act 1974-1977 (the Act) restraining the respondents individually or collectively from advertising in a manner contrary to ss.52 and 55 of the Act. These sections read as follovws:- Section 52.(1) A corporation shell not, in trade or commerce, engage in conduct that,is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in the succeeding provisions of this Division shell be taken as limiting by implication the generality of sub-section (1). Section 55. A person shall not, in trade or commerce, engage in conduct that is liable to mislead the nublic as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods. This matter first came before me on an application for directions ,when Senior Counsel for the respondents asked that the Court determine four questions before the hearing of the matter. The apolication was put,on behalf of the respondents, upon the basis that a great deal of time would be snent in Getermining whether or not certain advertising, which the apnlicant alleged was contrary to the provisions of ¢s.52 and 55,was either "misleading or deceptive or likely to mislead or deceive," within the reaning of these words in s.52(1), or "liable to mislead" within the meaning of these words in s.55. The matter had been commenced, in compliance with the Rules, by an order nisi to show cause, but I considered that it was an appropriate case to order that a statement of claim and a statement of defence be filed and this procedure was not opposed by the parties. . A statement of claim was filed and it alleged that certain advertising concerning uranium had been miblished by what was described as the "Australion Uranium Producers Forum" Dee and that this advertising was in substance the advertising of the respondents. The applicant was described in the statement of claim as being the organiser of a body dlled the Campaign Against Nuclear Power, Queensland.' It was alleged that much of the advertising had been and was misleading or deceptive or likely to mislead or deceive. Particulars were given of a number of details in which it was said that the advertising had been or was misleading or deceptive or likely to mislead or deceive. The statement of claim also alleged that certain parts of the advertising had been and were misleading or deceptive or likely to mislead or deceive because of what might broadly be called the manner of presentation. Ingunctions were sought to restrain advertising in breach of ss.52 and 55 of the Act. After pleadings had been filed the question of whether certain issues should be determined prior to the hearing of the matter was argued before me. It was common ground that the hearing would be lengthy and a period of not less than three weeks was thought by Senior Counsel for both the epplicant and respondents to be required. Senior Counsel for the respondents argued thet a considerable amount of time would be saved if certain preliminary questions were determined either by demurrer or otherwise and the respondents were successful. It seemed common ground that both the applicant and respondents would call overseas experts to deal with the question . of whether the advertisements were misleading or deceptive or likely to mislead or deceive and that cross-examination of these experts would be required. Senior Counsel for the applicant opposed the division of the hearing in any way and declined to attempt to agree any facts. In the statement of defence the respondents had demurred to the whole of the statement of claim on the grounds that:- a ot eR ee ape ae he A «4 (a) The conduct complained of was not done in trade or commerce; {b) the applicent has no locus standi to sue for the relief sought; . (c) on the facts alleged the condvct complained of was not aimed et or disseminated to consumers; and (a) on the facts alleged the conduct complained of was incapable of misleading or deceiving consumers. Alternatively, Senior Counsel for the respondents pressed for a method to be edopted whereby the folloving cuestions could be answered before the heering:- 1) Wee the elleged preperation and/or nublicetion of the advertisements complained of Jone in trade or commerce within the meaning of s.52 of the Trade- Practices Act 1974? 2) Does en anvlication for injunction lie in respect of conduct allegedly infringing the provisions of s.52 of the Trade Practices Act et the suit of the applicant? Questions 2 and 4 asked similer questions in reletion to s.55 of the Act. . It is convenient to consider question 2 end the issve raised in paregraph 13(b) of the demurrer first. These iseves are substantially the same and basically enpear to raise the cuestion of whether or not the anplicant fells within the description "...anyv other person" anpeering in s.89, It was cought to have this issue argued as a demurrer under the provisions of Oréer 26 Rule 5 of the High Court Rules before the hearing. The only fact admitted in the statement of defence which anperrs ta be relevant to this issue is that the applicant was and is at all material times a resident of Australia. Although it might appear that all facts necessary to deal "ith this question on demurrer vould be before the Court in the rf 4, pleadings, I am by no means satisfied that issues as to the 7 safety of uranium mining and the hendling of uranium, which are n clearly in issue, in relation to the cuestion of whether the advertising is misleading or deceptive, may not be relevant in relation to the standing of the applicant to apply for the relief sought if the vords "any other person" are subject to any qualification at all. Senior Counsel for the, epplicant oppesed the issue raised in paregraph 13(b) of the statement of claim being determined before the hearing on the basis that if, inter alia, any appeal wes taken the heering of the matter would be delayed. I am not satisfied that I should direct that the issue raised under paragraph 13(b) of the statement of defence be determined before the main hearing. The next issue raised was that under paragraph 13(c) and (a) of the statement of defence, on the facts alleged, the conduct complained of was (a) not aimed at or disseminated to consumers and (b) was incapable of misleading or deceiving consumers. The first question this raises is whether ss.52 or 55 are concerned only with consumers. Senior Counsel for the respondents argued that no facts were required for these points to be argued by way of demurrer since he said the text of the advertisements was before the Court in the pleadings, the legislation was for the protection of consumers, and there were no consumers of nuclear energy in Australia. Senior Counsel for the applicant indicated that it was not common ground that there vere no consumers of nuclear energy in Australia and I see no reason why I should make any assumptions on this question. In any event the points raised do-not appear to me necessarily to be decisive of any relevant issue, because even if it be established that the conduct complained of was not aimed at or es ee ee a disseminated to consumers or that without considering whether it was misleading or deceptive, it vas incapable of misleading or deceiving consumers, the guestion would still arise whether or not ss.52 and 55 were only concerned with conduct vhich was misleading or deceptive or likely to mislead or deceive consumers. I note that these issues under paragraph 13(c) and (A) do not appear to have arisen in any of the four questions to which I have referred previously. I do not consider that it would be appropriate to permit the issues raised in paragravh 13(c) and (d) to be determined prior to the hearing if for no other reason, because determination in the respondents favour vwovild not be conclusive of the litigation. I pass now to the last question, namely, that raised in paragraph 13(a) of the statement of defence being the allegation that the conduct complained was not done in trare or commerce. This appears to be the same question as is raisee in questions 1 and 3 of the questions to which I have previously referred. I was asked by Senior Cowmsel for the respondents to determine these questions ,apparently under the previsions of Order 36 rule 6 of the High Court Rules ,which permit one or more questions or issues of fact to be tried before the others. Apart from it appearing that the issue raised under this heading is at least a mixed question of fact and law and not purely a guestion of fact, the words of s.52(1) are "...a corporation shall not, in trade or commerce, engage in conduct which is misleading or deceptive or is likely to misled or deceive." It is certainly an open question whether there is a difference between a corporation, in trade or commerce engaging in conduct and the question of whether or not any advertising is "done in trade or commerce." In any event it was common ground that te a De evidence vould be necessary before the pants arising under paragraph 13(a) covld be determined. It is clear that .an application to have one issue in an action tried before another showild not be granted lightly. Since an order for the separate trial of separate issues is a departure from the beneficial object of the law that all disputes should be tried together, generally speaking, such en order should only be made in exceptional circumstances or on special grounds (see generally Piercy v. Young (1880) 15 Ch.D. 475; Cowen v. Payne 1974 1 W.L.R. 984 at 989, Wilkshire & Anor v. This is not an exceptional case as was Carl Zeiss Stiftune v. Herbert Smith & Co. & Ors, 1969 1 Ch. 93. I alsa consider that some of the issues, for example, those raised in the particulars to the statement of claim, numbered 23, 24, 25, could well be common to the determination of the question arisins under paragraph 13(a) and the issue of whether the advertising referred to in those particulars is misleading or deceptive, This last consideration is of some importance. (See G. Wimrey & Co. Ltd. v. Territory Enterprises Ptv. Ltd. 1966 V.R. 312) Another factor which points towards the desirability of determining all the issues at the hearing is that this litigation arises under provisions in an Act which has not been the subject of much judicial interpretation. Several difficult questions of lay may arise for the proper determination of 'hich al] relevant facts on which a party relies shovlde be before the Court. (see generally Richards v. Noum 1967 1 Q.B. 620). I am therefore of the opinion that I should refuse the reauest of the respondents to order any issve arising under the demurrer tendered in paregranh 13 of the statement of defence, or otherwise, to be determined before the hearing of the matter, tne Neen en ert enna and I cert2%v thet t=oeres the 6 n-n eding tages are a true copy of the Yeasons for Judgment herein of his Honour Kr. Justice Frnnd Dee Associate