' CATCHWORDS Trade Practices - Misleading or deceptive conduct - Appeal against grant of injunction. Constitutional Law - Whether s.80 of the Trade Practices Act 1974 exceeds the legislative power of the Commonwealth. The Constitution (62 and 63 Victoria c.12) s.51 (xx) Trade Practices Act 1974 (Cth.) s.52, s.80. ROBERT STERLING v. TRADE PRACTICES COMMISSION N.S.W. No. G23 of 1980 Franki, Northrop and Keely JJ. Sydney. 12 May 1981. IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G.23 of 1980 ) GENERAL DIVISION ) BETWEEN: ROBERT STERLING Appellant AND: TRADE PRACTICES COMMISSION Respondent. ORDER JUDGES MAKING ORDER: Franki, Northrop and Keely JJ. WHERE MADE: Sydney DATE MADE: 12 May 1981 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the respondent's costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA) y NEW SOUTH WALES DISTRICT REGISTRY} NO. G.23 OF 1 GENERAL DIVISION ) BETWEEN: ROBFRT STFRILING Appellant AND: TRADE PRACT ICES COMMISSION CORAM: Franki, Northrop and Keely JJ. 12 May 1981. RFASONS FOR JUDGMENT FRANKI J. Respondent This 1s an appeal from the judgment of a Judge of this Court wherein the following orders were made under s.80 of the Trade Practices Act, 1974 (hereinafter called "the Act the appellant. "1. The respondent be restrained until further order from aiding, abetting, counselling or procuring any company or person to engage, in trade or commerce, in the conduct of advertising, representing, offering for sale er selling interests in land in a manner that is misleading or deceptive in contravention of s.52 of the Trade Practices Act 1974; 2. The respondent be restrained until further order from inducing or attempting to induce any company or person to engage in any of the conduct aforesaid and from being in any way, directly or indirectly, knowingly concerned in or party to such conduct by any company or person; ") against 2. 3. The respondent pay the applicant's costs of this proceeding including any reserved costs; and 4. Liberty reserved to apply." It is unnecessary to repeat the facts in any detail because the learned trial Judge delivered a very detailed judgment and I see no reason to depart from the way he set out the facts. His judgment is reported in Trade Practices Commission v. Sterling (1980) 28 A.L.R. 497. It is only necessary to outline the facts in a way which enables' the questions argued in this appeal to be understood. The appellant was the managing director of and a shareholder in a company called Robert Sterling Pty. Limited (hereinafter called "the company"). The only other director or shareholder was the appellant's wife. The company was in liguidation at the time of the trial. The company engaged in selling land in two estates, one near Ballarat in Victoria called "Paradise Waters Fstate" and the other near Maroochydore in Queensland called "Tropicana Cove Fstate". Representatives of the company made various oral representations and issued pamphlets to members of the public concerning the two estates. As a result a number of people entered into contracts to buy land in the estates. In substance what was purchased in each case was an undivided interest as tenant in common of a part of the estate, e.g. 2/80ths of that part. 3. I cannot do better than repeat and adopt that part of the judgment which appears at pp.520-521 of the report of the proceedings before the trial Judge under the heading "General": "In my opinion, the company, in trade or commerce, engaged in conduct that is misleading or deceptive and thus contravened s.52(1). Section 80 of the Act provides that the court may grant an injunction restraining a person from engaging in conduct that constitutes or would constitute:- '(£) aiding, abetting, counselling or procuring a person to contravene such a provision; '(g) inducing, or attempting to induce, a person, whether by threats, promises or otherwise to contravene such a provision; '(h) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; eee The reference to 'such a provision' is a reference to a provision of Pts IV or V of the Act. Part V includes s.52. As to certain of the misleading or deceptive conduct to which I have referred, the respondent was himself directly involved and he made the representations personally to the person concerned. As to all of the conduct by the company to which J have referred, in my opinion, the respondent aided, abetted, counselled and procured the company to engage in such conduct; induced, and attempted to induce the company to engage in such conduct and was directly, knowingly concerned in the engaging in such conduct by the company. He and his wife were the directors' and shareholders of the company. His wife played a limited role in the company's affairs. The respondent was the auiding force behind the ay 4. company's day to day activities and was its managing director. There is abundant evidence to establish the respondent's role in these matters. The letterhead of the respondent's firm 'E Tariznyas & Company' bears a shield inscribed with the words 'Honesty Accuracy'. This is hardly apt to describe the activities of the respondent in relation to the sale of land in the two estates involved in this case. The representations to the public were neither honest nor accurate. A symbol frequently appeared on the company's letterheard embossed in a silver colour and contained the words Veni Vidi Vici. This is a more accurate description of the company's activities provided one regards the vanauished as the investors. The calling card used by Mr. Barwick, who described himself as 'National Sales Manager' of the company, contained a quotation from Shakespeare's Julius Caesar: 'There 1s a tide in the affairs of men, which, taken at the flood, leads on to fortune'. I do not know who, if anyone, made any fortune in this matter, but certainly the investors did not. In my opinion, the respondent was involved in contraventions of sub-s(1) of s.52 of the Act in the various respects the subject of my earlier findings; and the persons who suffered loss did so by reason of the conduct of the company that was done in contravention of s.52(1) of the Act and in which the respondent was involved. As to the respondent being involved in a contravention of s.52(1), see s. 75B. In my opinion this is an appropriate case for enjoining the respondent. The absence of the company as a party does not matter. The actions of the respondent which are capable of being restrained under s 80 are independent of the acts of the company itself which constitute the relevant contraventions of s. 52(1)." 5. I also adopt the overall description given at p.509: "It is an all too familiar story. This is a clear case of members of the public, who are inclined to rely on what they are told by fast-talking salesmen, subscribing money on oral and written representations made to them which are false and then losing their money. None of them have received back from the company or any other corporation or person any of the moneys paid by them." The first points raised in the appeal were based on submissions in relation to the constitutional powers of the Commonwealth. The arguments of the appellant on this aspect of the case appeared to fall under three headings. I say appeared to fall, because the various grounds of attack were altered somewhat during the hearing of the appeal. The three headings were: (1) Section 80(4) and (5) of the Act was invalid. Counsel for the appellant when asked "You say that the only parts of s.80 which you attack as being beyond constitutional power are sub-sec. (4) and sub-sec. (5)" replied "Yes" and he also answered "Yes" to the question "There is no doubt about that, is there". (2) The power to legislate in relation to corporations "does not extend so far as to authorise the Commonwealth Parliament to make 6. laws which have the effect of conferring jurisdiction to enjoin a natural person from engaging in an activity unless the activity enjoined in its terms has a real and substantia] connection with a corporation". (3) The judgment of the trial Judge resulted in findings against the company although the company was not a party to the proceedings. This meant that the Court was not exercising the judicial power of the Commonwealth. The trial Judge was not adjudicating in a matter. His findings might be used in proceedings against the company under s.82 of the Act by virtue of the provisions of s.83 of the Act. Section 83 of the Act was invalid. It was also argued that the Court would exceed its jurisdiction if it attempted to adjudicate in a matter with respect to persons who were not before it. The Solicitor-General for the Commonwealth appeared and presented argument in support of the validity of the legislation under attack. It is convenient to deal first with the general nature of these arguments. I cannot see how the validity or otherwise of s.&3 1s relevant in the present proceedings. I will deal with s.83 later. The application, under the rules of the Court then in force, required the appellant to show cause why he: 7. ",...should not be restrained from aiding, abetting, counselling or procuring any company or person to engage, in trade or commerce, in conduct of advertising, representing, offering for sale or selling interests in land in a manner that is misleading or deceptive or is likely to mislead or deceive in contravention of section 52 of the Trade Practices Act 1974, from inducing, or attempting to induce, any company or person to engage in such conduct, and from being in any way, directly or indirectly, Knowingly concerned in, or party to, such conduct by any company or person AND TO SHOW CAUSE why such other orders and findings of fact, as may seem to the Court just, should not be made upon the grounds appearing from the affidavits of ..." At the relevant time s.52 provided: "A Corporation shall not, in trade or commerce, engage in conduct which is misleading or deceptive or is likely to mislead or deceive". Section 6 of the Act gives the Act an extended operation in certain cases to a person not being a corporation. Section 80(1) (4) and (5) of the Act provides: "(1L) The Court may, on the application of - (a) the Minister; (b) the Commission; or (c) subject to sub-section (1A) - any other person, grant an injunction restraining a person from engaging in conduct that constitutes or would constitute - (d) a contravention of a provision of Part IV or V; (e) attempting to contravene such a provision; (£) aiding, abetting, counselling or procuring a person to contravene such a provision; 8. (g) inducing, or attempting to induce, a person, whether by threats, promises or otherwise, to contravene such a provision; (h) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (3) conspiring with others to contravene such a provision. (4) Where an application is made to the Court for the grant of an injunction restraining a person from engaging in conduct of a particular kind, being conduct referred to in sub-section (1), the Court may - (a) if it is satisfied that the person has engaged in conduct of that kind - grant an injunction under sub-section (1) restraining the person from engaging in conduct of that kind; or (b) ..- whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind. (5) Where an application is made to the Court for the grant of an injunction restraining a person from engaging in conduct of a particular kind, being conduct referred to in sub-section (1), the Court may - (a) if it appears to the Court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kind - grant an injunction under sub-section (1) restraining the person from engaging in conduct of that kind; or {b) ... whether or not the person has previously engaged in conduct of that kind and whether or not there 1s an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind." 9. The injunction sought was in relation to aiding, abetting, counselling or procuring any company or person to engage in certain conduct in relation to offering for sale or selling interests in land in a manner that 1s misleading or deceptive in contravention of s.52 of the Act. It was argued by the Solicitor-General and the respondent that s.83 only had the effect of altering the onus of proof and that its validity did not arise in these procedings. Counsel for the respondent also argued that it could be read down under the provisions of s.15A of the Acts Interpretation Act 1901. In my opinion its validity is irrelevant in the subject proceedings. There is no doubt that the applicant sought findings of fact from the Court. I consider that it is unnecessary to consider whether the Court made any finding of fact within s.&3 and, if it did make any such finding, whether it was a finding against the company or only against the appellant about the company. I consider that it 1s unnecessary to construe s.83 because no proceedings under s.82 or s.87(1A) were before the trial Judge or this Court. Interesting questions may arise if s.83 is called in aid in other proceedings. 10. The issue in this appeal is whether, on the facts, s.80 is a valid basis for the orders made against the appellant. I pass now to the question of the validity of s.80(4) and (5). I am not concerned with s.80(4)(b) or s.80(5)(b) because no question of interlocutory injunction is involved. Section 80(1) is the section giving power to the Court to grant injunctions. The relevant operative words are that the Court may, on the application of ... any other person ... grant an injunction restraining a person from engaging 1n conduct that constitutes or would constitute conduct aiding, abetting, counselling or procuring a person to contravene a provision of Part V of the Act. Section 80 is not a section involving criminal law. Section 79 of the Act provides for penalties in respect of offences against Part V of the Act other than s.52. Such contraventions are criminal offences. The effect of s.5 of the Crimes Act upon s.79 of the Act was considered in The Queen v. The Judges of the Australian Industrial Court Ex parte C.L.M. Holdings Pty. Ltd. (1977) 136 C.L.R. 235. Section 5 of the Crimes Act, so far as was material, provides: "Any person who ... by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law of the Commonwealth ... shall be deemed to have committed that offence and shall be punished accordingly". ll. It was held by the High Court that the operation of s.5 is not confined to a principal offence which is capable of being committed by the person who is alleged to have been knowingly concerned in its commission. Mason J., with whose judgment Gibbs J. (as he then was), Stephen, Jacobs and Murphy JJ. concurred, cited at pp.246-7, with approval, a passage from the judgment of Starke J. in R. v. Goldie; Ex parte Picklum (1937) 59 C.L.R. 254 at p.264. The passage reads: «-. I see no constitutional objection to the Commonwealth prohibiting its citizens aiding and abetting the contravention of the Immigration Acts or any other laws of the Commonwealth under such sanctions as it deems expedient. It is a common expedient to make persons falling within the provisions of such a section principals participating in the offence and punishable accordingly, and I perceive no constitutional difficulty in such a provision." Mason J. continued: "The point here is that if a head of constitutional power enables the Parliament to legislate so as to create a particular offence, then that head of power or the incidental power will authorize a provision having the same effect as s.5 of the Crimes Act in its application to a person who is knowingly concerned in the commission of the offence." It is clear that, since the head of power to leqislate with respect to corporations clearly supports the provisions of s.52 of the Act, the legislature can prohibit a natural person 12. from aiding, abetting, counselling or procuring a contravention of those provisions even in cases where s.52 did not apply to the natural person. Section 80(4) and 80(5) delineate some of the circumstances in which the Court may grant injunctions although the Court might not do so if it applied the rules developed in equity in relation to the grant of injunctions. Section 80(4) refers to cases where the Court is satisfied that the person against whom the injunction is sought has engaged in conduct of the kind referred to in s.80(1) whether or not it appears to the Court that that person intends to engage again or continue to engage in that conduct. Section 80(5) refers to cases where it appears to the Court that unless an injunction is granted it is likely that the person against whom the injunction is sought will engage in conduct of the kind referred to in s.80(1). The Court may grant an injunction whether or not that person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantive damage to any person 1f the person against whom the injunction is sought engages 1n conduct of that kind. I am satisfied that no ground for the invalidity of s.80(4) or s.80(5) has been shown. 13. I pass now to the other grounds argued by the appellant. It was submitted that as a matter of discretion, apart from anything else, the trial Judge should have refused to make any order unless the company was before the Court. I can see no basis for the submission. The company was in liquidation and its absence could not have prejudiced the appellant. It was also submitted that as a matter of discretion the trial Judge should not have made the injunction in the terms of his first order because of the "use of the words, at the end of his Honour's first order, 'in contravention of s.52 of the Trade Practices Act 1974'". It was submitted that the injunction placed an unduly onerous burden on the appellant. I reject this argument. It was conceded that no argument was put to the trial Judge concerning the form of any injunction and indeed in a letter to the respondent's solicitor before the hearing commenced the solicitors for the appellant offered, subject to certain other Matters, to consent to the orders as asked in the order to show cause. In Wright, Layman & Umney Ltd. v. Wright (1949) 66 R.P.C. 149, a case dealing with passing off, Lord Greene M.R. at p.152 said in relation to the form of injunction there under consideration: "It has been said many times that it 1s no part of the function of this Court to examine imaginary cases of what a defendant could do or could not do under this form of injunction. The best guide, if he is an honest man, is his own conscience; and it is certainly not the business of this Court to give him instructions or hints as to how near the wind he can sail. Honest men do not attempt to sail - near the wind." 14, It was also argued before us that the test of what 1s misleading or deceptive within s.52 was wholly objective and that (a) the trial Judge should not have admitted evidence of the state of mind of certain witnesses as to whether they were misled or deceived and (b) when admitted, over objection, the learned trial Judge should not have taken it into consideration. Ultimately the first part of this submission was abandoned. I am satisfied that the learned trial Judge was correct in admitting this evidence. In any event it would have been admissible on the question of discretion. However, it is clear that evidence of actual deception is always relevant and can be taken into account in determining whether conduct is deceptive or misleading. (See generally Kerly's "Law of Trade Marks and Trade Names" 10th edn. par. 16-77). In any event had no such evidence been before the Court the orders made were fully justified on the other evidence. It was also argued that the learned trial Judge ought to have looked at the totality of the acts in relation to the alleged conduct to see whether in relation to a particular transaction a person could be misled or deceived. Whatever merit there may or may not be in this submission the grant of an injunction did not depend on the proof of deception. The Court can grant an injunction against a person under s.80(5) even when it is not established that that person has previously engaged in conduct of that kind. The general conduct of the appellant was Clearly such as to warrant the conclusion that the case was one for injunctions as ordered. 15. A further submission was that misleading statements by employees of the company cannot be treated as misleading statements of the appellant unless the trial Judge was satisfied from looking at the whole of the evidence that the appellant was responsible. There is no evidence of any admissions made by any employee of the Company other than the appellant. The evidence of servants of the company was only in the nature of establishing the acts of the company. Section 84(2) is relevant in this regard. This submission is rejected. Further submissions attacked the findings about whether the respective Councils had ever granted relevant approvals. Clearly these submissions cannot be upheld. The trial Judge dealt adequately with the facts. Some other submissions were made in support of this appeal but none of them warrant individual attention. They were in relation to findings of fact by the trial Judge with which I agree. It is clear that various deceptive or misleading statements have been made about the ownership of the land, about people who were called "consultants"™ and about many other matters. 16. There is no doubt that this case discloses a situation of a particularly appropriate nature for the relief which was granted. I accept the views expressed by the trial Judge in relation to costs before him. I would dismis's the appeal with costs. a Tv - certify that this and the 15 p. ceding pages are a true copy of the Pe-cens for Judgment herein of nis Yonour | Nr Justice PRriwkys Kala Co 47 N° op oN Oe d Ashociathe Dated: (2 NIP 1984 IN THE FEDERAL COURT OF AUSTRALIA - ) ) NEW SOUTH WALES DISTRICT REGISTRY ) N.S.W. No. G.23 of 1980 ) ) GENERAL DIVISION ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: ' ROBERT STERLING Appellant (Respondent) and TRADE PRACTICES COMMISSION Respondent (Appellant) NORTHROP J. REASONS FOR JUDGMENT \2 MAY 1981. . I have had the advantage of reading the judgment of Franki J. I.concur in that judgment and I have nothing further to add. I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Mr, Justice +t? af ; ' an Zz LM hint Associate Dated: !2 MmaAY (an ) ) WE. COUTE UILES DISTRICT PCCT3isy ) vo. G2 ) ) RF of t 197 BEDJEEY: rO3Le? STOrL . Coram: FPMITKI, NORTHROP and KCELY JJ. PEAS fa) er pad u) ry Q 'g1 ie) ny rPa td c 12 wey 1991 KDCELY J. This is an zppeel by the resroptent me Bs: TR*RE PRACTICT lolottit ina *mpellent : AAT As pote Rocpont ert Pooort Storling (the appellant) from the whole of the julgrent given by Lockers J. unécr s.80 of the Trod- Pr-cticce Act 1974 (tp the following orders: "1. Tne respondent be restrained until order from a31ding, precuring eny company cr persop to ingeg Net ) mr further or ebotting, counselling eo, im trai e C Ok commerce, in tne centuct of advertising, representing, offering fer sale or selling interests ip lerd in 2 manner that rg aislesd4ira or deceptive in contrevention ci s. 52 of wnze Tredo Preevicts 'ct 1574; 2. The responvent oo restrained until ferticr order from inducing or Fttemoting to irduce any n company or person to enarg aforesric and fren being indirectly, knowingly cen conduct by eny compeny or © un any of tne confuct in cny wey, Sitcetly or @ in or porty to cuch 3. The respendent pzy the epplicant's cests of this proceeding including ny reserved costs." Robert Sterling Pty Limited (the company) nos incorporated on 15. June 1973 urder the provisions of the Corpznies Act 1361 (N.Z..). At all materiel times since 1975 the directors an¢ shercholders of the compony were the cppellent and his wife, Susan Sterling, and the eppoallent was the maencging director of the company and in charge of its 4cy to Joy activities. The compeny's business ws thet of the cubdivicsior and selling of land. Its ectivities were primerily concernce with two parcels of land, one near Ballarat in the State of Victorie called "Paradise Waters Estate" and the other necr Maroocnydore in the Stcte of Nuecnsland called the "Tropicecn> Cove Estate". The company after Septetbor 1975 en Ww aged ine promotion cempaign in relation to both estates which included the distribution of evanphlets et shoppirg centrec. Sales representatives telephoned end subsequently c2lled upen persons whe hed maédc encguiries as a result of scoing the pamphlets. At the triel the Trede Practices Commission (the commigesion) 2lleged that the compsny by its directors, servants end agents nad, since August 1975, cngogcd in conduct which wos misleading or aeceptive, within the meaning of s.52 of the ¢ct, including ¢istributung a nunber of Gocunents and scking epee Sen ee - eee see eee -- - + . ey tert representations orally, such conduct baing in trace er ccnterct and consisting cf advertising, representing, offering for crlr and selling or purporting to sell intorests in the two ettetcs. Tne conduct is referre"? to in consi¢ercble detoil in the rescore for judgnent of the leerned trial judge. The appellant centendcd, under ground (q) of the orcur3s set out in the notice of -cppecl, thet s.51l(na) of twh2 Constitution does not authorize a law conferring jurisdiction upon tho court to enjoin a naturel person from engzging in conduct unless the conduct has a real and substenti2l connectior with a trading or finencral corporation and that s.50(4) ana s.80(5) of the Act are invalid in that they cttenpt "to confer, ¢ judicial power which goes beyond the ambit of the corpor2tion power". I accept the submission put con behalf of inc Attorney-General of the Commonwealth by tir Pyers .C., the Solicitor-Gcneral, that the grant of the injunction uncor s.22 is conditioned upon an actual or prospective breach of 5.52 of the Act or counselling such a breech (or similar conduct for which a pecuniary penalty 1s provided by ¢.76 of the f-Act). I agree with tne reasons given by the learned trial judge, which appear in Trade Practiczs Commission v. Sterling (1980) 23 A.L.R. 497 at pp.517-519, fer deciding thet the challenge te validity cannot stand in the licht of the decision of the High Court in R. v. The Judges cf the \ustrelicn In¢ustrirl Cevrt "ne — a) =, — erotncr; Ex parte C.L.ii, Holdings Pty Lt? and enother (1977) 1735 C.L.P. 235, ? EEE INTE er OES = enema te me ee d> iir Tuchen, who appeared with tir Cotman on behalf cf tne eppellent, also submitted, under grounés (J) and (kh), thet tne court exceeded its jurisdiction under s.29 in thot ut adjudicated between the commission cn? the company ens arce findings of fact against the company which was not a perty to the proceedings. He submitted that the ccurt wags sa adjudicsting "because ot the effect of s.33" and, tn answer to a4 question by Northrop J., said thet it "could be" thet s.8? 1s invelid. Section $3 reeds as follows: "In a proceeding agsinst a person under section 72 or in an appplication uncer sub-section °7{14%) fer an oraer agcinst 2 persen, @ finding of any frct by ' a court mad? in proceodings unler sectiten 77, SC, 80A or 81, or for an offence -gcoinst section 72, in which that person hos been found tec have contravened, or to have been tinvelvzd in a contrcevention of, a provision of Part IV or V is priro focie evidence of tnsat fact anc the finding may ee proved by production cf a ?ocument under the seal of the court from which the finding cppeers." The grounds of appeal did not raise any queStlon as to the validity of s.383. In my opinion it 1S net necessrry in determining this appeal to consiéer the validity cf s.83 but in any event no argument put on the hearing of this eppeal reises any doubt in my mind as to its velidity. I alse fccept the submissions of the Solicitor-Concral and of vir Pennett ¢.C., wha appearcd with vir locready for the commission thet, cven 1f 5.93 wore invilid, it wovl? not affiet the validity of s.90 ef tho Act. "en IR aT Re RENEE ee rermnemnnerm terme Ty - - - - wae re ae ree - Under grounds (z2)-(h) inclusive of thr arourd%s of arnesl Mr fuchen contended that the Icarned trial judge hed arere? in reaching certain conclusions in respect of various >lloqges representations and, under ground (1), thet there wit nme evidence of any oral representations by the eppelloant which wre misicading or deceptive or likely to wvislead or deceive. H2 elso contended, under ground (t), that there was no evieence that the eppellaent hed aided, cbetted, counselle" or procured the company to engage in certain concuct. In my cpinior erch of these conclusions of the learned tricl judge wre supportec by ample evidence. Ground (u), which was a general ground that ais Henour "should have found that upon the whole of the eviderce the Applicent (Pespondent) was not entitled to the orders sought", fails for the same reason. At the trial the appelicnt unsuccessfully cbjectcd to the sled. Mr Ke " admissibility of evidence that certair persons wero m Tuchen conceded that the appellant was "proclused from rricing thet in the appeal" bocause it did not fall within one of tre grounds of appeal. However, he contended that the trie, judqe erred in tekin that evidence into -eccount as 1t was "not wa relevant to consider whether ony person wee misicd", relying upon ground (2) end the lattor pert of ground (1) - having ebsndoned the former part. He contoneed thet, in considcring whether statements were rislocting or deceptive, the lorrit triel jyucge should heave used an objective tost and relicd vror -ewre een a the dictum of Franki Jd. in Annord cni Thompron Pty Lita. Ire? Practices Commission (1979) 25 A.L.R. 91 at 9.102: is "The tost is whether, in an objcctive sense, the conduct of the aprellont wes such FE to b2 misleading or @eceptive yaeon viewe? in the light of the type of person who 1s likely to be oxposed to that cenduct. ... Tn? cuesction ius not whether & purchaser wos deceived but whether the conduct . misleading or_deceptive." oe mo Although 1t is not necessary, for the purpose of establishing that conduct was mislesding or deceptive in an objcctiva son 1) Cc, for it to be proved that any persons were in fact misled or deceived, in ny opinion evidence by persone that they were in fact misled or deceived 1s admissible on the question whethor the conduct was misleading or Geceptive in an objective sense - notwathctanding that the ovidence would not in itself establish that fact because it is necessory to enguire why they were misled or deceived - see Stephen J. in Hornsby Builtirg informoticn Centre Pty Ltd and another v. Sydney Building Information Centre Ltd (1978) 13 4.L.P. 639 ot p.647. Stechen J. (with whose reesons for judgment Jecobs J. egresd) referred (ibid) to "evidence that person 10} hoa beon misled" witncut sugjcsting that it wes in2dmissible. Further, in the present case the evidence was plainly ?dmissible on the questicn of whether the learned trial judge should, in the exercise of his fascretion, gront the injunctions. In ony cvent, there «7s angle 2vicence £% support the findings of fact mede without tho rs evicencc thz subject of the objection. Site atrial on he ate ctneee de eenmenenee aialicen sean - It was also argued that evidence of agents of the conrany wrs not admissible against the appellent. The court wee toll that there wee no evidence called of any edmissions mecc hy persons otner ther the appellant. The ovidence led es to whot was Said to potential lanc buyers by certain colesmen emplcycé by the company was met tendered] as evidence of the truth of wact was saic by those salesmen but as evidence of the fact thet certain statements were made - which statements were alleges to have been mislcacing or deceptive. Accordingly the cvidence was not hearsay and was admissible. Under ground (c) the appellant contended thrt e promise or prediction as to future conduct could not be nisleading or deceptive within the meaning cf s.52 of the Act unless it 'ras preved that the promise or prediction had been wate racklassly - relying upon passages in the judgment of Franki J. in Thoxrscon v. jlastertouch TV Services Pty Limitcd (1977) 15 A.L.n. 487 inclucing tne following passege (at 5.495): "I consider that a prediction or statement as to the futuro is nct false vithin tne words of that section (s.59) 1f it proves to be incorrect unless 1t 1s a false statcment as to on existing or pes fact which mcey include ta2 state of mind of the person meking the stctement or cf 2 person wnese state of mind ney be inputed to the person nreking PJ ~ n " the strcement. wc Tuchcen submittce tnot the evidence did net snow thet tha eppcllort "... did not boliev> tho rerresontetions made ner 714 c GS. lt snow thet he was recklessly indifferent concerning tne forecast or predicticn". On the evidenec, including tho evidence referred to by the learned trial judge, I reject this Submission and do not find it necessary to considcr :ir Bennett's submission that Thorpson v. tNactortouch TV Services Pty Liritcd (suprs) Goes not apply because 1t was dealing with s.59 of the Act which related ta _rcpresentetionc. tly Tucnen contended that the learned trial judge, in the exercise of his discretion, should have refused to grent =n injunction unless the company was joined cs a perty to the proceedings. He also contented, uncer ground {(v), that tne injunctions granted were in a form unnecessarily wid2 and unduly burcensome by reason cf the words, in order 1, "in contravention of s.52" (cf the Act). Nothing that was put to the court nes convinced me that there is any substance in either of these cortentions. Grounds (p), (r) cond (s) of the grouncs of appeal ware abdandoncd. Grounds (w), (¥) and (y) relate} to costs and it was not argued that the cppellent could succeed on eny of thuse grounds unless he succcedcd on otner grounds. In ny opinion the eppeal snculd be @Gismissed with costs. earcify thet this ana the gevea receline pajes are a true capv of thos eas .3 fos Cudzgmont teresucre ii: Honour tir. Justace Kece7 Assog 7.4% Dated: /2/s/s, eye