ues CATCHWORDS TRADE PRACTICES - misleading or deceptive conduct - whether publication of statements including statements of opinions made in ordinary course of publication of news (not being advertising Material) can constitute misleading or deceptive conduct - publication of material constituting conduct for purposes of sub-s. 52(1) of the Trade Practices Act 1974 - publication of incorrect information constituting misleading or deceptive conduct only if conduct contains or conveys a misrepresentation - some articles of news more readily to be taken as statements by newspaper than others - disadvantages of Stated Case procedure. Trade Practices Act 1974, s3. 4(2), B, 52(1), 53(e), 82, 84, 85(3), 87 Federal Court of Australia Act 1976, sub-s. 25(6) GLOBAL SPORTSMAN PTY LTD and JEFFREY ROBERT THOMSON v. MIPROR NEWSPAPERS LIMITED and NATIONWIDE NEWS PTY LTD (QLD G69 OF 1983) BOWEN C.J. , LOCKHART & FITZGERALD JJ. BRISBANE 19 JUNE 1984 IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G69 of 1983 GENERAL DIVISION ) BETWEEN : GLOBAL SPORTSMAN PTY LTD and JEFFREY RORERT THOMSON Applicants AND: MIRROR NEWSPAPERS LIMITED and NATIONWIDE NEWS PTY LTD kespondents ORDER JUDGES MAKING ORDER: BOWEN C.J., LOCKHART & FITZGERALD Jd. DATE OF ORDER: 19 JUNE 1984 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. Question (1) Is a purchaser or a reader of a newspaper a "consumer" within the meaning of the Act in relation to those parts of a newspaper which are not advertising material? Answer Unnecessary to answer. Question (11) Can the publication of statements including statements of opinion made in the ordinary course of the publication of news in those parts of a newspaper which are not advertising material constitute conduct which is misleading or deceptive or likely to mislead or deceive within the meaning of s.52 of the Act? Answer Yes uestion (1ii) (a) Is the injury of which the second applicant complains loss or damage within the meaning of s.82 of the Act? (b) If the first applicant suffered the loss or damage of which 1t complains in the circumstances which the applicants allege was that loss or damage suffered by the first applicant "by" conduct of the respondents or either of them within the meaning of s.82 of the Act? Ansver (a) Yes (b) Yes, if the matters in paragraphs 3 and 13 of the Case are established. Question (iv) If the facts in paragraphs 2-12 and the applicants' allegations in paragraphs 13 and 15(a) are established: (a) have the applicants or either and if so which of them made out a claim under the Act? (b) if "No" to (iv)(a), will the applicants or either of them and if so which of them establish a claim under the Act by proof of all or some and if so which of the allegations in paragraphs 16 and 17; (c) aif "Yes" to (iv)(a) or tiv) (b), can the respondents establish a defence toa the claim under the Act of the applicants or either and if so which of them, and, if so, what defence? Answer (a) Not answered (b) Not answered (c) Not answered Question (v) If the facts in paragraphs 2-12 and the applicants' allegations in paragraphs 13 and 15(b) are established: (a) have the applicants or either ard if so which of them made out a claim under the Act? id) if "No" to (v)(a), will the applicants or either of them and if so which of them establish a claim under the Act by proof of all or some and if so which of the allegations in paragraphs 16 and 17? (c) 1f "Yes" to (v)(a) or (v)¢b), can the respondents establish a defence to the claim under the Act of the applicants or either and if so which of tnem, and, if so, what defence? Answer (a) Not answered (b} Not answered (c) Not answered Question (vi) If the facts 1n paragraphs 2-12 and the applicants' allegations in paragraphs 13 and 15(c) are established: (a) have the applicants or either and if so Which of them made out a claim under the Act? (b) if "No" to (vi)(a), will the applicants or either of them and if so which of them establish a claim under the Act by proof of all or some and if so which of the allegations in paragraphs 16 and 17; (c) af "Yes" to (vid(a) or (vi)(b), can the respondents establish a defence to the claim under the Act of the applicants or either and if so which of them, and, if so, what defence? Answer (a) Not answered (bd) Not answered (c) Not answorea 2, As agreed and recorded in che Case Stated, the Responaents must pay to the applicants their taxed costs of and incidental to the proceedings in relation to the Case Stated. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD Goo of 1983 GENERAL DIVISION ) BETWEEN : GLOBAL SPORTSMAN PTY LTD ana JEFFREY ROBERT THOMSON Applicants AND: MIRROR NEWSPAPERS LIMITED and NATIONWIDE NEWS PTY LTD Respondents CORAM: BOWEN C.J., LOCKHART & FITZGERALD JJ. DATE: 19 JUNE 1984 REASONS FOR JUDGMENT THE COURT: This is a special case stated pursuant to sub-s. 25(6) of The Federal Court of Australia Act 1976. The applicants claim damages from the respondents for alleged contraventions of the Trade Practices Act 1974 ("the Act"). The second applicant also claims damages for alleged defamation. Ww * The second applicant is a professional cricketer. On 9 February 1978 the first and second aprlicants entered into an agreement under which, in return fcr payments from the first applicant, the second applicant agreed to perform various activities associated with the expio1itation of his sporting reputation. Neither respondent had any knowledge of the existence of the first applicant or of the agreement between the applicants at any material time. Each of the respondents is a trading corporation within the meaning of the Act. The first respondent prints, publishes, and sells newspapers including "The Australian" and "The Weekend Australian" on behalf of the second respondent. Each of "The Australian" and "The Weekend Australian" 1s published throughout Australia. On 16-17 July 1983 an article puplished in "The Weekend Australian" at p.16 in the "Focus on Crort" section was headed "Mutinous Elements threaten tc destroy Australian cricket" "A team divided - gallows await yesterday'= heroes" and included a cartoon caricature of tne Australian Cricket team captain, Kim Hughes, playing cricket with a large knife through his back and also a photograph cf the second applicant. A further article "Factions are not cricket" was published in the editorial section of "The Australian" newspaper on 18 July 1983. Each of the articles was written by a journalist employed by the first respondent as a specialist writer on cricket. Only the former article identified the journalist as its author. 3. The decision to publish "he first article was made by an editor of "The Weekend Australian" employed as such by the first respondent and his decision was made in the ordinary course of his employment. The decision to publish the second article was made by an editor of "The Australian" employed as such by the first respondent and his decision was made in the ordinary course of his employment. Neither editor had any knowledge concerning any of the matters stated in the respective articles and each relied entirely upon the author of the article. No other officer or employee of either respondent had any knowledge concerning the contents of either article prior to publication. The facts summarized above are taken from paragraphs 2-12 of the Special Case which also records a number of allegations by the applicants in the foilowing numbered paragraphs: "13, The applicants allege that each of the articles injured the secona applicant in his credit, character and yeputation, brought him into public scandal and contempt, occasioned him embarrassment and hurt and impaired his prospects of selection and employment as a professional cricketer and asa 'medium for the advertising of goods and services', and that in consequence each of the articles caused the first applicant to lose business 14. The applicants allege that each article was not only defamatory of the second applicant but was misleading and deceptive within the meaning of s.52 of the Act; 15. 17. The applicants allege that each of the articles: (a) made or repeated inaccurate statements of fact concerning the conduct, character and reputation of the second applicant, including inaccurate statements as to opinions held, statements made, and acts done by the second applicant and others; (bd) made or repeated statements of opinions of the author of tne articles or of the respondents (or one or other of them) or of some other person (not being one of the applicants) concerning the conduct, character and reputation of the second applicant for which Opinions there was no sufficient basis; (c) made or repeated statements including statements as to opinions held, statements made and acts done by the second applicants and others, which, in the circumstances, had and conveyed expressly or by innuendo false meanings concerning the conduct, character and reputation of the second applicant. The applicants allege that the author of the articles: (a) did not believe in the accuracy of the statements of facts made therein; (b) did not hold the opinions stated therein as his opinions or opinions of the respondents (or either of them), and did not believe that the opinions of other persons (not being one of the applicants) stated therein were reasonably and honestly held by such persons; (c) did not believe in the truth of the meaning conveyed by the articles. The applicants further allege that no basis existed for belief by the author of the articles in the accuracy of the 5. facts stated therein or in the truth of the meanings conveyed, or for the opinions of the author or of the respondents (or either of them) or of other persons, not being one of the applicants, which are stated in the articles, The respondents' primary contention is that neither applicant has a claim for damages under s.8@2 of the Act because the publication of statements, including statements of opinion, made in the ordinary course of the publication of news cannot be conduct which is misleading or deceptive or likely to mislead or deceive within the meaning of s.52 of the Act. Further questions were raised concerning which of their allegations must be proven by the applicants to establish their claims if the respondents' primary contention is not correct, and what, if any, defences might be available to the respondents. At the request of the parties the following questions were reserved for the consideration of the Full Court: (1) Is a purchaser or a reader of a newspaper a "consumer" within the meaning of the Act in relation to those parts of a newspaper which are not advertising material? (1i) Can the publication of statements including statements of opinion made in the ordinary course of the publication of news in those parts of a newspaper which are not advertising material constitute conduct which is misleading or deceptive or likely to mislead or deceive within the meaning of s.52 of the Act? (iii) (1v) (v) (a) Is the injury of which the second applicant complains loss or damage within the meaning of s.82 of the Act? (b) If the first applicant suffered the loss or damage of which it complains in the circumstances which the applicants allege was that loss or damage suffered by the first applicant "by" conduct of the respondents or either of them within the meaning of 8.82 of the Act? If the facts in paragraphs 2-12 and the applicants' allegations in paragraphs 13 and 15(a) are estabiished: (a) have the applicants or either and 1f so which cf them made out a claim under the Act? (b) if "No" to (ivi(a), will the applicants or either of them and if so which of them establish a claim under the Act by proof of all or some and if so which of the allegations in paragraphs 16 and 17; (c) if "Yes" to (iv)(a) or (iv)(b), can the respondents establish a defence to the claim under the Act of the applicants or either and if so which of them, and, if so, what defence? If the facts 1n paragraphs 2-12 and the applicants' allegations in paragraphs 13 and 15(b) are established: (a) have the applicants or either and if so which of them made out a claim under the Act? (b) 1f "No' to (v)ia), will the applicants or either of them and if so Which of them establish a claim under the Act by proof of all or some and if 30 which of the allegations in paragraphs 16 and 17? (c) af "Yes" to (v)(a) or (v)(b), can the respondents establish a defence to the claim under the Act of the applicants or either and if 30 which of them, and, if s0, what defence? (vi) If the facts in paragraphs 2-12 and the applicants' allegations in paragraphs 13 and 15(c) are established: (a) have the applicants or either and if so which of them made out a claim under the Act? (b) 1f "No" to {(v1)(ad, will the applicants or either of them and if so which of them establish a claim under the Act by proof of all or some and if so which of the allegations in paragraphs 16 and 17; (c) if "Yes" to (vi)(a) or (vi)d(b), can the respondents establish a defence to the claim under the Act of the applicants or either and if so which of them, and, if so, what defence? It was common ground before this Court that it was unnecessary to answer question (i). The respondents acknowledged that question (1ii) should be answered: (iil) (a) Yes (b) Yes, if the matters in paragraphs 3 and 13 of the Case are established. The respondents also acknowledged that, if questions (iv)(c), (v)(c) and (vi)(c) are answered, they should be answered in the negative. There ig no definable boundary between conduct which is misleading or deceptive or likely to mislead or deceive and material which 1s defamatory. Material which 1s defamatory does not fall outside the operation of sub-s. 52(1) of the Act merely for that reason any more than it is brought within the operation of sub-s. 52(1) by reason only that 1t 1s defamatory. If the operation of sub-s. 52(1) was limited to exclude material because it was defamatory, not only newspaper publishers, but all corporations would be exonerated. Such a proposition would severely restrict the broad generality of sub-s. 52(1) which has been emphasised by the High Court on more than one occasion: see Hornsby Building Information Centre Pty Ltd v. Sydney Building Information Centre Pty Ltd (1978) 140 C.L.R. 216; Parkdale Custom Built Furniture Pty Ltd v. Puxu Pty Ltd (1982) 56 A.L.J.R. 715; 42 A.L.R. 1. Further, the meaning of sub-s. 52(1) cannot be controlled by the doctrine of freedom of Speech, which incorporates the freedom of the press. Although there is no right to speak freely given by the Constitution or by statute, free speech is of fundamental importance. But in this ag in other areas, freedom does not mean licence but freedom under law in a civilized society: cf. Samuels v. The Readers' Digest Association Pty Ltd (1969) 120 C.L.R. 1, per Barwick C.J. at pp.14 and 15, Speech is free if it is free from unwarranted restrictions. Freedom of speech is but one of a number of competing rights and interests which must be accommodated. Part V of the Act is broadly concerned with "Consumer Protection", which is itself an important matter of public interest. Like sedition, defamation, obscenity, copyright, etc., consumer protection can justify some restriction upon what may be published. The ambit of any restriction ig a matter for Parliament to the extent that the subject is within its constitutional power. Not all newspapers are published by corporations but many are, and it 1s with respect to those that the questions stated are of immediate significance. The validity of the Act for present purposes is not in doubt. The respondents' primary argument to the effect that sub-s. 52(1) does not apply to the publication of "news" ina newspaper was met by an equally wide argument for the applicants that a corporation contravenes sub-s. 52(1) if it publishes a newspaper which contains any "news" which 1s incorrect. It was contended that a reader will be or is likely to be misinformed if the publisher publishes a statement of fact which is inaccurate or an opinion which 15 aincorrect and that such conduct 15 suffictent to constitute a contravention of the sub-section. According to the applicants, such a conclusion is unrelated to whether any act or omission occurs or is likely to occur asa result of the publication; such considerations are material not to the existence of the contraventian but to the grant of relief (see ss. 8, 82 and B7 of the Act}. The latcer part of the applicants' submission seems to us correct. A contravention of sub-s. 52(1) is established by conduct which is misleading or deceptive or which is likely to mislead or deceive. Conduct is likely to mislead or deceive if that is a "real or not remote chance or possibility regardless of whether it is less or more than fifty per cent": cf. Tillmanns 10. Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union (1979) 42 F.L.R. 331, per Deane J. at p.346; Sheen v. Fields Pty Ltd £19843 58 A.L.J.R. 93. Evidence that an erroneous conclusicn has been formed by yreferenc? to conduct is admissible to establish that the conduct was misleading or deceptive or likely to mislead or deceive; such evidence may be persuasive but it is not essential. Evidence of acts or omissions resulting from the erroneous belief may also be admissible but again 1s not essential. Sub-section 52(1) is concerned with the effect or likely effect of conduct upon the minds of those by reference to whom the question of whether the conduct is or is likely to be misleading or deceptive falls to be tested. The test 1s objective and the Court must determine the question for itself: Taco Company of Australia Inc v. Tacc Bell Pty Ltd (1982) 42 A.L.R. 177, at p.202. Each of the rival contentions otherwise focussed upon the publication by a corporation of information described as "news". A cause of action in defamation founds upon the puolication or communication of defamaztciry material and detailed rules have been evolved to deal with the Liability in defamation of those who publish or republish such material or cause 1ts publication. No comparable provisions are found in the Act. Sub-section 52(1) simply proscribes "conduct" which is misleading or deceptive or likely to mislead or deceive. Sub-section 4(2) provides what constitutes "conduct". While information may be misleading or deceptive or likely to mislead or deceive, it is only conduct which is misleading or deceptive or likely to mislead or deceive which attracts the operation of sub-s. 52(1). ll. Whether and in what circumstances the mere communication of information is or may be sufficient to contravene that sub-section is a question to which it will be necessary to return. However, 216 1s not in doupt that a corporation contravenes sub-s. 52(1) if 1t makes a statement which 15s misleading or deceptive or likely to mislead or dece1rve: see, for example, Bill Acceptance Corporation Ltd v. G.W.A. Limited (1983) 50 A.L.R. 242. It 18 convenient to proceed initially by reference to that proposition. its practical application has been revealed by a number of decisions of the High Court and this Court. If a corporation is alleged to have contravened sub-s. 52{1) by making a statement of 'D ast or present fact, the corporation's state of mind is immater:al unless the statement involved the state of the corporation s mind. Whether or not sub-s. 52(1) 1s contravened does not depend upon the corporation's intention or its belief concerning the accuracy of such statement, but upon whether the statement in fact contains or conveys a meaning which is false; that 1s to say whether the statement contains or conveys a misrepresentation. Most commonly, such a statement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate; but a statement which is ilterally true may contain or convey a meaning which is false. 12. Many statements, for example, promises, predictions and opinions, do involve the state of mind of the maker of the statement at the time when the statement is made. Precisely the same principles control the operation of sub-s. 52(1) with regpect to the making of such statements. A statement which involves the state of mind of the maker ordinarily conveys the Meaning (expressly or by implication' that the maker of the statement had a particular state of mind when the statement was made and, commonly at least, that there was basis for that state of mind. If the meaning contained in or conveyed by the statement is false in that or in any other respect, the making of the statement will have contravened sub-s. 52(1) of the Act. Compare Lyons v. Kern Konstructions (Townsville) Pty Ltd (1983) 47 A.L.R. 114. The non-fulfilment of a promise when the time for performance arrives does not of itself establish that the promisor did not intend to perform it when it was made or that the promisor's intention lacked any, or any adequate, foundation. Similarly, that a prediction proves inaccurate does not of itself establish that the maker of the prediction did not believe that it would eventuate or chat the belief lacked any, or any adequate, foundation. Likewise, the incorrectness of an opinion (assuming that can be established) does not of itself establish that the opinion was not held by the person who expressed it or that it lacked any, or any adequate, foundation. 13. The applicants argued that, nevertheless, the statement of an incorrect opinion is misleading or deceptive or likely to mislead or deceive merely because it misinforms or is likely to misinform. An expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and perhaps that there is basis for the opinion. At least if those conditions are met, an expression of opinion, however erroneous, misrepresents nothing. To this point, attention has been concentrated upon the making of statements, whether of fact or opinion. Whether a statement is a statement of past or present fact, a promise, a prediction, or an expression of opinion, the making of it constitutes conduct which is misleading or deceptive or likely to mislead or deceive if the statemert contains or conveys a misrepresentation. As we said earlier, the arguments for each side were related to the publication of information as "news". There has been little prior consideration by the Courts to publication of material as constituting conduct for the purposes of sub-s. 52(1) of the Act. In Universal Telecasters (Qid) Gtd v. Guthrie (1978) 32 F.L.R. 360, the proprietor of a television station was prosecuted for an alleged contravention of para. 53(e) of the Act in connection with a broadcast of an advertisement containing false or misleading statements concerning the existence of a price reduction. The corporation was convicted but the conviction was quashed by a majority on appeal. Special leave to appeal to the High Court was refused. All three members of the Full Court 14. (Bowen C.J., Nimmo and Frank: JJ.) were of opinion that, by broadcasting the advertisement, the corporation had made the statements concerning the existence of the price reduction which was contained in the advertisement, although since the corporation succeeded, the opinions of the two judges who comprised the majority (Bowen C.J. and Franki J.) were cbiter. Nimmo J. expressed the view at p.368 that "the making and publishing of the statements in this case were contemporaneous and mutually inclusive". His Honour did not expand upon the process of reasoning by which he arrived at that conclusion other than to say that he considered that it wag supported by sub-s. 85(3) of the Act which provides a defence to a corporation Which is an "innocent" publisher. Reference was alsc made by the other members of She Court to sub-s. 85(3). Franki J. said at p.377: "Although the phrase 'make false or misleading statements' rather suggests that there may very well be a difference between making a statement and publishing the statement of somebody else, I have come to the conclusion that, in general, where a telévision station telecasts an advertisement that contains certain spoken words, it is proper to hold that the television station has made a statement. Section 65(3) of the Act also points in the same direction." Bowen C.J. dealt with the relationship between publication and the making of a statement at some length. He did not rely upon sub-s. 85(3) for his conclusion that the television station proprietor had made the false or misleading statements in the advertisement. His Honour said at p.363: 15. "Counsel for Universal Telecasters sought to obtain some support for his argument upon the interpretation of 'make' in s.53(e) by reference to the use of the word 'publish' in s.85(3). I do not consider that the use of the word 'publish' in s.85(3) requires s.53(e) to be construed in the manner suggested. It may be noted that s.85(3) provides a defence which is available in respect of the offences provided for in other paragraphs of 35.53, besides s.53(e)." Of course, no present question arises of what 1s meant by the word "make". Its present use arises not as part of a statute but in the discussion of wna effect and apsiication of a stacutory provision expressed in different language. Further, importantly for present purposes, Bowen C.J. made ic clear that whether the publication of an advertisement containing false or misleading statements constituted the making of those false or misleading statements could only be decided by reference to all of the facts of a particular case, including the content of the advertisement. One of the disadvantages of the Stated Case procedure in this matter is that questions which tne parties anticipate may arise must be considered in the abstract. However, if such difficulties be put to cone side, it is possible to conclude that the pubiication of incorrect information may constitute conduct wnich is misleading or deceptive or likely to mislead or deceive within the meaning of sub-s. 52(1) of the Act; but will only do so if the conduct contains or conveys a misrepresentaticn. Obviously, in the determination of that question, the meaning of the words 16. published will be of considerable importance. It is important to emphasise that the meaning 1s to be determined by reference to what is published by the corporation, and that the ultimate task is to determine whether its conduct in publishing the words 15 misleading or deceptive or likely to mislead or deceive. "There can be little doubt that the nature and quality of the publication may vary, dependent upon whether it 1s a report of what another has said and whether 1t 13 adopted, repudiated or discounted.":; Wake v. John Fairfax and Sons Ltd (1973) 1 N.S.W.L.R. 43 at p.49 (C.A.). In the same case it was said at p.50: "When a defamatory publication furports to repeat or report the defamatory statement of another 1¢ is an essentiaily different libel from one where the game imomutation 2s conveyed directly." A similar observation is applicable to the publication of the inaccurate statement of another. Such a statement is essentially different in the meaning which 1t contains or conveys unless it is adopted by the publisher and he will not necessarily do this by merely publishing the statement. Once it is recognised that it is the conduct of a corporation which must be misleading oc deceptive or likely to mislead or deceive to attract the operation of sub-s. 52(1), the principal difficulty which exists concerns the proper approach to the interpretation of the conduct which is impugned. Similar problems have been encountered in determining the meaning of material which is alleged to be defamatory. In defamation 17. proceedings, a wide approach has sometimes been adopted to the meanings which may be attributed to a statement by those to whom it is published. See, for example, Lewis v. Daily Telegraph Ltd £19633 19.B. 340; affd €1964) A.C. 234; Morgan v. Odhams Press Ltd £19713 1 W.L.R. 1239; Steele v. Mirror Newspapers Ltd £19741 2 N.95.W.L.R. 348. In Mivror Newspapers Ltd v. Harrison £1982] 56 A.L.J.R. 808 the leading judgment was delivered by Mason J. It is convenient to quote two passages from p.812. At 2nd column, letter C, His Honour said: ",.. It is necessary to repeat the remarks of Holroyd Pearce L.J. in Lewis which preceded the sentence which I have already quoted from his judgment: 'When persons publish words that are imprecise, ambiguous, loose, fanciful or unusual, there 1s room for a wide variation of reasonable opinion on what the words mean or connote. The publisher can hardly complain un such a case if he is reasonably understood as having said somethirg that he did not mean. But when words with a precise and well-known meaning are used without the addition of any expressions which covld impart some other flavour to them, 16 15 not fair to twist them from their rormal sense.' (p.374)" However, as his Honour had earlier pointed out at 1st column, letter A: "...A distinction needs to be drawn between the yeader's understanding of what the newspaper 13 saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement 1s capable of bearing an amputation defamatory of the plaintiff because the ordinary reasonable 18. reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conciusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what 15 conveyed by the published material in the mina of the ordinary reasonable reader." In Taco and Puxu, supra, it was similarly emphasised that there 13 no contravention of sub-s. 52(1) of the Act unless error or misconception results from conduct of the corporaticn, and not other circumstances for which the corporation is not responsible. One such circumstance may in some cases be a lack of care or vigilance in all the circumstances by those said to have been o¢ to be likely to be misled or deceived: see Puxu, supra, per Gibbs C.J. at p.6 and per Mason J. at p.15. However, the character of the corporation's conduct is not tested by reference to its effect or likely effect only on the reasonable man, but by reference to the entire class of "possible victims": Puxu. supra, ibid and per Murphy J. at p.19; Taco, supra, at p.202. It follows from what has oveen said that question (ii) must be answered in the affirmative. In our view none of the remaining questions should be answered. In the first place, all such questions involved the applicants' alleged loss and damage as presently claimed which the respondents elected not to make the subject of argument 19. before this Court, in consequence of which we were not addressed on the topic by the applicants. Secondly, central to all those questions are relationships between the respondents, and hetween the first respondent and the journalist who wrote the articles and the editors who decided tc publish tnem. Inevitably, details of those relationships were not explained by reason of the Case Stated procedure which the parties adopted. There is obvious scope in these areas for factual controversies. For example, while the state of mind of a corporation is in law the state of mind of those who control the corporation (Commissioner of Taxation (Commonwealth) v. Whitfords Beach Pty Ltd £1982] 56 A.L.0.R. 240) that prirciple may be of little assistance here when the facts are ultimately found. In practice opinions may be published by a newspaper which are not in fact the opinions of those who control the newspaper, but are the opinions of employees and others. The lastmentioned opinions may nevertheless be presented as the newspaper's opinions. Further, s.84 of the Act can only operate by reference to the facts of a particular case. Any answer which the Court may give to the questions now under consideration may 1mpinge upon the future conduct of this proceeding in a manner which might cause 1t to miscarry. As ig recognized in general terms by paragraph 15 of the Case Stated, the contents of a newspaper suchas "The Australian" or "The Weekend Australian" cover an extremely broad range, with wide variations both in form and subject matter. Law lists, weather forecasts, stock exchange reports, reviews, 20. articles on specialised subjects by identified experts, photographs, cartoons, etc. all accompany what might be more narrowly considered "news", which commonly relates both to local and foreign events. Some articles woulda more readily be taken as statements by the newspaper than others. For example, an item of local news, such as a statement that a local company had failed, particularly if unaccompanied by a by-line, might often fit readily into that category. On the other hand, foreign news such as a report of the commencement of a war in another part of the world might, of its very nature, often suggest that the newspaper was doing no more than retailing information which had been supplied to it. It is impossible to generalize and futile and dangerous to attempt to do so. The basic dispute between the parties concerne the respondents' contention that the publication cf statements including statements of opinion made in the ordinary course of the publication of news in those parts of 4 newspaper which are not advertising material cannot be conduct which is misleading or deceptive or likely to mislead or deceive within the meaning of sub-s. 52(1) of the Act. For the reasons which we have stated, we are of opinion that the respondents' assertion is incorrect. Beyond that, as has previously been emphasised, for example, in Taco, supra, at p.199: "The question whether varticular conduct of which complaint is made is misleading or deceptive or likely to mislead or deceive is, in the ordinary case, a question of fact to be answered in the context of the evidence ag to the alleged conduct andas to the relevant surrounding facts and circumstances." 21. See also Puxu, supra, per Gibbs C.J. at p.7 In the result, question (ii) shculd be answered "Yes"; question (iii)(a) should be answered "Yes"; and question (ii1)(b) should be answered "Yes, 1 the matters in paragraphs 3 and 13 of the Case are established". No other questions should be answered. As agreed and recorded in the Case Stated, the respondents must pay to the applicants tneir taxed costs of and incidental to the proceedings in relation to the Case Stated. be. "dy 56)