JUDGMENT No. 7657 8 CATCHWORDS TRADE PRACTICES - Health insurers - comparative advertising - whether advertising misleading or deceptive - whether appellant should publish correcting advertisement. Trade Practices Act 1974 $,52 Parkdale Custom Furniture Pty. Ltd. v. Puxu Pty. Ltd. (1992) 149 CLR 191 Global Sportsman Pty.Ltd. v. Mirror Newspapers Ptv. Ltd. /1984) 2. FCR 82 Janssen Pharmaceutical Ptv. Ltd. v. Pficer Pty. Ltd. (1982) ATPR 40-654 HOSPITALS CONTRIBUTION FUND OF AUSTRALIA LIMITED v. SWITZERLAND AUSTRALIA HEALTH FUND PTY. LIMITED No. G569 of 1987 CORAM: Fox. Davies and Morling JJ. 23 December 1987 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G569 of 1987 GENERAL DIVISION ) BETWEEN: HOSPITALS CONTRIBUTION FUND OF AUSTRALIA LIMITED Appellant AND: SWITZERLAND AUSTRALIA HEALTH FUND PTY LIMITED Respondent CORAM: Fox, Davies and Morling JJ. DATE: Judgment - 23 December 1987 Orders - 18 February 1988 PLACE: Sydney MINUTES OF ORDER THE COURT ORDERS: 1. That the appeal be allowed. 2. That the orders made by Wilcox J. on 4 November 1987 and 19 November 1987 be discharged and that in lieu thereof it be ordered:- (i) that the respondent, Switzerland Australia Health Fund Pty Limited, trading as "Health Australia", be restrained from publishing or causing to be published any advertisement or representation to the effect that:- (a) "All major health funds now reduce your hospital cover the longer you are in hospital and the more you need it"; (b) a contributor to the appellant's health fund would necessarily suffer a reduction in benefits after 14 days in hospital; (c) the respondent's health fund provides more cover at less cost than does the appellant's health fund; or NOTE: (ii) (iii) (d) "You can save up to $364 (or any other specified sum) on top hospital and auxiliary cover compared with HCF". That the appellant, Hospitals Contribution Fund of Australia Limited be restrained from publishing or causing to be published any representation that the appellant pays higher benefits on major health care items without, in that same representation, clearly stating that the said representation does not mean or imply that the appellant pays to contributors higher benefits than any other fund in respect of hospital accommodation charges assessed at the top cover rate. That leave be granted to either party to apply to the Court upon seven days notice to the other for the dissolution or variation of any order which, as the result of any change made after this day, would have the effect of restraining the making of a representation which 1s no longer false or misleading. That the respondent pay to the appellant 75% of the appellant's costs of the application and of the appeal. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN_THE FEDERAL COURT OF AUSTRALIA } ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G569 of 1987) SENERAL DIVISION ON_APPEAL from a single Judde of the Federal Court of Australia BETWEEN : HOSPILALS CONTRIBUTION FUND OF AUSTRALIA LIMITED Appellant AND: SWITZERLAND AUSTRALIA HEALTH FUND PTY. LIMITED Respondent CORAM: FOX, DAVIES AND MORLING JJ. DATE: 23 DECEMBER 1987 REASONS FOR JUDGMENT (EX TEMPORE) FOX J. IT agree with Morling J. Iwill just add a few words myself. Statements have been made in this Court on a number of oecasions to the effect that where comparative advertising is concerned, representations coming under s.52 of the Trade Practices Act 1974, which relates to conduct likely to mislead or deceive, will be examined more critically. This flows from the conclusion that, in general, where representations are made comparing one product with another, the ordinary person to whom they are addressed is less likely than otherwise to regard what is said or written as a mere exaggeration, stated with an excess of enthusiasn. The language is more likely to be regarded as having been put forward deliberately and with some precision. In the present case, there is comparative advertising between health benefit insurers. The whole topic of health insurance has, for many years, been rather confused but it is my belief that when the registered health benefit insurers themselves state matters in their advertising material they will commonly be regarded as having been stated with accuracy. When it comes to comparative advertising between them, the two elements which I have mentioned, combine. The ordinary member of the public to whom the advertisements are addressed is more likely to be misied than in many other situations. This result is to be avoided and obviously can be with proper advertising. I agree with the orders proposed by Morling J. DAVIES J. I concur with the views expressed by my brothers. I concur with the orders proposed. I certify that this and the preceding page are ae true copy of the Reasons for Judgment herein of his Honour Mr. Justice Fox and his Honour Mr. Justice Davies. Associate: SCare [oh - Date: 23 December 1987 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G569 of 1987 ) ) GENERAL DIVISION On appeal from _a_judge of the Federal Court o Australia BETWEEN: HOSPITALS CONTRIBUTION FUND OF AUSTRALIA LIMITED Appellant AND: SWITZERLAND AUSTRALIA HEALTH FUND PTY. LIMITED Respondent CORAM: Fox, Davies and Morling JJ. DATE: 23 December 1987 REASONS FOR JUDGMENT MORLING J.: The parties to this appeal carry on rival businesses as health insurers. In the course of seeking business they advertise the benefits which they offer to prospective contributors to the funds which they operate. Each of them claims in these proceedings that the other's advertising 1s misleading. In the decision under appeal the learned trial judge held that, save in one minor respect, the respondent's advertising was not misleading. He further held, on a cross-claim brought by the respondent, that the appellant's advertising was misleading in a number of respects, and ordered the appellant to publish a _ correcting advertisement. The appeal has been heard as a matter of urgency since the parties desire to know whether they may properly pursue the advertising campaigns upon which they have embarked. Accordingly, and notwithstanding the shortness of time available for the preparation of reasons, 1t 1s desirable that the decision on the appeal should be given without delay. Three questions arise on the hearing of the appeal. The first question 1s whether his Honour was in error in finding that the respondent's advertising was not misleading save in respect of the one minor matter to which I have referred, The second question 1s whether his Honour was in error in finding that the appellant's advertising was misleading. The third question is whether the order that the appellant publish a correcting advertisement was properly made. The respondent's print advertisements are described in the judgment under appeal as follows: "The subject newspaper advertisements vary a little, but their essential features are constant. In each case there is a banner heading across the top of the advertisement, which occupies a whole tabloid newspaper page. The standard heading is 'Introducing Health Australia. Saving you up to $364 a year in sickness and in health'. Some of the advertisements amend this to refer to 'at any Soul Pattinson chemist' or 'at any Amcal chemist'; those two pharmacy groups having been appointed as agents of HA. After the figure $364 there 1s an asterisk directing attention to the rate charged by HCF in its top scale, as shown on the table to which I will refer. The effect 1s to make it plain that the saving of $364 a year may be made only by substituting the top hospital and ancillary rate of HA ($17.40 per week) for that of HCF ($24.40 per week), The advertisement includes two photographs of a man in bed; in one case in hospital, the other at home, but in each case wearing a satisfied smile. Underneath the photographs the following appears: For yeers you may have been paying too much for your health cover. And not getting enough in return. Not only that, ail the major health funds now reduce your hospital cover the longer you're in hospital and the more you need i. it seems grossiy unfair to us. So now Health Austraisa, Australia's newest health fund, offers you @ better value alternate. Lesscost, more cover. Here's what you get with Health Australia. You can save up to $364° a yeer on top hospital and ancillary cover compared to H.C.F. . You get up to $160 a day more cover then with Medibank. Health Australia won't reduce your hospital cover after 14 days. All the other mayor funds will! {Except ior renebddetion and pryctueine benette). With Health Austratia you get your full iasured hospital cover for 80 days in the first year of your membership, and 180 days after the fourth yeer. And whatever happens, you're covered for 365 days on our basic hospital table. ( Sutyact 10 the required meccal carnhcate after 35 éeysi. Heath Australia ie the only major health fund that guarantees " to hold your quoted contribution rates during the period for The respondent has made two television advertisements the contents of which are described in the judgment under appeal. It was agreed by counsel on the hearing of the appeal that it is unnecessary to give separate consideration to the these advertisements. 4. The first complaint made by the appellant against the respondent's advertising is that it conveys the impression that the appellant's health fund reduces the hospital cover of its contributors according to the length of their stay 1n hospital. This allegation is based upon the statement in the advertise- ment that "... all the major health funds now reduce your hospital cover the longer you're in hospital and the more you need it". The trial judge took the view that a person reading the whole of the advertisement would not conclude that there is a progressive reduction in cover the longer one of the appellant's contributors remains in hospital (which is not the case). He thought that, read in its entirety, the advertisement sufficiently conveyed to a reader of it that there was only a single step down in the rate of benefit at the expiration of 14 days hospitalization. With some hesitation, I have reached a different conclusion on this matter. In my opinion the statement that "all the major health funds now reduce your hospital cover the longer you're in hospital and the more you need it" is likely to induce in the mind of the reader the belief that all the other major health funds progressively reduce the hospital cover of their contributors according to the length of their stay in hospital. His Honour thought that the statement was couched in emotive and imprecise language and that the words "the longer you're in hospital" are so vague that they would be unlikely to instil any belief as to the facts, true or false. I am unable to agree that this 18 so. The words used are, to my mind, sufficiently precise to convey that the other funds do, indeed, progressively reduce their contributors' hospital benefits according to the length of their stay in hospital. The meaning conveyed by the words 1s vague insofar as they do not identify when, and by how much, the benefits offered by the other funds are reduced. However, there 1s no vagueness in the assertion that, in effect, there 1s a progressive reduction in cover. His Honour thought that the making of the subsequent statement that "Health Australia won't reduce your hospital cover after 14 days" makes it obvious to the reader that reference 1s being made only to a single reduction in cover after 14 days. I cannot agree that this is the case. The statement that the respondent will not reduce its hospital cover after 14 days does not, of itself, convey anything as to the cover offered by the other major health funds. It is true that some readers reading the whole advertisement may make the assumption that the subsequent statement qualifies the former and interpret the subsequent statement as conveying that there is no progressive reduction in cover offered by the other major health funds. But many other persons interested in obtaining health cover and reading the advertisement might well not appreciate that there is only one step-down at the expiration of 14 days in the cover offered by the appellant. Accordingly, I think the statement that "all major health funds now reduce your hospital cover the longer you're in hospital and the more you need it" is misleading or deceptive. 6. The appellant's second complaint about the respondent's advertising is that the statement that all the other major funds will reduce hospital cover after 14 days, although true in the majority of cases, is not true in every case. To understand this submission it is necessary to make brief reference to some of the facts proved at the trial. The appellant's rules prescribe a lower rate of private hospital accommodation benefits for periods extending beyond the first 14 days of hospitalization. However, it appears that many private hospitals reduce their accommodation charges after 14 days. As a consequence of this, the gap between the cost to the patient and the benefits received by him may not be increased. Further, there are other provisions in the appellant's rules which have the result that, in many cases, no reduction in benefit is actually suffered by a contributor after 14 days. For instance, the rules provide for daily accommodation allowances for "continuing high dependency treatment" given to a patient. The amount of the allowance varies with the category of patient. It 1s true that entitlement to the allowance depends upon the decision of a medical adviser nominated by the appellant and that no appeal is given against the medical adviser's decision. But in cases where an allowance is paid the amount paid equals the amount of the step-down at the expiration of 14 days hospitalization. Moreover, the appellant's rules provide for the payment of a benefit of up to $1,000 for private hospital patients treated 7. in an intensive care unit. Depending upon the circumstances of the particular case, this benefit may serve to off-set any reduction in normal accommodation benefits after 14 days. There was evidence before the trial judge to the effect that, in the case of contributors to the appellant's fund who were admitted in the quarter ended June 1987 to a private hospital for advanced surgery and who remained in hospital for a period exceeding 14 days, about one-third of such contributors did not suffer any diminution in benefits as a result of the 14 day rule. It seems reasonable to suppose and the evidence shows that advanced surgery cases were more likely than other categories of cases (save psychiatric and rehabilitation cases) to involve hospitalization for periods in excess of 14 days. In the light of the evidence to which I have referred I think that a statement that the appellant's health fund will reduce a contributor's hospital cover after 14 days is misleading or likely to mislead. The statement 1s quite positive and is completely unqualified. I do not think it is a sufficient answer to the appellant's argument that one provision in its rules, looked at in isolation, provides for a reduction in benefits after 14 days hospitalization. The relevant rule is Rule 5. It is true that Rule 5.1.2 provides for a reduction after 14 days, but that is only part of the rule. Rule 5.1.6 is the rule making provision for hospital benefits for high dependency treatment. Rule 5.1.6 is as much part of Rule 5.1 as is Rule 5.1.2. To make reference to one 8. part of the rule without referring to the other 1s to give an incomplete picture of what the rule, as a whole, provides. It is highly unlikely that a reader of the advertisement would have poSsession of a copy of the appellant's rules. The reader would be likely, therefore, to be misled into the belief that the appellant's rules, taken as a whole, provide in every case that hospital cover is automatically reduced after 14 days. This is not so. Persons likely to read the advertisement would be concerned to know, froma practical point of view, whether they would necessarily suffer a reduction in benefits after 14 days in hospital. I do not think such persons would be concerned to know whether the benefits paid by the fund are characterized as hospital benefits or as one of the other benefits which, in some circumstances, are paid to contributors. I think that the respondent's advertisement would be read by persons contemplating joining a health fund as conveying that a person joining the appellant's fund will necessarily suffer a reduction in the monetary benefit paid to him after 14 days hospitalization. If a reader gained this impression, he would be in error. I therefore think the advertisement is misleading in this respect. In my opinion, it is not sufficient for the respondent to establish, as it did before the trial judge, that in a considerable proportion of cases a reduction in benefit is actually sustained by contributors to the appellant's fund as a result of the reduction in cover after 14 days hospitalization. The advertisement is likely to induce in the mind of the reader the understanding that cover will be reduced in all cases after 14 days hospitalization. This is not the case. The final attack which the appellant makes on the respondent's advertisement is that the combination of the table in the advertisement, the reference to "Less cost, more cover", and the statement that "you can save up to $364 a year on top hospital and ancillary cover compared with HCF" is misleading or deceptive. It is submitted that unless there is a practical equivalence between the benefits received by contributors to the appellant's and the respondent's funds, it is misleading to advertise in this fashion. As I understand the appellant's argument on this point, 1t is conceded that the respondent's fund does offer "more cover" in respect of some health care items. But, so it is submitted, the appellant's fund offers more generous benefits in respect of other items. It is argued that the benefits offered by the funds are so diverse as not to be substantially comparable and are incapable of being precisely compared in money terms. The appellant concedes that the charges made by the respondent in connection with each of basic hospital cover, top hospital cover and ancillary cover are less than the charges made by it, but it is submitted that the words "more cover" suggest to the reader that the benefits offered by each of the funds are so similar as to invite the reader to compare the virtues of the schemes by reference to the lower cost of membership of the respondent's fund. 10. The trial judge accepted that it was extremely difficult, if not impossible, to compare the tables of ancillary benefits. However, he thought that looking at the benefits which were offered by the appellant's and the respondent's funds by way of top cover with ancillary benefits, the respondent's fund offered the more attractive package of benefits. He reached this view because the hospital benefits offered by the respondent were, in his opinion, markedly superior to those offered by the appellant. He accepted that it was not possible to speak of "more cover" unless there was, at least, substantial comparability of items but he did not think that the respondent's advertisement implied absolute comparability. Counsel for the appellant submits that in comparing the benefits offered by the two funds his Honour placed too much emphasis on the supplementary hospital accommodation benefits offered by the funds. He points out that these form only a relatively small part of the total provision of services under the funds. He submits that his Honour's finding that it was extremely difficult to compare the tables of ancillary benefits showed that he was not in a position to make a finding that the respondent's package including those benefits was more attractive than the appellant's package. He also submits that there was no material upon which his Honour could have formed the view, as he did, that supplementary hospital accommodation benefits are easily the most important type of benefits to contributors. 11. Counsel for the respondent submits that what is compared in the advertisement is "top hospital and ancillary cover". He argues that this involves a comparison of an overall package of top hospital cover together with other benefits which are described as "ancillary", that is, ancillary to the more major or significant items of hospital cover. He says that it is not to the point that there are items in the two ancillary packages that cannot be compared. He submits that it is usual in the hospital fund industry for funds to compare the various packages they offer to contributors. Counsel for the respondent further submits that the advertisement says that one "can" save up to $364 a year on top hospital and ancillary cover, and that it does not say that one "will" save that sum. Put another way, he submits that the advertisement conveys to the reader that he may save that amount of money, but will not necessarily do so. He submits that read in this context, "one is comparing relatively like with like". I do not think anything turns on the fact that some of the benefits are described as being ancillary. In truth, that word is a misnomer in the context in which it is used. The benefits are not necessarily related to hospitalization. They are additional and separate benefits. I am of the opinion that the appellant's submissions on this matter should prevail. The words "more cover" immediately follow the words "less cost". The reference to 12. "less cost" is a reference to the difference between the appellant's and respondent's top hospital and ancillary weekly rates, as set out in the table. The comparability of these weekly rates is highlighted by the making of the statement that "you can save up to $364 a year on top hospital and ancillary cover compared to HCF". In other words, a direct comparison is made between the two funds on the matter of costs. I think the reader of the advertisement could only understand from the reference to "more cover" that the cover offered by the two funds is also directly comparable, and that the respondent's fund offers more cover. This form of advertising 1s truly comparative. A person who resorts to such advertising runs the risk that if the comparison he makes is not accurate, it will be likely to mislead the reader. It is true that conduct which merely causes some uncertainty in the minds of relevant members of the public does not infringe s.52: see Parkdale Custom Furniture Pty. Ltd. v Puxu Pty. Ltd. (1982) 149 CLR 191 at p.210 per Mason J. However, I am of the opinion that, in the respects to which I have referred, the respondent's advertisement would not merely create uncertainty. It would be likely to lead the reader into error. Conduct is likely to mislead or deceive 1f there is a real or not remote chance that it will have that effect: see Global Sportsman Pty. Ltd. v. Mirror Newspapers Pty. Ltd. (1984) 2 FCR 82 at p.87 and cases there cited. In my opinion there 1s a real and not remote chance that a person reading the respondent's advertisement would be 13. misled into thinking that the cover offered by the appellant's and the respondent's funds 1s comparable, and that the respondent offers more cover. It is not sufficient, in my opinion, for the respondent to be able to show that in respect of some of the items in its package the cover which it gives to its contributors is superior to that given by the appellant in respect of similar items. I am therefore of the opinion that the respondent's advertisement is also misleading in this respect. In the result, I would uphold the appeal against that part of his Honour's decision as found in favour of the respondent on the form of its advertisement. I turn now to consider the appeal against the findings made by his Honour on the respondent's cross-claim. His Honour found that, in two respects, newspaper and television advertisements published by the appellant infringed s.52. The newspaper advertisement was under a banner heading "If you want the best health care cover available it's time you gave your present health fund a check-up". After some pictorial material and a sub-heading "HCF - the healthiest health fund of them all" the advertisement continued: "When you go looking for the best value health cover, you'll soon realise that HCF pays higher benefits on major health care items than any other fund - and 1t offers a range of benefits that just aren't available elsewhere." 14. The advertisement included a number of other general statements including a claim that HCF offered "The best value health cover you can buy!". As in the case of the respondent's television advertisements, counsel are agreed that the appellant's television advertisement need not be separately considered. His Honour found that it is misleading of the appellant to claim that it provides "the best value" health cover. This finding was based on the fact that the appellant's health cover is much more expensive than the respondent's and that, as his Honour thought, the respondent's fund offers much superior top hospital benefits. Although he thought that it was not possible to say which of the two funds offered the better value in the area of ancillary benefits, he was of the opinion that the respondent's price advantage clearly made its fund the better value. It is submitted on behalf of the appellant that its statement that a particular health fund offers "best value" would be understood by any reasonable reader as conveying no more than that the advertiser regards his product as the best. It is argued that, in itself, this statement does not enable any comparison to be made and therefore should not be regarded as misleading. The statement, so it 1s submitted, amounts to puffing of the kind commonly adopted by advertisers, and would be appreciated by readers as such. is. Counsel for the appellant contends that in deciding that the respondent's fund offered better value to contributors than the appellant's fund his Honour gave undue weight to some Matters which he thought weighed heavily in favour of the superiority of the respondent's fund. For instance, the effect of the 14 day step-down rule was said to have assumed much greater importance in his Honour's mind than was warranted. In support of this submission he pointed out that the proportion of hospital patients who are hospitalized for periods in excess of 14 days is very small. I think it was demonstrated in argument that for many contributors, depending upon their particular circumstances, the appellant's fund might offer better value than the respondent's fund, if regard is had only to matters such as the money value of ancillary benefits and the range of services. It is plain that the trial judge's decision was influenced to a marked degree by his perception that the greatest health risk was that associated with prolonged hospitalization and that any advantages which the appellant's health fund might have over the respondent's fund were outweighed by the disadvantage of the step-down in benefits after 14 days. Whilst the step-down rule would obviously operate to the disadvantage of some contributors, its overall effect on the totality of contributors is very small indeed, and may have been over-~estimated by his Honour. It is not possible to make a precise comparison between the total number of days spent in hospital by the appellant's contributors with the days spent in hospital by such contributors after an 16, initial period of 14 days hospitalization. However, the figures for the quarter ended 30 June 1987 suggest that the figure is about 4% and this includes psychiatric and rehabilitation cases, which are no longer relevant. It therefore seems that the 4% figure would fall significantly with the exclusion of these cases. On any basis, the overall effect of the 14 day step-down rule is comparatively minor when compared with the totality of hospital benefits, and even more minor when compared with hospital and ancillary benefits. Further, taken in its entirety, the appellant's advertisements do not limit the claim of "best value" to matters of amount and range of benefit. The appellant makes the claim in its advertisement that it has provided "millions of Australians with top-class health cover over more than 50 years" and that "In that time it has built up a reputation for friendly, personal service through its network of conveniently-located branch offices, where claims can be paid on the spot." These claims are made under a sub-heading reading "Some health funds aren't so healthy." In my opinion it is relevant to have regard to matters such as the standard of customer service when considering the relative benefits offered by competing health funds. Indeed, the very fact that a fund has been in existence for 50 years is of itself a circumstance to which contributors could sensibly have regard in deciding which fund might give them better service. Again, a long history of trading may, and often does, signify that the trader has financial stability and a long term commitment to the industry in which it trades. I think that in deciding what 17. is "the best health care cover available" it 1s relevant to have regard to matters of this kind. In my opinion the question whether one of a number of competing health funds offers the best value health care available depends upon so0 many variable subjective and objective factors that the appellant's claim that its fund offers the best value health care cover available has not been shown to be misleading. The other finding made against the appellant on the cross-claim is that the statement that "HCF pays higher benefits on major health care items" is misleading. His Honour accepted that this statement does not imply that the appellant pays higher benefits on each and every item which may fall within the description "major health care 1tems". But he was of the view that since it could not be said that the appellant pays higher benefits on all significant items in health insurance, to make an unqualified statement that it pays higher benefits "on major health care items" is, at least potentially misleading. I agree with his Honour's finding in this respect. It is true that the advertisement does not refer to all major health care items. This has caused me to hesitate in reaching my conclusion on this matter. Nevertheless, I think many readers of the advertisement may not be astute enough to appreciate that the appellant does not pay higher benefits on all major health care items. Some would, but many others would 18. not. I am prepared to accept that the advertisement was not deliberately intended to mislead, but I think that, in this respect, it has that potential. The final matter which arises for consideration 1s the appellant's contention that an order should not have been made requiring it to publish a correcting advertisement. It is submitted on its behalf that the trial judge did not have power to order it to publish a correcting advertisement. I think this submission is unsound. For the reasons given by Burchett J. in Janssen Pharmaceutical Pty. Ltd. v Pfizer Pty. Ltd. (1986) ATPR 40-654 I think the Court does have power, in an appropriate case, to order a person whose conduct has infringed 58.52 of the Trade Practices Act to publish a correcting advertisement. However, in the light of the reasons which I have expressed, I do not think it would be appropriate to require a correcting advertisement to be published. Quite apart from my finding that the appellant's advertisement is not misleading in as many respects as his Honour found, the passage of time since it last appeared makes it inappropriate to now require a correction to be published. His Honour stayed the operation of that part of his order which required publication of the correcting advertisement. It is now about five weeks since the last misleading advertisement was published. I think this court should proceed upon the basis that since about 11 November 1987 (when his Honour's decision took effect) the appellant has neither placed advertisements in newspapers nor 19. distributed brochures which have contained the misleading material. As his Honour pointed out in his judgment, the power to order corrective advertising is one to be used protectively and not by way of punishment. In my opinion any person whose mind might have been swayed by the advertisements which appeared before 11 November would have already made a decision to join the appellant's fund. Having regard to the time which has elapsed since the last publication of any of the appellant's advertisements containing the statement which I think is misleading, I do not think that there is now any real purpose to be served by the publication of a correcting advertisement. The appeal should be allowed to the extent that I have indicated. The existing injunction should be discharged, and appropriate orders should be made enjoining the appellant and the respondent from engaging in conduct infringing s.52 of the Trade Practices Act. The appellant should be directed to bring in short minutes of appropriate orders. At the request of counsel, I would reserve the question of costs. I certify that this and the eighteen (18) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Morling. Associate: Carolyn Mowison Date: 23 December 1987 Counsel for appellant: instructed by: Counsel for respondent: instructed by: Date of Hearing: Date of Judgment: 20. R.V. Gyles Q.C. with N. Cotman Baker and McKenzie A.G. Goldberg Q.C. with P.F. Esler Clayton Utz 7, 22 December 1987 23 December 1987