Truth About Motorways Pty Ltd ACN 080 135 191 v Macquarie Infrastructure Investment Management Ltd ACN 072 609 271 [2000] FCA 918

FEDERAL COURT OF AUSTRALIA

Truth About Motorways Pty Ltd (ACN 080 135 191) v Macquarie Infrastructure Investment Management Ltd (ACN 072 609 271) [2000] FCA 918 TRADE PRACTICES – application for summary judgment –whether claims for relief in the case as pleaded are clearly untenable and cannot possibly succeed – representation of estimate of likely future traffic volumes on toll road – alleged breaches of ss52, 53(aa) and 53(c) Trade Practices Act 1974 (Cth) – corrective advertising and declaration of misleading and deceptive conduct sought – applicant would not derive any advantage as a result of a successful outcome in the litigation – whether there could reasonably be any current misapprehension as a result of the impugned publication – whether it would be futile to order corrective advertising – significant lapse of time between statement and commencement of proceedings – whether redressed by superseding statements COSTS – security for costs – proceedings involved no private right or special interest of the applicant – public interest nature of litigation only one factor to be considered in deciding whether or not to order that security for costs be provided – whether there was sufficient grounds to displace the respondent's entitlement to security Corporations Law s 1335 Fair Trading Act 1987 (NSW) ss42, 44(b), 44(e) Federal Court of Australia Act 1976 (Cth) s 56 Trade Practices Act 1974 (Cth) ss 52, 53(AA), 53(c), 80, 80A, 163A, Part V

Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 169 ALR 616 applied Orison Pty Limited v Strategic Minerals Corporation NL (1988) 81 ALR 183 referred to Janssen Pharmaceutical Pty Limited v Pfizer Pty Limited (1985) 6 IPR 227 cited Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 95 FCR 114 cited Australian Competition & Consumer Commission v On Clinic Australia Pty Limited (1996) ATPR 41-517 cited HCF Australia Limited v Switzerland Australia Health Fund Pty Limited (1988) ATPR 40-846 cited Annand & Thompson Pty Limited v Trade Practices Commission (1979) ATPR 40-116 cited Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 cited Australian Competition & Consumer Commission v The IBM Group Pty Limited (1999) ATPR 41-688 cited Re Wakim; Ex parte McNally (1999) 163 ALR 270 referred to Australian Solar Mesh Sales Pty Limited v Spruson & Ferguson, Patent & Trade Mark Attorneys [1999] FCA 1730 applied Tradestock Pty Limited v TNT (Management) Pty Limited (No 1) (1977) 30 FLR 343 applied Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972 applied Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1 distinguished Bell Wholesale Co Limited v Gates Export Corporation (1984) 2 FCR 1 cited Qantas Airways Limited v Cameron (1997) 148 ALR 378 cited South-West Forest Defence Foundation Inc v Department of Conservation & Land Management [1998] HCA 35 cited Botany Bay City Council v Minister of State for Transport & Regional Development [1999] FCA 65 cited M A Productions Pty Limited v Austarama Television Pty Limited (1982) 1 ACLC 404 applied TRUTH ABOUT MOTORWAYS PTY LTD (ACN 080 135 191) v MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LTD (ACN 072 609 271) NG 833 OF 1997 HELY J 10 JULY 2000 SYDNEY