Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2001] FCA 1269

FEDERAL COURT OF AUSTRALIA

Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2001] FCA 1269

TRADE PRACTICES – misleading or deceptive conduct – where person published item containing statements – whether contravention by body corporate of Trade Practices Act 1974 (Cth) s 55 necessarily contravention also of Trade Practices Act 1974 (Cth) s 52(1) – whether essential issue in determining if publication contravened Trade Practices Act 1974 (Cth) s 52(1) is what is to be taken from statements – whether what is to be taken from statements involves determining what can be so taken as assertions about external world and about person's state of mind – whether what is to be so taken as person's state of mind involves considering whether person can be taken to have made assertions about external world as facts or opinions – whether what is to be taken from statements consists of what could reasonably be so taken by readers to whom statements directed – whether person by making assertion about external world which can reasonably be taken as opinion can also reasonably be taken to have made implied assertions of fact – whether ordinarily person can reasonably be taken to have made implied assertion of fact that person genuinely holds opinion – whether commonly at least person can reasonably be taken to have made implied assertion of fact that person has reasonable grounds for opinion at time person asserts it based on information then available to person – whether unnecessary to determine whether publication of item contravened Trade Practices Act 1974 (Cth) s 52(1) by statements considered as assertions of fact where court satisfied of such contravention by publication of statements considered as assertions of opinion – whether individual involved in contravention of Trade Practices Act 1974 (Cth) s 52(1) within meaning of s 75B(1) – whether individual's involvement something akin to fraudulent conduct – effect of Evidence Act 1995 (Cth) s 140(2) on court's determination of individual's involvement. Evidence Act 1995 (Cth) s 140(2) Trade Practices Act 1974 (Cth) ss 52(1), 55, 55A, 75B(1) Westpac Banking Corp v Northern Metals Pty Ltd (1989) ATPR ¶40-953 applied Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679 followed Australian Securities and Investments Commission v Solution 6 Holdings Ltd (1999) 30 ACSR 605 referred to Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 followed Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 27 FCR 149 referred to Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 followed RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 referred to Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 referred to Sutton v AJ Thompson Pty Ltd (in liq) (1987) 73 ALR 233 considered