Amann Aviation Pty Ltd v Commonwealth

[1990] FCA 55

Re: THE HOSPITAL BENEFITS ASSOCIATION
And: HEALTH INSURANCE COMMISSION
Nos. V G313 and G333 of 1989
FED No. 55
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Trade Practices - consumer protection - Trade Practices Act 1974, s.52 - conduct likely to mislead or deceive - comparative advertising.

Trade Practices - consumer protection - Trade Practices Act 1974, s.80A(1)(6) - power to order corrective advertising - discretion.

HEARING

MELBOURNE

#DATE 23:2:1990

Counsel and solicitors J.G. Santamaria and J. Dodds
for the applicant: instructed by Messrs Cooke and

Cussen

Counsel and solicitors Dr. C. Jessup QC and
for the respondent: K. Howard instructed by Minter

Ellison

Counsel and solicitors Dr. C. Jessup QC and
for the applicant: K. Howard instructed by Minter

Ellison

Counsel and solicitors J.G. Santamaria and J. Dodds
for the respondent: instructed by Messrs Cooke and

Cussen

ORDER

In matter No. 313

Declare that the statements made by the respondent in September 1989 in the circulars addressed to paymasters and pharmacy agents purporting to compare the "Top Hospital" Tables of the applicant and the respondent were likely to mislead in contravention of s.52 of the Trade Practices Act 1974 ("the Act").

In matter No. 333

Declare that the television, radio, newspaper and billboard advertisements and promotional brochure authorised by the respondent referred to in the reasons for judgment ("the said advertisements") were likely to mislead in contravention of s.52 of the Act.

Order that the respondent be restrained from advertising matter or authorising the advertisement of matter in the comparative terms, express or implied, of the said advertisements or in any similar comparative terms.

Reserve liberty to the applicant to seek further relief by way of damages.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The parties to these proceedings, which have been heard together, carry on rival businesses in Victoria as health insurers. They are the major funds operating in Victoria. In the course of seeking business, they advertise the benefits which they offer to existing and prospective contributors to the funds which they operate. The present litigation arises out of "comparative" advertising by the parties which, it is said, is conduct likely to mislead and thus conduct engaged in contrary to s.52 of the Trade Practices Act 1974 ("the Act") (see generally Hospitals Contribution Fund of Australia Ltd. v. Switzerland Australia Health Fund Pty. Ltd. (1987) 78 ALR 483).

The claims made by the Hospital Benefits Association ("H.B.A.") (No. VG 313 of 1989)

1. H.B.A. claims that the Health Insurance Commission, carrying on business as "Medibank Private" ("Medibank"), made several misleading statements in circulars sent to paymasters and pharmacy agents. Although the circulars were addressed to paymasters and pharmacy agents, it can be inferred that, in the ordinary course of their dealings, the paymasters and the pharmacy agents would, in turn, communicate the terms of the circulars to interested members of the public.
   The paymasters' circular

2. The…