Australian Municipal Publications PL v Pitt, R.G. and Anor.

[1994] FCA 723

CATCHWORDS

AIUIIMISTRATIVB LW - Neither members of State Purchasing

Council nor public aervants acting for State Purchasing Council entitled to shield of the Crown - State Purchasing Council a committee of 7 State public servants and 7 private sector repreaentatives established by a decision of State Council to advise State Government in respect of the State Purchasing Policy.

PRACTICE AND PROCEDURE - Objection to jurisdiction - sufficient on application for interlocutory injunction for there to be a serious question to be tried that Court has jurisdiction.

Trsde - ss. 6(3), 52, 80, 80(4)

Voor Handel En Sc- N.V, - v

Hunaalrian [l9541 A.C. 584

-	V	-	(1986) 161 C.L.R.
148

tlawthorn	Ptv. Ltd.	(1993) 40
P.C.R. 137

- v

A u s W a CmxaU?~ P ~ V . L& (1992) 110 A.L.R. 47

W T z a ~ w r t Ptv. LtQ, v Wes - r e t

-vs _Cormpisrion (1986) 13 P.C.R. 270

o v -

-

e u e of Sou- (1979) 145 C.L.R. 330

L l z u m m u
Brisbane

m - F OF AUSTRALIA 1 No. M; 127 of 1994

1

1

BETWEEN:  - - P

LTPL

Applicant

AND :  -

First Respondent

AND I v

Second Respondent

Drumrnond J

8	-	5 October, 1994
WHERE:	Brisbane

1.         The application in relation to paragraphs 13, 14 and 15 is dismissed.

2.         The costs of and incidental to the application are reserved to the trial judge.

3.         The application in relation to paragraphs 16, 17 and 18 is adjourned sine die with liberty to the parties to bring that part of the application back before the Court on notice.

4. UPON of counsel for the respondents

that the respondents will, within 24 hours, supply the solicitors for the applicant with the names of

-, ' all members of the State Purchasing Council

/. i	' thrpughout August 1994, together with the names of
-;/. ':	- all member8 of the State Purchasing Council as at

i f '	-- :'-today, 5 October, 1994, the applicant has liberty to
. I	join-all such members and former members of the

!	,)	.d - -	1 13' ' State Purchasing Council as respondents in the
'7 proceedings.

- ' I

A' ,

1.         The applicant 8hall file and serve its 8tatement of claim by Wednelrday, 2 November, 1994.

2.         The re8pondents 8hall file and serve their defence by Wednesday, 23 November, 1994.

3 .         The applicant shall file and nerve it8 reply, if any, by Wednemday, 7 December, 1994.

4 .         All partie8 shall file and nerve their verified list of documents by Wednesday, 21 December, 1994.

5.         Uutual inspection ohall be completed by Friday, 20 January, 1995.

6.         The matter 8 adjourned for further direction8 to 9.45 a.m. on Tuesday, 7 February, 1995.

Settlement and entry of order8 8 dealt with in

Order 36 of the - .

U4 THE -m 1 No. QG 127 of 1994

- S I D 1

- 1

BETWEEN:  PU- PTY,

LTPI.

Applicant

AND I -

First Respondent

M D I v

Second Respondent

GQLm:	Drunmond J
-1	30 September, 1994 and 5 October, 1994 Briabane

In the courae of hearing an application for an

interlocutory injunction, Drunrmond J made the following

ruling: 

I have before me an application for interlocutory

relief, including an order restraining, until trial of the
action, the members of the State Purchaning Council ("SPC")
and the second respondent from publishing or otherwise
comunicating to any persons certain statements which are net
out in the application. Relief is sought under 8. 80 the

s Act 1974 in respect of conduct infringing a.

52. Objection is taken to the Court's jurisdiction on the ground that the conduct sought to be restrained is conduct of persons within the shield of the Crown in right of the State of Queensland who are therefore Fnrmune from the reach of the

. -1 do not think it is necessary on this

application for interlocutory relief for me to reach any firm conclusion as to whether this objection is well-founded. It is sufficient, for present purposes, to determine only if there is a serious question to be tried as to whether the SPC does not have the protection of the shield of the Crown in

right of the State: see - t r Ltd. v

- i a R (1986) 13 F.C.R.

270, particularly at 273 and 274. If I reach that provisional conclusion, it will then be necessary to deal with the applicant's claims to interlocutory relief.

It is clear from what Mr. Orchard, the second
respondent, says that the warnings issued in August 1994, and

which have instigated the present proceedings, were despatched

by mail, so that 8. 6(3) the Trsde provides a

foundation for the relief claimed, if the respondent8 cannot rely on the ahield of the Crown in right of the State of Queensland to put them beyond the reach of the

W .

There is no dispute as to the principles to be applied in identifying whether a particular person or organisation, corporate or un-incorporate, is within the shield of the State Crown. The key issue is whether that

person or organisation is subject to extensive control by the Executive in conducting its activities. I was referred to

Ptv. Ltd, v State of S - (1993) 40

P.C.R. 137, particularly to the passage at 142-143, and to

-	v	#
Of the w e of S o u t h (1979) 145 C.L.R. 330 at 348.

In Voor l En rt N.V, v

P r o m [l9541 A.C. 584 at 616, in

a passage in the speech of Lord Reid quoted by O'Loughlin J in

Hawthorn, His Lordship said:

'In my judgment the question whether the curtodian is a aervant of the Crown depends on the degree of control which the Crown through itr Ministers can exercire over him in the performance of hi8 duties. The fact that a statute har authorised his appointment is, I think, immaterial, but the definition in the statute of his rights, duties and obligations is highly important."

I draw from this the proposition that the fact that executive authority a not determinative of the question	an organisation has been established under either rtatutory or
whether it is an instrumentality of the Crown in right of the State of Queensland.
The SPC is a committee of eeven representatives of certain State government departments and seven representatives from private sector groups, including the Queensland
Confederation of Industry and the ACTU, Queensland Branch.
Ur. Orchard says:

"I am the Acting Manager, Policy Development Unit, of the Administrative Services Department. A8 part of my duties I serve on the secretariat of the State Purchasing Council and am involved as part of my dutiem in the administration of the Queensland government's State Purchasing Policy. The council of the SPC meets at regular monthly meetings. The day-to-day administration of the SPC is conducted by a secretariat which is staffed by officers of the Public Service. Part of the duties of the secretariat is to respond to inquiries made by government officers and members of the public in relation to the Queensland government's State

Purchasing Policy. "

The other respondent, Mr. Pitt, is the Deputy Director-General, Commercialised Services Group of the Adminimtrative Services Department of the Queensland Government. Until mid-August last, he was the Deputy Chairman of the SPC. The warnings in question were issued some time in August. Hr. Pitt may well have been a member of the SPC when that was done. He does not suggest otherwise.

The cornittee, which comprises the SPC, was set up pursuant to a decision of State Cabinet of 27 May, 1991, which also then adopted what is termed a new comprehensive State Purchasing Policy. Mr. Pitt says of this Policy:

"The State Purchasing Policy applies to the procurement of all goods, equipment and services, including construction expertise by departments and statutory bodies as defined in the Financial Administration and Audit Act and all forms of procurement except real property transactions.'

The Cabinet Decision Summary records that on 27 nay, 1991 Cabinet decided, among other thing6, that a State Purchasing Council be established by 1 July, 1991, to arrsist in formulating a State Purchaeing Policy, to oversee its implementation, to review its effectiveness and to advise the Government on issues requiring consideration. Cabinet also decided upon the composition, in the way I have outlined, of the SPC and, further, that funding for the SPC be considered within the context of the 1991/92 budget allocations for the Administrative Service6 Department. It appear6 to be through that Department's vote that funding for the SPC probably continue6 to be made. Finally, Cabinet then a160 decided that the SPC should report annually to the Government on the operation and effectivenera of the State Purchasing Policy through the Kininter for Administrative Servicea, who ha6 atewardohip of the State Purchasing Policy.

. Pitt exhibits a document entitled "Role of the

State Purchasing Council", which he says:

Purchasing Policy, which is a loose-leaf folder	"forms part of the Queensland Government's State
which is updated from time to time."

Essentially the SPC appears to be a body set up at the direction of State Cabinet, whose role is to monitor the workings of the State Purchasing Policy and to give advice to the State Government about matters touching on that Policy. It ha6 no responeibility for implementing that Policy: that

8 the responmibility of purchasing officers in the Departments, local authorities and public corporations who are bound, by administrative direction, by the Policy. Par from being mubject to the kind of ministerial control that will attract the shield of the State Crown to it, the SPC appear8 to be so constituted as to be an advisory body to Government, whome value lies in it8 role as a provider to Cabinet of frank expert advice. It follows that the activities of the SPC are not covered by the shield of the Crown in right of the State of Queensland.

Although the public servant8 who form part of the committee that compri~em the SPC are, when acting am public 8ervant8, within the shield of the Crown, I do not think that when acting as member8 of, or when acting for the SPC, they are so mhielded. There in no evidence to muggest that they take to SPC meeting8 or to the performance of any activitiem on behalf of SPC the instructions of any of the State ministers and there is no evidence to muggest that they act

of the SPC or when acting on behalf of the SPC. The inference	only in conformity with ministerial instruction8 at gathering8
I draw from the evidence i8 that the public service member8 of the SPC are there to pool their personal expertise and knowledge with that of tho8e from the private sector, to ensure the best advice is given to the Government on its purchasing policy. I note that Mr. Pitt says:

"To the extent that I may be held personally remponsible for the publication of any warning in relation to the applicants directories, or

directories in general, I say that any involvement by me was in the course of my duties as Deputy Director-General, Services, and Deputy Director- General, Commercialised Services, and as deputised chair of the SPC:

He himself acknowledges that he wore two hats when acting in the matter of present relevance. I think that when acting for the SPC he really wore only one hat. That he may be entitled to an indemnity from the State Crown for actions done by him as a member of the SPC because he, as a public servant, was directed in accordance with the State Cabinet decision establishing the SPC to sit as a member of the Council, does not mean that he is within the shield of the State Crown when so acting.

The conduct sought to be restrained includes the repetition of conduct comprising the issue of a warning given in August last. The respondents argue that this is conduct of State public servants and as such beyond the reach of the

P-ces Act. The warning is exhibit 22A to the

affidavit of the applicant's main deponent, Mr. Halvorson. On	its face, it reads an a warning issued by the SPC. It is on
an SPC letterhead. It contains a warning about publications like the applicant's and concludes with a reminder that:

"The State Purchasing Council has previously warned Queensland business to be wary of approaches to take advertising in directories or purchasing indexes."

There is nothing in this warning to suggest it was issued by a Queensland government department or by an officer of the Queensland government, acting as such. In particular, there is nothing in the evidence before me that suggelrts that those public servants, including Mr. Orchard, who comprise the

SPC secretariat and who were responsible for issuing the

warning, took that action in the course of their public service duties as off icers of the Administrative Services Department rather than on behalf of the SPC. That they happened to be public servants does not necessarily stamp all they do am action taken on behalf of the State Crown.

Hr. Orchard says that the secretariat of the SPC continued to receive complaintm through the first half of 1994 in relation to directories of the kind of which the applicant's directories provide an example. He said that he discussed these matters on a regular basis with fellow officers within the secretariat of the SPC; their concerns were that bueinesses and government officers were confused

about the role which the applicant's directory had in the

Queensland Government State Purchasing Policy and many

perceived the directory to be a Queensland Government publication. He adds that on 21 June last, the SPC secretariat sought advice in writing from an officer in Consumer Affairs in relation to the matter and received such advice. He also says that on or about 13 July, 1994 a warning was drafted and eubmitted to Consumer Affairs for comment. No changes were made by the secretariat of the SPC to the wording

of this draft warning and it was that warning which was

issued. . Orchard says that the reason the secretariat of

the SPC produced the warning document was so that the secretariat would be in a position to send it to persons making inquiries of the secretariat, to provide it to persons attending events organised by the SPC and to distribute the same to advertisers in the directory published by the applicant entitled "The Queensland Government Purchasing Directory 1994". There is no evidence that any member of the SPC disclaimed what Orchard and his fellow public servants comprising the SPC secretariat did in issuing the warning on SPC's letterhead and in a form that indicated it was a warning from the SPC. I infer the issuing of the warning, even if it should turn out to have been done without SPC's express prior authority, was ratified by the SPC.

I am satisfied there is, at the very least, a serious querrtion to be tried as to whether the warning was isaued by or on behalf of the SPC.

Although relief is sought against the SPC as well as against the two respondents alone sued, those respondents are not sued as representing SPC members. Who constitutes the SPC, or more relevantly, who constituted it at the time in question, is not known to the applicant. It is not revealed in the respondents' material. This information must be well known to the respondents. Counsel for the respondents says it was a breakdown of communication that led to the applicant's

request for that information not being answered. However, even though the respondents are not sued in any representative capacity, if the applicant's case for an interlocutory injunction is otherwise made out, it seems to me an injunction can issue against one or both of the respondents in view of the provisions of s. 8 0 ( 4 ) the m e P w e s A c t , which empowers the Court to grant an injunction restraining a person from engaging in conduct, whether or not it appears to the Court that the person intends to engage again in conduct of that kind, and in view of the substantial issues which the applicant seeks to agitate in this application.

I therefore overrule the objection to jurisdiction.

The hearing then proceeded. On 5 October, 1994

Drummond J del i -red the following reserved judgment.

This is an application for interlocutory relief in respect of the publication on behalf of the State Purchasing Council ('SPCm) of warnings of the kind published in August last at the instigation of the secretariat of the Council. I described the constitution of the SPC and the relationship to it of the two persons alone sued by the applicant in the ruling I gave at the start of the hearing overruling the

respondent's objection to my jurisdiction to deal with the
applicant's claims.

In this ruling I also referred to the inability of the applicant to identify the 14 persons who constitute the SPC. By paragraphs 13 to 15 of its application, the applicant

mought interlocutory orders against the SPC, although it sued only the two respondents. The material filed by the applicant ahows that an unnecessarily obstructive approach was taken by the respondent8 and those advising them in refusing to identify the members of the SPC. Counsel for the respondents did not seek to justify this. The respondents, however, now take no point that while the applicant's complaint i8 really againmt the actions of the SPC, they have not been sued am

representing the l4 still unidentified persons who constitute

it. The case was fought instead on the basis that my decision would effectively resolve the interlocutory dispute between the applicant and the SPC insofar as it is expected that the Council will treat my decision as governing the position, even

though counsel for the respondents, for want of instruction8	from all the members of the SPC, could not give an undertaking
to that effect. I adjourned the application insofar as it mought orders for the examination of the respondents for the purpose of identifying the members of the SPC and by way of discovery before pleading, in view of what the respondents' counsel said about the respondents' intention to provide this information to the applicant.
The applicant has sought orders, which, if granted, will restrain the two respondents, until trial, from making any communication to the effect of the warning notice in respect of advertising in the applicant's publication, 'the Queensland Purchasing Directory for Government", which warning was given in August 1994, and from publishing or otherwine communicating to any persons, statements to the effect of those set out in paragraph 14 of the application, which reflected those on page 2 of the warning document.
According to what Hr. Halvorson says, the applicant is one of a group of five companies which prior to 1 July, 1993 operated the applicant's business in Western Australia, New South Wales, Victoria, South Australia and Queensland. Since 1 July, 1993 the business in each of those States has been carried on by the applicant from headquarters in Perth. The applicant publishes a range of advertising directorien, the purpose of which is to enable businesses to advertise their goods and nervices to local, State and Federal
directory in each mainland State and a national quality governments . The applicant alno publishes a training
assurance register. The directories publinhed by the applicant are extensively distributed within the target government departments and instrumentalities, including schooln. The applicant distributes its directories free of charge to the relevant officials, either by name or by description of the particular position.
The 1994 Queensland directory was, according to Mr. Halvor6on, distributed in Queensland to the three level6 of government: Federal, State and local. The applicant maintains an up-to-date Statewide data base of purchasing personnel in all these levels of government. The data base for Queensland contains 561 Federal, 1986 State and 1688 local government contacts and 1479 school contacts, approximately 60 per cent of which are perlrons by name and position and 40 per cent by position only. The applicant distributes the directory to those contacts through a distribution agency. 8000 copies were printed in February 1994 and distributed in W r c h 1994.

The applicant's income comes from payments made by

businesses seeking to supply their goods and aervices to the

public sector, for apace in the applicant's directories in which they advertise what they have to offer. Ilr. Halvorson gives aome details of the size of the applicant's bu~iness.

He nays that Australia-wide, its total sales revenue in

$4,087,967, with anticipated total sales nationwide for the	respect of all its directories for the year 1993/1994 was
current financial year of between $6 and $8 million. The corresponding figures for Queensland are approximately $550,000 and between $800,000 to $1 million. The applicant has nationally, 20 employees, and in addition employs a further 50 sales and promotional contractors.

The applicant obtained the endorsement of the then Premiers of South Australia and Western Australia who signed laudatory forewords to its 1992 South Australian and West Australian government purchasing directories. It alro obtained the rupport of the new South Australian Premier for its 1994 South Aurtralian directory. The background to the current litigation is the ultimately unsuccessful attempt by the applicant to obtain the same support from the Queensland Premier for its 1994 directory, the first of its publicationr directed to Queensland users.

Such an endorsement would obviously have very great commercial value to the applicant in its efforts to sell advertising apace in its directory to businesses keen to mupply the Queensland public sector. The initial response on behalf of the Queensland Premier, dated 6 February, 1992, to the applicant's request for an endorsement of its proposed Queensland directory war a refusal. The reasons given were, in suunnary, concerns that the proposed title of the

Directory", wrongly suggested it was a government publication	applicant's directory, viz., 'Queensland Government Purchasing
and that, by failing to be univerral in its coverage of all 18,000 or so potential suppliers to the Queensland public sector, it would incorrectly suggest that those listed in the directory had some sort of preferred status as suppliers. It was also pointed out in the Premier's response that complete information on potential suppliers to the public sector was sector was already readily accessible in the State Government's purchasing and sales data base.
The applicant pereisted and by 1 November, 1993 had obtained a draft endorsement bearing the Premier's signature intended for publication as the foreword to its 1994 Queensland directory. However, although it appears that the Premier had not given his approval to use his draft foreword to the applicant's yet to be publiehed 1994 directory, the applicant's sales staff began to use this document in soliciting orders for advertieing apace in the directory in late 1993. The Premier's reeponse is contained in a facsimile of 24 November, 1993 from the first respondent's office to the applicant'# Queensland sales manager, followed the next day by a facsimile to Ur. Halvorson eigned by the first respondent as deputised chairman of the SPC, in which the first respondent repeated what was said in the earlier communication, viz.:

'The Premier has not authorised Auetralian Municipal Publications to use the attached Meesage in its

promotional activities;

either as a nupporting testimonial;

or as endorsement of the forthcoming publication, Purchaeing Directory for Government.

The Premier's Office has aeked me to notify you that the Premier withdraws h Message for use as a foreword to the publication and requires that you immediately desist from ueing any reference to his name and/or title in your communications with prospective advertieers.

A notice will be Gazetted hediately in the Procurement Gazette to the effect that the Queensland Government does not endorse or officially support such Directories."

On 22 December, 1993, the Deputy Premier and Consumer Affairs Minister issued a press release that took the form of a warning to Queensland business to be wary of approaches to take advertising in purchasing directories or indexes. The press release was highly critical of the selling tactics of those soliciting advertising in such publications. It directed any inquiries to the SPC. However, it did not expressly identify the applicant or its proposed Queensland publication. This press release was published on the front page of the Procurement Gazettes issued between January and Uay 1994.

The applicant makes no complaint about any of thin.

Although neither the applicant nor its directory was

specifically identified in the Minister'ii press release of

December 1993, it in likely that readers of the press release

who had been approached by the applicant's sales people would link what the Minister had to say on thin occasion with the	applicant. The applicant offers no explanation for its
inaction, although its complaint now is about those very same comments which were reproduced in the August 1994 warning. I note, however, that this gazette has a small circulation, only
559 subncribers.
The case before me centred on the warning issued by the SPC in August last. This warning is exhibit 22A to Hr.
Halvorson's second affidavit. As counsel pointed out, it identifies in bold print on page 1 the names appearing on the cover and on the contents page of the only Queensland directory the applicant has so far published, i.e., it is a warning about that particular 1994 publication of the applicant. The opening words of the warning expressly state thin to be the case. The warning document ie headed in large print, 'Warningl" After identifying the applicant's publication, three short paragraphs appear on page 1. The firat two read:

'Ifany inquiries have been received in relation to

advertising in the above-mentioned publications.

These directories are NOT Queensland Government

publications and are not promoted by the Government

as a tool to enhance government purchasing:

The applicant makea no complaint about any of this. It cannot. What ia said here is the simple truth. The applicant does not suggest otherwise. However, the third paragraph on the first page of the warning reads:

Queensland business to be wary of approaches to take	"The State Purchasing Council has previously warned
advertising in directories or purchasing indexes.'

On page 2, there ia reproduced the first page of a typical Procurement Gazette. The first four paragraphs of the aecond page of the warning read:

'MINISTER WARNS BUSINESS ON DIRECTORIES

Deputy Premier and Consumer Affair8 Minister Tom Burn8 and the State Purchasing Council today warned Queensland business to be wary of approaches to take advertirring in directories or purchaeing indexerr.

nr Burn8 said rralespeople contacted businerraes by
phone.

'The male8 pitch ueually claim8 that advertinera who appear in the publication will be helped to get government orders. They may the book will be dimtributed to all government and local authority purchasing officers. While they may well dimtribute an claimed, t h e m publication8 have little or no value. '

Mr Burn8 maid government purchasing wa8 a large and

very sophisticated operation with a net of rules and procedures which mu8t be followed. 'The publirrherm of the8e book8 are well aware of the worthless nature of their product, ' he said. 'In fact, it i8 no better than the Yellow Page8.I'

Page 2 of the warning thus reproduces the Deputy Premieres pres8 release of 22 December, 1993. The harah criticism of the applicant's directory contained in this aection of page 2 of the warning, when read with the material on page 1 identifying the applicant's directory, i8 contained in the etatemento attributed by direct quotation to the Deputy

Premier. The SPC doe8 not make any critici8m of it8 own of	the applicant's publication, rather does it associate itaelf
with and endorme what the Deputy Premier ir quoted a8 aaying. The mecond reapondent explain8 why the SPC did thin:

"The policy of the Queensland Government in relation to much matter8 was announced in a preen release dated 22 December, 1993. Because thin pres8 release reflected the policy of the renponrrible Miniater and of the SPC, arrangement8 were made for it to be reproduced on the front cover of a number of editions of the Queensland Government Procurement Gazette. '

The remaining two paragraphs on page 2 of the warning inform readers that Government purchasing officers have access to and must use the information sources listed, which do not include the applicant's directory, and directs readers' inquiries to the SPC.

The SPC took action to ensure that the applicant's

customers, i.e., the businesses who advertised in its 1994 directory, all received a copy of the warning. The warning was distributed by mail in August 1994 by the SPC to each of them. It also appears likely that telephone inquirers who have contacted the SPC have been given information by public servants, including the second respondent, acting on behalf of the SPC, similar to that contained in the warning. Because the warning was sent out by mail and repeated by telephone by

persona acting for the SPC, a. 6 ( 3 ) the Trade-

gives this Court jurisdiction to grant relief under r. 80

against those persons if the warning constitutes conduct

infringing 8. 52.

The applicant say8 that there ia a serious question to be tried as to whether the statements on page 2 of the warning, with which the SPC associates itself, are misleading and deceptive with reapect to the applicant's Queensland directory operations.

The respondents' counsel concedes that there is a serious question to be tried as to whether the assertions in the warning attributed to the Deputy Premier about the worthlessnes8 of the applicant's directory, which were adopted by the SPC, were misleading. He submits, however, that the applicant's case here is a weak one only. He also submit8 that the conduct complained of is conduct on behalf of the SPC engaged in by it, a8 the organisation whose function is to monitor the way the State Purchasing Policy works, to inform businesses wishing to deal with government as suppliers of goods and service8 to government, of its views on the value to such businesses of the applicant's product as an aid to doing business with government. He then submit8 that the applicant should only obtain the relief it seeks now if it can show a strong probability of success at the trial. He referred to

v State of South Aulr-

(1986) 161 C.L.R. 148 at 154. Counsel points out that the applicant, in the mass of material it has exhibited, include8 only a single testimonial from a user of the applicant's

Queensland directory, a tank manufacturer at Biloela, although	there are a number of testimonials from satisfied customers of
the applicant who have used its West Australian and South Australian government purchasing directories, both of which were endorsed by the Premier of the day. The applicant's
evidence as to the value that government purchasing officers attribute to its Queensland directory i8 limited to a response by the Townsville City Council purchasing officer to a telephone inquiry by an employee of the applicant that "he

2 1

valued it but was disappointed that there were not more Townsville companies in it for his reference" and evidence that officers in two state high schools, an officer in the llarine and Ports Branch of the Department of Transport and an officer of the Banana Shire Council have asked the applicant for copiea of its 1994 directory, together with evidence that the purchasing officer in Q-Build in Townsville told an employee of the applicant that she uses the directory regularly. I do not consider that the applicantla case before me is such as to show it is likely to succeed at the trial. In the circumstances of this case, this is a factor which tells strongly against granting the relief sought.

Although it was not the subject of submissions, I think that it in not essential for a person seeking to obtain an interlocutory injunction under a. 80 the

m in respect of conduct infringing S. 52 to show both an

arguable case that such conduct has occurred and also an arguable case that that person has suffered loss as a result

of that conduct. Sub-sections 80(1) (4) and (5) show that a

person has standing to sue for any injunction, whether final or interlocutory, in respect of conduct alleged to contravene

a. 52. In AustIQLia 0-Ptv. Ltd, v TEQQB

(1992) 110 A.L.R. 47, Lockhart J, with whom French J agreed, said of the power to grant injunctions under s. 80 at p. 56:

".. . subss (4) and (5) are designed to ensure that

once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pts IV or V of the Act, the court should be given the widest possible injunctive powers, devoid of traditional constraints, although the power must be exercised judicially and sensibly."

All members of the Court rejected the argument that once a relevant contravention of the Trade Act in

shown, the grant of an injunction should ordinarily follow, unless good reason is otherwise shown. The public interest aspect of s. 80 requires the fullest acknowledgment by the Court. Lockhart J, at pages 56 and 57, said:

"Injunctions are traditionally employed to restrain repetition of conduct. A statutory provision that enables an injunction to be granted to prevent the comission of conduct that ha. never been done before and is not likely to be done again i a statutory enlargement of traditional equitable principles. But this is because traditional doctrine surrounding the grant of injunctive relief was developed primarily for the protection of private proprietary rights. Public interest injunctions are different. Parts IV and V of the Act involve matters of high public policy. Parts IV and V relate to practices and conduct that legislatures throughout the world in different forms

to the public interest (contracts, arrangements or and to different degrees, have decided are contrary	understanding6 affecting competition adversely (s
45), the misuse of market power (8 46), the practice of exclusive dealing (S 47), resale price maintenance (6 48), price discrimination (6 49), anti-competitive mergers (S 50) and unfair practices with respect to consumers (Pt V). These are legislative enactment6 of matters vital to the presence of free competition and enterprise and a just society. This does not mean that the traditional equitable doctrines are irrelevant. For example, it must be relevant to consider questions of repetition of conduct or whether it has ever occurred before or whether imrainent substantial damage is likely: but the absence of any one or more of these elements is not fatal to the grant of an injunction under S. 80. That is the effect of subss (4) and (5) . . . Their presence is not an
indication of a new statutory house, rather an old house with some modern extensions."

The applicant seeks to restrain a public organisation from acting, not to achieve any benefit for itself, but from acting in what is prima facie the public interest by conveying information to the public. The applicant does this to protect its own commercial intereets. Where a person invokes s. 80 to claim an interlocutory injunction to stop a public body from acting in such a manner to protect his own commercial interests from further loss that will aggravate the loss said to have already been suffered by conduct infringing 8. 52, if that conduct is repeated, and where he invokes s. 80 to undo past damage said to have been so caused, it is, in my view, directly relevant to the discretion the Court has to exercise under the section to see if the applicant has an arguable case that he has suffered in the past and will suffer in the future loss causally related to the conduct the subject of the complaint. If the applicant cannot show an arguable caee in that regard, there will	generally be, in my view, little juetification for stopping a	public organisation informing the relevant section of the
public of its opinions on matters touching on ite public functions.
I am not satisfied that there is a serious queetion to be tried as to whether the applicant has suffered in the past any loss as a result of that conduct or will suffer any

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l088 if that conduct is repeated, as Mr. Orchard foreshadow^,
in paragraph 22 of hi8 affidavit, is likely to occur.

The main object of the firet page of the warning in to inform recipient8 and, in particular, customers and potential customer8 of the applicant in Queensland, that the applicant'r directory 8 not a Queensland Government publication and does not have government endorsement. That i8 a11 the perfect truth. The applicant concede8 it can make no complaint about that. However, the evidence shows that the applicant 80 styled this directory a8 to create the impreasion to a reader that i8 ham official government support. On the front cover of the 1994 directory, the title in bold print is 'The Queensland Government Purchasing Directory 1994'. There i8 no other wording on the cover apart from the applicantr8 name in a small logo in the bottom left-hand corner of the page. It is true that in significantly smaller print on the content8 page, the work is described a8 "the Queensland Purchalring Directory 1994 for Government' but even if a reader

were to notice that while looking at a full page of print, it	i8 likely that the front cover title would create by far the
greater impact on the reader's understanding of the nature of the work. That a reader would be likely to aseume from the title that it was an officially sanctioned publication is, I think, reinforced by the printing on pages 5, 7 and 9 of the work of the State Purchasing Policy, under that title and under a logo practically identical to that of the SPC.
Notwithstanding the statement by Hr. Halvorson in the introduction to the 1994 directory that the endorsement which the Queeneland Premier initially gave and which is there reproduced wae withdrawn, "at short notice" and "without explanationm, I think that the applicant's 1994 directory ie very likely to be taken by other than careful readers ae officially eanctioned. I note in this regard that each of the four purchaeing officer'e requeets for a copy of the 1994 directory, which are exhibited to the applicant'e material, as well ae the one teetimonial from a user of that directory that i8 also exhibitad, refer to the work by its cover title.
Prior to publication of the applicantem 1994 directory, Hr. Halvoreon was well aware of the concerns that the Queeneland authorities had that the title now appearing on its cover, viz., 'The Queensland Government Purchasing Directoryg, would erroneously suggest that it had official endorsement. That was one of the reasons the Queensland Premier gave for refusing Mr. Halvoreon's initial request for
the Premier'e endorsement in the letter of 6 February, 1992
from the Premier'e private secretary to Mr. Halvorson. Mr. Halvorson also says:

"When the Plaintiff company was planning to expand its Directory operation into the State of Queensland I had a meeting with Mr Pitt of the Queensland State Purchasing Council. One of the subject8 which we discussed wae the proposed title of the Plaintiffee intended Queeneland Directory. Hr Pitt advised me that the Queeneland authorities may have a problem with the title 'Queensland Government Purchasing Directory". In a spirit of co-operation the Plaintiff entitled its Queensland Directory 'The

Queensland Purchasing Directory for Government". I then gave appropriate instructions to the relevant staff members of the Plaintiff company, to that effect."

It was in spite of Mr. Halvorson's instructions that the applicant's staff still managed to produce the directory with the misleading title on its cover. There is a letter from the applicant's production manager, Hr. O'Hara, which explains that this happened due to an honest mistake. He says in this letter:

" I was not aware of the Queensland Government's

directive that the title of the directory was to be amended to 'The Queensland Purchasing Directory for Government'."

Hr. O'Hara was the person with the responsibility for having the printing of the applicant's 1994 directory done. Yet he did not receive Mr. Halvorsonts "appropriate instructionsn. At best for Mr. Halvoreon, he can have made no serious attempt to ensure that the applicant's directory did

readers, to the applicant's advantage.

not appear with a title he knew would be likely to mislead

Moreover, when the directory emerged from the printer with this misleading cover title, it appears from the material before me that it was simply distributed to public sector purchasing officere without any attempt to correct the title or the impression likely to be created by the title. The applicant appears to have been content to allow any purchasing officer who might underatand the directory, from it8 title, to be officially sanctioned, to labour under that misapprehension when selecting purchasing requirements.

W . Halvoraon aaya that the applicant supplies it8

'telemarketere" and ralee representatives with guideline rcripta and that Queensland staff are trained to use, and do use, the guideline scripts and alao advise clients that the applicant has no affiliation with the Government. He exhibits the guideline scriptr. There is nothing at all in them that would serve to remind the applicant1# sales staff to inform prospective advertisera that the applicant has no Queensland Government affiliation. Thir ir, I think, extraordinary when

Hr. Halvorron acknowledger that the directory war printed, by

honert error according to him, with a title capable of suggesting the contrary to potential customers of the applicant and which Hr. Halvorson well knew war of concern to the Queensland authorities for that very reason.

Mr. Halvoraon said: 

". . . after the Plaintiff 'r salea staff had referred

to the Premier's foreword in promoting the proposed directory to prospective advertisers, the foreword was withdrawn. When it was clear to me that the withdrawal was a fact, I gave written and verbal instructions to rtaff and contractors that no further reference to it was to be made in the promotion of the Plaintiff's directory, but by then the major part of the advertising content of the directory was the subject of concluded agreements between the Plaintiff and individual advertisers."

After receipt of Kr. Pitt's facsimile on 25 November, 1993, Kr. Halvorson cannot have been in any doubt at all that the applicant had no right to use the draft endorsement of the 1994 directory, earlier provided by the Premier, in promoting his publication, at least without the clearest indication from the Premier's Office that the SPC facsimile to him of 25 November, 1993 wan a wholly unauthorised aberration on the part of Kr. Pitt. Mr. Halvorson does not state when he gave the first of his instructions not to refer to the Premier'8 draft endorsement. The only written instruction by him that the Premier's draft endorsement was not to be used as a sales aid that is before me is Hr. Halvorson's facsimile of l7 January, 1994 to the applicant's sales manager. It reader

.Please ensure effective immediately that this foreword is not used in any way. All 8taff must return any copies they may have to you and cease any reference to it. Please destroy all copies:

applicanterr rrales staff made use of the draft endorsement in

instruction was given and that, as Kr. Halvorson intended, the I infer this wa8 the first occasion on which such an

soliciting business not only following its receipt in early November 1993 but in the period 25 November, 1993 to 17 January, 1994, shortly before the 1994 directory had to go to press. Mr. Halvorson'8 sale8 record graph, annexure WSH22 to his affidavit sworn 28 September, 1994, shows that the period 26 November, 1993 to 24 December, 1993 wan a very productive one in term8 of income generated by the applicant's sales

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staf f . It looks very like the applicant benefited

substantially from its misuse in thia latter period of the
draft endorsement.

It is also clear that, despite the uncompromising terms of Hr. Halvorson's direction of 17 January, 1994 to the applicant's sales manager that the sales ataff were not to use or even have access to copies of the Premier's draft endorsement, that very document was being used by the applicant's aales staff as late as August 1994. Hr. Rylah of

MnJ Desig~rs, an advertiser in the applicant's 1994 directory,

was telephoned on 23 August, 1994 by one of the applicant's
sales rtaff who solicited the company's repeat busineas for
the 1995 directory. The applicant's salesman, in response to
an invitation to call on Hr. Rylah, attended armed with a copy
of the Premier's draft endorsement. There is a letter from

the salesman before me in which, displaying an ignorance of

Kr. Halvorson's instructions of 17 January, 1994 rimilar to

that displayed earlier by the applicant's production manager,

HL-. O'Hara of other instructions by Mr. Halvoraon, the salesman says:

"I was not aware of Australian Municipal Publicationes specific instruction to use it or

refer to it in any way. I only showed it to two

companies being MNJ (sic) Designs and The Sheraton:

There is no explanation by the applicant of how, in the face of Mr. Halvorsonts direction of 17 January 1994, this salesman came to have possession in August 1994 of thia draft

endorsement, which it appears he was able to have faxed to him from someone within the applicant's organisation on 3 August, 1994, i.e., long before the salesman made hie first telephone approach to Mr. Rylah and was queried about the Premierpm endorsement by Mr. Rylah.

The applicant may well have suffered a serious downturn in sales following, and as a direct result of, the August warning. But the evidence is such that in my opinion there is an explanation in the applicant's own evidence for this downturn, which, at the very lowest, ie ae plausible as the one relied on by the applicant, viz., that it was due to the harsh criticism of the applicant reflected in the Deputy Premier's comments that are reproduced on page 2 of the warning, and which it is conceded are arguably misleading. In my opinion, the explanation for the downturn apparent on the evidence is at least as likely to be the completely accurate element of the warning, viz., that the applicant's directory ie not an official government publication and has no government endorsement.

In order to show that the warning has caused lose to the applicant, Mr. Halvoreon refers to the letter he received from a Mr. Gray, the principal of an advertiser in the 1994 Queensland directory. The letter is dated 25 Auguet, 1994. It encloses a copy of the warning, which Mr. Gray described as having been "received today from the Queensland Government".

Mr. Gray says: 

"At the time of accepting the advertising and the concept your representative David Connolly stated that the book would be prefaced with comments by Mr Wayne Goss, Premier of Queensland.

A deposit was paid with a statement from your Representative that a copy of the book plus a list of all recipients would be received by us prior to the balance being paid.

The invoice for the balance was received without these details which I challenged only to be told that your representative had no right to make these promises. Even so your Company then forwarded the publication without the promised list and we then forwarded a cheque covering the balance of the account.

Upon receiving the publication an accompanying letter gave reason as to why there was no preface by

Mr Wayne Goss, Queensland Premier, which, as it now
appears, referring to the attachment, [i.e. the

warning] was not the correct reason.

In view of the circumstances I now believe that the

m presented in the salee presentation were not

correct, and I therefore request a refund of not
less that (sic) 50% of the amount paid."

The reason for Mr. Gray's disenchantment with the applicant's directory caused by the August warning is that it

does not have the State Government endorsement that was

promised, but which the applicant was not entitled to promise.

. Rylah of MnJ Designs says that one of the aeeurances he got from the applicant's salesman that caused him to advertise in the applicant's directory was that the Queensland Government Purchasing Directory 1994 would be the tool for sourcing goods and services required by the various government departments. This suggests that he too relied on the false impression that the directory had official recognition and support.

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It ia inherently likely that advertisera in the directory would be moat interested in knowing that the directory had official State Government aupport or approval. A peraon wiahing to aupply to government would inevitably aet great value on being able to advertise hi8 wares in a directory that would be placed before government purchasing officera a8 an officially approved directory of euppliera. The title in fact appearing on the cover of the applicant'a directory a apt to give that impreaaion. The uae by the

applicant'a aalea ataff of the Premier's draft foreword to the 1994 directory both prior to 25 November, 1993, and aftenvarda, evidence. the applicant'a perception of the importance of official approval of the directory to intending purchaaera, as doe8 the subject matter of Hr. Gray and Ur. Rylah'a complainta.

After referring to 13r. Gray'a letter of complaint,
Ur. Halvoraon identifies a number of other advertisers in the

1994 directory who have contacted the applicant with concerna

generated by the Auguat warning. U r Halvoreon doem not,

however, exhibit any of these other comunicationa or atate the effect of any of these other advertisera' concerns generated by the warning. All he aaya about them iar

'The following is a liat of the namea of other advertiaera from the Queensland Directory who have contacted the Plaintiff in recent daya to say, in effect, that they are concerned to have received the Defendanta' 'warning' comunication and that they wiah the Plaintiff to explain what is going on; that they will not do business with the Plaintiff if there ia any truth in what the warning communication

says; and that they are considering taking further action to communicate with other advertisers in the Directory to ask them to join in action against the Plaintiff ...'

The applicant's salesman Shalavin's evidence of his discussion with the sales manager for Armstrong Holden takes the applicant's case no further.

I am not prepared to infer that any of these other concerned advertisers were troubled by the arguably misleading comment8 of the Deputy Premier reproduced on page 2 of the warning rather than by the admittedly true advice on the firat page. I think the failure of the applicant to put any evidence before me suggesting that its loss of business since Auguat 1994 was not due to advertisers and potential advertisers in its directory being told correctly in the warning that the directory did not have any official approval, but was due rather to the Deputy Premier's comments on the second page of the warning, is a factor that dieentitles it to the interlocutory relief sought in paragraphs 13 and 14 of the

application against the two respondents.

As appears from Spry's book on - ,

4th Ed., page 456, it is well recognised that:

"Where there is a dispute as to the facts, often the court is not well equipped on an interlocutory application to decide where the true position may be, especially if those who have given evidence on affidavit are not cross-examined ... but the inability of the court to reach a confident conclusion by no means necessarily leads to the refusal of relief. Often it is found that risks of substantial prejudice to the plaintiff are so great that, provided that it appears that there is a substantial question to be determined at the final hearing, the balance of justice favours the grant of interlocutory relief."

But this is not such a case. It is essentially the

applicant's own material that fails to satisfy me that there is a serious question to be tried as to whether the applicant has suffered any past loss or will be likely to suffer loss in the future due to the only conduct involving the respondents about which the applicant can complain. In any event, my jurisdiction involves not the traditional equitable jurisdiction to grant interlocutory injunctions, but the mpecial statutory one under which I have a very wide discretion to grant or refuse the statutory remedy at the interlocutory stage. In deciding to refuse the application, I rely on this consideration, together with my assessment, as a weak one, of the applicant's case that the issue of the warning involved misleading conduct, and on my views about the

conduct of the applicant in issuing and using a misleadingly entitled directory and in misusing the Premier's draft	endorsement, all to its own commercial advantage.
The applicant submitted that a consideration that favoured the grant of the injunction was that, without it, the applicant's Queensland business was at risk of having to be closed down and its Queensland employees dismissed. I accept that it is relevant to take into account that harm is likely to be caused to third parties if an interlocutory injunction

3 5

is not granted: see Spry, -, 4th Ed., pp.

393-4 and 464. But since I do not accept that the applicant may be able to make out a case that it has been damaged by that portion of the warning about which it complains, that its Queensland employees may themselves be injured if the injunction does not issue cannot justify the grant of the relief sought.

By paragraph 15 of its application, the applicant also sought an interlocutory injunction directing the SPC to publieh a correction to all recipients of the warning and certain other people. The applicant did not abandon thin claim, but recognised that corrective advertising has only

been granted under the Trade so far as a form of

final relief. This particular claim was not pressed at the hearing and I am not prepared to grant it. My reasons for refusing relief in respect of paragraphs 13 and 14 of the application are a eufficient explanation for my refusal to do so in relation to the relief claimed in paragraph 15.

I should mention that there are suggestions in the applicant's material that the SPC officers responsible for the issue of the August warning, who are also officers of the Administrative Services Department, were actuated by bad faith in issuing it and that they did that to damage the applicant's directory which competes with a fee charging publication of that Department. This matter was not, however, referred to in argument and I make no comment on it.

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The application i n relat ion t o paragraphs 13, 14 and

15 i e therefore diarnisaed.

I c e r t i f y that t h i s and the preceding

35 page8 are a true copy of the

reason8 for judgment herein of the

Honourable Hr. Juatice Drummond.

Date t 5 October, 1994

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Counsel for the applicant:	K.D. Dorney Q.C.
Solicitor6 for the applicant:	Bain Gaeteen
Counsel for the respondente:	P.D.T. Applegarth
Solicitors for the reepondente:	Crown Solicitor
Date of Hearing:	30 September, 1994
Date of Ruling:	30 September, 1994
Date of Judgment:	5 October, 1994