Collier Constructions Pty Ltd v Foskett Pty Ltd

[1990] FCA 515

Re: COLLIER CONSTRUCTIONS PTY LTD
And: FOSKETT PTY LTD
No. WA G91 of 1990
FED No. 515
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Practice and Procedure - pleadings - comparative advertising by home builders - use of allegedly infringing reproduction of one builder's plan in comparative advertising by another - copyright infringement - public interest defence - answer to allegedly false claim offering "best deal" - reply pleaded justifies "best deal" by reference to unspecified criteria - false issue - plea struck out.

Trade Practices Act 1974

HEARING

PERTH

#DATE 14:9:1990

Counsel for the Applicant: Mr R. McCormack

Solicitors for the Applicant: Parker and Parker

Counsel for the Respondent: Mr M. Bennett and Mr G. French

Solicitors for the Respondent: Bennett and Co.

ORDER

On the respondent's motion filed 13 September 1990:

By consent, the words "and a common and accepted means of advertising used in the housing and other markets" appearing in para.11(i) of the Reply be struck out.

Paragraph 11(ii) of the Reply be struck out. The costs of the motion be in the cause.

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

JUDGE1

This is a case involving comparative advertising in which one home builder, the respondent, is said to have published advertisements showing schematic drawings of its homes overlaid with shaded figures representing the outline of homes marketed by another home builder, the applicant.

1. The applicant sues for infringement of its copyright said to arise, inter alia, out of the use of the outline of its plans in the respondent's advertisements. It also sues for contravention of s.52 of the Trade Practices Act 1974 allegedly arising from comparative statements made in the respondent's advertisements.

2. In part answer to the infringement claim the respondent raises what it calls a "public interest" defence reflected in para.33 of the defence which reads:
   

"33. If (which is denied) any of the acts of Champion referred to in paragraph 8 and 9 and 15 and 16 of the Re-Amended Statement of Claim constituted an infringement of Collier's copyright as alleged or at all then:-

(a) Collier by its advertising represented to the consuming public of Western Australia:- "If you don't get Collier to build your home you won't be getting the best deal".

Particulars

The advertisement was used by Collier as part of its advertising by newspaper, pamphlet and television of the Pricefighter homes and other homes in its range. Full particulars of advertising will be provided after discovery has been given.

(b) the Collier advertising referred to in paragraph 33(a) constituted conduct in trade or commerce within the meaning of that expression in the Trade Practices Act;

(c) the Collier advertising referred to in paragraph 33(a) was and is false or misleading or likely to mislead or deceive in breach of Section 52 of the Trade Practices Act in that:-

(i) the Collier homes so advertised do not represent "the best deal" in that Champion homes are less expensive and greater in area;

(ii) further the Champion homes were and are still greater in size and in many instances less in cost than comparable Collier Homes even after allowance is made for Collier's offer of "free legal fees" up to $2,000;

(d) by reason of the matters referred to in paragraph 33(a), (b) and (c) hereof, Champion was entitled, in the public interest, to demonstrate by direct factual comparison the dimensions of the Champion homes and the external dimensions of the Collier homes to remedy Collier's breach of Section 52 of the Trade Practices Act;

(e) by reason of the matters referred to in paragraph 33(d) hereof any acts of Champion referred to in the Re-Amended Statement of Claim which would otherwise constitute acts infringing the copyright of Collier as alleged are and were legitimate and not actionable at law."

In part answer to that defence the applicant pleads in para.11 of its reply as follows:

"11. As to paragraph 33(c) of the Defence, the Applicant admits that it has at various times included in its advertisements the words: "If you don't get Collier to build your home you wont (sic) be getting the best deal." but says that such representation is:

(i) mere puffery and a common and accepted means of advertising used in the housing and other markets;

further or alternatively

(ii) true and correct when consideration of comparative features and specifications are taken into account."

The action is set down for hearing on Monday 17 September.

1. By motion filed and returnable 13 September 1990, the Respondent moved to strike out sub-para.11(i) of the Reply. The motion was adjourned with other matters into Chambers for a pre-trial conference on the afternoon of 13 September and continued on the morning of 14 September. At the conclusion of the pre-trial conference I heard the motion in open Court when counsel for the respondent also moved to strike out sub-para.11(ii) of the Reply. Counsel for the applicant consented to an order that the words "and a common and accepted means of advertising used in the housing and other markets" in sub-para.11(i) be struck out.

2. Turning to sub-para.11(ii) of the Reply, it is my opinion that this plea raises a false issue and invites the Court to explore by reference to unspecified criteria applied to "comparative features and specifications", the question whether the applicant offers its customers "the best deal". The public interest defence raised in para.33 of the defence is not without its own difficulties especially in so far as the statement complained of may have the character of a statement of opinion. But implicit in the answer raised by para.11(ii) of the Reply is the argument that criteria of comparative expense and floor size do not exhaust the criteria by which one would justify the statement that the Collier home is the best deal. If that argument is accepted then the respondent, which ties its plea about the falsity of the statement to criteria of expense and floor area, is unlikely to succeed. That argument does not require or justify an exploration of the question whether, according to a range of possible criteria, the statement is justified. In my opinion sub-para.11(ii) of the Reply should be struck out. It should nevertheless be open to the applicant to answer the public interest plea on the basis I have indicated. If any further amendment of the Reply to the statement pleaded in para.33 of the defence is required for that purpose, it will be allowed.