Dorf Industries Pty Ltd v Toose - [1994] FCA 986

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JUDGMENT NO. -...n.emm

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MEDIA LAW - regulation of programming - functions of regulatory bodies - attack on decision of Advertising Standards Council - declaration that advertisement does not seriously offend community values - principles to be applied in claim for declaratory relief.

Yorcester v Smith 119511 VLR 316.

Wurramura v Havmon 11987) 86 FLR 52.

m e s k i

v Vasil 119811 1 NSWLR 267.

Qd Transmrt

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Ptv Ltd v Western Australian Government Railwavs

omlsslon 11986) 13 FCR 270.

Qil Basins Ltd v The Commonwealth of Australia 11993) 178 CLR

Custom Credit Cormration Ltd v Luvi 119921 1 VR 99.

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Centre of New South Wales v Toose & Ors funre~orted 15

pecember 1988).

ster for Aboriainal Affairs v Peko Wallsend Ltd 11986) 162

punton v Ministrv of Pensions [No 2 ) 119641 1 ~ l l

ER 448.

St Leonards Munici~alitv

v Brettinaham-Moore 11968) 16 LGRA 223.

News Ltd v Printina and Kindred Industries Union (New South Wales

Branch) r19751 1 NSWLR 151.

Forster v Jododex Aust Ptv Ltd 11972) 127 CLR 421.

Crow V Graham 119671 121 CLR 375.

Pvx Granite CO Ltd v Ministrv of Housina and Local Government

L19601 AC 260.

Barraclouah v Brown 118971 AC 615.

Pharmaceutical Societv of Great Britain v Dickson 119701 AC 403.

Bycklev v Tuttv 119711 125 CLR 355.

BDRF INDUSTRIES PTY LTD (ACN 004 394 923) and BOX EMERY & PARTNERS (A FIRM) v THE HONOURABLE P B TOOSE CBE OC (who is sued on hie own behalf and as renresentina the members of the Bdvertisina Standards Council) h OTHERS

po VG 405 of 1994

CORAM :	RYAN J
*PLACE* :	BlELBOURNE
*DATE* :	*09 DECEMBER 1994*

16 DEC 1994

FEDERAL COURT OF

AUSTRALIA

PRINCIPAL

COURT OF AUSTRALIA	)
1
1 1

BETWEEN: pORF INDUSTRIES PTY LI-

004 394 9 2 a

BOX EMERY L PARTNERS /A F=

(Applicants)

AND :

THB HONOURABLE P B T W S E CBE M: and OTaEE

Jwho is sued on his own behalf and a S

re~resentina

the members of the Advertising

Standards Council1

(First Respondent)

AND :

AUSTRALIAN CONSOLIDATED PRESS LIMITED

JACN 054 523 0271

Jwhich is sued on its own behalf and as

ge~resentina

the members of the Media

Council of Australia1

(Second Respondent)

AND :

NINE NETWORK AUSTRALIA LTQ

/ACN 009 071 1671 and GENERAL TELEVISION

~ORPORATION

PTP LTD fACN 004 330 0361

(Third Respondent)

&?23!l:

Ryan J

Place: Melbourne

m:	09 December 1994

REASONS FOR JUlXMEm

m: By an application filed in this Court on 15 November

1994 and amended by leave granted on 16 November 1994, the applicants sought various forms of relief in respect of television advertisements which had been produced under the auspices of the second applicant ("Box Emery") for the first applicant Dorf Industries Pty Ltd ("Dorf"). Box Emery had arranged for the advertisements to be transmitted by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1994] FCA 986
Decision Date: 9 Dec 1994

CaseChat Overview and Summary

Dorf Industries Pty Ltd and Box Emery & Partners sought various forms of relief in respect of television advertisements which were produced by Box Emery for Dorf and transmitted by the 9 Network. The advertisements depicted a woman turning on all the taps in her house as an act of revenge before leaving. The Advertising Standards Council (ASC) received complaints and determined that the advertisements were likely to cause serious offence to the community in light of prevailing community standards. The ASC's decision was upheld by the Media Council of Australia (MCA). Dorf sought a declaration that the advertisements did not contravene the Advertising Code of Ethics, which prohibited advertisements likely to cause serious offence to the community. The court declined to grant the declaration, finding that the ASC was not a proper contradictor and that the question raised was one of mixed fact and law, better suited to the ASC's expertise. The court also noted that granting the declaration would result in inconsistent decisions on the same question of law. The court did not grant the declaration but did not preclude the applicants from pursuing other forms of relief at trial.

Orders