Dorf Industries Pty Ltd v Toose

Dorf Industries Pty Ltd and Box Emery & Partners, trading as Box Emery, sought relief from the Federal Court of Australia against the Advertising Standards Council, the Media Council of Australia, and the 9 Network. The applicants sought relief in respect of television advertisements produced by Box Emery for Dorf Industries. The advertisements were scheduled to be broadcast by the 9 Network. The ASC had determined that the advertisements were in breach of Clause 6 of the Advertising Code of Ethics, which provides that advertisements must not contain anything likely to cause serious offence to the community. The applicants sought a declaration that the advertisements did not contravene the Code, as well as an injunction preventing the ASC, the MCA, and the 9 Network from acting on the ASC's determination. The Court heard the application ex parte as the ASC and the MCA had not appeared and the 9 Network had not adequately defended the application. Ryan J made the sought injunctions but declined to make the declaration. The Court found that the question whether the advertisements contravened the Code was a mixed question of law and fact, and that it was not appropriate to make a declaration in the circumstances of the case. In particular, the Court found that the MCA and the ASC had no interest in the merits of the question whether the advertisements contravened the Code, and that the only parties with an interest in the outcome were the complainants whose complaints had been upheld by the ASC. The Court found that there was no proper contradictor before the Court and that to make the declaration would result in inconsistent decisions on the same question of law. The Court declined to make the declaration sought, but without prejudice to the applicants reviving the claim at trial.