Farmers Union of WA (Inc) v P.G. Mackie, Westralian Farmers Co-Operative and West Australian Newspapers Ltd

[1977] FCA 64

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T W E PRACTICES - CONSUPER PROTECTION - MISLEADING OR

DECEPTIVE CONDUCT - TRADE OR COMNERCE - ADVERT-TSEPEiVTS I N R?3l?EI~SNDLP4 CONCERNING BEEF PIARKETING - INJUNCTION -

! TRADE PRACTICES ACT 1974 S. 52. (1) and S. 80 (1) (f)

W.A. No. G 4 of 1977

SMITHERS , J .

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16th SEPTEfiBER 1977 - _

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i '.	DECISION	DELIVEWD	16/9/1977
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PERTH

I SMITHERS, J.

FARMERS I UNION OF W.A. ( I N C . ) v. P.G. MACKIE AND ORS

ORAL JUDGMENT

HIS HONOUR: This is an application under s. 80 of the !

Trade Practices Act 1974 under which the court may grant an injunction on the application of any person restraining a person

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from engaging i n conduct t ha t cons t i t u t e s , o r would cons t i tu te ,

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a breach o f Par t V o f the Act. Secticn 52 is i n P a r t V.

Section 52 (1 ) s t a t e s t ha t -

; ! "A corporat ion shal l t rade not , in o r commerce,

engage i n conduct t ha t is misleading o r deceptive

or is l ikely to mislead o r deceive.!'

In this case the misleading conduct is the publication,

by two corporations who run businesses as newspaper publishers and are therefore engaged in tha t aspec t o f t rade and commerce

of advertisements to the er"fect o f - t ha t s e t ou t . on p.3 of the r F

Farmer and Grazier of 1 September 1977 i n the following terms - l

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"Beef producers! Ac uisit ion costs producers

of l oca l lamL 13 cents S kg+ Acquisition will cost

beef producers ? Avoid a compulsory middle man,

support quesnon 2 . (16 kg. red 2 - 18/8/77 a f t e r a l l

ki l l ing costs e tc . paid	)-.	Inserted	by	' t h e	Small
Farmers' Meat Lobby' 'l.

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If that advertisement i s misleading then the

newspapers have been gu i l ty o f publishing a misleading advertisement.

It was i n t r a d e and commerce not only i n tha t it was published 8 .

l	by the newspapers i n the course of t h e i r own trade and commerce,
namely, the business of publishing mattersof interest t o the
public, but a l s o the advertisement relates t o s teps in p rogress to
determine the methods under which catt le should be s o l d by c a t t l e

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2.

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ra isers , the laws o r arrangements that should be made as t o the

persons t o whom they would s e l l o r d e s i r e t o se l l t h e i r c a t t l e

i n the course of their t rade and commerce in ca t t l e . ; The

advertisement was calculated to influence people to favour one

method as against another. Although the newspapers did not

engage in t r ade o r commerce in r e spec t of ca t t le , the subjec t

matter o f the advertisement which they published was d i r ec t ly

and in t r in s i ca l ly r e l a t ed t o t rade and commerce i n t h e r a t t e r OP

catt le. The act ivat ion o f the subject matter by the newspapers

i n publishing the advertisements was an intrusion into that t rade

and commerce. The publications, being calculated t o influence

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people engaged i n t h a t trade and commerce in decisions they had

t o make i n carrying on tha t t rade and commerce and t o influence

them to a l ter their posi t ions therein, the publ ishing corporat ions

did on this occasion intrude into the trade and commerce i n beef

and they d id s o a t the reques t and f o r the benefi7; of persons who

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were themselves engaged i n t h a t t r a d e and commerce, who had a .r

ca t t le t rade in te res t there in , and they did s o f o r reward.

Accordingly, i n my view, the newspapers published

these statements i n " t r ade and commerce" within the meaning of

that expression in S. 52. For reasons indicated during argument

I consider that the advertisements i f misleading were calculated

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! t o mislead consumers within the contemplation of Par t V of the

Act.	!
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If tha t is so, the&, although the first defendant 1

I is not a corporation, he would be a person within the reach of the

Trade Practices Act if he influenced o r procured o r was

concerned i n a contravention o f S . 52 by a cornoration (s.80t.i \

3.

In this case there is no dispute that JW. Mackie d id i n i t i a t e

and arrange f o r , and he and his collegues no doubt paid for, the

advertisements which were inserted. Therefore, i f +hey were

misleading, then there were misleading stafements i n t r a d e and

commerce and under the new commercial morality which is the

object o f the Trade Pract ices Act they could and ought t o be

restrained. -

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I think it is proper t o say t h a t an injunction i s a

serious remedy because it subjects the defendant t o imprisonment

i f it is broken and it frequently had t o be granted m terms which

are not precise and which leave the defendant a t p e r i l should he

misjudge the qual i ty of a fu ture ac t , thinking it does not

contravene the injunction vhen it does. As it is a serious

remedy I think it is correct t o s a y t h a t i n a case such a s t h i s

the court should feel sa t isf ied, not beyond reasonable doubt but

s a t i s f i ed ,	that the contravention	o f	S.	52	alleged actually
occurred.

The main complaint about t h i s advertisement is directed

t o the first substantial sentence, namely llAcquisition costs

produzers o f loca l lamb 13 cents a kilogramf1 with i ts a s t e r i sk

and its	reference, apparently, to the	16 kilogram red	2	of	the
18 August.

Perhaps I should say with o r without the asterisk, on The

ground t h a t it would be quite possible one would look a t this

statement, read that f irst paragraph and never read any fur ther .

4.

The question is what does it mean? What would a reasonable,

senslble beef producer justifiaDly think he was being told?

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I think that I should infer that such a person would

know tlie meaning of Itlocal lamb" and i n any event I think the

construction of the sentence indicates that the lamb being talked

about i s loca l lamb. To my mind, i n the end, you have t o

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la t t r ibute t o that expresslon the meaning of "lamb which f inds i t s

,way onto the local markett1, o r perhaps is intended t o find i ts

way onto the local market. If s o , this sentence is saying tht

acquis i t ion cos ts e i ther a l l o r some producers o f loca l lamb o r

producers overall o f loca l lamb 13 cents per kilogram. I think

t h e l a t t e r . If that statement i s not untrue, I do n o t see how

it can mislead. The onus is upon t h e p l a i n t i f f t o s a t i s f y

_- the court that it is untrue o r t ha t it is l i k e l y t o mislead.

I do no t see how it can mislead i f it is substant la l ly t rue. I

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therefore do not see how the p l a in t i f f can es tab l i sh i t s case

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€or an injunction unless the plaintiff satisfies *e court that

it is untrue.

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The evidence before me indica tes tha t the V.A. Lamb

Marketing Board purchases lamb a t p r i c e s which it declares and

- whichareknown as the producers ' price; that it s e l l s lamb on

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the export market and t h a t it s e l l s lamb on the loca l market and it

publishes the price which it receives for the local lamb.

The evidence before me is t h a t if the difference between

those prices i s measured and i f then allowance'is made f o r the

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ki l l ing cos ts , there a re from time t o time and were currently ._

round about August, d i f fe rences , in a sense the profit of the

Board, i n r e l a t i o n t o some categories o f lamb of more than 13

per cent , substant ia l ly more; i n r e l a t ion t o other categories

the differences were less and subs t an t i a l ly l e s s . Whether

overall , however the difference would be less than 13 cents per

kilogram it i s impossible for me to say.

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I think I should say also that although I do not

accept i n t o t o t h e argument of Mr. Chaney a s t o t h e p o l i t i c a l

atmosphere i n which the advertisement takes i ts p lace tha t th i s

advertisement appears i n an overa l l se t t ing of a referendum. The

t o t a l number of beef producers, who run into some thousands, are

being asked t o decide whether they would prefer an acquisit ion

scheme o r would prefer no t to have an acquisit ion scheme. The

- referendum procedure postulates , real ly , that there is to be

debate and that there is t o be dabate on almost a po l i t i ca l p lane ,

and it i s in that context that advert isements l ike t h i s have t o

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be read.

A s has been indicated, it would be qui te intolerable

that in the ordinary pol i t ical confrontat ions which take place

a l l statements which happen to r e l a t e t o t r ade and commerce could

be brought before this court and people restrained, but

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notwithstandmg that and whatever the background, if misleading

statements are made i n t r a d e and commerce the f ac t t ha t t hey

are made a l so i n t he po l i t i ca l con te s t would not oust the

jur isdict ion of the court. There may well be cases in which it

would be proper f o r t h e court t o ac t . A l l t h i s is relevant,

T think, t o an. a?se-crnnt; ,-? t o whether Deon,le readinw t h i c - m ; h r l

be misled, whether they would not just consider it a s p a r t

of the cut and th rus t of the campaign and would quite well I ,

r ea l i s e that undoubtedly it was made i n a par t isan sgirit

and had to be.read as such and with due caution. I would not

doubt that in the great major i ty of cases that would be what

would happen.

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I Accordingly, for al l these reasons, I am not

sat isf ied that the s ta tement was, i n the sense in which I t'nink it

' i was written and the sense in which I think it would be understood

by the readers who would see it, untrue o r t ha t it was calculated

t o mislead o r t h a t it was misleading in the relevant sense. I .

I do not wish t o be thought t o encourage ambiguous

statements. It must be understood that ambiguous statements

which may mislead are perilous things t o indulge in,. i n t r a d e

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and commerce, i n these days. I

The p l a i n t i f f ' s claim will be dismissed with costs.

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