Great Adventures Pty Ltd v Stay & Play Australia Ltd

[1990] FCA 66

C A T C H W O R D S

TRADE PRACTICES - interlocutory injunction - misleading price comparison and vessel description - overstated claim in tour operator's brochure - misleading comparison with speed of competitor's catamaran - consideration of when Court will restrain comparative advertising.

TORT - unlawful threats - consideration of when statements to

induce another to act according to one's wishes are unlawful.

Trade Practices Act 1974, ss.52, 53, 55A, 80

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Great Adventures Pty Limited & Ors

v.   Stay and Play Australia Limited & Anor

Qld G101 of 1989

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PINCUS J .

BRISBANE

2 MARCH 1990

FEDERAL COURT OF

AUSR4LIA PRINCIPAL HECISTRY

IN THE FEDERAL COURT OF AUSTRALIA 1 . .

'QUEENSLAND DISTRICT REGISTRY	1	QLD G101 of 1989
GENERAL DIVISION	1

BETWEEN: GREAT ADVENTURES PTY LIMITED

First Applicant

AND: HAMMERBOURNE PTY LTD

Second Applicant

AND:  GREEN ISLAND UNDERWATER OBSERVATORY PTY LTD

Third Applicant

AND: HAYLES MAGNETIC ISLAND PTY LIMITED

Fourth Applicant

AND:  GREAT ADVENTURES FITZROY RESORT PTY LTD

Fifth Applicant

AND: HAYLES FITZROY PTY LTD

Sixth Applicant

AND: STAY AND PLAY AUSTRALIA LIMITED

First Respondent i

AND: BRIAN J. SHEERAN

Second Respondent

AND:  STAY AND PLAY AUSTRALIA LIMITED

Cross-Applicant

AND: GREAT ADVENTURES PTY LIMITED

First Cross-Respondent

AND:	HAMMBERBOURNE PTY LTD, GREAT ADVENTURES FITZROY	I
RESORT PTY LTD AND HAYLES FITZROY PTY LTD	I

.Second.Cross-Respondents	i .
I,.
i '
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MINUTES OF ORDER

JUDGE MAKING ORDER:  PINCUS J .

DATE OF ORDER:	2 PIARCH 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    the respondents be restrained, pending the action, from stating differences in vessel travel times by giving a one way travel time for their vessel and a

two-way travel time for others;

2.    the costs be costs in the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1 - -QLD GlUl of 1989
GENERAL DIVISION	1

BETWEEN:  GREAT ADVENTURES PTY LIMITED

First Applicant

AND :  HAMMERBOURNE PTY LTD

Second Applicant

AND :  GREEN ISLAND UNDERWATER OBSERVATORY PTY LTD

Third Applicant

AND :  HAYLES MAGNETIC ISLAND PTY LIMITED

~ourth Applicant

AND :  GREAT ADVENTURES FITZROY RESORT PTY LTD

Fifth Applicant

AND :  HAYLES FITZROY PTY LTD

Sixth Applicant

AND :  STAY AND PLAY AUSTRALIA LIMITED

First Respondent

AND :  BRIAN J. SHEERAN

Second Respondent

AND :  STAY AND PLAY AUSTRALIA LIMITED

Cross-Applicant

AND :  GREAT ADVENTURES PTY LIMITED

First Cross-Respondent

AND :  HAMMBERBOURNE PTY LTD, GREAT ADVENTURES FITZROY
RESORT PTY LTD AND HAYLES FITZROY PTY LTD

Second.Cross-Respondents

PINCUS J. 2 MARCII 1990

REASONS FOR JUDGMENT

This is an application for interlocutory relief, which was partly dealt with on 9 February 1990. I then ordered that on or before 16 February 1990, the respondents collect, so far as practicable, all copies of the brochure in the form of Exhibit 2 .

'or similar form which had been distributed and retain them until further order. There are a number of other complaints left, which

I will deal with in these reasons.

1. The applicants say that an advertisement used by the respondents gives a misleading price comparison. The advertisement (BJD17) compares fast catamarans operated by the applicants with those operated by the respondents.

It is true that the two services are not precisely the same. The points relied on are set out in a letter dated 11 January 1990, which is part of BJD18 and also in Mr Jenkins' affidavit, para.16. I do not find it necessary to set out all the matters there mentioned. Some which were mentioned in argument were that it was said the applicants offer the facility of buying liquor on board and there is a free cup of tea or coffee before the passengers leave. Also, it is said that the respondents' vessel is generally inferior to that of the applicants.

I have previously said in litigation. between 'these parties that I do not think comparative advertising should ordinarily be restrained pendente lite, except in clear cases. The reason is one of convenience: business people should not be taken off to court to defend their advertising in interlocutory proceedings (which may be quite expensive) unless there is something of real significance to complain about. To encourage interlocutory applications of this sort to be made without solid ground would be pernicious.

If the sort of advertising in BJD17 were restrained, it would be difficult for business people, in many cases, to let people know of price differences without accompanying their statement of the differences with elaborate explanations. The advertisement complained of does not say that the cruises offered are just as good as one another, but provides the information that one is a lot cheaper. It is left to the prospective customer to obtain information, if he is interested, as to whether the vessels operating look about the same, or are different in other ways.

In my opinion, the differences relied on by the applicant do not make the advertisement drawing attention to the price discrepancies prima facie misleading.

Another complaint about the same advertisement is that, insofar as it says that the respondents have "Australiars most luxurious passenger ferry" that cannot be right because the applicants' is more luxurious. The word "luxurious" is vague, but it may be that in some circumstances so describing a vessel would be unlawful, if the vessel were in fact of low standard. Here,

were, on a thorough analysis, shown that the applicants' vessel is	the Court might restrain . such an advertisement at .trial if it
undoubtedly the more luxurious. But I do not think the Court should enter upon this sort of inquiry in interlocutory proceedings.
Another complaint about the same advertisement is that it says that Big Cat Tour Services and the applicants operate older, slower vessels to Green Island, but it does not mention

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that they are cheaper. I do not think there is anything unlawful '

about that.

In the result, I have decided to grant no relief in

respect of BJD17.

2. The second complaint is that Exhibit 1, the Fitzroy Island brochure, says "NO STINGERS". Mr Ure has informed me that there were some dodgers distributed which included this assurance, but there are none left.

I am uncertain whether, as was argued, the expression "NO STINGERS" should be taken to be limited to the box jellyfish. It appears that it is by no means impossible to be stung by sea creatures at Fitzroy Island. However, since the respondents do not intend to repeat this assertion, I will not go into that matter further and will grant no relief.

3. The third complaint is one with which I have had more be misleading because it suggests that the +slow Green Island

C	difficulty. The advertisement complained of (BJDlg(1)) is said to
launches take three hours for the journey whereas the applicantsr
fast boat takes only 4 5 minutes. The two time estimates occur in
the following context. One is "in just 4 5 minutes" and the other
is:

"Forget the incredibly slow launches. Don't spend three hours of your day travelling on slow superseded vessels".

I agree that, as Mr Ure argued, an alert reader would take it that what was meant was that the fast boat would take 4 5 minutes to travel to Green Island and the slow boat three hours to get there and back. But one asks: why are the two times mentioned? The answer must be, to enable a comparison to be made. Then, one would think, the right course would be to mention two times which are fairly comparable.

It is also argued that BJD19(1) is misleading in that it does not point out that the "incredibly slow launches" are cheaper. I do not think there is anything in this. The advertisement does not give or imply any information about the price of the slow vessels. Then it is argued that the advertisement is misleading in that it does not say that you can get to Green Island in 4 5 minutes in boats other than the respondentsv - i.e. the applicants'. Again, I do not regard this aspect as misleading.

In the end, then, the only complaint about BJD19(1)

which I am prepared to uphold is that I think there is a .prima

the 45 minutes, and that it is convenient to restrain that	facie case of misleading conduct in'comparing.therthree.hours with
conduct. It will be ordered that the respondents be restrained, pending the action, from stating differences in vessel travel times by giving a one way travel time for their vessel and a two-way travel time for others.
4 . The last complaint made is based on the content of Exhibit 4 , a transcript of a telephone conversation between Messrs

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Sheeran and Jenkins which took place on 6 November 1989. It is said that, in the course of the conversation, FIr Sheeran made intimidatory remarks to Mr Jenkins which were prima facie unlawful and should be restrained.

I have read the transcript and note that its tone varies considerably: some of the conversation appears to be hostile, yet not all of it is, and I note that it appears to have concluded in

a friendly enough way.

I am inclined to accept that Mr Jenkins was concerned that some of the steps which Mr Sheeran foreshadowed might be beyond the bounds of orthodoxy. Mr Sheeran spoke of getting "into it tooth and nail" and remarked:

l ' . . . if it is a blue you people want, you're going

to get one in a big way".

He spoke of causing "pain like you wouldn't believe".

, Mr Sheeran also ,referred to a.,proposed~development at

Green Island and said:

"... I will make it my business to undo everything.

You won't get a development on Green Island, I'm telling you that quite categorically, because 1 will employ people to see that you don't."

Mr Sheeran also suggested:

".	.. there are a lot of things that can be done, and
if I am forced to do them, you know, we have got to
do what we have got to do."

He added a little later:

"I am not prepared to go along the route of keeping the paperwork just flowing backwards and forwards. There are plenty of other ways to get results other than that Bruce and I don't believe ..."

It is a civil wrong to use unlawful threats to induce another person to act in accordance with one's wishes: Morgan v. % [l9681 2 QB 710, Latham v. Singleton [l9811 2 NSWLR 843. That general statement may require qualification, but it is unnecessary to define the limits of the tort for the purposes of this case. That is so, because I am not satisfied there is a sufficiently strong case of threat to do anything unlawful. I can understand that a competitor who is told that great pain might be caused, an implication being open that the pain might be caused by physical means, might become apprehensive. It is obvious that deliberate destruction of property or personal violence in aid of business competition must be severely discouraged by courts. It appears to

.me that Mr Sheeran spoke in~an equivocal way, perhaps hoping that	.his interlocutor.would take a sinister meaning from-what was said.
Not without some misgivings, I have come to the conc:lusion that no relief should be granted at this stage.
In the result, the applicants have succeeded as to one matter only. I have decided to make the costs costs in the proceedings.
~t should be added that some of the affidavit material on which the applicants rely is in an unsatisfactory form, being argumentative and diffuse. If there is to be any further application in these proceedings, it will be necessary to insist that the affidavits be in proper form.

I certify that this and the seven

preceding pages are a true copy of the
reasons for judgment herein of His Honour

Mr. Justice Pincus.

c- --c=- /'---

~ssociafe c-

Dated 2 /Ywck IqqG /'

Counsel for the applicants:	Mr C.E.K. Hampson Q.C. and Mr T.W. Quinn
Solicitors for the applicants:	Bowdens McCafferty Waters and Ward
Counsel for the respondents:	Mr S. Ure
Solicitors for the respondents:	Thomas Stevens
Date of Hearing:	9 February 1990