Janssen-Cilag Pty Ltd v Pfizer Pty Ltd

[1992] FCA 649

Re: JANSSEN-CILAG PTY LIMITED
And: PFIZER PTY LIMITED
No. G340 of 1990
FED No. 649
Trade Practices
(1992) 14 ATPR 41-186
(1992) 37 FCR 526

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Trade Practices - Damages under Part V of the Trade Practices Act 1974 - whether reliance is necessary pre-condition for award of damages - whether competitor who suffers damage arising from contravention but has not relied on the contravening conduct is entitled to damages.

Trade Practices Act 1974 (Cth): s. 82.

HEARING

SYDNEY

#DATE 8:9:1992

Counsel for the Applicant and S.D. Robb and
Cross-Respondent: K. Howard

Solicitors for the Applicant and Michell Sillar McPhee and
Cross-Respondent: Meyer

Counsel for the Respondent and J.D. Heydon QC and
Cross-Claimant: I.M. Jackman

Solicitors for the Respondent and Freehill Hollingdale and
Cross-Claimant: Page

ORDER

THE COURT ORDERS THAT:

1. The question before the Court be answered as follows:

Question

Is paragraph 4 of the Defence to paragraphs 23A and 24 of the applicant's (Janssen's) further amended statement of claim a good answer in law to the claim in paragraph 16 of the application for damages?"

Answer

No.

2. Any argument on the question of costs of this hearing and any

further directions as to further conduct of a hearing on the question of damages be stood over to a date to be fixed.

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

JUDGE1

The question which arises for determination by the Court is whether entitlement to recover loss or damage under s. 82 of the Trade Practices Act 1974 ("the Act") is confined to a person who relied on the representation which constituted a contravention of a provision of Part IV or V of the Act.

1. The question arises in the context of a recent, but active, bout of litigation in this Court between the parties. On 24 September 1991 the Court found that certain representations made by the respondent, Pfizer Pty Limited ("Pfizer"), contravened s. 52 of the Act; and on 29 October 1991 the Court granted injunctions against Pfizer to restrain the further making of these representations. The question of damages, if any, sustained by the applicant, Janssen-Cilag Pty Limited ("Janssen"), was agreed to be tried separately from the question of liability which was determined by the Court on 24 September 1991. Directions were given from time to time by the Court, after the making of the orders of 29 October 1991, for the purpose of preparing the case on damages for hearing.

2. On 30 April 1992 Janssen filed a further amended statement of claim in which paragraphs 23A and 24 appear in these terms:
   

"23A. The making by the Respondent of the representations and each of them pleaded in paragraphs 7, 10, 13, 16, 19 and 20B hereof induced members of the public and pharmacists to purchase the Respondent's drug 'Combantrin' instead of the Applicant's drug 'Vermox' thereby causing the Applicant to lose sales of its drug 'Vermox' which it would otherwise have made and continued to make had the Respondent not made the said representations." "24. In consequence of the contraventions of the Trade Practices Act 1974 alleged in paragraphs 21 and 23 hereof and each of them the Applicant has suffered, and continues to suffer loss and damage."

1. The defence of Pfizer to paragraphs 23A and 24 contains paragraph 4 in these terms:
   

"Further and in the alternative, the Respondent says that if (which is not admitted) the Applicant has suffered loss and damage, the Applicant is not a person entitled to recover any such loss or damage within the meaning of s. 82(1) of the Trade Practices Act. PARTICULARS Without limiting the arguments on which the Respondent will rely, the Respondent says that:

(a) the Applicant is not a consumer within the meaning of the Trade Practices Act; and

(b) the Applicant is not a person who relied on the representations pleaded in paragraphs 7, 10, 13, 16, 19 and 20B of the Further Amended Statement of Claim or any of them."

1. Janssen asserts that it is entitled to recover loss and damage of the kind pleaded in paragraphs 23A and 24 of the further amended statement of claim notwithstanding that it did not itself rely on the representations and was not otherwise influenced by them. Pfizer denies this assertion.

2. By consent of the parties, the Court ordered on 2 July 1992 that the following question be determined separately from and before any other outstanding question in the proceeding:-
   

"Is paragraph 4 of the Defence to paragraphs 23A and 24 of the Applicant's (Janssen's) further amended statement of claim a good answer in law to the claim in paragraph 16 of the Application for damages?"

It is agreed between the parties that if this question is answered "yes" (as Pfizer contends it should be), then the Court should order that Janssen's claim for damages in paragraph 16 of its application should be dismissed; but if the Court answers the question "no" (as Janssen contends it should be), then the claim for damages by Janssen should proceed and directions be given accordingly.

1. The essential difference between the contentions of the parties is that Pfizer contended that only a person who relied on the representation which constituted the contravention of s. 52 can recover damages under s. 82. An alternative submission was put by Pfizer, namely, that a person may recover damages under s. 82 who did not himself rely on the representation provided that the representation was made with respect to the business or goodwill of the applicant in the sense that it was an untrue statement about the applicant's business or was a statement calculated to induce the public into believing that the respondent's business was associated with the applicant's business. Janssen contended that a person who was not himself misled directly by the representation but who suffered injury caused directly by the fact that another person who did rely on the representation was misled or deceived by it can recover damages under s. 82.

2. Each party placed strong reliance on the preposition "by" in s. 82, Janssen contending that, by the use of that word, s. 82 required that there be a sufficient cause or link between the respondent's conduct and the applicant's alleged damage. Counsel for Pfizer agreed with that submission, but said that there was a further essential requirement, namely, that for a sufficient cause or link to be found it may be found only in the applicant's reliance upon the conduct complained of (subject to the alternative submission mentioned above).

3. Section 82(1) provides:
   

"82(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention."

1. Section 87 should be mentioned; it confers wide power on the Court to make ancillary orders to compensate person who suffer loss or damage by conduct that contravenes a provision of Part IV or Part V of the Act. This includes power to make orders voiding or varying a contract, directing a return of money or paying to the person who suffered the loss or damage the amount of the loss or damage.

2. The Act does not prescribe the measure of damages recoverable by an applicant for contravention of any of the provisions of Parts IV and V; and, as was observed in Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1, by Mason, Wilson and Dawson JJ. (at 11):
   

"It is for the courts to determine what is the appropriate measure of damages recoverable by a plaintiff who suffers loss or damage by conduct done in contravention of the relevant provisions (of Parts IV and V)".

As their Honours pointed out (also at 11) there are two established measures of damages, those applicable in contract and tort, and they "compete for acceptance". They compared the measure of damages recoverable by a plaintiff for breach of contract and for breach of tort (at 11 and 12) and said (at 12):

"In tort, on the other hand, damages are awarded with the object of placing the plaintiff in the position in which he would have been had the tort not been committed (similar to reliance loss)."

1. Gibbs C.J. expressed similar views (at 6 and 7). After referring to certain of the decisions of this Court where the measure of damages in tort, and not that for breach of contract, was held to apply in the assessment of damages under s. 82 for a contravention of s. 52 or s. 53 the Chief Justice said (at 7): "This view is plainly correct".

2. Mason, Wilson and Dawson JJ. said (at 14):
   

"The courts are not bound to make a definitive choice between the two measures of damages so that one applies to all contraventions to the exclusion of the other. However, there is much to be said for the view that the measure of damages in tort is appropriate in most, if not all, Pt V cases, especially those involving misleading or deceptive conduct and the making of false statements. Such conduct is similar both in character and effect to tortious conduct, particularly fraudulent misrepresentation and negligent misstatement."

1. Section 82 creates a remedy in damages for the benefit of persons who have suffered loss or damage "by conduct of another person" in contravention, inter alia, of s. 52. Such persons are entitled to recover "the amount of that loss or damage", and it may be recovered from the person who contravened the relevant provision of the Act and from any person involved in the contravention (see s. 75B).

2. Section 82 is the vehicle for the recovery of loss or damage for multifarious forms of contravention of the provisions of Parts IV and V of the Act. It is important that rules laid down by the courts to govern entitlement to damages under s. 82 are not unduly rigid, since the ambit of activities that may cause contraventions of the diverse provisions of Parts IV and V is large and the circumstances in which damage therefrom may arise will vary considerably from case to case.

3. What emerges from an analysis of the cases (and there are many of them) is that they do not impose some general requirement that damage can be recovered only where the applicant himself relies upon the conduct of the respondent constituting the contravention of the relevant provision.

4. Also, a perusal of the provisions of Parts IV and V, the contravention of which gives rise to an entitlement to an applicant for compensation for loss or damage, points to the conclusion that applicants may claim compensation when the contravener's conduct caused other persons to act in a way that led to loss or damage to the applicant. Examples are s. 46 which concerns the misuse of market power by corporations, s. 47 relating to the practice of exclusive dealing, also s. 48 which is concerned with resale price maintenance. As to s. 47(1) and (6) relating to third line forcing see Castlemaine Tooheys Limited v Williams and Hodgson Transport Pty Limited (1986) 162 CLR 395 (High Court) and (1985) 7 FCR 509 (Full Federal Court). See Hubbards Pty Limited v Simpson Limited (1982) 41 ALR 509 and (1983) 44 ALR 695 (on appeal) with respect to s. 48. See also Australasian Meat Industry Employees' Union v Mudginberri Station Pty Limited (1987) 74 ALR 7 where contraventions of s. 45 of the Act were involved and they concerned contracts, arrangements or understandings or restrictive dealings which adversely affected competition. Also in Part IV are sections such as s. 60 and s. 63A. Section 60 prohibits corporations from using physical force or undue harassment or coercion in connection with the supply of goods or services to consumers or the payment therefor. Section 63A prohibits corporations from sending unsolicited credit cards to persons.

5. The use of the preposition "by" in s. 82(1) is important; it indicates the requirement that there be a sufficient cause or link between the respondent's conduct and the recoverable loss or damage: Brown v Jam Factory Pty Limited (1981) 35 ALR 79 at 88; Elna Australia Pty Limited v International Computers (Aust) Pty Limited (No. 2) (1987) 16 FCR 410 at 418. "By" is used in s. 52(1) in the sense of "by reason of" or "as a result of": Munchies Management Pty Limited v Belperio (1989) ATPR 40-926 at 50,037. Loss or damage must directly result from or be caused by the respondent's conduct. The respondent's conduct must be the real or direct or effective cause of the applicant's loss; it must have been "brought about by virtue of" the conduct which is in contravention of s. 52: Elders Trustee and Executor Company Limited v E.G. Reeves Pty Limited (1988) 20 FCR 164; Kabwand Pty Limited v National Australia Bank Limited (1989) 11 ATPR 40-950 at 50,378 where Lockhart J. said:
   

"... The right to damages arises where the applicant to the Court has suffered loss or damage 'by' the conduct that was in contravention of s. 52. The relationship between the damages and the impugned conduct is expressed by the word 'by' which signifies no more than that the loss or damage has to have been brought about by virtue of the conduct which is in contravention of s. 52. ... For present purposes it is sufficient to say that a person claiming damages must show either that he has been induced to do something or to refrain from doing something which gives rise to damage or has been influenced to do or refrain from doing something giving rise to damage by the conduct contravening s. 52 ... even if the issue of reliance may, as Lockhart J. indicated in Henjo, be more complex than the formulation of the test in terms of 'influence' suggests."

1. Whilst the applicant's loss or damage must be caused by the respondent's misleading or deceptive conduct, I see nothing in the language of the Act or its purpose to warrant the suggestion that the right of an applicant for damages under s. 82 is confined to the case where he has relied upon or personally been influenced by the conduct of the respondent which contravenes the relevant provision of Part IV or Part V of the Act. Examples abound to prove the point, but it is sufficient if I take one simple case. A manufacturer of, say, leather goods may have established over many years a large and valuable reputation amongst the public or a significant section of the public. The respondent may commence to carry on business of manufacturing leather products under a name deceptively similar to that of the applicant and by which the applicant's goods are known. Members of the public may be misled into believing that the respondent's business is the business of the applicant or associated with the business of the applicant and they may take their business to the respondent. The applicant has not relied on any representation of the respondent or been misled or deceived by it, but his loss is the loss of business occasioned directly by the respondent's conduct (or the consequent loss of profit). I can conceive of no reason why the Act, which is designed to foster and promote competition and, by Part V, to prevent misleading or deceptive conduct, should be given a restrictive interpretation in s. 82 such that only persons who relied upon the representation are entitled to recover loss or damage from the respondent. The evident purpose of the Act leads in my opinion plainly to a different conclusion.

2. In March v E and M H Stramare Pty Limited (1991) 171 CLR 506 the High Court considered questions relating to causation and claims to recover damages for negligence; but certain observations of their Honours are apposite to questions of causation under s. 82 of the Act. Mason C.J. (with whose reasons for judgment Toohey and Gaudron JJ. concurred) rejected the view that the "but for" or causa sine qua non test ever was or should now become the exclusive test of causation in negligence cases (at 508). Toohey J. said (at 524):
   

"Where negligence is in issue, causation is essentially a question of fact, in the sense explained by the Chief Justice, into which considerations of policy and value judgments necessarily enter."

Deane J. said (at 524):

"Nonetheless, the question whether conduct is a 'cause' of injury remains to be determined by a value judgment involving ordinary notions of language and common sense."

1. Section 82(1) should not be given a restricted meaning to be available only to the person who suffers loss or damage by reason of his own reliance upon the representations which constituted the relevant contravention of Part IV or V; nor for that matter should it be given an extended meaning which strains the language used by the legislature. But a person who suffers damage by reason of or as a result of the conduct of the contravener (albeit that that person does not himself rely upon the representations) is not to strain the language of the subsection, but to interpret it according to its ordinary and natural meaning. For a person to recover under the section he must suffer loss or damage by reason of or as a result of the contravention. There is nothing unduly wide about that.

2. In the present case the applicant is a rival trader to the respondent whose conduct has constituted a contravention of s. 52 of the Act which the applicant says directly harmed it. A rival trader is "a person" who suffers loss or damage within s. 82. The expression "a person" should not be read down. Some assistance to its meaning is derived from s. 80 which entitles the Minister, the Trade Practices Commission "or any other person" to apply for injunctive relief under s. 80 of the Act provided the other criteria mentioned in the section are met. The class of applicants for injunctive relief is "expressed as widely as it can be and it would require considerations of very great strength to warrant a reading down": R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Limited (1978) 142 CLR 113 per Mason J. at 128 and to like effect Stephen J. at 121. There are many cases, too numerous to mention, where rival traders have been held to be entitled to damages pursuant to s. 82. Although Part V of the Act is "to protect the consumer by eliminating unfair trade practices": Parkdale Custom Built Furniture Pty Limited v Puxu Pty Limited (1982) 149 CLR 191 per Mason J. at 204; rival businessmen are no less "other persons" than ordinary consumers. Just as the words "or any other person" in s. 80(1) which confer entitlement to a claim of injunctive relief against the conduct prohibited by the Act are words of wide application, so the words in s. 82 "a person who suffers loss or damage" are words also of general application and encompass claims for damages by rival traders. In Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre Limited (1978) 140 CLR 216 Stephen J. held at 226:
   

"... if, moreover, the legislative prohibition can be enforced by an injunction which 'any other person' may seek (see s. 80(1)), it then becomes possible for a trader, injured by the competition of his trade rival, to gain a remedy under the Act instead of having recourse to civil action by way of proceedings or passing off. The remedy in such a case will not, as in passing off, be founded upon any protection of the trader's goodwill but, being directed to preventing that very deception of the public which is injuring his goodwill, it will nevertheless be an effective remedy for that of which he complains. The provisions of s. 82, not evoked in this case, which allow a person who suffers loss by another's act which is contravention of s. 52 to recover by action the amount of his loss, may render the statutory remedy even more complete."

In Pilkington Murphy J. expressly rejected the argument that a rival trader could not obtain damages under s. 82 (at 131-132).

1. Nor is there any element of indirectness or remoteness associated with the damage alleged by the applicant. Where a corporation engages in conduct which misleads consumers, the natural and direct result of which is to cause the public to buy more of that trader's product and less of a rival trader's product, the loss to the rival is direct and immediate; it is not remote or indirect. The purpose of the conduct is to reduce the market share of the rival to the benefit of the trader engaging in the misleading conduct. That benefit is achieved by misleading consumers. This is a class of conduct to which s. 82 is directed. It is true that application of this test of causation may be complex and difficult in certain circumstances, but the application of measures of damages in the law of tort is not free from complexity as a review of the cases shows. The law does not shirk from granting justice because of difficulties that may lie in the path of its achievement.

2. Pfizer relied upon a number of decisions of Judges of this Court to support its contention that a sufficient cause or link between s. 52 conduct and damage can be found and found only if the applicant relied upon the conduct complained of. The first case to which reference was made was Mister Figgins Pty Limited v Centrepoint Freehold Pty Limited (1981) 36 ALR 23. In that case the applicant entered into two leases of shops in a shopping centre and alleged that misleading and deceptive representations were made to it by the respondent to induce it to enter into the leases. Northrop J. held (at 59) that there must be a causal connection between the s. 52 conduct and the loss or damage and that the damages to be recovered are to be determined in a manner similar to deceit cases. He said that the principles to be applied are similar to those applied in determining the measure of damages in tort, not for breach of contract, and agreed with the views expressed by Fox J. in Brown v Jam Factory Pty Limited (1981) 35 ALR 79. Northrop J. was not considering the question which arises in this case, namely, a claim for damages by an applicant which was not itself misled or deceived by the representations of the respondent. I discern nothing in Northrop J.'s reasons to support Pfizer's contention.

3. The next case to which reference was made by Pfizer was Pappas v Soulac Pty Limited (1983) 50 ALR 231. This was also a shopping centre case where the applicants asserted the making of representations by the agent of the respondents concerning the commercial viability of the centre. Fisher J. held (at 238) that the applicants would only be entitled to damages under s. 82 if they established that they were induced by the relevant representations. His Honour found that the inducement had not been established. Again his Honour was dealing with a different situation to the present case; and nothing said by his Honour supports the proposition advanced by Pfizer that sufficient cause or link between s. 52 and damage can be found only if the applicant relies upon the conduct complained of.

4. Jones v Acfold Investments Pty Limited (1984) 6 FCR 512 was called in aid by Pfizer. The appellants agreed to purchase from one of the respondents strata title units in a building in Queensland. They asserted that they had agreed to purchase the units on the basis of misleading and deceptive representations made to them during the course of negotiations by the respondents. The trial Judge found that the appellants had placed no reliance upon the relevant representations and were not induced to enter into the agreements of purchase. The Full Court upheld the findings of the trial Judge. It was not necessary for their Honours to consider any question of damages because it had not arisen. No support for Pfizer's contention is to be found in this case.

5. Elders Trustee and Executor Co Limited v E G Reeves (1988) 78 ALR 193 was relied on by Pfizer. The first respondent, a family company of the second and third respondents, owned an agricultural property. The first respondent transferred the property to the applicant. The applicant claimed that the respondents had engaged in misleading and deceptive conduct in failing to disclose material matters to it and asserted also that the respondents had made positive misrepresentations. The trial Judge found that the applicant had not established that the representations constituted misleading or deceptive conduct. On the question of damages his Honour found that it was for the applicant to show reliance upon the conduct complained of "as supplying a sufficient causal connection between the conduct and the loss or damage for which recovery is sought under s. 82" (at 242) and he cited in support of that proposition Pappas v Acfold Investments. On the following page (243) his Honour said that it was incumbent upon the applicant to show that it relied upon the relevant representations "so as to supply the necessary causal connection for the purposes of the TP Act". Again, his Honour was not considering the question that has arisen in this case where the respondent misleads a third party and the third party is induced by that conduct to act in a way which causes direct and natural damage to the applicant. I see nothing in his Honour's reasons for judgment which runs counter to the principles which in my opinion govern the question of damages in this case. The appeal from the trial Judge's judgment to a Full Court of this Court (reported at (1988) 20 FCR 164) was dismissed; the grounds of appeal did not relate to the question of damages.

6. The next case relied on by Pfizer was Henjo Investments Pty Limited v Collins Marrickville Pty Limited (1988) 79 ALR 83. In that case the respondent purchased a restaurant business allegedly on the faith of misrepresentations as to the seating capacity of the restaurant. The trial Judge found that the representations had been made and ordered that the contract of sale be declared void ab initio, made consequential orders and ordered that judgment be entered for damages. A live issue at the trial was whether the respondent had failed to take reasonable care for his own interests by not undertaking his own enquiries and investigations about the numbers of patrons at the restaurant and other matters. On appeal the question of whether the respondent had actually relied upon the misleading or deceptive conduct of the respondent or whether the true cause of his loss was his own neglect were the live issues. Again there is nothing in the judgments in Henjo directed to the question which arises in this case.

7. Kabwand Pty Limited v National Australia Bank Limited (1987) 16 FCR 85 (at first instance) and (1980) ATPR 40-950 on appeal was relied on by Pfizer. Again the question was whether the applicant had purchased certain property as a result of misleading or deceptive representations made by the respondent. The question that arises in this case was not involved in Kabwand and nothing said by any member of the Court is contrary to any of the principles which in my view govern this present case.

8. The case upon which the respondent placed the strongest reliance was Kaze Constructions Pty Limited v Housing Indemnity Australia Pty Limited (1990) ATPR 41-017. In that case the applicants claimed loss or damage which they alleged resulted from an order of the Builders' (Appellate and Disciplinary) Tribunal which cancelled Kaze's licence as a builder. The first applicant was a licensed builder and the second applicant was a licensed land agent in South Australia. The order was suspended by an order of the Supreme Court of South Australia and was later set aside on appeal, but it gave rise to considerable publicity in the media. The applicants alleged that the order of the Tribunal was brought about by the conduct of the respondents which constituted on the part of the first respondent a contravention of s. 52, a breach of contract and a breach of common law duty to exercise reasonable care. The second respondent was sued as a body knowingly involved in the contravention (s. 75B). The relevant representations were that remedial work which had been ordered to be carried out by the Tribunal on a house recently constructed by the first applicant had in fact been done, so that in consequence the first applicant took no independent steps to have the work performed. The second applicant had not relied on the representations. The first applicant succeeded but the second applicant failed. The two applicants had similar shareholders, common directors and carried on business from the same premises. The trial Judge (von Doussa J.) held that the loss of the first applicant was recoverable, but not the loss of the second applicant. His Honour found that the claims of the two applicants rested on materially different circumstances (51,317). His Honour said (at 51,317):
   

"Loss or damage suffered by a person who does not rely on the conduct which contravenes s. 52 is not within s. 82 because the necessary causal link between the conduct and the loss or damage for which recovery is sought does not exist."

1. Kaze was not concerned with the question which arises in the present case; but directed to whether the cause of loss claimed by the applicant was the conduct of the respondent or some other extraneous cause; also whether the respondent's conduct was a cause of the damage in the sense of causa sine qua non. Kaze was not directed to the question whether an applicant's loss can be caused by the respondent's conduct if the applicant himself did not rely upon the representation of the respondent, but nevertheless suffered loss directly as a result of the respondent's conduct. His Honour's observations (at 51,317) must be read with these considerations in mind. If his Honour's reasoning does support the proposition that sufficient nexus between the respondent's conduct and the applicant's damage may be found only in circumstances where the applicant relies upon the conduct complained of (and I do not think his Honour's observations had this point in mind) then I respectfully disagree with him.

2. Kaze was explained in Heydon's Trade Practices Law, vol 2, paragraph 18.1340 in these terms:
   

"Where X contravenes s. 52, and A relies upon X's conduct and suffers loss, A can recover damages under s. 82, but other persons who suffer loss because of A's loss cannot unless they too have relied upon X's conduct."

I agree with that statement.

1. Support for the view that von Doussa J. did not intend in Kaze to support the proposition for which Pfizer contends in this case can be found in the decision of von Doussa J. in Snyman v Cooper (1990) ATPR 40-993 where his Honour found that advertisements placed by the respondents in the Yellow Pages of the Brisbane telephone directory were misleading and deceptive in that they might mislead or deceive potential customers of the applicant's floristry business. His Honour awarded general damages under s. 82 notwithstanding that the effect of the misleading advertisements would be to mislead members of the public and not the applicant itself. This judgment was delivered on 8 December 1989 and the judgment in Kaze on 9 March 1990. Reference was not made by his Honour in Kaze to Snyman which indicates that his Honour did not regard the two judgments as inconsistent; and in my opinion they were not. It simply means that his Honour did not regard Kaze as involving the question which arose in Snyman.

2. Counsel for Janssen relied on a number of cases in support of the argument that sufficient cause or link between the respondent's conduct and the applicant's alleged damage may be found notwithstanding that the applicant did not rely upon the conduct complained of. Counsel referred to W.H. Brine Co v Whitton (1982) 37 ALR 190 where the respondent sold soccer balls imported from Korea marked with various marks and devices, some of which were the property of the first applicant. The respondent admitted liability for wrongful use of the applicant's mark. The applicant sought an assessment of damages in this Court for misleading or deceptive conduct under the Act, for infringement of copyright under the Copyright Act 1911 and for conversion. The applicant was not misled or deceived by the respondent's conduct, but such conduct was likely to mislead or deceive members of the public into thinking that soccer balls were the product of the applicant. Fox J. awarded damages under s. 82, though on the facts of the case the damages were minimal. The essential question in this case was not the subject of submissions before his Honour and he did not deal with the point. Nevertheless, his findings are consistent with the argument of Janssen and inconsistent with the argument of Pfizer.

3. Australian Ocean Line Pty Limited v West Australian Newspapers Limited (1983) 47 ALR 497 was relied on by counsel for Janssen. In that case the first respondent published and sold, and the second respondent printed, articles in newspapers concerning a holiday cruise on a ship chartered by the applicant. After publication of the articles a number of persons cancelled bookings for later cruises of the ship and travel agents discontinued promoting its tours. The applicants claimed that the publications and printing of the articles was in breach of s. 52 and that the respondents had defamed the applicant. The question arose before the Court on a stated case and was whether the applicant had an arguable cause of action. The Court (Toohey J.) held that it did. That was a case where the applicant claimed damages suffered by it as a direct result of the respondent having misled the applicant's customers and was not conduct by the respondent which misled the applicant. Again the point which arises here does not appear to have been argued before his Honour and is not adverted to in his reasons for judgment; but nevertheless his Honour's findings are inconsistent with the contention advanced in this case on behalf of Pfizer.

4. Prince Manufacturing Incorporated v ABAC Corporation Australia Pty Limited (1984) 4 FCR 288 was also relied on by counsel for Janssen. In that case the respondents sold tennis rackets to members of the public bearing the applicant's trademark "Prince Pro". The trial Judge held that the relevant conduct of the respondents contravened s. 52 and held that the case was appropriate for the award of general damages to the applicants. Again, the only persons who could have been misled or deceived were members of the public and not the applicant itself.

5. Flamingo Park Pty Limited v Dolly Dolly Creation Pty Limited (1986) 65 ALR 500 was relied on by counsel for Janssen. In that case the applicant designed a pattern for application to fabric by the respondent. The contract between them precluded the respondent applying the pattern to any other fabrics. The respondent breached the agreement and part of the pattern applied to the new fabric included the name of the principal of the applicant. Wilcox J. held that the principal, the applicant, was entitled to damages under s. 82 if the respondent by selling fabric to members of the public bearing the name of the principal of the applicant, misled or deceived the public as to the source of the fabric. This is another case where the applicant was not misled or deceived by the respondent's conduct, but members of the public were. His Honour did not award damages under s. 82 because the applicant had been compensated adequately by damages for breach of contract.

6. Telmak Teleproducts (Australia) Pty Limited v Coles Myer Limited (1988) 84 ALR 437 was relied on by Janssen. The question which arises in the present case did not arise directly or indirectly in that case. I do not find it of any assistance in resolving the question now before the Court. It was concerned with different issues.

7. Another case relied on on behalf of Janssen was Typing Centre of NSW Pty Limited v Northern Business College Limited (1989) ATPR 40-943. The applicant carried on the business of training receptionists and secretaries. The respondent operated business colleges for the training of secretaries. The respondent caused to be published in certain newspapers then also used by the applicant, an advertisement which was disparaging of the educational courses provided and advertised by the applicant. The respondents were held to have engaged in misleading and deceptive conduct contrary to s. 52, but the applicant was not confused, the confusion was that of the members of the public. Wilcox J. held that the applicant was entitled to general damages.

8. Two other cases mentioned in argument were FAI General Insurance Company Limited v RAIA Insurance Brokers Limited (1992) ATPR 41-176 and Pacific Coal Pty Ltd v Idemitsu Queensland Pty Ltd (1992) ATPR Dig 46-094. To the extent that they bear on the question presently before the Court they support the case of Janssen.

9. It is true as counsel for Pfizer submitted, that in none of these cases was the point taken that is the nub of this case. Nevertheless, the fact remains that certain of those cases are inconsistent with the argument advanced by Pfizer and consistent with the case of Janssen and are therefore inconsistent with the argument that sufficient cause or link between the offending conduct of a respondent and the applicant's alleged damage is found only where the applicant relies upon the conduct complained of.

10. Accordingly, in my opinion, entitlement to recover loss or damage under s. 82 of the Act is not confined to persons who rely on the representations which constitute contraventions of provisions of Parts IV and V of the Act.

11. I answer the question before the Court as follows:
    Question
    

Is paragraph 4 of the Defence to paragraphs 23A and 24 of the applicant's (Janssen's) further amended statement of claim a good answer in law to the claim in paragraph 16 of the application for damages?"

Answer

No.

1. I shall stand the case over to a date to be fixed to hear argument as to the costs of the hearing of this preliminary question of law and to give directions for the further conduct of the hearing relating to damages.