Motor Accidents Authority of NSW v North Cronulla Investments Pty Ltd

[1999] FCA 367

Motor Accidents Authority of New South Wales v. North Cronulla Investments Pty Ltd and Mark Henry
[1999] FCA 367
No. N 201 of 1999
Number of pages - 5

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

EMMETT J

SYDNEY, 23 March 1999 (hearing and decision)

#DATE 23:3:1999

Counsel for the Applicant: M.K. Minehan

Solicitor for the Applicant: McCabes Solicitors

Counsel for the Respondent: N.F. Francey

Solicitor for the Respondent: Elliott Tuthill

THE COURT NOTES THAT:

(1) The Applicant gives the usual undertaking as to damages in respect of the undertaking in (2).

(2) The Respondents undertake to the Court that, for the purpose of ensuring that all advertising and promotional material for the Green Slip Hot Line ("the Service") makes it clear that the Green Slip Hot Line is a privately run advice service for greenslip customers, the Respondents will together ensure that:

(a) the statement "GREEN SLIP HOT LINE IS A PRIVATELY RUN ADVICE SERVICE", in the form comprised in exhibit M3R appears on all fixed advertising for the Service, including on buses;

(b) the words "GREEN SLIP HOT LINE IS A PRIVATELY RUN ADVICE SERVICE" appear in all future print advertisements for the Service, in a type size no smaller than the disclosure of charges which apply on the Green Slip Hot Line;

(c) any television advertisements for the Service transmitted after 6 April 1999 will display the statement "GREEN SLIP HOT LINE IS A PRIVATELY RUN ADVICE SERVICE", and that any television advertisements transmitted before 7 April 1999 will display the statement "GREEN SLIP HOT LINE IS A NON GOVERNMENT ORGANISATION", in each case in a form no less prominent than as depicted in the current television advertisement comprising exhibit M4R;

(d) in any future television advertisement for the Service in which the telephone number of the Green Slip Hot Line is audible, the statement "GREEN SLIP HOT LINE IS A PRIVATELY RUN ADVICE SERVICE" is also audible.

(e) in any future radio advertisements for the Service the statement is clearly made "GREEN SLIP HOT LINE IS A PRIVATELY RUN ADVICE SERVICE".

THE COURT ORDERS THAT:

(3) The application for interlocutory relief be adjourned to 25 March 1999.

(4) The proceedings be fixed for directions generally on 25 March 1999.

(5) Liberty to the parties to apply on 3 days' notice be reserved.

(6) Costs of today be costs of the parties in the proceedings.

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

EMMETT J

1. In this matter the applicant seeks a declaration that the respondents' use of the name "Green Slip Hot Line" constitutes conduct that is misleading or deceptive in contravention of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW). When the matter came on for hearing this morning, the applicant indicated that it wished to move for interlocutory relief. There was some discussion as to the feasibility of the matter being dealt with on a final basis but, after rulings on evidence, neither party wished to proceed on a final basis.

2. After a short adjournment, the parties reached an understanding as to the manner in which the interlocutory application would be disposed of. Undertakings were then proffered to the Court on behalf of the respondents which were expressed to be for the purpose of ensuring that all advertising and promotional material for the Green Slip Hot Line conducted by the respondents or one of them makes it clear that the Green Slip Hot Line is a privately run advice service for Green Slip customers. The undertaking then set out the specific steps which were to be taken by the respondents in order to achieve that purpose. One matter was left outstanding following that resolution of the interlocutory application, namely, the question of the costs of today.

3. I have been taken to correspondence between the parties which began by a letter from the applicant's solicitors to the respondents of 12 February 1999 seeking assurances that the respondents would cease advertising using the name "Green Slip Hot Line" and would have the "Green Slip Hot Line" business name deregistered. The response, of 18 February 1999, was to deny any misleading or deceptive conduct and an offer in the following terms:

"In order to ensure that any possibility of confusion in the marketplace is avoided our client is prepared to ensure that all its advertising and promotional material makes it clear that the Green Slip Hot Line is a privately run advice service for greenslip customers. In that way our client's business will be clearly distinguished from your client's government-run service."

4. On 22 February 1999, the applicant's solicitors replied saying inter alia as follows:

"We require the following information to be provided to us [Ö]:

(a) A description of the steps which your client will take to 'ensure' that all its advertising and promotional material differentiates the Green Slip Hot Line business from our client's service;

(b) The text of any statements or modifications to advertisements to be made by your client to distinguish the two services;

(c) The form of undertaking that your client will provide our client to ensure that its efforts in distinguishing your client's Green Slip Hot Line from our client's service are effected and are continuing."

5. On 26 February 1999, the respondents' solicitors responded saying inter alia:

"(a) We did not say in our letter of 18 February 1999 that our client would take steps to 'ensure' that all its advertising and promotional material differentiates the Greenslip Hot Line business from your client's service. We made it clear that we did not think that that was necessary but, in order to ensure that any possibility of confusion in the market place is avoided, we indicated that our client was prepared to ensure that all its advertising and promotional material makes it clear that the Greenslip Hot Line is a privately-run advice service for greenslip customers. We expect that, in this way, our client's business will be clearly distinguished as a private advice service as opposed to your client's government-run service.

(b) Accordingly, we do not have the text of any statements or modifications to advertisements of the kind requested. We repeat that our client is prepared to ensure that all of its advertising and promotional material makes it clear that the Greenslip Hot Line is a privately-run advice service for greenslip customers. It therefore follows that it is not a government-run service. We do not consider it appropriate that our client be bound to any particular form of text as this will depend on the nature of the advertising or promotional material. Our client will, however, make a feature of the fact that the Greenslip Hot Line is a privately run advice service to greenslip customers and the text of any statements or modifications will be to that effect."

6. On 26 February 1999, the applicant's solicitors responded to that letter saying:

"We cannot understand why you cannot or will not advise us as to what steps your client will take to ensure that the public are [sic] not misled or confused by your client's conduct with respect to the operation of the Green Slip Hot Line in the circumstances. This attitude may well leave our client no alternative but to commence proceedings."

7. On 4 March 1999, the respondents' solicitors responded again, concluding as follows:

"If your client has in fact taken steps to give effect to its undertaking our client requires evidence of this to be provided [Ö] by 12 noon on Monday 8 March 1999. If such evidence is not forthcoming by that time our client will assume that your client is not prepared to comply with its own undertaking and shall take such steps as appropriate."

8. The next communication between the parties, apart from the commencement of the proceedings and notification of that fact to the respondents' solicitors, was a letter from the respondents' solicitors of 18 March 1999 saying inter alia:

"[In the earlier exchange of correspondence in relation to the matter] we indicated the nature of an undertaking our clients were prepared to give to ensure the consumers were made aware that the Green Slip Hot Line operated by our clients is a privately-run advice service for greenslip customers, clearly distinguishing it from your client's government-run Green Slip Help Line.

In our letter of 19 February 1999, we asked for your confirmation, within seven days, whether the proposed course of action by our client was acceptable to your client. In our letter of 26 February 1999, we again asked whether the proposed course of action was acceptable to your client.

We are instructed that at the time our clients were attempting to negotiate with your client over their respective roles but were not receiving replies to their telephone calls. We are also instructed that on 3 March 1999 (the day prior to your letter of 4 March 1999) our clients engaged the services of an advertising expert to give effect to the undertaking.

ÖÖÖÖÖÖÖÖÖÖÖÖ

As you will appreciate, these changes take some time to implement by reason of the need to prepare amended advertising copy and have the new advertising substituted for existing advertising.

We enclose for your information a copy of a revised advertisement [Ö].

Also enclosed is a sticker our clients have arranged to be produced stating "Green Slip Hot Line is a privately-run advice service" which will be applied to fixed advertising, including on buses.

Furthermore, our clients have arranged to incorporate reference to the fact that the Green Slip Hot Line is a privately-run advice service in its telephone service introduction."

9. The applicant's solicitors wrote on 19 March 1999, saying:

"(a) ÖÖÖÖ..

(b) You have finally indicated what your clients propose to do with respect to the print media fixed advertising and the telephone service to distinguish your clients' service from our client's. We are presently seeking our client's instructions on this.

(c) You have not indicated in any way what your clients propose to do to distinguish their service from our client's service in your clients' television and radio advertising. We repeat that we require your clients to advise us immediately as to what they propose to do to distinguish the two services with respect to this advertising."

10. On 22 March 1999, the respondents' solicitors replied saying:

"Our clients' television advertising now contains a distinguishing disclaimer to the following effect "Green Slip Hot Line is a non-government organisation". Radio advertising will contain a similar differentiating statement."

11. Finally, on the same day the applicant's solicitors wrote saying inter alia:

"Provided only that an urgent final hearing can be listed at the earliest possible time and pending that hearing, we are instructed that our client would be prepared not to proceed with its application for interlocutory relief against your clients tomorrow on the basis that your clients give the following undertakings to the Court effect forthwith

(1) Your clients to include the following disclaimer in all advertising or promotion and in the telephone service introduction

'The Green Slip Hot Line is not a government service.'"

12. It seems to me that it would have been appropriate for there to have been a greater degree of communication between the parties in relation to these matters. It may well have been possible to avoid any interlocutory application had there been an earlier response from the respondents indicating precisely the steps which were intended to be taken. It is true that the undertakings which have now been proffered bear a resemblance to the undertaking proffered, in general terms, on behalf of the applicants on 18 February 1999. Nevertheless, the absence of specificity in relation to the precise steps which were to be taken and, in particular, in relation to visual and oral advertisements, left the applicant somewhat up in the air as to the steps which were proposed to be taken.

13. At present, it is not possible to determine where the ultimate merits lie in this matter. As has been pointed out, the applicant in its application sought interlocutory relief restraining the respondents from using the name "Green Slip Hot Line" in connection with the provision of advice and the advertising of the service pending further order. That is not the relief which has been agreed to. Further, it may be that the actual relief which is sought in the application will not be obtained in terms even if some lesser relief is ordered. In all of the circumstances, I consider that the appropriate course is to order that the costs of today be the costs of the parties in the proceedings.

14. I note the undertakings in the short minutes which I have initialled and dated with today's date. I make orders 3, 4 and 5 in those short minutes. I order that the costs of today be the costs of the parties in the proceedings.