Munro v Tooheys Ltd

[1991] FCA 174

Re: JENNY ANN MUNRO
And: TOOHEYS LIMITED
No. G283 of 1990
FED No. 174
Trade Practices - Evidence
(1991) 13 ATPR 41-108
21 IPR 268
29 FCR 74

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Trade Practices - consumer protection - whether statements in advertisements likely to mislead - whether statements of fact or of opinion.

Evidence - judicial notice.

HEARING

SYDNEY

#DATE 19:4:1991

Counsel and Solicitors C. Evatt instructed by for applicant: Aboriginal Legal Service Ltd.

Counsel and Solicitors R. Sackville instructed by for respondent: Freehill Hollingdale and Page

ORDER

Application dismissed.

Costs reserved.

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

JUDGE1

By her second further amended statement of claim, Jenny Ann Munro, the applicant, seeks declaratory and injunctive relief under the Trade Practices Act 1974 ("the Act"). The applicant, whose standing to bring the proceedings is not challenged, alleges that Tooheys Limited, the respondent, engaged in misleading or deceptive conduct, in the form of advertising, contrary to the provisions of s.52 of the Act.

1. On 13 September 1990, it was ordered, by consent, that there be tried separately the questions whether the advertisements now challenged contained or made certain representations. (There was a second question, whether, as alleged by the applicant, a statement attributed to Blair James Willoughby, the respondent's Public Affairs Manager, in a newspaper report was made by or with the approval of Mr Willoughby. As to the second matter, having heard the evidence, I made a finding of fact that Mr Willoughby did not make or approve the statement attributed to him. The applicant no longer pursues her allegation.) I made a finding on the first question that the television advertisements, shown in Sydney in late 1989 and early 1990, being Ex. "C", represented that a consumer who drinks a not insignificant quantity of "Tooheys Lite 2.2" beer will not exceed the prescribed concentration of alcohol limit of 0.05.

2. The advertisements now challenged were in several forms and it is convenient to deal with them separately, although, in the television advertising, it will be seen that their message is similar and their method of "grabbing" the viewer's attention is also similar. In each case, our attention is arrested by the anti-heroic antics of a well known sporting identity and we are told that we can drink the product and "breathe easy".
   1. Television advertisement - "Darts"

3. This advertisement depicted two well-known sporting personalities, the former Australian cricket representatives, Mr Max Walker (referred to as "Tangles") and Mr Doug. Walters (referred to as "Freddie"). Mr Walker is also well known as a television personality in his role as a sports commentator. The dialogue takes place in a crowded bar in a hotel. "Tangles", the anti-hero, is attempting, unsuccessfully, to throw a dart at a dart board. The television script is as follows:
   

"SUPER:

Max Walker

World's Worst Dart Player.

TANGLES:

After losing 58 straight matches...