South East Queensland Electricity Board v S.W. Hart & Co Pty Ltd (t/a) Solahart

[1982] FCA 317

IN THE FEDERAL COURT OF AUSTRALIA)

1

QUEEblSLAND DISTRICT REGISTRY	)	Wo-GlOk of 1982
1
GENERAL DIVISION	)

BETFTEEE:  SOUTH EAST QUEENSLAND

ELECTRICITY BOARD

Applicant

AND:	S.W. W I T & CO. PTY. LlrXITED
(trading as Solahart)

Respondent -

CORAM:  E l l i c o t t J.

8 October, 1982

EX TEMPORE JUDGMENT

-

) this matter In appl icant , h Sosth the

East Queensland E lec t r i c i ty Board,	seeks an ex parte
injunction against:	t h e respondent S.N. Hart & Co. Pty.

Limited which t rades under the registered business nane

o f “Solarhart:“, restraining the respondent from

publishing	and	d is t r ibu t ing a	pamphlet	e n t i t l e d ”The
Power	and	the Story” at the	Plumbing	Exhibirion currently

being held at the Brisbane Exhibition Ground.

The applicant i s an authori ty const i tuted

i	under the Elec t r ic i ty	Act	(Qld) 1976-1982 and has the
I
l

I functions given it pursuant to s.129 of that Act.

I have read the affidavit of Francis Grant

i

Turner sworn on 7 October 1982 and have had the benefi t

i
i

I	of oral evidence from Martin John	Chambers, the marketing
!	and planning manager of the applicant and All-	Ray Usmar,
1

!

a marketing and commercial	supervisor with the applicant.	I
:
1 %

I	It	appears fron that evidence that early	i n September	the
I

l

I	pamphlet	en t i t l ed	"The Power	and	the Story"	was	d is t r ibu ted
I

l	in to the	le t te r box of M r Chambers.	I th ink it i s
I

reasonable to infer that it was d is t r ibu ted t o him as an

i	ordinary member	of the public. Suffice	it	to.say that the
I

appl icant i t se l f became aware of the pamphlet a s a r e s u l t

I

I r of i t s distrib-ation t o M r Chambers.

1

i	The appl icant a l leges that	a number of statements
I

i	..	i n the	pamphlet	are	inaccurate.	For the purposes	of these
i
i

proceedings the statcment upon which it relies in pa r t i cu la r

is contained on the th i rd page and appears under the words

I
I
l

"THE POWER" i n l a r g e p r i n t and is as follows: -

i

S.E.Q.E.B.	says use of	e l e c t r i c i t y in
conjcnction with solar energy	is	economical

and r e l i ab le .

There i s an a s t e r i sk to tha t and a t t h e bottom it

l

!

1 says "See press clipping opposite page". On the opposite

i page, which i s page 2 of the pamphlet, there appears a

p r e s s a r t i c l e which appeared i n "The Australian" on Thursday,

i	I
l
I
i
I

l

i - _ .

1 2 August 1982, headed "Electric - so lar hea t s lashes

power costs" . In fact , the whole of the art icle is n a t

se t ou t . The f i r s t paragraph of it contains the

statement:  "The South East Queensland Elec t r ic i ty Board

(S.E-0-E.B:) has said the use of e l ec t r i c i ty i n con junc t ion w i th

solar energy i s economical and re l iab le . 1 1

The a c t u a l a r t i c l e which appeared has been

tendered in evidence and it reveals, as does the portion of it reproduced i n t h e pamphlet, t h a t the applicant had

spent	a	period investigating the supply of hot	water	i n
caravan parks,	camp	sites	and	o the r t ou r i s t i ndus t r i e s

through combined e l ec t r i ca l and solar energy. Although

t h e a r t i c l e a s a whole, apart f r o m a photograph and the

statement under i t , i s accepted as reasonably accurate,

the conclusion that the use of e lec t r ic i ty in conjunct ion

with solar energy i s economical and r e l i ab le r e l a t e s on ly to

i	I -	'	the	commercial	ac t iv i ty the re in r e fe r r ed to , t ha t	i s	to
I	.

say, the use of hot water in caravan parks, camp sites

and o ther tour i s t indus t r ies 2nd resu l ted from research

which re la ted to the use of an o i l - f i r e d bo i l e r supply

combined with solar energy and did not relate to the use

I

of mains supplied electricity in conjunction with	solar	i
energy.
i

I am sa t i s f i ed from the evidence beEore me t ha t

i

the statement, "S.E.Q.E.B. says use of e l e c t r i c i t y in

conjunction with solar energy i s economical and rel iable" I i

l

l	i
,
l	4 .
I
I
!

is not an accurate statement of what the applicant said

1 through its officers, nor is it an accurate statesent as

I	a summary of what is said in the article in question.
l
i	The pamphlet itself appears to be directed to
l
i

l	members of the public. The evidence establishes that	it
i

is placed in a dispenser on a desk at the respondent's

I ! st2nd at the Planbing Exhibition currently being held at the Brisbane Exhibition Ground and is available there for

I	: I
I

I	members of the public who attend the exhibition to take	i .
i

I	The dispenser contains the statement "Please take one."
I
The fact that it is intended to be available to members of
i	I
I	the public also can be concluded from the fact that it 57as
I I
i	placed in the letter box of Mr Chambers.
i	Needless to say, in proceedings of this
l
I
I	description the evidence may change between the date
I_
when an application is made and the time when the court
1	finally considers the matter. I am greatly concerned by

-

j

the fact that in this case the injunction sought relates

to the use of the pamphlet	and distribution of it at the
Exhibition, which	I am informed continues today and until

1 I

Sunday evening next, at the Brisbane Exhibition Ground. If

j

I	I am to grant relief,	it would in one sense be,	on the face
i

i	of it, final relief, and	it is only in extraordinary
i	cases that the court .trill take such	a step. There is some
i
I

I	evidence that in September the respondent was requested to
cease publishing this pamphlet, and a umber of inaccuracies
were alleged, including the one upon which the applicant
I I
!
I
I	5.
i	l
I	has relied in these proceedings. Correspondence passed
I
i	beLween the applicant's solicitor and the respondent's
l	1	solicitor, and I have had put before me the copy of a
I	letter dated 7 October 1982 from Foley h Foley, solicitors
l
j	for the respondent. With regard to the matter relied on,
!
i	the respondent's solicitor states that the pamphlet sets
i	out in full the press release to which reference is made.
It also says, and I quote: -
l	"As the press release has been set out in full and clearly referred to in the statement to which you refer, we do not believe that our client has made any mis-statement as is
i	alleged by you."
I

This letter, in general terms, states that the

I
l

i	respondent has instructed its solicitor to deny that there
i
is any material mis-statements contained in rhe pamphlet.

i I am satisfied, as I have already stated, that

what appears on p.	3 of the pamphlet relied upon by the
applicant is not	an accurate statement, and, on the evidence
as it stands before	me, I think it is misleading or
deceptive within the meaning	of s.52 of the Trade Practices
Act.	-

I have also had the benefit of evidence which

establishes that the applicant has not stood by in relation

i

to the pamphlet	so far as the enforcement of the i-ct itself
is concerned. It approached the Trade Practices	Commission
some time towards the middle	o f September, seeking
intervention by it. Correspondence has taken place.	TO

date the Commission has not indicated its attitude to the
matter.

l

A s I have already indicated, the court will

only grantwhat , in effect , is a f inal injunct ion in the

absence of another party in the most extreme cases.

I am, however, s a t i s f i e d , having looked a t t h e a r t i c l e

in "The Australian" which i s relied upon by the respondent

i n i t s l e t t e r , that the s ta tenent on p . 3 o f the pamphlet

i s not an accurate statement.	I myself, would be unlikely
to change my view on this mat ter .	It i s largely a n a t t e r

of interpretat ion, and in those circumstances I have come

to the conclus ion tha t th i s i s one of those rare cases where

it i s appropriate for me to grant what, in e f f e c t , c o d d b e

f ina l re l ie f , un less the respondent moves t o se t as ide

any injunct ion that I might grant.

Another question that has concerned m e i s the

question of delay, that i s to say, whether the applicant

has lef t the matter outs tanding for so long tha t I shouLd

simply grant it leave to serve	an appl icat ion for	an
injunction a t an early date. There are	a number	of matters

t ha t I think can be relied upon to a l leviate the apparent

delay. First , the matter was brought t o the a t t en t ion of

the respondent very quickly after the alleged breach was

detected. Secondly, the Trade Practices Commission was

informed o f the matter and pressed to do something about it.

And thirdly, the respondent i t se l f did not talce any step i n

r e l a t i o n t o i t u n t i l i t answered the app l i can t ' s so l i c i to r ' s

l e t te r i n t h e	form I have	already referred to ,	by	i t s
s o l i c i t o r ' s l e t t e r	of	7	October. There had been	telephone

communications between	the sol ic i tors , but these	were	fo r t hz
purpose of urging	a reply t o t h e l e t t e r	of 17 September.	That

reply d i d no t in fac t come u n t i l 7 October. In those

l

! circumstances, I think the delay is such t h a t I should

overlook it. I

The f i n a l n a t t e r of concern i s the question of t he

balance of convenience.	If i t were only the interest	of
the appl icant tha t	was involved, I would,	I think, decline
to gran t	an injunction.	However, the pamphlet is being
d is t r ibu ted a t a public exhibit ion	t o people who	would go

t o that exhibi t ion, one assumes, because they were in te res ted

i n what is being displayed there. It is the re fo re l i ke ly to

a t t r a c t people who	are par t icu lar ly	concerned about	t h i s
particular subject, including ordinary	nembers	o f	the public

who may take some s tep , for example, by way of acquisit ion of

a Solzhart heater, o r even some other solar heater , on the

bas i s of the statement contained in the pamphlet t o t h e

e f f ec t t ha t SEQEB says use of e lectr ic i ty in conjunct ion with

solar energy i s ezonomical and re l iab le . In re ly ing on t h a t ,

they would no doubt be relying on the fac t tha t the appl icant ,

SFC!Jp, i s the government authori ty for the sale and d is t r ibu t ion

of e l e c t r i c i t y and electr ic i ty appl iances in south-east

Queensland, including the Brisbane metropolitan area. They

might therefore be led t o take action on t h e f a i t h of it,

and possibly act ion at the exhibition. For that reason alone,

I think the balance	of convenience is i n favour of granting
some relief s o t h a t members of the public	w i l l not be
misled or deceived	any fur ther by this stetement.

Therefore, being satisfied that the stateinent

complained of i s not an accurate statement, i s misleading

o r deceptive,	o r l ikely to mislead or deceive	mem3ers of
the public,	and having i n mind my	view tha t , in effect, I

I

have before me what might be regarded as a l l t h e r e l e v a n t

1 evidence that could possibly be put before ne on the issue,

I am prepared to hold that there i s such a strong prima

f ac i e case tha t it s a t i s f i e s t h e t e s t s l a i d down in the

au thor i t ies for the cour t to grvlt what, in effect, could

be a f ina l in junc t ion . Coupled with my view that the delay

i s not such as t o damage the r igh t t o relief, and tha t t he

balance of convenience i s in favour o f prev2nting the mischief

any fu r the r , I propose to grant an injunction. The applicant

has indicated that it i s prepared to give an undertaking as

t o damages. Therefore, i f t h e respondent does su f fe r any

damage as a r e s u l t of this order not being properly made as

a result of further proceedings, then, i n commercial terms,

i t will have the benefi t of the undertaking,it obviously

being one which should be capable of being m e t .

I have indicated, before delivering these reasons,

t h a t I would grant an injunction, but on the bas i s tha t i t

would operate	unless	the	respondent	made a statement in
the	pamphlet which had	the e f fec t	of	indicat ing that the

applicant disputed	it.	The statement which the applicant has
requested should	be inser ted is a lengthy one,	and is as follows:-

"The South East Queensland E lec t r i c i ty Board

disputes:-

(i) tha t he use of solar energy fo r

domestic water heating is economical;

(ii) tha t e lec t r ic ho t water systems cost more

than any other single appliance to operate;

(iii) that the cost of e lectr ic i ty f o r domestic

hot water systems represents	3OZ-50Z of
domestic	electricity accounts."

And then underneath thar:-

"The South East Queensland E lec t r i c i ty deni.es

t h a t it said that the use of e l e c t r i c i t y i n

conjunction with solar energy €or domestic water heating i s economical and rel iable ."

I can understand t h i s being sought, if I were

granting an interlocutory injunction designed to protect	the
reputation of the applicant.	However, as I have indicated,
I am disposed to grant	the Injunction on the bas is of

protection o f members of t he public, and I think t h e important

thing i s t h a t , i f t h i s pamphlet i s t o be d is t r ibu ted a t the

Exhibition in the next two days, i t should contain a

statement which enables an ordinary member of the public to be warned t h a t what i s contained in p. 3 , and i s objected

t o , i s disputed by SgQEB. I am therefore not disposed t o

agree with the applicant 's request that the statement be t o

the e f f ec t t ha t it seeks. I think the statement should be

much shorter , and should in effect contain two statements.

One is t ha t S$.QEE. denies saying, and also denies that it

is accurate to say that the use of e l e c t r i c i t y i n conjunction

with solar energy	is economical and r e l i ab le ,	as a general
proposition.

The orders I make are as fo1lovs:-

That u n t i l midnight on 10 October 1982, o r

e a r l i e r o r d e r of this court, the respondent, S.W. H a r t and

Co.	Pty.	Limited, be rest ra ined by i t s e l f , i ts servants o r
agents or otherwise, fron publishing, distributing,	o	r

permitt ing to be published or d i s t r i b u t e d a t t h e Plumbing

Exhibition currently being held at the Brisbane Exhibition

Ground, a pamphlet e n t i t l e d "The Power and the Story",

unless there i s inserted underneath the statement, "S.E.Q.E.B.

says use of e lec t r ic i ty in conjunction with so la r energy i s

economical and reliable", the following statement, printed i n

t y p e of similar s i ze and face to those used in those words,

the following statement:  -

''S.IQE.B. disputes making the above statement,

or ' that the use of e l e c t r i c i t y i n conjunction

with solar energy for domestic water heating

i s economical. "

I make that order on the applicant giving the

usual undertaking as to damages. I give the applicant leave

t o amend its application generally,	and I order the applicant
t o f i l e and serve on the respondent	its amended appl icat ion,

t h e a f f i d a v i t o r any fur ther a f f idavi t s re l ied uponby it, and

a copy of the t ranscr ipt of evidence, and of the exhibits

.

tendered in evidence by 4:OO p - m . today.

I reserve costs , and I stand the application over

fo r fu r the r d i r ec t ions , and for further hearing, i f necessary,

u n t i l 9:OO a-m. on Monday next , 11 October.

I	I
I c e r t i f y that this and thQ	f i t 4 (9)

precedzngpagesa rea t rue copyof the

Reasons f o r JudgmenthereinofhisHonour

Xr. Justlca Ellicott.

'5 "'-v