State Government Insurance Office (Queensland) v Australian Associated Motor Insurers Ltd

[1985] FCA 249

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- ~ A ~ C Y W O i i ~ S

TRADE PRACTICES - misleading or deceptive conduct - comparative advertising of insurance - application for interlocutory relief

I

-..

Applicant

MID :

Spender J.

13 June, 1985

Brisbane

TEZ COTJRT ORDER5 THAT:

(1)

the appllcation f o r interlocutory relief be

rejected;

( 2 )

the applicant to pair the respondent's costs; to be

taxed if not otherwise agreed.

m: Settlement and entry of orderes is dealt with in Order 36

of the Federal Court Rules.

-

reset

I

Respondent

CORAM:	Spender J.
D=:	13 June, 1985
This is an application for an interlocutory injunctlon

under ss.80(2) of the Trade Practices Xcc 1974, (“the Act”). The

applicant is a major insurer of motor 175’ hicles in Queensland,

created pursuant to the provisions of tine State Governrner??

Insurance Office (Oueonsland) Act 1960 ( Qld.) In addition to

!

comprekensive motor vehicle insurance, it conducts other general

insurance, as well as life insurance bus ines S. It is a

i significant presence. in the market f o r comprehensive motor

vehicle insurance.

2 . i

The respondent is also an ir.surer for motor vehicles ~n the Comrnon:mlth, including Queenslsnd. s : 1 Susiness 19

esclusivelg concerned vith conprehensive motor- vehicle insurance-,.

though this also covers carirvws. It is a corporation and in Its

insurance business 1s enq?ged in trade cIr CO~I'PPYCP. It therefore

is subject to the prohibitlon contained in s . 5 2 ( 1 ) of the Act,

namely : -

"9 corporation shall not, in trade or comx?rce,

engage in conduct that i3 misleading or decepti~p

or is likely to mislecd 0; deceive."

The respondent conducts business in New South kiles,

Victoria, Tasmania, South P-ustralia as well as Queensland, and

has in excess of 500,000 pclicy holders.

i

The approsimate market share it? Queensland is State

Government Insurance Office, the applicant, 30 per cent;

R.A.C. 2 . , 22 per cent; FAI, 8 per cent; and AA31 (the

respondent), 11 per cent, with other insurers accounting for the

remaining 29 per cent. Tne respondent operates directly 571th the

public and promotes its product substantially by	m y of broadcast
and newspaper advertising.

This application concerned is with comparative

advertising engaged in 5y the respondent, which the applicant

asserts 1 s nisleading o r deceptive, and in respect of wkich it

injunctions seeks as well as dainages. . >

!

3 .

I ?,m concerned , however , par t icu l i r ly with t h e

a d v e r t i s i n g I n Qwenslard. The newspaper a d v e r t i s i n ? f i r s t

appeared on Frida.:r, 7 Jclr??, 1985, irl a f u l l page adver t i se ren t i n

"The Courier Mail", page 1-7. It sb@ws two Cornnodore motor

v e h i c l e s , e a c h v i t h e x t e n s i v e daroage t o t h e f r o n t of those

v?h ic l e s i nc lud ing t he g r i l l e , headl ights , bonnet , and

immediately t o th5 rear of t-m t r u c k s . On the l e f t -hand veh ic l e

i n l a rge vhhite p r i n t on a black background i s the legend " S G I O ,

maximum no claim bonus losr,, ~ . ~ t r % c o s t $46 . " On the r igh t -hand

v e h i c l e i n c~h?lte on a b lack backgrou&i 1s "ilkMI, no l o s s of no

claim bonus, no e s t r a c o s t . "

Then, a c r o s s t h e t r a y s of the two t rucks dep ic t ed , a

larger legend appears i n white on a Slack hackground, " A penal ty

most dr ive r s on ly d i scove r by acc ider l t " , And t h e n i n b l a c k

p r in t lng unde r the p i c t u r e a n d i n larger than the o r d i n a r y p r i n t

s ize t o be found m newspapers, there appears the fol lowing:

4.

It's unfair.

If 7ou've h?ld a Maximum c10 Claim Emus f o r the last four

years, you'll lege it by csusing just one accident.

Ko: at AMI.

$le belleve after all tk-os? yesrs CC ss fe 3rivir.9, j - o u ' , . ~

earneci one on us.

We don't touch your bonus, even if the accident is totzlly

your f aurl 1: . I+ call Tt a 'Free Accldent Credit'

Fcsr examF.le the c z r c shown here ace 'e1 Ccmaodot-es.

Dozens of nther ~ o p u l z r nodels would he cubject to ecp-lally

tough pensltles.

O € course, c7hm you transfer to us, y o u ' l i kee2 your

current no-clair< bonus.

(Probably f o r 2. lot I@nqer than y o ~ ! G7@LIld. have elsevhere! )

So call >AMI nn.7 on 22?75.55, o r your lcrcal branch." '

In the bottcm right-hand ccrrner of the advertisement in

large black type appears "A>.XI" and underneath"CA2 IXSUR?!!lCE:".

?. photocopy of the advertisement is attached to these

reasons.

The message conveyed 39 the nevspaper advertisemnt 1 s

the same a s appears from the television advertisement. The video

cassette recording that advertisement was exhibited before me. I

sa~7 the television advertisement. It shows two collisions, one

occurring between a red and white coloured Commodore, its

occupants wearing red m d white, and a truck; the other occurring

between a blue an$ rwhite Commodore, its occupants wearinq blue

and whits, and a truck.

The nature of the collision is in each case the

Commodore vehicle colliding srith the rear of a truck, t h e

attention of the driver of each Commodore being distracted. Tbe

male voice-over indicates the nature of the advertisement.

5

First, the vmce-over says, "Got!>. these drivers have had naxipm

no claim bonus for the last four years". In relation t o the

driver of the red and white car , "He's with the SGIO.. . O h no.. .

I

he's about to lose hi? V",.X~PUT. WO r13i:t Pc?'.Ic. ?:-:t~-> cost $GC. "

I

And superimposed on the pictorial representation at that time ih

the advertisement is wcitten cn t h e Ect-Pen, "SGIO, lOS5 of

I

maxj.wm no claim Sonvs, e x t r 3 c o s t $46" .

Cornmodor;. wich the trl-tck, "Oh no, well at: least he's vith .kWI. W wqn't touch his Eonus. -kd thei-e'$ no extra cost". 3r.d it

that time superinposed on the pictw-e s>pracs the XWI loqo, and

t!le words "No loss of r.0 claim bonus, no extra cnst". T?e

voice-over then contj-nues, "Because at EAMI recksn he's earned

one on us". The commercial ends with a person speakincj to ths

driver of the red and white vehicle and saying, "Hot dog?", t o

which the driver responds, "I probably can't afford one".

Some reference has to be made to the principlPs

applicable to grar.ting interlocutory injunctions under s.80 of

l

the Act. In Horld Cricket v . Parish

( 1 9 7 7 ) 16 A.L.R. 161, in respect of the grant of interlocutory

injunctions generally, Bowen C.J. said at p.165:-

"The court ' is given jurisdiction to grant an

interirn injunction under s.80(7-) whsreI in its

opinion, 'it is desirable to do s o ' . These words confer 3 judicial disccetion si the rxdest 41n6 upon the court. It is not an arbitrary discretion but one t o be exercised judicially +n accordance

with principle. The pri.nclples concerning the

grant of interlocutory in~unctions rrere developed

6.

I szy at this s t a g e , of ~ o u r ? ? , t h a t th is i s W a p p l i c a t i o n f o r

i n t e r l o c u t o r y r e l i e f .md any f k d i n g s I may express a re t o hr

read in that context ; the m a t e r i a l i s lncowplete and the

a p p l i c a t i o n i s nqt one f o r a f l n a l o r d e r .

I

The Chief Judye continued a t p.lP6, i n speeki~g of the

- Beecham Group Ltr : v. E r l ? t . r ? l L s h r a ? a r i r s ?I:y.LtC. (1965) ?l?

C . L . R . 61P case : -

"Tae High Coclrt was se i zed of t h e matter under the

Pa ten t s >.c? 1952 3.nd 512s Rot e x e r c i s i q g aFy

i nhe ren t + : p i t a h l e j u r l s d i c t i o n . Nevertheless , it

invQked. p r i n c i p l e s l e v e l o p 3 . e q u i t y i n t o

determine how i c should e x e r c 1 s ~ i t s s t a t u t o r y

j u r i s d i c t i o n , though i n som? x ~ y s depart in? f rom

t'nose p r l n c i p l e s , where t h e s p e c i a l n a t u r e o f t h e

pa t en t j u r i sd i c t ion xade i t appropriate t o do so.

The High Court expressed t:?e view thar: i n all

c a s e s , i n c l u d i n g p j t e n t z a s e s , a c o u r t , +ilen

contempla t ing gran t ing or r e f u s i n g i n t e r l o c u t o r y

r e l i e f , n u s t di rec t ; i t se l f t o both t'ne prina f a c i e

s t r e n g t h o f t h e p l a i n t i f f ' s claim and t'ne balatr.ce

of convenience. A p l a i n t i f f i s recruired t o make

out a pr ima fac ie case , ' i n t h e sense t h a t i f t he

evidence remains as it i s , t h e r e i s a p r o b a 5 i l i t y

tha t a c t h e t r i a l of th& a c t i o n , t h e p l a i n t i f f

will be h e l d e n t i t l e d t o r e l i e f ' ( i ' n i d a t 622 and

470 1 . The s t r e n g t h of t he ca se which t h e

p l a i n t i f f must make out will depend upon t h e

nature of the r igh t v i i ich he i s seekiny t o a s s e r t ,

and the making of consequences which will fl0W from the

t , he i n t e r locu to ry o rde r . However, where

t h e f a c t s a r e serlously i n d i s p u t e , t h e c o u r t will

not undzrtake a pre l iminary t r i a l o f t h e a c t i o n i n

l ord?r t o f o r e c a s t a probable r e s u l t , b u t r a t h e r ,

i f t h e p l a i n t i f f has a fa i r chanct of success (and

what w i l l bc r equ i r ed w i l l va ry acco rd ing t o t he

nat1w-e of t h e c a s e ) , t h e . c o u r t wili proceed t o

look t o t h e b a l a n c e of convenience."

7

I

i

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And similarly, r'ranki #d. a t p.104 said:

I

And Siennsn J. said. a t F. 200 :

"In t'ne present case, Hr. F3ris:?, seeking an

interlxutory ir.junction, ;ms consLrained to show

a prima facie case (in the sense ei-olaine.rl by the

High hurt in EkechaT Cr~up Ltd.. V. Bcl:?ol

- Laboratories Ltd. !195?) 119 C.L.P. . 519 at 6 2 2 ;

C19687 A.L.E. 459 at 6 7 0 ) th3t the conduct in

which the appellant prnpcsed to eng3ge c ~ o u l d

contravene 55.52 or 5 3 ( c ) (A~hburcnn Qil NL v.

Aloha Mi?erals P!L (1971) l 2 3 C.L.R.614 at 627) and

further, t h t it was desirable t o restrain the

appellant fro3 engaginq in that condluct pending

the hearing ( c . PO ( 2 1 1 , "

Now that approach reveals a diverqence from the approach followed

in the United Kinqdom in Americsn Cvanair;;_d v.Ethicon Ltd C197511

A.C.396. The House of Lords held that, if there is a sesrious question to be tried, it should not furt'ner test the strength of

the plaintiff's c?.se before decicling the balance of convenience.

The Chief Judge considered that decision	at p.186	of Parish in
the folloving terms:

"It has recently been said bv the House of Lords in

satisfied that there is .% serious question to be tried, it should not further test the strength of

the plaintiff's case before deciding' the balance of convenience. It may be that in a case such as

R.

I

the proper approach, In considering whether ar,

interlocutory in:unction should be grmted, is

first to ir.quire whether theie 1s a serious

questior: to be tried, and Lhen to deterpine the

matter on the balance of convenience. I n other words, I incline t o t3e view taken 37 th? House of Lords in .Lnericm Cvananid Co. v. Ethican Ltd.

C19753 F_C 395; C19753 l All E?. 594, ra ther thsn to

some of those e:c$L-eSsed obiter in Beecham‘s caze; the latter case was one in vhich a substantial

issue arose as to the validity of a patept, and

the remarks in the	judpent may	be restricted to
such cases.

The Chief Justice‘s approach in that case vas followed

I by Brennan S . more recently in Tableland Peanuts Dtv.Ltd v. m

Peanut Marketinq Board (1954) 58 A.L.J .R. 283. In that case, hls

Honour, in considering an application for an interlocutory

I

injunction and the nature of the case to be establishd by	the
applicmt, said at p.294:-

!

9 .

I

"I am n o t , of c o u r s e , f i m l l y i e c i d i n g i s s u e s TP.

this case . I am consider ing whether there is a

s e r i o c z l y arg12abl9 q u e s t i o n t o be t c i e d at the

f i n a l hea r ing o r , as i t is sometim2s s a i d , whether

a prima f a c i e case has he?n es tab l i shed , ar.d the

re la tzd ques t ion of where the balance of

convenience l i e= . The tes ts have beer. formulated

i n va r ious vays i n m n y c a s e s , ?.nd I need not

e labora t e them here . "

I

In a case having sor?.e f a c t u a l similarities t o the

p resen l , F i she r J . drew a t t e n t i o n t o the lack of r e s o l u t i o n as t o

the a p p r o p r i a t e t e s t t o a p p l y i n an a p p l i c a t i o n f o r an

i n t e r l o c u t o r y i n j u n c t i o n .

S t a t e In Govermen t In su rance Coirmission v . J.W.

Insurance Pty.Ltd. (198.1) A.T.P.R. 40-465, h a v ~ n g r e f e r r e d t o the

various approaches, F i she r J . s a i d at p.45,362:-

I U .

Subsec1uer.t t o Fizterf J . ' S jaZ:xnt i n tkat c a s e , 571:iCh

:la4 de l ive re? on 3 1 +.y, 19O4, the Full Court of the F'edersl

Court , consis t incj of Sheppard, E!orling and Bemmont JJ., i n

Epitopa Pt:..ti-?. v. Aletr3.lasian :<eat: Ir..!ustrrv Ezployees Unior &

I & ( 1 9 E 4 ) 54 A.L.R. 7 3 0 , i n t h e i r jud5I;ment d e l i v e r e d 27 J u l y ,

I 1986, indic:.,l;ed that i n a n a p p l i c a t i o n f o r at? i n t e r l o c u t o r y

in junc t ion t he Cour t must f i r s t l nc lu i r e whe the r there is a

se r ious ques t ion rro be t r ip? . The C o u r t a p p l i e d h s t r 3 l : a n

C~arst Grair. Foo l P t y . L t d . v. Par1e-T i".ark.stins Eoard of

gupensland (1c IPZ j 46 A . L . R . 398; 57 A.L. J . R . 42'5; Ta3lel %?.d

Pesnuts Pt:J.Ltd. . 7 : ??annt iqarketinq Ecai? (1984) 52 A.L.P. 65:;

5 1 A.L.J.R.283; and P.wrican Cvaranid v. Ethlcon L t d E19757 A . C .

396; C19753 1 ALL E.R.504.

I

I-fi-ile that case w3s concerned with a n a p p l i c a t i o n f o r an

i n t e r l o c u t o r y i n j u n c t i o n p u r s u a n t t o s.45D of the Ac t , i n an

i n d u s t r i a l c o n t e x t , it i s a d e c i s i o n of a unanimous Couct and

b inds me. blit'n r e s p e c t , that approach seems t o r e f l e c t t h e

in te r locutory charac te t - of the proceedings, and, on e s t ab lxsh ing

that t h e r e i s a s e r i o u s q u e s t i o n t o be t r i e d , f o c u s e s a t t e n t i o n

on the p r imary de t e rmina t ion be t o made: nanely, what

i n t e r v e n t i o n , i f a n y , d c e s the i n t e r e s t s of j u s t i c e ca l l f a r

be fo re a f u l l and proper inquiry can be made.

IJ..

Lrled:-

“ I t i s no par t qf t h e c s c r t ’ s f u ; l c t i s n a: this

I

s t age n f ::?e l i t i g a t i o n t o t r y 50 r e s o l v e

c o n f l i c t s of evidence @!I a f f i d 3 v i t a3 C Q f a c t s on

xhlch the c l a i r s of ei ther p a r t y !:ay ~1lti!mte1;7

depend noc t o d e c l d e d i f f i c l l l t q c e s t i c n s of 1sw

r,;hich c a l l for d e t a i l e d arqunent and niature

cons ide ra t ions . These a re matters t o be d e a l t

with j t the t r i a l . One of the rezsor.3 f q r the

in t roduc t ion of tks F r a c t i c e of requir2r.g a?

undertaking as t o darmyles upon the ?rant of sn

i n t e r l o c u t o r y 1 r . j u n r t i c n w.5 that ‘ i t a ided t?.?

cour t i p doing tbst which was i t s 3reat o b j e c t ,

viz. abs’.aini?g f r c l ~x: :~~-csc in3 any c p i n l s r l u p n

t h e m e e r i t s of the c a s e u n t i l the hea r ing ‘ :

Ik l~ lk~f i e ld v. Duke El.~cclee-~crh (1865) 1 2 L . ? . r j X ,

629. So un le s s the mateerial a v a i l a b l e t o the

cour t .It the h e a r i n g of the a p p l i c a t i o n f o r an

i n t e r l o c u t o r y Injunction fat15 t o e i s c l o s e iAat

the p l a i n t i f f bas any real prospect of succeeding

i n his c la im f o r a permar?nt injunrticm -It tk?

t r i a l , the m u r r should go on t o c o n s i d e r s?:et3?r

the balance convenience of l i e s Tn favour sf

gran t inc j o r r e fus ing the i n t e r l o c u t o r y re l ief that

i s souvht.

cf . Dinblehv and Scns Ltd v. P a t i o n a l Union of Tourna l i s

(1984) l F7.L.R. 427, Appleton Papers Inc. v. Tomasett j Paner

Pty.Ltd. (1983) 50 A.L.R.478, (1983) 3 M.S.In1.L.R. 708 a t

pp.214-215) .

I

F?hile I have dealt a t some l e n g t h with those r a t t e r s , i n

this case it really comes dawn t o whether it can se r ious ly be

argued that the a d v e r t i s i n g , b o t h i n the r.ewspaper and on the

t e l e v i s i o n , i s misleading.

1 2 .

It is subnitted by the ap~licant that the advertisement

is misleading in three important respects.

The positicrn I 5 that , r 7 l t h bcth the spplicmt and the

respondent, there is R@ contractual term deallng ~7ith the

questi~x of a no-chin bcnus. It is a sstter sixply of corporate practice as to whether, 2nd in w k t circumstances, a no-claim bonus is ?ranted.

Tne evidence estahlishes thlt, if wi,th t h e S.G.I.O., a

persotl who 5 a s had a naxircux no-claim bonus f o r four y e w s , would

lose that maximum no-cl;?im bonus if he vere involved in an

accident for which he was wholly responsible. It would a l s o be

lost if that person rlere itlvolved. in an accident f o r which he was

more than 50 per cent responsible, and it would be reduced from

$46 to $23 if he wece involved in an accident in which his

involvement was less than 50 per cent. With P-WI, In none of

those circumscances would there be	3. loss of the maximum no-claim
bonus.

Having seen both the television and the newspaper

I

advertisements, no difference in my view exists to justify a

distinction beinq dr&wn betwen the advertising in the two media.

In those circumstances, it is convenient to confine	my attention
to the nexspaper advertising.

13.

m e c r i t i - c r cys of that adve r t i s ing and t he respcctc

inr7hich F: was said t o he xnsleadinq are these : -

(a)The heading which a p ~ 3 3 c 5 nn e?.c?l v?P-icle is rni?leadzny

bxauTe, in the ca5e of t he SGIO, the naxlmm no-claim bmus

i s nc t conp le t e ly 10:: - -t l e a s t , n o t t o t h e e x t e n t of $46 -

i n the circumst:ance? where a person i s involved. i n an

accident and has been le-s than 50 per cen t respons ib le for

t h a t a c c i d e n t .

(b)At l e a s t t c s m e of t h e r e d e r s a who would :?e t h e

advert isement , t k i z 2 r e s s i o n ~ o u l d be 3 i v e ~ . that , i f one

were t o insure with A X 4 1 . ycu would not l o se ycur no-clain

bonus i f , for i r . t ance , ynu h3.d caused an 3.ccident m d ha?

he ld a ma:.:imw no-clair. bonus for t h r e e y e a r s .

Nothing that is s a i d i n t h e xajor part of tk-e adve r t i s epen t

draws a t t e n t i o n t o t h e f a c t t h a t i t i s only where t h e rnaxixum

no-claim bonus has been he ld fo r t he l a s t f o l x years that a

person insured with ?AMI does not suffer a penal ty i f that

person causes an a c c i d e n t .

(c)On its fa i r r ead i tq , t he adve r t i s emen t carries t h e message

that AAMI o f f e r s a b e t t e r p o l i c y of insurance than SGIO.

That messqe i s unt rue f o r the pol icy condi t icrns .Jary, 2nd. as

between the applicant and respondent, the S p p l i c a n t o f f e r s

s i g n i f i c a n t a d v a n t a q s s i n some a s p e c t s of t he insurance

I

r e l a t i o n s h i p , i n c l u d i n g l e g a l l i a b i l i t y . Thus, whereas

I

SGIO‘s cover i s unl imi ted , IWMI’s is r e s t r i c t e d t o $200,000.

14

In respect of provision of emergcncy expenses, ?. spa11 amcan'i

is prcvided by SGIO, yet none by A A N I . In respect of trailer

cover, SGIO ccvers to the extent of $400, while AANI d@cs

while XiXi's is $75). In respct of vindscreen damage, nb

~ X C ~ S S is charged hg SCIO, but an PSC~SS 1 s levied by AAEII.

Finally, the circurstances ir! vh~ch perzonal accident

bmefits are obtained differ betw?en t h e two companies.

I accepr; that, if the advertisement can be construed as

representing that LW1 offers a better pollcy of insurzr.ce than

SGIO, it is misleading. The question, however, is r.?hether 'chat

is a fair reading of the adverkisement.

Advertising of this kind is known in the industry as

"knocking copy". Fly source of this information appears fron the

report of a case involving comparative advertising, Calsll

v. TI%J Enterprises L t d (1984) A.T.P.R. 40-451 at p.45,211.

The editors of the Australian Trade Practices Reports note:-

"This appears t o be the first case in which the

Court has had to ccnsider, in the contest of F:.

V, a complaint concerning the use by a competitor

of c7hat is described ir. the advertjsing industry

as 'knocking copy' that is, an advertisement

which either directly inferentially, or

I dowqrades a rival's products.

15.

Be that as it may, it is true to note, AS did. Lockhart

J. in ths E1ende~s case, at p.163 of the F.ustra1ian Law Reports

citation, that:-

"LThen a persnn ?rnduc?s a televisicn c m x e r c k l

tkat not only bccsts its 0GI:I pcoduct 3Jt, as Tn

this csse, compares it critically with the product

of snother so +;kat t3.e latter is s5own up in an

unfavourlble light by the comparison, in ny vie-d

he ouqht to take particular csre to e n s ~ r e that

the statements are correct."

Cornparison advertising runs the very real risk that that

advertising is misleading. If, however, it is accurate. I accept

it can be very erfec'ii.Jp and. from a comnercial point of view,

conducive to the realisation of the aims to	which advertising is
directed.

In my opinion it has not been establisb-ed to m y degree

that t'nis advertising is misleading.

I

I

A reading of the adsertisement co~veys the rnessi.g? th3t

a person insured with hlll.11 who has held 3 maximlum no-claim bonus

f o r ths last f o w yeacs dses not lose it by causing an acsident, vhereas :-~ch a perso? insure5 wi-th %IQ wou1.l lose the ~?.:.:i:~ux ne-claim bonus.

The c i r c u s s t a n c e s , in both the newspaper and the

television advertising, clearly direct attenticn to the

circumstance where the accid?nt occurs t.7holely or substantially

as the result of the fault oi the insai-ed driver.

The comparison in the advertising that "if yclu have held

a flaxinurn m-claim bonus for the laz;: four y5ars. you will l n s e

it by causing just one accideqt, not at L W I , does not appear 11

small print, or in circumstances where the ordinary reader would

be left in iq-norance of the basis of comparison.

That reading of the advertisement is reinforced in my

opinion by the next reference, that "we believe after all those

years of safe driving you have earned one on us" and that "we

don't touch your bonus even if the accident 1 s totally your

fault." To suggest tinat the advertising is misleading in that it represents that an SGIO driver, who has held a rflasimuin no-claim bonus for four years, 1r.volved In an accident f o r which he is

1.355 than 50 per cent to blane, would lose his maximum no-claim

bonus of $46, whereas he in fact would lose only $23, is not in

my view a fair construction of the advertisement.

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1 7 .

A l l advertising is directed to promclting the goods of

the advertiser and, very often, that is by highlighting a feature

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QC t h e advertiser’s goods in comparison with a comprtxtor’s g ! ~ d s

or the qenerality of goods it? a ?sr txculs r ?arke t . Mu c h

advertising 1s directed. to pronotiv~ the price or quality

advantages, cr otker- perceived featurTs of the ad-Jet-tiser‘s goods

which are repcesented to be superior to those featu:-ps or that

feature of the conpetitor’s goods.

In thls particular case, ILI\.MI has not , in my oFinie.n.,

s e t out to say that i t 5 policies are better than SGI0’5. !?hat ~t

hac, done is to take a feature of Its insurat?ce ccnductd ar.d

compare it witk E?P of I t s pajor c c c s e t i t o r s , :he ob~ect, of

cc)urse, beinq to persuade people +;hat, at least 1q that feature,

its product is to be preferred to that of its competitor.

So far as the specific criticisins are concerred, the

heading has to be read as part; of the advertisement as a G l h O l e .

Reading the advertisement as a whole, the representation is that,

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f o r a person ~7ith four gears of maximum no-claim bonus who causes an accident, if you are insured with RAI-11 you do not lose t‘nat bonus, whereas if you are insured with SGIO you do.

As to the fact that that feature only applies to

persons uith four years of a no-claim bonus, that appears

sufficiently, In my *judgment, from the text of the advertisement

immediately below the pictorial part of it. Finally, simply as a

matter of impresslon, while ir: is obvlously intended that this

advertising vi11 promote the business of AAIjI, it is not a

no:.

Therefore, in my viet.7, the applicant has not established

the prima facie case GffiiCh ErJTtma calls f c r .

Were I ~ l r o n g in that question, I would nonetheless have

declined to grant ar. interlocutory in3unction on a consideration

of che balance of convenience between the parties. I am nor:

satisfied that injunctive relief	is	zecessary to pres2rve	the
rights of the applicant here.

The parties are competitors in a commercial marketplace

and I arn not satisfied that, if the conduct were to be a breach

I	of s.52 of	the Act, it could not be adequatekly met by an	amrd
of damages.

In those circumtances, I reject the application for

interlocutory relief.

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