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

.%\

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

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

-..

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

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

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

significant

presence.

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.

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

: -

corporation shall not, in trade

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.

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

with comparative

advertising engaged in

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 .

?,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

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 . "

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,

e s t r a c o s t . "

Then,

a c r o s s

t h e

t r a y s

the

two t rucks

dep ic t ed ,

larger legend appears i n

white on a Slack hackground, " A penal ty

most

dr ive r s

on ly

d i scove r

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:

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.

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

each

case

the

Commodore vehicle colliding

srith

the

rear

a truck, t h e

attention of the driver of each Commodore being distracted. Tbe

male

voice-over

indicates

the

nature

of the

advertisement.

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.. .

he's about

to lose hi? V",.X~PUT.

WO r13i:t

Pc?'.Ic. ?:-:t~-> cost $GC. "

And superimposed on the pictorial representation at that time

the

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

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

made

the

principlPs

applicable to grar.ting interlocutory injunctions under

s.80

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

grant

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

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

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

f l n a l

o r d e r .

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 ,

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

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 ,

c o u r t ,

+ilen

contempla t ing

gran t ing

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

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

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

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

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

pre l iminary

t r i a l

o f t h e a c t i o n i n

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

fa i r chanct

success

(and

what w i l l

r equ i r ed w i l l va ry

acco

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

convenience."

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

said:

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

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

the

proper approach,

considering whether

ar,

interlocutory

in:unction

should

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

patept, and

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

The Chief

Justice‘s approach in that case vas followed

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

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

9 .

"I am

n o t ,

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

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

where

the

balance

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

need

not

e labora t e

them

here . "

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

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 i n j u n c t i o n .

S t a t e

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-?.

Aletr3.lasian

:<eat: Ir..!ustrrv

Ezployees Unior &

& ( 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

J u l y ,

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

se r ious

ques t ion

rro

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 .

Par1e-T

i".ark.stins

Eoard

gupensland

(1c IPZ j

46 A . L . R .

398;

A.L. J . R .

42'5;

Ta3lel %?.d

Pesnuts

Pt:J.Ltd.

??annt

iqarketinq

Ecai? (1984) 52 A.L.P. 65:;

5 1 A.L.J.R.283;

and

P.wrican

Cvaranid

Ethlcon

L t d

E19757

A . C .

396; C19753 1 ALL E.R.504.

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

the Ac t ,

i n

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

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 -

the

proceedings,

and,

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

t r i e d ,

f o c u s e s

a t t e n t i o n

the

p r imary

de t e rmina t ion

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

j u s t i c e

ca l l f a r

be fo re

f u l l and proper inquiry can

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

this

s t age

n f

::?e

l i t i g a t i o n

t o

t r y

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

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

tks

F r a c t i c e

requir2r.g

undertaking as t o darmyles upon the ?rant

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

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.

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

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

l i e s Tn

favour

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.

Tomasett j

Paner

Pty.Ltd.

(1983) 50

A.L.R.478,

(1983) 3 M.S.In1.L.R.

708 a t

pp.214-215) .

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

argued that

the

a d v e r t i s i n g ,

b o t h

i n

the r.ewspaper and

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

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

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

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

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

$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

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

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

fo r

t he

l a s t

f o l x years

that a

person

insured

with ?AMI does

not

suffer

penal ty i f that

person causes

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

b e t t e r

p o l i c y

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

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

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.

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

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,

which

either

directly

inferentially,

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.

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 ,

both

the

newspaper

and

the

television

advertising,

clearly

direct

attenticn

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

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.

1 7 .

A l l advertising

is directed

to promclting the goods of

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

QC t h e advertiser’s goods

in comparison with

a comprtxtor’s g ! ~ d s

or the qenerality

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

I t s pajor

c c c s e t i t o r s , :he

ob~ect,

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,

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

feature

only applies to

persons uith four years of

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

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

che balance

of convenience between the parties.

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.

those circumtances,

I reject the application for

interlocutory relief.

[1985] FCA 249

13 Jun 1985