TVW Enterprises Ltd v Swan Television and Radio Broadcasters Pty Ltd
[1999] WASC 80
TVW ENTERPRISES LTD -v- SWAN TELEVISION AND RADIO BROADCASTERS PTY LTD [1999] WASC 80
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 80 | |
| Case No: | CIV:1477/1999 | 4 JUNE 1999 | |
| Coram: | HEENAN J | 25/06/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Action dismissed | ||
| PDF Version |
| Parties: | TVW ENTERPRISES LTD (ACN 008 679 294) SWAN TELEVISION AND RADIO BROADCASTERS PTY LTD |
Catchwords: | Trade practices Misleading or deceptive conduct Television programme Claim to be "Perth's leading hour of news and current affairs" Radio advertisement Claimant not having largest market share |
Legislation: | Trade Practices Act 1974 (Cth) s 52 |
Case References: | Dewhirst & Anor v Budget Rent-A-Car Systems Pty Ltd (1985) 8 FCR 1 Annand and Thompson Pty Ltd v Trade Practices Commission (1979) 25 ALR 91 Australian Competition and Consumer Commission v On Clinic Australia Pty Ltd & Ors [1996] ATPR 41-517 Budget Rent-A-Car Systems Pty Ltd v Dewhirst & Ors, unreported; Fed C of A (Woodward J), Victoria District Registry; VG 117 of 1985, 23 May 1985 Budget Rent-A-Car Systems Pty Ltd v Dewhirst & Ors (1984) ATPR 40 – 485 Byers & Ors v Dorotea Pty Ltd (1987) ATPR 40-760 Collier Constructions Pty Ltd v Foskett Pty Ltd (1990) 97 ALR 460 Commercial Dynamics Pty Ltd v M Hawke Nominees Pty Ltd (1996) ATPR 41-503 Concrete Constructions NSW Pty Ltd v Nelson (1990) 169 CLR 594 Dynamic Lifter Pty Ltd v Incitec Ltd & Ors (1994) 30 IPR 198 Eighth SRJ Pty Ltd v Merity, unreported; SCt of NSW (Young J); No 3667 of 1994; 25 March 1997 Farquhar v Bottom & Anor [1980] 2 NSWLR 380 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 Hospitals Contribution Fund of Australia Limited v Switzerland Australia Health Fund Pty Limited trading as "Health Australia" (1988) ATPR 40-834 Janssen Pharmaceuticals Pty Ltd v Pfizer Pty Ltd (1986) ATPR 40-654 McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd (1980) 33 ALR 394 Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 Orison Pty Ltd v Strategic Minerals Corporation NL & Ors (1987) 77 ALR 141 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Re Volcano International (1985) ATPR 40-632 Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 Taco Company of Australia Inc & Anor v Taco Bell Pty Ltd & Ors (1982) 42 ALR 177 Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 Typing Centre of NSW Pty Ltd v Northern Business College Ltd & Ors (1989) ATPR 40-943 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : TVW ENTERPRISES LTD -v- SWAN TELEVISION AND RADIO BROADCASTERS PTY LTD [1999] WASC 80 CORAM : HEENAN J HEARD : 4 JUNE 1999 DELIVERED : 25 JUNE 1999 FILE NO/S : CIV 1477 of 1999 BETWEEN : TVW ENTERPRISES LTD (ACN 008 679 294)
- Plaintiff
AND
SWAN TELEVISION AND RADIO BROADCASTERS PTY LTD
Defendant
Catchwords:
Trade practices - Misleading or deceptive conduct - Television programme - Claim to be "Perth's leading hour of news and current affairs" - Radio advertisement - Claimant not having largest market share
Legislation:
Trade Practices Act 1974 (Cth) s 52
Result:
Action dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr M L Bennett
Defendant : Mr W S Martin QC & Mr A C Willinge
Solicitors:
Plaintiff : Bennett & Co
Defendant : Blake Dawson Waldron
Case(s) referred to in judgment(s):
Dewhirst & Anor v Budget Rent-A-Car Systems Pty Ltd (1985) 8 FCR 1
Case(s) also cited:
Annand and Thompson Pty Ltd v Trade Practices Commission (1979) 25 ALR 91
Australian Competition and Consumer Commission v On Clinic Australia Pty Ltd & Ors [1996] ATPR 41-517
Budget Rent-A-Car Systems Pty Ltd v Dewhirst & Ors, unreported; Fed C of A (Woodward J), Victoria District Registry; VG 117 of 1985, 23 May 1985
Budget Rent-A-Car Systems Pty Ltd v Dewhirst & Ors (1984) ATPR 40 – 485
Byers & Ors v Dorotea Pty Ltd (1987) ATPR 40-760
Collier Constructions Pty Ltd v Foskett Pty Ltd (1990) 97 ALR 460
Commercial Dynamics Pty Ltd v M Hawke Nominees Pty Ltd (1996) ATPR 41-503
Concrete Constructions NSW Pty Ltd v Nelson (1990) 169 CLR 594
Dynamic Lifter Pty Ltd v Incitec Ltd & Ors (1994) 30 IPR 198
Eighth SRJ Pty Ltd v Merity, unreported; SCt of NSW (Young J); No 3667 of 1994; 25 March 1997
Farquhar v Bottom & Anor [1980] 2 NSWLR 380
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Hospitals Contribution Fund of Australia Limited v Switzerland Australia Health Fund Pty Limited trading as "Health Australia" (1988) ATPR 40-834
Janssen Pharmaceuticals Pty Ltd v Pfizer Pty Ltd (1986) ATPR 40-654
(Page 3)
McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd (1980) 33 ALR 394
Mirror Newspapers Limited v Harrison (1982) 149 CLR 293
Orison Pty Ltd v Strategic Minerals Corporation NL & Ors (1987) 77 ALR 141
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Re Volcano International (1985) ATPR 40-632
Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275
Taco Company of Australia Inc & Anor v Taco Bell Pty Ltd & Ors (1982) 42 ALR 177
Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1
Typing Centre of NSW Pty Ltd v Northern Business College Ltd & Ors (1989) ATPR 40-943
(Page 4)
1 HEENAN J: This action arises out of an argument as to whether or not a series of sixty radio advertisements promoting a particular television programme contravened the Trade Practices Act (Cth) 1974.
2 Each of the parties holds a commercial television licence. The plaintiff, TVW Enterprises Ltd, has Channel 7. The defendant, Swan Television and Radio Broadcasters Pty Ltd, has Channel 9. Every evening, beginning at 6 o'clock, they broadcast programmes devoted to news or current affairs. During the week the programmes last for one hour. They are the only television stations which broadcast news for that long at that time within the Perth metropolitan area. At weekends the programmes last for 30 minutes. At least since the beginning of last year the Channel 7 programmes have consistently commanded the greatest viewing audience and have been the highest rating of all news and current affairs programmes broadcasting within the same area.
3 The advertisements in question described Channel 9 as having "Perth's leading hour of news and current affairs". They were broadcast for the defendant by three local radio stations from 19 to 30 April 1999. The transcript taken from the audiotape of one typical advertisement reads as follows:
"Hello, I'm Tina Altieri. Tonight in Channel 9 news, child abuse. The brutal babysitter caught on camera. Plus the new anti fat pill.
Channel 9 news.
Then on A Current Affair …
A bizarre cult with its weird rules – followers must wear pink underwear and eat offal. Plus the mystery of who killed little Jon Benet.
Channel 9 – Perth's leading hour of news and current affairs from 6.00"
- A few minutes before 6 o'clock on the evening of 29 April, a Thursday, Mr Kevin Campbell heard one such advertisement. Mr Campbell is the plaintiff's managing director. On the Friday the company's solicitors wrote to the defendant. After quoting survey results which showed that the Channel 7 programme attracted a much larger audience than the Channel 9 programme the letter went on to say that "it must be abundantly plain to you (and obviously known prior to the advertisement being
(Page 5)
- approved) that an advertisement in these terms is completely false". The letter then referred to s 52 of the Act, which proscribes conduct in trade or commerce which is misleading or deceptive or likely to mislead or deceive, and called upon the defendant to "cease advertising in this manner or in any other manner that is misleading or deceptive or likely to mislead or deceive" and to "put forward an adequate proposal for corrective advertising to be undertaken to remedy your corporation's conduct to date." It concluded by saying,
"We require your response by close of business tonight failing which our client reserves the right to commence proceedings for injunctive relief without further notice."
- The letter was placed on the desk of the defendant's general manager but it was not read until late that afternoon when it came to the attention of Mr Brian Rogers, Channel 9's news director. Mr Rogers telephoned Mr Campbell and asked him to hold any action until Channel 9 had received legal advice, assuring him that in the meantime the description complained of would not be used in promoting the programme. One further advertisement went to air about 25 minutes later, apparently due to an oversight, but none has been broadcast since then. By letter dated 4 May 1999 the defendant's solicitors replied as follows:
"Our client denies that the advertisement referred to is false or that it is in any respect misleading or deceptive. As we understand your client's complaint, it is that the use of the word 'leading' conveys the meaning that our client's hour of news and current affairs is the highest rating in Perth. In the context of this advertisement that is not fair or reasonable interpretation.
Our client does not intend to use the wording referred to in future advertisements but its decision not to do so is not based on any concern that the advertisement is false or misleading or deceptive. It simply has no interest in becoming involved in a prolonged debate over a matter of this sort. No question of corrective advertising arises."
The plaintiff instituted these proceedings on the following day.
(Page 6)
- plaintiff contends, that the words used in the description involve a number of subjective factors and have no specific meaning capable of being misleading or deceptive.
5 Resolution of the argument depends mainly upon the meaning of "leading". Like many words in the English language it has a variety of meanings. In The New Shorter Oxford English Dictionary (1993 ed) the word "leading" is defined as "that goes first or is in front", "that guides, directs or leads (to something)" and "that takes the lead; chief, principal, prominent". As those definitions suggest it might, for example, refer to persons of eminent position and influence, to clothing or styles which set a fashion, to a practice or conduct which precedes others as a guide or to persons who are foremost in their chosen careers or professions. Much depends on the context.
6 In Dewhirst & Anor v Budget Rent-A-Car Systems Pty Ltd (1985) 8 FCR 1 the Full Court of the Federal Court of Australia considered the meaning of the statement "Hertz has established itself as the leader in the rental market for luxury cars." The statement appeared in an article in a magazine called "TAA Flight Deck News" and it was attributed to Mr Allen Dewhirst, the managing director of Hertz Australia. The Court did not accept the submission of the appellants that the word "leader" as used in the article was to be understood as "one who by innovative example induces others to take a course or to adopt measures which is or are better than had previously prevailed." It found that Woodward J, the trial Judge, was correct in his perception that a claim to leadership in a market, in the context of the article, was to be understood in current parlance as a claim to have the largest share of that market. Having commented that such a claim is "a specific and reasonably precise assertion of fact" the Court agreed with Woodward J that it was a fact likely to have an influence on consumers, including the air travellers to whom the magazine was directed.
7 In the present case the word "leading" was used in a very different context. Instead of appearing in an article, which could be read at leisure and re-read if desired, its reference to Channel 9 was part of a 30 second long oral advertisement. Instead of being "a specific and reasonably precise assertion of fact" based on facts and figures presented in an article, it was a passing, descriptive statement for which no basis was laid. Instead of being the main point of a message, it was the "signing off" phrase which followed a series of catchwords designed to attract the attention of listeners by reference to news items to be featured in that evening's programme.
(Page 7)
8 Having listened and listened again to the audiotapes of a selection of the radio advertisements, I have been left with the clear impression that, as used in the phrase "Perth's leading hour of news and current affairs", the word "leading" tends to refer rather to the quality of the programme than to the number of its viewers. In either event, the phrase was used merely to finish off the message and to confirm that it related to the news and current affairs programme which was to be broadcast that evening from Channel 9. It made much less of an impact than the alliterative assertion in the plaintiff's own 10 year old slogan "Nobody knows news like 7". In the context the word "leading" was incidental and insignificant. But for the publicity which this action has generated, it is hard to imagine that anyone other than Mr Campbell, or someone else directly involved in the management of Channel 7, would have noticed it.
9 Of course, Mr Campbell's concern is understandable. Those who are in charge of television stations regard the news and current affairs programme as being very important. It is "singly the largest cost centre" of the television station. As is the case with Channels 7 and 9, the programme usually is presented early in "prime time" – that is in the evening, when most people watch television. Mr Campbell testified that it reflects the character and image which the station is projecting within the viewing community. As another witness said, it is the programme which "sets up the evening's viewing .. establishing your relationship with the audience at that time and quite often determines what viewers may or may not watch for the ensuing part of the prime time". Because advertising is charged primarily on the basis of dollars per thousand viewers, there is a correlation between ratings and advertising revenue share: the higher the rating the higher the revenue. Advertising agents, in particular, are influenced by the results of rating surveys. Television stations promote their news and current affairs programmes vigorously and extensively in order to hold the audience which they have and to attract more viewers.
10 In conclusion, the reference to Channel 9 as having "Perth's leading hour of news and current affairs" in my opinion would not be understood by a reasonable and ordinary listener as a claim to leadership in television ratings. Even if it were to have that meaning, because of the fleeting nature of the advertisements it would not be likely to have any influence on such a listener. I conclude that the advertisements were not misleading or deceptive or likely to mislead or deceive. The action therefore fails.
0
16
0