Energizer NZ Limited v Panasonic New Zealand Limited HC Ak CIV 2009-404-4087
[2009] NZHC 2354
•16 November 2009
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 2009-404-4087
UNDER The Fair Trading Act 1986
BETWEEN ENERGIZER NZ LIMITED Plaintiff
ANDPANASONIC NEW ZEALAND LIMITED Defendant
Hearing: 24 September 2009
Appearances: J E Hodder QC and M C Sumpter for plaintiff
S Mills QC and P McPherson for defendant
Judgment: 16 November 2009
INTERIM JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment
with the delivery time of 4 pm on 16 November 2009
Solicitors/Counsel :
Chapman Tripp Auckland [email protected]
Hesketh Henry, Auckland [email protected]
ENERGIZER NZ LIMITED V PANASONIC NEW ZEALAND LIMITED HC AK CIV 2009-404-4087 16
November 2009
Introduction
[1] The New Zealand retail battery market is of significant size. In the year to
June 2009 customers purchased more than 18 million battery cells, including almost
10 million alkaline batteries.
[2] The parties to this proceeding are the market leaders. The plaintiff enjoys a market share of about 61% and the defendant about 27%. Competition is vigorous. Promotion and advertising is extensive. It is common ground that in the retail market for batteries, product performance is critical. There is nothing else, save for price, by which competitors are able to distinguish their products from the competition.
[3] As might be expected, market participants closely monitor their competitors’ activities. Advertised performance claims in this market have been the subject of litigation in Australia on several occasions. Examples are Duracell Australia Pty Ltd
v Union Carbide Australia Ltd (1988) ATPR 40-918, Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629, Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (No.4) (2000) ATPR 41-751 and Gillette Australia Pty Ltd
v Energizer Australia Pty Ltd [2005] FCA 1647. All of those cases were brought pursuant to s 52 of the Trade Practices Act 1974 (Cth).
The plaintiff’s claim
[4] The present case is concerned with two advertising initiatives undertaken by the defendant in New Zealand. The first consists of a claim made in a supermarket flyer to the effect that the defendant’s “Evolta” battery is the “Guinness World Records Longest Lasting Double AA alkaline battery”.
[5] The second complaint relates to a television advertisement screened for the defendant, which is alleged to have included the claim:
Guinness World Record Holder / For The Longest Lasting AA alkaline battery.
[6] The plaintiff contends that these claims are misleading and deceptive for the purposes of s 9 of the Fair Trading Act 1986 (the Act). It seeks an interim injunction restraining further publication of the defendant’s claims until further order of the Court.
[7] Mr Mills, for the defendant, has indicated that his client has no intention of repeating the claim made in the supermarket flyer. Accordingly, the focus of the present application is upon the television advertisement, which screened on 62 occasions before the defendant gave an undertaking to the plaintiff, pursuant to which the defendant has refrained from further publication pending delivery of a decision on the present application.
Factual background
[8] The plaintiff has been a participant in the retail battery market in New Zealand since the 1930s. It sells batteries under four brands, two of which are relevant to the present proceeding: Energizer and Eveready. The defendant has sold batteries in New Zealand since the early 1980s, both under its own name and under other brands, including National.
[9] The defendant began sales in New Zealand of an alkaline battery under the “Evolta” brand in September 2008. Prior to that the Evolta battery had been sold in Japan and elsewhere. Claims were made, at least in Japan, that the Evolta was the “Guinness World Records Longest Lasting AA Alkaline Battery”.
[10] Energizer in the USA, once aware of the claims made for the Evolta, undertook testing at its own battery testing laboratory facility in Missouri. Testing was independently peer reviewed by a global product quality and testing company, Intertek Group PLC (Intertek).
[11] The defendant, for its part, also undertook battery testing, utilising the services of the Japan Quality Assurance Organisation (JQA) and later BAE Systems Inc (BAE). Like Intertek, JQA and BAE are independent testing organisations.
[12] Each organisation tested the Evolta battery against its major competitors. Testing produced a variety of results. A number of affidavits were filed on either side with respect to the test results and their marketplace implications. I will return
to some of that evidence later in this judgment. For present purposes it is relevant to note however, that the defendant was able, on the strength of the test results it had obtained, to persuade the Guinness World Records organisation to certify that the Evolta was the world’s longest lasting alkaline battery, a title which features prominently in the television advertisement with which this case is concerned.
[13] The plaintiff’s position is that, on a proper interpretation of the test results viewed overall, the Evolta battery performs at a level similar to that of the plaintiff’s Energizer e² (or Energizer Advanced) battery, now widely marketed in New Zealand.
It therefore takes exception to claims by the defendant that the Evolta battery is superior to that of the plaintiff.
[14] The defendant’s television advertisement first screened on or about 14 June
2009. It is in “top and tail” format, which involves a “teaser” advertisement played towards the start of an advertising bracket, and then a further advertisement later in that same bracket. The claims which underpin this litigation appeared in the second of the two advertisements.
[15] Before the claims themselves appear, the advertisements feature what appears
to be a plasticine chicken holding its breath, the implication presumably being that it
is able to do so for a long period because it is powered by the defendant’s products. Towards the end of the advertisement, the disputed claims are depicted. The defendant’s Panasonic Evolta battery appears in mid-screen. Above it appears, first, the phrase “Guinness World Record Holder” in prominent capitals against a gold background. That phrase is followed by the expression “For The Longest Lasting AA Alkaline Battery”, in an equally prominent font.
[16] An asterisk appears immediately after the word “Lasting*” in order to draw attention to what is in effect a footnote visible below the depiction of the battery shown in the centre of the screen. The footnote reads:
*Average of all discharge modes ANSI and IEC testing since January 2008.
[17] This asterisked footnote appears for a matter of seconds, but is largely illegible to the viewer. It is in a much smaller font than the type used for the primary claim and is dwarfed both by that claim and by the depiction of the battery itself. I did not notice the footnote when the advertisement was played in the courtroom during the hearing.
[18] The advertisement appeared on 62 occasions before it was withdrawn pursuant to the defendant’s undertaking.
[19] During the course of argument, Mr Mills placed some stress on the precise state of the market in New Zealand at the time the advertisement was first screened. For a significant period, prior to about May 2008, the plaintiff sold in New Zealand
an AA battery manufactured in Singapore. In about May 2008, it also began to sell a
US manufactured battery. Each was known as the “e²” battery. Since then, and up
to the present time, the plaintiff has sold both Singapore and US manufactured e² batteries in roughly equal numbers. The evidence for the defendant is that some stores carry only the Singapore product; some stores only the US product; and some stores carry both. For present purposes, the important point is that the US product is significantly superior in quality and performance to the Singapore product.
[20] The initial JQA tests carried out for the defendant had tested only the e² US battery, which at the time was not sold in New Zealand. Later, the defendant arranged for BAE to test the Singapore battery sourced from New Zealand.
[21] When screening of the advertisement first occurred, the defendant understood the Evolta battery to be substantially superior to its New Zealand competitors. It was not then aware that the plaintiff had commenced to market the US sourced e² battery here.
[22] Mr Mills argues that two conclusions follow from that. First, it cannot be said that the defendant’s superiority claim was made in bad faith: it was unaware at the outset that the US sourced product, conceded by the defendant to be superior to the plaintiff’s Singapore product, was available here. Mr Mills’ second, related, point is that no aspect of the Evolta claim could be regarded as initially misleading. Against the e² Singapore battery, and prior to the e² US battery entering the market, the defendant would have been entitled to make an absolutely unqualified claim that Evolta was the “longest lasting AA alkaline battery”.
[23] I am inclined to agree with Mr Hodder, who characterises this aspect of the defendant’s argument as something of a red herring. Bad faith on the part of the defendant is not alleged by the plaintiff. And claims under the Act do not depend on
a finding of bad faith or other fault: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197. Moreover, although the defendant’s claims carry an implication of product superiority over their rivals, the claims themselves are not framed in comparative language. They are simply statements of alleged fact which the Court is required to consider in terms of s 9 of the Act.
[24] The advertised claims do not refer to the New Zealand market at all. On their face, they appear to make claims to superiority in the global market. Be that as it may, the defendant accepts that the plaintiff’s better performing e² US sourced product is now widely available in New Zealand. The necessary assessment must be conducted in the context of the New Zealand marketplace as it now exists, not the state of competition at an earlier point in time.
Battery testing
[25] Battery companies, including the parties to this litigation, measure and compare the performance of their batteries by testing them against standards promulgated by established standards organisations, which include the American National Standards Institute (ANSI) and the International Electrotechnical Commission (IEC). These are the organisations to which reference is made in the defendant’s television advertisement.
[26] The testing procedure simply involves placing individual battery cells in test racks, and collecting and processing test data until each battery goes flat. The testing organisations endeavour to replicate actual battery use in devising specific test conditions, intended to simulate a battery’s performance in various battery powered devices such as toys, cameras and torches. The various uses to which batteries are routinely put are termed by the defendant “discharge modes” in its advertising.
[27] The plaintiff has filed an affidavit from Mr M Babiak, who is the chairman of the ANSI Committee responsible for monitoring battery standards. Mr Babiak explains that the cassette tape is now effectively obsolete, given that cassette tapes have largely been replaced by other devices, at least in the western world. It has been replaced for testing purposes by a digital-audio category. Mr Babiak also describes the emergence of an “electric toothbrush” category. He explains that some category tests are more stable and reliable than others; of some significance perhaps in the present case is his description of the test for battery powered toys as among the strongest and most reliable.
[28] Tests for the plaintiff were conducted by Intertek. The defendant is critical of the results produced by Intertek, not so much by reason of the testing protocols themselves (there is a large measure of agreement that all testing organisations adhere to best practice) but rather, based upon the selection of the individual batteries chosen for testing. I will come back to that point a little later in this judgment.
[29] In the meantime, however, it is convenient to reproduce the schedule of the test results produced by Intertek testing in eight separate use categories.The schedule is taken from Mr Hodder’s synopsis of submissions.
Device category Who wins (Intertek testing) Portable lighting Even (Evolta and deliver performance
within 1% of each other)
Toy Energizer Digital audio Evolta Remote Even (Evolta and e² deliver performance
within 1 % of each other)
Radio clock Evolta Digital still camera Evolta Photo flash Exactly even Electronic games (and CD players) Energizer
[30] There is agreement between the parties that the various device categories listed above are current, and it is common ground that the various testing organisations routinely conduct tests to measure battery performance in each of the categories concerned.
[31] There is rather more controversy, however, over the two further categories noted above, namely, cassette tape recorders and electric toothbrushes. On the Intertek tests, the Evolta battery produced a better outcome for cassette tape recorders. But Mr Babiak’s evidence is that testing is not now routinely conducted
in respect of such items, because western consumers no longer buy or use battery powered cassette tape recorders in significant numbers. The defendant contests that assertion and contends that, internationally, battery powered tape recorders remain in widespread use.
[32] Electric toothbrushes are now widely available. ANSI has added an electric toothbrush category to its range of devices measured for testing purposes. The plaintiff’s e² US battery secured a better result in this category than did the Evolta battery, but the defendant disputes the relevance of the result on the basis that the place of electric toothbrushes in the range of appropriate testing categories is not yet settled. Nevertheless, it is now the subject of an approved ANSI test.
[33] Results of the Intertek testing are summarised in an affidavit by Mr A Mazzola, who is Energizer USA’s product technical support manager. He says that:
The key finding in the comparative product performance analysis was that these tests determine that Energizer e² TITANIUM/ADVANCED performs the same as or better than Panasonic’s EVOLTA battery in devices which account for 49.5% of AA battery usage in the US (and hence other developed markets like New Zealand).
[34] For the defendant, Mr S Noya filed an affidavit which dealt in significant detail with technical aspects of this dispute. He is the General Manager of Product Engineering at Panasonic Corporation Japan. In summary, his evidence was that:
a) The 2008 JQA test established that on average the Evolta battery lasted longer than the e² US battery, in that, if Evolta was allocated a baseline score of 100, the Energizer e² US battery across all ANSI and ISE test modes scored 92;
b)The 2008 BAE test results established that the Evolta battery lasted longer compared with all batteries tested including the e² US and the
e² Singapore batteries. Again, allocating the Evolta score as a baseline of 100, the Energizer e² US battery produced a score of 95-
96.
c) The 2008 BAE test results established that the Energizer e² Singapore battery scored 87 in comparison with the Evolta baseline score of 100;
d) Testing by BAE in 2009 produced a score of 90 for the e² US battery
(sourced in New Zealand) as against the Evolta baseline score of 100.
[35] For the plaintiff, Mr Noya also commented on the results of the two sets of Intertek tests carried out in 2008. Combining the results of those two tests he considered that, compared with an Evolta baseline figure of 100, the Energizer e² US battery scored 98, and the Energizer e² Singapore battery 88.
[36] Viewed uncritically, these results, if taken at face value, tend to suggest that the Evolta battery does perform at least marginally better than the plaintiff’s e² US battery on average across various usage categories. But it is necessary to consider two further matters that are in substantial dispute between the parties.
[37] The first is the importance of appropriate sample sourcing. In other words, testing organisations must compare apples with apples and for that purpose ensure that competing products are sourced in a way that guarantees the testing playing field
is level. The second question is the extent (if any) to which it is legitimate to rely upon averaged testing results, having regard to the very different uses to which AA batteries are put by consumers and the different results achieved by the competing battery products across the different category types.
[38] As to battery sampling, it is common ground that batteries will deteriorate over time and that, for testing purposes, they ought ideally to be procured direct from the manufacturing facility. Moreover, the conditions under which a battery has been stored since leaving the facility will be relevant; for example, extreme temperature may prematurely sap a battery’s power and performance. There is also a measure of agreement to the effect that trans-shipment of a battery over a long distance will be likely to reduce ultimate performance.
[39] The affidavits contain claim and counterclaim in respect of the legitimacy of the various tests undertaken on behalf of the plaintiff and defendant respectively. Each party claims that the tests conducted on behalf of the other were unfair, because they had selected for testing competitors’ products that were likely to have deteriorated by reason of age, trans-shipment, storage conditions or a combination of all three. A significant proportion of a long day’s hearing was devoted in argument to the respective contentions of the parties on this topic.
[40] This is an application for an interim injunction. I am not able to resolve the battery testing argument on affidavit evidence. All I can do is endeavour to gauge the strength of the plaintiff’s argument, taking into account the available testing results and weighing them as best I can against the competing contentions of the defendant.
[41] The second matter concerns the legitimacy of the averaging calculation undertaken by the defendant. This is a matter that will require attention at a later point in this judgment. The plaintiff’s argument is that the averaging exercise itself will lead to consumers being misled or deceived for the purposes of s 9.
Legal Principles
[42] The applicable principles are not in dispute. It is well settled that the Act is aimed primarily at the protection of the consumer, but that a business competitor is entitled to take action where an infringement has occurred, both for its own benefit and in the wider interests of the public. The leading New Zealand authority is probably still Taylor Bros Ltd v Taylors Group Ltd [1988] 2 NZLR 1 where at 39
Cooke P, delivering the judgment of the Court of Appeal said:
Certain points well-settled in Australia may be said with confidence to be equally applicable in New Zealand. For instance, it is clear that, although the Act is primarily consumer-protection legislation, a rival trader may enforce s
9 and is indeed the usual applicant. In this way the Act operates partly for the benefit of the ethical trader. He need not show damage to goodwill, the
Act thus having as to injunctive relief a wider scope than the common law of passing off. The essential requirement of s 9 is simply misleading or
deceptive conduct. …
As to when conduct is to be characterised as misleading or deceptive, judicial exegesis probably can do little at a general level to expand upon the ordinary words of the section; and obviously it cannot be allowed to supersede them. In the end one must always return to them and apply them
to the particular facts.
…
Certainly the degree of impact or likely impact on consumers is important. It goes both to whether there is a real likelihood that persons will be misled or deceived and to whether the Court in its discretion should grant an injunction (or other remedy) under the Act. The case has to be sufficiently serious to warrant a remedy. But s 9 and the remedy sections of the Act are not limited
to cases of identifiable economic loss.
[43] In Parkdale Mason J, in the High Court of Australia, accepted that a remedy granted to prevent deception of the public will often have the incidental effect of protecting a competing trader’s goodwill, but that that was simply inherent in the statutory regime. Mason J also held that the remedial provisions of the equivalent of
s 9 must be taken to prevail over the general policy of encouraging freedom of
competition enshrined in Part IV of the Australian Trade Practices Act. He said:
The statutory policy, as it seems to me, is that the interests of a consumer of goods or services will best be served when manufacturers compete vigorously without adopting restrictive practices and observe prescribed standards of conduct in their dealings with consumers.
Once it is accepted that this is the statutory policy I find it difficult to accept the appellant’s notion that the general, yet clear, words of s 52(1) should be read down so as to enable the policy of freedom of competition enshrined in
Pt IV to prevail. In a collision between one of two different statutory policies and plain words giving effect to the other statutory policy the plain
words will prevail. To my mind the words ‘misleading’ and ‘deceptive’ as
applied to conduct in trade and commerce are reasonably plain. And in a collision between the general policy of encouraging freedom of competition and the specific purpose of protecting the consumer from misleading or deceptive conduct it is only right that the latter should prevail. It would be wrong to attribute to the Parliament an intention that the indirect and intangible benefits of unbridled competition are to be preferred to the protection of the consumer from the misleading or deceptive conduct which may be an incidental concomitant of that competition.
[44] It is well settled that the Court must consider the class of consumers likely to
be affected by the impugned conduct. Where, as here, the challenged advertising is aimed at the general public, it must be borne in mind that the advertisements may be viewed by the inexperienced as well as the experienced and the gullible as well as the astute. But the overall assessment is to be conducted having regard to the effect
of the advertisement on reasonable members of the public. What is reasonable will depend on all the circumstances of the case: Parkdale at 199; Eveready Australia Pty Ltd v Gillette Australia Pty Ltd at [59].
[45] Comparative advertising, which arises in this case at least by implication, has been said to carry particular risks for the advertiser. In Energizer Australia Pty Ltd v Gillette Australia Pty Ltd (2001) 189 ALR 480 at 498, Conti J, sitting in the Federal Court of Australia said at [47]-[48]:
[47] Indulgence in comparative advertising, which is the character of the advertising here at issue, has been traditionally recognised by this court as an undertaking potentially fraught with risk. Comparative advertising may be misleading, because it creates a “half truth” by omitting material necessary
in order to make the comparison fair: Hoover (Aust) Pty Ltd v Email Ltd
(1991) 104 ALR 369 at 375 per Gummow J. In referring to that dictum, Merkel J observed in Telstra Corp v Optus Communications Pty Ltd (1997)
36 IPR 515 ; ATPR 41–541 at 43,515 that “… there are obviously greater dangers in the ‘half truth’ or the unqualified literal truth in comparative advertising”.
[48] But the problem for the comparative advertiser is not confined to the omission of material. In Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 37 ALR 161 at 163, Lockhart J said as follows:
When a person produces a television commercial that not only boosts his own product but, as in this case, compares it critically with the product of another so that the latter is shown up in an unfavourable light by the comparison, in my view he ought to take particular care to ensure that the statements are correct.
[46] That is not to say that a greater legal duty reposes on those who engage in comparative advertising. Rather, as was observed by Greig J in Telecom Corporation of New Zealand Ltd v Clear Communications Ltd (1992) 4 NZBLC
102,839 at 102,843:
With respect I doubt if it was intended in any of those references and citations to pose a greater burden or obligation under s 9 on those who are involved in comparative advertising as contrasted with those who are merely advertising their services in absolute terms on their own. The point is rather that, when detailed comparisons are undertaken, as is sometimes the case with direct comparisons between competing goods or services, the specificity of advertisement and the statements in it give less room for construction as puffery but give clear grounds for testing the accuracy or falsity and so the misleading or deceptive nature of the comparison overall. That can apply to advertising which, though not in terms comparative, is in its ordinary meaning and connotation to be treated as comparative. Thus without direct reference to a competitor or that competitor's goods and services the implication of advertising may nonetheless be clear that the advertiser's goods or services are in fact being compared with others.
[47] To the same general effect is the judgment of Heerey J, sitting in the appellate jurisdiction of the Federal Court of Australia, in Gillette Australia Ltd Pty v Energizer Australia Pty Ltd at [20]:
[20] The characterisation of advertising as comparative does not of itself have legal significance, or create any kind of presumption in favour of a party alleging a breach of Pt V of the TPA. There is no basis in the TPA for regarding comparative advertising as an inherently disreputable form of commercial conduct, to be viewed with suspicion by the courts. On the contrary, to the extent that comparative advertising provides consumers with accurate hard facts about competing products, it assists in the making of better informed consumer choices and thereby results in more effective competition. Of course, the more actual comparisons that are used, the more potential there is for error (and half-truth). So advertisers have to be careful. Understood in context, that is all that the passages referred to by his Honour are saying. Assertions of factual inaccuracy have to be carefully considered by courts in comparative advertising cases, no differently from any other cases.
[48] Accordingly, in the natural course of things, a comparative advertiser can expect its material to be subjected to close scrutiny by a trade competitor. Lindgren J, a member of the Court in Gillette v Energizer, helpfully summarised the position at [44]:
[44] The judicial dicta referred to signify that a comparative, as distinct from a "unilateral", promotion of a product necessarily indicates that the advertisement is not mere advertising puff, but involves representations of fact which are either true or false. They also suggest an obvious practical consideration: since the manufacturer, distributor or seller of the compared product will be closely familiar with it and will have a financial interest in stopping the advertising, it can be expected that the advertisement will be construed by that competitor "minutely and finely with an eye keenly attuned to the perception of error" (to adopt an expression from a different area of the law: cf Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 ; 115 ALR 1, quoted with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ; 136 ALR 481 at CLR 271-2 per Brennan CJ and Toohey, McHugh and Gummow JJ). Thus the advertiser can reasonably expect a challenge, including a challenge to the point of litigation.
[49] In the present case the defendant’s argument is that the representations conveyed in the television advertisement are literally true, so that there can be no infringement of s 9. It is not in dispute that if the representations contained within the advertisement are literally true and that no arguably misleading interpretation of the representation is available, then the plaintiff must fail. But if the representation conveys another meaning which is untrue, then the proscriptions in s 9 may well apply.
[50] The law on this point was helpfully summarised by McGechan J in E R Squibb & Sons (NZ) Ltd v ICI New Zealand Ltd (1988) 3 TCLR 296 at 313:
A point of particular relevance in this case is the question of truth. The authorities in (b) of Wilcox J's summary are particularly in point. In Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Pty Ltd (supra) the passage from the judgment of Stephen J in the High Court of Australia referring to Australian s 52(1), equivalent to our s 9, is:
“No doubt the meaning of the statutory prohibition which s 52(1) enunciates must be gained from the terms of the subsection itself; but nothing in those terms suggests that a statement made which is literally true, ie that the centre at Hornsby is conducted by Hornsby Building Information Centre Pty Ltd may not at the same time be misleading and deceptive. It clearly may be. To announce an opera as one in which a named and famous prima donna will appear and then to produce an unknown young lady bearing by chance that
name will clearly be to mislead and deceive. The announcement would be literally true but none the less deceptive, and this because
it conveyed to others something more than the literal meaning which the words spelled out. Thus, in passing off, a newly incorporated
defendant company may not use, in its newly established business, its true corporate name if it be deceptively similar to that of a plaintiff with an established reputation (Fine Cotton Spinners and
Doublers' Association Ltd v Harwood Cash & Co Ltd [1907] 2 Ch
184, at p 190 ). What has been said of passing off actions applies equally in the present case; as Buckley LJ remarked in John
Brinsmead & Sons Ltd v Brinsmead [1913] 30 RPC 493, 506, a
statement which is literally true and accurate may nevertheless carry with it a false representation. Lord Morris expressed much the same
notion in Parker-Knoll Ltd v Knoll International Ltd [1962] RPC
265, 279. The same will apply in relation to s 52(1). ”
The cited passage from Wilcox J's second authority World Series Cricket Pty Ltd (supra) is from a judgment of Brennan J in the Federal Court which reads:
“Before a statement can be said to be misleading or deceptive or falsely to represent a fact, it must convey a meaning inconsistent with the truth. A statement which conveys no meaning but the truth cannot mislead or deceive or falsely represent; although a statement which is literally true may nevertheless convey another meaning which is untrue, and be proscribed accordingly (US v 95 Barrels etcof Vinegar 265 US 438 at 442 ). ”
If the statement concerned conveys no meaning but the truth, it cannot mislead or deceive. If, however, it conveys also another meaning, which is untrue, then it may fall within s 9.
[51] Advertised product claims often appear accompanied by qualifications, explanations or conditions. Routinely, as here, the claim itself will be afforded significantly greater prominence than the other material, which may sometimes be found in a footnote or referenced by means of an asterisk. In the present case an asterisk appeared after the word “lasting” in the expression “the longest lasting* AA alkaline battery”. In principle there can be no objection to the use of an asterisk for the purpose of drawing the attention of viewers to other relevant material: GeorgeWeston Foods Ltd v Goodman Fielder Ltd (2000) 49 IPR 553 at 571-2.
[52] Whether an asterisk, which refers to a qualification or explanation, may be effective to neutralise an otherwise misleading or deceptive advertisement will be a matter for determination in the specific circumstances of each particular case: Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402 at [37].
[53] The qualifying material must be sufficiently prominent to prevent the primary statement from being misleading and deceptive, or being likely to mislead or deceive: Australian Competition and Consumer Commission v Signature Security Group Pty Ltd (2003) ATPR 41-908 at [26]-[27]. There, it was suggested that the degree of prominence required in respect of the qualification or explanation may well vary with the potential for the primary statement to be misleading and deceptive.
[54] In Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (No.4) Lindgren J considered television advertising involving a claim that a particular battery lasted “up to four times longer”. The qualifying subtext appeared in small print in a colour which did not stand out, and was placed at a point in the advertisement at which the viewer would have become distracted by the action. By contrast the claim “lasts up
to four times longer”, appeared in larger print than the earlier subtext. The primary claim was coloured white, which made it stand out against the background, and there were differences in the period of time for which the primary claim and the subtext were visible on the screen.
[55] With regard to the subtext, Lindgren J held at [41]:
The creator of the advertisement has attached no importance to it, intending the viewer not to do so either. I think the creator’s intention would be fulfilled.
[56] In determining whether a television advertisement contains claims that are misleading or deceptive it will be necessary to take into account the overall impression made by the advertisement on a reasonable viewer, having regard to the circumstances in which such a person would see the advertisement. The considerations discussed by Lindgren J are of relevance in this case; I will return to them shortly.
[57] It is not in dispute that ordinary injunction principles are applicable to claims
for interim relief under the Act. Accordingly, the Court must consider whether the plaintiff has established that there is a serious question to be tried and, if there is, go
on to determine where the balance of convenience lies, before stepping back to consider the overall justice of the case.
[58] Where the dispute impacts on the wider community there is perhaps a distinct public interest in forestalling misleading or deceptive conduct before consumers might be harmed. The case for interim relief may be stronger in that situation than in
an instance where the interests of a mere individual are in issue: Squibb at 319.
[59] Some care is needed about this, however. The Court must not permit itself to become simply a competitive tool for a rival trader. As McGechan J warned in Squibb at 324:
It would not be in the public interest for any notion to spread that all a trader need do to ruin a competitor's product launch is find some arguable item in the competitor's promotional material which might be labelled misleading or deceptive, and then apply urgently to the Court for an interim injunction restraining use of those promotional materials. Interim injunctions in this area should not be allowed to become a matter of mere routine, turning the Court into a tool for marketing gamesmanship.
The TV advertisement revisited
[60] Earlier, I briefly described the disputed advertisement. I viewed it on a laptop during the course of the hearing and was able to scrutinise it with some care, having already become aware of the primary issues in the case.
[61] The courtroom environment and the focused attention I was able to give the material constitute quite different circumstances from those in which an ordinary member of the public might view the advertisement. Of course, it is the impact on members of the public that must be assessed. In terms of viewer perception, television advertisements present their own problems, usefully summarised by Lindgren J in Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (No.4) at [38].
I have reviewed each of the 10 second, 15 second and 30 second Duracell television commercials more than once, and have tried to assess their likely impact on members of the public in the circumstances in which they would have been likely to view them. Those circumstances are not the circumstances in which I viewed the commercials. First, it would be very unlikely that members of the public would have viewed any of the commercials in isolation: rather, they would almost certainly have viewed them after and before viewing other things on the television screen. Second, unlike myself, they would not have viewed the commercials with a special interest in them and many would probably have viewed the commercials against a background of distractions, such as domestic activity or simply pre-
occupation with other more interesting concerns. Third, members of the viewing public would not know in advance that the commercials were about to commence.
[62] The advertisement is split in order that other unrelated advertisements might
be shown between its constituent portions. Much of the earlier part is taken up with the activities of the plasticine chicken, to which I have earlier referred. The comparative advertising claims appear in the second portion. The asterisked footnote or subtext relating to averaging, which appears in the second portion, is largely unreadable. It is in much smaller font and is deliberately relegated in importance to the lower part of the screen, where it is dwarfed by the primary claim and by a depiction of the Evolta battery. Moreover, the footnote is visible on the screen for a matter of seconds only.
[63] Only the most attentive and astute viewer would notice the footnote at all. Most members of the public would simply overlook it, even on repeated viewings, and focus upon the main text and the picture of the battery. That in my view, was the plain intention of those who created the advertisement. Indeed, Mr Parkes, who swore an affidavit for Panasonic, says that the defendant regarded the averaging qualification as “arguably unnecessary”. No doubt that approach influenced the decision to relegate the subtext to effective invisibility. I therefore proceed on the basis that the primary claim is, for practical purposes, unqualified by the asterisked material.
[64] The next question is whether the unqualified claim in the advertisement is likely to mislead the battery purchasing public. In that context, the television advertisement must be considered “ … in the matrix of the market, bearing in mind the persons to whom the statement is addressed and the likely customers whom it is intended to affect”: Telecom Corporation of New Zealand Ltd v Clear Communications Ltd (1992) 4 NZBLC 102,839 at 102,842.
[65] Whether the representation concerned is likely to mislead that portion of the public involves an assessment of risk – the risk must be real and more than a mere possibility, but need not necessarily be assessed on the balance of probabilities: Bonz Group (Pty) Ltd v Cooke [1994] 3 NZLR 216.
[66] Mr Hodder accepts that, in a sense, the defendant’s claim is literally true, in that the defendant has received from the Guinness World Record organisation an award for the longest lasting AA alkaline battery. But, Mr Hodder argues, the advertisement is nevertheless misleading because, at least in its unqualified form, it amounts to a half truth: readers of the advertisement are likely to be left with the impression that the Evolta battery is the best performing battery on the market in all circumstances and for all purposes. On the plaintiff’s case that is simply incorrect for two principal but related reasons:
a) AA batteries are used for a variety of purposes. The rival batteries do not perform equally well across the range of ordinary uses. Any claim
to superiority must be confined to identified uses unless a product can legitimately claim to be the best performer across all use types;
b)The plaintiff’s e² US battery performs better than the defendant’s Evolta battery for some uses, and worse for others. Overall, the relative performance of the competing products is too close to sustain a claim to superiority.
Averaging
[67] Earlier at [29] I set out a list of device categories, and the results of Intertek testing in each category. The results were mixed. For Energizer Mr Mazzola swore
an affidavit to the effect that:
It is a general industry understanding and expectation that if you are making
a ‘longest lasting’ claim the product has to be the clear winner across all relevant devices.
[68] His evidence on the point was given in the context of a discussion of the promotion by Energizer USA of a lithium battery known as Energizer Ultimate. It is described as “the world’s longest lasting battery in high powered devices”. Sometimes Energizer substitutes for the word “powered” the word “drain” or the word “tech”, but Mr Mazzola claims that the consumer message is still the same and is justified by virtue of the fact that the battery concerned is the longest lasting
battery for all uses within the nominated description.
[69] It is not in dispute that a given brand and type of battery will perform better when used for some purposes than it will for others. As a matter of ordinary commonsense, it is to be assumed that consumers will at times purchase batteries for
a particular purpose, rather than simply for general household use. Such consumers will therefore be vitally interested in the comparative performance of competing batteries for the particular use they have in mind. A simple claim that a battery is the longest lasting battery, justified by a reference to an average across all use types, may tend in my opinion to mislead a consumer who wishes to use a battery for a particular purpose for which the battery concerned performs worse than a competitor. For that reason, there is a degree of substance, in my view, in the plaintiff’s assertion that a claim to overall superiority should only be made where a battery is indeed the best over all normal product uses.
[70] There seems to be a measure of agreement within the industry as to the category of uses to which batteries are ordinarily put. Accordingly, unless Panasonic can show that the Evolta battery scores best over all relevant categories, there is an argument available to the plaintiff to the effect that the claim contained in the television advertisement is misleading, even though literally accurate. That leads to the next question, namely whether Panasonic can show that it is indeed the best battery across all categories.
Battery testing revisited
[71] Earlier, I briefly summarised the evidence regarding the various tests conducted on competing batteries by or on behalf of the parties. Battery testing is governed by established protocols. It is not suggested that battery testing methods were inadequate or compromised in some way, but there is a vigorous debate in the affidavits about product sourcing. In other words, it is contended on either side that apples have not been compared with apples. As earlier noted, it is common ground that batteries will deteriorate with age and with trans-shipment.
[72] I concluded earlier that it was not possible to attempt even a tentative finding
as to the relative merits of the various competing test results on affidavit evidence alone. But one or two observations may safely be made.
[73] The plaintiff’s best position appears to be that both the Evolta battery on the one hand and the e² US battery on the other enjoy superiority in some use categories, and perform equally well in others, and that, overall, Evolta may shade the Energizer
e² US battery but by no more than 1%.
[74] The Panasonic position is that the Evolta battery scores better in most categories, and overall it performs better than the plaintiff’s e² US battery by 4-5% (2008 BAE test) or as much as 10% (2009 BAE test). As it stands, the defendant’s evidence suggests that the Evolta battery may well slightly out-perform the plaintiff’s e² US battery across all normal uses, but that there may well be some uses for which, as the plaintiff claims, its product is superior.
Materiality
[75] Of course, the defendant’s superiority claim, even if arguably misleading, will not be actionable unless at a practical level there is at least a risk that it is likely
to influence the behaviour of consumers. I note that, apart from price, the only point
of product differentiation in this market is that of performance.
[76] Mr Hodder refers the Court to an article by Roger E Schechter in the Virginia Law Review “Additional Pieces of the Deception Puzzle: Some Reactions to Professor Bevier” (2002) 78 Va.L.Rev.57. There the author, who is a professor of law at George Washington University, expressed the view that a presumption of materiality seemed warranted where consumers were unable to assess product performance themselves in the short term. The author gives the example of a claim that a washing machine would last for 10 years. Self-evidently a consumer is unable
to verify that claim, at least until 10 years have passed.
[77] In the present case, consumers are plainly unable to measure and test for themselves the validity of product performance claims for AA batteries. The
plaintiff filed an affidavit by Janet Hoek, Professor in the Department of Marketing
at the University of Otago. She said:
Observing these differences would require a level of attention to detail that I believe few, if any, consumers would exhibit, particularly given that many of the devices the test simulated are used intermittently, a fact that would further complicate any comparisons. In my experience, consumers are cognitive misers who typically do not spend considerable time or effort evaluating the performance of competing brands and who instead use heuristics (such as implied superiority claims) to simplify their decision- making.
[78] Professor Hoek expressed the opinion that the overall performance differential of less than 1% identified by Intertek would not be material to most consumers. But neither are consumers in a position to evaluate claims to superiority where the performance results may indicate a wider differential between competing products.
[79] The defendant filed an affidavit by Professor Brodie, from the Department of Marketing at the University of Auckland. Dr Brodie’s primary concern was with the difference between lithium and alkaline batteries; he considered that by reason of pricing differentials consumers would be well aware that the more expensive lithium battery would out-perform alkaline batteries in most conditions. While not discounting the importance of product superiority claims, he thought that other influences at point of sale are likely to be important, including price discounting and product display.
[80] In my view it is self-evident that the effective life of an AA battery will be a matter of primary importance to a purchasing consumer, although I accept that consumers may well be prepared to trade price for performance if they can identify a benefit in doing so. Nevertheless, it cannot be seriously contended that, for practical purposes, the claim made in this case for the Evolta battery is not capable of influencing the purchasing decisions of consumers.
Further considerations
[81] It is appropriate to refer briefly to one or two further issues addressed by
counsel during the course of argument. The first concerns the sub-text or footnote appearing in the television advertisement. I have held that for the purposes of the advertisement itself, the footnote ought to be disregarded because it would be effectively invisible to most television viewers. But putting aside the question of the placement and size of the footnote, it is arguably ineffective in its current form in any event as a qualifier of the primary claim. It is generally accepted that an asterisk can be sufficient to draw the attention of a consumer to a qualification of a representation: George Weston Foods Ltd v Goodman Fielder Ltd. But to be effective, the qualifying material must not only be sufficiently prominent, but also sufficiently instructive to nullify the risk that the primary claim might mislead or deceive: see generally the discussion in Medical Benefits Fund of Australia Ltd v Cassidy at [35]-[41].
[82] Here, the footnote reads: “*Average of all discharge modes ANSI and IEC testing since January 2008”. I accept that industry professionals will understand immediately what is conveyed by this statement, but in my opinion it will be meaningless to the vast majority of consumers, and especially so having regard to the status of small batteries as convenience products. Consumers of such products will not ordinarily devote time to studying and considering qualifying statements of this sort.
[83] I accept that most consumers may well understand the word “average”, but the expression “discharge modes” and the references to “ANSI” and “IEC” are simply opaque. There is evidence that the expression “discharge modes” refers to the product use types which form the separate testing categories discussed earlier. Although the expression may be in regular use within the industry, it meant nothing
to me until I was referred to evidence on the topic. Likewise, in my view, consumers will not be assisted by a reference to discharge modes. Neither will they be aware that the acronyms refer to testing organisations.
[84] Product superiority claims that are qualified by reference to asterisked footnotes must provide information for consumers in language they can understand. The present footnote is inadequate for that purpose.
[85] Mr Mills points out that Energizer itself refers to ANSI in the course of its advertising. That is so. But the context is somewhat different. My present concern
is that the combination of the terms “discharge modes” with the two acronyms provides nothing that assists consumers. References to ANSI and IEC may well be perfectly appropriate in a somewhat different context.
[86] I need also to refer briefly to the plaintiff’s e² Singapore battery. As earlier discussed, the defendant’s television advertisement was in the later stages of production when the plaintiff’s e² US battery reached the market in New Zealand. Indeed, screening may already have commenced by that time.
[87] Mr Mills is at pains to point out the state of the market at that time, for the principal purpose, as I understand it, of demonstrating that the defendant had acted in good faith. He accepts that the arrival of the e² US battery has altered marketplace dynamics and indicates to the Court that if, by reason of the arrival of a better performing competing product, the Court considers that the advertisement has become misleading, then the defendant will take steps to ensure that any shortcomings are rectified.
[88] I am not sure that Mr Mills is on entirely sound ground when he refers to the changing state of competition in this country. The claim in dispute is geographically unqualified. In other words, it is a claim to worldwide superiority. The arrival of the plaintiff’s new product significantly strengthens its claim, as Mr Mills accepts. In the end the question is simply whether, as at the date of the hearing, the television advertisement has the capacity to mislead or deceive a relevant section of the public.
[89] On another point altogether, Mr Mills is critical of the plaintiff’s failure to conduct tests on samples of competing products each sourced from New Zealand. Had such tests been completed then, he argues, the plaintiff would potentially have had a much stronger case for interim relief, particularly if it could show that the defendant’s claims to product superiority were unfounded or at least arguably so.
[90] I accept that in an ideal world conclusive test results would have been of assistance, but the Court must simply work with what it has. The material currently
available suggests that the plaintiff’s e² US battery is broadly comparable with the defendant’s product, when performance results are viewed in their totality. Of particular importance at this interim stage is the evidence suggesting that, at least for some categories of use (and important categories at that), the plaintiff’s product may perform better.
The claimed relief
[91] The plaintiff’s statement of claim incorporates the following allegations:
6.Since 2002 Energizer has marketed the Energizer ULTIMATE LITHIUM battery in various media, including television advertising, with the claim:
World’s longest lasting AA battery in high powered devices.
(Ultimate Lithium Claim)
7. Energizer has established extensive goodwill and reputation
overseas and in New Zealand in the Ultimate Lithium Claim.
Panasonic launches Evolta
8. In or about September 2008, Energizer became aware that Panasonic
was marketing in New Zealand an AA alkaline battery product branded Evolta.
9.Since approximately April 2009, Energizer has marketed and sold an alkaline battery branded Energizer Advanced in New Zealand.
Panasonic’s “longest lasting” claim
10. In the week commencing 6 April 2009, Energizer became aware that
Panasonic had advertised the Evolta battery in a supermarket mailer with the accompanying claim and representation:
Guinness World Records Longest Lasting AA alkaline battery.
…
Escalation – television advertising
13. On or about 18 June 2009, Energizer became aware that Panasonic
had commenced television advertising for the Evolta battery (Evolta
TVC) which included the claim:
Guinness World Record Holder / For the Longest* Lasting AA Alkaline Battery
(TVC Claim)
(Mailer claim and TVC claim and minor variations thereon referred to as Evolta Claim)
…
17.The Evolta Claim is conduct in trade that is misleading and deceptive or likely to mislead or deceive the relevant public, because:
17.1consumers exposed to battery advertising rarely focus on detail relying instead on fleeting and/or overall impression assisted and guided by the prominence, font size and location of product performance claims and representations;
17.2the Evolta Claim and, in particular, the Evolta TVC, convey the impression that the Evolta battery is the longest lasting battery and/or the longest lasting AA alkaline battery on sale in New Zealand when that is not true;
17.3the Evolta battery is inferior in performance to the Energizer Ultimate Lithium battery in, inter alia, printable lighting, toys, digital audio, digital cameras, CD players, electronic games and toothbrushes;
17.4the Evolta battery is equivalent or inferior in performance to the Energizer Advanced battery when used in devices accounting for approximately 49.5% of AA battery usage;
17.5the Evolta Claim will cause consumers to doubt the Ultimate Lithium Claim and/or to treat the Evolta and Energizer Ultimate Lithium products as equivalents;
17.6the ‘Guinness World Records’ endorsement corollary to the Evolta Claim conveys the impression that there is a substantial and clear performance difference between the Evolta product and all other battery products and/or alkaline battery products available in New Zealand when that is not true.
[92] In its prayer for relief, the plaintiff seeks an order pursuant to s 41 of the Fair
Trading Act: “ … restraining the defendant, its employees and agents, from engaging
in misleading and deceptive conduct in trade by making the Evolta Claim …”.
[93] In its application for interim relief, the plaintiff seeks an order that: “Until further order of the Court, defendant, its employees and agents, be restrained from engaging in misleading and deceptive conduct in trade by making the Evolta Claim as defined in the Statement of Claim …”
[94] The “Ultimate Lithium Claim”, referred to in paragraph 6 of the statement of claim, received virtually no attention during the course of argument. Mr Hodder
concentrated virtually exclusively upon the impact of the Evolta Claim on sales of the plaintiff’s e² battery.
[95] Both in its statement of claim and in its prayer for an interim injunction, the plaintiff seeks to restrain the defendant from making the Evolta Claim, irrespective
of the medium by which the claim appears.
The interim injunction threshold
[96] The conventional approach to interim injunction applications requires an assessment of whether there is a serious question to be tried, where the balance of convenience lies and, finally, what overall justice requires: Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 at 142.
[97] In Squibb McGechan J helpfully observed (at 310) that:
The ultimate and controlling requirement is overall justice. Usually, attainment of overall justice will be served by adopting the relatively low threshold of a mere serious question to be tried. Bearing in mind the difficulties of proof to the substantive trial standard on affidavits, without cross examination, without discovery, and often under conditions of urgency, it may not be just to require more for a merely temporary restraint. Such, however, is not always the case. There can be situations where the interests of justice better are served by imposing higher standards, whether expressed as a "prima facie case" or in some other terms. Such most obviously is the case where the interim order (so called) in reality will determine the litigation. It may well be unjust in such cases to allow a defendant to be shut out by anything less than the substantive trial standard, or something approaching that standard. And there will be cases and gradations in between. The appropriate test, in the end, is the threshold test which best serves the interests of overall justice in the particular circumstances of the individual case. Commonly that will be the so called serious question threshold, but the common should not be elevated to the invariable.
I do not see these principles as altered in any fundamental way by the terms
of s 41 Fair Trading Act 1986, although due regard must be paid to the word
"desirable" where it appears in s 41(3)(b) and (4)(b).
[98] As earlier noted, a factor often needing attention in comparative advertising cases is the immediate impact of an injunction upon a defendant. The Court will not lightly ruin a competitor’s product launch, or worse, completely restrain a party from entering the market (see Squibb at 324). In such cases, the grant of an interim
injunction will often bring the litigation to an end because the interim injunction effectively becomes permanent.
[99] Mr Mills accepts that that consideration does not arise here. All that is immediately at stake is the fate of the defendant’s current television advertisement. But the relief sought by the plaintiff extends more widely than that. It is therefore necessary for me to draw some threads together, and then deal with the question of the interim relief (if any) to which the plaintiff is entitled.
Conclusions
[100] On this application for interim relief the plaintiff must first establish the existence of a serious question for trial. I am satisfied that it has done so in respect
of the television advertisement itself. In my opinion it is strongly arguable that the asterisked qualifying subtext is ineffective in conveying its intended message to television viewers.
[101] That leaves the primary claim itself. Insofar as it relies on the Guinness award, it is of course literally true, but in my view there is a serious question to be tried with respect to the tendency of the claim to mislead despite its literal truth. That is because it is also seriously arguable that a claim to product superiority (on average), even if true, will tend to mislead a consumer seeking a battery for a particular purpose. Moreover, it remains to be seen where the truth lies in respect of the various claims and counterclaims made for these competing products. The available evidence suggests that the Evolta battery may be marginally longer lasting overall than the plaintiff’s e² battery, but the plaintiff’s own test results, if established
at trial to be correct (and it is at least seriously argued that they are correct) would render unjustified any claim to overall superiority by the defendant.
[102] In broad terms therefore, I consider the plaintiff has established a serious question to be tried.
[103] I turn to the balance of convenience. There is much to be said for the preservation of the status quo; that is the position as it existed prior to the
commencement of the screening of the defendant’s advertisements, and as it stands now while the undertaking inures. It is not contended that a continuing restraint upon the further screening of the television advertisements in the short term will cause the defendant such grave detriment that an injunction ought to be refused on that ground alone. And of course the public interest is engaged, so the inquiry is not simply as to the interests of the defendant alone.
[104] Damages will not provide a satisfactory alternative remedy for either party. There is material before the Court that suggests that if the television advertisement,
for example, is permitted to screen in its present form, some consumers will inevitably be persuaded to purchase the defendant’s products instead of those of the plaintiff, by reason of the claims made in the advertisement. If that occurs then some at least of those consumers are likely to remain loyal to the Evolta brand, simply because they are not equipped to engage in product comparisons of their own. Such consumers would be lost to the plaintiff, which would have no ability either to identify lost consumers, or to calculate the value of sales lost thereby. On the other hand, I accept that the defendant would be unable to calculate the value of profits lost to it by virtue of an interim restrain on advertising.
[105] To some degree these considerations cancel each other out, but it is relevant that, should the defendant ultimately succeed at trial, it will be able to renew its product superiority claims, which may well enable it at least in part, to persuade consumers to switch brands. To that extent, the benefits accruing to the defendant will have simply been deferred, not lost altogether. By contrast, consumers lost to the plaintiff by reason of the defendant’s superiority claims, may never be regained, as earlier discussed.
[106] In my opinion balance of convenience factors favour the plaintiff, at least in
so far as the present television advertisement is concerned. The plaintiff is entitled
to interim relief restraining further publication of that advertisement until trial, or until further order of the Court. That conclusion accords with the overall justice of the case.
[107] However, the plaintiff seeks more extensive interim relief than that. I consider it appropriate in the light of my conclusions to afford counsel an opportunity of raising any practical matter which might bear upon the plaintiff’s entitlement to the wider interim relief it seeks, and the terms of that relief. Accordingly, this is an interim judgment only.
Result
[108] There will be an interim injunction restraining the defendant, its employees and agents, from further publishing the Evolta claim (as defined in the statement of claim) in the television commercial until further order of the Court.
[109] Counsel are to file memoranda dealing with the following topics:
a) The question of what further interim relief (if any) ought to be granted
to the plaintiff;
b)The future conduct of the proceeding, and in particular the identification of such steps as may be needed to ensure an early hearing of the substantive proceeding;
c) Costs.
[110] The plaintiff’s memorandum is to be filed and served within five working days from the date of this judgment. The defendant’s memorandum is to be filed and served within 10 working days of the date of this judgment. The plaintiff may file and serve a reply memorandum within three working days of the date of the filing and service of the defendant’s memorandum.
C J Allan J
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