Reasoning
104 The question whether particular conduct of which complaint is made is misleading or deceptive or likely to mislead or deceive is, in the ordinary case, a question of fact to be answered in the context of the evidence as to the alleged conduct and as to relevant surrounding facts and circumstances: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 199 per Deane and Fitzgerald JJ.
105 AstraZeneca did not adduce any evidence going to the underlying knowledge and experience of GPs in dealing with the symptoms of asthma in their patients. That may have been because it accepted the evidence relied on by GSK through Dr Howe. Whether that is so or not, it cannot be doubted that such evidence forms part of the 'relevant surrounding facts and circumstances' referred to in Taco by reference to which the question of whether the conduct complained of is misleading or deceptive is to be determined. I shall return to the relevance of this evidence when considering the content of each of the Seretide Advertisements below. Before doing so, it is necessary to deal with a threshold difficulty with AstraZeneca's case.
106 It is common ground that the class of persons to whom the Seretide Advertisements are directed, including such representations, express or implied, as they contain, are medical practitioners, in particular GPs, rather than the general public. Whether or not any such representations are misleading falls to be considered having regard to that audience.
107 In the case of a section of the public who are members of a class of prospective purchasers or consumers, which may be expected to include a wide range of persons, it has been said that it is necessary to isolate by some criterion a representative member of the class: Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at [103]. And in Parkdale Custombuilt Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199, Gibbs CJ said that s 52 of the Act must, in his opinion, be 'regarded as contemplating the effect of the conduct on reasonable members of the class'.
108 Whether it is necessary to undertake this further process of isolation or selection in the case of a class of persons all of whom are GPs may be doubted, but for present purposes I propose to approach the question of whether the conduct complained of is misleading or deceptive from the point of view of the effect of that conduct on a reasonable GP.
109 A threshold difficulty with AstraZeneca's case is its failure to identify the error or 'erroneous assumption', as it has been called, having a causal connection with the conduct complained of, namely, the representations alleged to have been conveyed by the Seretide Advertisements. Nowhere is it said, in express terms, either in the pleadings or in the submissions, that, for example, the Seretide Advertisements are misleading or deceptive or likely to mislead or deceive because they may lead GPs into error, namely, prescribing Seretide for their asthma patients on the erroneous assumption that it will provide them with total control of the symptoms of asthma. That may well underlie AstraZeneca's case, but it was never identified as such in either the statement of claim or in the written and oral submissions made to the Court. Absent identification of the error, there can be no causal connection with the representations alleged to have been conveyed by the Seretide Advertisements.
110 That it is a difficulty with AstraZeneca's case is exemplified in what the High Court said in Campomar at [104]:
'It is here that there arises a critical question on the case put for the appellants. It concerns the so-called "doctrine" of "erroneous assumption" said to be derived from, in particular, decisions of the Full Court of the Federal Court in McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd (1980) 49 FLR 455, Taco Co of Australia Inc v Taco Bell Pty Ltd and Lego Australia Pty Ltd v Paul's (Merchants) Pty Ltd (1982) 60 FLR 465. In their joint judgment in Taco Bell (at 200), Deane and Fitzgerald JJ emphasised that "no conduct can mislead or deceive unless the representee labours under some erroneous assumption" …
Their Honours added that, in determining the question whether conduct properly should be categorised as misleading or deceptive or as likely to mislead or deceive, the nature of the erroneous assumption which must be made before conduct could have that character "will be a relevant, and sometimes decisive, factor" (at 200).'
111 To the same effect, albeit in different terms, was what was said by the Full Court of this Court in Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 at [63]:
'The touchstone of liability is the conduct by act or omission of Esso and its characterisation as misleading or deceptive. The analysis of the statement of claim must begin by identifying the conduct and the facts relied upon to give it that character. The principles governing characterisation are well established. Conduct is misleading or deceptive if it induces or is capable of inducing error - Keehn v Medical Benefits Fund of Australia Ltd (1977) 14 ALR 77; Weitmann v Katies Ltd (1977) 29 FLR 336; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198 (Gibbs J); Rhone-Poulenc Agrochimie SA v UMI Chemical Services Pty Ltd (1986) 12 FCR 477. The so called "doctrine" of "erroneous assumption" referred to by the High Court in Campomar Sociedad Limitada v Nike International Ltd (2000) 169 ALR 677 at 704, is merely another way of expressing that general proposition albeit it seems to have arisen in the context of cases involving similar product names. The statement in the joint judgment of Deane and Fitzgerald JJ in Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 200 that "no conduct can mislead or deceive unless the representee labours under some erroneous assumption", cited in Campomar, is another way of saying that the representee must be led into error.'
112 Even if an error or erroneous assumption may be inferred in terms of that suggested in [109], a further difficulty for AstraZeneca's case is that it led no evidence to suggest that GPs rely on the information/representations made in advertisements of the kind comprising the Seretide Advertisements and appearing in publications of the kind in which some of those advertisements appear to prescribe medication for those of their patients suffering from the symptoms of asthma. Indeed, such evidence as was led or elicited in cross-examination would indicate that GPs place no reliance on such advertisements in prescribing medications for their patients with symptoms of asthma; that they merely regard such advertisements as part and parcel of wider marketing campaigns undertaken by drug companies to promote their products, and not as a source of information by reference to which they prescribe medications for their patients. This is borne out by the prescribing practises of Dr Howe described at 80 - (29) supra and his evidence at 80 and (41) supra. Even some of the questions that were put to him in cross-examination were predicated on the basis that prescribing was an individual matter for individual patients in consultation with their doctor, effectively denying any reliance on any representation conveyed by the Seretide Advertisements: See [82] and [85] supra. It is also borne out by the evidence of Dr Pater in cross-examination at 65 - (10) supra. He said it may be true that one would not expect a GP seeing an advertisement of that kind to regard it as the complete and self-contained source of information on the basis of which a GP could or would make a decision to prescribe the drug Seretide for a patient but there were 20,000 GPs and maybe some would see it that way. That is as high as the evidence got that GPs rely on such advertisements to prescribe medication for their patients.
113 But evidence of the 'relevant surrounding facts and circumstances' referred to in Taco, or context as it is compendiously called, also indicates that GPs relied on sources of information, including their own familiarity and experience in the form of patient acceptance and results achieved in prescribing Seretide since it first came on the market, other than any representations conveyed by the Seretide Advertisements, as a basis for prescribing medication to their patients suffering from the symptoms of asthma. Seretide was first available in Australia from August 2000 and had been extensively prescribed prior to the publication of the Seretide Advertisements. Indeed, even after Astrazeneca's product Symbicort became available, Seretide had an overwhelming dominant position in the market - see [21] - [23] supra, no doubt due in part to the prescribing practises adopted by Dr Howe and other GPs described at 80 - (29) supra.
114 In the absence of any evidence that any representations conveyed by the Seretide Advertisements would be relied upon by GPs in prescribing medication for their patients suffering from the symptoms of asthma, it is impossible to find any causal connection between the conduct complained of and any inferential error or erroneous assumption of the kind suggested in [109]. That would be sufficient to dispose of AstraZeneca's case, but there are other reasons why it must fail.
115 Even if one could infer an error or erroneous assumption under which GPs laboured and a logical causal connection between the Seretide Advertisements (and any representations they conveyed) and the hypothesised error, it does not necessarily follow that that will result in the conduct being regarded as misleading or deceptive for the purpose of s 52 of the Act. As was said by the Full Court in Johnson Tiles at [64]:
'Conduct may be misleading or deceptive because it involves an express representation which is false. In the statement of claim in such a case the representation will be pleaded as a fact as will the falsifying facts. The conduct may involve an implied representation conveyed by words or conduct or some combination thereof. Such a representation will be falsified in the same way as an express representation. But the identification of a representational element is not necessary, albeit it will be involved in most cases. Conduct is to be characterised by reference to its actual or possible consequences - Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228 (Stephen J). This does not require demonstration that anyone has actually been misled - Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 25 ALR 91 at 102 (Franki J) and 111 (Northrop J); Brock v Terrace Times Pty Ltd (1982) 56 FLR 464; Taco Co of Australia Inc v Taco Bell Pty Ltd at 202 (Deane and Fitzgerald JJ). It does require a capacity to mislead or deceive attributable to the conduct in question. There must be a logical causal connection between the conduct and some hypothesised error. But not every case involving a logical connection between conduct and alleged error will result in the conduct being regarded as misleading or deceptive for the purposes of s 52. There is an evaluative judgment involved. As the Full Court said in SAP Australia Pty Ltd v Sapient Australia Pty Ltd (1999) 169 ALR 1 at 14:
"The characterisation of conduct as "misleading or deceptive or likely to mislead or deceive" involves a judgment of a notional cause and effect relationship between the conduct and the putative consumer's state of mind. Implicit in that judgment is a selection process which can reject some causal connections, which, although theoretically open, are too tenuous or impose responsibility otherwise than in accordance with the policy of the legislation."' (Emphasis)
116 Three of the Seretide Advertisements, namely the sales aid (Fig. 2), the sleeping man advertisement (Fig. 3) and the upgrade advertisement (Fig. 4) contain:
(1) No representation, express or implied, of the kind pleaded in 5 - (c) of its Statement of Claim: See 7 - (3), supra. At most they contain what is common ground - a free-standing brand slogan - 'Seretide Total Control' - and even that is referenced to a footnote qualification to the GOAL Study.
(2) No express representation of the kind pleaded in 5 of its Statement of Claim: See 7, supra. If it arises by implication, its logical causal connection with any inferred alleged error is too tenuous to be regarded as misleading or deceptive for the purposes of s 52. This conclusion flows from the fact that the implied representation is, in substance, true (total = 100 per cent) and the fact of the audience to which it is directed.
117 In the case of these advertisements, the representations pleaded in 5 and (f) of AstraZeneca's Statement of Claim: See 7 and (6), supra - are true. Any case that they are misleading or deceptive is predicated on a premise of what is not said; again any logical causal connection between what is not said and any inferred alleged error is too tenuous to be regarded as misleading or deceptive for the purposes of s 52. This conclusion stems in large part, if not in whole, from the truth of what is said and the fact of the audience to which it is directed.
118 And, no express representation of the kind pleaded in 5 of AstraZeneca's Statement of Claim: See 7, supra, is made in these advertisements. If it arises by implication, it is because of what is not said; any logical causal connection between what is not said and any inferred alleged error is too remote to be regarded as misleading or deceptive for the purposes of s 52. This conclusion stems from the reference to the GOAL Study in the advertisements, the fact that the GOAL Study makes it clear that clinicians might not replicate its conditions and the fact of the audience to which it is directed.
119 The GOAL Mailer also contained the brand slogan 'Seretide Total Control', not always free-standing as in the other advertisements, but in association with word messages which arguably give rise to implied, if not express, representations of the kind complained of. The message on the front page -
'Imagine if you had the power to totally control asthma ….'
followed by the message on the second page -
'Now you can achieve that goal with SERETIDE TOTAL CONTROL1*'
is the case in point.
120 That, however, is counter-balanced by the message, equally prominent, on the third page:
'GOAL provides EVIDENCE that total asthma control is now achievable with Seretide1*'
121 In both cases the references are to the qualifying footnote:
'* The GOAL study examined whether guideline defined asthma control could be achieved in 3416 patients with uncontrolled asthma. 41% of patients achieved total control and 71% achieved well controlled asthma with Seretide for periods of 7 out of 8 weeks over the 12 month study.'
122 Complaint is also made of the quotation from the GOAL Study at the foot of the third page: viz.,
'… the approach of aiming for Total Control and maintaining treatment resulted in the virtual elimination of exacerbations and near-normal quality of life …'
Not because of any inaccuracy, but because it does not go far enough - it does not go to the end of the sentence from which the words are extracted so as to include the words:
'… in the majority of patients and brought substantial benefit even to those who failed to achieve this high level of control.'
In other words, it is misleading or deceptive by omission.
123 Even assuming that one or more of the representations complained of can be made out as being conveyed by the GOAL Mailer, the logical causal connection between the representations and the inferred error is so tenuous that it is not possible to arrive at any finding that the representation is false and misleading. This conclusion is supported by the following matters:
(1) The balance of the advertisement, viewed as a whole, as referred to in [120].
(2) The qualifying footnotes at all levels referred to in [121].
(3) The truth of the extract from the GOAL Study, with or without the omitted words, in [122].
(4) The audience to which the advertisements was directed, [106] supra.
(5) The prescribing practises of GPs as set out at 80 - (29), supra.
(6) The experience of GPs in dealing with asthma symptoms and their familiarity and experience in dealing with Seretide and Symbicort as adduced in the evidence of Dr Howe 80 - (30), supra.
124 Even if there was an identified error or erroneous assumption which one could rely on to find a logical connection between any such implied representation and the identified error, I would not be prepared to find, for the reasons given, that any such representation was misleading or deceptive in terms of s 52 of the Act.