Relief relating to Trade Practices Act contraventions
22 I am satisfied that it is appropriate to grant the declarations that Dynamic seeks. The contraventions which Dynamic alleged, and which have now been found, were, once again, matters that were strenuously contested in the first hearing. It is recognised that proceedings under the Trade Practices Act have a special character involving the protection of the public and, more specifically in the present case, the protection of consumers. This special feature is not diminished simply because the proceedings for contravention are brought by a competitor whose primary objective may be the protection of private commercial interests: World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 186-187. Tonnex's conduct had the capacity to mislead or deceive resellers and others lower in the chain of distribution in ways that were likely to be important to their interests. It is appropriate that declarations be made to mark, in a public way, the fact that these contraventions have occurred. Once again, Tonnex advances no reason why these declarations should not be made.
23 The special character of proceedings under the Trade Practices Act is also relevant to the question of whether injunctive relief should be granted. The statutory injunction for which s 80 of the Trade Practices Act provides is not one that is limited by the characteristics of the injunction developed by courts of equity. Rather, it is a modification of that remedy, although traditional equitable principles may still assist in informing the Court how the discretion to grant injunctive relief might best be exercised in particular circumstances: Ricegrowers' Co-Operative Limited v Howling Success Australia Pty Limited (1987) ATPR ¶ 40-778 at 48,492; ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 248 at 256-257 and 263-264. Section 80 itself recognises that this form of remedy can be granted, for example, whether or not it appears to the Court that a person intends to engage again, or to continue to engage, in contravening conduct or whether or not there is imminent danger of substantial damage to any person because of the contravening conduct: see s 80(4)(a) and (c). Such relief can be granted to deter future similar conduct: ICI at [268]. Such relief can also be granted to mark the Court's disapproval of particular conduct: Trade Practices Commission v Mobil Oil Australia Ltd (1985) 4 FCR 296 at 300; Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491 at [217].
24 In the present case Tonnex submits that it is unnecessary to grant injunctive relief because no further contravention is threatened or likely. It refers to the steps that it has already taken to remove relevant offending material from its advertising and marketing publications, in whatever form those publications might exist. It also points to the fact that the tax free representation and the Australian jobs representation have ceased to be made, and have not been made for significant periods of time.
25 On the other hand, Dynamic submits that the evidence has revealed that Tonnex has engaged in conduct that shows that it has no real awareness of the boundaries of misleading or deceptive conduct. It submits that neither Dynamic nor the public should be put at risk of, and Tonnex should not be permitted to proceed on, what Dynamic referred to as Tonnex's idiosyncratic views about whether the representations it has made are justified or will, in future circumstances, be justified. Dynamic submits that the evidence adduced on behalf of Tonnex in the first hearing suggests that the Court can have no confidence that Tonnex will not engage in contravening conduct in the same manner in the future.
26 Whilst I accept that Tonnex has taken particular steps to remove offending material and that, certainly in the case of the tax free representation and the Australian jobs representation, there has been no repetition of the contravening conduct for some time, I am satisfied that, but for the undertakings that have been proffered by Messrs Solomon and Kozman, this is an appropriate case for the granting of injunctive relief.
27 In my view there has been a pattern of conduct by Tonnex that shows a somewhat cavalier approach to its legal obligation to adhere to the norms of conduct that ss 52 and 53 of the Trade Practices Act prescribe. In the particular instances raised by this matter, it has exhibited a preparedness to pursue its marketing objectives even if those objectives involve a risk of misleading consumers. Such conduct is not to be countenanced. The granting of the injunctions that Dynamic seeks would reinforce the need for Tonnex to remain vigilant to ensure that its conduct does not again contravene ss 52 and 53 of the Trade Practices Act.
28 The undertakings proffered by Messrs Solomon and Kozman are substantially in the same form as the injunctions that Dynamic seeks. Once again, they have the additional feature that the undertakings are offered personally as well as on behalf of Tonnex itself. These undertaking should be accepted in lieu of injunctions. The same objectives will be achieved by accepting the undertakings. Vigilance will be secured because non-compliance will be punishable by proceedings for contempt. Indeed, the fact that personal undertakings are also offered will provide an extra measure of protection in that regard.
29 As I have noted, Dynamic also seeks orders for corrective advertising and that Tonnex introduce and administer a compliance program. I am not persuaded that this relief should be granted.
30 In the present case, there is much to be said for the view that the contraventions I have found should be brought to the attention of Tonnex's customers by means involving direct action by Tonnex itself. However, that course should only be adopted if, in doing so, those contraventions can be fairly and accurately identified in a way that usefully serves the ends of consumer protection. I am not satisfied that those objectives can be readily achieved in the present case.
31 First, the Court's findings cover a range of representations. Some of these ceased to have been made some considerable time ago. I am not satisfied that there is any utility, for example, in requiring Tonnex to give notice of contraventions in relation to conduct which, in the case of the Australian jobs representation, ceased well over two years ago and, in the case of the tax free representation, ceased nearly two years ago. I accept Tonnex's submission that, for its customers, there may be no clear link between the correction and the offending publication. Indeed the correction that is sought may well wrongly suggest to some customers that the conduct referred to is of more recent origin, and thus itself be potentially misleading or deceptive. There is considerable force in Tonnex's submission that notification in relation to these contraventions really serves no useful purpose other than to mete out punishment to Tonnex without any accompanying consumer benefit.
32 On the other hand, it would not be appropriate, in my view, to order a notice to be given that refers to some, but not all, of the contraventions that were found. This would give an incomplete picture of the Court's findings and may present a confusing picture of those findings, particularly where the notice, as here sought, directs attention to the Court's reasons for judgment, including by way of hyperlink in respect of the notice which Dynamic seeks to have published electronically. Persons who read the reasons for judgment may be caused to wonder why reference is made in the notice to some contraventions and not to others and, perhaps, may speculate that, contrary to the fact, the Court considers some contraventions to be of lesser significance than others.
33 Secondly, the contraventions constituted by the making of the genuineness representation and the second reliability representation need to be understood in their proper context. The nature and significance of those contraventions can only really be understood against the background of all the findings I have made and my reasons for making the findings. I would not assume that, universally, recipients of the notice which Dynamic seeks to have Tonnex publish would fully inform themselves on those matters by reading the reasons for judgment. I accept Tonnex's submission that there is a likelihood that some recipients of the notice that Dynamic proposes would mistakenly conclude that there has been a finding by the Court that Tonnex has been found guilty of supplying counterfeit goods, when plainly that was not the case.
34 I have considered whether the notice that Dynamic proposes could be readily modified in a way that would avoid any significant risk of misapprehension of the Court's findings. I am not satisfied that this can be readily done other than by a somewhat detailed summary of my reasons for judgment. Leaving aside whether it is at all appropriate to even embark upon that task, such a notice would be deprived of its utility as a fair, accurate and readily-understood, but nevertheless succinct, notification of the Court's findings and conclusions.
35 The order that Tonnex introduce and administer a compliance program raises other questions. The first question is one of proportionality, particularly where such relief is sought at the behest of a competitor. When sought by a competitor, one is left with the uneasy feeling that the relief is sought purely as a means of punishment. I am not satisfied that relief of this kind is warranted in the particular circumstances of this case.
36 The second question relates to the implementation of the program that Dynamic seeks to be ordered. That implementation is one involving supervision of the compliance program by Dynamic itself. In my view it would be wholly inappropriate to make such an order. I accept Tonnex's submission that it would be both onerous and undesirable to maintain Tonnex in what would undoubtedly be a position of subservient accountability to Dynamic. Indeed the making of such an order would not only involve an unwarranted intrusion by one competitor into the business affairs of another but, in circumstances where the parties are already in litigation, would be likely to foment further dispute between them.