"Where, as in the present case, the advertisement is capable of more than one meaning, the question of whether the conduct of placing the advertisement in a newspaper is misleading or deceptive conduct, must be tested against each meaning which is reasonably open. This is perhaps but another way of saying that the advertisement will be misleading or likely to mislead or deceive if any reasonable interpretation of it would lead a member of the class, who can be expected to read it, into error: Keehn v Medical Benefits Fund of Australia Ltd (1977) 14 ALR 77 at 81 per Northrop J and cf the approach taken by Mason J in Parkdale."
In relation to the representation concerning bulk billing, it was said that if the representation was read as relating to the cost of consultations only, then it was correct, but if it was read to include the cost of the course of treatment, in addition to consultations, then it was false.
In my view, a reasonable and indeed the more likely construction of the words "without any charge to the patient" or "at no cost" would be that the total treatment is at no cost to the patient. There is no suggestion that the clinics' services are partly "at no cost". The words "no cost" like the word "free" have a certain allure and will almost always attract a strong favourable attention to a product or service.
It is said the same observations apply in relation to the claims that impotence is capable of effective treatment in just four programs, with guaranteed results after only two
visits; and the further claims that it could be successfully treated by medical doctors in only two consultations. The reference to "guaranteed" strongly connotes the certainty of a positive result and the assertion that successful treatment can be effected in "only" two consultations reinforces this message. While there is a large component of truth in these assertions, they are nevertheless capable of being read in such a way as to be misleading and deceptive. If it is sought to attract public attention and custom by the use of unqualified assertions of fact, then such assertions should be true as a matter of fact, if they are not to mislead and contravene the norms of conduct prescribed by the Act.
Similarly, in relation to the representation in (d) (as set out earlier) to the effect that the results are guaranteed with respect to obtaining or sustaining an erection. The evidence indicates that in a high percentage of cases, the treatment is successful. Nevertheless, the reference to the treatment being "guaranteed" travels beyond the truth and is therefore false and likely to deceive or mislead.
The final representation relates to the use by the first respondent of the expression "unique medical equipment". It is pointed out that if this is read to mean unique medical equipment in an unqualified sense, then it is false because the equipment known as the "duplex doppler" is to be found in most radiology practices or vascular diagnostic laboratories to which patients may be referred for testing. However, if it is construed to mean "unique" to impotency clinics, then it is said that the representation is true.
The word "unique" on its ordinary meaning denotes exclusivity and, in my view, it is therefore likely to deceive or mislead if read in a fair and reasonable manner. Although, the statement appears in an advertisement concerning impotency clinics, nevertheless it asserts that these clinics have some equipment which is not otherwise available. There is no qualification nor is there anything in the language used to vary the literal meaning. It would have been a simple matter to qualify the advertisement but, no doubt, this would detract from its efficiency in attracting attention.
Accordingly, the applicant has made out its case that each of the misrepresentations is misleading and deceptive on a fair and reasonable reading.
Respondents' Position
The respondent has adopted a pragmatic approach to this matter which is to be commended and is that there is little point in spending time analysing and resolving the complex scientific medical questions underlying the claims when considering the accuracy or otherwise of the statements where the claims can be amended to accord with the true position. This practical approach is appreciated by the Court. It does not mean that the statements are not misleading or deceptive but the conduct of the respondents in this respect is a matter which I have taken into account in considering the form of relief.
At the outset of the proceedings counsel for the respondents indicated that they would not oppose the injunctions sought with the proviso that the injunction should only restrain them from the specific representations alleged and should not extend to the more general constraint sought in respect of any "promotional material which contains material which is false, misleading or deceptive or likely to mislead or deceive". I think this approach is appropriate and I will make orders restraining the representations referred to in the fourth, seventh and tenth paragraphs of the Statement of Claim as against the relevant respondents but not in the general form sought by the Commission in its Application.
It was submitted that this is not an appropriate case in which to make declarations in relation to the representations but simply to grant injunctive relief. I do not accept this approach. Having found that the representations alleged are misleading or deceptive in the ways indicated above, I think it appropriate to make declarations to that effect.
Leaving aside the question of injunctive relief the other issues raised relate to corrective advertising, the grant of compensation to persons affected by the misleading statements; allowing the applicant's officers access to the records to ensure that any compensation order is complied with, and developing and instituting a trade practices act corporate compliance program.
Corrective Advertising
The purpose of corrective advertising is to protect the public interest. See Makita (Australia) Pty Ltd v Black & Decker (Australasia) Pty Ltd (1990) 12 ATPR 41-030 at 51,477 to 51,478. Corrective advertising is intended to dispel incorrect or false impressions which may have been created as a result of deceptive or misleading conduct. It is not intended to be punitive. In any matter concerning corrective advertising the timing of such corrective advertising is of course important, as was pointed out by Morling J in Hospitals Contribution Fund Australia Pty Ltd v Switzerland Australia Health Fund Pty Ltd (1988) 10 ATPR 40-846 at 49,117. There is no principle that any particular period is appropriate as a point beyond which corrective adverting is not warranted. In the context of advertising it is necessary to examine the nature, extent and intensity of the advertising and the media in which it has been released with a view to deciding whether there could reasonably be any current misapprehension as a result of the advertisements. In the present case, I consider that some limited corrective advertising is warranted and in so doing I take the following matters into account: