Mundine v Layton Taylor Promotions Pty. Ltd.

Federal Court of Australia|1985-11-07|Before: Burchett J

TRADE PRACTICES - Trade Practices Act sections 52, 53(f) advertising - misleading conduct - misleading statements - - discharge of onus of proof that statement of scientific knowledge 1s false - pictorial representations as "statements" - mandatory injunction to publish corrective advertising, power under s.80.

Trade Practices Act, 1974 - sections 52, 53, 80, 80A.

Mundine v Layton Taylor Promotions Pty. Ltd. (1981) 3 ATPR 42909. Given v Pryor (1979) 39 FLR 437.

human beings. In underdeveloped tropical countries they present

The applicant and the respondent are both pharmaceutical companies, each of which markets through pharmacies a non-prescription medication for the treatment of worms. The medications are quite different, but it is not in dispute that each is effective against common threadworm (Enterobius

vermicularis), the type of worm familiar to many parents of very

What led to these proceedings was an advertising campaign conducted by the respondent by means of a video film, a television advertisement, radio advertisements, and a brochure. The video film was distributed to pharmacies (in particular a number of pharmacies in Perth, Adelaide and Sydney, and one in Cairns), being supplied together with additional copies intended to be lent to customers for home viewing. The brochure was also distributed to pharmacies (in particular in the Adelaide metropolitan area). The applicant claims that by each of these means, especially by the video, the respondent has in trade or commerce, engaged in misleading and deceptive conduct proscribed

by s.52 of the Trade Practices Act 1974. The applicant also

alleges breaches of s.53(f) by the making of false and misleading statements concerning the need for goods, being the respondent's

The video commences with a scene, played in the manner of a television soap opera, between a young housewife (Janet) and her mother, in which Janet's stricken plea for help to solive her family crisis over a tearful and bad-tempered son (Brian), who sets her at odds with her husband, is met by a wise motherly assurance that a worm cure from the chemist will make Brian and the family perfectly right again! After this modern advertiser's application of Quintilian's ancient advice that in order to persuade the orator should first entertain, the video announces:

"There are three major types of human infesting worms in Australia - threadworm,

roundworm and hookworm. Of these, threadworms are by far the most common. One in ten people is infested with them at any time. Threadworm eggs are very easily transferred from person to person. They' re' tiny and light. They can be picked up on buses, in playgrounds 'or toilets - bed linen, towels, even furnishings, carpets and pets' fur can harbour eggs. They're light enough to float in the air, and can be inhaled. No matter how clean your home, how careful your rules of hygiene, you and your family can be at risk.

Once eggs are swallowed, they hatch and mature in the stomach. After mating, the male dies and passes out of the body. When the female is ready, she migrates to the anal area where she emerges to lay her sticky eggs. This usually happens at night when it's dark and quiet. It's these eggs that cause the irritating itching that may be one of the symptoms of infestation. Other symptoms are loss of appetite, inability to concentrate. Schoolwork may suffer, tempers flare, particularly at meal times as a child consistently refuses to eat temptingly prepared meals. Meanwhile, quite unknowingly, the child may be spreading eggs to infest others. He scratches at the eggs at night and transfers them to sheets, towels, even door handles, where they're picked up by others and the cycle continues.

Roundworms are less common than threadworms, in Australia, but infestation is on the increase. They occur in tropical areas, and are common in Asia. Immigration and the ease of frequency of travel are causing an increasing incidence here at home. Roundworm eggs are usually ingested from vegetables that haven't been thoroughly washed, or have been washed in unclean water. The eggs hatch in the stomach. The larvae burrow through the intestines, enter the bloodstream, and make their way through the liver to the heart. They then work their way into the lungs and windpipe, where they are coughed up, swallowed again, and mature in the intestine up to 350mm long. At that size, a mature roundworm can cause serious intestinal blockage. Malnutrition is also possible as

the worms claim more and more nutrients from the host body. There may be serious damage to internal tissues as the larvae migrate through the body.

Hookworm is the least common in Australia, but outbreaks do occur, and transfer from person to person is as easy as with the other worms. Hookworm eggs hatch in the soil, and the larvae enter the bloodstream by burrowing through the skin, usually between the toes. They take a similar path through the body, and then hook themselves onto the intestinal walls and feed off the host's blood. They're not large, only up to about 13mm long, but a heavy infestation can cause malnutrition, as the worms claim the nutrients the host should be getting, and again there's the risk of serious tissue damage.

So, worms are a problem. Threadworm is an irritating, annoying, upsetting problem. Roundworm and hookworm can be very dangerous. Worms are a family problem, and a community problem, because they're so easily transmitted. We all have a responsibility to try to minimize worm infestation in our community.

So, how do we go about it? Pfizer Combantrin is the ideal and simple solution. Your Chemist will be happy to supply you with the Combantrin in the dosage that's appropriate to your family and in the form you prefer - sachets of raspberry flavoured granules, tablets, or a liquid suspension.

One dose for every family member knocks out all three types of worm + threadworm, roundworm and hookworm. Combantrin acts very quickly to paralyse the worms completely. Then they're passed safely out of the body. There are other, worm treatments on the market, of course. Most other products act by starving the worms to death. They inhibit glucose intake, and the worms lose the nutrition they need. This is along, slow process, and in the case of roundworm and hookworm requires more than one dose. Meanwhile, round and hookworms may be able to escape the medication by migrating into body tissues and doing yet more damage.

immediately with a single dose. So, before you choose a worm treatment, be sure it's fast, and effective against all three types of worms, and be sure it's safe for all your family. Many treatments can't he given to very young children, and yet you must treat the whole family for the treatment to be effective. Combantrin can he safely given to children from the age of six months. You can treat the whole family safely, quickly, effectively. But even a worm free family can be infested again, of course. So it's important that the whole family be treated regularly. A dose at the beginning of each school term will help to ensure that your family doesn't suffer. What else can you do to minimise the risk?"

There follow a passage advising certain hygienic measures, a repetition of the admonition to have "a regular worm treatment for the whole family", a scene showing the young mother, Janet, passing onto a friend the glad tidings of the curing of worms, and a final plea: "Combantrin, for your

It will be apparent that there are several intertwined themes in the video. The major theme is that there is in Australia a menace to be avoided, which consists of three types of worms, all three of which Combantrin paralyses. While it is said that threadworms "are by far the most common", that roundworms "are less common than threadworms in Australia", and that hookworm "is the least common in Australia", any lessening of concern about roundworms and hookworms which these statements might engender is tempered by many indications that roundworms

and hookworms have a significant prevalence. It is to be noted

that, far from suggesting they are rare, the video makes comparisons, as to the degree to which they are "common", with threadworms, which are so extremely common that one-tenth of the population is infested with them at any time. To say that "roundworms are less common than threadworms" is to speak of roundworms as comparably common, though less so. Furthermore, the video goes on to assert of roundworms that "infestation is on the increase", and to magnify their importance by asserting they are a danger. Similarly, in the case of hookworm, the statement that "hookworm is the least common in Australia" is immediately qualified by the assertion: "But outbreaks do occur, and transfer from person to person is as easy aS with the other worms." The other worms referred to must, of course, be roundworm and threadworm, and the suggestion must be that, although both roundworm and hookworm are less common than threadworm, they share with threadworm the ready spread of contagion which has already been graphically illustrated. In their case, the consequences are to be feared. During the statements about ingestion of roundworm eggs from vegetables, there is shown on the screen a picture, not of an Asian peasant or an aborigine from a settlement in the tropical outback, but of what might be assumed to be an ordinary Australian washing vegetables in a plastic bucket, and during the reference to hookworm larvae burrowing through the skin, usually between the toes, the video shows what could be a suburban backyard or park with an apparently ordinary small suburban child playing in it

barefoot. Almost immediately afterwards there comes the

assertion: "Roundworm and hookworm can be very dangerous. Worms are a family problem, and a community problem, because they're so easily transmitted. We all have a responsibility to try to minimise worm infestation in our community." The screen at this stage depicts, successively, an ordinary-looking family and a crowd of people dressed and appearing like ordinary suburban

In notoriously urbanised Australia, a video distributed in city areas, and bearing no indication whatever that it was intended to be shown in specialised locations only, which contains such a statement, and is illustrated by such visuals, will most naturally be understood as suggesting that roundworm and hookworm are indeed a problem and a danger for the sort of barefoot child and the sort of town-dwelling Australian apparently pictured. During the statement "worms are a problem", the screen shows a representation of three separate worms and, in the context, the assertion that ""they're so easily transmitted"

After thus arousing concern, one might think, and very likely even an emotional reaction if viewed by a young mother, the video goes on to proclaim that the respondent's product, Combantrin, "knocks out all three types of worms ~ threadworm, roundworm and hookworm." The message seems clearly to be that there are three types of worm, which present a family and a

community problem, and that Combantrin is the obvious solution,

since whether a family is infested with any or all of these

types, Combantrin will equally surely solve the problem. Why would anyone use another medication which might leave untouched

an unsuspected type of worm which happened to be present?

But it is this strong selling point of the video which the applicant claims is its fatal weakness under ss.52 and 53 of the Trade Practices Act. For the applicant says that the attractive argument is simply false. The applicant called a number of highly qualified experts, the effect of whose evidence is that neither roundworm nor hookworm has any significance at all for the ordinary Australian family, and furthermore, that the neat juxtaposition of Combantrin with the three types of worm in Australia has simply been produced by a selection of those types against which Combantrin is effective, while other worms at least as significant in Australia as roundworm and hookworm (if these could be regarded as significant) have simply been omitted, being worms which Combantrin is ineffective to treat. To add piquancy to this point, it needs to be realized that whipworm, which is more prevalent in Australia than either roundworm or hookworm,

and is not cured by Combantrin, is cured by the applicant's drug

The central issue of fact in the case is thus whether roundworm and hookworm are of any signficance to the ordinary Australian family. In putting it this way I am accepting the

applicant's submission that it would be quite unreal to consider

the video as concerned with the problems of aboriginal settlements. It is clearly directed to the general populace. As I have indicated, the visual images put that beyond question. So does the distribution of multiple copies to pharmacies in Perth,

lumbricoides) and hookworms (Ancylostoma duodenale and Necator americanus) have not been found to be present, save ina minute proportion of cases, by pathology laboratories in Australia. It has been pointed out in argument, by counsel for the respondent, that in the majority of cases the worms would be harmless, if present, and therefore no testing might be done. This argument sits oddly with the emotive concern displayed by the video, but in any case, I think it misses the point. It can hardly be thought that a higher proportion of the healthy population would be infested than of the unhealthy population which has required medical examination with pathology reporting. I am prepared to accept the opinion of the experts who have been called by the applicant that the evidence of the samples tested does lead to the conclusion that roundworms and hookworms are not a problem in Australia except in certain specific areas of the tropical

The respondent called no evidence, contenting itself with cross-examining the applicant's experts. Where inferences

are open from the evidence, I am assisted in drawing them with

greater confidence by the consideration that a pharmaceutical company which supplies a widely-used medication might be expected to have available to it appropriate expertise to answer the

Much was made in cross-examination of the possibility that migrants from South East Asia, and returning travellers, might introduce roundworms and hookworms into the populated areas of Australia. So far as migrants who might be thought at particular risk are concerned, the evidence indicates that the Australian authorities have in fact drawn the obvious conclusion and routinely treat South East Asian refugees to eliminate any roundworms or hookworms from which they may be suffering. So far as returning travellers are concerned, there is expert evidence that light infestations have occasionally been detected and treated. It needs to be borne in mind that, quite to the contrary of the suggestion in the video that transfer from person to person would be easy, the scientific evidence which I accept shows that neither roundworm nor hookworm could be transferred from a returned traveller to other members of his family, in any part of urban Australia, save under the most exceptional circumstances. For these worms are propagated only after a period during which the eggs are matured (roundworm) or hatched (hookworm) in the soil. This requires defaecation upon the soil, or the spreading of night soil, appropriate soil type, temperature and humidity conditions, and subsequent contact by

the persons who become infested, either by eating contaminated

vegetables, in the case of roundworm, or by walking barefooted upon the soil in the case of hookworn. Both types of worm are endemic in tropical areas, and hookworm eggs will not hatch in

Australian soil south of about Coffs Harbour, even if present, while roundworm eggs, though it is possible for them to mature in southern areas, will do so more slowly (being thus more subject to natural destruction), even if present in an appropriate soil medium. If the returning traveller had picked up hookworm in South East Asia, and came home to a Sydney or Melbourne suburb, his hookworm would probably cause no symptoms, since it requires along period of build-up of infection to become severely infested. His hookworms (if untreated) would die within their natural life span of three to five years without leaving any progeny to continue the infestation or communicate it to anyone else, since hookworms do not breed, as I have said, south of Coffs Harbour and moreover Sydney is sewered and human faecal matter is not common upon the soil. The life of a roundworm is much shorter, a matter of several months, and it is unlikely in the extreme that such a traveller, who had acquired roundworms, would become reinfected or be able to transfer them to any other member of his family. Dr. Prociv, a highly qualified expert, could see no risk of transmission of hookworm or roundworm within an Australian family. It would also be unlikely that the returned traveller would have acquired roundworms or hookworms in the first place, unless he had chosen to live in primitive circumstances in a tropical country, eating a peasant diet, or

going barefoot in contaminated areas, whilst overseas.

The Head of the Medical Parasitology Sub-section in the School of Public Health and Tropical Medicine of the University of Sydney, J.C. Walker, gave evidence of numerous studies undertaken by the Sub-section, and concluded concerning roundworm and hookworm: "We find these infections very rarely amongst people that have travelled overseas." He also said there is no evidence of any increase, and the techniques used would detect it

Not only is it false and misleading to suggest that roundworm and hookworm (which the respondent's Combantrin can cure) are two of three, including threadworm, common types of worm in Australia, and a danger or a health problem not limited to a few special risk groups, but the fact is that two other types of worms (concerning which no claims are made by the respondent for Combantrin) would have to be included in any fair and truthful statement about prevalence of worms presenting a health risk in Australia, if that statement included worms as rare as roundworm or hookworm. These other worms are whipworm

(Trichuris trichiura), which I find on the evidence is considerably more prevalent in Australia than hookworm or

roundworm, and Strongyloides stercoralis (which I shall refer to

by its genus name since it has no common name in Australia, though in America it is sometimes called threadworm) . Strongyloides is probably the most dangerous of the nematode

worms in Australia, and some former prisoners-of-war who spent

time in South East Asian camps still suffer from it. It is also to be found in mental asylums because of its capacity to infect from faeces by mouth. Its victims can also become re-infected, unlike the hosts of most other soil transmitted nematode parasites, by larvae which have hatched and sufficiently matured within the host to be viable without the usual period in the soil. The Australia-wide survey carried out by the Australian Hookworm Campaign in 1919-1924 (which, assisted by modern sanitation, presumably was responsible for the extremely low incidence of hookworm in Australia today) showed .2% of persons examined had Strongyloides infections, exactly the same percentage as for roundworm. If one bears in mind that Dr. Prociv, a highly qualified physician and parasitologist, gave evidence that Strongyloides is even today seriously underdiagnosed because of difficulties of detection of the larvae as compared with the eggs of hookworm and roundworm, and that in general survey evidence could be multiplied by ten to obtain an estimate of actual prevalence, I think it is probable that Strongyloides was considerably more prevalent than roundworm in 1924. Upon the whole of the evidence, I think it probably is

It is simply not possible to regard the message about

three common, though not equally common, types of worms in Australia, which can all be treated by one dose of Combantrin, as

proposition to the effect that it is misleading to speak of "worms" as if there were no other worms in Australia than

nematode worms. For the purposes of this case, tapeworms (cestode

At the stage in the video when a comment is made about "other worm treatments on the market", the applicant's preparation, Vermox, is clearly displayed on the screen, so that there can be no doubt which product is being attacked. The suggestion made is clearly that Vermox is a less desirable product for use by Australians than Combantrin, since it involves arisk that treated roundworms and hookworms may "escape the medication by migrating into body tissues and doing yet more damage." This horrifying warning is made more effective by a representation of a worm breaking through a previously unbroken line suggestive of a worm breaking through an intestinal wail. Of course it follows from what I have already said that the idea of such a risk, which must have the potential to do considerable damage to the market prospects of Vermox, is very misleading. For it builds upon the false suggestion that the ordinary Australian, being treated with Vermox for his threadworm, is at significant risk of having also roundworm and hookworm. Quite apart from this fundamental ground of objection, the implied assertion that Combantrin is safer with both hookworm and roundworm because the use of Vermox may cause these worms to

migrate within the body is, on the evidence, without foundation.

It was submitted by counsel for the respondent that the applicant had failed to prove positively that Vermox would not ever produce a migratory reaction in worms, and that a statement could not be said to be false or misleading within s.52 without such proof, there being no onus on the respondent to prove the truth of the statement. Of course it is correct that the onus is on the applicant, but it seems to me that proof that there is no scientific foundation for a statement in the realm of a_ science

may be sufficient proof that the statement 1s misleading.

This will be so where in its context the statement must be, or is likely to be, taken as implying that there is an adequate foundation in scientific knowledge to enable it to be

made. (Cf. Colgate Palmolive Pty. Ltd. v Rexona Pty. Ltd. (1981)

37 ALR 391). I think the present is such a case. It is not without significance that the statement is made in a video distributed through pharmacies by a pharmaceutical company professing expertise in the area. The video represents its information as available to one who does research in appropriate libraries, and professes to be "presented as a service to the community by Pfizer" (these words are on the cover of the video, which also contains the sub-title "WORMS - KNOWLEDGE AND TREATMENT").

implications of the video is required. In the plainest sense,

the suggestion that hookworms may migrate into a person''s tissues to escape Vermox is established to be false, since the evidence is clear that hookworms do not migrate. So far as roundworms are concerned, the evidence shows that migration through body cavities, such as the bile duct and oesophagus, is a known phenomenon. Iam satisfied on the balance of probabilities, having regard to the opinions of the expert witnesses, that this phenomenon has generally been observed in cases of heavy anfestation (such as occurs, for example, in Kenya - not a single instance in Australia was evidenced), and also that a roundworm is not capable of breaking through a normal intact intestinal wall. Expert witnesses accepted that migration of roundworms might be provoked by certain foods and drugs, but they did not accept the proposition that mebendazole (the chemical ingredient in Vermox) had such a tendency, and Dr. Prociv gave evidence, the effect of which was that he had never heard it seriously suggested by any parasitologist that mebendazole might engender migration, though he had heard of a general view that anthelmintic treatment (that is anti-worm treatment) could have this effect, but did not know of any actual case having been

I accept this evidence. Having regard to the failure of the respondent, not only to tender any evidence in answer to Dr. Prociv's evidence, but also even to demonstrate in cross-examination of him from the scientific literature the

existence of a single recorded instance, I conclude that there is

no scientific foundation for the suggestion that mebendazole, as distinct from pyrantel (the chemical in Combantrin), may engender migration of roundworm. Indeed the evidence, so far as it bears on such a comparison, is to the opposite effect. Dr. Prociv pointed out that the action of pyrantel causes the worm to go into a spasm, and he said it can become agitated, so that, theoretically, pyrantel could cause worms to migrate, though he had not heard of an example of pyrantel actually causing this

There are other statements in the video which the evidence shows to be incorrect. It is stated, for example, that "there may be serious damage to internal tissues as the larvae (i.e. of roundworm) migrate through the body." Dr. Bagshawe, speaking from experience as a specialist physician in Nairobi, Kenya, where well over half the population suffered some infection with gastro-intestinal worms, said that light infections very rarely cause symptoms, and she had never seen or heard of a heavy infestation of roundworm or hookworm in the average Australian community. She had never experienced, in nineteen years of medical practice in Kenya, any case where she was satisfied that the passage of roundworm larvae had caused symptoms, and she pointed out that the larvae are microscopic. She agreed that they can cause symptoms, which she thought would most likely be due to an allergic reaction to their presence and

In any case, for ordinary Australians the suggestion

that Combantrin would offer any protection against damage from roundworm larvae seems to me to be clearly wrong. The ordinary

Australian will not become infected with the larvae in Australia, and if he travels abroad and becomes infected there, the Combantrin will probably only be effective against the adult roundworm upon its development. The evidence suggests that Combantrin is not effective against larvae in the bloodstream, and indeed its anthelmintic action relies upon the fact that it is not absorbed outside the gastro-intestinal tract, save to a

The video admonishes people to have "a regular worm treatment for the whole family". It does not say "a regular threadworm treatment", despite the rarity of the two other worms

it mentions. Of course, few people would fear threadworm

sufficiently to have regular treatment against the possibility of getting it, since it is normally symptomless and never serious.

In any case, all the experts, who gave evidence upon this aspect,

agreed that it is not only unnecessary, but also unwise, to have

such treatment, unless there is evidence that a family member is in fact infected, or the particular medical history inmakes

Turning to the radio and television advertisements, of which complaint is also made, these are built upon the themes (a)

that "one in ten of us have got worms", or as a variant, "there's

about a one in ten chance that you've got worms"; and (b) that "there are three common types of worms, worms, worms, and Combantrin gets rid of the lot ina single dose". It will be apparent that the true prevalence of the relatively harmless threadworm is associated in the advertisements with two other unnamed worms, which are unqualifiedly said to be common, and the product is, as in the video, promoted as having the virtue of effectiveness against all three common worms. I have already found that promotion on that basis is misleading, since only threadworm is relevantly common. It would, of course, be even more so for radio listeners or television viewers who had also seen the video, and were now very plainly told what it had more subtly suggested, that the roundworm and hookworm it described as dangerous were also so common that one could speak of three common types of worms. When multi-media advertising is employed,

In any case, I have found on the evidence that whipworm is more common in Australia than either roundworm or hookworm, and Combantrin does not cure whipworm. It follows that the claim

The brochure has on its cover "Pfizer Pharmacy Reference

" COMBANTRIN ONE DOSE TREATMENT FOR 3 TYPES OF WORMS

Effective Against: Threadworm, roundworm, hookworm. Action: Paralyses worm rapidly -

no migration problems. (Migration problems can be experienced when other worming treatments are used. This means that the worms may invade internal tissue and cause serious damage to the body's organs.)

It is estimated that 1 person in 10 has worms.
Worms can be caught by anyone - they are

very easily transmitted through contact either directly with infected people, or through touching a surface such as a door handle, pencil, linen, furnishings, pets etc. that has been touched by an infected person. In fact threadworm can be picked up by simply breathing in eggs which may be floating in the air."

There follow: an assertion that "worms are very easily transmitted" (in the context, which also contains a specific reference to threadworm, this is clearly a general statement), that the family should be treated on return of any member from a trip overseas because "the risk of hook and roundworm infection is increased" (implying such a risk exists, to be increased), and a section headed "WHY RECOMMEND COMBANTRIN" which refers to Combantrin as "effective against threadworm, roundworm and

hookworm in a single dose", and contrasts it with Vermox:

Although the brochure does not assert in terms that roundworm and hookworm are "common" in Australia, it does (by its emphasis on the importance of Combantrin's effectiveness against three types of worms, its reference to migration problems which can only refer to roundworm, and references to the risk of infection in terms which, in the context, include roundworm and hookworm) strongly suggest that they are relevant, and at least somewhat prevalent, in the areas of the pharmacies to which the brochure is sent. The reference to Vermox, which is actually effective against the very three types of worm referred to, as well as whipworm, is clumsily misleading. Counsel for the Respondent sought to excuse it as merely ambiguous, but ambiguity is not infrequently an especially effective tool of deception. In this case, of course, the emphasis on the word "only" in the condemnation of Vermox, '"Threadworms only ina single dose", serves not merely to denigrate a competitor, but also subtly to reinforce the message that the other worms, which Combantrin

The brochure goes on to make a further disparaging comparison between a feature asserted of Combantrin ("Rapid action paralyses worms - no migration problems"), and a feature asserted of Vermox ("Slow death by glucose inhibition. Possible migration problems"). Evidence which shows this comparison to he misleading has already been discussed in relation to the video. To that discussion, it may be added that "glucose inhibition" is,

on the evidence, an oversimplification of the bio-chemical

JY 22. Aeffects of mebendazole. 1f, in a video for general viewing, this is excusable, it is less so ina booklet bearing the title "Pharmacy Reference Manual". In that context, the oversimplification seems to be intended to assist the spurious

I conclude that by the video, the radio advertisements referring to "three common types of worms", the television advertisement, and the brochure, and each of them, the Respondent has, in trade or commerce, engaged in misleading and deceptive conduct within the meaning of s.52 of the Trade Practices Act. It has also, within the meaning of s.53, in trade or commerce, in connexion with the supply and possible supply of goods, and in connexion with the promotion by each of the means mentioned of the supply and use of goods, made false and misleading statements concerning the need for goods, the goods being its medication

Insofar as the video involves pictorial representations,

I refer to what Franki J said in Given v Pryor (1979) 39 F.L.R.

"Looking at the question in a broad way it is difficult to see why pictorial material should not form part of a statement. It seems to me a statement may be in any language, including one made by signs that are known and understood by those deaf and dumb people who use them, and one written in shorthand. In the same way I cannot see why pictorial or diagrammatical material should not be included in the statement."

In the present case, the depictions upon the screen, to which I have referred, simply provided a setting in the context of which the words received sharper focus and clearer application. Nevertheless, the words remained, though understood

in that setting , the true medium of the statement.

The Applicant does not ask for damages. It seeks injunctive relief, both restraining the Respondent from continuance of the conduct in question, and also requiring it to take some steps to correct the misinformation it has

There i3 plainly a strong case for appropriate relief. The Respondent's product has been promoted through advertising which made a meretricious appeal to medical science to Justify exciting the fears and emotions of parents by seriously misleading statements. While parental feelings thus aroused were exploited for gain, a competitor's product was in the process misleadingly denigrated.In my view, relief should be granted, which should include, if the Court's power extends so far, a

mandatory order to correct the misinformation purveyed.

But does the Court have power, in addition to restraining the continuance of the conduct and the making of the

statements, to make a mandatory order requiring publication of

corrective advertisements? In Mundine v Layton Taylor Promotions

Pty. Ltd. (1981) 3 ATPR 42909, Ellicott J expressed doubt whether

the Act, as it then stood, empowered the granting of relief of this kind in an application not made by the Minister or the Commission. The problem was that s.80 then authorised the making of orders of carefully defined types, which did not include corrective advertising, while s.80A specifically empowered the Court to order corrective advertising "on the application of the Minister or the Commission", and subject to a cost ceiling of $50,000. Where the power was expressly conferred, but confined in these ways, it would have been difficult to read the then limited powers in s.80, or even the general powers in s.87, as authorising similar orders on the application of other persons

But by the Statute Law (Miscellaneous Provisions) Act (No. 1) 1983, s.80(1) was amended to confer upon the Court, in cases such as the present , a wide power to "grant an injunction in such terms as the Court determines to be appropriate", and at the same time s.80A(1) was amended by the insertion as its commencement of the words "Without limiting the generality of s.80 ...". In the light of these amendments, I conclude that the power, the existence of which having regard to the sections as they formerly stood Ellicott J doubted but did not finally deny,

does now inhere in the Court under the Act in its present form.

Upon appropriate short minutes being brought in, I shall

make orders -to the effect of the orders sought in paragraphs

4,5,6,7,8,and 9 of the Amended Application, but further amended

to conform to this judgment, and I shall make an order for

I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett.

Date Order Made: 19 November 1985 Where Made: Sydney

The Respondent by itself its servants and agents be

restrained from publishing or disseminating the video recording entitled "Worms - Knowledge & Treatment" ("the

Reference Manual" ("the manual") and from causing or permitting to be broadcast the television advertisement

made on behalf of the Respondent in relation to its

product "Combantrin" ("the television advertisement") and such of the radio advertisements broadcast on behalf

of the Respondent as suggest expressly or by implication

that there are three common human-infesting gastro-intestinal nematode worms in Australia ("the

The Respondent forthwith cause such steps to be taken as may be necessary to recall and procure to be redelivered

to the Respondent all copies of the video and so far as may be in its power the manual which have been published

and disseminated by the Respondent within Australia and

to prevent the future broadcast of the television advertisement and the radio advertisements.

The Respondent forthwith cause to be destroyed all copies of the video and the manual in its possession

save for two (2) copies of the video and five (5) copies of the manual which it may keep for its own record purposes only, and forthwith upon recall of any video or manual previously disseminated cause such video or manual to be destroyed, destruction in respect of the video for the purposes of this order to include the wiping by magnetic means of the material recorded on the cassette tape forming part of the video.

The Respondent by itself its servants and agents be restrained from without the prior leave of the Court Publishing or making by any medium any of the representations or any representations which are

substantially the same as the representations set out in the Schedule to the Amended Application. Where a

representation in the Schedule is expressed in the alternative this order refers to each of the alternative versions of the representation.

The Respondent forthwith inform the applicant by affidavit of all persons to whom the Respondent is aware after all reasonable enquiry that it has delivered or caused to be delivered a copy of the video or the manual or either of them.

The Respondent forthwith cause to he published prominently in "Pharmacy Trade" and "Australian Journal of Pharmacy" an announcement in the following terms:-

The Federal Court of Australia has ruled that Pfizer Pty. Limited in its recent advertising and promotion of Combantrin has engaged in conduct that is misleading or deceptive in that it has made statements or representations including the following:

(i) That there are only three types of human-infesting gastro-intestinal nematode worms in Australia - i.e. threadworm, roundworm and hookworm

whereas in fact, there are at least five such types of worms - i.e. threadworm, roundworn, hookworn, whipworm and Strongyloides stercoralis.

(ii) That threadworm, roundworm and hookworm are common in Australia whereas only threadworm is common

Pfizer Pty. Limited will forthwith be ceasing and withdrawing any and all such advertising and promotional material, including a manual entitied "Pfizer Pharmacy Reference Manual", a television advertisement, a number of radio advertisements and a recently

released pharmacy/consumer video. Pfizer Pty. Limited requests pharmacists to cease further distribution and use of such promotional material pending its collection by a Pfizer Pty. Limited representative."

as well as cause to be published prominently in a national daily newspaper an announcement in the following form:-

The Federal Court has ruled that Plizer Pty. Limited in its recent advertising and promotion of Combantrin has engaged in conduct that 1s misleading or deceptive in that it has made statements or representations including the following:

(i) That there are only three types of human-infesting gastro-intestinal nematode worms in Australia - i.e. threadworm, roundworm and hookworm, - whereas in fact, there are at least five such types of worms - i.e. threadworm, roundworm, hookworm, whipworm and Strongyloides stercoralis.

(1i) That threadworm, roundworm and hookworm are common in Australia

The Respondent pay the Applicant's costs of these proceedings.

Liberty to apply on 21 days notice in the event of a change of circumstances.

The orders made 1n paragraphs 5 and 6 hereof be stayed for 14 days from 19th November 1985.

The operation of the order made in paragraph 4 hereof be suspended until 19th December, 1985, insofar as any representations set out on the sachet dispensers exhibited to the affidavit of Kenneth James Moran sworn on 16 November, 1985, and filed in these proceedings, and marked with the letters "KJM-1" and "KIM-2" respectively are concerned.

Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

At a glance

Court

Decision date

Before

Source

Judgment (151 paragraphs)

Parties

Cases Cited (2)

Cited By (1)