Mutual Home Loans Fund Of Australia Ltd v Attorney-General

Mutual Home Loans Fund Of Australia Ltd v Attorney-General - [1973] HCA 61 - HCA 1973 case summary — Zoe

[20]

The proposition submitted by the Attorney-General is largely founded on a decision of a Divisional Court in England, Earp v. Roberts [1] . There Goddard L.C.J., with the concurrence of Lewis J., without affording any reason therefor other than the statement that a contrary decision would frustrate the intention of the legislature, held that all the material supplied in response to a request, the making of which was invited by an advertisement, was itself advertised so as to infringe a prohibition on advertising information of the nature of that contained in the supplied material. I am unable to accept this conclusion as a general proposition; and in particular as correct in relation to the statutory provisions with which we are here concerned. The statute requires the published advertisement to make or to call attention to an offer or invitation of a particular kind. If no indication is given in the published material of the nature of the information to be supplied, I cannot regard the supplied information as part of the advertisement for the purposes of the section in this case. To advertise that if a request is made information to the advantage of the enquirer will be given, is not in my opinion as a general proposition to publish in that advertisement what the advertiser might be minded to vouchsafe to the optimistic inquisitor. No doubt such a course is a method of bringing what is supplied to the notice of the enquirer. It may even be regarded in an appropriate context as a means of bringing the facts contained in the supplied material to the notice of the public. But that is not, in my opinion, to publish an advertisement containing that material within the meaning of the section. It must be remembered that the offence is to publish or disseminate an advertisement. The offence is not to advertise. It is not satisfied by any method of bringing an offer or invitation to public attention. The offer or invitation or the reference to it is to be found in the published advertisement.

[68]

The two advertisements published in the newspapers dilated upon the advantages to members of the public of joining the Mutual Home Loans Fund, a fund created to enable loans for housing purposes to be made to its members at a low rate of interest. It could have been inferred from statements in the advertisements, and more clearly from those in the second advertisement, that membership of the Fund meant membership of the company, the Mutual Home Loans Fund of Australia Ltd. (the first appellant). Each advertisement spoke of "Your opportunity to join a Home Loans Fund" and went on to suggest that a reader with "housing finance problems" should forward to the second appellant, which was referred to in the advertisement as "the option holder of the Mutual Home Loans Fund of Australia Ltd.", a coupon contained within the advertisement. The coupon simply said "Please send details of available finance". It appeared from the evidence that in response to a coupon extracted from each advertisement and posted to the second appellant there were sent documents from which it appeared that a person interested could apply to the second appellant for options for ordinary shares in the first appellant, and a form of application was in fact included amongst the documents for use for this purpose. It further appeared from the documents that the purchaser of an option had "the legal right to take up one share in" the first appellant and the right to take part in ballots for housing loans. Although the documents did not so state, in fact the appellants were parties to a deed executed on 28th March 1968, whereby the first appellant granted to the second appellant options over its unissued ordinary shares and gave to the second appellant the right to grant those options to other persons. The second appellant was not bound to accept an application by a person who wished to be granted an option, but after an application was accepted the option holder, or "nominee" as he was called, was entitled to request the first appellant to allot him the requisite number of shares, and the first appellant was required by the deed to do so, if the nominee had complied with the conditions set out in the deed.

[71]

The question then is whether the advertisements published in the newspapers called attention to this offer, I incline to the view that if those advertisements were to be considered without reference to the further documents sent in response to the coupons, this question should be answered in the negative. It is true that each advertisement endeavoured to encourage members of the public to become members of the Fund and, by inference, to acquire shares in the company, but neither advertisement itself suggested any particular manner in which the shares might be acquired or expressly referred to any offer to sell or to allot the shares. However, in the view that I take it is unnecessary to decide whether either advertisement, considered in isolation, would have fallen within the terms of s. 40 (1). In my opinion, when an advertisement informs the reader that, on request made in a particular way, he will be sent further information, it is proper to have regard to any document sent in response to a request made in that way for the purpose of deciding whether or not the advertisement calls attention to a specific matter. In such a case the advertisement calls the attention of a person who receives the additional document to the matters stated in it, just as effectively as if those matters were set out in the advertisement itself. The question raised by the words of s. 40 (1) is not what the advertisement contains but to what does it call attention. The advertisements in the present case called attention to an offer of shares to the public for subscription, not by expressly referring to that offer, but by stating that on request the reader would be given further information which, when supplied, in fact referred to the offer. It is true that the advertisement may not have called the attention of every reader to the offer but it did in this way call the attention of some readers to it, although it did so not directly but by reference. Put in another way, in deciding whether the advertisement called attention to an offer of shares, it is right to read the advertisement together with any other documents which were furnished as a result of a request which the advertisement itself suggested should be made.

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Judgment (89 paragraphs)

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