4. The video, Exhibit A, was filmed in April 1991 and its existence first came to the attention of Hoover in late May 1991. A copy was obtained by Hoover on 10 July 1991 and the present proceeding was instituted on 1 August 1991.

5. By its Amended Application filed 22 August 1991, Hoover seeks injunctive relief, orders under s. 87 and damages in respect of alleged contravention by Email of s. 52 of the Trade Practices Act 1974 ("the TP Act"). The present hearing has been conducted to ascertain liability and whether any relief of an injunctive character should be granted. Any quantification of damages will stand over.

6. The expression "walk" in relation to washing machines is understood by manufacturers (and, I infer, retailers) to describe an undesirable movement by machines during the drying or spin cycle. The machines "walk" in the sense of moving across the floor in a counter clockwise direction. They will not move in this fashion if attached to the floor or wall by a sufficiently strong restraining means.

7. Email now uses what it describes as the "top suspend system" for its machines. The washing machine bowl is suspended on four rods which are connected to the top corners of the cabinet and the suspension system acts something like a shock absorber. Both the Simpson Aquarius and the Elite 1200 shown in Exhibit A are classified as large machines. The Aquarius has the top suspend system but the Elite 1200 is described as a pedestal model and thus uses older technology.

8. One of Hoover's expert witnesses, Mr P. Le Vavasseure, accepted in cross-examination that machines with the newer system were less likely to vibrate and "walk" than the pedestal models. But he said Hoover was not aware of consumer dissatisfaction with any "walking" by the Elite 1200. He was not challenged on that assertion. The gravamen of the complaint by Hoover is that the Elite 1200 has been denigrated by an exaggerated comparison in Exhibit A between it and the Simpson Aquarius.

9. Email commenced its planning for the preparation of the video in about December 1990, and it briefed its advertising house to stress the benefits of the "top suspend system". The proposal by the advertising house, dated 15 March 1991, urged a direct comparison test of all pertinent aspects of three competitive machines, so as to prove to the trade that without question the Simpson product was the superior one. This approach was suggested as a response to the apprehended perception by Email that the trade and therefore customers saw the Simpson appliances as of inferior quality to other machines. The report states that "an aggressive approach is recommended in an attempt to settle the matter once and for all".

10. During the display of Exhibit A, a visual and aural comparison is made between the Simpson machine, the Hoover machine and a third machine which is described as "an imported 50s style American machine, the likes of which we are seeing on Australian shop floors these days".

11. The video runs for approximately 15 minutes. The viewer is shown over the Simpson plant in Adelaide and, at the outset, it is stressed that Simpson washing machines "are technologically superior and built better from the ground up". Reference is made, aurally and visually, to what is described as an "American import". It is said that the cabinet of the Simpson products are of a better construction, that the motor is more compact, more efficient and less power hungry "than that used in pedestal style machines", that Simpson washers are quieter through the use of an improved gearing system, that the brake lever body is of superior design, and that the wash bowl housing is made from a polypropylene substance ("Duratub") which "will last a lifetime]".

12. At this stage, after approximately one third of the running time of the video, there occurs the treatment of the top suspend system. This lasts for about 5 minutes. It is in the course of this that there occurs what Hoover describes as the denigration of its product.

13. The introductory passage of the narration is as follows:

"All Simpson washers now incorporate the famous TSS Top Suspend

System, including our large capacity Aquarius machines.

With the cabinet as a rigid structure, the works assembly is

suspended from the top edge of the cabinet. Spring loaded rods

connect the top of the cabinet to the bottom of the bowl. The whole

assembly acts like a pendulum, isolating any out of balance forces

from the cabinet.

Coupled with the unique Simpson fluid-filled Balance Control Ring at

the top of the bowl, this system has virtually revolutionised the

domestic washing machine by eliminating excessive noise, vibration

and the infamous 'dance of the washing machine', when out of balance

loads occur."

14. It is said that should an out of balance load occur in a Simpson washing machine, the lack of balance is compensated for by the movement of the Balance Control Ring to the opposite side. The viewer is then shown 3 washing machines, and there follows a demonstration commencing with the Simpson machine, then the Hoover machine, then the imported machine. The viewer sees, and the narration describes, the placing inside the wash bowl of the machines of what is said and shown to be a 2 kg weight contained in a small sack or package. In fact, though this is not disclosed, the weight comprised lead shot. The machines are shown in operation. In each case there is accompanying but different music. The Simpson machine remains stable, but the Hoover machine is shown to "walk" quite quickly in a counter clockwise direction of about 90 degree. The third machine is shown as having the same characteristic.

15. The relevant portion from the script is as follows:

"Let's see what happens when we put each of these machines in an out

of balance situation, during the spin cycle. This is more likely to

occur with smaller washloads than larger.

On the left is a large capacity Simpson Aquarius . . . in the centre

another Australian made machine, and on the right, an imported 50s

style American machine, the likes of which we are seeing on

Australian shop floors these days.

We have placed a 2 kilogram weight inside the washbowl of each

machine. This would equate to a couple of towels, a few shirts and

pillow cases and we're now about to run them through them through

the spin cycle.

We'll start with the Simpson Aquarius.

(MUSIC UP: NICE PEACEFUL SELECTION)

Now the other Australian make.

(MUSIC UP: ROCK 'N ROLL)

And now the American import.

(MUSIC UP: 'BYE BYE MISS AMERICAN PIE')

(MUSIC UP: MUSIC CHANGES ACCORDING TO WHICH MACHINE WE ARE LOOKING AT)"

Hoover complains particularly of the passage I have emphasised, for reasons I will state later.

16. In the proposal from the advertising house of 15 March 1991, it was suggested that wherever possible "we should . . . 'shock' our audience with comparison tests that they would never have thought could ever be done". The segment of the video which I have described does not supply to the viewer a "shock" in any fair sense of that term. However, it is true to say that the visual and aural comparison between the three machines is a striking and significant element in the video, taken as a whole. The image of quiet stability which is provided by the depiction of the Simpson machine is contrasted with the impression of the other two machines as erratic and dysfunctional. The fostering of this impression is assisted by the use of music, the depiction of the "walking" Hoover machine being accompanied by rock 'n roll music, whereas the Simpson Aquarius appears with the soothing sounds of the barcarolle from "The Tales of Hoffmann".

17. The video continues with a further examination of the Balance Control Ring. There is a visual demonstration of its operation after the 2 kg weight has been added. It is said,

"Notice that while the washbowl is vibrating, this is not being

transferred to the cabinet, as was the case with the other machines]

Less vibration, less noise, less wear and tear."

Whilst the words which I have emphasised are being spoken, the viewer is shown again the Hoover machine in "walking" mode. Other alleged advantages are then depicted. The lid of the Simpson machine is said to be very easy to clean, the control panel easy to read, and what is described as a "Suds Save" programme is said to save water, detergent and energy (and therefore costs) and to be "a feature that is kind to the environment". Stress is placed upon the efficiency of the Simpson after sales service. The imported machine is shown again whilst the viewer is asked to consider the absence of an after sales service network to deal with such problems as corrosion, in an imported machine.

18. The video concludes with a statement which attempts to draw together and stress the particular points made earlier. The advantages are spelled out one by one by the narrator, with accompanying visual images, some of which display the printed word. The portion of the script in question is as follows:

"Simpson washing machines have:

* Stronger cabinets

* A compact more efficient motor

* High precision gear box

* Less moving parts for less wear out and greater reliability

* Duratub and rigid lock Seamed Stainless Steel washbowls

* The revolutionary TSS Top Suspend System and fluid-filled

balance control ring

* Tough high impact resistant polymer lid

* Clear, easy to read, easy to use controls

* Automatic or selectable suds save, and

* A back up service and spare parts network right around

Australia

SIMPSON WASHING MACHINES.

STRONGER. SMARTER."

19. Evidence was given of the causes of excessive vibration and "walking" of washing machines. In short, they are the result of the operation of the centrifugal forces which are induced on the vertical wall of the spin bowl when a mass of clothes is unevenly distributed around the agitator. Before the preparation for this trial, Hoover had not previously performed out of balance tests on its washing machine using any type of lead weight. The mass and density of the lead differs from the mass and density of cloth saturated with water. In particular, lead shot has a specific gravity 7 times greater than that of most saturated clothing. For its tests, Hoover had used solid rubber weights which have a specific gravity close to that of wet clothing. The difference in the specific gravities and the placement of the lead shot on one side of the base of the bowl contributed to the excessive vibration and "walking" of the Hoover machine, as shown in Exhibit A.

20. Email, by an open offer, proposed to make an alteration to copies of the video which are still within its possession, custody or control. The proposal was to delete from the soundtrack "This would equate to a couple of towels, a few shirts and pillow cases . . ." and to insert:

"Tests conducted with a load comprising three pairs of men's wet

jeans exhibit similar behaviour when spun."

21. This change was propounded by Email as reflecting an experiment conducted by it in preparation for this trial, a video tape of which is Exhibit 4. The test used a Hoover machine and three pairs of wet denim jeans were spread around an arc of about one half to two thirds the circumference of the base of the bowl. The weight of the jeans before spinning commenced was 5.3 kgs; as water was extracted the weight was reduced to 3.9 kgs. The machine was spun for about 1 minute 20 seconds. There was some vibration after 10 seconds, but the machine did not become unstable until after about 1 minute, and it "walked" about 10 - 20 degrees significantly less than what is to be seen in Exhibit A. The precise degree of the movement does not appear from the evidence and is a matter of observation. Before the filming of the video, Exhibit 4, the employees of Email who were conducting the test, carried out about half a dozen operations placing the three jeans in different positions in the bowl. In cases where the jeans were distributed in a wider arc around the wash bowl, there was not created the instability to the degree of that depicted in Exhibit 4. In some cases, the spinning of the machine brought into operation the "trip" mechanism which stopped the spinning, and thereby prevented any "walking".

22. The trip mechanism is included in the Hoover machines (and other washing machines) as a safety device. It operates when the load in the machine is too large for the successful operation of the spin cycle. If the bowl moves in too large an arc, it hits a lever which operates the micro switch on the trip mechanism.

23. The terms of the relief sought by Hoover have fluctuated in the course of this litigation. In address, counsel for Hoover sought an order for corrective advertising, under s. 87 of the TP Act, an order for delivery up of copies of Exhibit A, an order that Email disclose the names of all persons to whom Email published Exhibit A, and injunctive relief under s. 80 of the TP Act.

24. At the trial, Hoover did not seek to make out a case that a Hoover Elite 1200 washing machine would not behave or would not be likely to behave in the manner depicted in Exhibit A if a 2 kg weight of lead shot or some other substance of the same specific gravity was placed in it in the manner shown in Exhibit A. Hoover complains that the representation made by the combination of words, sights and sounds comprised in the video was that the Hoover Elite 1200 machine would react by "walking" in the manner shown if it contained an unbalanced load of washing, something stated in the video as more likely to occur with smaller wash loads than larger wash loads. In particular, Hoover objects to the voice-over in Exhibit A stating, whilst the viewer observes the placing of the 2 kg weight inside the wash bowl, that this weight "would equate to a couple of towels, a few shirts and pillow cases".

25. Hoover submits that whilst it is true that the Hoover Elite 1200 machines, as pedestal models, are more likely to excessively vibrate and "walk" than machines with the "Top Suspension System" (as is illustrated by the particular occurrence recorded in Exhibit 4) nevertheless the comparison with the lead shot, as shown in Exhibit A, conveys a representation which is misleading or deceptive. This is because what is there shown is falsely suggested to the viewer to be illustrative of what occurs when the Hoover machine contains an "out of balance" load of washing; the submission is that what is out of the ordinary is portrayed as being the ordinary course of events.

26. Counsel for Email stresses that the audience to which Exhibit A is directed is not consumers at large, but a trade audience comprising a restricted, informed and commercially involved class of persons. He also submits that the portrayal in Exhibit A of the operation of the Hoover machine is a literally correct portrayal of what occurred, and that, in truth, the Hoover machine does display a tendency to vibrate and walk, characteristics which are not said to be possessed by the Simpson machine.

27. There is no real dispute between counsel as to the principles applicable to this case, in the interpretation of s. 52.

28. In the circumstances of the particular case, a "half truth" may be misleading or deceptive: Henjo Investments Pty Ltd v Collins Marrickville Pty Limited [1988] FCA 40; (1988) 79 ALR 83 at 95. A comparison between goods or services may be rendered misleading by the omission of material that would be necessary to render the comparison fair: Collier Constructions Pty Ltd v Foskett Pty Ltd (1990) 97 ALR 460 at 479, affd (1991) ATPR (Digest) 46-071. In Duracell Australia Pty Limited v Union Carbide Australia Limited (1988) ATPR 40-918 at 49,861, Burchett J. said that an inaccurate statement or an ambiguously qualified statement may often be found to be misleading. His Honour continued:

"In the area of comparison advertising, it has repeatedly been said

that particular care is required. An unfair comparison may, quite

simply, because it is unfair, be misleading. It may mislead a

consumer into thinking there is a basis for a choice where, in

truth, there is not; or that a choice may be made on grounds which

are not truly valid . . ."

29. On the other hand, the public, and, one would infer, the retail staff to whom Exhibit A is directed, are accustomed to the puffing of products in advertising. That may be expected to occur at "trade nights" and "training sessions", and at other attendances upon the staff of retailers by the sales forces of manufacturers. Thus some care is needed to avoid an insistence by the law upon distinctions that are too fine and precise: Stuart Alexander and Co. (Interstate) Pty Ltd v Blenders Pty Ltd [1981] FCA 152; (1981) 53 FLR 307 at 311; Narhex Australia Pty Ltd v Sunspot Products Pty Limited [1990] FCA 232; (1990) ATPR 41-036 at 51,538.

30. Counsel for Email complained that there had been a failure by Hoover to indicate squarely the respects in which the publication of Exhibit A was the engagement in conduct that was misleading or deceptive, particularly having regard to the literal accuracy of what was portrayed in the visual comparison between the three washing machines shown in Exhibit A. There has been a change in the position adopted by Hoover in the course of the litigation. The position finally taken appears in the formulation of the injunctions as sought by counsel for Hoover in address at the trial.

31. Injunctive relief is sought against Email representing, in trade or commerce:

"(a) that the movements and vibration of the Hoover Elite 1200

Series washing machine and the Simpson Aquarius washing

machine during the spin cycle if loaded with an out of

balance load of -

(i) a couple of towels, a few shirts and pillowcases; or

(ii) washing, could be judged by observing their behaviour

during the spin cycle when the two kilogram weight depicted

in the video which is Exhibit 'A' was placed inside their

wash bowls;

(b) that the two kilogram weight depicted in the video Exhibit

'A' equated to a couple of towels, a few shirts and

pillowcases;

(c) that a Hoover Elite 1200 Series washing machine behaves, or

was likely to behave, or could be expected to behave, in the

manner depicted in the video Exhibit 'A', if it contained an

out of balance load of washing during the spin cycle;

(d) that the comparative levels of movement and vibration of the

Simpson Aquarius washing machine and the Hoover Elite 1200

Series washing machine, if they contained an out of balance

load of washing during the spin cycle, was as depicted in

the video which is Exhibit 'A'."

32. I accept the submission for Hoover that, viewed and heard as a whole, the video, Exhibit A, contains representations to the effect of those spelled out above in paras. (a), (b), (c) and (d). It follows, in my view, that to supply or operate the video, in trade or commerce, is to engage in conduct that is misleading or deceptive within the meaning of s. 52 of the TP Act. The audience for whom the video was devised, the sales staff of retailers of washing machines, rather than customers and prospective customers of those retailers, is to be considered as likely to be better informed as to the details of comparative performances of competing washing machines than customers, or prospective customers, taken as a class from the community at large. But the sales staff are not to have attributed to them the knowledge of physics of several of the deponents of affidavits in this case. They are not likely to think too closely as to the reasons why the use of a 2 kg weight in one machine provides an unsafe method of comparison between the ordinary operations of competing washing machines. And it is not disclosed in the video that the weight used was lead shot.

33. As I have indicated, Exhibit A was devised with a view to the comparison test making a strong impression upon the viewer and that segment is a striking and significant element in the video, taken as a whole. The Hoover machine appears not only during the direct visual comparison, side by side with the other machines, but also later, by itself, when there is further discussion of the balance control ring. The superiority of the top suspend system and the balance control ring is stressed again in the concluding passage of the video.

34. There remains the question of relief, excluding at this stage any recovery of damages under s. 82.

35. In my view, Hoover has made out its case to injunctive relief in the terms of paras. (a), (b), (c) and (d) set out earlier in these reasons. There should also be an injunction restraining Email from publishing or otherwise disseminating in trade or commerce the advertisement, a copy of which is Exhibit A. What is to be done with those further copies of Exhibit A which remain in the possession or control of Email?

36. Counsel for Hoover submitted that an order for delivery up of those copies would prevent or reduce the loss or damage suffered or likely to be suffered by Hoover and that therefore such an order might be made under sub-s. 87 (1A). It was suggested that if this were not done, it would be left for Email, at the risk of proceedings of contempt of the injunctive orders, to attempt to edit Exhibit A in such fashion to remove visual and aural material, the presence of which had given rise to the present proceeding. On the other hand, no doubt with skilled advice, it may be possible to edit Exhibit A in such fashion as to remove any proper cause for complaint. That is a subject upon which I express no conclusion. However, this is a sufficiently substantial possibility to incline the Court against making an order for delivery up of the remaining copies of the video.

37. Hoover also sought an order for corrective advertising, as a form of mandatory injunction available under s. 80, the applicant not being one of the classes of persons who may apply under the specific provisions of s. 80A: Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd (1986) ATPR 40-654; Makita (Australia) Pty Limited v Black and Decker (Australasia) Pty Limited [1990] FCA 166; (1990) ATPR 41-030. The power to order corrective advertising is not to be used as a means of visiting punishment upon a respondent.

38. In the lastmentioned case (at 51,477) Wilcox J. said:

"The question, in any given case, will always be whether this is an

appropriate course to take having regard to the nature and likely

effect of the advertisement and of the proposed corrective

advertising. The time which has elapsed since the publication of

the misleading advertisement will usually be a relevant matter."

Further, as his Honour also indicated (at 51,478) the requirement for corrective advertising should not be disproportionate to the extent of the publication of the misleading material.

39. It is here that difficulty arises in the present case. Apart from some limited examination of Mrs Stoddard, the Simpson Advertising and Sales Promotion Manager (who said she did not know how many copies of Exhibit A had been left with retailers), no real effort has been made by Hoover to elicit on discovery or production of documents on subpoena, evidence which would lay the ground for the making in this case of an order for corrective advertising. As I have said, the existence of the video, Exhibit A, first came to the attention of Hoover in late May 1991. Various members of the sales staff of Hoover reported that Email was marketing Simpson Aquarius washing machines by use of what now is Exhibit A. The evidence establishes that each of the 32 members of the sales force of the respondent has been supplied with a copy of the video and that it has been shown to retailers on visits by members of the sales force. It also has been shown at "trade nights" and "training sessions". There is no evidence as to the number or frequency of those meetings, or of the number of persons who have attended them. Nor does it appear whether those activities have continued at the same degree of intensity in the period between the institution of these proceedings on 1 August 1991, and the trial in October.

40. I make allowance for the circumstance that included in the relief sought is an order for disclosure of the names of all persons including corporations to whom Exhibit A has been published. Also, I bear in mind that in litigation between trade competitors, discovery of documents revealing the identity of customers of a defendant will not normally be ordered in advance of a determination of the alleged infringement of the plaintiff's rights, and that full discovery will then be ordered on the taking of an account of profits or an inquiry as to damages: Kerly's "Law of Trade Marks and Trade Names", 12th Ed., 1986, sections 15-108, "Terrell on the Law of Patents", 13th Ed., 1982, sections 14-114.

41. Nevertheless, the ground in this case has not been sufficiently laid for the making of a determination favourable to Hoover that corrective information or advertising should be distributed by Email pursuant to an order of this Court.

42. In my view, the appropriate relief, putting aside any issue as to damages, is injunctive relief as detailed earlier in these reasons. The respondent should pay the applicant's costs of the proceeding up to and including delivery of these reasons. I will stand the proceeding over for a short time to enable the applicant to determine whether it wishes to pursue any claim to damages under s. 82 of the TP Act.