[1991] FCA 159; 29 FCR 74

Trade Practices - consumer protection - whether statements in advertisements likely to mislead - whether statements of fact or of opinion.

Counsel and Solicitors C. Evatt instructed by for applicant: Aboriginal Legal Service Ltd.

Counsel and Solicitors R. Sackville instructed by for respondent: Freehill Hollingdale and Page

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

By her second further amended statement of claim, Jenny Ann Munro, the applicant, seeks declaratory and injunctive relief under the Trade Practices Act 1974 ("the Act"). The applicant, whose standing to bring the proceedings is not challenged, alleges that Tooheys Limited, the respondent, engaged in misleading or deceptive conduct, in the form of advertising, contrary to the provisions of s.52 of the Act.

2. On 13 September 1990, it was ordered, by consent, that there be tried separately the questions whether the advertisements now challenged contained or made certain representations. (There was a second question, whether, as alleged by the applicant, a statement attributed to Blair James Willoughby, the respondent's Public Affairs Manager, in a newspaper report was made by or with the approval of Mr Willoughby. As to the second matter, having heard the evidence, I made a finding of fact that Mr Willoughby did not make or approve the statement attributed to him. The applicant no longer pursues her allegation.) I made a finding on the first question that the television advertisements, shown in Sydney in late 1989 and early 1990, being Ex. "C", represented that a consumer who drinks a not insignificant quantity of "Tooheys Lite 2.2" beer will not exceed the prescribed concentration of alcohol limit of 0.05.

3. The advertisements now challenged were in several forms and it is convenient to deal with them separately, although, in the television advertising, it will be seen that their message is similar and their method of "grabbing" the viewer's attention is also similar. In each case, our attention is arrested by the anti-heroic antics of a well known sporting identity and we are told that we can drink the product and "breathe easy".

4. This advertisement depicted two well-known sporting personalities, the former Australian cricket representatives, Mr Max Walker (referred to as "Tangles") and Mr Doug. Walters (referred to as "Freddie"). Mr Walker is also well known as a television personality in his role as a sports commentator. The dialogue takes place in a crowded bar in a hotel. "Tangles", the anti-hero, is attempting, unsuccessfully, to throw a dart at a dart board. The television script is as follows:

"SUPER:

Max Walker

World's Worst Dart Player.

TANGLES:

After losing 58 straight matches...

FREDDIE:

Nail extractor.

TANGLES:

I figured out that there is something wrong with me

glasses - these glasses.

FREDDIE:

The secret is in the elbow action Tangles.

TANGLES:

That's why I switched to Tooheys 2.2 Freddie. Now I can bend

the elbow occasionally without getting off target.

FREDDIE:

And that's no Bull.

SUPER

Breathe Easy.

VOICE OVER:

Tooheys 2.2 - Breathe easy"

5. By s.4E(2A) of the Traffic Act 1909 (N.S.W.), it is provided that, in certain circumstances, a member of the police force may require the driver of a motor vehicle to undergo a breath test. By s.4E(3) of the Traffic Act, where it appears to a member of the police force, in consequence of a breath test, that the device by means of which the test was carried out indicates that there may be present in that person's blood a concentration of alcohol of not less than 0.05 gramms in 100 millilitres of the blood, that member may thereupon arrest that person and take him or her to a police station and detain him or her for the purpose of requiring him or her to submit to a breath analysis. By s.4E(1E) of the Traffic Act, it is provided that any person who, while there is present in his or her blood the "low range" prescribed concentration of alcohol (i.e. 0.05 grammes or more, but less than 0.08 grammes, of alcohol in 100 millilitres of blood - the "middle" and "high" ranges exceed 0.08 grammes and 0.15 grammes respectively), drives a motor vehicle is guilty of an offence.

6. It is contended by the applicant, and not seriously disputed by the respondent, that the suggestion in the advertisement that a consumer of the respondent's "2.2 Lite" would "breathe easy" is a suggestion that a consumer could "bend the elbow occasionally", that is, drink a quantity of the respondent's "2.2 Lite" and, if subjected to a breath test, the result of the test would show that the consumer had not exceeded the prescribed concentration of alcohol limit of 0.05. I agree that the statement "breathe easy" is made in this context.

7. But, describing, with any precision, the message sought to be conveyed by the advertisement in terms of the quantity or volume of the respondent's product that can be consumed without exceeding the 0.05 limit, is more difficult. No particular volume is specified and the message in this respect, is rather vague. Mr Walker says that he can "bend the elbow occasionally without getting off target". It is clear, I think, that the respondent is not here speaking of a consumer drinking a nominal quantity of the beer. On the other hand, the respondent is not suggesting that a person could consume a substantial amount of the respondent's product and still not fail a breath test. The message appears to be directed at the intermediate position of a consumer being able to drink a not insignificant quantity of "2.2 Lite" and pass the test.

8. The advertisement depicts Mr Walker and Mr Walters on a bowling green. Again, Mr Walker unsuccessfully attempts this sporting activity. They adjourn to the clubhouse where a message similar to the previous advertisement is communicated. The script is as follows:

"TANGLES:

The seam's still opening up Freddie.

SUPER:

Max Walker

World's Worst Law Bowler.

FREDDIE:

Maybe you should shorten your run-up a bit Tangles.

TANGLES:

Mmm. I could be a bit biased Freddie, but I was getting

jack of bowls...until I switched to Tooheys 2.2.

Now I can enjoy the odd cleansing Ale without ending up in the

ditch.

Gonna need this. (Taking bowl from barman)

Thanks.

SUPER:

Breathe easy.

VOICE OVER:

Breathe easy with Tooheys 2.2.

FREDDIE:

Bowl this one underarm Tangles...That'll fool 'em."

9. As has been said, this is a similar message. Viewers are informed that they "can enjoy the odd cleansing Ale" and still "breathe easy".

10. In this advertisement, Mr Walker is shown as a fisherman who falls overboard but is later shown on the shore enjoying the respondent's product. The script is as follows:

"SUPER:

Max Walker

World's Worst Fisherman.

TANGLES:

Freddie I think I've got a Leather Jacket here mate.

FREDDIE:

You'll have the complete outfit soon Tangles.

Hey, no, no, Tangles go back, don't do it - no

TANGLES:

I mightn't be the world's best fisherman but I

certainly don't want to be the catch of the day.

Which is why I switched to Tooheys 2.2. It's not

a pretend beer and it's not a soft drink but I can

sink a few of these without rocking the boat.

Ah - I didn't say a word.

SUPER:

Breathe Easy.

VOICE OVER:

Tooheys 2.2 - Breathe easy."

11. Mr Walker's statement that he did not wish to be "the catch of the day" refers to two police officers who walk past in the background when he is sitting at a table with Mr Walters drinking the respondent's beer. He says he "can sink a few of these". Viewers are told that they can "breathe easy". The message is similar to the other advertising.

12. Mr Walker is shown as the "World's Worst Golfer". The advertisement shows some antics by Mr Walker on a golf course. Mr Walker and Mr Walters adjourn to the clubhouse for drinks. The script is as follows:

"SUPER:

Max Walker

World's Worst Golfer.

TANGLES:

The only century I've ever scored was on a golf course.

FREDDIE:

Try this one Tangles.

TANGLES:

Go away.

Although, on most long holes I usually manage a Birdie.

I really don't need a handicap which is why I switched

to Tooheys 2.2. It's not a pretend beer or soft drink

but I can sink a few of these anytime I feel like it.

FREDDIE:

Better than your putting.

SUPER:

Breathe Easy.

VOICE OVER:

Breathe easy with Tooheys 2.2

TANGLES:

One of the few rounds I actually enjoy."

13. Towards the end of 1989, the respondent advertised its product in the "Daily Telegraph", a Sydney newspaper. Four advertisements, which conveyed a message similar to that in the television advertising, are relied on.

14. In one advertisement, there was a picture of three taxi drivers standing beside their vehicles, apparently without work. Below, the following statements appeared:

"THE ONLY THING TAXI DRIVERS LIKE ABOUT TOOHEYS 2.2 IS THE

TASTE.

Enjoying the taste of a great beer often means having a few.

Stick to Tooheys 2.2 and you can leave the taxis for those who

really need them.*

MAKE IT A TOOHEYS 2.2 AND A MERRY CHRISTMAS."

15. In much smaller print, in the bottom right hand corner, appeared the following statement:

"*Tooheys recommend a drinking pattern which is reasonable

and not excessive. The effects of any alcoholic drink may

vary from person to person."

This small print statement appeared on each of the four advertisements but neither party suggested that it had any significance in these proceedings.

16. In each of the advertisements there was also depicted in the bottom right-hand corner either a beer being poured from a tap marked "Tooheys 2.2 Lite" or a Tooheys 2.2 Twist Top and a Tooheys 2.2 can held together in a toast.

17. In the second advertisement, there was a picture of a police officer leaning over the driver's window of a car, facing the driver. Below, the following statements appeared:

"THIS GENTLEMAN WOULD LIKE TO CONGRATULATE YOU ON YOUR GOOD

TASTE.

It's good to know you can enjoy a full-flavoured beer without

running foul of the law. Stick to Tooheys 2.2 and you'll be safe

and satisfied.*

MAKE IT A TOOHEYS 2.2 AND A MERRY CHRISTMAS."

18. In the third advertisement there was a picture of a large sign, "Stop Police", being held out with a police car parked in the background. Below, the following statements appeared:

"GO ON, TELL HIM YOU'VE HAD A FEW BEERS.

Tooheys 2.2 is the one light beer you can really depend on.

You can't be that sure with other so-called 'Light" beers.*

MAKE IT A TOOHEYS 2.2 AND A MERRY CHRISTMAS."

19. In the fourth advertisement there was a picture of a car entering a driveway to a garage. Below, the following statements appeared:

"STICK WITH TOOHEYS 2.2 AND YOU'RE HOME UN-HOSED.

Tooheys 2.2 is the one light beer you can really depend on.

You can't be that sure with other so-called 'Light' beers.*

MAKE IT A TOOHEYS 2.2 AND A MERRY CHRISTMAS."

6. Advertisement on building

20. On a building at Taverner's Hill, Parramatta Road, Petersham, formerly used as a brewery, the respondent advertises its "2.2 Lite" beer with the statement "Breathe easy". No reference is made to volume or quantity. The message is similar to the other advertising. Was the respondent's statement (i.e. that a consumer who drinks a not insignificant quantity of its product will not exceed the prescribed limit) false?

21. This was the principal issue in the proceedings.

22. Two experts were called by the parties on this issue. Since each of the parties relies on aspects of the evidence of both experts, it will be necessary to refer to the evidence in some detail.

23. Evidence was given by Associate Professor G.A. Starmer of the Department of Pharmacology, University of Sydney, who is also a member of the International Committee on Alcohol, Drugs and Traffic Safety. Professor Starmer has been involved in many studies in the present area. He gave evidence of scientific tests conducted by him in January and February 1991 to ascertain the blood alcohol concentrations resulting from the consumption of varying quantities of the respondent's product ("the product"). There were two studies, involving male and female subjects (classified as occasional, moderate and regular drinkers) after consumption of the product in the fed and fasted condition. In experiment 1, an attempt was made to determine how much (on a body weight and gender basis) of the product must be consumed in one hour by each of the categories of drinker to attain the prescribed concentration of 0.05 and to investigate the influence of food on the blood alcohol concentrations attained. In experiment 2, an attempt was made to determine what blood alcohol concentrations are attained by male and female (moderate) drinkers after the consumption of 2, 4 and 6 x 285 ml. (middy) glasses of the product in one hour in the fed and fasted condition.

24. A calculation (see Winek and Esposito, "Antemortem and postmortem alcohol determination", Duquesne University, 1984) often used to estimate the likely blood alcohol concentration at a given time after the consumption of a known amount of alcohol, was made in relation to each participant (the critical variables being body weight and gender) with a view to determining the amount of the product which must be consumed in one hour to cause that person to reach a blood alcohol concentration of 0.05g/100 ml. The subjects were then asked to consume the quantity of the product so calculated in one hour at a constant rate. In a pilot study, it was found that when amounts of the product were administered to both males and females according to this formula, the blood alcohol concentrations attained were far below the expected values. It was then decided to increase the calculated volume of beer by 33.3% in an attempt to produce a peak blood alcohol concentration of 0.05g/100ml. Thus, a male weighing 70 kg. would receive 8 middies (+ 64 ml.) - a total of 2344 ml. - to drink in an hour; a female weighing 60 kg. would receive 6 middies (+ 105 ml.) - a total of 1815 ml.

25. Most subjects experienced difficulty in consuming this quantity of the product at a constant rate over an hour. If a subject could not consume his or her allotted amount, he or she was permitted to remain in the experiment only if he or she could drink 90% of that amount. Six (of a total of 66) could only drink 90% of their dose and were given the same amount of the product on the second occasion (they are marked with an asterisk in the Tables below). Four subjects (three male, one female) vomited and were excluded from the study. Two subjects (one male, one female) withdrew when unable to consume 90% of their dose. These subjects were mainly young, occasional drinkers and were replaced by others.

26. The individual blood alcohol concentrations attained by female subjects were displayed in Tables 5-7 and, in the case of males, Tables 8-13 as follows:

27. Both male and female subjects exhibited higher peak blood alcohol concentrations in the fasted, than in the fed, condition. Lower mean peak blood alcohol concentrations were found for the occasional drinking group when compared with the other two groups. This was because the product was given according to body weight, and the occasional drinking group had a lower mean body weight.

28. The times of peak blood alcohol concentration were found to be similar in the fed condition for both males and females. The majority of subjects reached their peak 15 minutes after the completion of drinking. The peak appeared to be delayed in the fasted condition for about half of the female subjects, regardless of drinking history, and for about half of the male subjects who were occasional drinkers.

29. Twenty male and female moderate drinkers were given six, four and two middies of the product which they consumed over one hour. The results were shown in Tables 23 and 24 as follows:

30. The results of experiment 2 supported those of experiment 1. Subjects who had been fed had lower blood alcohol concentrations than those who fasted. The highest blood alcohol concentration for a male in a fed condition was 0.030g/100 ml. and 0.040g/100 ml. in a fasted condition. For females, the comparative results were 0.045 (fed) and 0.035 (fasted). Nobody reached a 0.05g/100ml. level after consuming 4 or 6 middies.

General discussion by Professor Starmer of both experiments

31. Considerable difficulty was experienced by most subjects in consuming the amount of the product they were asked to drink, especially if fasted. Most subjects reported abdominal distension and discomfort. Using averages of the data from 45 subjects, the consumption of 8.3 middies in one hour in the fasted condition produced a mean peak blood alcohol concentration of 0.041g/100 ml., with 9 subjects exceeding the 0.05g/100ml. limit. After a meal, the mean concentration fell slightly to 0.039 and fewer, i.e. six, subjects exceeded the limit.

32. These results should be seen as being broadly consistent with studies by Professor Starmer and others in 1983 and 1985. In the 1983 study, 9.2 middies of the product were given to the male subjects. In the fasted condition, the mean maximum blood alcohol concentration was 0.049 in the fed condition, with four subjects exceeding the limit, and 0.061 in the fasted condition with eight subjects exceeding the limit. In the 1985 study, the volume of beer was lowered to seven middies. Here, the mean maximum blood alcohol concentrations were 0.028 and 0.036 in the fed and fasted conditions. None of the subjects exceeded 0.05 when fed but two did when fasted.

33. Reverting to the present experiments, when, in Experiment 2, smaller quantities (2, 4 and 6 middies) were given, nobody exceeded 0.05. The results were, broadly speaking, compatible with the earlier studies. The finding that the consumption of low gravity beer produces lower blood alcohol concentrations than might be expected by calculations made by reference only to the alcohol content of the beer accords with a study conducted by other scientists in 1990 who compared wheat beer (alcohol - 2.7% v/v) with full strength wheat beer (4.8% v/v). It is not known at present what mechanisms are involved in producing the lower-than-expected blood alcohol concentrations after drinking low gravity beer.

34. In most individuals, especially if fed, it is necessary to consume a large amount of the product, which is close to the maximum capacity of the subjects to accommodate, in one hour in order to achieve a concentration approaching 0.05. The mean peak blood alcohol concentration in all groups (i.e. food condition, gender, drinker) was below this limit.

35. Experiments 1 and 2 were carried out by Professor Starmer at the request of the respondent. Previously, the applicant had filed a statement by Professor Starmer, dated 19 December 1990, as follows:

"Professor G.A. Starmer of the Department of Pharmacology at

the University of Sydney states:-

1. Firstly, in conjunction with Mr K.D. Bird of the School of

Psychology and Mr I.F. Eckhard of the Department of

Biochemistry at the Royal Prince Alfred Hospital (I) have

carried out certain scientific tests into the blood alcohol

concentrations attained by male subjects after the

consumption of various quantities of Tooheys 2.2 Lite beer.

Then, in conjunction with Ms J. Perl and Dr A.F. Moynham both

of the New South Wales Police Department and Mr E.J. Peel of

the Health Department of New South Wales (Division of

Analytical Laboratories), I carried out similar scientific

tests with male subjects who consumed seven 285 ml glasses

of Tooheys 2.2 Lite Beer (at a constant rate in one hour).

2. These tests were carried out in Sydney over several months

during 1984 and June - July 1985 respectively.

3. Details of the tests and their results are set out in the

schedules annexed to the Applicant's Statement of Evidence

filed on 16 November, 1990. ('A' + 'B' respectively). In

particular, in the first abovementioned experiment, when

tested in the fasted condition during the period from 75 -

150 minutes after drinking had commenced, the mean blood

alcohol concentration of the subjects exceeded 0.05g/100ml.

4. Although no tests were carried out on female subjects I am

able to state that the peak blood alcohol concentration in

the average female would be about 20% higher than a male

subject because of the higher body fat to body water ratio

in females. Alcohol distributes only into body water.

5. I do not of course know what amounts of Tooheys 2.2 Lite

Beer consumers would be likely to drink in various

circumstances.

6. On the basis of the abovementioned test results and in view

of the state of knowledge regarding the pharmacology of

alcohol consumption I am of the opinion that it might be

adduced with some degree of certainty that a proportion of

the population could exceed the 0.05 prescribed

concentration of alcohol limit if they were to consume seven

285ml glasses of Tooheys 2.2 beer in an hour (in the fasted

condition)."

36. (In his oral evidence, Professor Starmer expressed the view that the proportion of the population was "of the order of 5 to 10 per cent".)

37. In the study described in the report marked "A", the subjects were 10 fit, healthy male volunteers who had maintained a stable, "social" alcoholic intake for at least one year. They were given seven 375 ml. cans of the product (i.e. 9.2 middies) at a constant rate over a period of one hour. The study indicated that, in the fasted condition, the mean blood alcohol concentrations just exceeded 0.05 for the period beginning 15 minutes after drinking finished until the end of the experiment. When the subjects had eaten, the mean blood alcohol concentrations never exceeded 0.05 but inspection of individual readings indicated that some were higher and caution should therefore be exercised, especially by females, and by males with a body weight lower than average.

38. The paper marked "B" was a report made to the Trade Practices Commission in July 1985. It stated that it is well established that "considerable inter-individual variation" exists in the blood alcohol concentration response to a given dose of alcohol and that this is further influenced by several other factors, e.g., the presence of food in the stomach. The paper reported the results of a study to determine the range of blood alcohol concentrations achieved by a group of 10 healthy males over the age of 35 years who consumed seven 285 ml. glasses (middies) of the product in one hour after a meal and when fasting. The results indicated that the mean blood alcohol concentrations attained were somewhat higher when fasting but none of the mean values approached the 0.05 limit for drivers. Two subjects just exceeded the 0.05 limit 45 minutes after they were just starting to drink their last glass of beer. The authors of the paper stated:

"These data form the basis for meaningful advice to drivers

who wish both to drink and to stay within the law. Whether

the subjects had eaten or not, the mean blood alcohol

concentrations never approached 0.05g/100ml. By inspection

of individual readings in the fasted state it can be seen

that some were a little higher than this critical value.

These results indicate that a tacit assumption that it is

impossible to exceed the 0.05g/100ml limit by consuming

seven 285ml glasses of Toohey's 2.2 Lite beer in one hour is

unwarrantable.

Among males, there is an inverse relationship between lean

body mass and the peak blood alcohol concentration attained

after a given dose of alcohol. Females usually reach higher

blood alcohol concentrations than males and the difference

cannot be accounted for or eliminated by adjusting for

adiposity. This means that in a consideration of the

applicability of media pronouncements on this matter to

themselves, extra caution should be exerted by males with a

lower than average body weight and by females."

39. None of Professor Starmer's evidence was seriously challenged by either party.

40. Expert evidence was also called from Mr D.J. Mascord, a Research Psychologist who has assisted Professor Starmer in this field for several years.

41. A statement by Mr Mascord was filed on behalf of the applicant as follows:

"1. In January 1990, I carried out certain scientific

tests into the blood alcohol concentrations attained

by male and female subjects after the consumption of

various quantities of Tooheys 2.2 Lite beer.

2. Details of the test and the results are set out in the

Annexure marked "C" to the Applicant's Statement of

Evidence filed on 16 November, 1990.

3. In particular of the ten (10) subjects, two (2)

female subjects who consumed just under six (6)

middies of Tooheys 2.2 Lite beer exceeded

0.05gm/100ml limit."

42. In January 1990, Mr Mascord carried out some research in the present area at the request of the National Drug and Alcohol Research Centre, reporting as follows:

"Please find enclosed a summary of the Tooheys 2.2 beer

experiment conducted at our unit at Rozelle Hospital. As

was suggested 5 males and 5 females were tested. No special

provision was made for diet or stomach content prior to

testing. They were given Tooheys 2.2 beer (from cans) which

was consumed from glasses. The subjects were required to

consume the equivalent of 10 middies over the period of one

hour. Breath samples were then taken 20, 40, and 60 mins

after drinking had ceased.

The subjects were all social drinkers (table 1) consuming on

average 4 drinks per session and averaging 3 drinking

sessions per week. Their average age was 24y (29 - 35);

weight 59.4kg (45 - 74); and height was 172cm (152 - 184).

Individual results can be found in table 2. The mean blood

alcohol concentration for the group was just under the legal

limit, but 5 subjects were found to be over 0.05 g/100ml.

The target of 10 middies to be consumed in 1 hour was

impossible to reach for most subjects. Some subjects were

on the verge of vomitting, one did, and many were overcome

with the need to belch. A more realistic drinking pattern

to look at would be say 5-6 middies in the first hour then 4-

5 each hour after for several hours."

43. (In his oral evidence Mr Mascord explained that this study was informally conducted. He said that "it was scientifically based in the true sense, it was a response to an ad. to look at 10 people rather quickly as a favour to a friend. Because we didn't know the fasted or the nutritional state of the people, it's difficult to, I guess, put any emphasis on the results".)

44. Before turning to consider whether, having regard to the expert evidence, the respondent's statements were false, reference should be made to evidence called by the applicant with a view to showing that some consumers drink a not insignificant quantity of the product. Suzanne Albert, a bar attendant, gave evidence that she served the low alcohol beer (which she said was the product) to consumers at her suburban hotel and that some consumers would drink as much as five schooners (i.e. a total of 2125ml.) in one hour, mainly in hot weather. Although the respondent showed that it had not supplied the product to Ms. Albert's hotel, I accept her evidence, so far as it indicates that some regular male drinkers would consume a volume of beer of this order.

45. No attempt was made by either party to establish the drinking patterns, if any, in the community generally. However, Professor Starmer said that, in his opinion, the results of his experiments this year were applicable to the community as a whole. Conclusion on the issue whether the respondent's statements in its advertising were likely to mislead

46. There was no real dispute between the parties as to the legal principles applicable in the present context.

47. In considering this issue, regard must be had to the class of persons likely to view or read the advertising. The advertisements are clearly directed at the general public (see Australian Federation of Consumer Organisations Inc. v The Tobacco Institute of Australia Limited, 7 February 1991, unreported, Morling J. at p 9).

48. In Parkdale Custom Built Furniture Pty. Ltd. v Puxu Pty. Ltd. [1982] HCA 44; (1982) 149 CLR 191, Gibbs C.J. said (at p 199):

"Section 52 does not expressly state what persons or class

of persons should be considered as the possible victims for

the purpose of deciding whether conduct is misleading or

deceptive or likely to mislead or deceive. It seems clear

enough that consideration must be given to the class of

consumers likely to be affected by the conduct. Although it

is true, as has often been said, that ordinarily a class of

consumers may include the inexperienced as well as the

experienced, and the gullible as well as the astute, the

section must in my opinion be regarded as contemplating the

effect of the conduct on reasonable members of the class.

The heavy burdens which the section creates cannot have been

intended to be imposed for the benefit of persons who fail

to take reasonable care of their own interests."

49. Gibbs C.J. also (at p 199) pointed out the conduct of the defendant must be viewed as a whole and that it would be wrong to select some words or acts, which, alone, would be likely to mislead if those words or acts, when viewed in their context, were not capable of misleading.

50. In Global Sportsman Pty. Limited v Mirror Newspapers Pty. Limited [1984] FCA 180; (1984) 2 FCR 82 (at p 88), the Full Federal Court said:

"Many statements, for example, promises, predictions and

opinions, do involve the state of mind of the maker of the

statement at the time when the statement is made. Precisely

the same principles control the operation of s.52(1) with

respect to the making of such statements. A statement which

involves the state of mind of the maker ordinarily conveys

the meaning (expressly or by implication) that the maker of

the statement had a particular state of mind when the

statement was made and, commonly at least, that there was

basis for that state of mind. If the meaning contained in

or conveyed by the statement is false in that or in any

other respect, the making of the statement will have

contravened s.52(1) of the Act."

51. See also the discussion by Morling J. in the Tobacco Case, above, at pp 206-7, rejecting a submission that the statements made in the advertising there challenged would be understood as no more than the expression of an opinion and that s.52 does not operate to restrict publication of opinions on scientific issues.

52. In my view, the statements made in the present advertisements are, in form and in substance, statements of fact rather than statements of opinion. The advertising is not expressed as an opinion. It is an assertion of an existing position, the implication being that it is something which has been shown to be the fact. The question for the Court is whether statements are factually correct for, if they are not, the respondent's statements, which are clearly made in trade or commerce, would be likely to mislead consumers.

53. On behalf of the applicant, reliance was sought to be placed upon the results of this study. As has been said, Mr Mascord is a research psychologist and not a pharmacologist. Further, as Mr Mascord explained in his oral evidence, this study was an informal one only. In these circumstances, it would not be safe for the Court to rely on the study.

54. Although some minor criticism was made, on behalf of the applicant, of the sampling methods used by Professor Starmer in his 1991 study, as has been said, his evidence was not seriously challenged by either party. Professor Starmer was, in fact, called by each party. It is not surprising, in these circumstances, that each party sought to rely on those parts of his evidence which favoured their respective cases; that is to say, the applicant relies, in particular, upon those instances in the studies where a subject's blood alcohol concentration exceeded 0.05; whereas the respondent sought to draw comfort from the occasions when the blood alcohol concentration was well below 0.05.

55. But whatever be the extreme positions that were revealed in particular instances, if the results of Professor Starmer's studies are taken as a whole, they do not indicate that, as a general rule, consumption of the product, even at levels that are not insignificant, will give a blood alcohol concentration of 0.05 or more.

56. On behalf of the applicant, it was strongly submitted that the Court should assume that a consumer would drink 7 middies of the product in an hour. Yet, as has been said, there was no attempt made to prove what are the general drinking habits in the community. There is at least a suggestion in the experiments undertaken for present purposes that the consumption of this volume would be an uncomfortable, and therefore unlikely, process.

57. Can the Court take judicial notice of drinking habits in the community generally?

(e) Can the Court take judicial notice of drinking habits in the community?

58. It has been said that the party seeking judicial notice "has the burden of convincing the judge that (a) the matter is so notorious as not to be the subject of dispute among reasonable men or (b) the matter is capable of immediate accurate demonstration by resort to readily accessible sources of indisputable accuracy." See E.M. Morgan, Some Problems of Proof under the Anglo-American System of Litigation, at p 61. See also the discussion in D. Byrne and J.D. Heydon, Cross on Evidence (4th ed.) at p 107.

59. In R. v Hunt (1980) RTR 29, Bridge L.J. said (at pp 33-4):

"It may at one time have been the case that lay people had

no knowledge of the quantity of alcohol in the blood,

measured in milligrammes per millitre, which was likely to

affect a person and to cause intoxication. But if that was

ever the situation, in our judgment, it is ceretainly not

the situation today. The breathalyser laws have been with

us for 12 years. Now, in our judgment, it is a matter of

the commonest of common knowledge that if a person has in

his blood a concentration of alcohol nearly two-and-a-half

times the legal limit under section 6, he is likely to be

intoxicated to a substantial degree..."

60. It was held that a jury was entitled, without the assistance of expert evidence, to infer that intoxication, in that case, was responsible for the impairment of the driver's ability to drive. But the question of drinking habits in the community is not a matter of this kind. It is not something so notorious or so demonstrable that evidence of it is not necessary (see P.B. Carter, "Judicial Notice: Related and Unrelated Matters in E. Campbell and L. Walter (Eds.) Well and Truly Tried, (1982) at p 95).

(f) Has the applicant shown that the advertising was likely to mislead?

61. It is clear that the applicant bears the onus of establishing, on the evidence, that the respondent's conduct was likely to mislead. In my opinion, the applicant has failed to establish this. None of the advertisements represents that any particular volume of the product can be consumed without achieving a blood alcohol concentration of 0.05. The representation is, in effect, that a consumer can drink not insignificant amounts of the product and not reach 0.05. The applicant has not shown that this is a false statement. It must follow that no contravention of s.52 is made out.

62. In the result, the application will be dismissed. Costs will be reserved.