11 The applicant has filed a statement of claim which also seeks to identify what are alleged to be representations conveyed by the television commercials that are likely to mislead or deceive. The applicant alleges:
11. By publishing or broadcasting, or causing to be published or broadcast, the Speech Bubble Television Advertisement or the Infinity Symbol Television Advertisement or both … Vodafone has made representations, both express and implied, that a customer purchasing the advertised plan could:
(a) make infinite calls (Television Infinite Call Representation);
(b) have infinite texts (Television Infinite Text Representation); and
(c) have infinite access to social networking sites (Television Infinite Social Networking Representation).
12. In substance the:
(a) Television Infinite Call Representation is a representation to the effect that a subscriber signing up to and using the Vodafone Infinite 45 plan can do any or all of the following, namely, make calls:
(i) of an unlimited number;
(ii) to any other number;
(iii) to anywhere in Australia or in the world;
(iv) from anywhere in Australia or the world;
(v) for an unlimited amount of time;
(vi) of any type (such as voice or video, or re-routed calls);
(vii) for any purpose (personal or corporate).
(b) Television Infinite Text Representation is a representation to the effect that a subscriber signing up to and using the Vodafone Infinite 45 plan can do any or all of the following, namely, send text messages:
(i) of an unlimited number;
(ii) to any other number;
(iii) to anywhere in Australia or in the world;
(iv) from anywhere in Australia or the world;
(v) of any type (such as text or picture messaging);
(vi) for any purpose (personal or corporate).
(c) Television Infinite Social Networking Representation is a representation to the effect that a subscriber signing up to and using the Vodafone Infinite 45 plan can do any or all of the following, namely, access Social Networking sites:
(i) an unlimited number of times;
(ii) for an unlimited amount of time;
(iii) from anywhere in Australia or in the world;
(iv) for any purpose (personal or corporate).
13. At all relevant times, the:
(a) Television Infinite Call Representation was in fact subject to further qualifications that were not disclosed, or not sufficiently or clearly disclosed, namely that it is not possible to make calls which are included in the plan price:
(i) to satellite phones;
(ii) to local numbers when outside Australia;
(iii) to retrieve voicemail;
(iv) to 1800 and 13 numbers;
(v) to national (1223) and international (1225) directory assistance;
(vi) that are premium voice and video calls;
(vii) that are re-routed calls; or
(viii) for corporate or commercial purposes.
(b) Television Infinite Text Representation was in fact subject to further qualifications that were not disclosed, or not sufficiently or clearly disclosed, namely that it is not possible to send text messages which are included in the plan price:
(i) from overseas; or
(ii) for corporate or commercial purposes.
(c) Television Infinite Social Networking Representation was in fact subject to further qualifications that were not disclosed, or not sufficiently or clearly disclosed, namely that access to social networking sites from outside Australia is not included in the plan price.
Particulars
(i) The overall design and appearance of the Television Advertisements and the presentation and placement of the supers mean that the supers do not sufficiently or clearly disclose the qualifications to the Television Representations. In particular:
(A) detail of the relevant exclusions are not given in the supers or anywhere else that is drawn to the viewer's attention;
(B) the supers are not sufficiently prominent to come to the attention of a reasonably attentive viewer;
(C) the supers are in substantially smaller sized font to the words and symbols containing the representations;
(D) the supers are overborne by the prominent voiceover and imagery.
(ii) Even if the supers do not have the features described in (a) of these particulars:
(A) the expression "standard number" has a meaning, to a reasonable consumer, that includes numbers for the services listed in paragraph 13(a)(i) to (v) above or one or more thereof;
(B) the expression "to any personal mobile here and overseas" has a meaning, to a reasonable consumer, that includes sending text messages in the manner described in paragraph 13(b) (i) to (ii) above or one or more thereof;
(C) the expression "to these social network sites [followed by the icons of social networking sites]" has a meaning, to a reasonable consumer, that includes accessing social networking sites from outside Australia.
12 It is common ground that the principles to be applied in determining whether or not to grant interlocutory relief are those stated by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, in particular, at [65]-[72] per Gummow and Hayne JJ. At para [65] their Honours stated:
The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:
"The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."
By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
"How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks."
[Footnotes omitted]
13 As this passage makes clear, there is a significant interplay between the first and second inquiries such that it will often be necessary to give close attention to the strength of a party's case (beyond merely deciding whether or not a prima facie case has been established) when assessing the risk of doing an injustice to either party by granting or withholding (as the case may be) interlocutory relief.
14 The applicant argued that it has established a strong prima facie case for the relief it seeks. I should say at once that I am not satisfied that the applicant has made out a strong prima facie case. Nor am I satisfied, when all things are considered, that the applicant has demonstrated sufficient likelihood of success at the final hearing to justify the grant of interlocutory relief. My reasons are as follows.
15 On the evidence presently before me, I have serious doubts as to whether the ordinary and reasonable consumer would understand either of the television commercials as representing that the respondent's plan allows a user to make an unlimited number of calls of any type including calls to or from anywhere in the world (even in regions not covered by the respondent's network) within the plan and without additional charge. Certainly in the infinity symbol commercial the text points against it being interpreted in this way. But even in the case of the speech bubble commercial, I seriously doubt that the ordinary and reasonable consumer would be given to understand that the respondent's plan allows for such wide ranging use.
16 There is force in the respondent's argument that "infinite" as used in both commercials will be understood by the ordinary and reasonable consumer to describe the number of standard calls that may be made rather than the different types of calls that can be made within the plan. Moreover, the text used in both commercials may well have the effect of qualifying the more general message in a way that makes it apparent to viewers that the general message is itself not as far reaching as the applicant argues or that it is otherwise subject to qualifications.
17 There are also difficulties in holding that the applicant's case is a strong one given the state of the evidence. For example, there is no evidence to show how many people in Australia are now using satellite phones or whether the respondent's plan is likely to be of the slightest interest to them. Similarly, there is only scant evidence to show whether consumers regard calls to satellite phones as "standard calls" or calls to "standard numbers". The latter observation also applies to the evidence as it relates to voicemail numbers, 1800 numbers, 13 numbers, and the directory assistance numbers that are referred to in the statement of claim. The respondent submits that the ordinary and reasonable consumer would understand that these are not the types of numbers or calls which are likely to be available within the respondent's plan without additional charge. I think there is considerable force in this submission.
18 In my view, there are aspects to the applicant's case which are by no means straightforward and which raise complex and subtle issues concerning the overall effect of the commercials on the ordinary and reasonable consumer that will need to be explored at a final hearing in the light of all the evidence. One such issue concerns the relationship between what might be called the "main message" and the "fine print" and whether the latter might be thought to undermine the "substance and integrity" of the former: see Australian Competition and Consumer Commission v Boost Tel Pty Limited [2010] FCA 701 at [80] per Siopis J.
19 It also needs to be remembered that ordinary and reasonable consumers, who might be expected to take some care of their own interests, are likely to do more than simply rely upon these particular television commercials in deciding whether or not to sign up to the respondent's plan. These types of plans typically involve a contractual commitment of a year or more in duration and are invariably the subject of terms and conditions which relate to matters of detail of the kind that the applicant's complaints focus upon.
20 In my opinion the applicant's case, while arguable, is not at all strong. And in saying this I should make clear that there are parts of the applicant's case which I regard as much weaker than others. For example, I recognise that the applicant may well be proven right at trial in relation to what it says about calls to satellite numbers and voicemail numbers. On the other hand, I have difficulty with the idea that there will be people who are led by the respondent's commercials to believe that they can travel overseas and make calls, send texts or post Facebook messages anywhere they happen to be, all within the plan and at no additional cost.
21 That brings me to the balance of convenience. The respondent's commercials have been on air for some weeks now and I would hesitate to order that they be withdrawn (even if only to allow changes to be made to them) in circumstances where I have serious concerns about the strength of the applicant's case. On the other hand, I accept that the respondent's commercials may well draw either new or existing customers away from the applicant to the respondent and that, in this respect, the applicant may suffer some damage if the commercials remain on air between now and the final determination of the proceeding.
22 Both parties' submissions recognise the difficulties involved in quantifying and proving any entitlement to damages under s 82 of the Act or compensation payable on the undertaking as to damages in a case of this kind. This in turn led the applicant to focus its submissions on the position of consumers and the harm that might be suffered by them in the event that the television commercials are found to be misleading or deceptive or likely to mislead or deceive. There a couple of things to say about these submissions.
23 The evidence does not enable me to draw any inference, even assuming that the television commercials are misleading or deceptive, as to how many people are likely to be induced to act by representations arising out of the absence of appropriately worded qualifications which may or may not be relevant to them. For example, I have already referred to the fact that there is no evidence before me that casts any light on the number of people who presently use satellite phones in Australia. I doubt that there is much prospect that there will be a significant number of people who, having viewed the commercials, sign up to the respondent's plan in circumstances where the relevant terms and conditions (which make the position clear) escape their notice and who later find, contrary to expectations arising out of their understanding of the commercials, that they are unable to make calls to satellite numbers within the plan and at no additional cost.
24 This brings me back to the undertakings that were given by the respondent in relation to the print advertisements. The second of these is relevant to the present application in that it required the respondent to issue a bulletin to all of its stores and dealers to draw customers' attention to the fact that the "infinite" inclusions are (a) standard calls within Australia; (b) standard texts within Australia, here and to overseas; and (c) access within Australia to Facebook, Twitter, Foursquare, Linkedin and My Space. This step will help ensure that consumers, who I shall assume for present purposes might be misled by the television commercials, will be set right before entering into a contract with the respondent.
25 The applicant submitted that this was insufficient for its purposes because the commercials still have the effect of "drawing potential customers into the respondent's marketing web". It submitted that the respondent should not be permitted to draw customers into its stores or those of its dealers or other authorised retailers, by inducing consumers to treat with the respondent by making misleading or deceptive representations to them. It also submitted that there are people who sign up to the respondent's plans over the internet or telephone who will not be protected by the respondent's undertaking. However, for reasons I have stated, I do not regard the applicant's case as strong and, to my mind, although these arguments would carry considerable weight if this was a final hearing, they are not sufficient to tip the balance in the applicant's favour when deciding whether to grant or withhold interlocutory relief.
26 For these reasons I think the application for interlocutory relief should be dismissed. My tentative view is that the costs of the interlocutory application should be the respondent's costs in the proceeding. I will order that if any party wishes to contend for a different order, it should file and serve by 4.00pm, 1 February 2011 a short written submission no greater than 3 pages in length explaining why it says a different order is appropriate. I will also order that submissions in reply, also not exceeding 3 pages in length, be filed and served by no later than 4.00 pm, 4 February 2011. I will then decide the costs issue on the written submissions.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.