Telstra v Singtel Optus [2018] VSCA 347

1 The parties to this application for leave to appeal both engage in the supply of digital mobile telecommunications services to the Australian public and are competitors in that market. The applicant ('Telstra') was unsuccessful in seeking to restrain the respondent ('Optus') from publishing advertising which Telstra contended was misleading and deceptive. A judge in the Trial Division granted urgent interlocutory relief in favour of Telstra but, after conducting a trial of a preliminary question as to liability and injunctive relief, ordered that the interlocutory injunction be dissolved and that Telstra's claim in respect of the advertising be dismissed. Although Optus no longer seeks to use the challenged advertisement, Telstra seeks leave to appeal, in part because it gave an undertaking as to damages in respect of the interlocutory injunction and may subsequently be found to be liable for damages accordingly.

2 For the reasons that follow, leave to appeal should be refused.

3 The advertisement the subject of the present application was displayed by Optus from 4 May 2018. It displays in the foreground an image of a telephone box, half-sunk and lopsided, in a sand-duned desert landscape. In the background there are three pyramids resembling those of ancient Egypt. With its distinctive shape and blue and orange colour scheme, the telephone box is easily recognisable as a Telstra telephone box.

4 The advertisement includes in large bold white text the headline 'Empires end. That's what they do.' Immediately underneath those words appears a statement in smaller white text that 'The Optus Mobile Network has been ranked best overall in voice and data.' Appearing below those words is a further statement in smaller white text 'By P3 Mobile Benchmark, Dec 2017'. The advertisement appeared both in portrait format and in a longer thinner format. A copy of an example of the advertisement in portrait format appears below.

5 P3 Communications GmbH ('P3') is an independent company which publishes an annual report on the quality of mobile networks. In December 2017 it published the results of a study on the mobile network performance of telecommunications services in Australia. In that report, Optus scored higher than Telstra in the voice category and Telstra scored higher than Optus in the data category. The overall result put Optus three points ahead of Telstra out of a possible 1,000 points.

6 The advertisement appeared on large format digital billboards at several locations in Victoria, New South Wales and Queensland. It also appeared on various online news websites. It was published to a broad cross-section of the Australian public, including persons considering or who may in the future consider acquiring a mobile telephone service or changing the carrier who supplies their existing service. This class includes persons who are yet to embrace mobile telephone technologies and are considering doing so for the first time.

7 In the past two years, Telstra has also engaged in extensive marketing in relation to its own mobile network. Telstra advertises its network across a wide range of media, including newspapers, magazines, the internet, social media, billboards, television and radio. During the previous six months, Telstra had marketed itself on a series of performance claims about its mobile network. At the time of the hearing on 22 May 2018, such Telstra advertisements were still being published and displayed. They contained, among other things, the statement that Telstra was 'Australia's best mobile network'.

8 On 5 May 2018, Telstra's solicitors sent a letter to the solicitors for Optus demanding that Optus immediately cease using the advertisement or any other similar form of advertising. Optus through its solicitors refused to do so or to give undertakings which had been requested.

9 On 9 May 2018, Telstra commenced a proceeding by originating process and issued a summons seeking among other things urgent interlocutory relief requiring Optus to cease publishing the advertisement on the basis that it was false, misleading and/or deceptive, and/or likely to mislead or deceive, in breach of the Australian Consumer Law, ss 18, 29(b) and 29(g). For the purposes of the proposed appeal, only s 18 is relevant. The judge dismissed the claims under all sections and Telstra does not seek to agitate s 29 in the proposed appeal.

10 Paragraph 7 of the statement of claim was in the following terms:

Since about 4 May 2018, Optus has represented to a broad cross-section of the Australian public, including the Class, that there has been a significant and permanent change in the relationship between the Telstra and Optus mobile networks with Optus now undisputedly operating a better mobile network overall than Telstra ...

11 The 'Class' was defined in paragraph 6 of the statement of claim as 'members of the Australian public who are considering, or may in the future consider, acquiring a mobile telephone service or changing the carrier who supplies their existing mobile telephone service'.

12 On 11 May 2018, Telstra's application was heard by a judge in the Trial Division. On 16 May 2018, the judge granted Telstra an interlocutory injunction restraining Optus from publishing the advertisement.[1]

13 At a further hearing on 16 May 2018, Optus obtained orders setting the matter down for an urgent hearing of a preliminary question in respect of paragraphs 7, 8, 10 and 13 of Telstra's statement of claim.[2] Those paragraphs related to the representation set out above, whether it was made in trade or commerce, whether it was false, misleading, deceptive and/or likely to mislead or deceive, and whether Optus threatened or intended to continue to make the representation.

14 The urgent hearing of the preliminary question took place on 22 May 2018. On 30 May 2018, the judge delivered judgment in favour of Optus and made orders dissolving the interlocutory injunction, dismissing the claim set out in paragraphs 7, 8, 10 and 13 of Telstra's statement of claim and ordering Telstra to pay Optus's costs of the interlocutory application and the preliminary question.[3]

15 The judge held that the advertisement did not contravene ss 18, 29(1)(b) or 29(1)(g) of the Australian Consumer Law because the representation was not capable of arising from the impugned conduct of circulating the advertisement, and reasonable members of the class of consumers to whom the advertisement was directed would not perceive the pleaded representation as arising from the advertisement.[4] It was therefore not necessary to decide whether the representation alleged by Telstra was misleading or deceptive or likely to mislead or deceive.

16 The trial judge identified the relevant principles for assessing whether conduct is misleading or deceptive or likely to mislead or deceive for the purposes of s 18, in terms accepted by both parties. In accordance with authority, the judge stated that, in the context of an impugned advertisement, determination of the issue requires a two-step process. It is necessary to ask first whether the pleaded representation is conveyed by the advertisement and secondly whether the representation conveyed is misleading or deceptive, or likely to mislead or deceive.[5]

17 The judge held that it was necessary first to identify the class of consumers likely to be affected by the conduct. He identified the class as 'potential purchasers of mobile telephone services in Australia'.[6] He then set out evidence as to the reach of the Telstra brand on the basis that it went to the background knowledge which may be imputed to reasonable members of the identified class of consumers.[7]

18 The judge then pointed out that Telstra had alleged that the advertisement conveys a single representation and that this representation contained two 'interwoven aspects', namely that:

a) 'there has been a significant and permanent change in the relationship between the Telstra and Optus mobile networks'; and

b) 'Optus [is] now undisputedly operating a better mobile network overall than Telstra.'[8]

19 The judge went on to state that, where an advertisement may sustain more than one reasonable interpretation, each interpretation must be examined in relation to its capacity to mislead or deceive reasonable members of the relevant audience.[9]

20 He stated further that the test is whether the representation would mislead or deceive 'ordinary or reasonable' members of a particular class of consumers. In that context, it is necessary to isolate by some criterion a representative member of that class.[10]

21 The judge therefore stated that it was necessary to consider the effect of the advertisement on ordinary and reasonable people within the class of potential purchasers of mobile telephone services. He stated that he needed only to consider the representation that was pleaded and whether that representation was reasonably open.[11]

22 The judge found that the pleaded representation was not capable of arising from the impugned conduct of circulating the advertisement. He found that reasonable members of the class of consumers to whom the advertisement was directed would not perceive the pleaded representation as arising from the advertisement. He explained:

First, there are the words 'permanent change.' In my view, the advertisement does not convey to reasonable members of the identified class that the relative market positions of Telstra and Optus have undergone a permanent change. To support this finding, I refer to the evidence led by Optus as to the background knowledge of reasonable members of the identified class.

Reasonable people who are potential purchasers of mobile telephone services in Australia are aware that: first, there are three major players in the market (Telstra, Optus and Vodafone); and secondly, the market is highly competitive. It would be fanciful to imagine that the humorous image of a Telstra phone box in a desert landscape would persuade a reasonable person that Telstra's strong position in the market has been permanently destroyed. The far-reaching nature of Telstra's recent advertising campaign, as described above in the evidence of Mr Nicholas, indicates that Telstra's presence in the market is prominent in the minds of members of the identified class of consumers.

It might be suggested that the pleaded representation would be conveyed to a reasonable person, if the competition between Telstra and Optus was something of which that person were unaware. For example, a recently arrived immigrant might consider purchasing a mobile telephone service without understanding the nature of the Australian market. My response to this suggestion is twofold. First, such a person would still not perceive in the advertisement the pleaded representation: lacking an awareness of Telstra and Optus, he would not recognise the Telstra phone box in the sand, nor understand the rivalry to which the advertisement alludes. Secondly, as among the varied reactions which the advertisement must elicit from members of so broad a class, it may be that the view of this hypothetical immigrant is on the extreme end, such that the Court would be right to overlook it for the purposes of an analysis under s 18 of the ACL.[12]

It is true that the reference to the 2017 P3 Report lends a legitimising air to the advertisement's allusions to empires ending; however, in my view, this does not overcome the background knowledge of reasonable consumers, nor the obviously humorous nature of the advertisement.

The second element of the pleaded representation to which I will refer is the word 'undisputedly'. The word 'undisputed' means 'beyond argument', 'incontrovertible', or 'unquestionable'. Telstra pleads that the advertisement conveys, in its second aspect, that Optus is 'now undisputedly operating a better mobile network overall than Telstra.' A single report, the name and pedigree of which is unlikely to be widely recognised among the broad cross-section of the Australian public that constitutes the identified class of consumers, is insufficient to convey to a reasonable person that the claimed superiority of Optus is 'undisputed.'[13]

23 Telstra seeks to appeal on the following four proposed grounds:

Ground 1 The trial judge erred in law in holding that the representation that was pleaded by Telstra in paragraph [7] of Telstra's statement of claim ... (Representation) was not capable of being conveyed by the advertisement described in paragraph (ii) of the particulars ... (Advertisement) because Telstra's own advertising showed that its strong position in the market had not been permanently destroyed ...

Ground 2 The trial judge erred in law in holding at Reasons, [39]-[40] that the class of persons to whom the Advertisement is directed (Class):

(a) included only persons who know that:

(i) there are three major players in the market for mobile telephone services in Australia (Telstra, Optus and Vodafone);

(ii) the market is highly competitive; and

(iii) Telstra had recently engaged in an advertising campaign of a far-reaching nature; and

(b) excluded persons such as recently arrived immigrants considering purchasing a mobile telephone service.

Ground 3 The trial judge erred in law in holding that [he] needed only to consider the Representation: Reasons, [35], as [he] should also have considered nuances of the Representation which were not substantially different from or no more serious than the Representation (Nuances).

Ground 4 The trial judge erred in law in not finding that the Representation, or a Nuance, was conveyed by the Advertisement to the Class: cf Reasons, [37]-[42], because the trial judge should have, and failed to, consider the dominant overall impression conveyed by the Advertisement taken as a whole.

Proposed ground 1 - Misconstruction of representation

24 Under its first proposed ground, Telstra contended that the judge had not engaged with the representation it had alleged. It pointed to the fact that the judge had found that it was fanciful to imagine that the advertisement would convey to a reasonable person that Telstra's strong position in the market had been 'permanently destroyed'. It was submitted that this was not the representation Telstra alleged. Instead, it had claimed that Optus had represented that there had been a 'significant and permanent change' in the relationship between Telstra and Optus's mobile networks.

25 Counsel submitted that the judge had not simply used 'destroyed' to mean 'changed' because the fact on which he relied, namely that Telstra had recently engaged in far-reaching advertising, could not bear on a 'change' in the market, whereas it might suggest that Telstra's position had not been destroyed.

26 Optus submitted that the judge addressed the correct question, namely whether the advertisement conveyed the alleged representation to the ordinary and reasonable members of the identified class of potential purchasers of mobile telephone services in Australia. In doing so, he rightly drew attention to the humorous and exaggerated nature of the advertisement. The pleaded representation was, in effect, that Telstra had been permanently relegated to second place. That amounted to saying that its position was destroyed.

27 In our view this ground cannot succeed. There is no material difference, in context, between representing that Telstra's position in the mobile telephone services market, relative to Optus, has been permanently changed and saying that Telstra's 'strong position' in that market has been permanently destroyed. Especially in the humorous and light-hearted context of the advertisement, they are different ways of saying that, in that market, Telstra is no longer in the strong position in respect of Optus that it was previously, and that it will not be in future. As a matter of logic, it could be said that either representation was less likely to be conveyed to a class of consumers aware (as the judge found) of Telstra's far-reaching advertising and the highly competitive nature of the market.

Proposed ground 2 - Identification of class

28 Telstra submitted next that the judge had mistakenly excluded from the class of persons to whom the advertisement was directed persons who were not aware of Telstra's own far-reaching advertising, as well as recently arrived immigrants considering purchasing a mobile telephone service. As to the first group, it was submitted that there was no proper evidentiary basis for concluding that members of the class of consumers would know about Telstra's advertising. In relation to the second group, it was contended that the class properly included all potential purchasers of mobile telephone services, and that recently arrived immigrants would almost certainly learn that the providers of such services include Telstra and Optus and understand their rivalry. In any event, it was contended that the identity of the provider whose buried phone box appeared in the advertisement was not relevant, because the advertisement conveyed even to a person who had never heard of Telstra that the previously dominant provider was buried and its empire had ended.

29 Optus contended that the judge had not excluded the above persons from the class of potential consumers to whom the advertisement was directed. Instead, he had properly sought to identify the reactions of the hypothetical reasonable member of the class. This included making findings of fact about that person's knowledge and deciding whether some reactions would not be those of the ordinary and reasonable members of the class.

30 The principles governing the determination whether a representation made by way of a public advertisement is misleading or deceptive are not in doubt. Nor is it suggested that the judge applied the wrong principles. Telstra takes issue instead with the manner in which the judge undertook that exercise.

31 The question is whether the representation alleged to have been conveyed by the advertisement would mislead or deceive ordinary or reasonable members of a particular class of consumers or be likely to do so.[14] It is necessary for that purpose to isolate by some criterion a representative member of the class to which the advertisement was directed.[15] That involves excluding reactions that are extreme or fanciful.[16]

32 Senior counsel for Telstra accepted at the hearing before us that reasonable people who are potential purchasers of mobile telephone services in Australia know that there are three major players in the market (Telstra, Optus and Vodaphone) and that the market is highly competitive.[17] Argument under this proposed ground was therefore directed principally at the position of recent immigrants. Telstra submitted that the reactions of such persons were not to be treated as 'extreme' or 'fanciful'. They would know of the competitive nature of the market, from Telstra's advertising, and even without knowing of Telstra's traditional strength in that market they would readily understand the advertisement as conveying the pleaded representation.

33 In our opinion this proposed ground does not have a real prospect of success. The judge first found that a recently arrived immigrant might not perceive the pleaded representation, because he or she could lack an awareness of the rivalry between Telstra and Optus to which the advertisement related, and would also not recognise the Telstra phone box in the sand.[18] That would indicate a lack of knowledge of the previously dominant position of Telstra, without which the representation as to a significant and permanent change in the relationship between Telstra and Optus could not be conveyed. Mere knowledge of the competitive nature of the market would not supply that historical knowledge. Similarly, a person not understanding that the phone box in the sand belonged to Telstra would not appreciate that the image was conveying a representation about the previously dominant carrier as distinct from some other message (for example as to the obsolescence of payphones). As a result, a recently arrived immigrant would not understand that it was being said that there had been a permanent change in the relationship between the Telstra and Optus mobile networks, as alleged.

34 We would therefore reject the attack upon the judge's conclusions as to the likely reaction of a newly arrived immigrant. But in any event, it would have been entirely appropriate to exclude from consideration as 'extreme' a reaction to the advertisement that was based upon a lack of understanding of the rivalry between Telstra and Optus. This was all that the judge contemplated in his reasons.[19] He did not exclude from the class of persons to whom the advertisement is directed either those persons unaware of the competitive state of the market or recent immigrants to Australia. He applied the accepted principles in this area so as to identify the hypothetical ordinary and reasonable member of that class.

35 It should be added that counsel for Telstra also contended that it would have sufficed for Telstra to establish that the pleaded representation might be conveyed to a 'significant number' of recently arrived immigrants among those persons to whom the advertisement was directed.[20] Senior counsel for Optus submitted that to ask whether a significant number of the class would understand an advertisement to have a particular meaning was merely another way of stating the principle by which extreme or fanciful reactions were to be excluded. Given the above conclusion that the judge was correct to decide that the representation was not conveyed to recently arrived immigrants,[21] nothing turns on this question and it is unnecessary to decide whether the legal submission advanced by Telstra is consistent with the High Court authorities upon which the judge relied.

Proposed ground 3 - Nuances of the representation

36 By its third proposed ground, Telstra submits that the judge erred by failing to consider whether nuances of the representation that were not substantially different from it, or no more serious, would have been conveyed by the advertisement to the relevant class of consumers. Telstra submitted that it was necessary to test the advertisement against each meaning of the representation which was reasonably open. It pointed to the following statement in Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc:

Where ... the advertisement is capable of more than one meaning, the question of whether the conduct of placing the advertisement in a newspaper is misleading or deceptive conduct must be tested against each meaning which is reasonably open. This is perhaps but another way of saying that the advertisement will be misleading or likely to mislead if any reasonable interpretation of it would lead a member of the class, who can be expected to read it, into error ...[22]

37 Instead, it was submitted, the judge had considered only the representation in the terms pleaded and not other reasonably available interpretations of that representation. By way of example, Telstra submitted that the judge ought to have considered nuances of the word 'undisputedly' such as 'objectively'. Telstra submitted that the approach for which it contended had been applied by Siopis J in Snowdale, interpreting that case as one where the plaintiff succeeded on a representation that had not been precisely pleaded.[23]

38 Optus submitted that Telstra had pleaded a single representation and relied on no other conduct. It had not asked the judge to consider nuances of the representation, or pleaded alternative representations. In any event, the principle that the meaning of a representation may include unpleaded variants or nuances is peculiar to defamation law.[24] It was submitted that the Tobacco Institute case showed only that it was necessary to decide whether the pleaded representation was reasonably open, even if it was not the only meaning.

39 This proposed ground must fail. Telstra pleaded a single representation and advanced no argument at trial as to suggested nuances of that representation. It was not incumbent on the judge in those circumstances to decide any different case. As Optus submitted, the distinctions drawn in defamation law in this area have no place in the field of misleading and deceptive conduct. Telstra did not seek to explain why it should be otherwise.

40 Telstra's reliance upon the observations of Hill J in Tobacco Institute was misplaced. The passage set out above must be understood in the context of the case, in which the judge was required to decide whether an advertisement, capable of more than one meaning, was misleading and deceptive. The pleading in that case had not assigned any particular meaning to the advertisement about which complaint was made. In those circumstances, Hill J's observations were clearly directed to identifying the meanings which the advertisement was capable of bearing, not whether any pleaded representation had more than one meaning.

41 Nor does consideration of Snowdale advance Telstra's argument. The pleaded representation in that case was that eggs supplied in free range egg cartons were produced by hens able to move freely on an open range on an ordinary day, and/or hens most of which moved about freely on an open range on most days.[25] The marketing material in question used the expression 'free range eggs' and the court was required to determine the meaning conveyed by that expression. It was held that a significant number of relevant consumers would understand 'free range eggs' to be laid by 'free range hens', being hens that regularly spend time roaming outdoors in a spacious environment in which the hen is able to give expression to her natural behavioural traits.[26] Siopis J added that this understanding of the meaning was sufficiently reflected in the pleaded representation, despite the awkwardness with which the pleading had been expressed.[27] As such, the pleaded representation might reasonably have been understood by a significant number of relevant consumers.[28]

42 Leaving to one side the references to a significant number of consumers, it is apparent that Siopis J was doing no more than matching the representation he had identified to the one pleaded. The meaning Siopis J identified was the one contended for, even if there were other possible meanings of the expression 'free range eggs'.[29] These statements provide no support for the notion that the court should look to further meanings which are unpleaded nuances of the meaning pleaded.

Proposed ground 4 - Dominant message of the advertisement

43 Finally, Telstra submitted that the question for the judge was whether the general thrust or dominant message of the advertisement was misleading and deceptive. It was said that the judge had instead considered whether the individual words of the representation were conveyed. The various elements of the advertisement ought to have been considered together. It was pointed out that the judge had not even referred to the prominent words 'Empires End. That's what they do' or considered how those words were reinforced by the lop-sided Telstra phone box buried in the sand against a backdrop of pyramids. Telstra also took specific issue with the judge's conclusion that members of the class would treat the reference to the P3 report as lacking credibility because they would not recognise the source of that report. In addition, Telstra submitted that the judge had irrationally found that knowledge of Telstra's own marketing neutralised the misleading or deceptive nature of the advertisement.

44 Optus submitted that the judge reproduced the full contents of the advertisement and there was no basis for the contention that he failed to consider its full terms or dominant message. The judge had not found that the P3 report would be regarded as lacking credibility, only that the reference to P3 did not convey to a reasonable person that the claimed superiority of Optus was 'undisputed'. Nor had the judge held that knowledge of Telstra's advertising neutralised any misleading or deceptive conduct. He simply took such knowledge into account in determining whether the advertisement conveyed the alleged representation to ordinary and reasonable members of the identified class.

45 There is insufficient likelihood that this ground would succeed. It may be accepted that the question whether an advertisement is misleading or deceptive may, depending upon the nature of the advertising, turn on whether the representation alleged was conveyed by the general thrust or dominant message of the advertisement.[30] However, the judge did not take any different approach. In particular, he did not find that the representation was not conveyed because it would be carefully scrutinised by its audience. That approach could have led to the error of failing to accommodate the fact that the audience would view the advertisement in only a perfunctory way, absorbing only its general thrust or dominant message. That was the vice to which the authorities relied on by Telstra were directed.

46 The judge held that the pleaded representation was not capable of arising from the advertisement.[31] He described and plainly took account of the whole of the advertisement. The fact that he pointed to two elements of the pleaded representation that were not established, being 'permanent change' and 'undisputedly' does not demonstrate any error.

47 In that context, the judge found that a 'single report, the name and pedigree of which is unlikely to be widely recognised among the broad cross-section of the Australian public that constitutes the identified class of consumers', was insufficient to convey to a reasonable person that the superiority of Optus was 'undisputed'.[32] Earlier, he had accepted that the reference to the report added a 'legitimising air' to the 'allusions to empires ending'.[33] It is clear that the judge was not saying, as Telstra submitted, that the P3 report would be regarded as lacking credibility. This treatment also serves to confirm, contrary to Telstra's submissions, that the judge was well alive to the reference in the advertisement, reinforced by its imagery, to the ending of empires.

48 It is also not correct to say that the judge found that the advertising of Telstra neutralised any misleading or deceptive message conveyed by the advertisement. The judge did not depend on knowledge conveyed by any Telstra advertising for such an effect. He took account of the fact that members of the class to whom the Optus advertisement was directed had prior knowledge of Telstra's position in the market, as evidenced by the existence of its far-reaching marketing activities.[34]

49 None of the proposed grounds has any real prospect of success.[35] Leave to appeal must be refused.

[1] Telstra Corporation Ltd v Singtel Optus Pty Ltd [2018] VSC 247 ('Interlocutory Reasons').

[2] In the proceeding, Telstra also sought relief in respect of an earlier version of the advertisement which is not presently relevant.

[3] Telstra Corporation Ltd v Singtel Optus Pty Ltd [No 2] [2018] VSC 280 ('Reasons').

[5] Ibid [7], citing Reckitt Benckiser (Australia) Pty Ltd v Procter & Gamble Australia Pty Ltd [2015] FCA 753 [35] (Gleeson J); Australian Competition and Consumer Commission v Telstra Ltd [2007] FCA 1904; (2007) 244 ALR 470, 474-6 [14]-[19] (Gordon J).

[9] Ibid [30]-[31], citing Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1, 59 (Hill J) ('Tobacco Institute').

[10] Ibid [32]-[33], citing Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435, 443 [7] (French CJ, Crennan and Kiefel JJ) ('Google'); Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45, 85 [103] ('Campomar').

[12] See Campomar [2000] HCA 12; (2000) 202 CLR 45, 86-7 [105]; REA Group v Fairfax Media Limited [2017] FCA 91 [18] (Murphy J).

[13] Reasons [38]-[42] (some citations omitted) (emphasis in original).

[14] Campomar [2000] HCA 12; (2000) 202 CLR 45, 85 [102] ; Google (2013) 249 CLR 435, 443 [7] (French CJ, Crennan and Kiefel JJ).

[15] Campomar [2000] HCA 12; (2000) 202 CLR 45, 85 [103].

[20] Reference was made to Australian Competition and Consumer Commission v Snowdale (2016) 339 ALR 455, 480 [169]-[170] (Siopis J) ('Snowdale'), citing CPA Australia Ltd v Dunn [2007] FCA 1966; (2007) 74 IPR 495 [28] (Weinberg J).

[21] See [33] above.

[22] [1992] FCA 630; (1992) 38 FCR 1, 50 (Hill J).

[23] (2016) 339 ALR 455.

[24] David Syme & Co Pty Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667, 668-9 [2] (Ormiston JA, with Charles JA agreeing); Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987; (2004) 208 ALR 459, 475 [49] (Gyles J).

[25] (2016) 339 ALR 455, 479 [160].

[30] Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640, 653-4 [45]-[47], 656 [52] (French CJ, Crennan, Bell and Keane JJ).

[35] Supreme Court Act 1986 s 14C; Kennedy v Shire of Campaspe [2015] VSCA 47 [12] (Whelan and Ferguson JJA).