REASONS FOR JUDGMENT
1 There is before me a proceeding invoking this Court's jurisdiction under the Trade Practices Act 1974 (Cth) ("the Act"). In the proceeding, the applicant, Tetra Pak Marketing Pty Ltd ("Tetra Pak"), has alleged against the first respondent, Musashi Pty Ltd, contravention by the latter of both subs 52(1) and s 55 of the Act, together with resulting loss to Tetra Pak. Tetra Pak has also alleged against the second respondent, Mr Timothy Frederick Horewood, involvement by him, within the meaning of subs 75B(1) of the Act, in Musashi's contraventions to which I have just referred. In reliance on the allegations to which I have referred above, Tetra Pak has claimed against both Musashi and Mr Horewood declaratory relief, injunctive relief and damages. Any consideration by me of Tetra Pak's claims for damages against the respondents has been postponed pending my determination of Tetra Pak's claims for declaratory and injunctive relief against them.
2 I should say immediately that, given Musashi's corporate status, Tetra Pak could not establish in the present proceeding any contravention by Musashi of s 55 of the Act which would not also amount to a contravention by the latter of subs 52(1) of the Act. Tetra Pak could, however, establish a contravention by Musashi of subs 52(1) of the Act which would not also amount to a contravention by the latter of s 55 of the Act: compare Westpac Banking Corporation v Northern Metals Pty Ltd (1989) ATPR ¶40-953 at 50,413 (Davies and Spender JJ) and 50,410 (Northrop J (dissenting)), discussing the relationship between subs 52(1) of the Act and s 55A of the Act, the latter provision being materially identical for present purposes to s 55 of the Act. In those circumstances, it is unnecessary that I deal in the present proceeding with Tetra Pak's allegation of contravention by Musashi of s 55 of the Act, an allegation to which, in any event, Tetra Pak devoted only minimal attention in its final written submissions before me and no attention at all in its final oral submissions before me.
3 Musashi's alleged contravention of subs 52(1) of the Act has arisen from the acknowledged publication by it of a certain item ("the item") which appeared in an undated stapled centre-bound brochure entitled "Musashi News" ("the brochure"), the brochure consisting of unnumbered first and last pages together with ten intervening numbered pages. In about August 1999, Musashi published perhaps as many as forty thousand copies of the brochure. (It would appear that the vast majority of those were published in Australia, although some were also published in New Zealand. I will ignore the latter for present purposes, as the parties did in substance in their final submissions before me.) The brochure was published to gymnasiums, health food stores, chemists and other retail outlets. (Such retail outlets did not include supermarkets, at which, apparently, distribution to the public of the brochure would not have been practicable.)
4 It will obviously be necessary for me to devote considerable attention in these reasons for judgment to the contents of the item; however, before I do so, it is convenient for me to give some background information about each of the three parties to the proceeding.
5 I will deal first with Tetra Pak.
6 Tetra Pak, among other things, manufactures and sells to the producers of liquid foods, mainly milk and juice, packaging materials in roll form, to be made up by those producers into packaging for those foods. Those packaging materials are manufactured by Tetra Pak at its plant in Fairfield, New South Wales. Tetra Pak is part of a worldwide group and Tetra Pak manufactures those packaging materials to specifications used in the group's fifty-seven manufacturing plants throughout the world.
7 Those packaging materials include rolls to be used in the making up of packaging referred to as "aseptic" packaging or, more commonly, as "long life" packaging; they also include rolls to be used in the making up of packaging referred to (not as "septic" packaging, which would hardly be an appetising description of it, but) as "non-aseptic" packaging or, more commonly, as "fresh" packaging. The components of Tetra Pak's packaging materials for aseptic packaging include, as well as cardboard and polyethylene, aluminium in foil form; however, so far as I am aware, the evidence before me does not disclose the components of Tetra Pak's packaging materials for non-aseptic packaging, although that evidence does at least disclose that aluminium is not among those components.
8 Tetra Pak sells annually in Australia a quantity of rolls of packaging materials from which approximately one billion packages are made up. About one half of those packages are of the aseptic type and one half of the non-aseptic type.
9 I will deal next with Musashi.
10 Despite its name, apparently chosen on the basis that it had been the name of a well-known seventeenth century Japanese warrior and author, Musashi is an Australian-owned and operated company. Since 1988, it has sold in Australia, as well as in other countries, a range of products described as "Sports Supplement products", including powders, drinks and food bars. Among those products in recent times has been a drink called "P30", a name which presumably is intended to refer to the "30" grams of "P" (that is, protein) said to be contained in one serving of the drink. Musashi distributes its products through gymnasiums, health food stores, chemists, supermarkets and other retail outlets. It promotes the sale of its products through various publications, of which the brochure was one.
11 Finally, I will deal with Mr Horewood.
12 Mr Horewood began Musashi and continues to run it. He is its managing director and majority shareholder. He has formal scientific qualifications as an electronic engineer (but not otherwise). He was the author of the item and it was he who decided that Musashi would both include the item in the brochure and publish the brochure.
13 As to the item, it was referred to on the unnumbered first page of the brochure by the words "P30 - Revolutionary Protein Source". The item was then referred to on the page of the brochure numbered "4" by the words "New Concept". There also appeared on that page three photographs, showing that P30 was packaged in bottles, those bottles being made of some transparent material which appears to be a plastic. The item had a title, "Introducing P30". The item read as follows (for ease of later reference in these reasons for judgment, I have added a letter to the beginning of each paragraph of the item):
"[A] One of the biggest hurdles facing bodybuilders today is getting the high amounts of protein into their diets without the nuisance of having to take in added fats and carbohydrates. Protein Powders containing such ingredients as Whey Protein Concentrate (WPC) and more recently Whey Protein Isolate (WPI) have become common way of taking in high levels of protein. However, a major problem associated with this source of protein is the inconvenience of having to mix your favourite protein powder in a blender or shaker. Not only is this messy and inconvenient, but as we all go through our busy daily schedules, we do not always have the time to sit down and mix our favourite shake.
[B] Hearing this from bodybuilders and athletes in all codes, Musashi has released into the market the perfect alternative. P30 Protein Drink is a ready made, spring water based drink designed specifically for people wanting a quick shot of protein throughout the day. P30 contains 30grams of the highest quality protein in the form of Ionised Whey Protein Isolate (WPI) along with a specific blend of amino acids including BCAA's [sic; that is, branched chain amino acids] and L-Glutamine. Whey Protein Isolate has recently become the most popular dairy protein due to its high protein percentage, ease in [sic] digestion and the high levels of BCAA's [sic]. With Zero Fat and Zero Carbs and most importantly a great flavour, P30 will revolutionise the protein drink market.
[C] In the past, inferior products released in tetra pak form have hit the market. These drinks have been said to contain high levels of Whey Protein Concentrate in a milk base. Problems associated with these types of drinks include the levels of fat that an athlete must consume in order to receive the levels of protein required. In turn, being milk based products, a higher level of digestion is required, often taking up to 2 hours. By drinking P30 immediately after training (this is called the window of opportunity), the body will receive high levels of protein that it requires for assisting in the recovery process without added hassles.
[D] Another problem associated with Tetra Pak products is the possibility of Aluminium being released into the products. Tetra Paks are made from paper and plastic which is bonded to a layer of aluminium. Aluminium is a heavy metal which if found in the body can prove to be very toxic. With Tetra Pak products designed specifically for extended shelf life, the possibility of aluminium leaking into the products increases over time. Although it is still unclear as to what levels of aluminium we could expect in a tetra pak, what we are certain of is that once in the human body, it is a chemical that will do more harm than good.
[E] Bodybuilders are not the only people to benefit from this revolutionary new product. Both the elderly and people recovering from illness often had difficulty taking in the levels of protein required because of an intolerance to milk based products, but now that seems a thing of the past. Athletes of all types can also benefit from P30 because of its ability to help the body recover from strenuous exercise. With high levels of BCAA's [sic] found in P30, it is the perfect after training aid.
[F] P30 is available in delicious Orange and Banana flavour and is available at all good health food stores and gymnasiums. Not only is it convenient, it won't break any diet rules."
14 It was the making by Musashi of certain statements in [D] which led Tetra Pak to complain in the present proceeding about the former's publication of the item.
15 In Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679 at 683, Mahoney JA, of the New South Wales Court of Appeal, emphasised that an essential issue in determining whether a person's conduct has contravened subs 52(1) of the Act is determining "what is to be taken from that conduct", an emphasis approved of by this Court (Tamberlin J) in a materially identical context in Australian Securities and Investments Commission v Solution 6 Holdings Ltd (1999) 30 ACSR 605 at 611, [35]). An essential issue which thus arises in the present proceeding and to which I will turn immediately in these reasons for judgment is what was to be taken from the item and, in particular, what was to be taken from certain statements which had been made in [D].
16 There are two aspects of the process of answering that question to which I draw attention at the outset.
17 First, what was to be taken from the relevant statements includes, not only what was to be taken from them about the external world, but also what was to be taken from them about Musashi's own state of mind. As to what was to be taken from the relevant statements about Musashi's own state of mind, one issue which arises (although it may not be the only one, depending on its resolution) is whether Musashi was to be taken from those statements as having made assertions about the external world as facts or as mere opinions.
18 Secondly, the question need not be answered by giving to it a single "correct" answer and that is so whether one is focusing, in answering it, on what was to be taken from the relevant statements about the external world or on what was to be taken from them about Musashi's own state of mind. The question is instead to be answered by deciding what could reasonably have been taken from the relevant statements by those readers to whom they were directed. That may mean that, in the present case, there are many "correct" answers to the question, some of which may even contradict one another.
19 Both of the aspects to which I have just referred of the process of answering the question of what was to be taken from certain conduct were discussed by a Full Court of this Court in Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 (Sheppard, Foster and Hill JJ). The context in that case was the publication by the Tobacco Institute in various newspapers of a particular advertisement concerning the possible adverse health effects of environmental tobacco smoke. I will make reference below, not only to the Full Court's discussion of the two aspects to which I have referred above of the process of answering the question of what was to be taken from certain conduct, but also to its discussion of other aspects of that process.
20 Sheppard J said (at 5-6) of the words of the advertisement under consideration in that appeal,
"Although words ought to be given their ordinary English meaning it needs to be recognised that some words or phrases will be capable of having more than one meaning. This is not a case of resolving such a problem by deciding that one particular meaning is the appropriate one. Rather, it is a case of ensuring that due allowance is made for the fact that different persons, each reading the advertisement reasonably and according to ordinary English usage, may reach different conclusions as to the meaning of particular expressions. Each of these possible meanings has to be allowed for. If one is misleading or deceptive there will be a breach of the Act….
There was much discussion during the argument about whether the statements … were statements of fact or opinion. It was the submission of counsel for the appellant that no reader could reasonably think that the statements were other than statements of opinion. I would reject that submission. I think that some readers may have taken that view. But it would be equally open to others to conclude that the advertiser was making factual statements…. [T]he better view is that the statements … are statements of fact, but it is enough for present purposes to say that it was open to readers to infer that they were and to conclude that a significant number of readers would have so read them."
Sheppard J then turned (at 6) to the question of the meaning of a number of the words and expressions used in the advertisement complained about in that case. For the purpose of resolving that question, Sheppard J relied on "the ordinary meaning which they [that is, the words and expressions] have when they are used in the general run of English expression whether written or oral", as opposed to some technical meaning which they might also bear. So far as concerned two of the words which had been used in the advertisement, namely, "evidence" and "disease", Sheppard J considered that readers of the advertisement might reasonably have taken from the use of each of those words either one of two definitions of it appearing in the Oxford English Dictionary (2nd ed.) ("the OED"); he therefore considered each of those possible meanings of each word when determining whether the advertisement contravened subs 52(1) of the Act (see at 6-7 and 10).
21 Foster J (at 26) rejected any notion:
"… that a court dealing with a claim under s 52 of the Act based on an alleged misleading or deceptive statement must necessarily make, as it were, a preliminary determination of its own as to whether the statement complained of is to be classified as one of fact or one of opinion: that is to say, a determination without regard to what might be the view of the class of readers, or some significant section of it, to which the statement is directed. It is the court's perception of the character which those readers would accord to the statement which is, at all stages, the determining factor."
His Honour then rejected (at 26-27) a somewhat different submission which had been made before the Full Court by the Tobacco Institute, namely, that the relevant advertisement "was so obviously a statement of opinion and not of fact that only the most stupid of readers, whose interests, on the weight of authority, fall outside the protective circle of s 52, would have read it as a statement of fact". In doing so, his Honour said,
"Whilst, no doubt, a section of the newspaper reading public might regard the [advertisement] as merely an expression of … opinion, the remaining section which, in my view, would be of substantial size, would see it as a statement of fact. This, of course, is sufficient to require that it be accepted as a statement of fact when considering whether its publication constituted a breach of s 52 of the Act."
Foster J also made a number of references in his reasons for judgment to the process of determining the meaning of particular words and phrases in the advertisement. He referred (at 29) to "the question of what meanings could reasonably be attributed to the [advertisement] by the hypothetical lay reader"; he referred (at 31) to the fact that a significant number of readers would have understood a particular phrase in the advertisement in a particular sense and then continued, "It may have been capable of bearing other meanings, but in the type of inquiry necessarily required by s 52, that is beside the point"; he rejected (also at 31) the notion that the word "evidence" appearing in the advertisement should be construed according to the "meaning that it may have for persons trained in the disciplines of law or science"; and he rejected (at 32) the notion that the word "cause" appearing in the advertisement should be construed according to the meaning attributed to it in "scientific, philosophical or legal discussion".
22 Hill J referred (at 44-45) to two "separate, albeit related" questions arising in the appeal before the Court, with which questions it was necessary to deal: "The first is whether the … advertisement … should be seen to be a statement by the appellant of its opinion…. The second is the meaning of the words used in the advertisement".
23 As to what he had described as the first question, Hill J said (at 46) that "it must essentially be a question of fact whether a particular formulation of words expresses merely an opinion or a statement of fact". In the resolution of that question, his Honour said (at 46-47),
"[T]he reader's perception of the maker's intention … will ordinarily be the significant matter. The question will generally be resolved by looking to the persons to whom the statement was directed and asking whether any members of that class of persons would reasonably understand the statement to be one of fact or of opinion.
Where, as here, the statement is directed to the public at large, it must be borne in mind that the class of persons will include the intelligent and the less intelligent, the informed and the less informed. The fact that some members of the class may perceive the statement as one of opinion will not avail a respondent if a not insignificant class of persons could reasonably be expected to perceive it as a statement of fact.
…
[T]he advertisement is capable of being perceived as a statement of fact by a not insignificant section of the public, even if some members of the public, well informed, would not so see it.
…
[T]he advertisement is reasonably open to be interpreted either as a statement of opinion … or as a statement of fact…. If the former, it will be misleading, or will be likely to be misleading, if the [applicant] has shown that the view was not bona fide held by the [respondent] (and this is not suggested) or that the view was not reasonably capable of being held. If the latter, the [advertisement] will be misleading or likely to be misleading (ie to lead the reader into error) if the statement of fact made in it be false."
24 As to what he had described as the second question, Hill J said (at 48; 50),
"The elucidation of the meaning of the words used in [the advertisement] is, like the question whether the [advertisement] is a statement of fact or opinion, made more difficult because more than one possible construction may be adopted by a particular reader….
…
Where, as in the present case, 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 or deceive if any reasonable interpretation of it would lead a member of the class, who can be expected to read it, into error…."
25 While there were differences of expression among the three Judges who decided the Tobacco Institute appeal and, further, while there are differences of expression between all of them and what I have said above, I consider that the passages which I have set out above from their Honours' reasons for judgment in that appeal support, in substance, the correctness of the approach to which I have referred at [17] and [18] above. Accordingly, I will deal with what was to be taken from the statements which had been made in [D] by focusing first on what could reasonably have been taken from them about the external world by those readers to whom the item had been directed. (Those readers, it appears from the item, were "bodybuilders", "the elderly", "people recovering from illness" and "[a]thletes of all types" (as to the first class of readers, see [A], [B] and [E]; as to the last three classes of reader, see [E]).)
26 However, by way of introduction to what could reasonably have been taken about the external world from the statements which had been made in [D], it is necessary that I say something about the preceding three paragraphs of the item, since those preceding three paragraphs provided part of the context in which the statements which had been made in [D] would be considered by those readers to whom the item had been directed.
27 All that I need point out about [A] for present purposes is that it stated that bodybuilders have commonly "tak[en] in high levels of protein" in the form of "Whey Protein Concentrate (WPC) and more recently Whey Protein Isolate (WPI)".
28 As to [B], it contained the first reference to P30 in the text of the item. P30 was stated in [B] to be "spring water based", to contain "protein in the form of Ionised Whey Protein Isolate" and to have "Zero Fat". It was further stated in [B] that whey protein isolate "has recently become the most popular dairy protein due to", among other things, "its … ease in [sic] digestion".
29 Then, in [C], reference was made to protein drink "products released in tetra pak form", those products containing "Whey Protein Concentrate in a milk base". Those products were stated to be "inferior" and it could reasonably have been taken that what was being asserted was that they were inferior to P30, whose appearance in the market had been announced in the preceding paragraph of the item (as well as by the words "P30 - Revolutionary Protein Source" appearing on the unnumbered first page of the brochure, by the words "New Concept" appearing on the same numbered page of the brochure as the item, and by the words of the item's title, "Introducing P30"). Subsequently in [C] there were identified respects in which those products purportedly had "[p]roblems associated with" them. The problems which those products were stated to have were stated to "include" certain ones, from which it could reasonably have been taken that what followed immediately in [C] was not to be understood as an exhaustive enumeration of those products' problems.
30 It could reasonably have been taken that it was being asserted that one of the problems of those products was that they contained fat. It had, of course, already been stated in the preceding paragraph of the item that P30 contained "Zero Fat", so that the having of that problem by those products demonstrated their inferiority to P30 in a particular respect.
31 It could also reasonably have been taken that it was being asserted that one of the problems of those products was that, "being milk based", they required "a higher level of digestion …, often taking up to 2 hours". It had, of course, already been stated in the preceding paragraph of the item that P30 was "spring water based" and contained "Whey Protein Isolate", stated to have recently become the most popular dairy protein due, among other things, to "its … ease in [sic] digestion". It could therefore reasonably have been taken that the reference to "a higher level of digestion" was a reference to a time of digestion which was greater than that for P30, a conclusion which could reasonably have been taken to be reinforced by the concluding sentence of [C]. Again, the having by those products of that problem demonstrated their inferiority to P30 in a particular respect.
32 With that context mentioned, I turn now to the statements which had been made in [D]. I consider that persons reading the item could reasonably have taken from the statements which had been made in [D] at least eight assertions about the external world. I will first simply set out those eight assertions, each of which, in substance, I put both to counsel for the applicant and to counsel for the respondents during final oral submissions as ones then appearing to me to be reasonably capable of having been taken from the statements which had been made in [D]. (I note at this point that when, in substance, I put to counsel for the applicant during final oral submissions the eight assertions which I will set out below, he agreed that all of them could reasonably have been taken from the statements which had been made in [D].) I will then say something further about each of those assertions. They are as follows:
"1. In addition to those respects already identified in which those competitors of P30 containing whey protein concentrate in a milk base and packaged in Tetra Pak packaging have problems which cause them to be inferiorto P30, there is another respect in which those competitors have a problem which causes them to be inferior to P30, namely, their Tetra Pak packaging itself.
2. The problem which those competitors have because of their Tetra Pak packaging is one had equally by all other liquid foods packaged in Tetra Pak packaging.
3. All Tetra Pak packaging is made from, among other things, aluminium and is designed specifically for storing liquid foods for lengthy periods.
4. Aluminium is a heavy metal.
5. If ingested, aluminium can be very toxic to humans.
6. Aluminium from Tetra Pak packaging has the capacity to migrate into the liquid foods packaged in it and its capacity to do so increases over time.
7. Some quantity of aluminium from Tetra Pak packaging will usually migrate into the liquid foods packaged in it, although it has not yet been authoritatively determined what that quantity is.
8. However, what that quantity is does not matter, since, whatever it is, once one ingests it, it will cause one bodily injury."
33 "1. In addition to those respects already identified in which those competitors of P30 containing whey protein concentrate in a milk base and packaged in Tetra Pak packaging have problems which cause them to be inferior to P30, there is another respect in which those competitors have a problem which causes them to be inferior to P30, namely, their Tetra Pak packaging itself": that assertion could reasonably have been taken from the entirety of [D] and, as well, from the photographs of P30 to which I have already referred, those photographs appearing on the same page of the brochure as the item. It would have been reasonable to construe the opening words of [D], "Another problem with Tetra Pak products is …", as referring to liquid food products which had been packed in Tetra Pak packaging. It would also have been reasonable to construe those words as directing the reader (at least) back to [C], which paragraph had already identified so-called "inferior" competitors of P30 "released in tetra pak form", consisting of whey protein concentrate in a milk base, and had already referred to two of the "problems associated with" those competitors which rendered them inferior to P30. It would have been reasonable to construe the remaining words of [D] as identifying the further problem of (at least) those competitors of P30, which further problem also rendered them inferior to P30, as being their Tetra Pak packaging itself and, in particular, the aluminium which was said to be a component of that packaging. It would have been reasonable to take from the photographs of P30, which showed P30 packaged in transparent bottles, that P30 did not have the problem which (at least) those competitors had, because it was not itself packaged in a material of which aluminium was a component.
34 "2. The problem which those competitors have because of their Tetra Pak packaging is one had equally by all other liquid foods packaged in Tetra Pak packaging": that assertion could reasonably have been taken from the use in [D] of the words "Tetra Pak products", rather than a form of words which specifically limited the problem identified in [D] to those competitors of P30 which had been referred to in [C].
35 "3. All Tetra Pak packaging is made from, among other things, aluminium and is designed specifically for storing liquid foods for lengthy periods": that assertion could reasonably have been taken from the use in [D] of the words, "Tetra Paks are made from paper and plastic which is bonded to a layer of aluminium" and "With Tetra Pak products designed specifically for extended shelf life".
36 "4. Aluminium is a heavy metal": that assertion was made in terms in [D].
37 "5. If ingested, aluminium can be very toxic to humans": that assertion could reasonably have been taken from the use in [D] of the words, "Aluminium … if found in the body can prove to be very toxic".
38 (I note at this point that when, in substance, I put to counsel for the respondents during final oral submissions the five assertions which I have discussed above, I did not understand him to dispute that all of them could reasonably have been taken from the statements which had been made in [D].)
39 "6. Aluminium from Tetra Pak packaging has the capacity to migrate into the liquid foods packaged in it and its capacity to do so increases over time": that assertion could, in my view, reasonably have been taken from the use in [D] of the words, "A[ ] problem associated with Tetra Pak products is the possibility of Aluminium being released into the products" and "the possibility of aluminium leaking into the products increases over time".
40 There was, during final oral submissions before me, considerable discussion between counsel for the respondents and me about whether the assertion which I have just set out could reasonably have been taken from the words which I have just set out. Counsel told me that he would be "more comfortable" if, instead of the word "capacity", the word "potential" were used in describing the assertion which could reasonably have been taken from the relevant words, although he acknowledged that, in expressing such a preference, he might be "playing with words".
41 I think that he was. Whether one substitutes, for the notion of "the possibility of Aluminium being released" or "leaking", the notion of aluminium's having the "capacity" to be released, to leak or to migrate or the "potential" to do so, there could nevertheless reasonably have been taken from the words which I have just quoted the sense that the migration of aluminium from Tetra Pak packaging into liquid foods packaged in it is a thing that can happen. For instance, the word "possibility" is defined in the Macquarie Dictionary (3rd ed.) as meaning "the state or fact of being possible" or "a possible thing or person", while the first meaning given to the word "possible" is "that may or can be, exist, happen, be done, be used, etc" (my emphasis). I infer that counsel for the respondents preferred to speak in terms of "potential" so as, in effect, to draw in some meaning akin to the second meaning given to the word "possible" in the Macquarie Dictionary, namely, "that may be true or a fact, or may perhaps be the case, as something concerning which one has no knowledge to the contrary". While I am content to assume for the sake of argument that the words of [D] which I am presently discussing could reasonably have been taken as having used "possibility" in accordance with that second sense of the word "possible", that will not avail Musashi if those words could also reasonably have been taken as having used "possibility" in the sense which I have nominated above and I am unable to see any reason why they could not have been.
42 "7. Some quantity of aluminium from Tetra Pak packaging will usually migrate into the liquid foods packaged in it, although it has not yet been authoritatively determined what that quantity is": that assertion could, in my view, reasonably have been taken from the use in [D] of the words, "Although it is still unclear as to what levels of aluminium we could expect in a tetra pak, … once in the human body, it …" The use of the words "what levels … we could expect" could reasonably have been taken as conveying that one can expect that there will be in the liquid food some "levels", or quantity, of aluminium which has migrated from the Tetra Pak packaging, in other words, that the presence in the liquid food of some quantity of aluminium which has migrated from the Tetra Pak packaging is usual; the only matter which has still not been determined authoritatively is the extent of that quantity which usually migrates. The reasonableness of the taking of that meaning from the relevant words appears to me to be reinforced by the use of the words "once in the human body, it …", which could reasonably have been taken to refer back to the unknown quantity of aluminium and to imply that it will usually be ingested together with the liquid food.
43 During final oral submissions before me, counsel for the respondents in effect accepted that the assertion which I have said above could reasonably have been taken from the relevant words could reasonably have been taken from them, provided that the relevant words were being construed in isolation. However, he submitted, it would not be right to construe the relevant words in isolation (a submission which I, of course, accept) and, his submission continued, when one construed them in context, the assertion to which I have referred above was not one which had been reasonably open to be taken from them. His submission (to which I have silently added certain punctuation) was as follows:
"That sentence, '… what levels …' by itself implies probably, as a reasonable construction, 'at least some'. But where you've said twice beforehand 'possibility of aluminium', '… what levels …' then, I think, assumes a reasonable construction, or the only sensible construction, as 'maybe no levels', because otherwise 'possibility' has been eroded in terms of its natural meaning. 'Possibility' must say 'may have, though may not have, it'."
Later, counsel acknowledged that my acceptance of his submission to which I have just referred would depend on my acceptance of his submission as to the only reasonable construction of the word "possibility"; that, he made plain, was the relevant context to which he had been referring. Since I have already necessarily rejected the latter submission when discussing the sixth of the assertions which could reasonably have been taken from the statements which had been made in [D], it follows that I reject as well the submission presently under discussion.
44 "8. However, what that quantity is does not matter, since, whatever it is, once one ingests it, it will cause one bodily injury": that assertion could, in my view, reasonably have been taken from the use in [D] of the words, "Although it is still unclear as to what levels of aluminium we could expect in a tetra pak, what we are certain of is that once in the human body, it is a chemical that will do more harm than good".
45 I must say something of the use in the relevant statement of the word "harm", but it is worth spending a moment before doing so on what the OED describes, in its definition of the word "harm", as the "set phrase", " … do more harm than good…." Counsel for the respondents did not demur during final oral submissions before me from the proposition which I then put to him that that set phrase could reasonably have been taken to be the equivalent of "do harm". I still accept the correctness of that proposition. However, having now had an opportunity to consider the matter further, I have an understanding less based on intuition than I had at the time of the final oral submissions as to why that proposition is correct. Quirk and others, in A Comprehensive Grammar of the English Language, discuss various uses of the "more … than …" construction. They give (at 1129, note [b]), as an example of one such use, the sentence, "I was more angry than frightened". According to them, that sentence is to be understood as saying, "It is more true to say that I was angry than it is to say that I was frightened". It is in a similar sense, I consider, that the sentence "X will do more harm than good" is to be understood (or, at least, could reasonably be understood). What is being asserted (or, at least, could reasonably be understood as being asserted) is that it is more true to say of X that it will do harm than it is to say of X that it will do good or, in other words, what is being asserted of X is that it will do harm. (See also the OED's definition C.3 of the word "more", which takes a similar approach to that taken by Quirk and others.)
46 As to the word "harm" itself, it could reasonably have been taken that it was being used in the sense of "bodily injury": see, for example, the definition of the word in the Macquarie Dictionary.
47 During his final oral submissions before me, counsel for the respondents submitted that the "harm" being referred to in the relevant statement (and assertion) "might be … the mere risk of damage to your health". Following that submission, the following exchange occurred between us:
"HIS HONOUR: So that by using the word 'harm' the author meant to say 'risk of harm'.
MR COLLINSON: To include risk of harm.
HIS HONOUR: Well, if it's only included I don't think that takes you
very far.
MR COLLINSON: I see.
HIS HONOUR: You have to say, don't you, that it means only risk of harm.
MR COLLINSON: Yes.
HIS HONOUR: Once you concede that it means not only risk but actual harm, then things are not as smooth from your point of view.
MR COLLINSON: Yes."
48 I am not entirely sure as a result of that exchange what Musashi's ultimate submission on the question was, but if what was ultimately being submitted was that there could not reasonably have been taken from the use of the word "harm" the meaning of "bodily injury", as opposed to, for example, the meaning of "risk of bodily injury", then I reject that submission, as I have already made plain.
49 Having now discussed eight assertions about the external world which I consider that persons reading the item could reasonably have taken from the statements which had been made in [D], I turn to the next issue, which I foreshadowed in [17] above, namely, whether Musashi could reasonably have been taken, in making those assertions about the external world, to have been asserting them as facts, as opinions or as either.
50 However, in what follows, it will be unnecessary for me to deal with the fifth of those assertions, namely, "If ingested, aluminium can be very toxic to humans", since it was not suggested before me by Tetra Pak that, in publishing the statement from which that assertion could reasonably have been taken, Musashi had contravened the Act.
51 As to the remaining assertions, Musashi's position regarding the fourth of them, namely, "Aluminium is a heavy metal", was that it had asserted that as a matter of fact, but that the assertion had been false; aluminium is not a heavy metal. In effect, that was a concession by Musashi that, in publishing the statement from which that assertion could reasonably have been taken, it had contravened subs 52(1) of the Act, so that it will also be unnecessary for me to deal with that assertion.
52 As to the third of those assertions, namely, "All Tetra Pak packaging is made from, among other things, aluminium and is designed specifically for storing liquid foods for lengthy periods", Musashi did not, as I understood its final submissions, explicitly take the position that it had asserted that as a matter of fact. However, it did acknowledge during final submissions that, considered as an assertion of fact, that assertion was false; as I have already mentioned above (see at [7]-[8]), a significant quantity of Tetra Pak packaging is of the "fresh" type, which type includes no aluminium. Further, Musashi submitted that, though that assertion had been false, nonetheless, for discretionary reasons, no injunctive relief should be granted against Musashi in respect of the publication of the statements from which that assertion could reasonably have been taken. That acknowledgment and submission by Musashi were consistent only with its accepting that it had made the assertion as a matter of fact and with its conceding, in effect, that, since that assertion had been false, Musashi had, in publishing the statements from which that assertion could reasonably have been taken, contravened subs 52(1) of the Act. Again, it will therefore be unnecessary for me to deal with that assertion.
53 That leaves for discussion only the first, second, sixth, seventh and eighth of the assertions.
54 As to them, Musashi's position was that those assertions, in so far as I might find them reasonably capable of having been taken from the statements which had been made in [D], could only reasonably have been taken to have been assertions by it of matters of opinion.
55 I do not accept that submission. Some, at least, of the readers to whom the item was directed could, I consider, reasonably have taken those assertions to have been assertions by Musashi of matters of fact.
56 However, while I do not accept that the first, second, sixth, seventh and eighth of the assertions could only reasonably have been taken to have been assertions by Musashi of matters of opinion and while I therefore necessarily accept that those assertions could reasonably have been taken by some at least of the readers to whom the item was directed to have been assertions by Musashi of matters of fact, I further accept that those assertions could also reasonably have been taken by a significant (and, to the extent to which it matters, perhaps the preponderant) number of the readers to whom the item was directed to have been assertions by Musashi of matters of opinion. That a significant number of the readers to whom the item was directed could reasonably have taken those assertions to have been ones of opinion is especially so about the sixth, seventh and eighth assertions, which were about scientific matters, as to which the less unsophisticated of those readers could well be aware that there existed a debate of some sort in the scientific community. However, it would also be the case regarding the first and second assertions, which were, in effect, dependent on the sixth, seventh and eighth assertions.
57 That being the case, I propose, in the first instance at least, to determine whether, in publishing the statements from which those assertions, considered as assertions of opinion, could reasonably have been taken, Musashi contravened subs 52(1) of the Act.
58 Before doing so, however, I mention that it might be inferred from some of the passages which I have quoted above from the reasons for judgment of the Judges comprising the Full Court in the Tobacco Institute appeal that, if an assertion was reasonably capable of being taken either to be an assertion of fact or to be an assertion of opinion, then a court determining whether the making of the statement from which the assertion could reasonably have been taken contravened subs 52(1) of the Act must, in the first instance at least, do so on the basis that the assertion was an assertion of fact. That would not, however, be the correct inference to draw from those passages in the Tobacco Institute appeal. The Full Court in that case was hearing an appeal from a decision in which the primary Judge had found that the making of certain statements, considered as assertions of fact, had contravened subs 52(1) of the Act: see Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 27 FCR 149 at 267-68 (Morling J). It was in that context that those passages appeared in the reasons for judgment of the Judges constituting the Full Court; those passages were directed to the approach which it was appropriate for the appellate court to take in the particular circumstances of that appeal, rather than to the approach which it is appropriate for a trial court to take in all circumstances.
59 When a writer asserts something about the external world which may reasonably be taken as an opinion, the writer, merely by virtue of having asserted that opinion, may also reasonably be taken to have impliedly asserted certain matters of fact. In particular, the writer may reasonably be taken as having impliedly asserted that the writer genuinely holds that opinion. Further, the writer may reasonably be taken as having impliedly asserted that there exist reasonable grounds for asserting that opinion. In a well known passage from the joint reasons for judgment of Bowen CJ and Lockhart and Fitzgerald JJ in Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88, it was said that taking the writer as having impliedly asserted that the writer genuinely held that opinion was "ordinarily" the case, while taking the writer as having impliedly asserted that there existed reasonable grounds for asserting that opinion was "commonly at least" the case.
60 In the present proceeding, Musashi accepted that further assertions of both of those two types could reasonably have been taken from those opinions about the external world which Musashi could reasonably be taken, from the statements which had been made in [D], to have asserted. For instance, in its final written submissions before me, Musashi submitted:
"All that is conveyed [by the statements in the Musashi News brochure] is that the opinions expressed by Musashi were honestly held and that there was some basis for those opinions or (what amounts to the same thing) those opinions were reasonably capable of being held."
Further, in its final oral submissions, Musashi submitted:
"[I]f a proposition is construed as an opinion, then there's two representations: that the opinion is honestly held; and that there is a reasonable basis for the opinion."
61 However, it appeared from a passage in Musashi's final written submissions before me other than the one which I have quoted in the preceding paragraph of these reasons for judgment that one was to understand in a particular sense Musashi's acceptance of the proposition that the reader of the opinions about the external world which Musashi could reasonably have been taken to be asserting by reason of the statements which it had made in [D] could also reasonably have taken from the assertion of those opinions the further assertion by Musashi that those opinions were "reasonably capable of being held". In the circumstances, it seems best that I should set out in its entirety the relevant passage from Musashi's final written submissions before me (emphasis in original; paragraph numbers, as well as a reference to certain paragraph numbers of Tetra Pak's final written submissions, omitted):
"Whether Reasonable Basis May Only Have Reference to Material Subjectively Relied Upon by the Respondents
From time to time there are suggestions in Tetra Pak's submissions that, in order to establish the existence of a reasonable basis for the opinions expressed in the Musashi News brochure, the respondents are limited to the material in fact relied upon at the time of the issue of the brochure.
Tetra Pak's submission involves the proposition that if a person expresses an opinion which is reasonably capable of being held (because of the extent of scientific knowledge on the subject matter) but such person subjective[ly] relies upon matters which do not support the opinion, then there is a contravention of s. 52 of the Trade Practices Act.
No authority is cited for this proposition. It is against basic principle. A statement of opinion represents that the opinion is honestly held and that there is a proper basis for the opinion. As to the second matter it is sufficient for a respondent to establish by evidence that in an objective sense there is a proper basis for the opinion irrespective of the matters subjectively relied upon by the opinion given [presumably, 'giver' was intended] when the opinion was made [presumably, 'given' was intended].
To be successful in this proceeding Tetra Pak must establish that there is not a reasonable basis for the opinions expressed in the Musashi News brochure; it is not entitled to ignore the evidence of Dr Exley [an expert who gave evidence for the respondents at the hearing of the present proceeding] for the reason that such evidence may not have been available to the respondents when the relevant statements were made."
62 As well as setting out that passage from Musashi's final written submissions, I should mention now that the position taken by Musashi in that passage was the subject of considerable discussion between counsel for the respondents and me during final oral submissions. In that connection, I should set out something said to me by counsel for the respondents during that discussion:
"There's no authority, your Honour, that has ever said, 'You lose, respondent, because there was this material which you had; you led all this evidence that there was a reasonable basis for your opinion, but you can't rely upon that because you didn't have that within your purview when you gave your opinion'. There's not one case that my friends have cited, or that I can find in this area that supports that construction."
63 It can be seen from the passages which I have set out above from both Musashi's final written and oral submissions that, in substance, Musashi's position was that one of the further assertions which may reasonably be taken to have been impliedly made by a person who asserts an opinion about the external world is that that opinion may reasonably be held by some person at that time, on the basis of the information available to that person at that time. However, that person need not necessarily be the person asserting the opinion. Indeed, Musashi's position appears necessarily to have gone so far as being that one of the further assertions which may reasonably be taken to have been impliedly made by a person who asserts an opinion about the external world is that that opinion may reasonably be held at some future time either by the person asserting the opinion or by some other person, on the basis of the information available at that future time either to the person asserting the opinion or to that other person.
64 In taking the position which it did, Musashi relied heavily on the fact that, in the Tobacco Institute appeal, Hill J had said, among other things, that if the advertisement there under consideration were interpreted as a statement of opinion, it would contravene subs 52(1) of the Act if the applicant could show that "the view was not reasonably capable of being held" (see at [23] above).
65 I consider that Musashi's submissions on the aspect of the matter presently under discussion were fundamentally misconceived. They treated the words which Hill J had relevantly used in the Tobacco Institute appeal as if those words were the words of a statutory provision and then sought to construe them as broadly as possible and wrenched from their context.
66 Simply looked at as a matter of what is most reasonable, if the reader of an assertion of opinion about the external world were to infer that the writer was impliedly asserting something about whether that opinion could reasonably be held, the most reasonable inference to be drawn by the reader would surely be that the writer was impliedly asserting that the writer personally could reasonably hold that opinion at that time, based on information then available to the writer.
67 It is not, strictly speaking, necessary for me to express a view on the questions whether the reader might instead or additionally reasonably take it that the writer was impliedly asserting that some third person could hold that opinion at that time, based on the information then available to that third person, or might instead or additionally reasonably take it that the writer was impliedly asserting that the writer or some third person could reasonably hold that opinion at some future time, based on the information available to the writer or that third person at that future time. It is not necessary for me to express a view on those questions because of my view that the reader could certainly reasonably take it that the writer was impliedly asserting that the writer personally could reasonably hold that opinion at that time, based on the information then available to the writer (see at [18] above). However, I do mention that, in the absence of unusual circumstances, I would not consider either of such assertions to be ones reasonably capable of being taken from a writer's assertion of opinion about the external world.
68 I note incidentally that, in RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164, a Full Court of this Court (Davies, Beaumont and Spender JJ) was concerned, in the context of an alleged contravention of subs 52(1) of the Act, with an assertion by RAIA which was being considered as one of opinion which had carried with it an implied assertion that there were reasonable grounds for that opinion. In joint reasons for judgment, Beaumont and Spender JJ treated that implied assertion (at 172) as being the equivalent of one that "RAIA knew of facts which justified the opinion" and spoke (at 175) of its being "implicit in the expression of the opinion that the party concerned actually knows facts which justify the opinion". Their Honours were there expressing the relevant implied assertion in the way in which I have said above that it would most reasonably be taken to have been made. It is apparent to me that counsel for the respondents was unaware, at the time of his final submissions before me, of what their Honours had said on the matter in that case; if he was so aware, he would not have made the submission which I have quoted at [62] above.
69 Accordingly, the question which I will next consider is whether, at the time at which the brochure was published, Musashi could reasonably have held, on the basis of the information then available to it, the first, second, sixth, seventh and eighth opinions which could reasonably have been taken as being asserted by the statements which had been made in [D].
70 As to that question, there were in evidence before me forty-three pages of material ("the Musashi material") which had been produced by Musashi as being all of those documents in its possession on which it had relied in making the statements contained in (relevantly) [D]. The Musashi material can conveniently be divided into three different categories.
71 First, there are seven pages which purport to consist of abstracts of fourteen items which had appeared in scientific journals, those pages having been prepared by some unidentified person. The purported abstracts were numbered and preceded by the words, "There are a number of papers outlining health problems and aluminium".
72 Secondly, there are twenty-one pages which had been downloaded from http://www.bio.unipd.it/~zatta/. Five of those pages list the titles of publications of which a PF Zatta is either the sole author or a joint author or editor. Two of those pages consist of advertisements both for a book of which PF Zatta is a joint editor and for four scientific conferences. The remaining fourteen pages consist of seven two-page profiles of individual scientists, not including PF Zatta. Each profile is similar in form, consisting of a photograph of the scientist, a brief summary of a research interest of his or hers (involving, in every case, aluminium), a list of selected publications of his or hers and his or her contact details.
73 Thirdly, there are fifteen pages which had been downloaded from http://lurch.bangor.ac.uk/dj/lectures/Aluminium/aluminiumbw.htm, consisting of a lecture note summary for a lecture (or perhaps a series of lectures) entitled "Aluminium Toxicity in Plants".
74 The Musashi material was the subject of evidence before me by Dr Trevor Mark Florence, an expert in analytical chemistry who gave evidence on behalf of Tetra Pak.
75 As to the Musashi material in the third category, because it related to aluminium toxicity in plants, Dr Florence went no further regarding it than expressing the opinion that it was irrelevant to the present proceeding.
76 As to the list of titles of publications and the advertisements in the Musashi material in the second category, Dr Florence, perhaps from politeness, did not refer to them in his evidence. As to the various profiles, Dr Florence summarised most of them as "describ[ing] aluminium toxicity resulting from haemodialysis or in vitro toxicity studies that may or may not be relevant to aluminium toxicity in humans or other living animals". He then gave some detail about one of the profiles, and concluded that a study referred to in it "might be relevant to haemodialysis patients, but not to humans with a normal intake of aluminium".
77 As to the fourteen abstracts in the Musashi material in the first category, Dr Florence divided them into nine subcategories. I will set out below his summaries of each of those subcategories, without repeating the identifying numbers of the abstracts which he included in each subcategory:
· These abstracts refer to aluminium intoxication in renal dialysis patients, and so are not relevant to aluminium in the diet. In renal dialysis, aluminium can be transferred directly into the blood from the dialysis water. In the human gut there are effective barriers against aluminium absorption into the circulation.
· This refers to a study on the aluminium content of infant formulas and the bioavailability of the aluminium in these formulas. However, the usefulness of the data is doubtful because the study reported plasma aluminium concentrations in the range of 8.6 to 12.5 micrograms/L. These concentrations are more than ten times the latest accepted value for human infant blood plasma (Nieboer et al., 1995), which suggests that aluminium contamination occurred during sampling or analysis.
· This has insufficient data to evaluate it, but it appears to deal with the effect on offspring of exposure of pregnant mice to aluminium during gestation.
· This refers to aluminium in pharmaceutical products.
· This reports a study on the effect of desferrioxamine treatment on Alzheimer patients. The use of the aluminium chelating agent, desferrioxamine, led to an improvement in a behavioural index in these patients. However, desferrioxamine complexes iron even more strongly than it does aluminium, and the improvement may well have been due to the removal of toxic iron from the brain (Cumming, 1996).
· These refer to occupational exposure to aluminium dust in electrolytic plants and during welding.
· This refers to the general toxicity of a range of metals in the human body, including aluminium.
· This proposes a vague theory suggesting that Alzheimer's disease is caused by exposure to electric light.
· These two letters to the Medical Journal of Australia emphasise the current disagreement about the role of aluminium in Alzheimer's disease. These, together with the original Storey and Masters paper (Med J. Australia, 163, 256-259, 1995), are good examples of the debate."
78 Dr Florence's conclusion regarding the Musashi material was as follows:
"These Abstracts appear to have been selected to show that aluminium can be toxic. However, there is no dispute about that. At sufficiently high concentrations in the body aluminium, like every other metal, can have toxic effects. These Abstracts do not support the contention that beverages contained in Tetra Pak packaging have aluminium concentrations that are high enough to cause toxicity, or that aluminium can leak into products contained in such packaging."
79 Dr Florence was cross-examined extensively by counsel for the respondents, but none of that cross-examination was directed to Dr Florence's summary of the Musashi material, to his conclusion about its effect or to the question whether it could reasonably have provided a basis at the relevant time for expressing any opinions reasonably capable of being taken from the statements which had been made in [D].
80 There has already been reference made in these reasons for judgment to Dr Christopher Exley, who gave expert evidence before me for the respondents. It was apparent, however, from Dr Exley's evidence that he had not been asked by the respondents to express an opinion on the question whether, at the time at which the item had been published, Musashi could reasonably have held, on the basis of the Musashi material, the first, second, sixth, seventh and eighth opinions which could reasonably have been taken from the statements which had been made in [D]. Nor, in his evidence, did Dr Exley express his opinion on that question.
81 Before me, Mr Horewood gave no substantive evidence in chief. However, he was cross-examined by Tetra Pak and it was during his cross-examination that the Musashi material was tendered by Tetra Pak. However, Mr Horewood was not re-examined to establish that he, as the author of the item, had had, at the time of the writing of the item, information available to him other than the Musashi material, for example, documents which had subsequently passed out of Musashi's possession. That is a type of re-examination which one would have expected had there existed any such information.
82 In its final written submissions before me, Tetra Pak drew attention to and relied on Dr Florence's evidence regarding the Musashi material. Further, in its final oral submissions before me, Tetra Pak in substance submitted that the Musashi material could not, at the relevant time, have provided reasonable grounds for the assertions, considered as assertions of opinion, which could reasonably have been taken from the statements which had been made in [D].
83 In neither their written nor their oral final submissions before me did the respondents make any submission to the effect that Tetra Pak had failed to establish that, at the time at which the item had been published, the opinions about the external world which Musashi could reasonably have been taken from the statements which had been made in [D] to have asserted were not reasonably capable of being held by it. That the respondents should have made no such submission was not surprising, given the submissions which they made in reliance on the reasons for judgment of Hill J in the Tobacco Institute appeal, with which submissions I have already dealt. In fact, I assume that the reason why the respondents made the latter submissions was that they recognised that it was inevitable, given the nature of the Musashi material and the absence of any other relevant material before me, that I would conclude that the first, second, sixth, seventh and eighth opinions about the external world which Musashi could reasonably have been taken from the statements which had been made in [D] to have asserted had not been reasonably capable of being held by it on the basis of the information available to it at the time of the item's publication. In that recognition, they were correct.
84 In the result, I am satisfied that, in publishing the statements in [D] from which all but the fifth of the eight assertions which I have set out at [32] above could reasonably have been taken, Musashi contravened subs 52(1) of the Act. So far as concerns Musashi's publication of the statements from which the third and fourth of the assertions could reasonably have been taken, Musashi contravened subs 52(1) of the Act because, considering those assertions as ones of fact, I am satisfied that, as Musashi conceded, they were false. So far as concerns Musashi's publication of the statements from which the first, second, sixth, seventh and eighth of the assertions could reasonably have been taken, Musashi contravened subs 52(1) of the Act because, considering those assertions as ones of opinion, I am satisfied that Musashi did not have available to it, at the time of the making of those assertions, information which would have provided reasonable grounds for making them.
85 I emphasise that in expressing the conclusion which I have just expressed concerning Musashi's publication of the statements from which the first, second, sixth, seventh and eighth of the assertions could reasonably have been taken, I have focused only on the absence, at the relevant time, of information which would have provided reasonable grounds for making them. Although it was also Tetra Pak's position concerning Musashi's publication of the statements from which those assertions could reasonably have been taken that Musashi did not genuinely hold the relevant opinions, I have found it unnecessary to deal with that issue for present purposes.
86 In the same way, having reached the conclusion which I have expressed above about the statements which had been made in [D] from which the first, second, sixth, seventh and eighth assertions could reasonably have been taken, I have found it unnecessary to go on to determine whether the publication of those statements also contravened subs 52(1) of the Act because those assertions, considered as assertions of fact, rather than of opinion, were false.
87 In finding it unnecessary to deal with the matter to which I have just referred, I am adopting, in substance, the view expressed by Foster J in the Tobacco Institute appeal (at 30). His Honour there stated that if the representations reasonably flowing from the words used in the advertisement the subject of the litigation were,
"… such as not to require an evaluation of scientific evidence to determine whether they have [a misleading or deceptive] character, then such an evaluation involving the consideration and acceptance or rejection of material portions of competing scientific testimony need not be embarked upon."
Although those remarks were not uttered in an identical context to the present, I consider them equally applicable in the present context. Determining whether the publication of the statements in [D] from which the first, second, sixth, seventh and eighth assertions could reasonably have been taken constituted misleading or deceptive conduct, contrary to subs 52(1) of the Act, because those assertions, considered as assertions of fact, were false would, in the present case, require just such an evaluation as that which Foster J considered need not be embarked upon when the publication of those statements has already been determined otherwise to have constituted misleading or deceptive conduct.
88 I note that the approach taken by Foster J in the Tobacco Institute appeal also finds support in the reasons for judgment of Hill J in that appeal. Hill J there pointed out (at 48), in the context of the question of the relationship, as a matter of fact, between environmental tobacco smoke and disease, that that question "is not a matter for a court of law[,] which is ill-equipped to determine it and to make the skilled judgments upon which such a question depends". Hill J's view plainly was that a court of law should not determine such a scientific question in the course of determining an allegation of contravention of subs 52(1) of the Act unless doing so was unavoidable. That view is equally applicable to the question of the truth or falsity of the first, second, sixth, seventh and eighth assertions, considered as assertions of fact.
89 It follows from what I have written above that it is open to me to declare, for the reasons which I have already given, that the publication by Musashi of the statements in the fourth paragraph of the item, apart from the statement that, "Aluminium … if found in the body can prove to be very toxic", was conduct likely to deceive, contrary to subs 52(1) of the Act, and I consider it appropriate that I should so declare: compare the first order made by the Full Court in Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 115 (Sheppard, Foster and Hill JJ).
90 I mentioned at the outset of these reasons for judgment that Tetra Pak, as well as seeking declaratory relief against Musashi, had also sought injunctive relief against it. However, I do not consider that the present case is an appropriate one in which to grant injunctive relief against Musashi.
91 As to those statements from which two of the seven "offending" assertions, the ones considered as assertions of fact, could reasonably have been taken, but which assertions were false, I consider it most unlikely that Musashi would either seek to repeat in the future those statements or to make other statements from which those assertions could reasonably be taken, given that, before me, Musashi has expressly acknowledged the falsity of those assertions.
92 As to those statements from which the remaining five of the "offending" assertions, the ones considered as assertions of opinion, could reasonably have been taken, but which assertions had been made otherwise than on reasonable grounds, I find it impossible to see how any injunctive order which I could make would be of any real practical utility in the present circumstances. Such an order would have to be framed on the basis that Musashi was prevented from making statements from which the relevant assertions, considered as opinions, could reasonably be taken, if, at the time of their making, Musashi had no further information available to it than that which it had had at the time of the publication of the item. However, it is plain that Musashi does now have information available to it which was not available to it at the time of the publication of the item. If nothing else, it has the opinions of Dr Exley, expressed for the purpose of the present litigation, which opinions might (it is unnecessary for me to decide) provide reasonable grounds for the relevant assertions, considered as opinions.
93 There remain for discussion presently only Tetra Pak's claims for declaratory and injunctive relief against Mr Horewood. (At Tetra Pak's request, from which I did not understand the respondents to dissent, I am not presently considering any question concerning the outstanding costs of the proceeding.)
94 Tetra Pak's claims for declaratory and injunctive relief against Mr Horewood were based, as I have already mentioned, on his being involved, within the meaning of subs 75B(1) of the Act, in Musashi's contravention of (relevantly) subs 52(1) of the Act.
95 It will be plain that, having decided that it would be inappropriate to grant injunctive relief against Musashi in respect of its contravention of subs 52(1) of the Act, I would not grant such relief against Mr Horewood even if I were satisfied that he had been involved, within the meaning of subs 75B(1) of the Act, in that contravention. However, having decided to grant declaratory relief against Musashi in respect of that contravention, I consider that it would be appropriate for me also to grant declaratory relief against Mr Horewood, if I were satisfied that he had been involved, within the meaning of subs 75B(1) of the Act, in that contravention.
96 I should say immediately in connection with the aspect of the case presently under discussion that I did not find Tetra Pak's pleading and particulars or, indeed, its final written submissions particularly helpful as to the basis on which it sought a finding of Mr Horewood's involvement, within the meaning of subs 75B(1) of the Act, in Musashi's contravention of subs 52(1) of the Act. However, as I understood Tetra Pak's final oral submissions before me on the matter, which were very brief indeed, it sought to establish accessorial liability in Mr Horewood in respect of Musashi's contravention of subs 52(1) of the Act by satisfying me that, as to at least one of the assertions which I might conclude could reasonably have been taken from the statements which had been made in [D], Mr Horewood knew: either (if I held that the assertion could reasonably have been taken as an assertion of fact, but was false) that the assertion was false; or (if I held that the assertion could reasonably have been taken as an assertion of opinion and was accompanied by a further assertion that Musashi genuinely held the opinion asserted, but that further assertion was false) that Musashi did not genuinely hold the opinion asserted. Further, as I understood the respondents' final oral submissions before me, they were content to respond to a case of the sort which I have just described.
97 In the result, it appears that there are two questions which I must now confront. The first question is whether, at the time of the publication of the statements from which the third and fourth of the assertions set out at [32] above could reasonably have been taken, Mr Horewood knew that one or more of those assertions was false. The second question, given that Mr Horewood was himself the author of the item and decided that it should be published by Musashi, is whether, at the time of the publication of the statements from which the first, second, sixth, seventh and eighth of the assertions set out at [32] above could reasonably have been taken, Mr Horewood genuinely held the opinions asserted.
98 Tetra Pak pointed to a number of matters on which it relied in an attempt to persuade me on at least one of the above questions. First, it relied on the absence of any evidence in chief by Mr Horewood, either orally or by affidavit, on those questions. Presumably, what was in contemplation, merely to take one example, was that Mr Horewood might have asserted in chief that, at the relevant time, he had (wrongly) believed that aluminium was a heavy metal. Secondly, Tetra Pak relied on Mr Horewood's evidence in cross-examination that, before the publication of the item, Musashi had conducted no testing for aluminium content, either of the competing protein drinks of the type referred to in the item or of P30 itself. Thirdly, Tetra Pak relied on the inability of the Musashi material to provide justification for the assertions reasonably capable of being taken from the statements which had been made in [D], including the absence of any expression of opinion by an expert called for the respondents that the Musashi materials could provide such justification.
99 In assessing the persuasiveness of the three matters to which I have just referred, I keep in mind one particular feature of the claim presently under consideration.
100 In Sutton v AJ Thompson Pty Ltd (in liq) (1987) 73 ALR 233 at 242, a Full Court of this Court (Forster, Woodward and Wilcox JJ) stated (emphasis added):
"In the claim against Mr Sutton under s 75B of the Act, no material facts constituting his being 'knowingly concerned' in the contravention were pleaded. The allegation was simply made in terms of the section. This is undesirable, at least where the respondent concerned is not a principal of the respondent company o[r] the prime actor in the conduct alleged. The consequences for the individual can be so serious that he is entitled to have the details of his alleged involvement, amounting as it must to something akin to fraudulent conduct, spelt out."
However, it is not what their Honours had to say in the passage which I have just quoted about the requirements for properly pleading an "involvement" case against a person which is of present relevance; rather it is the fact that they treated a person's involvement, within the meaning of subs 75B(1) of the Act, in another person's contravention of the Act as necessarily amounting to "something akin to fraudulent conduct" and emphasised the potential seriousness of the consequences for a person of a finding of such involvement. Those matters are relevant to the application in the present matter of subs 140(2) of the Evidence Act 1995 (Cth). Pursuant to that subsection, in deciding whether I am satisfied on the balance of probabilities that Mr Horewood was involved, within the meaning of subs 75B(1) of the Act, in Musashi's contravention of subs 52(1) of the Act, I am required to take into account the nature of Tetra Pak's cause of action against Mr Horewood and the gravity of the matters alleged against him.
101 Taking into account the nature of Tetra Pak's cause of action against Mr Horewood and the gravity of the matters alleged against him, as elaborated in Sutton, I have not been persuaded by the three matters relied on by Tetra Pak that Mr Horewood either knew, at the relevant time, that at least one of the third and fourth assertions was false or did not genuinely hold, at the relevant time, at least one of the first, second, sixth, seventh and eighth opinions.
102 Of the three matters relied on by Tetra Pak, I need say nothing in particular about the second or third of them, but I do wish to draw attention in particular to Tetra Pak's reliance on the first of those three matters, which reliance I regard as unjustified. If Mr Horewood had sought to avoid giving evidence in the present proceeding, then I could understand Tetra Pak's relying on that attempt by him as strengthening any adverse inference which might be drawn against him as a result of the second and third of the three matters on which Tetra Pak relied. However, that is not what happened in the present proceeding. Although Mr Horewood, as I have already mentioned, did not give any substantive evidence in chief, he did go into the witness box and give formal evidence in chief. He was thus made available to be cross-examined by Tetra Pak and, in fact, was cross-examined by it. The latter, however, chose not to cross-examine him on the questions whether he either knew, at the relevant time, that at least one of the assertions of fact reasonably capable of having been taken from the statements which had been made in [D] was false or did not genuinely hold, at the relevant time, at least one of the assertions of opinion reasonably capable of having been taken from the statements which had been made in [D]. Having chosen not to cross-examine Mr Horewood on those matters, Tetra Pak cannot now seek to overcome its omission in that respect by complaining that Mr Horewood gave no evidence in chief on them.
103 In the result, I will make against Musashi the declaration which I have foreshadowed above. I will dismiss the claims for injunctive relief against it and for declaratory and injunctive relief against Mr Horewood. Further, after discussion with the parties, I will fix a time for the hearing of any argument regarding the outstanding costs of the proceeding. There remains also for hearing Tetra Pak's damages claim against Musashi, as to which I will, after discussion with the parties, give directions.