Hostname: page-component-745bb68f8f-lrblm Total loading time: 0 Render date: 2025-01-30T23:19:27.127Z Has data issue: false hasContentIssue false
  • English
  • Français

Universal Telecasters Queensland Ltd v. Guthrie

Published online by Cambridge University Press:  24 January 2025

Ian Davidson  and
Amanda Harkness
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Case Note
Information
Federal Law Review , Volume 10 , Issue 1 , March 1979 , pp. 98 - 107
Copyright
Copyright © 1979 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

1

(1978) 18 A.L.R. 531; A.T.P.R. 17, 633; 3 T.P.C. 221; T.P.R.S. 304, 209. Federal Court of Australia; Bowen C.J., Nimmo and Franki JJ.

References

2 The prosecutions were brought against Metro Ford, the advertising company and Universal Telecasters.

3 At the time s. 53 provided “A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services—(e) make false or misleading statements concerning the existence of, or amounts of, price reductions;”

In 1977 (e) was widened to “make a false or misleading statement with respect to the price of goods or services”.

4 Guthrie v. Metro Ford Pty Ltd (1977) A.T.P.R. 17, 390; Guthrie v. Doyle Dane & Bernbach Pty Ltd (1977) 16 A.L.R. 241; Guthrie v. Universal Telecasters (Qld) Ltd (1977) 16 A.L.R. 247.

5 Guthrie v. Universal Telecasters (Qld) Ltd (1978) A.T.P.R. 17, 701. Gibbs J. stated that the Court was “not necessarily endorsing the views expressed in the Federal Court”.

6 (1978) 18 A.L.R. 531, 547.

7 Id. 547, 539, 534, upholding the view of St John J. on this point.

8 Id. 533. Note this supports the wide view that advertisements are also directed toward ingenuous and inexperienced recipients expressed in C.R.W. v. Sneddon [1972] A.R. (N.S.W.) 17, 28 and adopted by St John J. in Parish v. World Series Cricket (1977) A.T.P.R. 17, 417. Contrast the view of Smithers J. in Ransley v. Black & Decker (A’Asia) Pty Ltd 28 July 1977 (unreported) that a representation of performance characteristics ins. 53(c) “is made to people who are going to take reasonable care to acquaint themselves with the reasonable qualities of the machine … “.

9 (1978) 18 A.LR. 531, 547 per Franki J. The rest of the Court must have also accepted this. See also Guthrie v. Metro Ford Pty Ltd [1977] A.T.P.R. 17, 390.

10 Id. 539.

11 Id. 547. For an elucidation of His Honour’s view of the distinction between a statement as to an existing fact and a promise or prediction about the future see Thompson v. Mastertouch T.V. Services (1977) 15 A.L.R. 487 where the approach of the House of Lords in British Airways Board v. Taylor (1976) 1 W.L.R. 13 was applied.

12 Id. 539, 548.

13 The Swanson Committee recommended a restructuring of sub-section 85(1), see Trade Practices Act Review Committee Report to the Minister for Business and Consumer Affairs, August 1976 para. 9.144, as it considered that the two linked requirement which covered all the defences operated “unduly harshly”. The Committee’s recommendations were acted upon and the second requirement that the defendant take reasonable precautions and exercise due diligence to avoid the contravention no longer applies to a defendant seeking to establish a defence of reasonable mistake or reasonable reliance on information supplied by another person.

14 (1978) 18 A.L.R. 531, 550 per Franki J.

15 Id. 543. Duggan, , “Misleading Advertising and the Publishers’ Defence–a Critique of Universal Telecasters (Qld) Limited v. Guthrie” (1978) 6 Australian Business Law Review 309, 319Google Scholar refers to another line of reasoning which the Court may have followed if this finding had not been made.

16 This is substantially the same as the presents. 85(1)(c)(ii).

17 (1978) 18 A.L.R. 531, 550 per Franki J. Although the other members of the Court did not advert to this point their approach implies acceptance of this reasoning.

18 Id. 534.

19 Id. 551.

20 Id. 554.

21 See s. 24(1)(b) of the Trade Descriptions Act 1968 (U.K.). Interpretations of this paragraph are given by the House of Lords in Tesco Supermarkets Ltd v. Nattrass [1972] A.C. 153 and a Divisional Court in Nattrass v. Timpson Shops Ltd [1973] Crim.L.R. 197.

22 [1972] A.C. 153.

23 (1978) 18 A.L.R.. 531, 551. He quoted the observations of Lord Diplock [1972] A.C. 153, 203 that a contrary interpretation “would be to render the defence of due diligence nugatory and so thwart the clear intention of Parliament in providing it”.

24 Id. 534.

25 Id. 534, 553. Overruling St John J. (1977) 16 A.LR. 247, 250-251.

26 The sales service manager, a senior employee but not an executive, was given responsibility to check advertisements before transmission and was to refer any doubts about the legality of a commercial to the general manager or company secretary.

27 (1978) 18 A.LR. 531, 534, 544-545, 554.

28 Unlikes. 85(1) this defence is not restricted to prosecutions.

29 (1978) 18 A.L.R. 531, 535, 543, 549.

30 [1972] A.C. 153. For further discussions of the organic theory see Gower The Principles of Modern Company Law (3rd ed. 1969) Chapter 8; Ford Principles of Company Law (2nd ed. 1978) Chapter 6. For comments on Tesco's case see Fisse, , “Consumer Protection and Corporate Criminal Responsibility” (1974) 4 Adelaide Law Review 113Google Scholar; Muir, , “Corporate Liability and Fault” (1973) 5 New Zealand Universities Law Review” 357Google Scholar; Howill (1971) 34 M.L.R. 676 and Duggan, , “The Criminal Liability of Corporations for Contravention of Part V of the Trade Practices Act” (1977) 5 Australian Business Law Review 223.Google Scholar

31 (1978) 18 A.L.R. 531, 535, 548.

32 Id. 535. It can be inferred that His Honour agreed with the reasoning of Franki J. on this point as “speaking generally” he agreed with the reasoning of Franki J., id. 532.

33 [1972] A.C. 153, 171; referred to by Nimmo J. (1978) 18 A.L.R. 531, 540-541.

34 E.g. Duggan n. 29 supra 238.

35 (1978) 18 A.L.R. 531, 535 per Bowen C.J., 548 per Franki J.

36 Transcript of Proceedings, Queensland Registry No. 16 of 1978 p. 12.

37 (1978) 18 A.L.R. 531, 542.

38 The Trade Practices Commission in its 4th Annual Report for the Year Ending June 1978 note this and refer to the following extract from Adbrief, a trade newsletter “NEW CASE LAW REDUCES BITE OF TRADE PRACTICES COMMISSION:

This new case law makes defence under the TPA easier. It means media and agencies should delegate TPA problems to second ranking staffers.”

39 S. 84 provides:

“ (1) Where, in a proceeding under this Part in respect of any conduct engaged in by a body corporate, being conduct in relation to which a provision of Part V applies, it is necessary to establish the intention of the body corporate, it is sufficient to show that a servant or agent of the body corporate by whom the conduct was engaged in had that intention.

(2) Any conduct engaged in on behalf of a body corporate by a director, agent or servant of the body corporate or by any other person at the direction or with the consent or agreement (whether express or implied) of a director, agent or servant of the body corporate shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.”

S. 84(1) the “intention” sub-section is inapplicable to the operation of s. 85 as the question of intent is irrelevant to the establishment of the statutory defences; s. 84(1) operates where “it is necessary to establish the intention of the body corporate”.

40 The U.K. legislation has no equivalent to s. 84.

41 See n. 17 supra.

42 (1978) 18 A.L.R. 531, 536.

43 Ibid. For a discussion of the possible constructions of term “intention” in s. 84(1) see Duggan, n. 15 supra 312-315.Google Scholar

44 See Duggan, n. 29 supra 233-236Google Scholar for more detailed discussion.

45 (1975) 6 A.L.R. 696, 705.

46 See n. 38 supra for s. 84(2). This view was reinforced by the notice requirement in s. 85(2) which the Court felt assumed that the prosecution was not in a position to identify the “other person” referred to in s. 85 (1).

47 (1975) 6 A.L.R. 696, 706.

48 Op. cit. 235. (1) The Court did not advert to the contrary view of s. 84, (2) There is a surprising inconclusiveness in the findings of fact.

49 Taperell, , Vermeesch, and Harland, , Trade Practices and Consumer Protection (2nd ed. 1978) para. 1607, 1612.1 (loose-leaf edition)Google Scholar.

50 See n. 41 and text supra.

51 The Trade Practices Commission: Report for the Year Ending June 1978 para. 4.19.

52 lbid.

53 (1978) 18 A.L.R. 531,535.

54 Cf. the comments of Gibbs J. in the application for special leave. Transcript of Proceedings, Queensland Registry No. 16 of 1978 pp. 12-13.

55 Id. 13.

56 (1978) 18 A.L.R. 531, 536. A similar view is expressed by Franki J. id. 550.

57 This point is also raised by Duggan, n. 15 supra 321.Google Scholar