Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Limited [2009] HCA 19

Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Limited [2009] HCA 19

The High Court (majority) held that the s 65A(1) exemption does not extend to a publication made by a prescribed information provider pursuant to an arrangement with a third party, where the content of the publication concerns goods or services supplied by that third party. The phrase 'goods or services of that kind' in s 65A(1)(a)(vi)(A) refers to the subject matter of the publication, i.e., the goods or services promoted, regardless of whether they are supplied by the broadcaster. Therefore, the respondents did not have the benefit of the exemption, and were liable for contravention of s 52.

Parties
Appellant: Australian Competition and Consumer Commission; Respondents: Channel Seven Brisbane Pty Limited & Ors
Jurisdiction
Australia
Judgment Date
30 April 2009
Procedural Posture
Appeal / High Court Decision on Appeal From Full Federal Court
Outcome
Appeal allowed. Orders of the Full Court of the Federal Court set aside. Orders of the primary judge restored. Respondents to pay appellant’s costs.
Legal Topics
Misleading or Deceptive Conduct, Statutory Interpretation, Media Exemptions, Trade Practices Act S 52, Trade Practices Act S 65 a
Competition Law Consumer Protection Law Misleading or Deceptive Conduct Statutory Interpretation Media Exemptions Trade Practices Act S 52 Trade Practices Act S 65 a

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Parties

Australian Competition and Consumer Commission

Appellant

Channel Seven Brisbane Pty Limited & Ors

Respondents

Procedural Posture

Appeal / High Court Decision on Appeal From Full Federal Court

Legal Issues

  1. 1 Whether the exemption in s 65A(1) of the Trade Practices Act 1974 (Cth) applies to the conduct of the respondent broadcasters under s 52 (misleading or deceptive conduct), or whether the exception to the exemption is engaged due to the broadcasts being made pursuant to a contract, arrangement or understanding with suppliers of goods or services.
  2. 2 Proper construction of the phrase 'goods or services of that kind' in s 65A(1)(a)(vi)(A): does it refer to goods/services of the kind supplied by the prescribed information provider, or to those that are the subject of the publication?

Ratio Decidendi

The High Court (majority) held that the s 65A(1) exemption does not extend to a publication made by a prescribed information provider pursuant to an arrangement with a third party, where the content of the publication concerns goods or services supplied by that third party. The phrase 'goods or services of that kind' in s 65A(1)(a)(vi)(A) refers to the subject matter of the publication, i.e., the goods or services promoted, regardless of whether they are supplied by the broadcaster. Therefore, the respondents did not have the benefit of the exemption, and were liable for contravention of s 52.

Court Disposition

Appeal allowed. Orders of the Full Court of the Federal Court set aside. Orders of the primary judge restored. Respondents to pay appellant’s costs.

Orders

  • Appeal allowed with costs.
  • Orders of the Full Federal Court dated 23 June 2008 set aside.