Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals
By: Staff Date: 01/8/2012 Category: | Canine Issues |
FEDERAL COURT OF AUSTRALIA
Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) (includes corrigendumdated 8 July 2002) [2002] FCA 860
(5 July 2002)
Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) [2002] FCA 860
ORION PET PRODUCTS PTY LTD (ACN 010 638 721) and INNOTEK AUSTRALIA PTY LTD (ACN 010 408 983) v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (VICTORIA) INC and HUGH WIRTH
Q1 of 2000
WEINBERG J
5 JULY 2002
MELBOURNE (VIA VIDEO LINK TO BRISBANE)
IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY Q1 of 2000
BETWEEN: ORION PET PRODUCTS PTY LTD (ACN 010 638 721)
FIRST APPLICANT
INNOTEK AUSTRALIA PTY LTD (ACN 010 408 983)
SECOND APPLICANT
AND: ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (VICTORIA) INC
FIRST RESPONDENT
HUGH WIRTH
SECOND RESPONDENT
AND BETWEEN: ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (VICTORIA) INC
FIRST CROSS-CLAIMANT
HUGH WIRTH
SECOND CROSS-CLAIMANT
AND: INNOTEK AUSTRALIA PTY LTD (ACN 010 408 983)
FIRST CROSS-RESPONDENT
ANTHONY JOHN HOLLIDAY
SECOND CROSS-RESPONDENT
MARY COLLEEN HOLLIDAY
THIRD CROSS-RESPONDENT
JUDGE: WEINBERG J
DATE: 5 JULY 2002
PLACE: MELBOURNE (VIA VIDEO LINK TO BRISBANE)
CORRIGENDUM
Amendment to the Reasons for Judgment of Weinberg J delivered on 5 July 2002.
Paragraph 27 should be deleted and replaced by:
"27. This application was initially instituted in the Queensland Registry of the Court on 6 January 2000. It was subsequently transferred to the Victorian Registry. The statement of claim was amended on 28 September 2000 to include various causes of action arising out of the publication on 1 August 2000 of the Herald Sun article. For reasons which were never made clear, the applicants did not claim any relief arising out of three other incidents which involved statements about their products which were published prior to the date upon which the amended statement of claim was filed. However, these comments, though not the subject of any claim in this proceeding, were said to be relevant to the issue of malice, and also to the quantum of damages, if any, to which the applicants were entitled. There was also a fourth comment upon which the applicants relied in the same way, though that was not made until 3 October 2000."
In par 28 the following words should be deleted:
"28. In summary, there were four occasions upon which the respondents were said to have repeated the offending comments. They were:
* ..."
and replaced by:
"28. In summary, the four occasions upon which the respondents were said to have made disparaging comments about the applicants' products in relation to which no specific cause of action was pleaded were:
* ..."
In par 215 the first sentence should read:
"215. Under cross-examination, Mr Apostolides conceded that, in his affidavit of 11 September 2000, he had not mentioned a number of the matters about which he later gave evidence in-chief."
I certify this is a true copy of corrigendum to the Reasons for Judgment of the Honourable Justice Weinberg.
Associate:
Dated: 8 July 2002
FEDERAL COURT OF AUSTRALIA
Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) [2002] FCA 860
TRADE PRACTICES - representations made by or on behalf of RSPCA regarding applicant's manufactured products, electronic dog collars - whether representations false - whether conduct was misleading or deceptive or likely to mislead or deceive -whether RSPCA a "trading corporation" - whether representations made "in trade or commerce"
INJURIOUS FALSEHOOD - elements of tort - whether requisite mental state established
DEFAMATION - whether statements made concerning applicant's products conveyed imputations pleaded - whether statements defamatory - whether applicant identified - defences of justification, fair comment and qualified privilege
WORDS AND PHRASES - "trading corporation" - "in trade or commerce"
Trade Practices Act 1974 (Cth) ss 52, 53(a)
Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 110 referred to
Dare v Pulham (1982) 148 CLR 658 at 664 referred to
Bruce v Odhams Press Ltd [1936] 1 KB 697 at 713 referred to
Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522 at 42,679 referred to
Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR 41-591 at 44,152 referred to
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Ltd (1998) ATPR 41-633 at 40,978 referred to
Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 at 42,827 referred to
Beach Petroleum NL v Johnson (1991) 105 ALR 456 referred to
James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 372 referred to
Global Sportsman v Mirror Newspapers (1984) 2 FCR 82 at 88 referred to
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1993) 38 FCR 1 at 25-26, 45-48 referred to
Stanton v Australia and New Zealand Banking Group Ltd (1987) ATPR 40-755 referred to
Turner v Jenolan Investments Pty Ltd, Jenolan Investments Pty Ltd v Turner, Turner v Acfold Investments Pty Ltd (1985) ATPR 40-571 at 46,635 referred to
Sabre Corporation Pty Ltd v Laboratories Pharm-a-Care Pty Ltd (1995) ATPR 41-396 referred to
Riley McKay v Bannerman (1977) 31 FLR 129 at 134 referred to
Given v CV Holland (Holdings) Pty Ltd (1977) 29 FLR 212 at 217 referred to
The Queen v Trade Practices Tribunal: Ex parte St George County Council (1974) 130 CLR 533 at 543, 546, 553, 561-2 and 572 referred to
The Queen v Federal Court of Australia; Ex parte W.A. National Football League (1979) 143 CLR 190 at 208, 234 and 239 referred to
Hughes v WA Cricket Association Inc (1986) 19 FCR 10 at 29 referred to
Forbes v Australian Yachting Federation Inc (1996) 131 FLR 241 at 291 referred to
Fasold v Roberts (1997) 70 FCR 489 at 525-526 referred to
The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 240 referred to
E v Australian Red Cross Society (1991) 27 FCR 310 at 343 considered
United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 considered
Quickenden v O'Connor (2001) 109 FCR 243 at 260, 261 referred to
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 602-604 applied
Nixon v Slater & Gordon (2000) 175 ALR 15 at 23, 23 and 34 referred to
Unilan Holdings v Kerin (1992) 35 FCR 272 referred to
Tobacco Institute of Australia v Woodward (1993) 32 NSWLR 559 referred to
Plimer v Roberts (1997) 80 FCR 303 referred to
Robin Pty Ltd v Canberra International Airport Pty Ltd [1999] FCA 1019 referred to
Glorie v WA Chip & Pulp Co Pty Ltd (1981) 55 FLR 310 referred to
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 referred to
Ratcliffe v Evans [1982] 2 QB 524 referred to
John v MGN Ltd [1997] QB 506 at 507 referred to
Barnes v Sharpe (1910) 11 CLR 462 referred to
Australian Broadcast Corporation v Comalco Ltd (1986) 68 ALR 259 referred to
Parmiter v Coupland (1840) 6 M&W 105 at 108 referred to
Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7 referred to
Gardiner v Fairfax (1942) 42 SR(NSW) 171 at 172 referred to
Farquhar v Bottom [1980] 2 NSWLR 380 at 386 referred to
Knupffer v London Express [1944] AC 116 at 120 referred to
Morgan v Odhams Press [1971] 1 WLR 1239 referred to
Mirror Newspapers v World Hosts Pty Ltd (1979) 141 CLR 632 at 639 referred to
Mann v Medicine Group (1992) 38 FCR 400 referred to
Speight v Gosnay (1891) 60 LJQB 231 referred to
Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 considered
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 referred to
Robinson v Laws [2001] QCA 122 referred to
David Syme & Co Ltd v Hore-Lacey [2000] 1 VR 667 referred to
Anderson v Nationwide News Pty Ltd (2001) 3 VR 619 referred to
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 referred to
Clarke v Norton [1910] VLR 494 at 499 referred to
London Artists v Littler [1969] 2 QB 375 at 391 referred to
Adam v Ward [1917] AC 309 at 334 referred to
Smith's Newspaper Ltd v Becker (1932) 47 CLR 279 at 304 referred to
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 referred to
Lewis v Daily Telegraph Ltd; sub nom Rubber Improvements Ltd v Daily Telegraph Ltd (AC) [1964] AC 234 at 262 referred to
Nixon v Slater & Gordon (2000) 175 ALR 15 at 23, 23 and 34 referred to
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 referred to
Popovic v Herald & Weekly Times Ltd [2002] VSC 220 at pars 50-51 referred to
Humphries v TWT Ltd (1993) 120 ALR 693 referred to
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 at 150 referred to
Dingle v Associated Newspapers Ltd [1964] AC 371 at 396 referred to
Carson v John Fairfax & Sons (1993) 178 CLR 44 at 70-71 and 104-105 referred to
Triggell v Pheeney (1951) 82 CLR 497 at 514 referred to
Fleming The Law of Torts (9th ed, 1998) at 586, 648, 780,
Rogers, Winfield & Jolowicz on Tort (14th ed, 1994) at 307-308
Gatley on Libel and Slander (9th ed., 1998) at [9.2]
Halsbury's Laws of Australia, vol 10, pars [145-835]-[145-845]
ORION PET PRODUCTS PTY LTD (ACN 010 638 721) and INNOTEK AUSTRALIA PTY LTD (ACN 010 408 983) v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (VICTORIA) INC and HUGH WIRTH
Q1 of 2000
WEINBERG J
5 JULY 2002
MELBOURNE (VIA VIDEO LINK TO BRISBANE)
IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY Q1 of 2000
BETWEEN: ORION PET PRODUCTS PTY LTD (ACN 010 638 721)
FIRST APPLICANT
INNOTEK AUSTRALIA PTY LTD (ACN 010 408 983)
SECOND APPLICANT
AND: ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (VICTORIA) INC
FIRST RESPONDENT
HUGH WIRTH
SECOND RESPONDENT
AND BETWEEN: ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (VICTORIA) INC
FIRST CROSS-CLAIMANT
HUGH WIRTH
SECOND CROSS-CLAIMANT
AND: INNOTEK AUSTRALIA PTY LTD (ACN 010 408 983)
FIRST CROSS-RESPONDENT
ANTHONY JOHN HOLLIDAY
SECOND CROSS-RESPONDENT
MARY COLLEEN HOLLIDAY
THIRD CROSS-RESPONDENT
JUDGE: WEINBERG J
DATE: 5 JULY 2002
PLACE: MELBOURNE (VIA VIDEO LINK TO BRISBANE)
THE COURT ORDERS THAT:
IN ORION PET PRODUCTS PTY LTD AND INNOTEK AUSTRALIA PTY LTD V ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (VICTORIA) INC AND HUGH WIRTH:
1. There be judgment for the second applicant against the first respondent in the sum of $100,000, which includes a lump sum of $15,000 in lieu of interest.
2. The first applicant's claim against the first and second respondents, and the second applicant's claim against the second respondent, be dismissed.
IN ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (VICTORIA) INC AND HUGH WIRTH V INNOTEK AUSTRALIA PTY LTD, ANTHONY JOHN HOLLIDAY AND MARY COLLEEN HOLLIDAY:
3. There be judgment for the second cross-claimant against the first, second and third cross-respondents in the sum of $30,000, which includes a lump sum of $5,000 in lieu of interest.
4. The first cross-claimant's cross-claim against the first, second and third cross-respondents be dismissed.
THE COURT FURTHER ORDERS THAT:
5. The parties file and serve written submissions regarding the costs of the application, and the cross-claim, on or before 26 July 2002.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY Q1 of 2000
BETWEEN: ORION PET PRODUCTS PTY LTD (ACN 010 638 721)
FIRST APPLICANT
INNOTEK AUSTRALIA PTY LTD (ACN 010 408 983)
SECOND APPLICANT
AND: ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (VICTORIA) INC
FIRST RESPONDENT
HUGH WIRTH
SECOND RESPONDENT
AND BETWEEN: ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (VICTORIA) INC
FIRST CROSS-CLAIMANT
HUGH WIRTH
SECOND CROSS-CLAIMANT
AND: INNOTEK AUSTRALIA PTY LTD (ACN 010 408 983)
FIRST CROSS-RESPONDENT
ANTHONY JOHN HOLLIDAY
SECOND CROSS-RESPONDENT
MARY COLLEEN HOLLIDAY
THIRD CROSS-RESPONDENT
JUDGE: WEINBERG J
DATE: 5 JULY 2002
PLACE: MELBOURNE (VIA VIDEO LINK TO BRISBANE)
REASONS FOR JUDGMENT
INTRODUCTION
1 The applicants in this proceeding, Orion Pet Products Pty Ltd ("Orion") and Innotek Australia Pty Ltd ("Innotek"), are both corporations registered in Queensland. Their directors and shareholders have at all material times been Mr Anthony Holliday, and his wife, Mary Holliday. The companies have, since 1995, manufactured and sold electronic dog collars for the purpose of training dogs, in Australia. The products bear the brand names "No-Bark Collar", "Smart Dog Containment System", "Home Free Containment System" and "Smart Dog Remote Trainer". The business has been conducted throughout from Mudgeeraba in Queensland.
2 The first respondent, the Royal Society for the Prevention of Cruelty to Animals (Victoria) Inc ("the RSPCA") is an incorporated association, affiliated with the national organisation of the same name. It is regulated by the Associations Incorporation Act 1981 (Vic) and the Associations Incorporation Regulations 1998 (Vic). Its objects, broadly speaking, are to promote the welfare of animals, and to prevent cruelty to them. It operates on a non-profit basis. However, as part of its activities, it sells various products for animals. It also conducts training courses for their care.
3 The second respondent, Dr Hugh Wirth, is its President. He is a qualified veterinary surgeon, and conducts his own practice. Although not a full time officer or employee of the RSPCA, he devotes a great deal of time to its affairs. He regularly appears on radio and frequently comments in the news media on matters of animal welfare. It is common ground, in this case, that he was, at all material times, the RSPCA's duly authorised officer, servant or agent, and that anything he said regarding the applicants' products was said within the scope of his actual or apparent authority.
4 The respondents have, since 1995, campaigned strongly against the use of electronic dog collars and have sought to have them outlawed in Victoria.
5 These proceedings arise out of a series of statements made by the respondents concerning the applicants' products. The applicants claim that these statements were false. They claim that in making them the respondents imputed or represented that the use of their collars was cruel, that the collars were instruments of torture, that anyone using them in Victoria would be prosecuted and that they were ineffective and inappropriate as devices for training dogs. They claim that as a result of what the respondents said about their products, they sustained significant loss and damage.
6 The applicants rely upon four distinct causes of action. These are:
* a claim that the statements constituted misleading or deceptive conduct in contravention of ss 52 and 53(a) of the Trade Practices Act 1974 (Cth) ("the Act");
* a claim that these statements amounted to injurious falsehood;
* a claim that these statements were defamatory; and
* a claim that these statements gave rise to a cause of action in negligence.
7 It should be said at once that the claim for negligence was all but formally abandoned. It was never seriously pursued during the course of the trial. That was hardly surprising, given the difficulties of establishing the existence of a duty of care. In these circumstances it is unnecessary to say anything further about that claim.
8 The respondents have cross-claimed against Innotek, and its directors, alleging that certain statements made about them by Mr and Mrs Holliday, after an interlocutory hearing in this proceeding, constituted misleading or deceptive conduct in contravention of ss 52 and 53(c) of the Act, and were defamatory. The cross-respondents conceded that the statements were relevantly misleading or deceptive and defamatory. They also conceded that Dr Wirth, as second cross-claimant, was entitled to damages. It is only the quantum of those damages that remains to be determined.
BACKGROUND
9 Orion commenced the manufacture and sale of electronic dog collars in 1995. Its business consisted of importing from the United States the components necessary to assemble the collars, their assembly, and their wholesale and retail sale . Wholesale sales were effected mainly through distribution agents and independent dealers. These included veterinary surgeries, pet shops, and hardware and garden stores. Retail sales were made principally by telephone and mail order. The collars were sold throughout Australia.
10 On 1 July 1999 Innotek acquired Orion's business. It continues to manufacture, market and sell the collars throughout Australia.
11 Each cause of action pleaded by Orion and Innotek relies essentially upon the same type of representation. It is necessary to set out in some detail the particulars of each representation, bearing in mind that Orion relied upon those made prior to 1 July 1999, and Innotek relies upon those made thereafter. The applicants divided the representations into three categories for the sake of convenience - the cruelty representations, the illegality representations and the effectiveness representations.
THE CRUELTY REPRESENTATIONS
The October 1995 radio broadcast
12 In about October 1995, Dr Wirth is alleged to have made a series of adverse comments regarding electronic dog collars during the course of a regular Saturday morning radio broadcast. There was considerable dispute about the exact words may have used during the course of that broadcast. However, it appears to be common ground that, on at least one occasion, and it may have been this occasion, he referred to "South American dictatorships", drawing an analogy between their use of electronic shock treatment to alter human behaviour, and electronic dog collars.
The November 1998 representations
13 In or about November 1998 several unnamed RSPCA officers were said to have told Mr Willie Bedford, an officer employed on the "Life Be In it" special project publishing "Holidaying With Dogs" that Orion's products were unsafe, and that an electronic dog collar had recently caused a burn to a dog's neck .
The December 1999 website
14 In or about December 1999, the RSPCA posted a press release on its website which stated that electronic dog collars "involve inflicting pain", "cause a painful stimulus", and "cause severe discomfort if not pain". The press release went on to say that "the potent likelihood exists that burns and more extensive injuries can result" from their use.
The Herald Sun article
15 On 1 August 2000, the Herald Sun, a Melbourne newspaper, published a lengthy article dealing with the subject of electronic dog collars. The article was written by Mr Nick Papps, a journalist employed by the Herald Sun. It bore the heading in large print:
"Electrified collars inflict 3,000-volt shocks
Tortured pets"
It was common ground that a sub-editor, and not Mr Papps, was responsible for the heading. The article commenced:
"Electrified dog collars are being used as a torture tool to train dogs.
The collars can inflict a 3000-volt shock up to 1800 times every six seconds.
Outraged animal welfare groups say the collars are used to stop barking and to teach dogs to fight.
A Herald Sun investigation has revealed two types of collars are being sold in Victoria, a collar that shocks every time a dog barks and another which is activated when the owner presses a remote control.
It is legal to sell the collars in Victoria but they have been banned in New South Wales for several years.
The RSPCA claims dogs have died after being given the shock therapy and has called for an immediate ban on the collars.
In one incident investigated by the RSPCA the shocks from a collar were flipping a 60kg dog into the air.
Eventually this resulted in the dog suffering brain damage.
It later savaged its owner and had to be destroyed."
Mr Papps said that the information set out above had been provided to him by Mr Kevin Apostolides, a Senior RSPCA Inspector, and that he had accurately reported the substance of what he had been told.
16 The article continued:
"RSPCA head Dr Hugh Wirth said the electric shocks had caused epileptic fits, vomiting, seizures, burning and bleeding.
"The government should ban this object of torture," Dr Wirth said.
"They're cruel".
It went on to say:
"In New South Wales, anyone using, selling or possessing such a collar faces fines of up to $5,000 and six months imprisonment."
The article continued:
"Dr Wirth, a veterinarian, said the electric collars often shocked dogs into a fit.
"It can cause permanent behavioural damage" he said."
17 Mr Papps said that the following information was provided by Mr Apostolides:
"An RSPCA test on a unit showed the collars inflicted a 3000 volt shock.
Senior RSPCA inspector Kevin Apostolides said the RSPCA had seen several animals that had been hurt by the collars.
"There's hundreds of people out there that have these and don't really know what they're doing," he said.
"In many cases the collar inflicts burns, the electrodes get stuck into the skin and the dog can't get away."
"If the dog barks, it gets shocked and if it yells again from the pain, it gets shocked again.""
18 Dr Wirth conceded that he had made the comments specifically attributed to him, whether in quotation marks, or not. Mr Apostolides made essentially the same concession. It follows that there is little dispute between the parties concerning what was said. There is however considerable dispute as to whether the words used bear the meaning for which Innotek contends.
19 The article also included three colour photographs. The first was of a dog with an Innotek collar in close proximity to its head. The caption below the photograph read "dogs such as this boxer have been tortured by 3,000-volt collars". The second was of a dog with significant injuries to its neck. The caption was "this border collie suffered extensive wounds". The journalist responsible for the caption appears to have been untroubled by the fact that the photograph was of an Alaskan Malamute, and not a border collie. The third was a close up of an Innotek collar with its two electrodes placed next to what were said to be burn marks upon human skin. The caption was "an RSPCA inspector demonstrates how one shock burns the skin". It was common ground that the photographs displaying the Innotek collar had been taken at the RSPCA headquarters in Burwood, and that Mr Apostolides had arranged for the boxer to be photographed next to the collar. It was also Mr Apostolides' skin that was displayed, apparently showing burn marks.
20 Finally, the article identified three cases where it was alleged that dogs had sustained injury through the use of the collars.These were:
CASE ONE:
A 12-month-old 60kg malamute fitted with collar for training as an attack dog.
Neighbour reports dog howling and doing backflips every time he is given a shock.
The traumatised dog turns on its owner, savagely biting owner.
Owner then has malamute destroyed.
CASE TWO:
NINE-year-old german shepherd put into boarding kennel by owner.
Dog starts to howl, kennel operator puts electric collar on to shock dog every time it howls.
Dog suffers seizures, vomiting and fits.
Owner returns from holiday to discover dog has been shocked and had to be treated by a vet.
Owner left to pay vet bills.
CASE THREE:
TWELVE-month-old border collie fitted with collar by owner after local council told her it was the best way to stop barking.
Owner notices scorch marks around dog's neck, takes dog to RSPCA.
Dog had been trying to remove collar, resulting in scorch marks all around neck from moving electrodes.
Owner pleads guilty to causing unnecessary pain and suffering and placed on good behaviour bond."
21 It was common ground that Case One described what was referred to as the "Armitage Case", while Case Three referred to what was known as the "van Ree Case". I shall return to the significance of these two cases shortly.
THE ILLEGALITY REPRESENTATIONS
The 30 October 1999 radio broadcast
22 On 30 October 1999, Dr Wirth, during the course of his regular Saturday morning radio broadcast, again made a series of adverse comments regarding electronic dog collars. The words which he used on that occasion were recorded, and were not in dispute. They included the following:
"Now, this followed a case two months prior where we took a lady before a magistrate on the issue of these electronic collars. These collars you attach to the dog and when you don't like what the dogs doing, you press a little button in your hand and that causes the collar to emit an electric shock to the dog. This time the lady kept pressing the button so often that the dog was burnt by the electrical shock around the neck."
Dr Wirth went on to say:
"Don't press the magic button or poke little bits of pointed steel into their necks. And we will continue to prosecute people who use those draconian methods."
He continued:
"But the trouble is, you see, the law is so structured that you can manufacture these ... electrical devices or manufacture these cruel pinch collars, you're not in trouble because you do that, according to law: it's only when you actually use one."
He concluded:
"... and we have to witness them being used, and when we witness them being used, we will prosecute."
The van Ree prosecution
23 The case to which Dr Wirth referred in his 30 October 1999 radio broadcast was the prosecution by the RSPCA of Julie Anne Young (nee van Ree) following her use of an electronic dog collar. Mrs Young was convicted, and fined, for an offence of cruelty.
The statements by Inspector Hickey
24 In March 2000, Inspector Darren Hickey of the RSPCA told Leanne Gaye Barrow that the Innotek containment unit that she had been using was illegal. He said that it must have been bought on the "black market" and told her that she could be fined $6,000, or face six months' imprisonment for having used it.
THE EFFECTIVENESS REPRESENTATIONS
The 30 October 1999 radio broadcast
25 During the course of his 30 October 1999 radio broadcast, Dr Wirth described electronic dog collars as being no more than "quick fixes". He implied that the training theory behind the collars was "lets press an electronic button and stop it", and "press the magic button". He also implied that the collars sought to make dogs learn "by inflicting pain and suffering" on them.
The December 1999 website
26 In the December 1999 press release appearing on the RSPCA website, it was claimed that "electronically activated devices" were "completely inappropriate for the proper and lasting training of dogs". In addition, Dr Wirth was reported as saying that the use of these devices was "not training".
REPRESENTATIONS NOT THE SUBJECT OF ANY PLEADED CAUSE OF ACTION
27 This application was initially instituted in the Queensland Registry of the Court on 6 January 2000. It was subsequently transferred to the Victorian Registry. After the proceeding was commenced, the respondents were alleged to have made further disparaging remarks concerning the applicants' products. These comments were not the subject of any claim in this proceeding. However, they were said to be relevant to the issue of malice, and also to the quantum of damages, if any, to which the applicants were entitled.
28 In summary, there were four occasions upon which the respondents were said to have repeated the offending comments. They were:
* On 1 August 2000, Dr Wirth was interviewed on the Channel 9 current affairs program "A Current Affair". During the course of that interview, he repeated a number of the statements contained in the Herald Sun article.
* On 6 August 2000, an article appeared in the Queensland newspaper, "The Sunday Mail". In that article, Dr Wirth again repeated a number of the statements contained in the article.
* On 12 September 2000, an article appeared in the Victorian newspaper, "The Age". In that article, Dr Wirth said that he would continue his campaign against electronic dog collars notwithstanding the fact that, by that stage, the applicants had sought interlocutory injunctions against the respondents in this Court and had alleged that what was being said about their products would destroy their business.
* On 3 October 2000, Dr Wirth was interviewed on the Channel 7 current affairs program, "Today Tonight". During the course of that interview, he again repeated a number of the statements contained in the Herald Sun article.
ORION'S CLAIMS
7 October 1995 radio broadcast
29 Orion claimed that the various statements made by Dr Wirth during the course of his radio broadcast on 7 October 1995 contravened ss 52 and 53(a) of the Act. It alleged in the alternative that these statements amounted to injurious falsehood, and were defamatory.
30 The respondents, in answer to these claims, denied that Dr Wirth had used the words attributed to him. They admitted that he had, on other occasions, said that the use of electronic dog collars was cruel and harmful to animals. However, they claimed that these were mere expressions of opinion, genuinely held, and based on reasonable grounds.
31 Orion relied upon three witnesses in support of its claim that, during the course of the radio broadcast, Dr Wirth spoke, with reference to electronic dog collars, about "Nazis" or "the Gestapo".
32 Mr Holliday said that on the day in question, which was a Saturday, he was attending the Pet Industry Joint Advisory Council ("PIJAC") trade exhibition in Melbourne to launch the range of electronic training aids for dogs produced by Innotek Inc in the United States. He said that on that morning Dr Wirth had devoted almost his entire radio program to attacking his company's products, referring to "us" as "Gestapo" and "Nazi torturers". He conceded that Dr Wirth's had not mentioned Orion by name. However, his comments had been directed at all electronic pet products, and there was no doubt that Orion had been a target.
33 Mr Holliday's account of what Dr Wirth had said was supported, in broad terms, by his wife.
34 His account was also supported by Mr Steve Gill, formerly President of Innotek Inc. He recalled having been asked by Mr Holliday during the course of the PIJAC meeting in Melbourne to come to his hotel room to listen to Dr Wirth's radio program. He remembered Dr Wirth saying that "a person who would use these torture devices should be severely punished". He also remembered him saying that electronic dog collars "... were the equivalent of the Nazi/Communist Movement and were barbaric", and that they were "absolutely ineffective and totally unsafe".
35 On behalf of the respondents, Dr Wirth denied ever having referred to the manufacturers of electronic dog collars as "Nazis" or "Gestapo". He conceded, however, that he may have said that South American totalitarian regimes had employed electronic shock treatment on prisoners without succeeding in altering human behaviour.
36 Under cross-examination, Dr Wirth was less certain about the precise language that he used during the course of that particular broadcast. He acknowledged that it was possible that he had described electronic dog collars in terms which involved an analogy with the Nazis or the Gestapo. However, he said that he could not recall having done so. He said that he suspected that may gave used an analogy with totalitarian regimes and it was possible that listeners may have inferred that he was talking about the Nazis or the Gestapo. He agreed that it would be offensive to a manufacturer of such collars to be linked in any way with these groups.
37 There is no transcript or other written record of what Dr Wirth actually said during the course of that particular radio broadcast. A great deal of time has elapsed since he made his comments on that program. There are significant differences between the accounts given by Mr and Mrs Holliday, and that given by Mr Gill. It is plain that there is much scope for error.
38 Having given this matter careful consideration, I am not satisfied, on the balance of probabilities, that Dr Wirth used the language attributed to him by Orion during the course of the broadcast. No doubt he expressed views that were strongly critical of electronic dog collars, and probably made some sort of pejorative comments about those who manufactured and sold them. That is not sufficient, without more, to give rise to liability on the part of the RSPCA or Dr Wirth. It follows that Orion's claims arising out of the October 1995 radio broadcast must fail.
The November 1998 representations
39 Orion's complaint regarding this matter arose out of an attempt on the part of Mrs Holliday to have included within the "Life Be In it" publication "Holidaying with Dogs" an advertisement for its "Anti-Barking collar", and its "Home Free Pet Containment System". Mr Bedford wrote to Mrs Holliday on 10 November 1998 informing her that "Life Be In it" did not wish to become embroiled in the debate about the safety of Orion's products. He said that he had sought advice from the RSPCA. He claimed that four officers from that organisation had told him that the collars were unsafe. The Chief Inspector had said that such a collar had recently caused a burn to a dog's neck and the owner, who had been assured that the collar was safe, was devastated and likely to face changes. Mr Bedford also said that it was important to take into account that the foreword of "Holidaying With Dogs" was written by Dr Wirth. In those circumstances, Mr Bedford had determined to stand by his earlier decision not to accept Mrs Holliday's advertisement.
40 On any view, it is difficult to see how Orion can make good a claim for damages arising out of this incident. There is nothing to suggest that Dr Wirth had anything to do with Mr Bedford's decision to reject the proposed advertisement. It is unclear precisely what the unnamed RSPCA officers said. There is no evidence whatever of any loss of damage resulting from the comments by those officers to Mr Bedford. The inability to place an advertisement in the particular publication may have aggrieved Mrs Holliday, but absent any evidence as to pecuniary loss arising out of that incident, the claim is untenable in any event.
41 It follows that Orion has failed to establish that it has a viable cause of action arising out of either of the two matters that are the subject of complaint. Its application will be dismissed.
INNOTEK'S TRADE PRACTICES CLAIMS
42 Innotek alleged that, by making the various representations, the RSPCA and Dr Wirth engaged in misleading or deceptive conduct in contravention of ss 52 and 53(a) of the Act.
43 It alleged that the cruelty representations were false because, correctly used, the collars were neither harmful nor cruel, did not cause burns, and did not lead to brain damage or the death of dogs. Moreover, the collars were not capable of flipping a 60kg dog into the air, did not cause epileptic fits, vomiting, seizures, or bleeding.
44 It alleged that the illegality representations was false because, correctly used, the collars were not illegal in Victoria and those who used them were not liable to prosecution and conviction.
45 Finally, it alleged that the effectiveness representations were false because the collars were effective as training devices for dogs and were based upon sound and recognised behaviour modification principles.
46 Innotek claimed that the RSPCA had, by making the representations, engaged in conduct, in trade or commerce, that was misleading or deceptive, or likely to mislead or deceive. Alternatively, it claimed that the RSPCA had, in connection with the supply of goods or services in trade or commerce, falsely represented that goods were of a particular standard or quality, or had a particular history.
47 Dr Wirth was said to be liable for these contraventions of the Act because, by his conduct, he had aided, abetted, counselled or procured them. Alternatively, he had been, directly or indirectly, knowingly concerned in, or party to them.
The cruelty representations
48 The only contentious factual issues arising out of the representations upon which Innotek relied in support of its claims under the Act related to what was said about electronic dog collars in the Herald Sun article. In effect, it was the statements attributed to Dr Wirth and Mr Apostolides in that article that formed a major part of Innotek's case.
49 Unlike the position in relation to Dr Wirth's October 1995 radio broadcast, there was no real dispute as to what either he or Mr Apostolides had said to Mr Papps. The contentious factual issues were whether their statements, as republished, were misleading or deceptive.
50 There was, however, a preliminary pleading point raised on behalf of the respondents in relation to these statements. They referred to the fact that in par 5 of the statement of claim, the applicants alleged that, since about October 1995, the respondents had represented that the use of the applicants' electronic dog collars "was cruel and harmful" to animals. The applicants had provided particulars of that single representation. Much of their case had been directed towards establishing that Dr Wirth and Mr Apostolides had made the statements specifically attributed to them in the article, and that those statements were false.
51 In that regard, it was submitted on behalf of the respondents that the applicants' case rested upon a misconception. The statements identified as particulars of the "cruelty representation", as pleaded, were not themselves representations which were separately relied upon as giving rise to liability. Rather, they were merely constituent elements of the single broader representation pleaded. It was that representation, and that representation only, that the respondents were required to meet.
52 The respondents, by their defence, had admitted that they had expressed the opinion that use of electronic dog collars was "cruel and harmful to animals". They submitted that this representation conveyed nothing more than that this was in truth their state of mind. Provided that there were reasonable grounds for holding that opinion, there was nothing false, or misleading or deceptive, in communicating to Mr Papps, and through him to the readership of the Herald Sun, that that opinion was held.
53 Innotek described this contention as "precious". It submitted that the respondents had ignored the main object of particulars, which was to apprise the opposing party of the case which it had to meet. It contended that its case had always been, and remained, that the respondents had represented that "the use of the products is cruel and harmful to animals" in the manner particularised. It was the making of that representation, in that manner, which was alleged to be false.
54 Innotek submitted that it had provided detailed particulars of the falsity of the cruelty representations. These particulars made it clear that its case was that, contrary to what was said in the article, correctly used the collars did not cause brain damage or kill dogs, did not inflict burns, and did not cause epileptic fits, vomiting, seizures, or bleeding. Nor were they capable of flipping a 60 kg dog into the air.
55 Innotek submitted that the respondents had ignored the particulars given with regard to the cruelty representations when claiming that they were obliged only to meet that representation in its broadest sense. It referred to what the High Court had said in Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 110 concerning the purpose of particulars. It contended that the respondents had not been taken by surprise, or been otherwise prejudiced by anything said or done during the course of the trial in an effort to demonstrate that the cruelty representations, as particularised, were false. Each side had adduced a substantial body of evidence which went directly to the truth or falsity of the particulars of those representations. It submitted that, having regard to the way in which the trial had been conducted, it would be unfair to now require it to confine its case to the broadest form of cruelty representations, ignoring the content which the particulars gave to those representations.
56 In my opinion, Innotek was correct in its submission that this trial was conducted throughout upon the basis that it was critical to determine whether some or all of the specific factual assertions contained within the Herald Sun article were false. It is no answer for the respondents to say now, as they do, that although they addressed that issue by adducing a substantial body of evidence in an effort to prove that those assertions were true, strictly speaking, it had been unnecessary for them to do so.
57 The purpose of pleadings is, of course, to define the issues and thereby to inform the parties, in advance, of the case they have to meet so as to enable them to take the steps necessary to deal with it: Dare v Pulham (1982) 148 CLR 658 at 664. It is important to recognise and accept that there is a clear distinction between pleadings and particulars. A statement of claim must state the material facts. If a material fact is omitted, the statement of claim is bad. The function of particulars is quite different. They are not to be used in order to fill material gaps in what in the old phraseology would be called a "demurrable" statement of claim. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.
58 In Bruce v Odhams Press Ltd [1936] 1 KB 697 Scott J in the Court of Appeal said at 713:
"Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a "material fact" and a "particular" piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping."
59 In this Court, the distinction between material facts and particulars has often been emphasised; see generally: Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522 at 42,679; Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR 41-591 at 44,152; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Ltd (1998) ATPR 41-633 at 40,978.
60 In Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 at 42,827 Drummond J noted that recent authority acknowledged the blurring of the distinction between pleadings and particulars. His Honour referred to Beach Petroleum NL v Johnson (1991) 105 ALR 456 where von Doussa J had spoken of the tendency now towards narrative pleading arising from a growing concern that pleadings according to traditional rules do not adequately make known to the Court and to the parties the nature of the opposing cases in complex matters. von Doussa J also commented that:
"[t]echnical objections raised to pleadings on the ground of alleged want of form will be received with less enthusiasm today than in times past."
61 In my opinion, the cruelty representations must be viewed in the light of the particulars provided by Innotek of those representations. It would be disingenuous to permit the respondents now to assert that they were not here to meet those representations as particularised, but only in their broadest form, as pleaded. It follows that the question whether some or all of the factual assertions concerning electronic dog collars contained in the article were true must be resolved.
62 I propose to deal with those factual assertions individually by summarising the evidence adduced in relation to each of them, and expressing my conclusion immediately thereafter.
Do Innotek's collars produce a 3,000 volt shock?
63 There is no doubt that the Herald Sun article contains a clear statement to the effect that electronic dog collars can inflict a 3,000 volt shock to dogs. A statement along those lines was made to Mr Papps by Mr Apostolides. Not surprisingly, that statement was duly reported. Indeed, it was given considerable prominence.
64 Innotek claimed that this representation was plainly false. It referred to the definition of "shock" in the Macquarie Dictionary as meaning "the physiological effect produced by the passage of an electric current through the body". It claimed that the impression conveyed by Mr Apostolides' remarks was that electronic dog collars are capable of causing a 3,000 volt current to pass through a dog's body, an impression that was entirely misleading.
65 The evidence was that some brands of electronic dog collars, when "bench tested", could produce an electric current which was capable of being measured at 3,000 volts. However, it was claimed that the current produced by bench testing bore no correlation to the current produced when such a collar was attached to a dog.
66 Innotek relied primarily upon the evidence of Mr Peter Collins, an electrical engineer who was called on behalf of the respondents. Mr Collins had organised the conduct of tests on an Innotek "No-Bark collar". In his report, he explained electrical theory in the following terms:
"Three electrical variables must be explained. They are voltage, current and resistance. Voltage is the electrical pressure that causes an electrical current to flow. This is measured in volts. Current is the flow of electricity and this is measured in amperes (amps). Resistance is the characteristic of a circuit that impedes or resists the flow of current. Resistance is measured in ohms.
The three variables are connected by the equation - Voltage (V, volts) = Current (I, amps) x Resistance (R, ohms), that is simply:
V = I x R .................. equation 1
This equation states that the current flowing in a circuit is dependent on the voltage applied to the circuit and the resistance of the circuit.
The dog collar generates a voltage between the two electrodes. In free air, the voltage developed across the two electrodes was measured to be 2705 volts. Under these conditions negligible current would flow. Essentially the resistance between the electrodes is infinitely high and thus, according to the above equation, no current flows. If something conductive connects the two electrodes with a reduced resistance (dog's neck) then a current will flow. This current is also determined by the above equation. The lower the resistance of the dog's neck, the higher the current that will flow.
The dog collar has a resistance built into the module. This resistance is in series with one of the electrodes. This resistance is designed to limit the current which will flow should the electrodes be bridged (shorted) externally. This resistance is termed the internal resistance (or impedance) of the voltage source (dog collar). The internal resistance and the external resistance added together determine the magnitude of the discharge current. The addition of these resistances combine to give the total circuit resistance and thus determine the current flowing (refer equation 1). The higher the internal resistance the lower the current that will flow. Measurements made during testing indicated that the value of the internal resistance altered with both the output level setting and the magnitude of the current flowing.
If a wire (effectively zero resistance) shorts the electrodes then the current flowing in the circuit is set by the value of the internal resistance. The shorting wire does not contribute to the overall circuit resistance.
The resistance through the dog's neck is important. The addition of the dog's resistance (neck) and the collar's internal resistance determine the current that flows. SPI Powernet measured the output of the collar for resistance values between 100 and 4000 ohms, over all seven settings .... For a given setting the resistance value changed the value of the voltage generated between the electrodes and the current which flows."
67 He went on to deal with "electric shocks", and said:
"An electric shock is caused by an electric current from an external source passing through the body. The shock is the discomfort or pain the body experiences when this current flows. Generally the higher the current level the greater the "shock". Some areas of the body are sensitive to current and the level of discomfort (pain) can be great even though the current level may be low.
The greater the separation between the entry and exit points for the current the greater the value of the body resistance. For a given voltage level the greater the body resistance the lower the current that will flow (refer to the equation 1 above)."
68 Mr Collins concluded his report by observing:
"Based on the experimental data, summarised above, I am satisfied that the pulses of current flowing through the neck of a dog most probably would be in excess of 20 milli-amps. If the surface of the skin were punctured or lacerated then I would expect that the total impedance could even be less than 100 ohms. Should this be the case than [sic] the current pulses could be far greater than 20 milli-amp. Again I have no test data on animals to support this opinion. As a reference the perception for current in humans is around 0.5 milli-amps.
With the current pulses lasting for 600 milli-seconds and with a value in excess of 20 milli-amps the animal would most probably suffer high level of distress ... It is recorded that a dog's heart is disturbed when it is exposed to currents as low as 0.06 to 0.1 milli-amp. This is the lower threshold for heart disturbance. ...
Consideration should be given to the possible duration for receiving the electrical shock. With the collar around the neck and the electrodes contacting the skin the dog would be unable to withdraw from the source of the shock. When a human experiences a shock the first reaction is to withdraw and remove the source of the shock. The collar would not enable the dog to reduce the level of the shock. ..."
69 Under cross-examination Mr Collins agreed that the impedance to the animal was expected to be in the order of 100 ohms. Based upon that figure, he believed that the current flowing through a dog's neck when a collar was activated was in the order of 20 milli-amps. The cross-examination continued:
"Would that therefore mean that the voltage actually delivered is two volts? -
The voltage times the - sorry, I beg your pardon. The voltage is equal to the current times the resistance, and multiply those two together and you will get, yes, about two volts.
So in any event, based on your examination of this device, the current flow was 20 milliamps? - Yes.
The impedance was in the order of 100 ohms? - Correct.
Therefore our voltage is two volts? - Correct.
You would agree then that a statement of 3000 volts in terms of pain or sensation is really quite a meaningless statement? - No, the 3000 volts is a statement of the electrical characteristics of the device and the device produces between its terminals 3000 volts.
But the actual current flow is two volts? - No - sorry, current is not measured in volts.
Right, okay, 20 milliamps? - The flow of current is 20 milliamps, yes.
Is that the current which actually goes into the skin? - That's the current that passes through the animal."
70 Mr Collins agreed that it was inappropriate to speak of a number of volts passing through a body. Voltage is merely the capacity to make current flow. He maintained that the statement in the article concerning 3,000 volts was, broadly speaking, correct, but he conceded that it said nothing about how much current a dog would experience as it passed through its skin. In other words, the shock would arise out of a 3,000 volt potential between the probes on the collar, but was not itself a shock of 3,000 volts. It was, in fact, a shock in the order of 20 milli-amps, equivalent to about 2 volts.
71 The expression "misleading or deceptive" is not defined in s 52 of the Act. The most appropriate meaning for the word "deceive" is to cause to believe what is false, to mislead as a matter of fact, or to lead into error. The words "or is likely to mislead or deceive" mean may be expected to mislead or deceive.
72 In determining whether the statement that electrified collars inflict 3,000 volt shocks was misleading or deceptive, it is necessary to identify the relevant section of the public which is said to have been likely to be misled. For present purposes, that means readers of the Herald Sun newspaper. Without being unduly disparaging, these readers are hardly likely to be capable of appreciating the subtle nuances with which electrical engineers distinguish voltage and current.
73 The idea that an electronic dog collar
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