Case: Medical Benefits Funds of Australia Ltd &amp; Anor v Cassidy &amp; Anor [2003] FCAFC 289 ; (2003) 135 FCR 1
Outcome: applied
Medical Benefits Funds of Australia Ltd &amp; Anor v Cassidy &amp; Anor [2003] FCAFC 289 ; (2003) 135 FCR 1 , Stone J (with whom Moore and Mansfield JJ agreed on this issue) rejected a submission by the Appellant in that case that various written disclosures appearing in billboard advertisements appropriately qualified more prominent statements appearing upon them which would otherwise convey a misleading representation. Her Honour said at [35]-[37]: [35] MBF submits that irrespective of the impression conveyed by the main part of the advertisements the written disclaimers were sufficiently prominent to bring the obstetrics waiting period to the attention of a person viewing the advertisements. [36] In support of its submissions MBF points to the decision of Moore J in George Weston Foods Ltd v Goodman Fielder Ltd [2000] FCA 1632 ; (2000) 49 IPR 553 ( Wonder White Case ). In that case Moore J held that an asterisk can be sufficient to draw the attention of a consumer to a qualification of a representation. That case concerned, inter alia, the packaging of bread which declared in large typeface "Now Twice the Fibre*". Moore J observed, at 572, that: "the asterisk is prominent and would be taken to signify some qualification or explanation of the words used. One could expect a consumer interested in the fibre content to seek out the qualification or explanation. Not only is the explanation within 2 cm of the words used on the package (albeit in much smaller type) but it is repeated elsewhere on the packaging." [37] While the Wonder White Case is authority that an asterisk leading to a qualification of a representation may be effective to neutralise an otherwise misleading or deceptive advertisement, whether this is so is a matter for determination in the specific circumstances of any particular case. The qualifying material must be sufficiently prominent to prevent the primary statement being misleading and deceptive or likely to mislead or deceive; Australian Competition and Consumer Commission v Signature Security Group Pty Ltd (2003) 52 ATR 1 at [26]-[27]. The Respondent relied upon the words "Subscribe to Moby Planet for your chance to WIN ..." appearing at the top of the front of both types of scratch cards as sufficient to convey to ordinary and reasonable consumers that it was necessary for them to subscribe to Moby Planet in order to collect a prize. I do not accept this submission. Having regard to their overall appearance, the scratch cards do not sufficiently bring home to the minds of ordinary and reasonable consumers that it is necessary for them to subscribe to the Moby Planet service to win a prize. Indeed, the statement to the effect that by matching three symbols the player is guaranteed to win a listed prize is literally inconsistent with the small print relied upon by the Respondent. The additional statements appearing in fine print at the foot of the front of the yellow scratch card and underneath the latex panel of the red one are also insufficient to convey to ordinary and reasonable consumers that it was necessary for them to subscribe to Moby Planet in order to collect a prize. These statements are neither clear nor prominent enough to convey to players that the prizes come at significant cost in the form of a subscription to the Moby Planet service. In deciding what relief, if any, should be granted under s 86C I am guided by the observations of the Full Court in Medical Benefits Funds of Australia Ltd &amp; Anor v Cassidy &amp; Anor [2003] FCAFC 289 ; (2003) 135 FCR 1. I refer in particular to the Reasons for Judgment of Stone J (with which Moore and Mansfield JJ agreed) at para [45]-[58] and the authorities referred to by her Honour in those paragraphs. As I have already found, as at 15 September 2009 a total of 114,418 people had subscribed to the Moby Planet service as a consequence of their participation in the competition. Only 3,561 people had continued with their subscriptions up to that date. The vast majority of people opted out soon after taking out their initial subscription but this did not enable them to avoid payment of the initial $10.00 subscription fee. I agree that it is appropriate that a corrective advertisement be sent by SMS to all current subscribers to the Moby Planet service who took up their initial subscription as a consequence of their participation in the competition. It was submitted for the Respondent that compliance with such an order would give rise to a contravention of the industry code of conduct previously referred to. I am not satisfied this is correct. I think the more significant question is what to do in relation to the large number of people who opted out soon after taking out their initial subscription. In my view many of these people may be entitled to either a refund or compensation from the Respondent on the ground that they were induced to take out their initial subscription by the Respondent's misleading and deceptive conduct. As Stone J accepted in Medical Benefits Funds of Australia Ltd &amp; Anor v Cassidy &amp; Anor [2003] FCAFC 289 ; (2003) 135 FCR 1 at para [59] in the context of the orders for corrective advertising which had been sought in that case: ... there is utility in informing those people who were misled (be the group large or small) of the true position and thus putting them in the position to assess any rights they may have as a result. In my opinion an order for corrective advertising should be made aimed at bringing the key findings of the Court to the attention of people who took out subscriptions to the Moby Planet service but who have since terminated their subscriptions. This would enable them to assess any rights they may have if they so choose. One way of bringing such findings to the attention of at least some of those people is by the publication of a corrective advertisement in various newspapers and magazines in which the scratch cards were inserted. Another possibility is for the Respondent to write to each person who claimed a prize (there were approximately 29,000 such people) advising them of the Court's findings. The latter possibility has not been addressed by either party and I raise it for their consideration. It seems to me that a combination of advertisements in newspapers and magazines and a letter of the kind I have mentioned may be a sensible and effective way of conveying an appropriate message to those people who were affected by the Respondent's conduct.