Case: Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82
Outcome: applied
Conduct is " likely to mislead or deceive " if there is a " real or not remote chance or possibility regardless of whether it is less or more than fifty per cent ": Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87 per Bowen CJ, Lockhart and Fitzgerald JJ (applying Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331 at 346 per Deane J; Sheen v Fields Pty Ltd (1984) 58 ALJR 93) ; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 at [97] . A corporation's state of mind is immaterial in making out a case of misleading or deceptive conduct. In Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88 the Full Court relevantly observed: If a corporation is alleged to have contravened s 52(1) by making a statement of past or present fact, the corporation's state of mind is immaterial unless the statement involved the state of the corporation's mind. Whether or not s 52(1) is contravened does not depend upon the corporation's intention or its belief concerning the accuracy of such statement, but upon whether the statement in fact contains or conveys a meaning which is false; that is to say whether the statement contains or conveys a misrepresentation. Most commonly, such a statement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate; but a statement which is literally true may contain or convey a meaning which is false. See also: Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197 at [79] [83], [2007] FCAFC 197 ; 248 ALR 169 at 182 3 per Buchanan J. The liability created by s 52 , it must also be recalled, was not " designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests ": Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193 at 241 per Gummow J. See also: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1981) 149 CLR 191 at 199 per Gibbs CJ ; Rawley Pty Ltd v Bell (No 2) [2007] FCA 583 at [212] , 61 ACSR 648 at 701 per Finn J; Webster v Havyn Pty Ltd [2004] NSWSC 227 at [73] per Palmer J. 96 One view has been that s 51A(2) casts a burden of proof upon those making a representation as to a future matter to show that there were reasonable grounds for making it: Ting v Blanche [1993] FCA 524 ; (1993) 118 ALR 543. Hill J there observed (at 552): The section is but an interpretation section; it does not of itself create a cause of action, nor define a norm of conduct. The relevant cause of action is to be found in s 82(1) of the Act by reference to the norm of conduct laid down in s 52 of the Act. What s 51A does, in a practical sense, in cases where it applies, is to cast the burden of proof upon the respondent corporation who has made a representation about a future matter to show that in making that representation it had reasonable grounds for so doing. In the language of Sheppard and Neaves JJ in Cummings v Lewis (1993) 113 ALR 285 ; ATPR (Digest) 46 103, s 51A is "designed to facilitate proof" (at ALR 294; ATPR 53,450). Representation as to future facts may, of course, constitute conduct which is misleading or deceptive or likely to mislead or deceive within s 52 of the Act, irrespective of the operation of s 51A. However, without the intervention of s 51A the burden would remain upon the applicant to show that the representation, in whatever form it took, was misleading or deceptive or likely to mislead or deceive. In the ordinary case where a representation as to future conduct or events is alleged to have been made, that means that the burden would be upon the applicant to show not merely that the conduct or event has not come to pass but also that at the time the representation was made the respondent did not believe that the conduct or event would come to pass or that there was no basis for a belief that the conduct or event would come to pass: James v ANZ Banking Group Ltd (1986) 64 ALR 347 ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88; [1984] FCA 180 ; 55 ALR 25. It will be readily apparent that a representation as to future conduct or a future event will generally imply (and sometimes explicitly state) that the maker of the representation was of a particular state of mind as to the future conduct or event as at the time the representation was made. ... See also: Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679 at 690 per McHugh JA; Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 at [78] [82] per Stone J.