Case: Sun Earth Homes Pty Limited v Australian Broadcasting Corporation (1993) 45 FCR 265
Outcome: considered
In Advanced Hair Studio Pty Ltd v TVN Enterprises Ltd (1987) 18 FCR 1 at 11 French J expressed the view that the reference in paragraph (a) to "a publication of matter" ' suggests that what is of importance is the content and not the general nature of the material in question '. That observation was referred to by Wilcox J in Sun Earth Homes Pty Limited v Australian Broadcasting Corporation (1993) 45 FCR 265 at 280. However, French J was not concerned with subparagraph (vi) and was not referring to the subject of an agreement between the prescribed information provider and a third person. His Honour did not expand upon the distinction between and the dividing line between what may constitute "conduct" and "general nature". 86 In Sun Earth at 282, Wilcox J described matter that would fall within paragraph (a) as matter concerning the applicants, published in connection with the supply of goods or services of the applicants. His Honour did not direct his observations to the argument raised here by Seven, that the supply of goods or services "of that kind" was limited to goods and services of the kind supplied by the prescribed information provider. It is worth noting however that intuitively Wilcox J considered goods or services "of that kind" as not so restricted. In Bond v Barry [2007] FCA 1484 , French J at [41] [42] did not read subparagraph (vi)(A) as restricted to "relevant goods or services". However, it does not seem that his Honour was directed to that possible construction. 101 In Sun Earth at 281, Wilcox J considered the proposition that the purpose of s 65A is to protect prescribed information providers acting as such. His Honour repeated his view that the "commercial interest" in the content of the information sufficient to come within the exception to the exemption afforded by the section, is satisfied if the information promotes the business or services of the information provider or because the information provider has some direct commercial relationship with a third party. That is encompassed by subparagraphs (a)(v) and (vi). 102 Justice Wilcox also considered a submission that, where a party itself creates the information which it supplies, which is expressly designed to advise consumers as to how they should deal with suppliers of goods or services, the supplier should be bound by s 52 of the Act. Justice Wilcox accepted that the fact that the program in question, "The Investigators", was more than a program providing news and comment. However, his Honour held that that was insufficient to deny the protection of s 65A. However, his Honour affirmed the need for the publication to come within the categories of paragraphs (a) or (b). He said that there was no warrant to introduce additional exceptions by reference to what might be regarded as a "commercial interest" (at 282). 103 Section 65A does not, in terms, require that for the exception to apply there must be a commercial interest. To the extent that commercial interests of the kind referred to in the Second Reading Speech are specifically referred to, they are dealt with in subparagraphs (1)(a)(v) and (1)(b). However, the section also includes subparagraph (1)(a)(vi). That provides for an exception for not only a contract but also an arrangement or understanding. The publication may be made not only pursuant to a contract, arrangement or understanding with the third person but also on behalf of a third person. These may not import or impart a commercial interest. 104 I agree with Wilcox J. The exceptions are as provided for in paragraphs (a) and (b) of s 65A(1). It is not necessary for Seven to have a commercial interest in the goods or services the subject of the Episodes or in the publication itself for the exception from liability to apply. 105 Section 65A(1)(a)(vi) applies to the arrangement with Ms Boholt and Ms Forster, who were the suppliers of the goods or services of the kind referred to in paragraph (a). There are three exceptions to the exemption from liability where the Seven Licensees engaged in misleading or deceptive conduct: (1) self advertisement; (2) the publication of matter made on behalf of or pursuant to the arrangement with the women who supplied or promoted goods or services of the kind in the Episodes; and (3) third party advertisement.