Case: Australian Ocean Line Pty Limited v West Australian Newspapers Limited (1985) 58 ALR 549
Outcome: applied
The Seven Licensees are not liable for these representations unless they were made by the Seven Licensees themselves ( Australian Ocean Line Pty Limited v West Australian Newspapers Limited (1985) 58 ALR 549 at 586 per Toohey J) or unless the Seven Licensees have adopted, endorsed or approved of the women's claims such that those claims become those of the Seven Licensees. It is not in dispute that a corporation may contravene s 52 for disseminating erroneous information supplied by a third party ( Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [113] per McHugh J). Relevant to determining whether a contravention of s 52 has occurred, one important factor is whether the corporation has assumed responsibility for or adopted or endorsed the information so that it would be reasonable for a recipient to rely on the confirmation. If the corporation makes it apparent that it is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity and is merely passing on the information for what it is worth, the corporation does not contravene s 52. Another factor is whether the corporation expressly or implicitly disclaims personal responsibility or a belief in the truth or falsity of the information ( Butcher at [115] per McHugh J). If there were such a disclaimer, the corporation does not contravene s 52. This will not, however, apply where statements of fact are made by the corporation itself. 12 It is not sufficient that the statements reported the opinions of Ms Boholt and Ms Forster which did not accord with the facts. There must be something referable to the Seven Licensees' conduct ' which is likely to lead a reader into error ' ( Australian Ocean Line at 586-7 per Toohey J). An example given by Toohey J in Australian Ocean Line at 587 was a statement suggesting that the criticisms attributed to or made by others were well-founded or a statement apparently containing the opinion of the broadcaster about the subject matter. Each such statement goes beyond the mere reporting of opinions by others and contains a representation by the broadcaster. 14 The Commission submits that the first episode goes beyond the mere reporting of the statements or opinions of Ms Boholt and Ms Forster. The episode conveys, the Commission says, an assessment by the Seven Licensees that Ms Boholt and Ms Forster are wealthy and that participants in the Mentoring Program will likewise become wealthy ( Australian Ocean Line at 587 per Toohey J). That assessment is said to be evidenced by the making of statements by the compere and by the reporter to suggest that the statements and opinions of Ms Boholt and Ms Forster are accurate or well-founded. If the statements of the compere and reporter, in the context of the Episodes as a whole, constitute a making by them of the alleged representations, those representations would be taken to have been made by the Seven Licensees when the Episodes were broadcast. 15 The Commission relies on the following statements of the compere and reporter: &#8226; ' It's a one year program to teach them the skills of making big money '. &#8226; '[Ms Boholt and Ms Forster] are self proclaimed wildly wealthy women on a mission to make other women filthy rich too '. &#8226; ' through shrewd investment in real estate the pair have become millionaires, their secrets to be revealed in a mentoring program called Wildly Wealthy Women'. &#8226; ' in 8 months [Ms Forster's] bought more than one million dollars worth of property with no money whatsoever '. &#8226; '[Ms Boholt] is an accountant turned property guru '. &#8226; '[Ms Boholt] now owns more than 60 properties all around Australia '. &#8226; ' the knowledgeable pair '. &#8226; ' The nine month program costs nearly $3,000. If that sounds a lot think again. They say they can turn anyone into a millionaire even those with no money '. &#8226; ' for your chance to learn how to be a property millionaire log onto [the Website]'. 16 It follows, the Commission submits, that the Seven Licensees adopted the first, second and third representations as their own. As to the fourth, fifth and sixth representations, the Commission asserts that the reporter made statements to that effect without attributing those statements to any other person: &#8226; '[Ms Boholt] now owns more than 60 properties all around Australia (the fourth representation). &#8226; ' In eight months [Ms Forster's] bought more than one million dollars worth of property with no money whatsoever ' (the fifth representation). &#8226; ' the pair have become millionaires ' (the sixth representation'). As a result, the Commission submits that the making of those statements goes beyond the mere reporting of Ms Boholt or Ms Forster's opinions and constitutes a representation by the Seven Licensees of the facts there asserted.