Last Updated: 11 July 2002

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)

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."

Associate:

Dated: 8 July 2002

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 (9^th ed, 1998) at 586, 648, 780,

Rogers, Winfield & Jolowicz on Tort (14^th ed, 1994) at 307-308

Gatley on Libel and Slander (9^th 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)

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.

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 is capable of administering a 3,000 volt shock to a dog's neck connotes something quite different from the true position which is that it generates a current of 20 milli-amps, or a voltage of about 2 volts, which passes through the dog's neck.

74 Accordingly, I am satisfied that Mr Apostolides' statement to Mr Papps to the effect that the collars were capable of inflicting 3,000 volt shocks to dogs, was, in every sense, misleading or deceptive. It was, at least, likely to mislead or deceive.

Do the collars cause burning?

75 Mr Apostolides was reported in the Herald Sun article as having said that "in many cases" electronic dog collars inflict burns. Innotek relied upon the evidence of several witnesses to prove that this statement was false.

76 The first was Mr Collins. He said that there are two ways in which electricity can cause burns to human or animal flesh. The first is by generating heat and the second is by creating a spark.

77 In relation to heat, flesh can be burned where the energy created by electricity, measured in joules, is sufficient to raise the temperature to a level at which burning occurs. The capacity of an electrical device to generate such energy is measured in watts. The wattage of an electrical device is calculated by multiplying the voltage by the amperage. One watt produces one joule per second. He said that given the low voltage involved in the use of an electronic dog collar upon a dog's neck (2 volts) and the low amperage at which the collars operate, the wattage output would be small. The effect of his evidence was that it was virtually impossible for such a device, powered by a 6 volt battery, to generate enough heat to burn flesh. In giving that evidence, he proceeded upon the assumption that in order to cause burning, a collar would have to generate enough heat to raise the temperature to 60 degrees celsius, at a rate faster than the rate at which heat dissipates. There was evidence to that effect from two veterinarians called on behalf of Innotek.

78 The second process by which electricity can cause burning, according to Mr Collins, is where the electrical current shorts through air, creating a spark, or an arc. In order to produce this effect there must be a break in the electrical circuit so that electricity passes through air. However, a very precise break is required. Mr Collins suggested that such a break could occur if one of the electrodes on the collar was in contact with the skin of the dog's neck, but the other was not. He accepted that given the low voltages and amperages involved, and the high resistance of air as a conductor of electricity, the break would have to be very slight - perhaps 0.5 to 1.0 millimetres. It would require a very steady hand if one were attempting, deliberately, to hold an electrode away from the skin of a dog's neck at precisely a distance that could give rise to arcing. Innotek described the idea that this effect could be brought about by accident as "pure fantasy". However, even if it were theoretically possible, it could not even remotely justify Mr Apostolides' comment. That was because the process described by Mr Collins could only create a burn which was so small as to be invisible to the naked eye.

79 In re-examination Mr Collins suggested that an arc might occur where the electrode was sufficiently proximate to the hair on a dog's neck rather than to the skin on its neck. However, even assuming that possibility, he confirmed that any burn caused in that manner would merely affect the dog's hair rather than its skin.

80 The next group of witnesses called by Innotek in relation to this issue gave what might be described as "anecdotal" evidence. These were witnesses who had considerable experience in using electronic dog collars. Each of them denied any knowledge of such collars ever having caused burns.

81 Among these witnesses were Mr Scott Brune, the Vice President (Engineering) of Innotek Inc in the United States. He said that his company had sold up to one million of the collars in the last ten years and that there had never been any complaint that a dog had been burnt by their use.

82 Mr Holliday gave evidence to the same effect, save that he acknowledged that the RSPCA had claimed that there had been two instances of burning in this country, neither of which he accepted.

83 Three veterinarians, Dr Christopher Andrews, Dr Richard Murray and Dr Gregory Mahon, each from different parts of Australia, gave evidence of their experience in using the collars. None of them had ever come across an instance where a dog had suffered burns. Mr Ross Allen, an experienced dog trainer who had used the collars extensively, gave evidence to the same effect.

84 Innotek also called veterinary evidence to substantiate its claim that its collars did not inflict burns. It acknowledged that Dr Iain Mitchell, who had actually inspected the dog in the van Ree case, had diagnosed it as having lesions which, in his words, were "consistent with" electrical burns. It also acknowledged that Mr Apostolides' claims were supported by Dr Barbara Maddern-Wellington, though her evidence was based upon a diagnosis which she made from looking at photographs of the Alaskan Malamute dog involved in the Armitage case.

85 Innotek accepted that both Dr Mitchell and Dr Maddern-Wellington were truthful witnesses and that they honestly believed that what they had seen were lesions caused by burning. However, it submitted that, on the issue of burning, the evidence of Mr Collins was conclusive. It also submitted that the evidence of its own veterinarians, all of whom had worked extensively with electronic dog collars, should be preferred to that of Dr Mitchell and Dr Maddern-Wellington, who had not. Each of Innotek's veterinarians maintained that a proper diagnosis regarding burning could not be made without histopathology. Each considered that the observations made by Dr Mitchell were consistent with lesions caused by pressure leading to necrosis, and consequent blackening of the underlying skin, and not burning.

86 Both Dr Mitchell and Dr Maddern-Wellington accepted that histopathology was, at least, desirable in order to make a positive diagnosis of burning. Neither disputed Dr Mahon's evidence that, in order to cause burning, a temperature in excess of 60 degrees celsius had to be achieved, and heat had to be applied faster than it dissipated. Dr Maddern-Wellington proffered the opinion that burning could be produced by electricity without heat, in the same way that burns may result from acid or radiation. However, that opinion found no support in the evidence of any of the other veterinary experts, or in the testimony of Mr Collins.

87 Dr Mahon's evidence was, in my view, of particular importance. He pointed out that if a dog were to be burned by the use of a collar, one would expect to see evidence of such a burn along the length of the electric charge, from one electrode to the other. That was not the case in relation to either of the two dogs said to have suffered burns in this country.

88 I should add for the sake of completeness that Innotek also relied upon the evidence of Mr Dieter Klein, a clinical engineer and technical employee at Westphalia Wilhelm University in Munster, Germany. Mr Klein had written a paper entitled "Electronic Stimulus Devices". He reported having tested an electronic dog collar on a piece of dead pig skin with a view to determining whether it was capable of inflicting burns. He had concluded that such collars were not capable of inflicting such burns.

89 Under cross-examination Mr Klein accepted what was in any event obvious, namely that there is a difference between the skin of a dead pig and that of a live dog or human being. He acknowledged that it was possible that the live skin of a dog's neck could react quite differently to electrical stimuli than a piece of the skin of a dead pig. He maintained, however, that his research had allowed for that difference by exposing the pig skin to much longer electrical stimulus than would normally be the case.

90 In the end, I did not consider Mr Klein's evidence to be of any significant value.

91 In my view, the evidence adduced demonstrates that, save in the most exceptional circumstances, when used correctly, electronic dog collars of the type which Innotek manufactures are incapable of inflicting burns upon dogs. It follows that, Mr Apostolides' statement that "in many cases" the collars inflict burns, was false, and therefore misleading or deceptive.

Do the collars cause other injuries?

92 In the Herald Sun article, Mr Apostolides claimed that dogs had died after being given the shock therapy. He also claimed that shocks from a collar had caused a 60 kg dog to flip into the air, eventually resulting in the dog suffering brain damage. He claimed that it had later savaged its owner and had to be destroyed. He maintained that the RSPCA had seen several animals that had been hurt by the collars.

93 In the same article, Dr Wirth said that electric shocks had caused epileptic fits, vomiting, seizures, burning and bleeding. He described electronic dog collars as objects of torture, and asserted that they were cruel.

94 Innotek contended that there was no evidence that any dog had ever died as a direct result of the use of an electronic dog collar. The only conceivable basis for that assertion was the Armitage case. It was said that the use of a collar upon the Malamute had so traumatised the dog, and changed its temperament, that it had turned upon its owner, and had to be destroyed. That was a very different allegation to the one made by Mr Apostolides.

95 Innotek also contended that there was no evidence that the use of an electronic dog collar could cause any dog (let alone one weighing 60 kg) to do "backflips" every time the dog was given a shock. Common sense, and ordinary human experience, would suggest that this claim was entirely fanciful.

96 The same submission was made with regard to Mr Apostolides' suggestion that the Malamute had suffered "brain damage". The only basis for that suggestion was said to be the supposed change of temperament on the part of the dog. It was submitted that the expression "brain damage" would ordinarily be understood to convey some form of organic injury, and not a mere change of disposition.

97 Innotek contended that there was no basis to support Dr Wirth's suggestion that the collars had caused epileptic fits, vomiting, seizures or bleeding. As far as burning was concerned, the preponderance of the evidence was that this had not occurred.

98 The respondents contended that there was substantial evidence that electronic dog collars were harmful. There was evidence from Mr Collins that they caused pain. There was also evidence that they caused injuries to dogs, including necrotic lesions and burns. Dr Andrews said that they could exacerbate behavioural problems in aggressive or anxious dogs. When used on dogs suffering "separation anxiety", they could increase the level of fear and anxiety.

99 I am satisfied, on the totality of the evidence, that Mr Apostolides' statement that "dogs have died after been given the shock therapy" was at least misleading. The Armitage case did not provide any real justification for that assertion. Similarly, there was nothing to justify his claim that the Malamute, a 60 kg dog, had been "flipped" into the air when shocked by the collar. It was also misleading to claim that the use of the collar had led to the dog suffering "brain damage".

100 I am satisfied, again on the totality of the evidence, that Dr Wirth's statement that electronic dog collars had "caused epileptic fits, vomiting, seizures, burning and bleeding" was misleading. There was no proper foundation for that statement to be made. It could only have been justified by reference to either the van Ree or Armitage cases.

101 In the van Ree case, Mrs Young had used an Innotek No-Bark collar. She did so at the suggestion of an officer of the Maroonda Shire Council which had written to her directing her to prevent her dog from barking.

102 Mrs Young gave evidence in the proceeding before me. She said that the collar had proved to be effective when she first used it. That was for a period of two or three weeks. However, when her dog had begun barking again, after she removed the collar, and she reattached it, she conceded that she had fixed it too tightly. She also conceded that she had left it on for too long. As a consequence, her border collie had suffered injury.

103 The respondents relied upon the fact that when Mrs Young was interviewed by an RSPCA inspector, she had admitted to him that her dog had sustained burns. It was clear, however, that it was the inspector who first suggested that the injury was a burn. Mrs Young merely accepted what she was told.

104 Mrs Young pleaded guilty in the Magistrates Court to having caused unnecessary pain and suffering to an animal. She was placed on a good behaviour bond. The evidence was that her plea was the product of a negotiated settlement whereby two other charges were withdrawn. It is true that in her case, Dr Mitchell examined the border collie and diagnosed the injury to its neck as a burn. It was largely on the strength of that diagnosis that the case proceeded upon the basis that the collar had indeed caused burns to her dog's neck.

105 Mrs Young's evidence was of some significance in relation to the complaint made about Dr Wirth's radio broadcast of 30 October 1999. It will be recalled that during that broadcast he referred to what had purportedly occurred in her case. He said that she had "kept pressing the button so often that the dog was burnt by the electrical shock around the neck".

106 Dr Wirth's description of the van Ree case was significantly at variance with what had in fact occurred. In truth, what that case demonstrated was that when the collar was initially used, it had been effective in preventing her dog from barking. The injuries subsequently sustained were the product of the collar having been applied too tightly, and kept on for too long.

107 It is significant to note that Mrs Young said in evidence that she had tried the collar on her own throat before using it on her dog. She described it as having produced a kind of "jolt". However, she maintained that she had not felt any pain.

108 In relation to the Armitage case, it should be noted that the RSPCA laid two charges of cruelty against Mr Armitage. However, it elected ultimately not to proceed with the prosecution. The charges were dismissed with costs.

109 Mr Apostolides claimed that the Armitage case was not pursued because of the reluctance of several material witnesses to give evidence. That explanation was challenged by Innotek. It called as a witness Mr David Hume, Mr Armitage's solicitor. He suggested that the main reason that the prosecution had been dropped was that it was found, when the collar was tested, that it was not working. Mr Collins, who tested the collar, agreed that this was so.

110 Another reason proffered for the withdrawal of the charges was the inability of the RSPCA to match the location of the lesions on the Malamute's neck with the electrodes on the collar. Moreover, insofar as the case depended upon the proposition that burns had been inflicted upon the dog, that conclusion was supported only by Dr Maddern-Wellington. She had based that conclusion solely on photographs and had never inspected the dog.

111 Innotek submitted that, despite the fact that the Armitage prosecution had been misconceived, the respondents had sought to justify a number of claims made in the Herald Sun article by reference to that case. Indeed, it was Mr Armitage's dog that featured as "Case One" in the article. It was also that dog that was said to have suffered burns, to have been flipped in the air, to have vomited, and to have suffered brain damage (being its change in temperament ). That dog was said to have later bitten its owner, and to have had to be put down. There was no evidence that any of these things had actually occurred. Alternatively, if they had, there was no evidence that they were brought about by the use of an electronic dog collar.

112 In my opinion, the statements made by Mr Apostolides, and to a much lesser extent by Dr Wirth, regarding the effects of the collars upon dogs, as republished in the Herald Sun article, were misleading or deceptive. There was no basis for using the van Ree case to suggest that the collars caused scorch marks around her border collie's neck. Mrs Young's admission that she had inflicted such burns was of no probative value, having regard to the circumstances in which it was made. The evidence of Mr Collins was in my view conclusive on this point. I have already indicated that Innotek's collars do not, at least when properly fitted, and used in accordance with instructions, inflict burns upon dogs' necks.

113 The Armitage case was, as I have said, a failed prosecution. No facts had ever been properly established regarding the circumstances in which the Malamute came to be injured. It was therefore misleading to treat the allegations supposedly made in that case as though they were proven facts.

Is the use of the collars "cruel"?

114 Innotek readily acknowledged that the term "cruelty" is an elusive concept. It accepted that it was open to Dr Wirth, and others, to hold, and express, the opinion that electronic dog collars are "cruel". Other experts could honestly and reasonably hold different opinions.

115 Innotek contended, however, that, notwithstanding the subjective nature of the concept, "cruelty" could be assessed to some degree objectively. This could be done by measuring the amount of pain inflicted.

116 The respondents accepted that the mere fact that a method of training involved the infliction of a measure of pain did not render it cruel. The RSPCA itself recognised that "check chain" or "choker" collars, products which it sold, could inflict pain. It also accepted that dogs were often trained by being hit with various implements, including rolled-up newspapers. It condoned the use of electric fences to keep dogs and domestic animals from straying. It also condoned the branding of horses and cattle with red-hot irons. Plainly this involved the infliction of pain. None of these techniques had been the subject of a "campaign" of the type which it had waged against electronic dog collars. Presumably they were not regarded as "cruel".

117 Innotek accepted that it would be cruel to cause pain to an animal without good reason. At the same time, it submitted, there were circumstances where it would be appropriate to inflict a measure of pain in order to preserve the life of an animal or to protect its welfare. It all depended upon what was reasonable in the circumstances.

118 A number of witnesses who gave evidence in this proceeding said that they had tested the collars on themselves. Those who had done so generally avoided the use of the word "pain" to describe the sensation which they felt. However, even those who said that they did feel "pain" were said to have done so in a context which made it clear that they were really speaking of discomfort, and not acute pain.

119 Innotek did not deny that the collars produced an unpleasant sensation, and one which could reasonably be characterised as "pain". Indeed, it contended that the collars would be worthless if they did not do so. The question was whether the level of "pain" produced could be justified, having regard to the benefits which the collars offered.

120 Innotek submitted that the evidence established that, in some cases, the only practical means to save a dog's life was the use of an electronic dog collar. Some dogs were at risk of being put down unless they stopped barking. Others were at risk of being killed by traffic unless they were prevented from straying. It was obvious that electronic dog collars could be used in a cruel manner. However, in any such case, it would be the misuse of the collar which would be cruel, and not the collar itself.

121 Innotek further submitted that the respondents' description of their collars as "cruel" was emotive rather than rational. It accepted that many decent people would regard the idea of putting an electric collar around a dog's neck as repugnant. It submitted however that a response of this type reflected a misguided tendency to anthropomorphise dogs. When all was said and done, dogs lacked the capacity to comprehend the nature of what was happening to them to anything like the extent of human beings.

122 Innotek accepted that, both as a veterinarian, and as President of the RSPCA, Dr Wirth was entitled to hold and express the opinion that electronic dog collars were cruel. However, it submitted that in the present case, he had gone far beyond that position. He had singled out the collars, claiming that there their use resulted in particular and severe physical consequences to dogs. In truth, their correct use did not. Moreover, his statements implied that the collars were more "cruel" than other devices used to train dogs. In truth, they were not.

123 The respondents submitted that Dr Wirth's comments regarding cruelty were mere expressions of opinion. They submitted that statements of that kind ordinarily conveyed nothing more than that the maker honestly held those opinions: James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 372. See also Global Sportsman v Mirror Newspapers (1984) 2 FCR 82 at 88 and Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1993) 38 FCR 1 at 25-26 and at 45-48.

124 The respondents recognised that an expression of opinion may constitute misleading or deceptive conduct: Stanton v ANZ Banking Group Ltd (1987) ATPR 40-755. They submitted, however, that it will not do so provided that the maker genuinely holds the opinion in question and that there is some proper foundation for it: Stanton (supra) at 41,193; 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 and Sabre Corporation Pty Ltd v Laboratories Pharm-a-Care Pty Ltd (1995) ATPR 41-396.

125 In my view, Dr Wirth's statements to the effect that the use of electronic dog collars was cruel, did not constitute misleading or deceptive conduct. This was his opinion, genuinely held, and not devoid of any proper foundation. The evidence establishes that the collars are capable of inflicting a measure of pain upon dogs. That occurs in circumstances where the dogs may not be able, in a practical sense, to do anything to bring that pain instantly to an end. Whether or not, on balance, the use of such collars is justified is very much a matter of personal judgment. It is not a matter upon which the respondents can be fixed with liability for any contravention of the Act.

The illegality representations

126 Innotek contended that since about October 1999 the respondents had continually stated that their products were illegal, and implied that anyone caught using them would be prosecuted. Comments to this effect were certainly made by Dr Wirth in his radio broadcast of 30 October 1999.

127 Innotek also purported to rely upon the van Ree prosecution in support of its claims insofar as they were based upon these representations. I have already dealt with that prosecution in some detail and it is unnecessary to say anything further about it at this stage.

128 Another example of the loss and damage sustained by the illegality representations was said to be the incident involving Inspector Hickey and Mrs Barrow. That incident occurred after Innotek commenced this proceeding, and is, at best, evidence of malice.

129 Nonetheless, its facts are of some significance. Mrs Barrow's dog, Rupert, a truly precocious animal, was said to have outsmarted Innotek's Containment System by repeatedly approaching the boundary fence, just close enough to activate the collar without receiving a shock. This had caused the battery which activated the collar to run down. Rupert then escaped from his intended confinement. Innotek noted that Mr Hickey plainly had evidence that Mrs Barrow had used an electronic collar but chose, in the exercise of his discretion, not to charge her with any offence. That was said to demonstrate that Dr Wirth's statements to the effect that anyone using such a collar would be prosecuted were false.

130 The respondents submitted that it was clear that in his 30 October 1999 radio broadcast Dr Wirth said nothing more than that it was his understanding of the law in Victoria that the use of such a collar could lead to the laying of charges. He had expressly acknowledged that it was not illegal, per se, to posses such a device. Mr Apostolides gave evidence that whenever the RSPCA was in a position to prove that an electronic collar had been used in relation to a dog, it would prosecute.

131 As far as the van Ree case was concerned, the respondents submitted that it was impossible to see how the fact that Mrs Young had been prosecuted could possibly amount to the making of the illegality representation.

132 Finally, as far as the Hickey/Barrow matter was concerned, Mr Hickey denied having told Mrs Barrow that it was illegal per se to use an electronic dog collar. He maintained that he had merely told her that, under certain circumstances, the use of such a collar could amount to an offence.

133 In my opinion, Innotek has failed to establish that the illegality representations, as pleaded, were in fact made. The transcript of Dr Wirth's 30 October 1999 radio broadcast is somewhat disjointed. However, it seems to me that what he was saying, when read in context, was that it was likely that anyone using an electronic dog collar would be prosecuted. That was his opinion, genuinely held. It was an opinion for which there was some rational basis. Accordingly, Innotek's claim in relation to the illegality representations must fail.

The effectiveness representations

134 Innotek contended that, from about October 1999, the respondents had continually represented that their electronic dog collars were ineffective as training devices. The representations were said to have been conveyed, in particular, by parts of the 30 October 1999 broadcast, and by the December 1999 website press release.

135 Innotek submitted that during the course of the broadcast Dr Wirth had implied that its products were no more than "quick fixes", and that the training theory behind them was to make an animal learn "by inflicting pain and suffering".

136 In the website press release the RSPCA stated categorically that "electronically activated devices" were "completely inappropriate for the proper and lasting training of dogs".

137 By their defence, the respondents admitted that they had expressed the opinion that the products were ineffective. They contended that this opinion was genuinely held and rationally based.

138 The evidence concerning the effectiveness of the products was largely that of two animal behaviourists, Dr Robert Holmes for Innotek, and Dr Kersti Seksel for the respondents. It is fair to say that both these witnesses expressed some reservations regarding the devices. Dr Holmes thought that they were ineffective for aggressive dogs. He also indicated that in his view there were alternative training methods that were preferable. He specifically noted that the instructions provided with the collars might not be sufficiently clear regarding their use. Dr Seksel was, in general, more critical of the devices. She regarded them as being poor substitutes for proper training.

139 Many of Innotek's witnesses agreed that the collars were only effective for so long as they were worn. They could not otherwise change the behaviour of dogs. That was certainly true of the dog in the van Ree case, and also of Mrs Barrow's dog.

140 In my opinion, Innotek has not established that the respondents did not honestly believe, on rational grounds, that the collars were not effective training methods for dogs. The answer to that question is very much a matter of opinion. Innotek cannot be entitled to compensation for the expression of a genuinely held opinion which is supported by some experts, though not others.

The elements of ss 52 and 53(a) of the Act

141 Innotek, having established that the respondents made a number of representations regarding its products that were relevantly misleading or deceptive, must go further and establish each of the other elements required in order to make good its claims under the Act.

142 Section 52 requires proof that the RSPCA is a "corporation" within the meaning of s 4. It also requires proof that in making the representations the RSPCA acted "in trade or commerce". If these elements are established, Innotek must then prove that it suffered loss or damage by conduct in contravention of the section, and finally establish the quantum of any such loss or damage. The respondents denied each of these allegations.

143 Section 53 supports s 52 by enumerating specific types of conduct which, if engaged in by a corporation in trade or commerce, in connection with the promotion or supply of goods or services, will give rise to a breach of the Act. The elements of s 53 are essentially the same as those of s 52, at least insofar as one is dealing with the terms "corporation" and "in trade or commerce". Section 53(a) requires that an actionable representation be "false" rather than "misleading or deceptive". It is not entirely clear what difference this makes. However, the authorities suggest that a representation can be false, even if it is not false to the knowledge of the person making the representation: Riley McKay v Bannerman (1977) 31 FLR 129 at 134; Given v CV Holland (Holdings) Pty Ltd (1977) 29 FLR 212 at 217. It follows that there is no relevant distinction, at least for present purposes, between this particular element of each section. However, s 53(a) includes a requirement that the false representation in relation to goods be that they are of a "particular standard, quality ...". All that is meant by the term "particular" is that the standard or quality must be an indicated or certain standard.

Is the RSPCA a "corporation" for the purposes of ss 52 and 53(a)?

144 Section 52 of the Act relevantly provides:

"(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive."

145 Section 53 of the Act relevantly provides:

"A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services:

(a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use;

..."

146 The term "corporation" is defined in s 4 as meaning, a body corporate that:

"(a) is a foreign corporation;

(b) is a trading corporation formed within the limits of Australia or is a financial corporation so formed;

(c) is incorporated in a Territory; or

(d) is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c)."

147 The respondents submitted that the RSPCA was not a "corporation" within the meaning of any of these paragraphs. Plainly it did not fall within pars (a), (c) or (d). Nor was it a "financial corporation" within par (b). The only issue was whether it was a "trading corporation formed within the limits of Australia". There was no question that it was formed within Australia. Equally, there was no question that it engaged in some trading activities. However, the mere fact that a corporation engages in trade is not enough to constitute it a "trading corporation": The Queen v Trade Practices Tribunal: Ex parte St George County Council (1974) 130 CLR 533 at 543, 546, 553, 561-2 and 572.

148 The respondents contended that a corporation will be a trading corporation only if trading represents a substantial aspect of its corporate activities. Trading which is merely a peripheral aspect of those activities will not be sufficient to render it a trading corporation: the Queen v Federal Court of Australia; Ex parte W.A. National Football League (1979) 143 CLR 190 at 208, 234 and 239. Whether a corporation's trading activities are substantial, and not merely peripheral, is a question of fact and degree.

149 The respondents noted that the evidence as to the RSPCA's current activities was to be found in the affidavit of its Executive Officer, Mr Richard Hunter. They acknowledged that it was apparent, from that affidavit, that a number of the activities engaged in by the RSPCA were trading activities.

150 Mr Hunter produced a copy of the RSPCA's annual report for the financial year to 30 June 2000. That report included a statement of income and expenditure showing total income earned by and total expenditure with respect to each of its various departments which were treated, for accounting purposes, as separate cost centres. He also produced a more detailed report containing a break-down of items of income and expenditure for each of the departments.

151 Mr Hunter said that the RSPCA's sources of income included donations, general subscriptions, interest and dividends earned on investments and shareholdings, income earned by its Op Shop at Burwood, rent received, royalties received, profit on the sale of fixed assets, income derived from capital investments, income from the Tailwaggers Club (that is, fees received from members of the public who have their animals registered with the RSPCA in the event that they are lost and found) and some sundry items. Of these income items, only royalties received, proceeds from the Op Shop and the Tailwaggers income were generated through the sale of goods or services to members of the public.

152 Mr Hunter explained that the royalties received by the RSPCA came largely from the sale of RSPCA (Aust) accredited eggs known as "RSPCA Barn Laid Eggs". These eggs were produced by egg producers accredited by the RSPCA as complying with its standards. The RSPCA employed a part time officer who inspected egg producers to ensure compliance. In the financial year ended 30 June 2000 the RSPCA received $92,829.13 in royalties.

153 Mr Hunter also explained that the RSPCA employed ten inspectors to carry out its functions under the Prevention of Cruelty to Animals Act 1986 (Vic). The inspectors were funded by donations and by government grants. This unit operated at a deficit of approximately $1.45 million in the financial year ending 30 June 2000. That deficit was made good by revenue raised from fund raising and marketing activities.

154 Mr Hunter said that the RSPCA also maintained short term boarding kennels at its Animal Welfare Centre at Burwood. All income earned by the kennels came from fees charged to members of the public. The Centre also housed a shelter which offered ambulance and rescue services and received and housed sick, injured and stray animals. In addition the RSPCA had contracts with the Cities of Monash and Whitehorse pursuant to which it acted as their pound. It also earned income from separate contracts with the Shires of Hume and Whittlesea to operate pounds on their behalf. Another source of income was from animal sales (being the sale of animals rescued) and dog training (being fees received from a dog trainer who conducted a training school at the shelter car park at Burwood). The Centre sold a number of animal products of the type commonly sold at veterinary clinics. Income earned by the Shelter accounted for only 37.3 per cent of its running costs. The deficit was made up by funds and bequests.

155 The next item which Mr Hunter addressed was the veterinary clinic run by the RSPCA at the Centre. It employed a number of veterinarians who provided in-house services to the other departments, including the Shelter and the kennels. It also offered commercial veterinary services to the public. It earned income from grooming, the sale of animal related products, dog training services offered to members of the public and veterinary fees.

156 Finally, Mr Hunter noted that the RSPCA engaged in a number of fund raising and promotional activities, including an annual open day at Burwood and a stall at the Royal Melbourne Show. It earned income from the sales of certain branded chocolates and corporate Christmas cards and had entered into a royalty agreement with KMART stores whereby they sold RSPCA branded animal related products. It also raised funds through telephone marketing of products to members of the public. Included among the goods offered for sale to members of the public in this way was a dog training manual.

157 Mr Hunter said that the accounts demonstrated that the RSPCA was funded to a large extent by legacies. Without those legacies, which totalled $2,965,053 in the financial year ending 30 June 2000, the RSPCA would have had an operating deficit.

158 The respondents submitted that while it was clear that the RSPCA earned substantial revenue from trading activities, those activities could only be regarded as peripheral when compared with its overall activities. They submitted that the RSPCA was substantially engaged in non-trading or non-income producing activities. These included the protection, treatment and maintenance of animals, the provision of shelter, and the education of the community regarding their humane treatment. They also included political campaigning and lobbying in support of animal welfare issues, and employing the inspectors who investigated and prosecuted complaints of breaches of the Prevention of Cruelty to Animals Act. These activities were in accordance with the purposes for which the RSPCA was established. The trading activities which it conducted were merely ancillary. To point, as Innotek did, to the revenue which the RSPCA earned by various trading activities was not, in this case, decisive: Hughes v WA Cricket Association Inc (1986) 19 FCR 10 at 29; Forbes v Australian Yachting Federation Inc (1996) 131 FLR 241 at 291; and Fasold v Roberts (1997) 70 FCR 489 at 525-6.

159 Innotek submitted that it was clear that the RSPCA earned substantial revenue from its trading activities. What the accounts showed was that these activities generated an annual revenue in excess of $5.5 million which was more than half the total revenue of $9,940,377 for the financial year ending 30 June 2000. It conceded that many of the activities undertaken by the RSPCA were substantially non-trading, or non-income producing, in nature. The respondents had suggested that a great many of the trading activities including, for example, the egg accreditation scheme, were carried out primarily for educative and welfare purposes, and not to raise income. That suggestion was denied by Innotek, which pointed out that the RSPCA could, if it chose, pursue these objectives without taking advantage of the opportunity to turn them into a money-making operation. The RSPCA did not have to seek to receive royalties for the use of its name and logo. While a campaign against eggs produced by the "battery hen" method might not be a trading activity, the fact that the RSPCA charged a fee for participation in the scheme plainly turned it into one.

160 As regards the RSPCA's other trading activities, the evidence indicated that virtually all of them were conducted in direct competition with ordinary commercial enterprises. Telemarketing accounted for over $2.3 million of revenue. Veterinary fees accounted for over $1.4 million. Significantly even the sale of goods was not confined to products directly relevant to animals for the promotion of their welfare. It included pen sets, t-shirts, diaries, calendars, baseball caps, mugs, wrapping paper, Christmas cards, watches and other general merchandise.

161 Innotek accepted that the ultimate aim of these trading activities was not to create a profit, but to fund the pursuit of the RSPCA's animal welfare objectives. However, in determining whether a corporation was a "trading corporation" it was that corporation's "activities rather than the purpose of its incorporation [which] designate its relevant character": R v Federal Court of Australia; Ex parte W.A. National Football League (supra) at 208. The test was essentially quantitative. At 239 of that case, Murphy J said:

"As long as the trading is not insubstantial, the fact that trading is incidental to other activities does not prevent [the corporation] from being a trading corporation".

162 In considering whether a corporation's trading activities are "significant" or "peripheral" it is irrelevant that those activities do not constitute "the predominant part" of its overall activities: The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 240.

163 It submitted that, on any view, trading revenue in excess of $5.5 million was substantial, in the context of the overall revenue of the RSPCA.

164 Innotek relied upon E v Australian Red Cross Society (1991) 27 FCR 310. There the relevant corporate entity's motives and objectives were entirely altruistic, conducted with a view to achieving benefit to the public, and not with a view to making a profit. However, as Wilcox J said at 343:

"It is true that the trading activities were not motivated by the hope of private gain but purely to earn the revenue which the Division needed for its charitable activities. But, as Mason, Murphy and Deane JJ made clear in State Superannuation Board ..., motive does not matter."

165 In that case the evidence indicated that the Red Cross earned considerable sums of money from the sale of goods - over $2 million - including almost $1.2 million from opportunity shops, street stalls and other fund raising activities, $65,000 from training provided at first aid courses and over $300,000 from a gift shop. Wilcox J said at 343:

"The scale of the Division's trading activities amply meets any of the tests annunciated in [R v Federal Court of Australia; Ex parte W.A. National Football League]."

166 The approach taken by Wilcox J to the determination of whether or not a company should be regard as a trading corporation has been followed in United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 where Marshall J held that the trading activities of the Board generated substantial income and rendered it a trading corporation within s 51(xx) of The Constitution. It was also adopted in Quickenden v O'Connor (2001) 109 FCR 243 where a Full Court of this Court similarly held that the University of Western Australia was a trading corporation.

167 Black CJ and French J said at 260:

"Relevantly for the present case, the University of Western Australia will be a trading corporation for the purpose of pl (xx) and therefore a constitutional corporation to which the Workplace Relations Act applies if it engages in substantial or significant trading activities notwithstanding that trading is not its primary purpose."

168 Their Honours continued at 261:

"The concept of "trading" is a broad one. It is doubtful, however, that it extends to the provision of services under a statutory obligation to fix a fee determined by law and the liability for which, on the part of the student, appears to be statutory. For present purposes, however, this aspect of the claimed trading activities can be disregarded. For it is plain that the other activities cited are trading activities and are a substantial, in the sense of non-trivial, element albeit not the predominant element of what the University does. The University was not established for the purpose of trading and at another time, closer to the time of its creation, it may not have been possible to describe it as a trading corporation. But at the time relevant to this case and at present, it does fall within that class."

169 The respondents submitted that the approach taken by Wilcox J in Australian Red Cross Society was not applicable in relation to the RSPCA. In Australian Red Cross Society, there was evidence that that Society had raised revenue from a multitude of sources. The sheer scale of its trading activities was so great as to be determinative of the question whether it was a trading corporation. By way of contrast, in the present case, a great many of the RSPCA's trading activities, such as the egg accreditation scheme, were carried out primarily for educative and welfare purposes, and not in order to produce income.

170 Innotek responded by noting that even if a number of the RSPCA's trading activities were carried out for educative and welfare purposes, and not in order to produce income, the scale of some of its other trading activities (including telemarketing and veterinary fees) was so great as to make it impossible to conclude that it was other than a trading corporation.

171 It seems to me that, in accordance with the authorities to which I have referred, and on the evidence, the RSPCA must be regarded as a trading corporation within the meaning of s 4 of the Act. I accept that trading on a modest scale does not imbue a company with the character of a trading corporation. However, in the RSPCA's case, its trading activities seem to me to be anything but modest.

Were the representations made "in trade or commerce"?

172 The expression "trade or commerce" is defined in s 4 of the Act to mean trade or commerce within Australia or between Australia and places outside Australia. The words "trade" and "commerce" are not themselves defined.

173 The respondents submitted that even if it could be concluded that the RSPCA was a trading corporation, it did not follow that the conduct of which Innotek complained in this proceeding was relevantly conduct "in trade or commerce".

174 Innotek's case, as pleaded, was that the representations that were said to be misleading or deceptive, or false, were all made in the course of the RSPCA's business. That business was said to comprise the management and promotion of animal welfare, the sale of products for animals, and the conduct of training courses for their benefit.

175 The respondents contended that in order to amount to conduct "in trade or commerce" the conduct impugned must itself demonstrate, or at least suggest, some commercial or trading purpose. They submitted that the question was not whether the conduct engaged in was in connection with trade or commerce, or in relation to trade or commerce, but rather whether it was conduct in trade or commerce.

176 In the present case, the representations complained of were published in several different ways. Some were made orally, by Dr Wirth on radio station 3LO. Others were made by him and by Mr Apostolides to Mr Papps, the journalist employed by the Herald Sun. Still others were made by the RSPCA on its website.

177 The respondents submitted that insofar as any representations were made by Dr Wirth, this occurred as part of the RSPCA's campaign to have electronic training devices banned in Victoria. They were part of its program of educating the public about animal welfare. Indeed, Dr Wirth agreed that he had formulated his remarks as part of a political campaign, using the media as best he could to achieve the RSPCA's objectives. Any representations made by the RSPCA on its website were made solely to inform members of the public about its work.

178 As far as Mr Apostolides was concerned, he spoke purely as an RSPCA inspector. He had no role whatever in any of its trading activities. His authority to speak upon the subject of electronic dog collars stemmed from his responsibilities under the Prevention of Cruelty to Animals Act. Accordingly, so it was submitted, any statements that he made regarding the collars could not be characterised as conduct which, by its nature, bore a trading or commercial character.

179 The respondents recognised that Dr Wirth had conceded in cross-examination that his high media profile, and his outspoken campaigning, were essential aspects of the RSPCA's business activities. He also conceded that the RSPCA depended heavily upon its reputation as being able to fulfil its role successfully with respect to animal welfare issues. However, it did not follow that it was any part of Dr Wirth's purpose in participating in an interview or broadcast to sell more eggs, or to influence members of the public to buy more goods from the RSPCA. While publicity given to Dr Wirth's views might, as a secondary consequence, have those effects, that did not render his conduct relevantly conduct "in trade or commerce".

180 For its part, Innotek conceded that insofar as its case depended upon communications between RSPCA inspectors and members of the public, including for example communications between Mr Hickey and Mrs Barrow, those communications did not occur "in trade or commerce". However, it was submitted that where the RSPCA had communicated to the public at large, either directly (through Dr Wirth's radio broadcasts and the material appearing on its website), or indirectly (through the provision of information to journalists such as Mr Papps) these communications were in fact quite central to its trading activities.

181 Innotek referred to the evidence which showed that a significant aspect of the RSPCA's business activities included the commercial exploitation of its name and corporate logo. These included both the acronym "RSPCA" and the expression "All creatures great and small" (which, I was helpfully reminded, comes from the celebrated hymn written by the Irish poet Cecil Frances Alexander). These merchandising activities involved the commercial exploitation of intellectual property, including the promotion of the marketability of the name and logo. They were, by their very nature, trading or commercial activities. The public statements of the RSPCA made by Dr Wirth and others were said to have the effect of "promoting the sale of goods or services". They were calculated and intended to enhance the marketability of its name and logo and of merchandise sold under that name and logo.

182 Innotek submitted that the RSPCA's conduct in impugning its products also formed a central part of its business activities. This was particularly so, having regard to the fact that the RSPCA itself sold training devices for dogs to the public. In that regard, it competed directly with Innotek. One effect of disparaging electronic dog collars was to promote the sale of "check chain" or "choker" collars which the RSPCA marketed.

183 Innotek submitted that even if Dr Wirth's purpose in criticising its products was primarily educative, and intended to support animal welfare, an inevitable consequences of what he said was to enhance the RSPCA's profile, and the marketability of its intellectual property . It submitted that it was not necessary, in order for conduct to be "in trade or commerce" that it be motivated solely, or even primarily, by trading or commercial considerations. The critical question was whether Dr Wirth's statements had an impact upon the RSPCA's business operations. The evidence made it clear that they did. It followed that his public statements were central to its business activities, and therefore made "in trade or commerce".

184 It was common ground between the parties that the legal test to be applied in determining whether the representations which were made constituted conduct "in trade or commerce" was that enunciated in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594. In that case a construction worker alleged that while he was employed by a construction company a foreman of that company instructed him to remove the grates from the entry points of certain air-conditioning shafts and informed him that each grate was secured by certain bolts. That statement, it was alleged, was untrue. While the worker was removing one of the grates it gave way and caused him to fall to the bottom of the shaft and suffer serious injuries. He claimed damages against his employer on the basis that its foreman's untrue statement was conduct which was misleading or deceptive or liable to mislead or deceive contrary to s 52 of the Act. It was held that the facts pleaded did not give rise to a cause of action under s 52 because the foreman's statement was not conduct "in" trade or commerce.

185 A majority of the Court (Mason CJ, Deane, Dawson and Gaudron JJ) held that s 52 was concerned with the conduct of a corporation towards persons, be they consumers or not, with whom it had or might have dealings in the course of those activities which, by their nature, bore a trading or commercial character and thus were "in" trade or commerce. Their Honours said at 602:

"The