Talmax Pty Ltd v Telstra Corporation Limited

(1997) 2 QdR 444

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Talmax Pty Ltd
v Telstra Corporation Limited [App. 2983/1996]

Court:

Judges: Fitzgerald P
Davies JA
Moynihan J

Subject References:
Trade and commerce
Trade practices and related matters
Consumer protection
Misleading, deceptive or unconscionable conduct
Particular classes of conduct
Claimed sponsorship or endorsement
Misrepresentation that sportsman consented to use of name, image and reputation in advertising and supported and sponsored by advertiser
Trade and commerce
Enforcement and remedies
Actions for damages
Assessment of damages
Other matters
Diminution of commercial opportunity
Matters relevant to assessment

Legislative References:
Trade Practices Act 1974 - s. 82; s. 52

Case References:
Taco Co. of Australia Inc. v. Taco Bell Pty Ltd - (1982) 42 A.L.R. 177, 202 followed
Morgan v. Odhams Press Ltd - [1971] 1 W.L.R. 1239
Siddons Pty Ltd v. The Stanley Works Pty Ltd - (1991) 29 F.C.R. 14, 20
FAI General Insurance Co. Ltd v. RAIA Insurance Brokers Pty Ltd - [1992] A.T.P.R. 41-176 at pp. 40,409-40,410 considered
Sellars v. Adelaide Petroleum N.L. - (1994) 179 C.L.R. 332 applied.

Hearing date: 15 October 1996
Judgment date: 25 October 1996

Brisbane

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ORDER

Held:

(1) That where a person founded a claim under s. 52 of the Trade Practices Act 1974 (Cth) on an advertisement directed to the general public by inclusion in a newspaper with a wide circulation, he could rely on any meaning which was reasonably open to a significant number of the newspaper readership.

(2) That in the circumstances the respondent's publication contravened s. 52 by misrepresenting that the appellant sportsman was sponsored by it, had consented to its use of his name, image and reputation in its advertising and supported it in its competition for subscribers.

(3) That the appellant was entitled under s. 82 of the Act to damages representing the diminution of his opportunity to commercially exploit his name, image and reputation. In the present case the assessment of those damages called for an assessment of the possible extent to which his commercial advantage was generally diminished and of the possibility that he lost the chance of a particular opportunity of exploitation of that advantage.

Decision of Byrne J. reversed.

Appeal allowed.