Federal Court extends injunction against WA nursing union over misleading advertisements

The extension would only be for a short period until an expedited final hearing

Federal Court extends injunction against WA nursing union over misleading advertisements

The Federal Court has extended interim injunctions against the Australian Nursing Federation Industrial Union of Workers Perth (ANF) in a case concerning allegations that it engaged in misleading and deceptive conduct through its advertising campaign. 

Ramsay Health Care Australia, a major private healthcare provider operating 74 hospitals and day surgery units in Australia, initiated the lawsuit. The company sought declarations that the ANF’s advertisements violated s. 18, 31, and 34 of the Australian Consumer Law (ACL). Specifically, Ramsay alleged that the ANF's campaign misled or deceived the public regarding the quality and safety of services provided at Ramsay's hospitals, misled potential employees about the nature of employment at Ramsay, and published false statements that caused some members of the public to avoid Ramsay’s services, resulting in actual damage to the company. 

Initially granted on 12 April, the injunctions restrained the ANF from publishing specific advertisements criticising Ramsay’s patient care and nurse-to-patient ratios. Ramsay sought to extend these injunctions pending the final determination of the case. The court’s orders prohibited the ANF from claiming that Ramsay hospitals endanger patients’ health compared to public hospitals, do not provide quality care or take patient health seriously, and have double the number of patients per nurse compared to public hospitals. The injunctions were extended multiple times, most recently on 13 May, to prevent further publication of the disputed advertisements. 

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The Federal Court acknowledged that Ramsay has a prima facie case that the ANF’s conduct could be in breach of the ACL. The court considered the balance of convenience, noting that the extension of the orders would only be for a short period until an expedited final hearing. The court deemed the potential harm to Ramsay and the broader private health system from the ANF’s advertisements significant. Conversely, the ANF would suffer minimal prejudice from the extension since they had already paused their campaign. 

However, the court decided not to extend one of the orders that broadly prohibited the ANF from making similar representations. The decision was based on several grounds: there is a legitimate public interest in robust debate about the healthcare system and its participants, and the broad and vague terms of the order could unduly stifle this debate and were unclear in their scope. The order’s lack of precision could inhibit the ANF’s ability to legitimately criticize and discuss Ramsay’s practices. 

Instead, the court proposed an alternative measure requiring the ANF to give Ramsay 72 hours’ notice before resuming any advertising campaign similar to the one in dispute. This approach aimed to balance the need to protect Ramsay’s interests without overly restricting the ANF’s ability to communicate about public health matters. 

The parties have been given the opportunity to confer on the precise terms of the order or to consider addressing the issue through an undertaking to the court. The injunctions will remain in place temporarily, maintaining the status quo until a final resolution is reached. 

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