G. No. 72 of 1977 ROBERT JAMES PARISH - and - WORLD SERIES CRICKET PTY LTD Could you please make the following alterations to the above judgment of His Honour Mr Justice St. John, dated 30 September 1977, Sydney. 1. pp. 3 and 4: "Test and Country Cricket Board" should read "Test and County Cricket Board! Please amend on the following lines: p.3 lines 7, 18, and 23. p.4 line 3. 2. p. 4 : line 17: ".....photographs and printing. The last page..... " should read "..... photographs and printing, the last page....." Associate to Mr Justice St, John s Ms ol THE me TL YTDERAL COURT OF AUSTRATLA SOUTH WALES ||... NiSTRICT REGISTRY G. No. 72 of 1977 PLB ween eee DIVISION wee eee JUDGE(S) MAING ORDER : DALE OF ORDER . In the matter of - THE TRADE PRACTICES ACT 1974 BETVECN : ween ve met eee re ete eet eran eeees ROBERT JAMES PARISH | dees veeesececeseveces APPLIcant, | AND — bnew ec ere wc cee eee ee ee eeas sees WORLD SERIES CRICKET PTY.LTD. veveecvevenceveeess RESpondent, ORDER ST. JOHN J. 30 SEPTEMBER, 1977. WHERE MaDe : SYDNEY. COURT ORDERS THAT: the respondent company be restrained 1. from engaging 1n the following conduct:- Any conduct that 1s misleading or deceptive or is likely to mislead or deceive. Publishing or causing to be published any further advertisement 2n the form of the advertisement being exhibit B. - . - Representing expressly or by implication that any cricket matches organised by it have the sponsorship er approval of or any affilization with the Australian Cricket Board or the International Cricket Conference. Referring in such a way as to be misleading or deceptive to any cricket matches organised by it as "Tests" or "Pest Series" or "Super Tests". Referring to any teams of cricket players ian cricket matches organised by it as "The Australzan Team" or "Australia" or any similar expression in such a way as to mislead or deceive. ~-/2 The Applicant undertakes to the Court that he will pay to any party restrained or affected by the restraints imposed by this interim injunction such compensation as the Court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the Court or in accordance with such directions as the Court may make and to be paid in such manner as the Court may direct. Costs reserved. DISTRICT REGISTRAR Aa i ae alm ntti ee abe sae At ee a ote are etree 8 man nan ot nmr a v? rrr te a tr eeten steered me cmmmnt Rt ee ee mY Nee te re neal NS ed i li Brn nn mre hk nen Lam hn pm pi RRM Pe er Hh en SL pag IN THE FEDERAL COURT ) . ) G. No. 72 of 1977 OF AUSTRALIA ) 'GENERAL DIVISION In the matter of - THE TRADE PRACTICES ACT 1974 BETWEEN: ROBERT JAMES PARISH Applicant -and- WORLD SERIES CRICKET PTY.LIMITED Respondent REASONS FOR JUDGMENT ST.JOHN J. Satk Ke bir hirer 1922 a ke A ee ee ee ete emerson wer a aren a A + Aah rh Application has been made by Robert James Parish, Chairman of the Australian Cricket Board, for an interim injunction against the respondent company pursuant to Section 80 of the Trade Practices Act 1974 (hereinafter referred to as the Act). The precise orders sought are that the respondent company be restrained from engaging in the following conduct :— (1) (2) (3) (4) (5) Any conduct that is misleading or deceptive or is likely to mislead or deceive. Publishing or causing to be published any further advertisement in the form of the advertisement "eing exhibit EFG 1 to the affidavit of Edward Furnival Griffin sworn 22nd September, 1977 and filed herein. Representing expressly or by implication that any cricket matches organised by it have the sponsorship or approval of or any affiliation with the Australian Cricket Board or the International Cricket Conference. Referring in such a way as to be misleading or deceptive to any cricket matches organised by it as "Tests" or "Test Series" or "Super Tests". Referring to any teams of cricket players in cricket matches organised by it as "The Australian Team" or "Australia" or any similar expression. Lf ' aanbe. The application is based upon alleged contraventions of Section 52 of the Act, which provides that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive and Section 53(c) which provides that a corporation shall not, in trade or commerce, in connection with the supply of services represent that services have sponsorship that they do not in fact have. The Australian Cricket Board, is an unincorporated ' . . . . . . . | association having as its members state organisations in Australia. For the purposes of this application the significant function of the Australian Cricket Board has been to arrange test matches between a team representing Austxalia and a team representing one of the other countries which together with Australia belong to an organisation known as the International Cricket Conference. Mr. Parish's evidence is to the effect that to his knowledge over the last forty years test matches in which a team representing Australia has taken part have been organised exclusively by the Australian Cricket Board and the players taking part have been selected by selectors appointed by that Board. This evidence is supplemented by the tender of a copy affidavit of Kerry Francis Bullmore Packer in proceedings in the Chancery Division of the High Court of Justice in , England. Mr. Packer is a director of the respondent company and in his affidavit, inter alia, said this:- bY 1 BY "2. Cricket is a sport played all over the world, largely in-countries which have historical associations with .-/f3 RE ALR te Ate Aaa eee kee en anne tntnntenrean st a A Great Britain. The major cricketing countries include England, Australia, the West Indies, New Zealand, . South Africa, India and Pakistan. There are many other lesser cricketing countries, such as Fiji, East Africa, Denmark and Singapore. Each country has its own governing body which controls the sport. In England that body is the Test and Count y Cricket Board. In Australia it is the Australian Cricket Board. 3. International cricket is governed by the International Cricket Conference ("Icc"), which consists of the various governing boards of the "'ericketing countries of which the named Defendants are representatives. JI cannot give details of the constitution of the Icc but I believe that the voting powers of the various bodies are graded in accordance with their importance in the world of cricket and that the English Test & Count y Cricket Board and Australian Cricket Board have an ultimate power of veto over the decisions of the Conference. An excerpt from the laws of cricket which appears to contain a list of the current members of the Icc and a copy of the rules of the Test and Count -y Cricket Board are now produced and shown to me in a bundle marked "KFBP 1". 4. The major cricketing nations other than South Africa play international matches against one another - ~-/4 "Test Matches" - which are controlled internationally by the Icc and in England and Australia by the English Test and Count y Cricket Board and the Australian Cricket Board respectively." - The applicant's complaint relates, in part, to a brochure (referred to in the second order sought) which was loosely inserted in a magazine entitled The Australian Women's Weekly ' and distributed with that magazine on or about 21 September, eee ee ee ees ' 1977 throughout Australia. After the hearing commenced the respondent company informed the Court that no further ' Gistribution was planned but the applicant persists in seeking an order in respect to it. That magazine has a circulation . in excess of 800,000. Surveys have shown that it is read by 45% of Australian females over the age of 16 and approximately 1 million males. The brochure consists of a double leaf folded over the first three pages of which contain colour photographs and printing, the last page of which consists of an application form for the purchase of tickets to the "World Series Cricket" matches to be held in Sydney this coming summer. The first page of the brochure is headed in large type:- THE GREATEST INTERNATIONAL CRICKET EVENT EVER SEEN x IN AUSTRALIA" ° | | ~— tee be een chee = eee we ee eR ee — - oo -— | There is also a photograph of Ian Chappell, a former captain of Australia's test team. On that page also there are two references to "Super Tests", the first being to "Super Tests" and the second to "Super Test stars". On page two there is an action photograph of a former West Indies test cricket captain, Clive Lloyd, wearing the uniform cap bearing the insignia of that team. Behind him is the England wicket keeper, Alan Knott, wearing a cap on which the insignia of the England cricket team appears. Page 3 is headed, "For the first time. The full story on the Super Tests.". The players are named and photographs appear of Rod Marsh wearing a cap bearing the insignia of the Australian test team and two other photographs, one of Alan Knott, previously mentioned and Dennis Lillee. The words "Super Test" appear on two occasions. On the back and fourth page the words "Super Test Series" appear on two occasions and the "Super Tests" are numbered for the purpose of application for tickets. The cost stated for tickets for a full match (a super test) is $24 for adults and $8 for children. The applicant's complaint about this brochure is that it will Mislead and deceive a substantial segment of the population into believing that the "Super Tests" there advertised are in fact test matches organised by the Australian Cricket Board and the same as that Board has organised previously. For the respondent company it is contended that there are expressions (including "Super Test") in the brochure indicating that the "Super Tests" do not come under the auspices of that Board. For the applicant, reliance is placed upon a number of --/6 . \ De ene ee \ statements in the brochure. For example, on page 1 under the photograph of Ian Chappell in the Australian test uniform appear these words: "Australia's team will be strengthened by the return of Lillee, Ross Edwards, Gary Gilmour, Ian Redpath and Ian Chappell (seen here)." The applicant contends that the expression "Australia's team" can only refer to the recent Australian test team which played a test series in the English summer of 1977. With this contention, I agree. , . On page 3, a number of South African cricketers are named and thereafter these words appear, "who have not been seen under Test Match conditions in Australia for some time.". This implies that when they are seen in the "Super Tests" that "Super Test" will be a test match. On the same page under a sub-heading, "Respect for tradition" there is a statement that all matches will be conducted and played under accepted "International Cricket Laws and Standards". Then follows, "This aspect of the Series is under the control of a committee of highly experienced and knowledgeable administrators and former Test Cricketers ..........". According to Mr. Parish the word, "administrators" is one commonly used to describe governing bodies, at various . levels, in the game of cricket. ./7 be eee eee A Aen erm tn are es ee Ae mae i tet phen ne re It is to be noted that on page 4 of the brochure in a number of instances the respondent has found the words "games" and "match" adequate alternative descriptions of "Super Tests". The aspects of the brochure relied upon by the respondent company as indicating a lack of connection between "Super Tests" and those tests organised by the Board are the announcement that "World Series Cricket" has contracted the world's top cricketers to participate in this summer's super world series. Also there is a reference to prize money, a reference to coaching clinics organised by the Australian Women's Weekly and TCN Channel 9. The respondent company also places a great reliance upon publicity attendant upon "a controversy between the said Mr. Packer and the Australian Cricket Board and English cricket authorities which commenced in May 1977 and has continued up until the present time. A number of newspaper clippings, said to total approximately 1,000, has been tendered in evidence to prove public awareness of this controversy and public knowledge of the description of the proposed series of matches to be organised by Mr. Packer as "Super Tests", either written without quotation marks or with them. All the major newspapers in Australia are represented in the clippings and there are numerous references to Mr. Packer and the proposed "Super Tests" and in addition numerous references to the disputation between Mr. Packer, the company, J.P. Sport Pty. Limited and the English and Australian Control Boards. J.P. Sport Pty. Limited either has changed its name, or is in the process of doing so, to World Series Cricket Pty. Limited. ~./8 pect momma en Lanna a ly nen eo anes fe nen ee ee It is pertinent to note that the brochure referred to contains only one name as the organiser of the "Super Tests" and that is World Series Cricket. There is no direct or indirect indentification with Mr. Packer or J.P. Sport Pty. Limited within the brochure itself. For a reader of the brochure to connect the cricket matches therein referred to with Mr. Packer or J.P. Sport Pty. Limited, he or she would have to draw upon his or her knowledge and recollection of the con- troversy in the newspapers. It is further to be noted that no press clippings from The Australian Women's Weekly were tendered indicating that if che recipient of the brochure through the Women's Weekly was not a reader of other newspapers that reader would have no means of identifying the "Super Tests" in the brochure with those given publicity naming Mr. Packer and J.P. Sport Pty. Limited. I am of the view that such brochure would mislead a significant . section of the public, into whose hands it came into this error that "Super Tests" were tests organised by the Australian Cricket Board. For the respondent company Mr. Chester, the Deputy~Chairman of Consolidated Press Holdings Limited, a company with numerous subsidiaries, including the respondent and the company having ownership of Television Channel 9, gave evidence. Mr. Chester is in charge, in the absence of Mr. Packer, who te presently overseas, and he has informed the Court that it is not intended to further distribute the brochure. Without the slightest reflection upon that witnesses' honesty he has left me with the impression t that his information may not be totally accurate, there 4 . {\ being many other people concerned in the operation. I fa lt propose to make an order in terms of order 2 sought. ' The respondent company, through its counsel, has informed the Court that it is proposed to commence television advertisements on the Channel 9 Television network in Sydney and in Melbourne. Two advertisements on video tape had been prepared, one of 30 seconds duration and the other of 60 seconds. These advertisements, as they will appear on television to a viewer were shown in Court. i Subsequently, Mr. Chester was recalled to prove that these uf two advertisements would not be used. I am satisfied, 4 in this anstance, of Mr. Chester's prediction because of the circumstances in which such decision was made. I feel it unnecessary to comment upon such advertisements. After I had reserved my decision the hearing was re-opened and four further videotape advertisements of 60 seconds duration were tendered and Mr. Chester gave evidence that it was intended that Channel 9 in Sydney and Melbourne would ° show one or more of these on ten occasions each day, Aetna eet ancien ean ten Pe eee LR meer commencing shortly, at a cost of $600 per showing. The combined audience of both these stations averages one million. --/10 - et a ee es - oe te en ce ont cae ee 6 bee ee ape tae A Ho emt ante nen tree rend meh ree nt eet he ete hea A Sle me ir ~ As part of the factual background it is pertinent that, Channel 9 broadcast lave the Australia versus England Test matches of the English summer of 1977. The advertisements mostly consist of former Test and other famous cricketers, who are under contract to the respondent company to play in the "Super Tests", speaking of their expectations of a hagh standard of play in the "Super Tests" with action shots of highlights of them in previous fest or other matches. In number one of that series the words "Super Tests" are used on three occasions and on one such occasion in a context suggesting identification with Test matches as previously organised. On the present state of the evidence I would regard that advertisement as probably likely to maslead because of such identification. The remainder of those advertisements seek to distinguish the "Super Tests" as promising a higher quality cricket than test cricket as hitherto played. The difficult question is whether the mere use of the expression "Super Test" in the context of former test players, action shots (some-at least of former test matches), national emblems on caps worn, against the background of the publicity of controversy referred to will probably mislead a significant portion of people who watch these or similar advertisements. Pipes Te eg SOT aS ST Sete nee ee we ee -- + oe -———_~. _ — — ~~~ -11- There has been no evidence of persons actually being misled. That is understandable because of the lack of time available to the applicant since publication of the brochure. As to the remaining advertisements, on the present state of the evidence I am not satisfied of a likelihood that people will be misled or deceived. Argument has been addressed to me on the principles to be applied in granting an interim injunction under Section 80 of the Act. Mr. Gleeson Q.C. has put to me that the same principles as are applicable in the New South Wales Supreme Court in its Equity Jurisdiction should be applied. On the other hand, Mr. Rogers Q.C. contends that those principles have no application as the legislation gives no indication that equitable principles are imported into the Act. The mere use of the word "injunction" in an Act of Parliament would not appear to me to be significant in resolving this argument. Legislatures have, over the years, given rights to seek injunctions in courts other than those with an Equity or Chancery jurisdiction. For example, the common law jurisdiction of the Supreme Court of New South Wales in defamation proceedings was given the power to injunct. Amendments to the Act in 1976 produced two sub-sections to Section 80 namely, sub~sections 6 and 7 dealing with undertakings as to damages. Implicit in these sub-sections, of course, is the recognition that applicants may be required to give undertakings as to damages. 4/12 -12- N Undertakings as to damages are frequently required in interlocutory or ex parte injunctions in equity practice. Mr. Gleeson Q.C., argues that this amendment makes clear the legislatures intention that other equitable doctrines such as laches are applicable also. With this I disagree. The power to grant injunctions in the Act is in respect to contraventions of Parts IV and V of the Act. The latter part is headed "Consumer Protection" with a sub-heading "Unfair Practices". The contents of Part V are prohibitions in general or particular terms of all manner of practices which cheat or otherwise harm consumers. In particular cases it may be that principles similar to equitable doctrines are appropriate for use but in my view it will is be because this dominant consideration of consumer protection lends support to their application. Mr. Gleeson Q.c. submits there has been laches since May, 1977 when Mr. Packer's first public announcement of his intention to hold "Super Tests" was made. Assuming, without deciding, that such announcement was "in trade or commerce" and gave the applicant a right to apply I reject it as a ground for refusing an injunction. For a test as to what is misleading within the meaning of Section 52 of the Act I adopt what was said by Sheldon and Sheppard J.J. in C.R.W. v Snedden 1972 A.R. 17 at 28, where 'this appears: » ' "The advertiser must be assumed to know that the readers will include both the shrewd and the ingenuous, the educated and uneducated and the --/13 too —— ea mr nn es ne we ns mmc sniee he A ea OS LT experienced and inexperienced in commercial transactions. He is not entitled to assume that the reader will be able to supply for himself or (often) herself omitted facts or to resolve . ambiguities. An advertisement may be misleading even though it fails to deceive more wary readers." For the respondent company it has been submitted that I should restrict my consideration to persons to whom these advertisements are directed, to persons to some extent knowledgeable about cricket. It is then put that with such restriction and the publicity of the dispute already referred to no-one would be misled. In my view I have to consider a wider audience. Provision was made on the brochure for application for tickets for children. The degrees of knowledge about cricket must, like every other subject of knowledge vary between slight knowledge and erudition. Coming to the orders sought, Order 1 is in the general terms of Section 52 of the Act. In Mikasa _(N.S.W.) Pty. Limited v Festival Stores 127 C.L.R. 617 the High Court did not interfere with a similar order, despite the appellant's argument that it was in terms too broad. I propose to make that order. As .to the third order sought, Counsel for the respondent company has informed the Court that that company has not the slightest desire to have it thought that the "Super Tests" ../14 a ke ee ne Se a |iFi ates ra) ' have the sponsorship of the Australian Cricket Board. In these circumstances I find no difficulty in making the third order having regard to my views on the brochure set out above. As to the fourth order sought, the brochure provides a basis for making this order and I propose to make it. I am not prepared to make order 5 as sought. I feel that it should be qualified with the addition of the words, "in such a way as to mislead or deceive". In coming to the conclusion to make the foregoing orders Ii have borne in mind that there appear to be alternative expressions which would seem to be adequate to describe "Super Tests" and it would appear also that to emphasise the difference between "Super Tests" and tests arranged by the Australian Cricket Board would present no difficulty. The respondent company seeks the imposition of an undertaking as to damages. The applicant, although willing to give such an undertaking, opposes its imposition. I am informed that the final hearing could proceed in approximately two weeks time. In a sense the Australian Cricket Board and the respondent company are in competition in the field of organising cricket matches although the Board is not in that field for the purpose of profit. This element of competition turns the scales in favour of an undertaking as to damages being a condition of the making of the orders. TNT RNS STE 9 eo ny mene cn ne a A Or SE YE RE EO