er ck td et ne em de er) A SA A nn lg tL nl bet Ashe Re aC AAR tel AN Ent LOY hae gl !2-|77 Me. Tuslice Fran te; . . Axl (G47 IN THE FEDERAL COURT OF AUSTRALIA) ) No. 110 of 1977 GENERAL DIVISION . ) ° BETWEEN 'ROBERT JAMES PARISH ' Appellant - and - PUBLISHING AND BROADCASTING LIMITED and GENERAL TELEVISION CORPORATION PTY. LIMITED o Respondents , Coram: RILEY, Jd. ; JUDGMENT : HIS HONOUR: , In this matter I would have preferred to prepare co a written judgment but I thought it best in the circumstances as there is some urgency in the matter and as the Christmas break is upon us to deliver an oral judgment now. I hope that in doing so I will not give the impression that I am not doing justice to all arguments that were addressed to me. This is an application under section 80 of the Trade Practices Act for an injunction. The applicant is Robert James Parish and the respondents are two companies, Publishing and Broadcasting Limited and General Television Corporation Pty. Limited. On 16 December I made an interim order, operative up to and including 19 December, restraining the respondents and each of them from engaging in the following conduct: _——- —- -+ fe nn a ar ye ae erent ee em it a i ta nt ee Ne —~ ets ee ~3n ° The first respondent is the proprietor of ctelevision station Channel 9 in Sydney. - It was formerly named Television Corporation Limited. The second respondent is the proprietor of television station Channel 9 in Melbourne ' and is a subsidiary of the first respondent. Both are members of a group at the head of which is Consolidated Press Holdings Limited, of which company Mr. K. F. B. Packer is chairman and managing director. These proceedings arose out of what in argument was referred to as a "cricket war" that has for some time been and still is being waged with considerable publicity between, on the one hand, those conducting and promoting a series of cricket matches in Australia under the name of World Series Cricket and, on the other hand, those administering and supporting what may be called traditional test cricket matches played, for example, by teams representing Australia and England. It is a company named World Series Cricket Pty. Limited that is staging the World Series cricket matches. It is controlled by the Packer interests. ' Earlier this year Mr. Parish applied to this 'court under section 80 for an interim injunction restraining World Series Cricket Pty. Limited from engaging in certain conduct. His case was based on the publication of a brochure advertising World Series Cricket and on certain videotape . advertisements of the same commodity which it was proposed to use on television. On 30 September St. John J. granted an interim injunction. World Series Cricket Pty. Ltd. appealed to the full court of this court which on 2 November delivered judgment setting aside the orders made by St. John J. but granting an interim injunction restraining World Series Cricket Pty. Limited Se aRaEEEEnbaneeeeed wae be ee TR 2 TE ee re wee - — —. ee -4- from engaging in the following conduct in trade and commerce: referring to cricket matches organised by it as Tests or a Test Series or Super Tests without clearly distinguishing those matches from the matches controlled wholly or in part by the Australian Cricket Board or the International Cricket Conference; secondly, referring to any team of cricket players in cricket matches organised by it between Australian and West Indian players as the Australian team or as Australia without clearly distinguishing that team from any team selected or controlled by the Australian Cricket Board. The Chief Judge, Sir Nigel Bowen, inter alia, on 6 December granted leave to Mr. Parish to join Publishing and Broadcasting Limited and Australian Consolidated Press Limited as defendants in proceedings G.72, which are those proceedings to which I have just referred, in which the interlocutory injunctions were granted. On 9 December his Honour granted leave to Mr. Parish to join General Television Corporation Pty. Limited as a fourth defendant to those proceedings. His Honour also directed that a statement of claim be filed, and that has been done. It will be observed, first, that the two respondents to the present application are now defendants in proceedings G.72 and, secondly, that each of the injunctions granted by the Full Court in those proceedings G.72 was subject to a qualification introduced by the words "without clearly distinguishing". St. John J. did not so qualify the orders which he made. Thirdly, it will be observed that the interim injunctions sought by the applicant in these proceedings and granted by me on 16 December were not so qualified, though I imposed such a qualification when on 19 December I made an interim order against the first respondent. cricket match organised or promoted by World Series Cricket Pty. Ltd. or by either of the respondents or any of them or- by any company related to any of them in any televising whatscever including but without limiting the generality ~ thereof a promotion, telecast, newscast or advertisement or in any other advertisement, promotion or news release in print or on radio or otherwise before, during or after any such cricket match as a test or a testmatch or as a match forming part of a test series." - -2~ * "Referring expressly or by implication to any ; I also ordered the respondents to appear on 19 December to show cause why such an injunction should not be granted. On 19 December Mr. Rogers Q.C. and Mr. Rolfe appeared for the applicant and Mr. Hughes Q.C. and Mr. Jucovic for the respondents. I heard evidence and argument on that day and on 20 December. During that hearing the matter was by agreement fought on an interlocutory basis. It is on that basis that I am asked to determine the matter now. ' The applicant moved on the affidavit of Mr. E. F. Griffin who was cross-examined. Otherwise evidence ' on both sides consisted of documents including Exhibit K, the script of a telecast which itself was twice shown in the court during the hearing. The applicant is in fact chaixman of the Australian Cricket Board but makes his application not in that capacity but as an "other person" who by section 80(1)(c) and (d) of . the Trade Practices Act is entitled to apply for an injunction restraining a person (which includes a body corporate) from engaging in conduct that constitutes or would constitute a contravention of a provision of Part V of the Act. Part V includes section 52, which provides that a corporation shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive. -5- ; . It' was accordingly submitted on behalf of the ; respondent, as it were on the threshhold,, that the present proceedings were in abuse of process. It was suggested that the applicant should have sought an order in the proceedings G.72 that the qualified injunctions there granted by the Full Court should be extended to restrain not only World Series Cricket Pty. Limited, but also the respondents to the present application. It was further suggested that the reason why that was not done must have been that the applicant wanted an unqualified or absolute injunction which he thought it unlikely that he would get by further proceeding in G.72. Counsel for the respondents referred to Williams v. Hunt, (1905) 1 K.B. 512, as authority for his proposition that the applicant is abusing process, but the point of that , case was, in the words of Collins M.R., at page 514: "Where proceedings have been started it is an abuse of process of the court to divide the ' remedy where there is a complete remedy in the court in which the suit was first started". The plaintiff in that case had begun an action in the Chancery Division for an account of moneys due under a mortgage. She could have also claimed in that action a personal order for payment. Instead, before that action was heard, she began another action in the King's Bench Division to recover the moneys alleged to be due under the mortgage. To have done that was held to be an abuse. The present case is different. In G.72 the applicant's case was based on printed and televised advertising. Here it is based on telecast reports of sports news which, from their nature, present from the applicant's point of view problems which perhaps cannot be solved by an injunction qualified in the same manner as were the injunctions granted in ween ———— nr tr -6- G72, but only by injunctions differently qualified or not qualified at all. On this point, in my 6pinion, the ' respondents fail. . To put it briefly, but sufficiently for present purposes, what the applicant seeks to. restrain is the description on television of any cricket match organised or promoted by either respondent as a "test" or a "test match" or one of a "test series". He claims that those expressions are, and for very many years have been, referable in connexion with cricket only to matches organised by certain bodies, played between teams representing certain countries and subject to certain rules; and that to use them on television to describe any of the World Series Crickét Matches is, in trade or commerce, to engage, in contravention of section 52(1) of the Trade Practices Act, in conduct that is misleading or deceptive or is likely to mislead or deceive. ' It is clear from the judgments of the Full Court that my task is to decide on the evidence before me whether the applicant has made out a prima facie case in the sense in which that expression was used by the High Court in Beecham's Group Pty. Limited v. Bristol Laboratories Pty. Limited (1968), 118 C.L.R. 618, and if he has, whether the balance of convenience requires the granting of relief by injunction. The first question, then, is whether if the evidence remains as ~- it is there is a probability that at the trial of the action the applicant will be held entitled to relief. (See the Beecham Case at page 662). A review of the evidence in its present state may well begin with exhibit A, which consists of certain paragraphs of an affidavit sworn by Mr. Packer on 3 August 1977 and filed in proceedings in the Chancery Division in the High Court of -7- Justice in England, brought by World Series Cricket Pty. " Limited under its former name, J. P. Sport Pty. Limited, against the Marylebone Cricket Club and others. _Mr. Packer there said: largely in countries which have historical associations with Great Britain. The major cricketing countries include England, Australia, 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 1s the Test and County Cricket Board; in Australia, it is the Australian Cricket Board. International cricket is governed by the International Cricket Conference, which consists of the various governing bodies of cricketing countries of which the named defendants are representatives ... An excerpt from the laws of cricket which appears to contain a list of the current members of the International Cricket Conference and a copy of 7 rules of the Test and County Cricket Board are now (4 produced and shown to me in a bundle marked KFBP1. H The major cricketing nations other than South Africa play international matches against one another - "Test Matches" - which are controlled internationally by the International Cricket Conference and in England and Australia by the English Test and County Cricket Board and the Australian Cricket Board respectively. ... "Cricket is a sport played all over the world, Test cricket is an important objective for all first-class cricketers and to take part in Test Matches is of incalculable benefit to a player's long-term reputation, business interests, ability ' to earn high wages, ability to earn additional : * money by way of advertising or promotional work, ' . and ability to obtain well remunerated employment ' : outside the world of cricket after his active playing career is over". , | The document KFBP.1 to which Mr. Packer there referred is a | copy of the rules of the Test and County Cricket Board which begins with the following statement: ' | "In 1898 the English Counties and M.C.C. formed the Board of Control for Test Matches in England. In 1904, at the request of the counties, M.C.C. formed an Advisory County Cricket Committee to consider matters concerning county cricket. In 1968, these two bodies were amalgamated to form the Test and County Cricket Board." The document also states under the heading "Function" that the board shall be responsible to the cricket council for ~8- (a) the organization of all Test and Trial matches in the United Kingdom, (b) the, organization and administration of M.C.C. overseas tours and various' other matters. Under the heading of "Rules Governing the Receipt and Distribution of Moneys" there are rules regulating receipt of moneys taken at stands and enclosures at all test matches and also as to the receipt of moneys for television broadcasting and sponsorship fees for test matches. Iwas also referred to the Oxford English Dictionary. Having defined the noun "test" as that by which the existence, quality or genuineness of anything is or may be determined, the Oxford English Dictionary under that heading then has the entry "c. cricket. short for test match: see 7b", and illustrates by two references in the Westminister Gazette of 1908, in one of which England is named as a participant in "Tests". ' Among the special combinations which the dictionary shows in 7b is "test-match (Cricket), ome of a series of matches played as a test which is the better of two bodies of players (e.g. of England and Australia)". I do not think it necessary to classify the Oxford English Dictionary definitions of "test" into primary and secondary meanings. The point is that in the world of cricket, which is the world which concerns this case, its meaning appears to be that which I have just quoted, which it will be observed describes a test match as one of a series of matches of the kind mentioned. Authoritative works of cricket were also put in evidence such as Wisden's Almanac, Mr. A. G. Moyes! History of Australian Cricket and Mr. E. W. Swanton's The World of Cricket. All contain information supporting Mr. Packer's evidence and ee er ee nr ee en we ~~ 4 ° -9- jndicating that "tests" and "test matches" are expressions ; ° which for many years have been traditionally applied in the context of cricket only to matches played by one country against another and controlled, so far as Australia is concerned, -by the Australian Cricket Board. The applicant's complaint is founded primarily on a telecast by Channel 9 in Sydney performed on 15 December which was repeated in court and of which the script is Exhibit ; . K. That telecast begins with a news-reader saying, "It seems ! all set for the second World Series Super Test", and thereupon handing over to a telecaster called Casey. Mr. Casey begins by saying, "It is certainly going to be a super super test", referring to Australia's line-up for the second test against "4 the West Indies, and announcing that the match started at the Sydney Showground next day, and unlike the first one played | in Melbourne, he said, "This 5-day test will be televised for | only two hours a day in Sydney". - A film is then inserted in 3 the telecast which shows various players, and a small boy arrives on the scene who is referred to by Mr. Casey as Supertest player, vintage 1997. Later, various players are shown in action. Then | ( | | there is an interview by Mr. Casey with a Mr. Ian Chappel; and almost at the end when Mr. Casey is appearing again in the studio he says, "You can take my word for it that this test tomorrow, starting tomorrow, the super test, is going to take : on another dimension ..." The background to so much of that telecast as first | occurs in the television studio shows the World Series Cricket | logo, as it is called, and the words "Second Super Test" ,and to that extent clearly indicates that the test referred to is one of the World Series Cricket Matches. The second appearance -10- ian the studio did not have such a background. * The applicant also adduced evidence to the effect that in each of two telecasts on 16 and 18 December on Channel 9 Sydney, the speaker referred to "the second Parish test being played in Perth", meaning a test match of the , traditional kind then being played in Perth under the auspices of the Australian Cricket Board between teams representing Australia and India. The applicant submits that the telecast of 15 December. shows by its use of the word "tests" and its reference to ) Australia and the West Indies that the respondents are using the word "test", which has a well known and traditional meaning, in much the same say as wine not produced in the Champagne district of France was being wrongfully described as champagne or Spanish champagne in the Bollinger litigation reported in (1960 )Ch. D. 262 'and subsequently elsewhere. ; That, the applicant submits, contravenes s. 52 and he says the use of the expression "Parish test" in the other telecasts, however neat its derogatory undertone may be, shows a conscious effort to degrade the word "test" to an adjectival description of a game of cricket organised by anybody. The respondents, on the other hand, point to various references in the telecast of 15 December which, they say, ' clearly indicate to those who know anything about cricket that the tests being referred to are not traditional tests, The speaker says that the match is to be played on the Sydney Showground and practice is being had at Cranbrook School, whereas the cognoscenti will, well know that such unorthodox venues would be unthinkable if the match were a traditional test: and players for World Series Cricket are mentioned whose defection -11- 'from traditional test cricket has been widely publicised and : indeea the subject of discussion in litigation in England. I think, however, it niust be -remembered that the I viewing audience of television will include those who are well-informed and those who are ill-informed about cricket lore and history, and all grades in between. To adapt the words of Sheldon and Sheppard JJ. quoted by St. John J. in the recent proceedings G.72 from the case CRW v. Snedden ,(1972) A.R- at 28, the televiser must be assumed to know that the television audience will include both the shrewd and the ingenuous, the educated and uneducated, and the experienced and inexperienced in cricket. He is not - entitled to assume that the viewer will be able to supply for himself, or often herself, omitted facts or to resolve ambiguities. A telecast may be misleading even though it fails to deceive more wary viewers. I-would add also that the audience will include as well the young and the old. I refer also to the remarks of Sir Nigel Bowen "It is to be remembered that the advertisements are designed to meet a very wide audience which will include people possessing the widest possible range of knowledge or lack of knowledge about cricket and previous association or lack of association with it." It may well be held that such an audience will include those who may be misled or deceived by such conduct as that of which the applicant complains. The respondents also point to the World Series Cricket logo and background words shown in the telecast; but they were comparatively fleeting'matters of distinction which did not long confront the viewer. in his judgment in the proceedings G. 72; | | -12- ° on, the whole of the evidence I think there isa probability that if the evidence remains as it is, the applicant will succeed at the hearing, though I doubt whether he would be granted an unqualified injunction. I have no doubt where the balance of convenience lies. If an interlocutory injunction is granted, the respondents will be restricted in their use of the expressions in question. That should cause them no damage or inconvenience. Indeed, in my view, it would cause them no inconvenience if they were restrained, or if they refrained , from using them altogether. If an injunction is refused the object of s. 52 of the Trade Practices Act will, in my opinion, be defeated. Whether any damage would be suffered by the applicant need not be considered: see s. 80(5). I think an injunction should go against both respondents. . Exhibit L is an extract from minutes of a television meeting, held on 25 August 1977 which was presided over by Mr. Packer and at which Mr. Chester, a director of Consolidated Press Holdings Ltd., one of the Packer group, was present. Mr. Chester was reporting and, amongst other things, speaking of the World Series cricket matches. He said that the promotional contribution of $1.5 million would be represented by an insert in the Australian Women's Weekly at the end of September and spots on GTV and TCN to commence on September 28 (GTV being Channel 9 Melbourne and TCN being Channel 9 Sydney) . Each station, Mr. Chester said, would run 10 spots a day for the 17 weeks to the end of January next. Mr. Packer, amongst other things, said a great deal was at stake anda saturation campaign from the end of September would greatly enhance the prospects of success in two matters which he mentioned. -- oe . . a . - ——— « —— ee acon em ni et bal in eee nee ee -13- : {I therefore propose to order as follows, on the = applicant giving the usual undertaking as to damages, which I was told in argument he was giving. - . I order that the respondents and each of them be restrained until further order from, in trade or commerce, whether by themselves or by their servants, agents or contractors, engaging in the following conduct: In any televising whatsoever before, during or after any cricket match organised or promoted by World Series Cricket Pty. Ltd, or by the respondents or either of them or by any company that within the meaning of s. 4A(5) of the Trade Practices Act 1974 is related to either of them, making any reference to any such match as a "test" or a "test match" or a match forming part of a "test series" which does not also clearly distinguish the match so referred to from cricket matches conducted with the approval of the Australian Cricket Board or the International Cricket Conference or a member of that conference. That is the injunction I propose to grant. I think I should go on, should I not, either now or very soon hereafter, to give directions as to the filing of a statement of claim and the taking of further steps with the object of bringing this suit on for mention on 29 March 1978, with the other suit, with a view to fixing a date for hearing? In regard to the settling of the timetable some of the dates in the directions given by his Honour the Chief Judge have already gone past. I have to sit at 2 o'clock for a short while. Would it be convenient if I asked you to bring in short minutes then? MR. ROLFE: Yes, if I am not here personally would your Honour excuse my non-attendance? Of course my instructing solicitor will be here. HIS HONOUR: I understand that you cannot be here. r I suggest you follow as closely as possible the order the Chief Judge made in the other matter. I will conclude the — — oe oo een = ry ~ -14- 'making cf thé order at 2 o'clock, the injunction to run in the meantime. . , MR. ROLFE: In the course of your Honour's reasons your Honour said words to the effect that while there was speaking in the studio the logo was depicted. Perhaps when your Honour revises your Honour's judgment your Honour may consider that that also applied to the second portion because exhibit K says logo not depicted. HIS HONOUR: Yes, that is on the' second appearance of Mr. Casey in the studio, the background was blank. MR. ROLFE: We would be seeking an order for costs. HIS HONOUR: In G. 72 costs were made costs in the cause. UPON RESUMING AT 2.00 P.M. MR. JUCOVIC: Your Honour, we have agreed on an order as regards the interlocutory steps which bring the interlocutory steps in tandem' with G. 72 of 1977. One of the orders sought, on which we do agree, has not been included in these short minutes and that is that the exhibits in this matter be handed out. Of course, some of those exhibits will go back to the court file in G. 72. HIS HONOUR: I am not sure about No. 11, that these proceedings he heard together with G. 72. I think I should leave that to the judge who is hearing the mention of G. 72 and this matter. I think I will strike out No. 11, because something may turn on the way the pleadings have gone and so on. MR. JUCOVIC: Your Honour, both parties really ask your Honour to make that order by consent. HIS HONOUR: I have'little doubt that order will be made, but I think I will leave it for the judge. In addition to the injunction granted earlier, I make orders in accordance with short minutes (which I have initialled and put in the file) ~15- as.amended by me. ee mere og See eee es meme ee IN THE FEDERAL COURT OF AUSTRALIA) ) No. 110 of 1977 GENERAL DIVISION ) BETWEEN 'ROBERT JAMES PARISH Appellant ~ and - PUBLISHING AND BROADCASTING LIMITED and GENERAL TELEVISION CORPORATION PTY. LIMITED Respondents Coram: RILEY, J. JUDGMENT HIS HONOUR: , In this matter I would have preferred to prepare a written judgment but I thought it best in the circumstances as there is some urgency in the matter and as the Christmas break is upon us to deliver an oral judgment now. I hope that in doing so I will not give the impression that I am not doing justice to all arguments that were addressed to me. This is an application under section 80 of the Trade Practices Act for an injunction. The applicant is Robert James Parish and the respondents are two companies, Publishing and Broadcasting Limited and General Television Corporation Pty. Limited. On 16 December I made an interim order, operative up to and including 19 December, restraining the respondents and each of them from engaging in the following conduct: et a ee ee "Referring expressly or by implication to any cricket match organised or promoted by World Serics Cricket Pty. Ltd. or by either of the respondents or any of them or-by any company related to any of them in any televising whatsoever including but without limiting the generality ~ thereof a promotion, telecast, newscast or advertisement or in any other advertisement, promotion or news release in print or on radio or otherwise before, during or after any such cricket match as a test or a testmatch or as a match forming part of a test series." . I also ordered the respondents to appear on 19 December to show cause why such an injunction should not be granted. On 19 December Mr. Rogers Q.C. and Mr. Rolfe appeared for the applicant and Mr. Hughes Q.C. and Mr. Jucovic for the respondents. I heard evidence and argument on that day and on 20 December. During that hearing the matter was by agreement fought on an interlocutory basis. It is on that basis that I am asked to determine the matter now. ' The applicant moved on the affidavit of Mr. E. F. Griffin who was cross-examined. Otherwise evidence on both sides consisted of documents including Exhibit K, the script of a telecast which itself was twice shown in the court during the hearing. The applicant is in fact chairman of the Australian Cricket Board but makes his application not in that capacity but as an "other person" who by section 80(1)(c) and (d) of the Trade Practices Act is entitled to apply for an injunction restraining a person (which includes a body corporate) from engaging in conduct that constitutes or would constitute a contravention of a provision of Part V of the Act. Part V includes section 52, which provides that a corporation shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive. is the proprietor of television station Channel 9 in Melbourne and is a subsidiary of the first respondent. Both are members of a group at the head of which is Consolidated Press Holdings Limited, of which company Mr. K. F. B. Packer is chairman and managing director. These proceedings arose out of what in argument was u referred to as a "cricket war" that has for some time been and still is being waged with considerable publicity between, on the one hand, those conducting and promoting a series of cricket matches in Australia under the name of World Series Cricket and, on the other hand, those administering and supporting what may be called traditional test cricket matches ' ' ' ~3- , a . - The first respondent is the proprietor of , sbélevision station Channel 9 in Sydney. - It was formerly ; named Television Corporation Limited. The second respondent ; played, for example, by teams representing Australia and England... | It is a' company named World Series Cricket Pty. Limited that 1 is staging the World Series cricket matches. It is controlled by the Packer interests. | Earlier this year Mr. Parish applied to this court under section 80 for an interim injunction restraining World Series Cricket Pty. Limited from engaging in certain conduct. His case was based on the publication of a brochure \ advertising World Series Cricket and on certain videotape ) advertisements of the same commodity which it was proposed to use on television. 7 ) On 30 September St. John J. granted an interim injunction. World Series Cricket Pty. Ltd. appealed to the full court of this court which on 2 November delivered judgment setting aside the orders made by St. John J. but granting an interim injunction restraining World Series Cricket Pty. Limited , De a ee er ~4- from engaging in the following conduct in trade and 'commerce: réferring to cricket matches organised by it as Tests or a - Test Series or Super Tests without clearly distinguishing those matches' from the matches controlled wholly or in part by the Australian Cricket Board or the International Cricket . Conference; secondly, referring to any team of cricket players in cricket matches organised by it between Australian and West Indian players as the Australian team or as Australia without clearly distinguishing that team from any team selected or controlled by the Australian Cricket Board. The Chief Judge, Sir Nigel Bowen, inter alia, on 6 December granted leave to Mr. Parish to join Publishing and Broadcasting Limited and Australian Consolidated Press Limited as defendants in proceedings G.72, which are those proceedings to which I have just referred, in which the interlocutory injunctions were granted. On 9 December his Honour granted leave to Mr. Parish to join General Television Corporation Pty. Limited as a fourth defendant to those proceedings. His Honour also directed that a statement of claim be filed, and that has been done. . It will be observed, first, that the two respondents "to the present application are now defendants in proceedings G.72 and, secondly, that each of the injunctions granted by the Full Court in those proceedings G.72 was subject toa qualification introduced by the words "without clearly distinguishing". St. John J. did not so qualify the orders which he made. Thirdly, it will be observed that the interim injunctions sought by the applicant in these proceedings and granted by me on 16 December were not so qualified, though I imposed such a qualification when on 19 December I made an interim order against the first respondent. wo -5- It' was accordingly submitted on behalf of the respondent, as it were on the threshhold, that the present , proceedings were in abuse of process. it was suggested that the applicant should have sought an order in the proceedings G.72 that the qualified injunctions there granted by the Full Court should be extended to restrain not only World Series Cricket Pty. Limited, but also the respondents to the present application. It was further suggested that the reason why that was not done must have been that the applicant wanted an unqualified or absolute injunction which he thought it ! unlikely that he would get by further proceeding in G.72. Counsel for the respondents referred to Williams v. Hunt, (1905) 1 K.B. 512, as authority for his proposition . that the applicant is abusing process, but the point of that case was, in the words of Collins M.R., at page 514: "Where proceedings have been started it is an abuse of process of the court to divide the ' remedy where there is a complete remedy in the court in which the suit was first started". The plaintiff in that case had begun an action in the Chancery Division for an account of moneys due under a mortgage. She could have also claimed in that action a personal order for payment. Instead, before that action was heard, she began another action in thé' King's Bench Division to recover the moneys alleged to be due under the mortgage. To have done that was held to be an abuse. The present case is different. In G.72 the applicant's case was based on printed and televised advertising. Here it is based on telecast reports of sports news which, from their nature, present from the applicant's point of view problems which perhaps cannot be solved by an injunction qualified in the same manner as were the injunctions granted in et pe a a Saeed et een -6- - Ge72, but only by injunctions differently qualified or not qualified at all. On this point, in my .dpinion, the ; respondents fail. , To put it briefly, but sufficiently for present purposes, what the applicant seeks to restrain is the description' on television of any cricket match organised or promoted by 1 either respondent as a "test" or a "test match" or one of a "test series". He claims that those expressions are, and for very Many years have been, referable in connexion with cricket only to matches organised by certain bodies, played between ' teams representing certain countries and subject to certain rules; and that to use them on television to describe any of the World Series Cricket Matches is, in trade or commerce, to engage, in contravention of section 52(1) of the Trade Practices Act, in conduct that is misleading or deceptive or is likely to mislead or deceive. ' It is clear from the judgments of the Full Court that my task is to decide on the evidence before me whether the applicant has made out a prima facie case in the sense in which that expression was used by the High Court in Beecham's Group Pty. Limited v. Bristol Laboratories Pty. Limited (1968), 118 C.L.R. 618, and if he has,-whether the balance of convenience requires the granting of relief by injunction. The first question, then, is whether if the evidence remains as ~* it is there is a probability that at the trial of the action the applicant will be held entitled to relief. (Se the Beecham Case at page 662). A review of the evidence in its present state may well begin with exhibit A, which consists of certain paragraphs of an affidavit sworn by Mr. Packer on 3 August 1977 and filed in proceedings in the Chancery Division in the High Court of -7J- Justice in England, brought by World Series Cricket Pty. : ! " Limited under its former name, J. P. Sport Pty. Limited, against the Marylebone Cricket Club and others. "rt Packer there said: "Cricket is a sport played all over the world, largely in countries which have historical associations with Great Britain. The major : cricketing countries include England, Australia, 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 County Cricket ' Board; in Australia, it is the Australian Cricket Board. International cricket is governed by the International Cricket Conference, which consists of the various governing bodies of cricketing countries of which the named defendants are representatives ... An excerpt from the laws of cricket which appears to contain a list of the current members of the International Cricket Conference and a copy of rules of the Test and County Cricket Board are now produced and shown to me in a bundle marked KFBP1. The major cricketing nations other than South Africa play international matches against one another - "Test Matches" - which are controlled internationally, by the International Cricket Conference and in - : England and Australia by the English Test and County Cricket Board and the Australian Cricket Board ' respectively. ... Test cricket is an important objective for all first-class cricketers and to take part in Test Matches is of incalculable benefit to a player's long-term reputation, business interests, ability to earn high wages, ability to earn additional money by way of advertising or promotional work, and ability to obtain well remunerated employment outside the world of cricket after his active playing career is over". The document KFBP.1 to which Mr. Packer there referred is a copy of the rules of the Test and County Cricket Board which begins with the following statement: ; "In 1898 the English Counties and M.C.C. formed the Board of Control for Test Matches in England. In 1904, at the request of the counties, M.C.C. formed an Advisory County Cricket Committee to consider matters concerning county cricket. In , 1968, these two bodies were amalgamated to form the Test and County Cricket Board." The document also states under the heading "Function" that the board shall be responsible to the cricket council for wane . — eee ee He eee — ne nes —— -8- (a) the organization of all Test and Trial matches in the < United Kingdom, (b) the organization and administration of M.C.C. overseas tours and various other matters. Under the heading of "Rules Governing the Receipt and Distribution of Moneys" there are rules regulating t receipt of moneys taken at stands and enclosures at all test . matches and also as to the receipt of moneys for television broadcasting and sponsorship fees for test matches. ; I was also referred to the Oxford English Dictionary. Having defined the noun "test" as that by which the existence, ; quality or genuineness of anything is or may be determined, the Oxford English Dictionary under that heading then has the entry "c. cricket. short for test match: see 7b", and illustrates by two references in the Westminister Gazette of 1908, in one of which England is named as a participant in "Tests". ' Among the special combinations which the dictionary shows in 7b is "test-match (Cricket), one of a series of matches played as a test which is the better of two bodies of players (e.g. of England and Australia)". I do not think it necessary to classify the Oxford English Dictionary definitions of "test" into primary and secondary meanings. The point is that in the world of cricket, which is the world which concerns this case, its meaning appears to be that which I have just quoted, which it will be observed describes a test match as one of a series of matches of the kind mentioned. Authoritative works of cricket were also put in evidence such as Wisden's Almanac, Mr. A. G. Moyes! History of Australian Cricket and Mr. E. W. Swanton's The World of Cricket. All contain information supporting Mr. Packer's evidence and ~9- indicating that "tests" and "test matches" are expressions which for many years have been traditionally applied in the context of cricket only to matches played by one country against another and controlled, so far as Australia is concerned, -by the Australian Cricket Board. The applicant's complaint is founded primarily on a telecast by Channel 9 in Sydney performed on 15 December which was repeated in court and of which the script is Exhibit K. That telecast begins with a news-reader saying, "It seems all set for the second World Series Super Test", and thereupon handing over to a telecaster called Casey. Mr. Casey begins by saying, "It is certainly going to be a super super test", referring to Australia's line-up for.the second test against the West Indies, and announcing that the match started at the Sydney Showground next day, and unlike the first one played in Melbourne, he eaid, "This 5-day test will be televised for only two hours a day in Sydney". A film is then inserted in the telecast which shows various players, and a small boy arrives on the scene who is referred to by Mr. Casey as Supertest player, vintage 1997. Later, various players are shown in action. Then there is an interview by Mr. Casey with a Mr. Ian Chappel; and almost at the end when Mr. Casey is appearing again in the studio he says, "You can take my word for it that this test tomorrow, starting tomorrow, the super test, is going to take on another dimension ..." The background to so much of that telecast as first occurs in the television studio shows the World Series Cricket logo, as.it is called, and the words "Second Super Test" ,and to that extent clearly indicates that the test referred to is one of the World Series Cricket Matches. The second appearance -10- dan the studio did not have such a background. my The applicant also adduced evidence to the effect that in each of two telecasts on 16 and 18 December on Channel 9 Sydney, the speaker referred to "the second Parish test being played in Perth", meaning a test match of the traditional kind then being played in Perth under the auspices 1 of the Australian Cricket Board between teams representing ' Australia and India. , The applicant submits that the telecast of 15 December, shows by its use of the word "tests" and its reference to Australia and the West Indies that the respondents are using the word "test", which has a well known and traditional meaning, in much the same say as wine not produced in the Champagne district of France was being wrongfully described as champagne or Spanish- champagne in the Bollinger litigation reported in (1960 Jch. D. 262 and subsequently elsewhere. , 7 a - That, the applicant submits, contravenes s. 52 and he says the use of the expression "Parish test" in the other telecasts, however neat its derogatory undertone may be, shows a conscious effort to degrade the word "test" to an adjectival description of a game of cricket organised by anybody. The respondents, on the other hand, point to various references in the telecast of 15 December which, they say, clearly indicate to those who know anything about cricket that the tests being referred to are not traditional tests. The speaker says that the match is to be played on the Sydney Showground and practice is being had at Cranbrook School, whereas the cognoscenti will well know that such unorthodox venues would be unthinkable if the match were a traditional test; and players for World Series Cricket are mentioned whose defection eee eee ~-o ee es - pe -11- from traditional test cricket has been widely publicised and indeed the subject of discussion in litigation in England. I thank, however, it must be -remembered that the viewing audience of television will include those who are well-informed and those who are ill-informed about cricket lore and history, and all grades in between. To adapt the words of Sheldon and Sheppard JJ. quoted by St. John J. in the recent proceedings G.72 from the case CRW v. Snedden ,(1972) A.R. at 28, the televiser must be assumed to know that the television audience will include both the shrewd and the ingenuous, the educated and uneducated, and the experienced and inexperienced in cricket. He is not entitled to assume that the viewer will be able to supply for himself, or often herself, omitted facts or to resolve ambiguities. A telecast may be misleading even though it fails to deceive more wary viewers. I-would add also that the audience will include as well the young and the old. I refer also to the remarks of Sir Nigel Bowen in his judgment in the proceedings G. 72; "It is to be remembered that the advertisements are designed to meet a very wide audience which will include people possessing the widest possible range of knowledge or lack of knowledge about cricket and previous association or lack of association with it." It may well be held that such an audience will include those who may be misled or deceived by such conduct as that of which the applicant complains. The respondents also point to the World Series Cricket logo and background words shown in the telecast; but they were comparatively fleeting matters of distinction which did not long confront the viewer. ae - — — tee eer | -~12- . On, the whole of the evidence I think there is a probability that if the evidence remains as it is, the applicant ' will succeed at the hearing, though I doubt whether he would be granted an unqualified injunction. I have no doubt where the balance of convenience lies. If an interlocutory injunction ' is granted, the respondents will be restricted in their use of the expressions in question. That should cause them no damage or inconvenience. Indeed, in my view, it would cause them no inconvenience if they were restrained, or if they refrained, from using them altogether. If an injunction is refused the ' object of s. 52 of the Trade Practices Act will, in my opinion, be defeated. Whether any damage would be suffered by the applicant need not be considered: see s. 80(5). I think an injunction should go against both respondents. Exhibit L is an extract from minutes of a television meeting, held on 25 August 1977 which was presided over by Mr. Packer and at which Mr. Chester, a director of Consolidated Press Holdings Ltd., one of the Packer group, was present. Mr. Chester was reporting and, amongst other things, speaking of the World Series cricket matches. He said that the promotional contribution of $1.5 million would be represented by an insert in the Australian Women's Weekly at the end of September and spots on GTV and TCN to commence on September 28 (GTV being Channel 9 Melbourne and TCN being Channel 9 Sydney) . Each station, Mr. Chester said, would run 10 spots a day for the 17 weeks to the end of January next. Mr. Packer, amongst other things, said a great deal was at stake and a saturation campaign. from the end of September would greatly enhance the prospects of success in two matters which he mentioned. es Clean * I therefore propose to order as follows, on the applicant giving the usual undertaking as to damages, which I was told in argument he was giving. - I order that the respondents and each of them be restrained until further order from, in trade or commerce, whether by themselves or by their servants, agents or contractors, engaging in the following conduct: . In any televising whatsoever before, during or after any cricket match organised or promoted by World Series Cricket Pty. Ltd, or by the respondents or either of them or by any company that within the meaning of s. 4A(5) of the Trade Practices Act 1974 is related to either of them, making any reference to any suth match as a "test" or a "test match" or a match forming part of a "test series" which does not also clearly distinguish the match so referred to from cricket matches conducted with the approval of the Australian Cricket Board or the International Cricket Conference or a member of that conference. That is the injunction I propose to grant. I think I should go on, should I not, either now or very soon hereafter, to give directions as to the filing of a statement of claim and the taking of further steps with the object of bringing this suit on for mention on 29 March 1978, with the other suit, with a view to fixing a date for hearing? In regard to the settling of the timetable some of the dates in the directions given by his Honour the Chief Judge have already gone past. I have to sit at 2 o'clock for a short while. Would it be convenient if I asked you to bring in short minutes then? MR. ROLFE: Yes, if I am not here personally would your Honour excuse my non-attendance? Of course my instructing solicitor will be here. HIS HONOUR: I understand that you cannot be here. I suggest you follow as closely as possible the order the Chief Judge made in the other matter. I will conclude the ek -14- 'making of thé order at 2 o'clock, the injunction to run in the meantime. . MR. ROLFE: In the course of your Honour's reasons yqur Honour said words to the effect that while there was speaking in the studio the logo was depicted. Perhaps when your Honour revises your Honour's judgment your Honour may consider that that also applied to the second portion because exhibit K says logo not depicted. HIS HONOUR: Yes, that is on the second appearance of Mr. Casey in the studio, the background was blank. , MR. ROLFE: We would be seeking an order for costs. HIS HONOUR: In G. 72 costs were made costs in the cause. UPON RESUMING AT 2.00 P.M. MR. JUCOVIC: Your Honour, we have agreed on an order as regards the interlocutory steps which bring the interlocutory steps in tandem' with G. 72 of 1977. One of the orders sought, on which we do agree, has not been included in these short minutes and that is that the exhibits in this matter be handed out. of course, some of those exhibits will go 'back to the court file in G. 72. HIS HONOUR: I am not sure about No. 11, that these proceedings he heard together with G. 72. I think I should leave that to the judge who is hearing the mention of G. 72 and this matter. I think I will strike out No. 11, because something may turn on the way the pleadings have gone and so on. MR. JUCOVIC: Your Honour, both parties really ask your Honour to make that order by consent. HIS HONOUR: I have little doubt that order will be made, but I think I will leave it for the judge. In addition to the injunction granted earlier, I make orders in accordance with short minutes (which I have initialled and put in the file) -15- as. amended by me. pen = tp