os CATCHWORDS Trade Practices Law - Injunctions - False and misleading statements - whether promotion of boxing match misleading and deceptive - whether appropriate to grant immediate relief final in character - power to make mandatory order for advertisements The Trade Practices Act, ss.52, 80, 80A. TONY MUNDINE V. LAYTON TAYLOR PROMOTIONS PTY. LIMITED No. N.S.W. G.25 of 1981 CORAM : ELLICOTT J. 27 March 1981 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 25 of 1981 ) ) GENERAL DIVISION BETWEEN: TONY MUNDINE Applicant AND LAYTON TAYLOR PROMOTIONS PTY. LIMITED Respondent ORDER JUDGE MAKING ORDER: ELLICOTT J. DATE OF ORDER: 27 MARCH 1981 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. On the applicant giving the usual undertaking as to damages (1) That the respondent by itself, its servants and agents, be restrained from holding or promoting a boxing match presently scheduled to be held at Brisbane Festival Hall on Monday, 30 March 1981, unless: (a) The respondent causes an announcement to be made to all persons attending the said boxing match in the following terms:- (ii) (b) 2. "This match has obviously been wrongfully advertised as the Heavyweight Championship of Australia. The reigning heavyweight champion of Australia is Tony Mundine, and he 1s not participating and was not invited to participate in this boxing match. Tony Mundine has informed the promoters that he will be delighted to defend his title against whoever wins this boxing match. The promoters recognise Mr Mundine as the reigning Australian professional heavyweight champion and apologise to him for describing this match as the heavyweight championship." The respondent does everything practicable to cause to be published a prominent advertisement in the Brisbane Sunday Mail for 29 March 1981, and in an edition of the Courier Mail for Monday, 30 March 1981, and in an edition of the Brisbane Telegraph for Monday, 30 March 1981, 1n the same terms as are set out in (a) above preceded by the following sentence:- "A Boxing match to be held at the Brisbane Festival Hall on 30 March 1981 is not a championship title fight." That the respondent be restrained by itself, its servants and agents, from engaging in the following conduct in trade and commerce: 3. (a) Advertising or selling tickets for a boxing match to be conducted on Monday 30 March 1981, in which advertising or on which tickets such match is described as the Professional Heavyweight Championship of Australia or Heavyweight Championship of Australia or by any similar description. (b) Causing or permitting the said boxing match to be conducted under either of these titles or any similar title. That the respondent pay the applicant's costs of this application to date. That liberty be reserved to the respondent to apply to vary or discharge these orders on such notice, if any, as may seem to a judge of this Court to be sufficient. That the further hearing of this matter be adjourned until Friday, 3 April 1981, at 10:15 a.m. That notice of the orders made may be given to the respondent by telegram or by telephone to one of its directors in a form of words settled with the District Registrar of the Court in Sydney. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 25 of 1981 ) GENERAL DIVISION ) BETWEEN: TONY MUNDINE Applicant AND: LAYTON TAYLOR PROMOTIONS PTY. LIMITED Respondent CORAM: Ellicott J. 27 March 1981 REASONS FOR JUDGMENT In this matter the applicant, Tony Anthony William Mundine seeks an order pursuant to section 80 of the Trade Practices Act 1974 restraining the respondent in effect from conducting a boxing match at the Festival Hall in Brisbane on Monday next, 30 March, at the heavyweight championship of Australia. Yesterday counsel for the applicant appeared before me and sought an order fixing the hearing for directions in this matter and the hearing of any application for interlocutory or other immediate relief for a time earlier than that which would normally apply. As a result of that application I made a number of orders but in particular I ordered that the hearing for those matters be fixed for 2:15 p.m. today. 2. I also directed that the application, statement of claim and affidavit in support be failed in the registry as soon as practicable today and I ordered that the applicant give the respondent notice of the order I made yesterday and of the nature of any anterlocutory or other relief which the applicant would seek on the hearing which I fixed for this afternoon. I directed that notice could be given by telephone, telegram or letter. {1 further directed that unsealed copies of the application, statement of claim and affidavits in support of any application or interlocutory or other relief be served on the respondent as soon as practicable and no later than 11:00 a.m. this morning. Mr Rayment has read a number of affidavits, three by Eric Michael Strasser, the solicitor for the applicant, one sworn on 26 March 1981 and two others sworn today. Mr Strasser has also given oral evidence of conversations he had with Mr Layton regarding this matter. Also read was an affidavit by the applicant and he too was called to give oral evidence. In addition, Mr Peter Michael Foster of Surfers Paradise, a promoter, also gave evidence orally before me. I am satisfied on the evidence of Mr Strasser both in affidavit and oral form that the terms of the order which I made last evening have been complied with. 3. The applicant, Tony Mundine, 1s a prize fighter. In 1972 he first won the Australian heavy- weight boxing championship. He relinquished that title for six months in 1975 but subsequently in that year regained it in a title fight with Maile Haumona. I am satisfied from the evidence put before me, that Mr Mundine is still the Professional Heavyweight Boxing Champion of Australia, recognised as such by the Australian Boxing Federation. I am also satisfied that he has not relinquished that title and that he is prepared to defend it in accordance with the rules of the Australian Boxing Federation. Layton Taylor Promotions Pty. Limited 1s a company whose registered office is situate 1n Brisbane in the premises of Layton Taylor Motors. It has been and is engaged in the promotion of a bout between one Steve Aczel and Maile Haumona at the Festival Hall, Brisbane, on Monday, 30 March next at 8:00 p.m. The Festival Hall holds over 5000 people and I am satisfied on the evidence that seats have been sold to the public for that fight. On the ticket which was tendered as exhibit B, the fight is described as a "Heavyweight Boxing Championship of Aust.", Steve Aczel versus Maile Haumona. Tendered in evidence are copies of the Courier Mail of 27 March 1981 (exhibit Cc) and the Telegraph, the Brisbane paper of 24 March (exhibit D). Also tendered is a cutting from the Brisbane Courier Mail of Wednesday, 25 March (exhibit E). 4. It 1s, I think, established from these exhibits and the other evidence before me that Layton Taylor Promotions Pty. Limited, the respondent, is engaged in the promotion and holding of a prize fight between Aczel and Haumona which 1s described as the Australian Heavyweight Boxing Title fight next Monday evening, 30 March at 8:00 p.m. Having in mind the professional status of Aczel and Haumona, this could refer to nothing other than a professional fight and therefore would be regarded by interested members of the public as a representation that the bout to be staged is for the professional Australian heavyweight boxing title. On the evidence I am also satisfied that a person with knowledge of boxing would understand or believe that that fight was being conducted as a title fight with the approval of the Australian Boxing Federation. A publication entitled Australian Boxing News, exhibit A, was tendered and it shows the applicant, Tony Mundine, at page 32 under the heading "Australian Ratings" as the heavyweight champion. As I understand the evidence, title bouts conducted with the consent of the Australian Boxing Federation would be recognised by the equivalent British and American bodies. In the light of what I have heard, it is obvious that persons in Australia who are interested in boxing would, on the faith of the representations, believe that the applicant had relinquished his title and, as I have said, that the title fight was a true title bout approved by the Australian Boxing Federation. It also follows from what I have held, that these representations could only be 5. regarded on the evidence as false and deceptive. The applicant has based its case on section 52(1) of the Trade Practices Act, which provides:- "52 (1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." Section 80 provides that any person may apply to the court for an injunction restraining a person from engaging in conduct that constitutes or would constitute, inter alia, a contravention of section 52(1). I am satisfied that it is proper for me to hold on the evidence before me that the respondent, Layton Taylor Promotions Pty. Limited, is a trading corporation for the purposes of the Act and therefore a corporation within the meaning of section 52, for relevant purposes. I am satisfied also that it, in promoting the bout, is engaged in trade or commerce in the relevant sense. Having in mind the conduct that I have specified, I further hold that that conduct is misleading and deceptive, and furthermore would be likely to mislead or deceive. In the circumstances I think it is appropriate for me to grant appropriate relief under the Act. The respondent has not appeared to defend the proceedings and some conversations have been deposed to by Mr Strasser, which indicate that it may be prepared to acknowledge that its conduct 1s or has been deceptive and may be prepared to take steps to corxect it. However, . 6. it has not chosen to appear and the applicant, through his counsel, has sought appropriate orders from me to restrain the wrongful conduct. It is clear of course that the applicant's claim for an injunction will be of little assistance to him unless an order is made almost immediately. Needless to say, it is unusual to grant immediate relief that seems to be final in character. However, the nature of this case seems to me to require such relief. If the bout proceeds as advertised it will on the evidence cause irreparable financial harm to the applicant, quite apart from involving the deception and misleading conduct that I have referred to. The applicant became aware of this bout some days ago but I am satisfied that even if a defence of laches were available his conduct has not been such in the circumstances to disentitle him to appropriate relief. At the same time, having in mind that the respondent has not appeared and has had only limited opportunity to prepare for and instruct solicitors in relation to these proceedings, I consider that any orders I make should be such that it should be open to the respondent to apply to the court to have them or any of them discharged or varied. This, I think, should overcome any injustice to the respondent from what appears to be the granting of immediate and final relief. 7. The applicant himself may wish to claim damages as a result of the conduct complained of, and therefore this matter cannot be finally disposed of today. In the circumstances, therefore, I propose to grant the applicant what I regard as appropriate relief. Counsel for the applicant has argued that it would be appropriate for me to grant, in effect, a mandatory injunction directing the respondent to insert certain advertisements which would, it is hoped, rectify the position before the bout takes place on Monday evening. Counsel quite properly drew my attention to s.80A of the Act where the Court 1s given power to order the publication of an advertisement but only, under that section, where the application has been made by the Minister or the Commission. This 2s not such an application and I am not prepared to find that apart from that section the Court has power under s.80, or any other provision of the Act, to grant, in effect, a mandatory order of this nature. This is not a final view but having in mind the precise nature of the statutory relief specified in s.80 and other sections I think it 1s at least doubtful that the Court has such power where the application is made by a person other than the Minister or the Commission. However, what is complained about here as misleading or deceptive conduct is the holding of the bout at the Festival Hall on Monday next at 8:00 p.m. as the Australian Heavyweight Championship. In the 8. circumstances I regard that as the conduct which I am entitled to enjoin pursuant to s.80 and s.52 of the Act. On the other hand, it is appreciated that the respondent has invested no doubt substantial funds in promoting the fight and that members of public have been sold tickets for it and many have no doubt made arrange- ments to attend. On this basis I think 1t 1s appropriate to so frame the order to enable the bout to proceed provided the applicant is protected. Counsel for the applicant has suggested that this would be achieved if certain announcements were made prior to the fight and if certain advertisements were inserted prior to the bout being held. I therefore make the following orders: (1) On the applicant giving the usual undertaking as to damages and I understand that is given? MR RAYMENT: Yes, your Honour. HIS HONOUR: I order: (i) That the respondent by itself, its servants and agents, be restrained from kolding or promoting a boxing match presently scheduled to be held at Brisbane Festival Hall on Monday, 30 March 1981, unless: (a) The respondent causes an announcement to be made to all persons attending the said boxing match in the following terms: (b) "This match has obviously been wrongfully advertised as the Heavyweight Champion- ship of Australia. The reigning heavyweight champion of Australia is Tony Mundine and he is not participating and was not invited to participate in this boxing match. Tony Mundine has informed the promoters that he will be delighted to defend his title against whoever wins this boxing match. The promoters recognise Mr Mundine as the reigning Australian professional heavyweight champion and apologise to him for descr2bing this match as the heavyweight championship." The respondent does everything practicable to cause to be published a prominent advertisement in the Brisbane Sunday Mail for 29 March 1981, and in an edition of the Courier Mail for Monday, 30 March 1981, and in an edition of the Brisbane Telegraph for Monday, 30 March 1981, in the same terms as are set out in (a) above preceded by the following sentence: "A boxing match to be held at the Brisbane Festival Hall on 30 March 1981 is not a championship title fight." (2) (3) MR RAYMENT: 10. (11) That the respondent be restrained by itself, its servants and agents, from engaging in the following conduct in trade and commerce:- (a) Advertising or selling tickets for a boxing match to be conducted on Monday 30 March 1981, in which advertising or on which tickets such match 1s described as the Professional Heavyweight Championship of Australia or Heavyweight Championship of Australia or by any similar description. (b) Causing or permitting the said boxing match to be conducted under either of these titles or any similar title. I order the respondent to pay the applicant's costs of this application to date. I reserve liberty to the respondent to apply to vary or discharge these orders on such notice, if any, as may seem to a judge of this Court to be sufficient. Ld May I ask that your Honour adjourn the further conduct of these proceedings to a convenient date next week for further directions, and may I also ask your Honour for a direction permitting initial service of this afternoon's orders by telegram or telephone. We would ll. obviously have to serve them publicly on Monday in Brisbane, but it would presumably not be possible to find a registered office open. HIS HONOUR: (4) I order that the further hearing of this matter be adjourned until Friday, 3 April 1981 at 10:15 a.m. (5) I direct that notice of the orders which I have made may be given to the respondent by telegram or by telephone to one of its directors in a form of words settled with the District Registrar of the Court in Sydney. -e i, antes Cw le) beanie tv of Lhe erent eS o - 1 od bd cabin ein of nest Honeur