JUDGMENT No. .2.4-QI 8.0... CATCHWORDS TRADE PRACTICES AND PASSING OFF - Use by first respondent of name 'Chase' - Applicants carrying on banking business, overseas and in Australia, under titles including the word 'Chase' - Respondent New Zealand property developer commencing to operate in Australia under name used in New Zealand - Whether New Zealand reputation of respondent is relevant to question whether use of name likely to mislead or deceive - Significance of associations by various witnesses of name 'Chase' standing alone - Relevance of answers of seleced interviewees in market survey - Whether investors in Chase Corporation likely to be misled into associating that company with applicants - Significance of lack of common field of activity in trading activities with Chase Corporation - Possibility of effect upon applicants by adverse publicity relating to first respondent. Trade Practices Act 1974 ss.52, 53, 53A. Taco Company of Australia Inc. v. Taco Bell Pty Limited (1982) 42 A.L.R. 177, Hornsby Building Information Centre Pty Limited v. Sydney Building Information Centre Pty Limited (1978) 140 C.L.R. 216, World Series Cricket Pty Limited v. Parish (1977) 16 A.L.R. 181, Global Sportsman Limited v. Mirror Newspapers Limited (1984) 55 A.L.R. 25, Parkdale Custom Built Furniture Pty. Limited v. Puxu Pty. Limited (1982) 149 C.L.R. 191 Erven Warnink Besloten Vennootschap v. J. Townend & Sons (Hull) Limited (19793 A.C. 731 applied. . Bridge Stockbrokers Limited v. Bridges (1984) 57 A.L.R. 401,Fletcher Challenge Limited v. Fletcher Challenge Pty Limited £19817 1N.S.W. L.R. 196 McDonald's System of Australia Pty Limited v. McWilliam's Wines Pty Limited (1979) 28 A.L.R. 236, A. Bailey & Co. Limited v. Clark, Son and Morland (1938) 55 R.P.C. 253, Henderson v. Radio Corporation Pty Limited (1960) 60 S.R. (N.S.W.) 576, Scott v. Tuff-Kote(Australia)Pty Limited £19751 1 N.S.W. L.R. 537, Esanda Limited v. Esanda Limited (1983) 2 I.P.R. 182, Peter Isaacson Publications Pty Limited v. Nationwide News Pty Limited (1984) 56 A.L.R. 595 referred to. CHASE MANHATTAN OVERSEAS CORPORATION v. CHASE CORPORATION LIMITED WILCOX J. SYDNEY 24 DECEMBER 1985 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G259 of 1985 ww GENERAL DIVISION BETWEEN : CHASE MANHATTAN OVERSEAS CORPORATION First Applicant CHASE AMP BANK LIMITED Second Applicant CHASE MANHATTAN BANK, N.A. Third Applicant AND: CHASE CORPORATION LIMITED First Respondent ADRIAN KENNETH BURR Second Respondent MINUTE OF ORDERS JUDGE MAKING ORDER: WILCOX J. DATE OF ORDER: 24 DECEMBER 1985 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The applicants pay to the respondents their costs of these proceedings; such costs not to include the costs incurred, or ordered to be paid, by them in connection with a subpoena issued by the respondents requiring the production of certain documents by McKinsey & Co.Inc. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALTA NEW _SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN : AND: CORAM: WILCOX J. DATE: 24 DECEMBER 1985 PLACE: SYDNEY weweww No. G259 of 1985 CHASE MANHATTAN OVERSEAS CORPORATION First Applicant CHASE AMP BANK LIMITED Second Applicant CHASE MANHATTAN BANK, N.A. Third Applicant CHASE CORPORATION LIMITED First Respondent ADRIAN KENNETH BURR Second Respondent REASONS FOR JUDGMENT This is a contest between two substantial organizations - one based in the United States of America, the other based in New 2. Zealand - regarding the entitlement of the latter to use the name 'Chase' in respect of its Australian operations. Each organization regards the matter as important. Each has put before the Court every atom of evidence which might conceivably advance its case. Affidavits sworn by over 80 separate deponents were used. 82 exhibits were admitted into evidence. Yet, thanks to the sensible attitude and the efficiency of the parties and their legal advisers, it was possible for the final hearing of the matter to commence only three months after the filing of the initiating Application, on 10 September 1985, and' for that hearing to be concluded in five and a half days sitting time. These results were achieved by a number of means: an agreement between the parties that only documents relating to specified major issues need be discovered, extensive admissions by the respondent in respect of matters not seriously in issue, the trial of the matter, by consent, onthe basis of affidavit evidence,the prior preparation of well-ordered bundles of exhibits which could be tendered in a speedy, yet comprehensible, manner and, most significantly, the readiness of all counsel to restrict cross-examination to matters of real importance. The conduct of the matter, on both sides, provides a refreshing contrast to the unnecessary and time-consuming preliminaries, and extensive oral evidence upon peripheral matters, which often occur in proceedings pursuant to the Trade Practices Act. 3. The evidence tendered to the Court is voluminous. Much of it was referred to by counsel in their addresses and in the helpful summaries of evidence which they provided to me. I have the whole of that evidence in mind but I propose to refer only to those matters which seem to me to be significant in the ultimate resolution of the case. In particular I will not attempt to reproduce the detail of the extensive evidence relating to the histories and current operations of the parties and of other companies with which they are associated. Chase Manhattan The Chase Manhattan Bank N.A., the third applicant, was formed in 1955 as a result of a merger between the Chase National Bank - a bank formed in 1877 and named for Samuel Portland Chase, a gentleman who was Secretary of the United States Treasury under Abraham Lincoln and who was appointed by that President to be Chief Justice of the United States - and the Manhattan Company - a bank incorporated in 1799. The Chase Bank, as I shall call it, is currently the third largest bank in the United States and the sixteenth largest in the world. The Bank is wholly owned by The Chase Manhattan Corporation, a company incorporated in Delaware in 1969 to act as a holding company of the Chase Bank and its affiliates. I shail use the generic title "Chase Manhattan" to refer collectively ta the group. Members of Chase Manhattan, including the Chase Bank, have offices in over 70 countries and conduct business in these and over 60 other countries through a network of over 6,000 correspondent bank relationships. The Chase Bank does not have, and never has had, any resident staff or any offices in Australia although, through agents, it has had financial relationships with Australian citizens and corporations, including some government agencies. The Chase Bank owns all of the shares in Chase Manhattan Overseas Banking Corporation which, in turn, fully owns Chase Manhattan Overseas Corporation, the first applicant. That corporation - hereafter "C.M.0.C." - opened offices in Melbourne in 1976 and in Sydney in 1977. Through those offices it has arranged the provision from overseas centres - apparently substantially by the Chase Bank - of various financial services; including project, working capital and trading finance, syndicated loans, Euromarket note issuance facilities, securities trading, leasing, electronic cash management, corporate and personal finance advice and the issuance of travellers cheques. As the Chase Bank has never held an Australian banking licence, all loans and leases have been made in foreign currencies. As at 30 June 1985 credit commitments to Australian clients stood at USS$1,748 million. The second applicant, Chase AMP Bank Limited ("Chase AMP"), was formed as AMP Securities Holdings Limited, a wholly 5. owned subsidiary of the Australian Mutual Provident Society. Pursuant to an agreement dated 17 April 1985 Chase Manhattan Holdings (Australia) Limited, another fully owned subsidiary of Chase Manhattan Overseas Banking Corporation, acquired 50% of the capital of the company, which was then renamed Chase AMP Limited. The company applied for an Australian banking licence. On 19 September 1985 a licence was granted, whereupon the company changed to its present name and, one week later, opened for banking business in seven locations in Sydney and in one location in each of the other five State capitals. These branches offer the usual range of "retail" bank services; including deposits and current accounts, overdrafts, loans and lease finance, letters of credit, foreign exchange transactions, and the like. The evidence of Mr M.G. Armstrong, managing director of Chase AMP, shows that in the short time since opening its doors the bank has embarked upon a number of business initiatives, including the issue ta the public of Chase AMP credit cards, the provision of automatic teller services for customers at numerous locations, the provision of cheque clearing facilities for two Major building societies and the issue of Chase Bank travellers cheques through 15 banks and building societies across Australia. There are current advanced negotiations with the AMP Society for the acceptance by Chase AMP of subscriptions to a variety of trusts, to be invested in specific types of securities - equity and mortgage - under the Management of the AMP Society. According to Mr Armstrong, 6. Chase AMP intends to expand its operations in each capital city in Australia and thereafter in a number of other population centres. Mr Armstrong expects that, by the end of 1985, Chase AMP will have spent $1 million on promotion of its name and services. As a result of the formation of Chase AMP, the offices in Australia of C.M.0.C. have been closed and its staff is being absorbed by Chase AMP. The functions previously undertaken by C.M.0.C. - notably liaison between the Chase Bank and its Australian clients and potential clients and the issue of Chase Bank travellers' cheques - will now be undertaken by Chase AMP. As Mr Armstrong put it in his oral evidence, Chase AMP - as well as providing a full range of banking services in its own right - will henceforth be the Australian "front door" to the Chase Bank. At the present time there are only two C.M.0.C. staff left in Australia - being staff concerned with traveller's cheques - and they are likely shortly to be transferred to Chase AMP. In the result, upon present plans, the position will soon be reached that the only company within the Chase Manhattan group carrying on any business in Australia, or maintaining any office or employing any staff here, will be Chase AMP. But, of course, either through Chase AMP or by direct contact, many Australians will continue to do business with other members of the group, notably the Chase Bank, outside Australia. None of the applicants, and no other member of the Chase Manhattan group, is listed onan Australian stock exchange. Chase Corporation The story of Chase Corporation is one of remarkable commercial success. It goes back to 1970 when five young professionals resident in Te Awamutu, a small town near Hamilton and about 100 miles from Auckland, decided to pool their savings for investment. Three of the five were farm management consultants, the others were chartered accountants. The two accountants were Mr C.W. Reynolds, who is now Chairman of Chase Corporation and a full-time executive, and Mr R.T. Spiers, who continues to practice his profession in Te Awamutu but is an alternate director of Chase Corporation. The five men determined to purchase and develop some farmland. Searching for aname, Mr Spiers said that one should be selected which would reflect the verdant local countryside. He suggested "Chase", as being a word commonly used in England to describe unenclosed woodlands or hunting grounds. In the result, on 24 September 1970, Chase Holdings Limited was formed, with an initial capital of 1,000 ordinary $1 shares. Three of the five founders have sworn affidavits in which each asserts that, at the time the name was chosen, he knew of no other company whose name included the word "Chase"; and, in particular, that he had not heard of any member of Chase Manhattan. Messrs Spiers and Reynolds were each cross-examined. I accept what they say. Both of them appeared to be careful and honest witnesses. Despite the size and influence of the Chase Manhattan group it is by no means unlikely that a group of young men in rural New Zealand, lacking any association with the world of international finance, would not have heard of it by 1970. Chase Manhattan had no presence in New Zealand until 1972, when a company known as Chase -NBA New Zealand Group Limited, in which it then had an interest and of which more later, commenced operations in Auckland, Wellington and Christchurch. Chase Holdings prospered. In March 1972 Mr Reynolds gave up his accounting practice and commenced to work full-time for the company. In February 1973 he moved to Auckland. The company traded in real estate, including houses, blocks of flats and small commercial properties. In September 1973 it acquired the shares in a quarry company and other farmland; it bought and subsequently sold an anodising business. In February 1974 Mr Adrian Burr, the second rspondent in this matter who is now a director of Chase Corporation, joined the company to assist its real estate operations. The company moved into office development in Auckland. In 1977 there was a reconstruction of the companies within the group. Chase Group Limited and Concept Projects Limited were introduced as active property developers. Chase Holdings remained in existence but did not expand 9. significantly. As other businessés were acquired they were operated under individual company names, generally commencing with the word "Chase". In 1979 Mr Peter Francis, now deputy chairman, joined the group to supervise its equities division. The policy of the group is now, and apparently for a long time has been, to distribute its investments about equally between real estate and shares in public and private companies. In March 1981 companies and shareholders within the Chase group commenced to purchase shares in Fountain Corporation Limited, a public company listed upon New Zealand stock exchanges, which was involved in the manufacture and distribution of audio, television and radio equipment. By September 1981 a controlling interest had been acquired and Mr Reynolds and Mr Francis were appointed to the board of Fountain Corporation. In August 1982 Chase Nominees Limited, a company within the group, acquired the Amalgamated Theatres group; a move which attracted considerable publicity in New Zealand and opened the way to involvement in film and video distribution throughout that country. The group decided to use Fountain Corporation to obtain a 'back door' listing of the Chase group. Messrs Reynolds and Francis caused Fountain Corporation to acquire all the shares in Chase Nominees Limited, Chase Group Limited and Concept Projects Limited. Following that acquisition Fountain Corporation changed its name to Chase Corporation Limited. It is this company which is the first respondent in these proceedings. By 1983, when 10. the name change occurred, Mr Reynolds knew of the Chase Bank but he said that it "never crossed his mind" that anyone would think that there was a connection between his group and the bank. There was never any question in his mind but that the word 'Chase' should be used for the listed company; the only choice that he had to make was between the original title 'Chase Holdings' and 'Chase Corporation'. Since the reverse takeover of Fountain Corporation the New Zealand group has progressed spectacularly. In the period of just under three years which has elapsed its market capitalisation has increased by 2700%. In the year ended 31 March 1985 property developments worth about SNZ 46 million were completed. For the year ending 31 March 1986 the comparable figure is expected to reach almost NZ $90 million. Even more substantial projects are being commenced in the current year for completion in later years. The practice of the group has been to retain a portion of its development; the value of current real estate investment is estimated by Mr Reynolds at about NZ $150 million. Mr Reynolds estimates that shares held by the group are currently worth about NZ $136 million. Chase Corporation's Australian contacts Over a number of years there have been contacts between the New Zealand Chase group and members of the il. Australian commercial community. An important early contact was with Chase - NBA. Chase - NBA Group Limited was incorporated in Australia in 1969, being originally owned in equal one third shares by the Chase Bank, A.C. Goode Limited - an Australian stockbroker ~ and the National Bank of Australasia. In 1980 A.C. Goode sold its shares to the other two shareholders, who each held a 50% interest until 1 October 1984 when the Chase Bank sold its shares to the National Bank. Thereafter, on 18 December 1984, the name of the company was changed to First National Limited. Throughout its career, Chase NBA operated as a general finance company, providing accommodation in various forms mainly to the corporate sector. Chase NBA New Zealand Group Limited was controlled, although not fully owned, by Chase-NBA. As mentioned, it commenced operations in 1972 offering a variety of financial services, especially corporate finance. There was a general manager based in New Zealand but lending operations were controlled from the office of the parent company in Sydney. As might be expected, the increasing scale of the activities of the New Zealand Chase group necessitated an increasing resort to outside loan funds with the resuit, according to Mr Burr, that he and other officers of the group buiit up contacts with most of the principal funding organizations in New Zealand, including Chase - NBA New Zealand. In about 1975-1976 an application was made to Chase 12. -NBA New Zealand to re-finance a quarry owned by a member of the group but the proposal did not proceed because the terms of the loan were unacceptable to the Chase group. During these discussions there was, apparently, a comment made by Mr Tim Saunders of Chase-NBA New Zealand about the co-incidence of the names of the negotiating companies but no serious complaint was made and no action was taken by Chase-NBA New Zealand. Thereafter, according to Mr Burr, he and his colleagues were in regular contact with personnel of Chase-NBA New Zealand culminating in the provision of finance by that company in 1982 to facilitate the Amalgamated Theatres take-over; but he says that there never was any further reference to the name of his group. From about 1976 Mr Reynolds, Mr Burr and later Mr Francis and Mr J.R. Glen, a director of Chase Corporation who was responsible for the property companies, made frequent visits to Australia, principally in pursuit of funds. These four witnesses each produced bundles of business cards collected by them on those visits and demonstrating contact with executives of awide range of companies within the Australian financial community. Mr Burr has included in his affidavit a list of what he calls "recent funding approvals" for Chase Corporation through Australian sources which, although expressed in various currencies, total the equivalent of about NZ $150 million. 13. Chase Corporation moves to Sydney In late 1979 and early 1980 Mr Burr spent considerable time in Australia establishing a market for air-conditioning and refrigeration equipment manufactured by a company in which the group was interested, investigating property opportunities and talking to people who represented possible sources of funds. He did not, at that stage, move his place of residence to Australia but throughout the next three years visited Australia frequently. In September 1983 the directors of Chase Corporation decided that the group should expand overseas, and initially to Australia. It was decided that Mr Burr should move to Australia from the beginning of 1984. He did so, arriving in January 1984 and initially occupying a room in the offices at level 24, 20 Bond Street, Sydney, of Fay Richwhite and Company, a New zealand based merchant bank which offered Mr Burr temporary accommodation. From that room Mr Burr undertook what he called a "deliberate but low key" programme of discussions in relation to property development and investment opportunities in Australia. These discussions culminated, for the short term, in the acquisition in October 1984 by Chase Corporation - through its local investment subsidiary Chas Corp. Pty Limited - of a 50% interest in a listed Australian property developer, Jonray Holdings Limited. 14. As it happened, C.M.0.C. - then the only Chase Manhattan presence in Australia - had its Sydney office upon the same floor of the building in Bond Street as that occupied by Fay Richwhite. There was some confusion in the mail. Chase Corporation was not shown on the building directory and some letters intended for that company were delivered to C.M.0.C. Mr Burr came to introduce himself to Mr Elliott Jones, the representative of C.M.0.C. in Australia, who was based in Sydney, and to Mr J.S. Sanyo his assistant representative. Mr Burr explained that he had sub-let space from Fay Richwhite and that he was the only Chase Corporation employee stationed in Sydney. According to him, he mentioned the possibility of establishing an operation in separate offices at a later date. He gave Mr Jones and Mr Sanyo some information about Chase Corporation, including a copy of the most recent Annual Report of the company. There is some disagreement between the witnesses as to how far the conversation went but I do not think that this matters very much. On any account the conversation was amicable and general and largely concerned with the confusion of mail. Whatever possibilities may have been mentioned, Mr Burr clearly did not spell out specific projects or activities because he had not yet progressed that far. Mr Jones and Mr Sanyo could easily have understood Mr Burr to be operating what was referred to in submissions as a 'listening post' and to have regarded his presence in Sydney on behalf of Chase Corporation as being unlikely to impinge upon the interests of their employer. In the event no complaint was made and no action was taken. 15. Both sides have placed some reliance upon this incident; the applicants pointing to the confusion in the mail because of the Similarity of names, the respondents emphasising the failure of the applicants to take legal action at that stage and ascribing this to a recognition by the applicants that the name was not misleading. I do not think that the reliance of either side is justified. The mail confusion was a minor, transient problem. The failure to take legal action at that stage is easily explained by the nature of Mr Burr's activities. After the Jonray acquisition Mr Burr - who had by now been temporarily joined by Mr Francis—moved out of 20 Bond Street, into offices occupied by Jonray at 56 Pitt Street, Sydney. Mr Burr remained the only Chase Corporation employee permanently in Sydney but under his direction - he became the chairman of Jonray - Jonray rapidly expanded its activities. It was decided to seek more commodious accommodation. In July 1985, after inspecting the office accommodation then available, Mr Burr took space in the new Qantas International Centre, George Street, Sydney. He did so in ignorance of the fact that three months earlier Chase AMP had chosen the same building ~- although on a different level - as the location of its head office. That company had moved into the building in late May but its name was not exhibited upon the building directory until after it became a bank in September 1985. 16. Chase Corporation moved into the building in August 1985. At the present time both companies are tenants in the building and their names are juxtaposed upon the building directory which, of course, shows occupants in alphabetical order. It is, perhaps, unfortunate that Chase Corporation chose the same building as Chase AMP but, in the light of the evidence which has emerged, it is accepted by counsel for the applicants that this was merely a coincidence and that there was no deliberate following of Chase AMP by Chase Corporation. Chase Corporation has recently been registered in Queensland as a foreign company. The choice of Queensland rather than New South Wales is probably explained by the existence of a New South Wales company - unrelated to either of the contestants in this case - known as Chase Corporation (Australia) Pty Limited. Chase Corporation has recently been granted listing on Australian stock exchanges, but its shares are currently quoted only in Sydney and in Melbourne. The reason for listing in Australia, according to Mr Reynolds, is to provide access toa wider capital base in the form of Australian investors. Mr Burr has recently been joined in Sydney by Mr Reynolds, from which it may be inferred that the tempo of activity is planned to increase. In an advertisement published in the "Australian Financial Review" of 8 October 1985 Chase Corporation described itself as "an entrepreneurial, high growth company, involved in all aspects of business and property investment, management and 17. development". The advertisement set out the company's head office address in Auckland, followed by the address of the Sydney Office. However, the company conducts no business in Australia on its own account, other than the raising of funds to finance its activities. The company keeps no books of account or record in Australia other than cheque books and deposit books in connection with two bank accounts. Chase Corporation has recently made an offer to acquire, through Chas Corp Pty Limited, the outstanding shares in Jonray Holdings and it intends to channel its Australian development activities through that company, which will be renamed Century Pacific. It is intended that Chas Corp Pty Limited will hold any other Australian shares which may be acquired. According to both Mr Burr and Mr Reynolds, it is not intended that Chase Corporation itself will carry on business in Australia. "Chase" It appears to be a common occurrence for people wishing to refer to a company in the Chase Manhattan group, or even to the group as a whole, simply to refer to "Chase". According to Mr Armstrong and to Mr R.S. Smith, the general manager of the former Chase NBA, the employees of companies within the group often use the word "Chase" to refer to their employer or to the group, The word "Chase" is highlighted on stationery and business cards used by the applicants. It was used, alone except for the Chase Manhattan logo, in a directional sign at the entrance to the C.M.0.C. office in 18. Bond Street. In publications of the Chase Manhattan group ~ poth internal and external - reference is frequently made to "Chase" or "The Chase". The group is often referred to in media articles as "Chase"; although in the examples tendered in evidence always in the context of a fuller title elsewhere in the article. Ten deponents to affidavits gave evidence that it was their practice, and the practice of those with whom they worked, to use the word "Chase" to refer to the Chase Bank or the Chase Manhattan group. These deponents were all people concerned with the world of finance, either as providers or users of loan funds. Some of the deponents expressed the view that the word "Chase" was to them the more important part of the title "Chase Manhattan"; some thought that the use of the word "Chase" as part of a corporate title enhanced the reputation of the company concerned. Most of those deponents had not heard of Chase Corporation until very recently; some only in the context of this case. The respondents, on the other hand, read affidavits sworn by 22 witnesses - mostly people who had had commercial dealings with Chase Corporation or who were employed in the field of real estate - who did not automatically associate the word 'Chase', standing alone, with the applicants. Many of these witnesses used the abbreviation "Chase" to refer to Chase Corporation. Documents were tendered which showed that, 19. as with Chase Manhattan, in both internal and external publications Chase Corporation often referred to itself as "Chase" and that the media sometimes took the same course; but in every case the context made clear that the reference was to Chase Corporation. I think that the evidence, on each side, of the association made by the witnesses upon hearing the word "Chase", standing alone, is of little value. Words take their significance from their context. If a word - including a name - is used in isolation, the experience and associations of the hearer will often supply an immediate, and perhaps erroneous, context. For example, the word "Macquarie" standing alone will probably conjure up quite different immediate associations to an historian, a university vice-chancellor, a geographer and a banker. It is natural that people involved with banking and finance should immediately associate 'Chase' with Chase Manhattan whilst those in the real estate industry should think of Chase Corporation. The vast majority of people, who are in neither category, may make no association; they may be merely perplexed. But, in any case, immediate association is one thing; the undertaking of a commercial relationship is another. It is unlikely that people in any of these categories would enter into any financial commitment with a company whose full name was undisclosed. ' 20. The applicants' claims The Statement of Claim alleges three separate causes of action; although it is conceded that there is considerable overlap between them. In the first place the applicants rely upon s.52 of the Trade Practices Act 1974. They contend that, by the use of the names "Chase" and "Chase Corporation Limited" the first respondent has represented that its business is the business of the applicants, that the services provided by the first respondent are of the same standard or quality as those of the applicants, that the first respondent is affiliated with the applicants and that the first respondent has the sponsorship or approval of the applicants. These representations are said to be false, so that the first respondent has engaged in conduct which is misleading or deceptive or likely to mislead or deceive. Secondly, pursuant to s.53 and s.53A of the Act, the applicants contend that, by its use of the names, Chase Corporation has falsely represented that its services are of a particular standard, quality or grade (s.53(aa)), that it has represented that its services have a sponsorship, approval or benefits that they do not have (s.53(c)), that it has falsely represented that it has a sponsorship, approval or affiliation that it does not have (s.53(d)), and that, in connection with the sale or grant, or the possible sale or grant, of an 21. interest in land, the respondent has represented that it has a sponsorship, approval or affiliation it does not have (s.53A(a)). In respect of all the allegations under the Trade Practices Act the applicants charge that Mr Burr is a person involved in the contraventions within the meaning of s.75B of that Act. There is no issue in relation to Mr Burr's involvement. Whilst it is denied that there has been any contravention of the Trade Practices Act by the first respondent, it is conceded that Mr Burr has been knowingly concerned with whatever has been done by the company in Australia. Finally, in reliance upon the pendent jurisdiction of the Court - see 5.32 of the Federal Court of Australia Act 1976 - the applicants allege that Chase Corporation has wrongfully passed off its business and services as being the business and services of one or more of the applicants. The s.52 claim The legal principles relevant to the determination of the question whether the use by a corporation of a particular name amounts to conduct which is actually or potentially misleading or deceptive may, I think, be summarised as follows: a) b) c) a) 22. Conduct cannot, for the purposes of s.52, be categorized as misleading or deceptive, or likely to be misleading or deceptive, unless it contains or conveys a nisrepresentation: Taco Company of Australia Inc. v. Taco Bell Pty Limited (1982) 42 A.L.R. 177 at p.202, A statement which is literally true may nevertheless be misleading or deceptive: see Hornsby Building Information Centre Pty Limited v. Sydney Building Information Centre Pty Limited (1978) 140 C.L.R. 216 at p. 227. This will occur, for example, where the statement also conveys a second meaning which is untrue: World Series Criket Pty Limited v. Parish (1977) 16 A.L.R. 181 at p.201. Conduct is likely to mislead or deceive if this is a 'real oar not remote chance or possibility regardless of whether it is less or more than fifty percent': Global Sportsman Limited v. Mirror Newspapers Limited (1984) 55 A.L.R. 25 at p.30. The question whether conduct is, or is e) 23. likely to be, misleading or deceptive is an objective one, to be determined by the court for itself, in relation to one or more identified sections of the public, the court considering all who fall within an identified section of the public "including the astute and the guilibie, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations": Taco Company at p.202. Evidence of the formation in fact of an erroneous conclusion is admissible but not conclusive: Global Sportsman at p.30. Ordinarily, mere proof of confusion or uncertainty will not suffice to prove misleading or deceptive conduct: Parkdale Custom Built Furniture Pty Limited v. Puxu Pty Limited (1982) 149 C.L.R.191. However, where confusion is proved, the court should investigate the cause; so that it may determine whether this is because of misleading or deceptive conduct on the part of the respondent: Taco at p.203. 24. In the present case the statement that the first respondent makes - "I am Chase Corporation" - is literally true. If it matters, it is clear from the evidence of Mr Spiers, Mr Reynolds and Mr Meyer that those responsible for the original choice of the name Chase, in 1970, were at that time not aware of the existence of the Chase Manhattan group or of any of its members. It is equally clear that by 1983, when Fountain Corporation was renamed Chase Corporation, the then directors were aware of the Chase Manhattan group but that they thought that considerable goodwill attached to the name "Chase" - as related to their various business interests - and that it was to their legitimate advantage to retain the association with that name. Given their success to that time, using companies bearing in their titles the word "Chase", and the recent extensive publicity which their companies had attracted in connection with the Amalgamated Theatres take-over, this is obviously a reasonable assessment. The directors took the view that the existence of Chase NBA New Zealand, on the local stage, and of the Chase Manhattan group, internationally, did not oblige them to surrender that advantage. That attitude also cannot, upon the evidence, be categorized as unreasonable; the group with which they were associated were the first users of the name "Chase" in New Zealand and their activities may well have been more extensive than those of Chase NBA New Zealand, the only New Zealand manifestation of Chase Manhattan. The use of the name Chase Corporation in New Zealand was, and is, a simple statement 25. of fact identifying a company so named for reasons which have nothing to do with any other company. In New Zealand at least, there is no secondary meaning or overtone. But the applicants say that none of the New Zealand history is relevant, that the use in Australia of the name "Chase" is to be evaluated in exactly the same way as if that name were used by a newly incorporated company. The question, it is said, is the effect upon the minds of relevant sections of the Australian public and that question is unrelated to the circumstances under which the use of the name in this country commenced. The applicants argue that, whatever may be the position in New Zealand, in Australia the use of the name "Chase Corporation" results in a case in which a literally true statement is misleading or deceptive because it conveys another meaning which is untrue. In Australia, it is said, the Chase Manhattan group is so well known that the use of the name 'Chase' in Australia implies an assertion of a connection with the Chase Manhattan group. In my opinion it is wrong to postulate a rule that an overs@éas company commencing operations in Australia for the first time is necessarily in the same position as a newly incorporated company. There may be cases in Which an overseas company is unknown in this country before commencing to trade here. In other cases the opposite may be true. Many markets are international in nature. Communications are speedy and 26. comprehensive. dust as an overseas company may have a 'slopover' reputation sufficient to sustain a passing off action in a country where it does not trade - see Fletcher Challenge Limited v. Fletcher Challenge Pty Limited £19811 I1N.S.W. L.R. 196 at p.205 - there may be cases in which a reputation precedes the newcomer so that, upon the commencement of its operations, it is recognized for what it is. This is likely particularly to be the case where the newcomer is a significant and well-known company in a country with close links with Australia, suchas New Zealand. In an attempt to quantify those links the respondents read an affidavit of M/s Susan Marks, a solicitor, which set out statistics kept by the Australian Bureau of Statistics showing that in 1981 - selected presumably because it was the date of the last census —- there were 176,713 persons resident in Australia who were of New Zealand birth of whom 52% had been here for less than five years. During each of the last few years over 200,000 people from each of Australia and New Zealand have visited the other country. In each of 1982 and 1983 over 28,000 Australians visited New Zealand on business. It is reasonable to suppose, therefore, that many people resident in Australia - and especially those in business - had heard of Chase Corporation before it commenced any operations in this country. Many of the persons who have given evidence in this case are in that category. This reputation cannot be ignored in considering whether the use by the first respondent in Australia of its New Zealand name is likely to mislead or deceive persons in Australia; to the extent that people have already become aware of 27. the identity of the company they will not be misled or deceived. Potential investors Counsel for the applicants, in their submissions, identify four groups of people in Australia who, they say, are likely to be misled or deceived by the use by the first respondent of the name "Chase": persons contemplating an investment in that company, for example, by way of a purchase of shares, the acquisition of units in a property trust or the purchase of debentures; those who actually enter into an ordinary business transaction with Chase Corporation as, for example, by taking space in a building owned by that company; persons dealing with Chase Corporation who, although ultimately disabused of error, expend time and money before ascertaining that they are not dealing with a member of the Chase Manhattan group; and people having business dealings with one of the applicant companies who read an unflattering, published statement about Chase Corporation and erroneously associate that company with the Chase Manhattan group to the disadvantage of the latter. In connection with the first group it should be said at once that there is no evidence of any intention by Chase Corporation to offer to the public either property trust units or debentures; indeed Mr Burr disclaimed such an intention. However, this situation may change in the future. I infer froma comment by Mr Burr about striving always to be "efficient" that 28. it would change if property trust units or debentures came to offer commercial advantages over increased share capital. I prefer, therefore, to deal with the wider submission rather than to consider only share investment. Persons within the first group may be described as the "investing public". Members may come from all walks of life. They may - and probably will - have widely varying degrees of knowledge and experience in relation to investment opportunities. They will, no doubt, vary in intelligence and in carefulness in their inquiries. In relation to relevant characteristics, the applicants say that investors are simply men and women in the street. And, in support of their contention that men and women in the street associate 'Chase' with Chase Manhattan and would assume a connection with that group of any company whose name included that word, they rely upon the affidavits of nine people who were interviewed in the course of a survey by a market research company. The questions asked of each deponent were identical. The answers differed a little but there was a similarity of response. Those nine deponents had all heard of Chase Manhattan; none had heard of Chase Corporation. All associated the word 'Chase', used as part of a corporate title, with Chase Manhattan or with Chase AMP. All would have assumed that an advertisment showing a company name simply as "Chase" would be connected in some way to Chase Manhattan. In my opinion this evidence is of no weight. The 29. evidence placed before the Court failed to disclose the total number of people interviewed in the survey or the answers given by the other interviewees. The solicitors for the respondents gave notice to the applicants to produce the original survey material but the applicants successfully objected to production upon the basis of legal professional privilege. It was proved that the market survey had been commissioned by the solicitors for the applicants for the purposes of this case. So there is virtually no context for the disclosed material. One fact that does appear is that eight different interviewers were used for these nine interviews. As it is likely that each interviewer used in the survey would be instructed to interview a number of people, it is probable that the revealed responses were but a small fraction - perhaps a tiny fraction - of the whole. It is possible that the name 'Chase' meant nothing to the majority of interviewees and/or that they would not automatically associate with Chase Manhattan or Chase AMP a company whose name included that word. The failure of the applicants to prove - indeed their reluctance even to reveal; cf. the comment by Franki J. in McDonald's System of Australian Pty Limited v. McWilliam's Wines Pty Limited (1979) 28 A.L.R. 236 at p.253 about the desirability of revealing such material to the other side and also A. Bailey Co. Limited v. Clark,Son and Marland Limited (1938) 55 R.P.C. 253 at p.264 - the full survey material supports the conclusion that the survey results do not show a general association by ordinary members of the public between the name 'Chase' and Chase Manhattan or Chase AMP. The affidavits of the nine selected 30. deponents prove nothing more than that these nine people made that immediate association. They do not, of course, show that even the nine would have acted upon that association in relation to a financial transaction without further inquiry. The evidence discloses that there is currently listed upon Australian stock exchanges a company known as Chase Minerals N.L. This company is not connected with either the Chase Manhattan or Chase Corporation group. Numerous stockbrokers gave evidence but none of them said anything to suggest that any investor had been misled into believing that Chase Minerals N.L. was associated with Chase Manhattan. Thus the automatic connection assumed by the case of the applicants is not shown to have occurrd in connection with that company. That the proposition of an automatic connection is too broad became apparent during the cross-examination of the commercial people who swore affidavits on behalf of the applicants to the effect that they would immediately associate with Chase Manhattan any company whose name included the word 'Chase'. Of the ten deponents to that effect nine were cross-examined; there was a problem in arranging the attendance of the tenth deponent and it was agreed, without thereby making any concession, to waive cross-examination. Of the remaining nine deponents, five conceded that they really meant to say that they would only assume a connection with Chase Manhattan if the company bearing the name 'Chase' was a bank or financier. 31. Examples were put to most of these witnesses: Chase Minerals N.L., Chase Property Management Company Pty Limited of Toorak, Melbourne and Chase Tea and Coffee Company Limited of London. In respect of each of such examples the witnesses acknowledged that they would not assume a connection, because the relevant company was not apparently engaged in banking or finance. Three of the witnesses thought that, in relation to a company called 'Chase' outside the field of banking and finance, there might be a connection but each indicated that he would investigate before making an investment in such a company. The evidence of the ninth witness was extremely confused. He seemed to think that Chase AMP was the company formerly known as Chase NBA. As he had had dealings with Chase NBA he assumed that any company called 'Chase' would be associated with that company. This witness' evidence was of no value; but even in his case I do not think that he would have made an investment in a 'Chase' company without inquiring as to its genealogy and connections. I do not think that any of these nine witnesses would have been misled into investing in Chase Corporation in the belief that it was a Chase Manhattan company. The evidence revealed that there are several pairs of companies with common first names listed on the Sydney stock exchange. There was no evidence to show that these similarities had ever occasioned any difficulty or confusion to investors. 32. In support of their submission regarding the likelihood of investors being misled the applicants refer to passages in the reasons of the members of the Full Court which decided Bridge Stockbrokers Limited v. Bridges (1984) 57 ALR 401. These passages include the comment at p.407 by Smithers and Woodward JJ. regarding the disparity in knowledge and experience of investors in the stock market and the observation by Lockhart J. at p. 410 relating to the propensity of Australians to shorten names, in everyday speech, to a _ single word. There can, of course, be no question about the accuracy of these comments but it seems to me that they do not much advance the applicants' case. The issue of misleading or deceptive conduct is always one of fact upon which reference to decided cases is of little value. For what it may be worth, however, it is interesting to observe that Smithers and Woodward JJ. did not regard it as enough that the appellant company had adopted a name evocative of the firm name under which the respondents traded. Their Honours emphasised what they called at p.407 "the all embracing connotation" in the name Bridge Stockbrokers. At p.408 they said: "If one chooses a name so close to that of an operator already in the business that confusion is probable, there will be a recurring need in normal business for care and discrimination. Where the name of that party is such as, in various circumstances, to carry additional overtones, then one is entering the area of misrepresentation. The overtones in this name are that, in the stockbroking business, you will find 'Bridge' or 'Bridges' here and not elsewhere. To throw that into the public arena, where there are people with 33. no duty or inclination to exercise a fine discrimination in the matter, nor any feeling of necessity for so doing, creates a likelihood of it being understood as saying what it seems to say". There are, as it seems to me, no exclusionary overtones in the listing of a company using the name 'Chase Corporation'; any more than there are in respect of Chase Minerals. Such a name makes no claim to being the only Chase company, still less the Chase bank. Moreover, whilst the choice of a broker to conduct a share market transaction might normally be thought to be of little moment to the investor, the choice of the company in which the investment is to be made - whether by the acquisition of shares, property trust units or debentures - is a matter in relation to which he or she could normally be expected to "exercise a fine discrimination", at least to the point of obtaining information - which would be readily available from brokers and other sources - as to the identity and associations of the relevant company. There is no basis in the evidence fora conclusion that, in respect of such a matter, investors have been misled in the past and common sense suggests that such a result is unlikely. Potential business associates The second category of persons likely to be misled or deceived, according to the submission of the applicants, is those people who enter into ordinary business transactions 34. with the Chase Corporation, such as tenants of buildings. It is not suggested that the accommodation or the terms upon which it may be obtained will be any the worse because the lessor is Chase Corporation rather than Chase Manhattan but simply that the tenant might enter into the transaction in the false belief that his landlord is a member of the Chase Manhattan group, with whatever that conveys in relation to assurance of fair dealing, service and the like. The difficulty about the submission is that the evidence indicates that there is now, and there is likely to be in the future, very little common field of activity between any of the applicants on the one hand and the first respondent on the other. Neither the Chase Bank nor C.M.0.C. presently carries on any business in Australia; neither intends to do so in the foreseeable future. The remaining applicant, Chase AMP, is a bank. [It is not, and is not intended to be, either a property developer or an investor in property. It does intend to be associated with the property trusts but the evidence does not disclose the name which those trusts will bear or in whose name the relevant realty will be held. Presumably the realty will be vested ina trustee company, which will be the lessor in any leasing transaction. Chase AMP intends to lend money upon the security of real estate. It may be expected that, from time to time, default will be made by a borrower and that the bank will have 35. to step in and realize upon the security, either by appointment of a receiver or by sale of the property. But it will do so as mortgagee in possession and under the name "Chase AMP Bank". The scope for any confusion with a property developer company known as Chase Corporation seems to me to be minimal. In any event the evidence is that Chase Corporation does not intend actively to deal in real estate in Australia under its own name but to channel all its transactions through Jonray Holdings. Upon that intention the name disclosed to the prospective lessee will not include the word 'Chase'. The third group of persons potentially misied, in the applicants' submission, constitutes those who spend time and money in preliminary negotiations with Chase Corporation before discovering the error of their belief that the company is associated with Chase Manhattan and withdrawing. The supposition that there will be such people depends entirely upon the existence of a common field of activity; which is lacking in this case. In any event the evidence establishes - as one would expect - that it is common practice for business people to establish at avery early stage of contact the precise identity of any organization with which they are dealing. There is in fact no evidence that, either in New Zealand or in Australia, any business person has entered into any discussions with Chase Corporation under the erroneous belief that it was a company associated with Chase Manhattan. 36. Possibility of adverse publicity Finally, the applicants point to the possibility that adverse publicity relating to Chase Corporation, whether or not deserved, will damage their reputation because of a mistaken association by members of the public of that company with them. Considerable evidence has been placed before the Court as to the importance to a bank of a high reputation, including evidence as to the link between reputation and credit rating. This was scarcely necessary; it is notorious that a bank is directly dependent upon its reputation for integrity, reliability and credit worthiness: see the comment of Whitford J. in Habib Bank Limited v. Habib Bank A.G. Zurich £19821 R.P.C. 1 at p.14. But this only goes to show that a bank is particularly vulnerable to damage occasioned by misleading or deceptive conduct which falsely represents a connection between it and some other person or organization. It does not make misleading or deceptive conduct which would not otherwise warrant that description. It is necessary, as always, to consider what group of people may be misled. When consideration is given to the relevant group the apprehension of damage from bad publicity must be restricted to Chase AMP. The dealings of the Chase Bank and C.M.0.C. with Australians are limited to substantial transactions in foreign currencies. It igs most unlikely that representatives of an Australian organization sufficiently large and 37. sophisticated to engage in such transactions would entertain the slightest confusion as to the position. In relation to Chase AMP the situation is different. That company is already dealing with numerous Australians and the number will increase. The relevant group is that part of the Australian community - who may in time represent a fair cross-section of the whole - who deal with Chase AMP. It is reasonable to suppose that not all of those people are, or will be, commercially sophisticated but it is also reasonable to assume that as both Chase AMP and Chase Corporation become better known in the Australian community it will become well known that they are two separate organizations. In this connection it is pertinent to observe that both Chase AMP and Chase Corporation have had considerable newspaper publicity in recent months. Chase AMP has attracted attention as one of the recipients of the new banking licences and has capitalised upon this by a massive advertising campaign in which it has featured its connection with Chase Manhattan. Chase Corporation attracted repeated attention in respect of its involvement in the trading of shares in Hooker Corporation; shares which it eventually sold at a substantial and well publicized profit. This publicity emphasized the New Zealand origin of Chase Corporation. In my view the process of public distinction between the two Chase groups is advancing rapidly. In the early days of the operations of the Chase group in New 38. Zealand questions were asked from time to time about a possible connection with Chase NBA; but the evidence indicates a that this ceased as the company became better known. There is no suggestion of any confusion in recent years. When Chase Corporation opened its office in Sydney in January 1984 there was some initial confusion, in relation to mail, telephone calls etc., but there is nothing to indicate any confusion at this stage notwithstanding that the company is located in the same building as is Chase AMP. It is interesting to note the evidence of Mr. L.P. Carr, a stockbroker who was concerned with the recent placement of Chase Corporation shares listed in Australia. He says that in the course of the placement, he spoke to about 100 people "from off the street" but only one person made any comment or inquiry suggesting uncertainty as to any connection with Chase Manhattan. It may, I think, reasonably be expected that any journalists who may be charged with the task of reporting any news or comments unfavourable to Chase Corporation will take some care to identify precisely the subject of their material. This is an everyday necessity for journalists and editors anxious to minimise defamation actions. There is always a possibility of confusion being caused by inept reporting but many banks share a first name with other organizations, for example 'National', 'Commonwealth', 'State', 'Macquarie', 'Advance'. Chase AMP is content to do so in respect of organizations other than the first 33. respondent. There is nothing to indicate that the theoretical possibility is greater in this case than in any other. It cannot, I think, be said that there exists a real - as distinct from a remote or fanciful - chance or possibility that any member of the public would be misled into associating with Chase AMP any adverse publicity which Chase Corporation may be unfortunate enough to incur. In my opinion it has not been demonstrated that the conduct of Chase Corporation, in embarking upon its activities in Australia, involves any misrepresentation to members of any relevant group in the Australian community as to its identity or connections or that the name is likely to mislead or deceive. The claim under s.52 fails. The ss.53 and 53A claims The claims made under ss. 53 and 53A depend upon the same conduct of the respondents as that relied upon in respect of s.52. As is conceded by counsel for the applicants, once the conclusion is reached that there has been no relevant misrepresentation those claims necessarily fail. In the circumstances of this case those claims represent no more than allegations of particular respects in which the respondents' conduct is said to be, or likely to be, misleading or deceptive. 40. Passing Off I turn to the passing off claim. In Erven Warnink Besloten Vennootschap v. J. Townend & Sons (Hull) Limited £19791 A.C. 731 Lord Diplock at p.742 identified "five characteristics which must be present in order to create a valid cause of action for passing off" namely ""(1) a misrepresentation, (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate customers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and (5) which causés actual damage to a business or goodwill of the trader by whom the action is brought or...will probably do so". The applicants have proved the existence of a commercial reputation within Australia together with sufficient market activity in the jurisdiction to establish a business goodwill entitled to protection. In the usual case the damage necessary to sustain an action for passing off is established by proof that the applicant and the respondents share a common field of activity, so that customers are likely to be diverted from the applicant to the respondent by the respondent's appropriation of the applicant's name and reputation. But damage may be constituted in other ways, for example by depriving the applicant of the opportunity of 41. exploiting its own reputation by endorsing products made by others - see Henderson v. Radio Corporation Pty Limited (1960) 60 S.R. (NSW) 576 at p.595 - or because the activities of the respondent are likely to damage the reputation of the applicant - see Scott v. Tuff-Kote (Australia) Pty Limited £1975] 1 N.S.W. L.R. 537 at p.543, Esanda Limited v. Esanda Limited (1983) 2 I.P.R. 182 at pp.188-189. But there must be a misrepresentation, in the sense of an assertion that the business or goods of the respondent are that of the applicant. There must be an appropriation by the respondent of a distinctive reputation in relation to a particular name or product which is vested exclusively in the applicant. A passing off action does not lie between parties who share a reputation: see Peter Isaacson Publications Pty Limited v. Nationwide News Pty Limited (1984) 56 A.L.R. 595 at p. 607. The natural assumption, in the case of a concocted name, is that both businesses emanate from the same source: see Esanda at p.188. There will not usually be such an assumption in the case of a name based upon a description of the nature of the business or the place where, or person by whom, it is conducted; cf. Hornsby Building Centre esp. per Stephen J. at p.230. Where a word is used which is neither concocted nor descriptive, the case will depend upon evidence as to whether, in all of the circumstances, the use of the relevant word is likely to convey to potential customers the misleading impression that the respondent's business or goods 42. is that of the applicant. The relevant question, in such a case, is identical with that which arises under s. 52 of the Trade Practices Act. Once it be concluded, as under that section, that the use by the first respondent of the name 'Chase' does not involve a representation that the business of the first respondent is that of any of the applicants, the claim in passing off must also fail. Orders In the result none of the grounds relied upon by the applicants succeed and the Application must be dismissed. The applicants must pay the costs of the respondents but these should not include the costs incurred by the respondents in relation to a subpoena issued by them for the production of certain documents by McKinsey & Co. Upon the return of this subpoena, on 6 December 1985, counsel appeared on behalf of McKinsey & Co. to produce the documents and to object to access being granted to those documents. In the case of some documents the objection was qualified. Counsel indicated that the documents related to work undertaken by his clients on behalf of the applicants in the principal proceedings and that, if they had no objection to access being granted to the respondents, neither did his clients. In the result, after inspection by the legal representatives of the applicants, by consent I granted access to the legal advisers of the respondents but none of the documents was tendered. In 43. relation to the other documents McKinsey & Co. argued that to grant access would be to expose to others material collected by that firm by dint of promises of confidentiality. I stood over the matter of access until I had read the affidavits, in order that I would be better informed of their importance, but, in the result, the respondents did not pursue the matter. Counsel for McKinsey & Co. sought an order against the respondents, as the parties issuing the subpoena, for the costs incurred by his clients in answering the subpoena. I made such an order pursuant to Part 27 r. 4A of the Federal Court Rules, reserving for later consideration the ultimate burden, as between the principal parties, of that order. I am now of the opinion that the respondents should bear those costes. Although they have been generally successful in the proceedings, they have not pursued the matter of access to, or tender of, these documents. It does not appear that any useful purpose was served by the subpoena to McKinsey & Co., so that it would be unfair to require the applicants to meet those costs. It is certified that this and the 9 preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Wilcox. Associate: £. lofi te Date: 24 December 1985 Counsel for the Applicants: Solicitors for the applicants: Counsel for the Respondents: Solicitors for the Respondents: Dates of Hearing: 44. Mr P.G. Hely QC and Mr J.D. Heydon Messrs Freehill Hollingdale and Page Mr B. Shaw QC and Mr S. Archer and Mr D. Catterns Messrs Allen Allen & Hemsley 9/12/85, 10/12/85, 11/12/85,12/12/85, 13/12/85,16/12/85