o NOT FOR DISTRIBU IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) ) GENERAL DIVISION CORAM: PLACE: DATE: BETWEEN: TION No. NSW G.22 of 19387 STEPHEN ROBERT STRANGE on behalf of the SURF AND: LIFE SAVING ASSOCIATION OF AUSTRALIA, SYDNEY BRANCH First Applicant SYDNEY SLSA HELICOPTER RESCUE SERVICE PTY LIMITED Second Applicant CAREFLIGHT LIMITED First Respondent PETER MacCORMICK Second Respondent PETRONELLA RYAN WILCOX J SYDNEY 28 JANUARY 1987 MINUTES OF ORDER Third Respondent Upon the Applicants giving the usual undertakings as to damages THE COURT ORDERS THAT: Note: The first respondent its servants and agents and the second and third respondents be restrained pending further order of this Court from: {a) seeking sponsorship of; or (b) taking any steps to advertise or otherwise to promote to members of the public any footrace or other race event in New South Wales under or in association with the names "Bridge to Breakers" and/or "Harbour to Manly". Any party 1s granted liberty to apply on forty-eight (48) hours' notice for vacation or variation of this order. Costs of this application shall be costs in the principal proceedings. Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NOT FOR DISTRIBUTION NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION CORAM: PLACE: DATE: WILCOX J SYDNEY 28 JANUARY 1987 BETWEEN : AND: No. NSW G.22 of 1987 STEPHEN ROBERT STRANGE on behalf of the SURF LIFE SAVING ASSOCIATION OF AUSTRALIA, SYDNEY BRANCH First Applicant SYDNEY SLSA HELICOPTER RESCUE SERVICE PTY LIMITED Second Applicant CAREFLIGHT LIMITED First Respondent PETER MacCORMICK Second Respondent PETRONELLA RYAN Third Respondent EXTEMPORE REASONS FOR JUDGMENT I indicated yesterday that a final hearing of this matter could be arranged to commence on Thursday, 12 February, that is to say two weeks tomorrow. The present application 1s concerned only with what order, 1£ any, should be made until the completion of the final hearing. On behalf of the applicants Mr Yates seeks orders in accordance with paras.1, 2 and 3 of the Application; Mr Ireland submits that there ought to be no order at all. This being an application for an interlocutory injunction two matters are relevant for consideration. The first of these 1s whether there 1s a serious question to be tried in relation to the allegations of deceptive or misleading conduct made by the applicants against the first respondent, Careflight Limited, and in relation to which 1t 1s alleged that the second and third respondents, Mr Peter MacCormick and Miss Petronella Ryan, have been knowingly concerned. The evidence indicates that fun runs have been staged in each of the years 1981 to 1986 inclusive, other than the year 1982, being runs from the Harbour Bridge at Milsons Point to Manly Beach. It appears that Mr MacCormick originally conceived this event whilst he was a volunteer associated with the Helicopter Rescue Service operated on behalf of the Surf Life Saving Association and that he was substantially the organizer of the initial run in 1981. The Association provided volunteers to assist on that occasion and the profits from the run went to the Helicopter Rescue Service. After Mr MacCormick became the director of the Helicopter Rescue Service in 1982 he decided to reinstate the event and from 1983 to 1985 inclusive he, 1n conjunction with Miss Ryan, organized the event on behalf of the Helicopter Rescue Service. After Mr MacCormick left the employment of the Helicopter Rescue Service in early 1986 the run was staged by others on behalf of the Helicopter Rescue Service. The name used in relation to all years other than 1986 was "Bridge to Breakers". In 1986, because of a dispute between the Assoclation and Mr MacCormick as to entitlement to use that name, there was substituted the name "Harbour to Manly". However, 1t 1S a common feature, in relation to all years, that the advertising material which was put out to the public stated that proceeds went to the Surf Life Saving Helicopter Rescue Service and in fact, according to Mr MacCormick, this 1s what happened to the money; save for some assistance given to the Shelly Beach Power Boat Unit, which 1s associated with the Surf Life Saving Association. The case sought to be made by the applicants 1s that this history has generated in the minds of the public an association between the names "Bridge to Breakers" and, more latterly, "Harbour to Manly" with the work performed on behalf of the community by the Helicopter Rescue Service and, less directly, with the Surf Life Saving Association. As Mr Ireland submitted, the issue for trial 1s whether having regard to the history of the matter the use of the name "Bridge to Breakers" -- as is proposed by his clients for a Similar run intended to be organized on behalf of a different charity for 30 August next -- would constitute misleading or deceptive conduct. Mr Ireland concedes that there 1s a substantial issue for trial on that matter. Having regard to the fact that a final hearing will take place fairly shortly, and that the evidence at that time may be different from that at the present time, I refrain from expressing any view about the matter other than to say that I think the concession is properly made and that there 1s a strongly arguable case that under the circumstances the use by the respondents of either of the names "Bridge to Breakers" or "Harbour to Manly" would be misleading. I emphasize that this 1S a tentative view and that 1t may require reconsideration in the light of any further evidence which may be adduced. Looking at the material which has been put out over the years, 1t seems that sponsorship has become increasingly Significant and no doubt this reflects, as well as partly causes, the increased turnout from year to year. The evidence of Mr MacCormick 1s that he has still one sponsor to be obtained. I infer from this that he already has made some arrangements, whether firm or tentative I do not know, with some sponsors but that he is presently actively seeking one more sponsor to make up what he regards as being the appropriate complement. There is evidence that an approach was made by Miss Ryan to Singapore Airlines, seeking sponsorship, by the use of a letter 1n which it was stated that the event was a continuation of events formerly staged by Careflight Limited. This representation was, I think, clearly incorrect. There may be a good explanation for the form of the letter; and I bear in mind that Miss Ryan has not been served with the Application and has not been represented before me, so I forbear from making any comment. However, I think that the letter does emphasise the danger of an approach to a sponsor at a time when the entitlement of the organization making the approach is under challenge. It seems to me to be more than speculation to say, 1f sponsors are approached by one party and information 1s put before them which turns out to be misleading, that this may generate a disinclination to have anything to do with any party staging a similar event. I think it would be most undesirable for any sponsor to be approached upon the basis that there 1s an entitlement to use the names "Bridge to Breakers" or "Harbour to Manly" until such time as the position 1s clarified. I bear in mind that 1t 1s not as 1f there 1S some critical date for selecting sponsors. There 1s no suggestion that a temporary prohibition, if 1t turns out to be that, on the respondents' approaching sponsors would be prejudicial to their chances of staging their event 1f£ they are held enticled so to do. The other aspect of the matter is the advertising or promotion of the event to members of the public. There 1s no evidence to suggest that there are active plans to promote the event to the members of the public within the next few weeks. But 1t 1s likely that some time before the event there will be promotional material put out; and it would be undesirable for material to be put out using a name which the Court might hold ultimately to be misleading under the circumstances. Once again there 1s no suggestion that any temporary prohibition on promotion of the event is likely to adversely affect the success of the proposed run on 30 August, 1f the respondents are held entitled to stage the event under the proposed name at that time. In my view the balance of convenience indicates that a limited injunction should be made. I emphasise the word "limited" because the injunction I think to be appropriate is more restrictive than the wider orders sought by the applicants in the Application. Those orders may or may not turn out to be justified after the final hearing; but not at the present time. I note that counsel, on behalf of the applicants, gives the usual undertaking as to damages. Having regard to that undertaking I order that the first respondent, 1ts servants and agents, and each of the second and third respondents be restrained pending the further order of this Court from (a) seeking sponsorship of; or (b) taking any steps to advertise or otherwise to promote to members of the public any footrace or other race event in New South Wales in or in association with the names "Bridge to Breakers" and/or "Harbour to Manly". I grant liberty to any party to apply on 48 hours' notice for a vacation or variation of that order. I think the appropriate order for costs 1S as Mr Ireland submits. The position is that the applicants have obtained an order in narrower terms than that for which they contended. On the other hand the respondents did offer an undertaking which was intended to obviate the necessity for an interlocutory hearing. In my view that undertaking did not go far enough. I think it 1s true to say that the result this morning 1S that I have come to a view on the appropriate order which lies midway between the two proposals. This morning has really been concerned with the question of what is the appropriate order so that although the applicants have obtained an order it 1S probably true to say that both parties have had some limited success. Under those circumstances, I think that the appropriate order is that the costs of this application be costs in the principal proceedings. I will fix the final hearing to commence on 12 February 1987 at 11.00 a.m. I direct that the final hearing be on the basis of affidavit evidence subject to cross-examination as required, and I make directions for filing of affidavits in accordance with the timetable agreed by counsel and just announced. I grant leave to the parties to issue subpoenae made returnable at 9.30 a.m. on 10 February 1987 1f so desired. I certify this and the seven (7) preceding pages to be a true copy of the Reasons for Judgment of his Honour Mr Justice Wilcox. —_—" wee € Associate: —y "eegaebicl—- . aw " " ~ it Date: 5 February 1987 Counsel for the Applicant: Mr DM Yates Solicitors for the Applicant: Minter Simpson Counsel for the Respondent: Mr J M Ireland Solicitors for the Respondent: Gadens Date of hearing: 28 January 1987