2-7, IN THE FEDERAL COURT NOT INTENDED FOR GENERAL DISTRIBUTION OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WAG 73 of 1987 BETWEEN: LAUREN MARKS First Applicant and WEEKLY ADVERTISER NEWSPAPERS PTY LTD Second Applicant and COMMUNITY NEWSPAPERS (1985) PTY LTD Respondent CORAHN: FRENCH J. 20 JULY 1987 EX _TEMPORE REASONS FOR JUDGMENT This is a claim for urgent ex parte interlocutory relief endorsed on a substantive application brought under s.80 of the Trade Practices Act 1974 and filed today. The affidavit which supports the application and the claim for interlocutory relief, discloses that the first applicant is employed as the features editor with a newspaper company known as Weekly Advertiser Newspapers Pty Ltd, which is the second applicant. She has been so employed since 11 May 1987. Prior to that time, according to her affidavit, she worked as what is called the Pacesetters editor for the respondent, Community Newspapers (1985) Pty Ltd. FEDERAL coy, AUSTRALIA PPIrcip, REGISTRY RT OF a T 7 Tt we On Sp te epe yer ea ae 74 ae nt ee rere ge ee ee -aweo ewe 2. It seems from the first applicant's affidavit that on 14 July 1987 the Wanneroo Times, which 1s owned by the respondent, published a two page section under the hearing Pacesetters, using the applicant's byline, Lauren Marks. What is meant by "using her byline" appears from an exhibit showing a portion of the Pacesetters page in the Wanneroo Times of 14 July 1985. Against the heading "Pacesetters" are printed the words "edited by Lauren Marks". In other words, the use of the first applicant's "byline" involves a use of her name and a statement that the page of the newspaper on which it appears has been edited by her; notwithstanding that her employment with the respondent ceased on 11 May. If that allegation is ultimately made good, then there would be prima facie a case made out for a contravention of s.52 of the Trade Practices Act. The affidavit seems to proceed on the assumption that what is in issue is a right of the first applicant to the exclusive use of her name and some infringement of that right on the part of the respondent, as though her name were a registered trademark. It is apparent, however, from the application and from the way in which it has been put by counsel in this claim for interlocutory relief, that what is in truth relied upon is a contravention of s.52 of the Trade Practices Act. : PY ry eee TS TT tare vy ~ wer We mee me esses a ae ey A 3. An incorrect statement that a features page had bcen edited by somebody who is no longer in the employ of the relevant newspaper would or could constitute misleading or deceptive conduct or conduct likely to mislead or deceive in trade or commerce. The matter comes on before me on an ex parte basis and If am informed that the urgency of it arises because the respondent is preparing to publish the next edition of the Wanneroo Times within 24 hours. Indeed, I am informed by counsel that the next print run 1s scheduled for tonight. The matter has come on at short notice and it appears that the applicants were not aware until late this morning that they would be able to bring their application on before the Court this afternoon. I have been informed by counsel that a letter was sent shortly after 1.00 o'clock by facsimile transmission to the respondent advising 1t of the fact of this application. In the circumstances, I am of the opinion that there is a serious question raised on the material before me and that the balance of convenience so far as the first applicant is concerned appears to favour her. For 1f her name is tec be used in the next print run of the Wanneroo Times, then on the material before me, that would constitute a fairly blatant and obvious contravention of s.52. 4. Although there would be some inconvenience to the respondent in the necessary alteration of the print run so far as the inclusion of the first applicant's name is concerned, that inconvenience 1s outweighed, in my opinion, by her interest and the public interest. I stress that these observations are provisional in the sense that they are made on the basis of the necessarily limited and somewhat scanty material before me. They are made in the context of an application which 1s brought as a matter of considerable urgency. The inconvenience to the respondent is mitigated by the preparedness of the second applicant to give an undertaking in the usual form to the Court, and in the circumstances I will be prepared to make the order sought. It will, of course, be open to the respondent to apply at short notice to vary or dissolve the order that I propose to make, and the applicants will be directed to serve on the respondent copies of the order and of all other material filed so far. Counsel for the applicants has prepared a minute and I propose to make orders in accordance with the minute, with the insertion of particular times that seem appropriate for the duration of the interlocutory injunction and service of the order and supportng materials. I will sign the minute and place it on the file, and a copy of that can be taken and used for the purposes of effecting service, if necessary, on the respondent. rae _-—— 5. The order I make is in the following terms: That upon the second applicant making the undertaking set out in the minute:- 1. The respondent be restrained and an injunction is hereby granted restraining it, whether by itself, its officers, servants, agents or otherwise, until 9.30 on Monday, 27 July 1987, from publishing and/or distributing any newspaper, article or comment under the byline Lauren Marks. Not later than 7 pm on 20 July 1987, the second applicant do serve on the respondent copies of this order and of the affidavit and exhibits filed in support of the application. The respondent have liberty to apply on 24 hours notice to the second applicant to dissolve or vary this injunction. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of his Honour Mr Justice French. . Associate: Wats Date: QO Sethe \G87. Counsel for the Applicants: Mr P. Bates Solicitors for the Applicants: Messrs. Claudio Russo Shaw Date of Hearing: 20 July 1987 Date of Judgment: 20 July 1987 a Se ee ee ee WrIment se es pot wh ase ree eee