Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
PRACTICE AND PROCEDURE – APPEAL – application for stay of orders pending appeal Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65, applied AUSTRALIAN SURF LIFE SAVER PTY LTD v S AND I PUBLISHING PTY LTD NG 684 of 1998 MADGWICK J SYDNEY 24 AUGUST 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 684 of 1998
BETWEEN: AUSTRALIAN SURF LIFE SAVER PTY LTD
Applicant
AND: S AND I PUBLISHING PTY LTD
Respondent
JUDGE(S): MADGWICK
DATE OF ORDER: 24 AUGUST 1998
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The application is refused. 2. The applicant to the Notice of Motion is to pay the respondent's costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 684 of 1998
BETWEEN: AUSTRALIAN SURF LIFE SAVER PTY LTD
Applicant
AND: S AND I PUBLISHING PTY LTD
Respondent
JUDGE(S): MADGWICK
DATE: 24 AUGUST 1998
PLACE: SYDNEY
REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: In this matter the Court is asked to stay the orders made by Moore J on 20 August 1998 pending the determination of an appeal against those orders. The orders made by his Honour were that the respondent "be restrained from selling, offering for sale or distributing in Australia its publication, Triathalon and Multi Sport Magazine with a get-up of that title reproduced in the manner depicted in [an exhibit] tendered in the proceedings or in any substantially similar matter", and an order for costs. The applicant in the proceedings before his Honour had for some years produced a magazine called Sports Triathalon and, as might be expected, it had prominently featured the word "Triathalon" across the top of the front cover or mast head of the magazine. The respondent proposes to enter into competition against the applicant in relation to this field of sports publishing and its first issue featured the word "Triathalon" very prominently across the top of its masthead. His Honour was satisfied that the respondent's use of the word "Triathalon" in these circumstances amounted to misleading conduct and found that the applicant had otherwise made out grounds for injunctive relief under s 80 of the Trade Practices Act 1974 (Cth).
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