Barker Gosling Group Pty Ltd v Lilley [2000] FCA 999

FEDERAL COURT OF AUSTRALIA

Barker Gosling Group Pty Ltd v Lilley [2000] FCA 999 CONTRACT – construction – whether restraint on future "use" of a national firm name by a State partnership retiring from the firm should be restricted to use as a name under or by reference to which the firm carries on or conducts its legal practice Codelfa Construction Pty Ltd v State Rail Authorities of NSW (1982) 149 CLR 337 - cited THE BARKER GOSLING GROUP PTY LTD v BRUCE ROSS LILLEY & ORS V 487 of 2000 JUDGE: MERKEL J PLACE: MELBOURNE DATE: 27 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 487 OF 2000

BETWEEN: THE BARKER GOSLING GROUP PTY LTD

(ACN 052 007 226)

FIRST APPLICANT

BARKER GOSLING

(a firm operating in Sydney and the State of New South Wales)

SECOND APPLICANT

BARKER GOSLING

(a firm operating in Brisbane and the State of Queensland)

THIRD APPLICANT

BARKER GOSLING

(a firm operating in Canberra and the Australian Capital Territory)

FOURTH APPLICANT

AND: BRUCE ROSS LILLEY

FIRST RESPONDENT

JOHN MacDONALD SPEIRS McKELL

SECOND RESPONDENT

TRESS COCKS AND MADDOX (a firm)

THIRD RESPONDENT

BRUCE GEOFFREY ADAMS

FOURTH RESPONDENT

MICHAEL JACOBS

FIFTH RESPONDENT

MICHAEL JOHN LEFEBVRE

SIXTH RESPONDENT

HOWARD HILTON CHAIT

SEVENETH RESPONDENT

BARRY JOSEPHS

EIGHTH RESPONDENT JUDGE: MERKEL J

DATE OF ORDER: 27 JULY 2000

WHERE MADE: MELBOURNE

1. The preliminary questions set out hereunder are answered by the Court as follows: Upon the termination, which has occurred, of the Melbourne Partnership from Membership of the Group referred to in clause 12.4 of the Agreement dated 1 July 1991, does the Agreement have the effect – (a) Of preventing the first and second respondents from using the expression 'incorporating the former Melbourne practice of Barker Gosling' to refer to their legal practice. Answer - Yes (b) Of preventing the applicants from carrying on legal practice in Victoria under or by reference to the names: (i) the Barker Gosling Group; (ii) Barker Gosling. Answer - No (c) Of preventing the Respondents or any of them from carrying on a legal practice in Victoria under the name of Barker Gosling? Answer - Yes (d) Of preventing the Respondents or any of them from using the name Barker Gosling for the purpose and in the course of winding up the partnership between the first, second and third to seventh Respondents and Michael Taussig and Debra Cherrie including collecting debts owing to that partnership? Answer – The respondents may use the name "Barker Gosling" for the purpose of collecting partnership debts due and owing and for any other purpose related to the winding up of the partnership, provided that such use does not expressly, or impliedly, represent that the partnership, or any of the members thereof, are continuing to carry on, or conduct practice under, or by reference to, the name "Barker Gosling". 2. Within 7 days the parties file Minutes of any further orders, including orders as to costs, that are appropriate to give effect to these reasons for judgment. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.