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. 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: 27 JULY 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT Introduction 1 Prior to 3 July 2000, firms of solicitors operating separately in Melbourne ("the Melbourne partnership"), Sydney ("the Sydney partnership"), Brisbane ("the Brisbane partnership"), Canberra ("the Canberra partnership"), Adelaide ("the Adelaide partnership") and Perth ("the Perth partnership") conducted their legal practices using the registered business name "Barker Gosling", the group name "the Barker Gosling Group" and the Barker Gosling logo, which contained the words "Barker Gosling Lawyers". 2 The conduct by the partnerships of their practices as part of the Barker Gosling group evolved under the terms of five agreements. The first agreement, dated 3 April 1987, established an initial association between the Sydney partnership (which had formerly carried on practice as "Priddle Gosling") and the Melbourne partnership (which had formerly carried on practice as "Barker Harty & Co"). The two partnerships adopted, and thereafter carried on their separate practices under, the business name "Barker Gosling". The second agreement, dated 15 September 1988, admitted the Brisbane partnership (which carried on practice under the name "Conwell Kirby and Lilley") into the Barker Gosling group. The third agreement, dated 22 December 1989, admitted the Perth partnership (which carried on practice under the name "Dowling & Dowling") into the Barker Gosling group. The fourth agreement, dated 18 October 1990, admitted the Canberra partnership, (which carried on practice under the name "Crossin Power Haslem") into the Barker Gosling group. The fifth agreement ("the Barker Gosling group agreement"), with which the present litigation is concerned, was made on 1 July 1991, inter alia, for the purpose of admitting the Adelaide partnership (which carried on practice under the name "Andersons Solicitors") into the Barker Gosling group. 3 Since 1 July 1991 the partnerships in each State or Territory continued to carry on their separate practices, as members of the Barker Gosling group, pursuant to the terms of the Barker Gosling group agreement. 4 The dispute the subject of the present proceeding arose as a result of the withdrawal of the Melbourne partnership from the Barker Gosling group as from on or about 3 July 2000. It is common ground that the withdrawal resulted in the termination, under the Barker Gosling group agreement, of the Melbourne partnership's membership of the Barker Gosling group. 5 As from 3 July 2000, or shortly thereafter, the Melbourne partnership merged with the partnership and legal practice of "Tress Cocks and Maddox", which has offices in Sydney and Brisbane. After the merger the "Tress Cocks and Maddox" letterhead, in addition to stating "Tress Cocks and Maddox", used the Barker Gosling logo containing the words "Barker Gosling Lawyers". The letterhead also stated: "Incorporating Barker Gosling Melbourne" 6 The applicants commenced a proceeding in the Court against the Melbourne partnership and against the firm, Tress Cocks and Maddox, claiming injunctions restraining them from using the business name "Barker Gosling", the group name "the Barker Gosling Group" and from using or reproducing the Barker Gosling logo. 7 The respondents gave permanent undertakings to the Court not to use the Barker Gosling logo in any manner whatsoever and not to represent, in any manner whatsoever, that they are part of the Barker Gosling group of legal practitioners. A further undertaking was given that, until further order, the respondents would restrict their use of the name "Barker Gosling" in connection with their practice to using the words "Incorporating the former Melbourne practice of Barker Gosling". 8 The parties remained in dispute as to the entitlement (if any) of the applicants and the respondents to use the business name "Barker Gosling". The applicants contend that the use by the respondents of the name "Barker Gosling" for the purposes of conducting their legal practice is, inter alia, a breach of the obligations of the Melbourne partnership under the Barker Gosling group agreement, and also constitutes passing off and a breach of s 52 of the Trade Practices Act 1974 (Cth) ("the TPA"). The respondents contend that the Melbourne partnership is entitled, under the Barker Gosling group agreement, to the sole and exclusive use of the business name "Barker Gosling", and that any use of that business name in the State of Victoria by any of the applicants, or by any other members of the Barker Gosling group, constitutes passing off and a breach s 52 of the TPA. 9 Initially, the applicants brought an urgent application for interlocutory relief. After the respondents gave the undertakings referred to above I ordered that the matter come on for an early final hearing in relation to the contractual issues about which the parties were in dispute. Those issues related to the entitlement conferred on a retiring partnership to revert to its "former name". In the present context, the dispute in respect of the Melbourne partnership related to whether its former name was "Barker Gosling" (its name at the time of the Barker Gosling group agreement) or Barker Harty & Co (its name prior to the formation of "Barker Gosling"). 10 The contractual issues proceeded to a final hearing on the basis that the Court determine, as preliminary questions, the following questions: "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. (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. (c) of preventing the Respondents or any of them from carrying on a legal practice in Victoria under the name of Barker Gosling?; (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?" The Barker Gosling group agreement 11 The Barker Gosling group agreement contains recitals which refer to and explain the evolution of the group as described above. Significantly, the recitals state that the Sydney partnership is carrying on and conducting practice "under the name or style Barker Gosling (formerly Priddle Gosling)" and the Melbourne partnership is carrying on and conducting practice "under the manner or style "Barker Gosling" (formerly "Barker Harty & Co)". Although the recitals refer to the other partnerships they do not refer to their former names. However, elsewhere in the agreement the original names of those partnerships appear as, to some extent, the partnerships were entitled to continue to carry on practice under those names, as well as by reference to their membership of the Barker Gosling group, such as by use of the Barker Gosling logo (see cl 3 and cl 18). Thus, those partnerships were permitted to continue to use their current partnership names, although the plain purpose of the Barker Gosling group agreement was that, in due course, all members of the group were to be identified as such by using, inter alia, the "Barker Gosling" business name, the group name and the group logo. 12 The recitals conclude that the parties have agreed to form an association, subject to the terms and conditions of the agreement, "…for certain limited purposes of and incidental to carrying on and conducting the Sydney, Melbourne, Brisbane, Perth, Canberra and Adelaide Practices for their mutual benefit and development and for the benefit of their clients." 13 Clause 1 of the agreement contains, inter alia, the following definitions: "1.1 Commencement Date means the 1st day of July 1991. 1.2 'Group Name' means 'the Barker Gosling Group'. … 1.5 'Registered Name' means the name or style 'Barker Gosling'." 14 Clause 3 provides that the parties have entered into an association for the purpose of enabling the Melbourne, Sydney, Brisbane, Perth, Canberra and Adelaide practices conducted by the respective partnerships "each to be conducted under the Registered Name" 15 The proviso to cl 3 provided for the Perth, Canberra and Adelaide practices, for specified periods, to continue to be conducted under their current firm names. Each practice was also required to retain registration of the "Registered Name" under the Business Names Act operative in the respective State or Territory. Clause 3, which provided for the various practices to continue in association until terminated in accordance with cl 12, stated that each of the partnerships was: "to use and promote the Group Name in the conduct of its Practice" 16 Clause 4 provided: "Subject to Clause 12.4 hereof the whole of the beneficial entitlement to the use of the Registered Name and the Group Name in and from Victoria shall be vested in the Melbourne Partnership, the whole of the beneficial entitlement to the use of the Registered Name and the Group Name in and from New South Wales shall be vested in the Sydney Partnership, the whole of the beneficial entitlement to the use of the Registered Name and the Group Name in and from Queensland shall be vested in the Brisbane Partnership and the whole of the beneficial entitlement to the use of the Group Name in and from Western Australia shall be vested in the Perth Partnership and the whole of the beneficial entitlement of the use of the Group Name in and from the Australian Capital Territory shall be vested in the Canberra Partnership and the whole of the beneficial entitlement to the use of the Group Name in and from South Australia shall be vested in the Adelaide Partnership but only when the Brisbane, Perth, Canberra and Adelaide Partnerships use the Registered Name in whole or in part as the name of those respective Partnerships." 17 Clause 5 provided for the autonomy of each of the partnerships and, in particular, for each of the partnerships to own its own business and assets, including, but not limited to, the goodwill of that practice. 18 Clauses 6 and 7 provided for the Melbourne and Sydney partnerships to conduct their practices "under the Registered Name in conjunction with the Group Name from the Commencement Date." 19 Clauses 8 to 11 made provision for the other partnerships to conduct their practices under their current firm names "in conjunction with the Group Name". 20 Thus, although it is clear that each of the practices was to be entitled, and in a number of instances obliged, to use the group name and the business name in the course of conducting its practice, and was entitled to the goodwill in respect of those names, that entitlement was subject to cl 12.4. 21 Clause 12 provided for termination. It is common ground between the parties that the termination in respect of the Melbourne partnership, for the purposes of cl 12, occurred on or prior to 3 July 2000. The critical clause, for the purposes of the resolution of the present dispute, is cl 12.4 which provides as follows: "12.4 Upon the termination of any Partnership from Membership of the Group, at any time for any reason the Registered Name and the Group Name may not be used by the retiring partnership and the retiring partnership shall then have the sole and exclusive right to use its respective former name in any of the States or Territories of Australia and shall not be otherwise restricted in carrying on its practice in any such State or Territory." 22 The parties are primarily in dispute over the meaning of the words "its respective former name". The applicants contend that the former name in respect of the Melbourne partnership is the name that it used prior to entering into association with the Sydney partnership under the first agreement. Under that agreement, both partnerships agreed to carry on their respective practices under the common name "Barker Gosling". Prior to that occurring, the name of the Melbourne partnership was that referred to in the recital, namely, "Barker Harty & Co". Thus, the applicants contend that cl 12.4 operates to prohibit the Melbourne partnership from using the business name and the group name after the termination. Rather, the Melbourne partnership, as the retiring partnership, is to have the sole and exclusive right to use its former name, being "Barker Harty & Co", throughout Australia in carrying on its practice. 23 The respondents contend that the former name of the Melbourne partnership was that under which it had conducted its business prior to the Barker Gosling group agreement being entered into on 1 July 1991, namely, "Barker Gosling". On that construction it is contended that cl 12.4 only prohibits the Melbourne partnership from using the name "the Barker Gosling Group", and entitles it to have the sole and exclusive right to use its former name, being "Barker Gosling", in carrying on its practice in the State of Victoria. Before turning to consider the competing contentions, it is necessary to make brief reference to a number of other clauses in the Barker Gosling group agreement. 24 Clause 14 sets out the ultimate object of the agreement as being a merger of all six practices. The clause provides for the parties to negotiate in good faith with the view to establishing that merger. 25 Clause 15 provides for each of the practices to endeavour to refer matters and case work to the other practices when it is in the interests of the clients to do so. Thus, under the agreement each practice is to carry on business as an independent practice, but there is to be cooperation in the conduct of the respective businesses in the meantime with the view to an ultimate merger. 26 Clause 18 makes provision for the letterheads to be used by the various practices. The clause entitles the State and Territory practices, other than those conducted by the Melbourne and Sydney partnerships, to use their current firm names in conjunction with the Barker Gosling Group logo for the periods set out in the clause. 27 Clause 24 provides for fiduciary obligations to be owed by the parties and for them to "afford every assistance in their power in carrying on the Group for the mutual advantage of all Parties." 28 Finally, cll 32 to 35 provide that the Barker Gosling group agreement operates in variation, and to the exclusion of, the terms of the first, second, third and fourth agreements, save for rights that have accrued to the parties under those agreements in respect of the periods during which the agreements were operative. The proper construction of Clause 12.4 29 Notwithstanding the extensive submissions made by the parties concerning the construction of cl 12.4, save for one aspect, I have not found the clause difficult to construe. Although the task of the Court is to give effect to the plain and ordinary meaning of the words used, it does so with the object of giving effect to the intention of the parties to the contract, which is to be ascertained objectively: see Codelfa Construction Pty Ltd v State Rail Authorities of NSW (1982) 149 CLR 337 at 346-352 per Mason J. 30 Clause 12.4 provides that, on termination, the retiring partnership is not to use the "Registered Name", being Barker Gosling, and the "Group Name", being "the Barker Gosling Group". The terms "Registered Name" and the "Group Name" are defined terms in cl 1 and are clearly intended to have their defined meaning in cl 12.4. It follows that on the plain and ordinary meaning of the words in cl 12.4 the retiring partnership is prohibited from using those names. 31 It is of no avail to the retiring partnership to refer to other clauses in the agreement that make it quite clear that the assets and goodwill of the various partnerships, including the goodwill attached to the Barker Gosling names used by them, were individually and beneficially owned by those partnerships. The clauses dealing with those matters are subject to, and limited by, the prohibition in cl 12.4 restricting the use of those names upon termination. 32 The second aspect of cl 12.4 is its conferral of the sole and exclusive right to use the retiring partnership's "former name" upon the partnership terminating its membership of the group. The conferral of that right makes it quite clear that the prohibition on the use of the names "Barker Gosling" and "the Barker Gosling Group", after termination, is not to be taken to restrict in any manner whatsoever the right of the retiring partnership to revert to its former name. 33 Construing cl 12.4 in context, and having regard to the matrix of facts in which it is to operate (which appear plainly enough from the Barker Gosling group agreement) in my view the reference to the respective former names of any retiring partnership is a reference to the name the partnership used before adopting the "Barker Gosling" name or the "Barker Gosling Group" name or, put another way, before it became a member firm of Barker Gosling. The former name, in the sense of the pre "Barker Gosling" name, of the Melbourne and Sydney partnerships is specifically referred to and set out in the recitals as "Barker Harty & Co" and "Priddle Gosling". While it may not be strictly accurate to refer to the current names of the other partnerships as their "respective former names" the only sensible meaning that can be ascribed to those words in respect of those firms is that they refer to the firm names being the names used by those partnerships prior to their adoption of the "Barker Gosling" name or the "Barker Gosling Group" name or, put another way, before they became member firms of Barker Gosling. 34 However, counsel for the respondents contended against this construction of "former name" on the basis that it would not make sense as many of the practices in the other states had continued to use their current firm names. There are two explanations as to why the current firm names of those other partnerships may have been taken by the person drafting cl 12.4 to be their "former" names. The first is that the clause was not expected to operate as at the commencement date but, rather, was plainly expected to operate at some uncertain date in the future when there was a termination of the group membership of any partnership. Thus, it was to be expected that, by that time, it was likely that all of the partnerships had for the most part moved to use the business name and the group name, rather than their current firm name. It is therefore not surprising that, in that context, the current firm name was intended to be referred to as the former name. Further, the agreement provided for each of those partnerships to use the Barker Gosling names or logo in conjunction with their current name. Therefore, it may not be strictly accurate to say that their current name was the firm name for those partnerships. In the context of cl 12.4 it may be more accurate to say that the current name was the current firm name together with the Barker Gosling name and that the former name was only the firm name used prior to the firm's membership of Barker Gosling. When cl 12.4 is construed in that manner, it is clear that the parties intended that the respective former names for each of the partnerships be the name used by that partnership prior to that partnership becoming a member of "Barker Gosling". 35 The above construction, which gives effect to the plain and ordinary meaning of the words used, also accords with the intention of the parties, expressed in the Barker Gosling group agreement, to form a national group and to thereby attract national goodwill to "Barker Gosling" and "the Barker Gosling Group". Plainly, the attraction of national goodwill was a primary objective of the group, and one of the means selected to secure it was the requirement that the partnerships use the business name, or the group name, as well as the logo. It would be quite inconsistent with that purpose for the national goodwill, which was to be acquired for the benefit of all of the partnerships as members of the group (albeit that it was to be individually owned pending a merger), to pass to, and be able to be utilised by, a retiring partnership, in order, inter alia, to compete with the group. 36 I am confirmed in my view of the construction of cl 12.4 by the fact that the sole and exclusive right, conferred in the second part of cl 12.4, to use the "former name" is able to be exercised in any of the States or Territories of Australia. The fact that the sole and exclusive right to use the former name is not restricted to the State in which it was formerly used is significant. It would be extraordinary, in my view, to read the clause as containing a prohibition against the use of the Barker Gosling name by the retiring partnership, but then for the same clause to be construed as conferring the sole and exclusive right on the retiring partnership to use that name throughout Australia. 37 The respondents contended that their right to sole and exclusive use of the "Barker Gosling" name was to be restricted to the State of Victoria, but that is not what cl 12.4 provides. There is no basis, in my view, to read the words down so that, by implication, they only extend to the area in which the retiring partnership previously carried on its practice. It is plain that the partnerships, whilst primarily conducting their practices in a particular State or Territory, may nevertheless carry on some aspects of their respective practices in other States or Territories. This is particularly the case where matters in which the partnerships may be involved relate to the exercise of federal jurisdiction. 38 I do not accept the respondent's contention that, as the broader entitlement may result in passing off or s 52 (of the TPA) problems, this affords a ground for re-writing the clause so that it limits the sole and exclusive right to Victoria, in the case of the Melbourne partnership. As the present case demonstrates, use of the "Barker Gosling" name by any partnership after its retirement from the group would inevitably raise passing off or s 52 issues. In any event, the respondents' passing off and s 52 argument, if accepted, affords a further reason for interpreting the clause so that it confers no right on the retiring partnership to use the Barker Gosling name after its retirement. 39 The construction of cl 12.4 which I favour ensures that the clause not only gives effect to the intention of the parties, but does so in an entirely reasonable manner. Only a retiring partnership is likely to be interested in reverting to, and utilising, its former name, and, if it does so, there should be no reason why it should be restricted in the exercise of that right to any particular area in Australia. Further, the conferral of that right ensures that, as against the other partnerships, there can be no argument about a retiring partnership's right to revert to its former name. Thus, the Melbourne partnership, upon retiring, would be entitled to revert to use of the name "Barker" as part of "Barker Harty & Co" and the Sydney partnership, upon retiring, would be entitled to revert to use of the name "Gosling" as part of "Priddle Gosling". If that right were not secured, as it is by cl 12.4, it may have been contended by the continuing partnerships that a reversion to those former names was not permitted. 40 There is only one aspect of cl 12.4 which I have found troubling, namely that a literal construction of the first part of cl 12.4 may prohibit "use" the registered name and the group name by the retiring partnership in any manner whatsoever. Thus, on a literal construction, the mere statement by the retiring partnership that it had once formed part of the Barker Gosling group would be a true statement of fact but, nevertheless, could constitute a breach of the clause. Likewise, relying on a literal construction, it may be contended that the use of the registered name for the purpose of collecting debts due and owing to the retiring partnership as at the date of the termination, could constitute a breach of cl 12.4. 41 I have concluded that such a literal construction was not intended. Rather, the prohibition against "use" in cl 12.4 is a prohibition of use of the registered name or the group name as the name under which, or by reference to which, the retiring partnership is carrying on or conducting its practice. Thus, the prohibition is against any express or implied use of those names as names under which, or by reference to which, the retiring partnership is carrying on or conducting its practice in any State or Territory. 42 The reasons for my conclusion can be briefly stated. The legal entitlement conferred under the Barker Gosling group agreement in respect of the "Barker Gosling" names is an entitlement to conduct or carry on a practice under, or by reference to, those names (cl 3). Thus, where clauses in the agreement refer to an entitlement to use the registered name (cl 4) or to use the logo (cl 18) it is clear that such entitlements relate, essentially, to use of those names as names under which, or by reference to which, a partnership is carrying on its practice. Similarly, in cl 12.4 the reference to a prohibition on the use of the registered name and the group name, to which the retiring partnership was otherwise beneficially entitled under cl 4, is to be construed as a reference to the use of the name as a name under which, or by reference to which, a partnership carries on or conducts its practice. The clauses to which I have referred suggest that "use", when used in cl 12.4, was to have the same meaning. Consequently, the clause was not intended to restrict use of the names by the retiring partnership of the "Barker Gosling" name in a manner that does not expressly, or by implication, represent that the partnership is carrying on or conducting business or practice under, or by reference to, those names. Finally, a literal construction would have arbitrary, capricious and unreasonable consequences which would not accord with the intent of the parties. 43 The other major matter on which the parties were in dispute related to whether the use of the words "incorporating the former Melbourne practice of Barker Gosling" on the "Tress Cocks and Maddox" letterhead breached cl 12.4. In my view, the use of those words in that manner does breach cl 12.4 because the words implicitly represent that the former Melbourne practice of Barker Gosling is continuing to carry on its previous practice, but is doing so as part of the merged firm of "Tress Cocks Maddox". In representing that the former Melbourne practice at Barker Gosling is continuing to practice as part of the merged group the respondents are using the "Barker Gosling name" as a name, albeit indirectly, by reference to which the retiring partnership is carrying on practice. The breach, although indirect, is nonetheless a breach of the clause because it is not a mere statement of historical fact; rather it is a use which refers to the "Barker Gosling" name as a name which identifies the partnership currently carrying on practice. Therefore, it is a name, inter alia, under, or by reference to which, the partnership is now conducting or carrying on practice. The fact that the name is being used to show that the Melbourne practice is being incorporated into "Tress Cocks & Maddox" does not mean that the use has ceased. Rather, it demonstrates that the use is continuing. 44 Finally, one submission of counsel for the respondents should not pass without mention. It was submitted that the Court should not construe cl 12.4 too strictly or in a manner that necessarily achieves consistency within the Barker Gosling group agreement as "inconsistencies are to be found elsewhere" in the agreement. Implicit in the submission is the unattractive suggestion that the Court should not construe an agreement prepared by an association of national law firms and signed by 51 of their partners on the basis that the parties did not say what they meant to say, and did not mean to say what they said. Needless to say, for the reasons set out above, I do not accept the submission. Conclusion 45 It follows from the foregoing that I am of the view that the respondents are prevented from conducting practice, directly or indirectly, under or by reference to the "Barker Gosling" business name or "the Barker Gosling Group" name and that there is no restriction, under the agreement, on the applicants carrying on practice or conducting business under or by reference to those names anywhere in Australia. I have answered the questions the subject of the hearing accordingly. 46 As there was a dispute as to the extent of the prohibition imposed on the respondents by cl 12.4 it is appropriate to answer question (d), which was raised by the respondents. Further, as the applicants have succeeded on the issues argued at the hearing it is appropriate that they receive their costs. 47 In the circumstances, it is appropriate that I answer the questions and direct that the parties bring in minutes of orders to give effect to my reasons for judgment in relation to the contractual matters in dispute, so as to enable final orders to be made in respect of those matters. 48 Finally, I wish to emphasise that these reasons for judgment have dealt only with the contractual issues and have not sought, directly or indirectly, to deal with any issues relating to passing off or s 52 of the TPA. Those issues, if they are to be pursued, will have to be the subject of further directions. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 27 July 2000 Counsel for the Applicant: Mr RC Macaw QC with Mr MA Robins Solicitor for the Applicant: Nathan Kuperholz Counsel for the Respondent: Mr RA Brett QC Solicitor for the Respondent: Tress Cocks & Maddox Date of Hearing: 18 July 2000 Date of Judgment: 27 July 2000