FEDERAL COURT OF AUSTRALIA Bligh Voller Nield Pty Ltd v Hok Sport Pty Ltd [2000] FCA 1219 Bligh Voller Nield Pty Ltd v Hok Sport Pty Ltd N933 OF 2000 EINFELD J 29 AUGUST 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N933 OF 2000 BETWEEN: BLIGH VOLLER NIELD PTY LIMITED (ACN 010 724 339) Applicant AND: HOK SPORT PTY LIMITED (ACN 072 891 993) Respondent JUDGE: EINFELD J DATE: 29 AUGUST 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant, Bligh Voller Nield Pty Limited, has filed an application and statement of claim seeking a variety of relief which is effectively aimed at preventing the distribution of a brochure produced by the respondent, Hok Sport Pty Ltd, and other statements alleging that the respondent was the designing architect of Stadium Australia. 2 Leave to serve short notice of an application for interlocutory relief having earlier been granted by Justice Conti, the matter comes into the list today on an application by the applicant for an urgent interlocutory injunction preventing the further circulation of the brochure and the other representations. 3 The applicant relies upon evidence that the designer and architect of Stadium Australia was a joint venture company between the applicant and an earlier incarnation of the respondent which apparently precedes its present status. 4 A form of the brochure has been shown to me. It is obviously an expensive publication. Such evidence as there is suggests that the brochure has been in existence for more than a year and has presumably been in circulation all that time. Moreover, there is evidence before the Court that the respondent in one or other of its incarnations has been promoting itself as the designer of Stadium Australia since at least June 1999. 5 In the brochure itself the statement is made: Stadium Australia has been designed by Hok + Lobb, the world's first global sports leisure and entertainment design practice based in Brisbane, Kansas City and London. 6 In a document which the applicant says it proposes to distribute to relevant people visiting Sydney for the upcoming Olympic Games, subject to consent being granted by the relevant authority, the applicant proposes to advertise itself as: A leading Australian architecture practice widely acknowledged for the ability to combine business acumen and design excellence. It stands apart as unique for having a role in every stage of preparation for the Sydney 2000 Olympic Games. 7 As regards Stadium Australia, no particular statement is made about the design of Stadium Australia but the President of the International Olympic Committee is quoted in the document as saying that: Stadium Australia is the most impressive stadium I have seen in my life and further I think the stadium will really honour the Olympic Games in the year 2000. 8 It is reassuring to have such eminent endorsement. There are pictures of aspects of Stadium Australia in the brochure. The inference sought to be drawn no doubt is that the applicant, if not the actual designer, was, as a footnote states, one of the partners in the design. In particular the brochure states in fine print that Stadium Australia was designed by: Bligh and Lobbs Sports Architecture, a joint venture between Bligh Voller Nield and Lobb Partnership. 9 The applicant's case therefore is that the statement that the respondent designed or was the architect of Stadium Australia is false and misleading and that the brochure should be amended to state much as is set out in the applicant's proposed document to which I have just referred. The respondent asks for an adjournment of the hearing for two days for directions. It concedes that thereafter an urgent hearing is not unreasonable so that the matter can be resolved so as to enable the applicant to promote itself to relevant visitors to Sydney for the Olympic Games in a way that does not leave it open to suggestions that it is either telling untruths about or, at best, exaggerating its involvement in the design of Stadium Australia. The ground for the adjournment is that although the respondent has an office in Brisbane and some instructions are obtained from there, it is now merged with or part of a large United States conglomerate where important decisions about its legal position must be taken, and that it has not been possible to obtain full instructions from the US in the available time. An explanation is given of the delay in this application coming to the attention of the solicitor who is handling the matter notwithstanding the best efforts of Justice Conti when giving leave to serve short notice. The applicant does not in substance oppose the adjournment but seeks the interlocutory injunction for the two day break. 10 The matter is finely balanced. The first question for determination is whether there is an arguable case for injunctive relief and I must say that I think the matter is not at all certain. It may well be the case that two people who participate in the design of something as large as Stadium Australia can each claim to have been either its designer or at least one of its designers and it is not entirely clear to me that the failure to state that it was a member of a joint venture which was the contracted architect necessarily makes the claim misleading or deceptive. It is nonetheless the case that the words used in the proposed brochure of the applicant are a preferable presentation of the facts. 11 On the other hand, one of the places where the respondent is alleged to have misrepresented the position was in its website which was first seen by the applicant to be using this singular claim to architectural responsibility in December last year. Subsequently the offending item was apparently removed from the web page and something else substituted. Although I have not seen either form of the website, the change could amount to an admission that the original form was misleading. 12 The second question is the balance of convenience which is a generic term used to enable all the circumstances to be considered. Some of these circumstances include that there seems to have been an extraordinary amount of delay in bringing these proceedings notwithstanding their alleged importance now. The evidence of the applicant itself establishes that statements to the alleged offending effect came to its attention first in June last year, again in November and December and then several times subsequently. In June 2000 there was an international conference of architects in Sydney which included a guided tour of Stadium Australia where a representative of the respondent was seen to be handing out a brochure. The applicant says that it was not able to obtain a copy of it until 11 August but I find that explanation a little extraordinary in the circumstances, albeit not cross-examined on or developed. Having regard to the history of the misrepresentations, it is hardly likely that the respondent would be handing out a brochure at Stadium Australia without making the assertions that it had allegedly made several times previously. Yet on the evidence nothing particularly was done to obtain a copy of the brochure. In fact the applicant claims that it was not aware of its existence prior to that distribution and did not become aware of its contents until one and a half months later. 13 Another factor which needs to be taken into account in relation to the interlocutory injunction between now and Thursday is the unlikelihood that it can be made to be effective, at least effective for the purpose which is now sought. The applicant expresses concern, and I understand this concern well, that with the Games imminent, if the respondent's brochure is distributed to people coming from other cities who are bidding or may bid for an Olympic Games in the future, they will be taken in by the respondent's assertion and reject or at least diminish any involvement of the applicant. 14 This situation would obviously have a potentially damaging effect on the possibility that the applicant might itself be able to participate in the design of Olympic or other major international sporting venues in other countries in future years. On the other hand, having regard to the wide distribution of this representation that has already taken place, it would seem likely that such bidding cities and their respective regulatory and participatory authorities will have seen one or other of the assertions of the respondent in the more than a year that they have been abroad. It is difficult to see how this is likely to be worsened between Tuesday and Thursday. 15 The Games are still 18 days away and the arrival in Australia of people who are going to be interested in these sorts of matters is unlikely to be particularly great in the next 48 hours. Another factor is that because the respondent is based largely in the United States, by the time matters of this kind are distributed and action is taken, there will necessarily be some delay. To my mind, it is more important, from the standpoint of the final resolution of these proceedings, that as much attention as possible be given by the respondent to facing the case proper, and I am unattracted by the idea that time and effort should be diverted to attempting to restrict a distribution which is unlikely to be great in the next 48 hours, and away from the preparation of a proper and comprehensive response to the application itself. 16 I am therefore prepared to grant the adjournment, though not for directions, and refuse the interlocutory injunction. What I propose to do is to stand the whole matter over to Thursday, including the application for interlocutory relief that has been sought today. Then, depending on the evidence and circumstances presented, I will allow the application for interlocutory relief to be reagitated. In that period of time, I expect the respondent to provide reliable evidence of the number of brochures that have already been distributed and to whom, the number that are still in circulation which have not yet been distributed, and the plans to distribute it and other statements of a similar kind in the near future, particularly in the lead up to and during the Olympic Games in Sydney. This evidence will enable the Court to determine the urgency of the whole suit and in particular the extent of any interlocutory relief that should be granted. 17 The applicant itself will need to tighten up its case. I have been told in an affidavit that the applicant has participated in the design of a stadium or a sporting facility in Wellington, New Zealand, but I have only been told from the bar table that it is interested in expanding its interests outside the South Pacific region, in particular to possible future cities hosting the Olympic Games or proposing new sporting facilities. This evidence from the bar table will need to be put into appropriate form because it should be assumed at present that an interlocutory injunction on Thursday will be opposed. 18 There may be a need for cross-examination of appropriate witnesses. Accordingly, that matter, together with any other matters which the applicant may be advised need to be attended to, should be done before Thursday in order to enable an affidavit or affidavits to be filed which embody the whole of the case for the relief sought. Notice should be given of any witnesses needed for cross-examination. 19 I make only this final observation. I have not had exhibited to me what the new form of the respondent's website states as to the architecture and design of Stadium Australia, but if the facts are not disputed as may be the case, it is clear that there is a way of dealing with this issue which would meet the reasonable requirements of the applicant and avoid the need for contested litigation, especially so close to the commencement of the Games. The publicity of litigation is itself unlikely to be helpful to either side. 20 I commend that course to the respondent and urge the parties to seek a satisfactory congenial resolution to a matter which does not appear to be disputed in fact. Only such an outcome will avoid delays and inconveniences associated with the need for a fully contested piece of litigation in the next 12 working days. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO. Associate: Dated: 29 August 2000 Counsel for the Applicant: Mr C.R. Newlinds Solicitor for the Applicant: Michell Sillar Counsel for the Respondent: Mr S.A. Kerr Solicitor for the Respondent: Corrs Chambers Westgarth Date of Hearing: 29 August 2000 Date of Judgment: 29 August 2000