The South Australian Brewing Company Pty Ltd v Carlton & United Breweries Ltd [2001] FCA 712

FEDERAL COURT OF AUSTRALIA

The South Australian Brewing Company Pty Ltd v Carlton & United Breweries Ltd [2001] FCA 712 THE SOUTH AUSTRALIAN BREWING COMPANY PTY LTD v CARLTON & UNITED BREWERIES LTD S41 OF 2001 MANSFIELD J ADELAIDE 8 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S41 OF 2001

BETWEEN: THE SOUTH AUSTRALIAN BREWING COMPANY PTY LTD ACN 007 065 267

APPLICANT

AND: CARLTON & UNITED BREWERIES LIMITED

ACN 004 056 106

RESPONDENT

AND: CARLTON & UNITED BREWERIES LIMITED

ACN 004 056 106

CROSS CLAIMANT

AND: THE SOUTH AUSTRALIAN BREWING COMPANY PTY LTD ACN 007 065 267

CROSS-RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 8 JUNE 2001

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Until further order, that the respondent, by itself, its employees, servants, agents or otherwise, be restrained in trade or commerce from procuring or authorising the broadcasting of the television commercial, a video copy of which is Exhibit A8 on this application. 2. Until further order, that the respondent, by itself, its employees, servants, agents or otherwise, be restrained in trade or commerce in connection with the supply or the promotion of beer, from publishing, authorising the publication of or otherwise using any one or more of the photographs depicting: (a) Mark Ricciuto, captain of the Adelaide Crows team in his team uniform; and (b) Matthew Primus, captain of the Port Adelaide team in his team uniform, which are incorporated in the respondent's materials which are Exhibit KAR3 to the confidential affidavit of Katrina Angela Rathie sworn 6 June 2001 in these proceedings, or any substantially identical photographs or images. 3. Until further order, that the respondent, by itself, its employees, servants, agents or otherwise, be restrained in trade or commerce in connection with the supply or the promotion of beer from using photographs depicting Mark Ricciuto, captain of the Adelaide Crows team wearing his team uniform together with his signature and the "Adelaide Crows" logo, an example of which is incorporated in the respondent's materials which are Exhibit KAR3 to the confidential affidavit of Katrina Angela Rathie sworn 6 June 2001 in these proceedings, or any substantially identical photographs or images. 4. Until further order, that the respondent, by itself, its employees, servants, agents or otherwise, be restrained in trade or commerce in connection with the supply or the promotion of beer from using photographs depicting Matthew Primus, captain of the Port Adelaide team wearing his team uniform together with his signature and the "Port Adelaide" logo,an example of which is incorporated in the respondent's materials which are Exhibit KAR3 to the confidential affidavit of Katrina Angela Rathie sworn 6 June 2001 in these proceedings, or any substantially identical photographs or images. 5. The Court directs that the respondent shall sufficiently comply with paragraphs 2 to 4 hereof by : (a) forthwith ceasing to dispatch packaged beer which is packaged in any of the promotional material referred to in paragraphs 2 to 4 hereof; (b) giving to the retailers to which it has supplied any such promotional material, as soon as practicable, a written request that they forthwith cease to display any such promotional material (other than as comprised on the packaging of packaged beer); (c) further complying with such further directions and orders as the Court may make at 4.30 pm on 12 June 2001 or thereafter. 6. Until further order, that the respondent, by itself, its employees, servants, agents or otherwise from 12.00 noon central standard time on 12 June 2001 be restrained in trade or commerce in connection with the supply or the promotion of beer from authorising the playing to members of the public or otherwise using the messages recorded by Mark Ricciuto, captain of the Adelaide Crows and Matthew Primus, captain of the Port Adelaide team on the recorded telephone message which is heard when consumers dial 1300 132 186, the transcript for which is Annexure "O" to the confidential affidavit of Katrina Angela Rathie sworn 6 June 2001 in these proceedings. 7. The question of further orders to be made to ensure the respondent's compliance with paragraphs 2 to 4 hereof be adjourned until 4.30 pm 12 June 2001. 8. Costs of the application for interlocutory relief be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.