Australian Funerals Pty Ltd v Greater Brisbane Funerals

C A T C E W O R D S

TRADE PRACTICES - injunction - use of

telephone

number

~urisdlction - clalm

for

interlocutory

relief

- balance

convenience - record	required	to	be kept - registration of
business name.

T r a d e Practices Act.

s5.6(3,,

52 ,

53tc)

B u s i n e s s Names

Act,

1962 (Q)

ALLSTRALIAN	FUNERALS	PTP L%
V.

GREATER BRISC-NE FUNZWLS .and

ELLENJAY HOLDINGS P 3 LTD

QLD

G 8 6

1 9 8 5

I I

l	PIMCUS J. BRISBANE 23 SEPTEMBER 1985

IN THE FEDERAL COURT

OF AUSTRALIA

OUEENSLAND DISTRICT REGISTRY

)

QLD G86 of 1985

DIVISION

GENERAL

BETWEEN :

AUSTRALIAN FUNERALS PTY LTD

Applicant

AND:

GREATER BRISBF-NE FUNERALS and

ELLENJAY HOLDINGS

PTY LTD

Respondents

MINUTES OF ORDER

JUDGE PlAKING ORDER:	PIIJCUS J.
DATE OF ORDER:	20 SEPTEMBER 1985
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:	. .
' . l '

1. The

proceedings

amended

adding

Ellen~ay Holdlngs Pty Ltd	as	an
additional respondent.

The

order

for

amendment

may

sufficiently complied with

by including

the name

of the newly-joined respondent

in any further proceedlngs filed in chis

matter.

The costs of

the aFplication be costs in

the proceedings.

Nr)TE:

Settlement and entry of orders is dealt with

in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

)

)	QLD G86 of 1985

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

)

BETWEEN :

AUSTR9LIPJ FUNERALS

PTY LTD

Applicant

AND :

GRFATER BRISBAPJE FUNERALS and

ELLENJAl HOLDINGS

PTY LTD

Respondents

MINUTES OF ORDER

JUDGE MAKING

PINCUS

ORDER:

DATE OF ORDER:

23 SEPTEMBER l985

ERISEAJJE

WHERE MADE:

THE COURT ACCEPTED

TFrE FOLLGbJING UNDERTAKIfiJGS

The

respondents

upon

the

applicant's

glvlng

the

usual

undertaking

pag

damages undertake:-

That

upon

the

respondents

their

servants,

agents,

representatlves

answering a potential

business

call

during buslness

hours, the statement by

the

respondents

shall

"funeral

dlrectocs".

t-'

2 . Tnat upon any caller stating an mterest

in the conduct of

a funeral or cremation,

an inquiry

shall

made

during

the

course of

such call as to the source of

the telephone call, and

the respondents

shall

use

their

best

endeavours

deterinme

whether

not

the

inqulry

arose out of an entry, advertisement,

referral

business

ame

"Crematorium Chapel Funerals".

The respondents shall, until the trial

the action, make and keep two lists

(a) a list

funerals

conducted

subsequent to the

inqulry,

ascertaining in the affirmative that

the source of

the call was an entry,

advertisement,

referral

"Crematorium Chapel Funerals",

(b) a list of all

funerals

and

cremations

c ducted

the

respondents or any of their

associated businesses.

Settlement and entry

of orders is dealt with in Order

of the Federal Court Rules.

IN THE FEDERAL COURT OF ATJSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

)

)	QLD G86 of 1985

BETWEN:

AUSTRALIAN FUNERALS

PTY LTD

Applicant

AND :

GREa-TER BRISBANE FUNERALS and

ELLENJAY HOLDINGS

PTY LTD

Respondents

PINCUS J

20 SEPTEMBER 1985

, .'

REASOMS FOR JUDGIENT

The applicant applles for

an interlocutory ln~unction

restrain the respondent Greater Brlsbane Funerals,

a "firm"

constituted

by a single

indlvidual,

L.J.

Staunton,

from

engaging in conduct in breach

cjf

ss.52 and 53(c) of the Trade

Practlces Act.

The applicant says

- and it seems to me correct -

that the Court has jurisdlction under s.6(3) since the conduct

sought to be restrained involved the "use of postal, telegraphic

or telephonic services".

It follows that the provisions

on which

I _

I	.
r.

the applicant relies may be applied as if the reference in each

section "to a corporation included a reference to a person not

being a corporation": see s.6(3)(c).

l	i
i	i

2 .

By d written agreement dated

22 April 1985 the applicant

purchased a

funeral business from D.J .

Bishopp and others

(the

vendors)

including

the

business

name

"Crematorium

Chapel

Funerals".

The case for the applicant is that the respondent is

using that name in the telephone dlrectory and that, having

bought the right to use

ir; from the

vendors, that is, from Mr

Bishopp and others, it may restrain the respondent from using it.

An initial difficulty for the applicant, pointed out by

Mr Wllson, who appeared for the respondent, is that it does not

appear to be esta3lished that

the respondent is makinq any use

the name. On the evidence before me, the use complained of was

made by

a "firm" called Greater Brisbane Funeral Directors

(my

underlining) constituted by

a company, Ellenjay Holdlngs Pty Ltd,

in which

the

respondent,

Mr L.J. Staunton, 1 s interested.

However, were the case for

the

applicant otherwise made out,

there would,

it seems to me, be no rational objection to

amending the proceedings with a view to granting an injunction.

I therefore propose, for the moment, to consider the matter

s if

that

amendment had been made and,

for

simplicity, speak of

Greater Brlsbane Funeral Directors as if it

were the respondenc.

The application seeks relief in fairly wide terms, but

I	the specific complaint which brings the applicant to Court	for
i

interlocutory relief is of publication in the white pages of the

Brisbane telephone directory of

an entry in the following terms:-

CREMATORIUM CHAPEL FUNERALS

(NORTHSIDE) 501 ANN ..-....-.....-.	832 5668
(SOUTHSIDE) Pacific Hwy, Springwood	341 9133

In this entry, the address and telephone number shown adjacent to

the word “(Northside)

I‘

are those of the applicant, and the

address and telephone number adjacent to

the word ”(Southside)”

are those of the respondent.

i	L
r

established

that

under

the

kept

pursuance of the Business Names

Act 1962

(Q) as amended,

the

respondent is not registered in respect of the name in lssue,

Crematorium Chapel Funerals, and some

the vendors ace

s o

registered. The detailed provisions of that statute need not be

set

out.

It is enough

to say that

5.5 it

imposes a

prohibition on the carrying on of business in the State

1- ’

Queensland under a business name in circumstances

whlch here

apply, unless the name

is registered. Counsel for the applicant

argued that non-registration of a name would be some evidence of

lack of ownership of the name.

I note that

the effect

registratlon was dealt with by Gibbs

J.,

as he then was, in &

Johnson and Another: ex parte Greendale Enuineerins and Cables

I :.

Ptv Ltd (1967) 11 F.L.R. 335, especially on pp.341 and following.

It appears to me from that case and on general principles that

the proof of

a registration may ground an estoppel. It

is not

quite so clear what proof of non-registration shows, but, on the

whole, I am inclined to agree with the contention made that it is

some evidence of lack of right to the name.

Indeed, one could

go somewhat further here, because on

l	the case for the respondent it seems likely that	an offence was
!
I
I
I

committed in that it used the

name, although not registered. The

respondent, however, while not conceding that non-registration is

prima facie evldence of lack of rlght to use the name, says that

It is entitled to the use of the name for two reasons. Firstly,

lt says that

the name is the property of

a business formerly

carried on by the vendors and it.

Secondly, the respondent says

thar: it has acquired goodwlll under that name by using it in its

bushess for some years. As to the name having been used in a business carrled on by the vendors and the respondent, there is ample documentary evidence that the name was used jointly by

them; the preclse basis upon which

ir; was so used is noc clear

from the evidence so far adduced. It

1 s sald by Mr P.D. Bishopp

in an affidavit that one term of the agreement for use of the

name was that the vendors were entitled to determlne the use of

the name by the respondent, if "Crematorium Chapel Funerals"

commenced to service both the north side and south side

1 %

Brisbane, or if the business was sold to

a third party. That is,

I '

l	, C'
I

however,

denied

the

evidence

adduced

behalf

the

I I

5. 1:

respondent.

The closeness of

the connection between the vendors and

the respondent in the use of the name is exemplified by Exhibit

BFS7,

a letter written on

ietterhead which has at the top

“Crematorium Chapel Funerals”. Immediately under that on one

side there is to

be found the address of the vendors, and on the

r :

; I .

other side, the address of the respondent, followed in each case	, . k ,
I

by the appropriate phone number.

That document is signed, as it

seems to me, by

a Mr Simpson on behalf

of the vendors, is

addressed to the respondent, and says:-

“Please find enclosed copy

of accounts for your

perusal, togrether with account for

your share of

same.

I’

At the foot 1s a cable setting out expenditure made in connectlon

with the use of the name, and showing an equal division of that

espendlture.

addition

materlal

of the

sort I have

mentioned, other correspondence more recent

in origin tends to

support the general notion chat there is

a serious dlspuce as to

the present right to the name, and	I propose briefly to review
some of that.

I	.
!
l	-
1-

On 4 February 1985 the respondent wrote to

the vendors a

letter headed

"Re Crematorium Chapel Funerals". This recited

that the parties were using

an "Austas" telephone number and had

agreed

cancel

that

from

1 November 1984. The

letter

complained of the vendors "purporting to act solely on behalf of

'Crematorium Chapel Funerals'" and said that:-

"As ~oint

owners of the business named 'Crematorium

Chapel

Funerals'

anxiously

await

your

,	co-operation in finalising our present situation in relation to Austas."

It 1s said in an

affidavit made by Mr B.F. Staunton, at

par. 13, that there was

a conversation between Mr McEachern about

l '

the agreement between the respondent and the vendors, that the

business Crematorium Ccapel Funerals was a continuing one, that

the respondent had

an interest in the name, and

he intended

continuing to trade thereunder on the south side of the river.

Counsel for the

applicant said

that his instructions were that

the conversation sworn to did not take place, but mentioned that

he was in some difficulty because Mr McEachern

1 s

elsewhere

today, and the material filed

m behalf of the respondent came

very late.

It does not seem to me, however, that the paragraph

In question touches upon the essential point, which

1 s whether or

not the name in question is one In which

the

respondent has

rights.

The paragraph is merely swearlng to an assertion by Mr

B.F.	Staunton, consistent with the present case advanced on

behalf of the respondent, and there is other evidence of such

assertions.

April 1905, the day

of the agreement above

referred to, solicitors for the vendors wrote to the respondent	a
letter reading as follows:-

"Re Crematorium Chapel Funerals

Lie wish to advise that

we act for Mrs Cheryl

Bishopp and

Mr Peter Bishopp the registered owners

the

business

name

'Crematorium

Chapel

Funerals'.

You are

hereby advised that all arrangements which

our clients had with

you with regard to the

business name are hereby determined.

Accordingly you no longer have our clients'

consent to advertise under or in any way use

the

business name 'Crematorium Chapel Funerals'."

That letter was replied to by one written by solicitors on behalf

of the respondent, saylng that

it had been

a term of the

agreement between the partles that registratlon of

the business

name would be transferred to both of then. That letter made

various other complaints and threatened legal action.

the

same date, solicitors for the

respondent wrote to the Manager,

Yellow Pages Directories (Aust) Pty Limited about the matter,

referring to the

fact

that advertisements had been placed in the

yellow pages under the name "Crematorium Chapel

Funerals", and to

the fact that there was then

dispute between the parties

concerning the

right to use of the name.

On 2 May

1985, the

solicitors for the applicant wrote to the respondent complaining

of an

advertisement which appeared in the Courier-Mail on that

day, and referring to the lecter written by the vendors

on 22

April 1985, the day

the written agreement. On

2 May 1985,

8 .

further, solicitors for the vendors wrote to the solicitors for

the respondent, referring to

a letter of

1 May written by the

latter, and in effect joined issue on the contents of the letter.

I do not propose to set out the terms of this letter of

2 May

1985 written by the solicitors for the vendors. It is

unnecessary to do

so because the point to be made is the negative

one that there is no suggestion in that letter of the simple

answer put forward by

Mr Bishopp in his affidavit referred to

above, namely, that it

was

an express term of the agreement that

the arrangement between the parties could be terminated forthwith

on sale of the

busmess;

rather, the implication of the letter

was that the agreement was such that the vendors had no obligation to continue the arrangement.

There does not appear to have been any dlrect response

by the respondent, or

solicitors on its behalf, to

tine complaint

made by the solicitors for the applicant

of 2 May 1985. However,

not too much can be made of that, because it seems clear on the

material that the respondent has not resiled from its stance that

L .

it has a right in the name in issue, and any inference against

from Its non-response to the letter of

2 May is weakened by the

fact that on 13 August

1985 it

instituted proceedings in the

Supreme Court of Queensland against the vendors seeking relief in

respect of the

name

question,

including

injunction

restraining the use of that name by the vendors.

It has also, as

the material filed on behalf of the applicant shows, used the

name subsequently to	2 April 1985 in other ways which it	is
unnecessary to detail.

I am asked by counsel for the applicant, on the basis of

the decislon of the

Full Court in Epitoina Pty Ltd

v. Australasian

Meat Industry Employees' Union

(No. 2 )

54 A.L.R.

7 3 0 ,

to hold

that there should be an interlocutory Injunction if there is

serious question to be tried and the balance of convenience

favours such a grant. In view of the decision in the Epitoma

case, it

seems clear that the test of "serious questlon to be

tried" mentioned by counsel for the applicant

is he one I should

use, and indeed it seems currently to be used in the High Court.

Although I

hold that there is a

serious question to be

tried, I have not formed any clear impression from the papers as

to the likely outcome

of the dlspuce. The relationship between

the vendors and the respondent, which is at the heart of the

matter, seems to be rather a complex question, and the resolution

of it is likely to involve an examination of their conversations

and mutual dealings over a period of some years. It seems to me

rather odd that the vendors disposed of the name, or at least

purported to do so, when, on any n e w of the matter, there were

plainly unresolved issues beween them and the respondent as to

its use. On the other hand, there is no reason to think that the

applicant acted

other

than

perfect

good

faith

when

purchased on the assurnptlon that

had no concern with the

, .

rights of the respondent.

l :

10.

I :

However,

I fail to see any reason why it should

thought more convenient that, pending the ultimate determination

of this matter, the respondent should be restrained from making

its present use of the name. What counsel for the applicant

urged me to do as

a means of preserving the status quo was to

make	an order having the effect that calls responding to the

advertisement set out above should be intercepted or responded to

by a recorded message, with the purpose of discriminating between

those who wish to avail themselves of

the

services of the

applicant and the customers who wish

avail themselves of the

services of the respondent.

I am not willing to

that.

I do

not thlnk that the

preservation of the rights

of the parties pending

the flnal

resolution of the matter reasonably requires that course.

I note

that the evidence of Mr B.F. Staunton includes a statement that

he has kept a record of

the funerals conducted by the respondent

tradmg under the name in question between

the

months of March

1982 and. March

1985.

He does not say that he has kept a record

I	I	subsequently to that, and it appears likely that, pending	the
1
I

final resolution

of the matter, business wlll be obcained by the

respondent, taklng advantage of the advertisement which is the

crux of the applicant's complaint. What I propose to do, whecher

an undertaking or making

an order, is to require that the

respondent keep a separate record, pendente lite, not only

as to

dates and names of customers, but as to receipts, so that there

will be available

a list of funerals conducted by use of the name

and telephone number in the advertisement jn question.

I propose

to order that the costs be costs in the proceedings.

I invite counsel to make submisslons as to the precise form of order, if any is necessary.

order

tinat

the proceedings be amended by adding

Ellenjay Holdings Pty Ltd as an additional respondent.

I further order that

the order for amendment may be

sufficiently complied

with

by including the

name of the newly

joined respondent in any further proceedings filed in the matter.

2 3 September 1985:	The respondents now undertake:-	I -
i -

1. That upon the respondents or thelr servants,

agencs. or representatives answering a

I -

s .

potential business

call

during

business

hours, the statement

the

respondents

shall be "funeral directors".

2. That upon any caller stating an Interest in the conduct of a funeral or crematlon, an inquiry shall be made during the course of such call as to the source of the telephone call, and the respondents shall use their

best endeavours to determine whether or not

I .:

12.

the

inquiry

arose

out

entry,

advertisement, or referral of the business

name "Crematorium Chapel Funerals".

3. The respondents shall, until the trial of

the action, make

and keep two

lists -

(a)

a list of funerals conducted subsequent affirmative that the source of the Call

was an

entry,

advertisement,

referral

"Crematorium

Chapel

Funerals",

(b)	a list of all funerais and cremations conducted by the respondents oc any of their associated businesses.

[1985] FCA 504

23 Sep 1985