Berrigan, Peter v Central Coast Leagues Club Ltd

[1981] FCA 172

Re: PETER BERRIGAN
And: CENTRAL COAST LEAGUES CLUB LIMITED
No. G57 of 1981
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.

CATCHWORDS

Trade Practices - former Australian Junior Welterweight Champion announces retirement from ring - applicant subsequently recognised as champion by Australian Boxing Federation - whether Australian Boxing Federation a body determinative of boxing champions and boxers' ratings in Australia - respondent advertised forthcoming bout between former champion and another as Australian Junior Welterweight title and describing the former champion as the current titleholder - whether such advertising misleading or deceptive under s. 52.

Trade Practices Act (Cth.) 1974 s. 52

HEARING

SYDNEY

#DATE 26:5:1981

ORDER

1. The respondent, Central Coast Leagues Club Limited, by itself, its servants and agents be restrained from holding or further promoting a boxing match presently scheduled to be held at Gosford on Wednesday, 27 May 1981, unless the respondent causes an announcement to be made to all persons attending the said boxing match in the following terms:

"This match has been wrongly advertised as the Australian Junior Welterweight Title. The Australian Boxing Federation recognises Peter Berrigan as the Australian Junior Welterweight Champion. He is not participating and was not invited to participate in this boxing match."

2. The respondent by itself, its servants and agents be restrained from advertising, promoting or describing the fight to be conducted at its premises on Wednesday, 27 May 1981, between Jeff Malcolm and Dave Sarago as an Australian Junior Welterweight Title Fight or as a fight in respect of the Australian Junior Welterweight Championship or referring to Jeff Malcolm as the Australian Champion or title holder.

3. The respondent pay the applicant's costs of this application including any reserved costs.

JUDGE1

HIS HONOUR: It is now 5.00 p.m.; but I propose to give my decision immediately, though I realise that in so doing I may not deal with the matter as concisely as I would like.

The case concerns an event that is to take place tomorrow evening in the Central Coast; and I think the parties should know now where they stand.

Peter Berrigan ("the applicant") is a professional boxer in the Junior Welterweight division, that is, having a weight in the range, 9 stone 10 pounds to 10 stone. He claims to be recognized by the Australian Boxing Federation ("the Federation") as the Junior Welterweight Chapion of Australia. He seeks to restrain the Central Coast Leagues Club Limited ("the respondent"), pursuant to s. 52 of the Trade Practices Act 1974, ("the Act") from advertising, promoting, describing or conducting a fight to be conducted at its premises commencing at 8.o'clock tomorrow evening between Jeff Malcolm and Dave Sarago as the Australian Junior Welterweight Championship or referring to Jeff Malcolm as the Australian Champion or Titleholder.

The applicant also seeks an inquiry as to damages under s.82 of the Act; but that is not pressed.

A newspaper, "The Gosford Star", published on Wednesday, 20 May 1981, advertised the forthcoming fight in terms which, so far as relevant, are as follows:-

"Grand Boxing Night, Wednesday May 27th, 8 p.m., Australian Junior Welterweight Title. Jeff Malcolm, current titleholder, ex-Commonwealth title, versus Dave Sarago, number one contender."

It is common ground that this application is for final rather than interlocutory relief, in view of the fact that the application is to restrain the respondent from engaging in the conduct I have referred to, relevant only to the fight to take place tomorrow night. To talk of this application today as being an application for interlocutory relief would be wrong.

I am satisfied that the applicant is, in fact, recognised by the Federation as the Junior Welterweight Champion of Australia. Indeed, that is not seriously in issue.

The title was acquired by the applicant in the following way. Before the relevant events, Jeffrey Malcolm was recognized by the Federation as the Australian Junior Welterweight Champion. I need not set out the history of the fights he has fought which led to his being recognized by the Federation as the Champion. It is plain that he is an experienced and able fighter who successfully defended his Australian title on at least six occasions against various challengers.

On 8 February 1981, Mr. Malcolm fought David Sarago in a non-title fight in the welterweight division, that is up to 10 stone 7 pounds, at the Hordern Pavilion in Sydney. The fight was to be of 10 two minute rounds, and in the last round Mr. Malcolm was knocked down on more than one occasion and the referee stopped the fight. I am satisfied that in boxing terms in Australia this is classed as a "knockout". Sometimes it is called a "technical knockout" or "T.K.O.".

After the fight - indeed, a few minutes only after the conclusion of the fight - Mr. Malcolm announced from the centre ring that he had always said, if he was ever knocked out, he would retire from boxing, and that he was retiring. There is no dispute on the evidence that Mr. Malcolm said this on that occasion from the centre ring, though there is some conflict of evidence as to his condition at the time he said it.

Evidence has been given by a Mr. Menadue, the New South Wales secretary of the Federation - he being present at the fight - to the effect that Mr. Malcolm did not appear to be in a condition which prevented him from fully appreciating what he said.

On the other hand, there is evidence from a Mr. Hall, who is the agent for the respondent in relation to the staging of tomorrow's boxing match, and who is obviously a man experienced in the boxing profession. Mr. Hall, who was also present at the Hordern Pavilion on the night of that fight, says that Mr. Malcolm was distressed and appeared to him to be semi-conscious when the fight was stopped and his opponent declared the winner. It was then that Mr. Malcolm announced he was retiring. Mr. Hall says boxers often do this, and soom afterwards change their minds.

The significance of the question whether Mr. Malcolm did in fact announce his retirement arises from the provisions of certain of the rules and regulations governing boxing contests issued by or under the auspices of the Federation. I should say at this stage that the Federation is an unincorporated body, the principal objects of which include the control and regulation of professional boxing in Australia and the encouragement of professional boxing in Australia, and the promotion and safeguarding of the interests of Australian and professional boxers throughout the world. Under the heading, "Rules relating to Championships", Rule 5 provides that a champion will be deprived of his title if he announces his retirement. There are four other circumstances that may lead to the same result, none of which is relevant here except perhaps as an aid to the construction of Rule 5.

On the evidence there is no doubt, indeed it is not disputed, that Mr. Malcolm did in fact announce his retirement shortly after the conclusion of the boxing match on 8 February last. I have some doubt as to the relevance of the question of his actual physical or mental condition at the time of the announcement; but I am not satisfied that Mr. Malcolm's condition was such that he did not fully appreciate what he said on that occasion. Although this may to some extent involve a conflict of evidence between Mr. Menadue and Mr. Hall because of the different impressions each says he formed as to the condition of Mr. Malcolm, and without dealing with the question of the relevance of the evidence, I prefer to accept the evidence of Mr. Menadue. Indeed, it is not suggested that Mr. Malcolm later sought to withdraw his announcement that he had retired. There is evidence that on a subsequent occasion, about the middle of March he in effect reiterated to Mr. Menadue that he had in truth then retired. I do not rely upon that evidence in forming any conclusion that I have reached in this case.

After the fight, on 9 February 1981 Mr. Bentley, who is the trainer and manager of the applicant, wrote a letter to the Federation which, so far as material, said:

"On 8 February 1981 at the Hordern Pavilion, Australian Junior Welter Weight Champion, Jeff Malcolm, publicly announced his retirement as a boxer from centre ring, thus leaving that title vacant.

On 17 February I have matched at the Cardiff and District Workers' Club a bout between Peter Berrigan and Graham Bell for the Australian Junior Welter weight Championship. Therefore, in view of the announcement by Jeff Malcolm that he has now retired from boxing, I formally request the Board of management of the Australian Boxing Federation to give recognition to the Peter Berrigan Graham Bell bout as being for the vacant Junior Welterweight title, taking into consideration that both of these boxers are leading contenders for that title."

There is no doubt that the respondent proposes to hold the fight tomorrow evening between Mr. Malcolm and Mr. Sarago.

I am satisfied on the evidence that the respondent is a corporation within the meaning of s. 52 of the Act. No submission has been made to the contrary, nor has it been submitted that the respondent is otherwise than a trading or financial corporation formed within the limits of the Commonwealth of Australia.

The recognition by the Federation of the applicant as the Junior Welterweight Champion of Australia has found expression in what are called Australian Boxing Ratings published in the Australian Boxing News, which is published periodically in Australia.

The Australian Boxing News is published by a Mr. Les Gibbons, a member of the Ratings Committee of the Federation. The publication circulates throughout Australia and a number of overseas countries.

The Ratings Committee comprises Mr. Gibbons, a Mr. Jim Young and a Mr. Ted Anderson, and the ratings published in the Australian Boxing News are those of the Federation.

Page 32 of the April 1981 publication states, under the heading "Junior Welterweight, ten stone no pounds" that the champion is Peter Berrigan. There is a footnote at the conclusion of the ratings on that page in these terms:-

"Andy Broome claims to be the Australian Junior Welterweight Champ by his win over Preston."

That is a reference to a fight which took place on 25 March between those two fighters.

There is some evidence from Mr. Menadue as to why the note appeared at the foot of the ratings. However, it seems to me that his evidence was perhaps in the realm of speculation though no doubt, bona fide, but I do not propose to pay any regard to it.

It has been submitted by counsel for the respondent that the footnote is some indication of the fact that there is some doubt in boxing circles as to whether Mr. Berrigan is, in fact, the Junior Welterweight Champion, even recognised by the Federation as such, and that the doubt arises from the circumstances surrounding the occasion when Mr. Malcolm announced that he was retiring after the fight on 8 February last.

In my opinion, the footnote is of no ultimate relevance to any question I have to decide. I shall make that observation a little clearer in a moment.

The respondent has sought to establish as part of its case that the Federation is but a voluntary association of persons interested in boxing and the promotion of boxing throughout Australia; that it does not have official status to regulate boxing; that it is merely a collection of men interested in boxing, who, as a self-appointed body, purport to exercise some regulatory power in relation to some aspects of boxing. No doubt, in a sense, that is true; but like a number of sports - indeed, a number of other activities in Australia and other countries - there are bodies that have no official status or statutory or other authoritative base but who do, in fact, play a role in the regulation of a particular sport or activity. There is no doubt on the evidence that the Federation plays such a role in the case of boxing in Australia. Whether it has official status or not, in truth it is a body which has existed for quite a few years, at least 12 years, and is I am satisfied on the evidence - although it is a little meagre - generally recognised throughout Australia by those interested in boxing as a body which determines who are the Australian and State boxing champions and the ratings of boxers in Australia. The fact that it may have a non-legislative base for its purpose does not matter.

There is evidence tendered by counsel for the respondent of a publication called "The Australian Fighter". It is a magazine which was published on at least one occasion, namely in the Australian spring of 1980, and it appears to have no authoritative backing from the Federation, but is produced by some private publisher. It contains on pages 46 and 47 what are described as ratings in Australia which are relevant to boxing as at 7 August 1980, and it does have ratings as to the Junior Welterweight category of 10 stone, which I take to be 10 stone maximum, and describes Mr. Malcolm as the champion - as, indeed, he then was on any view of the matter. The ratings appear to have been compiled by a Mr. Ray Mitchell in collaboration with Mr. Don Marks and Mr. Les Gibbons. I assume the Mr. Gibbons referred to is the same Mr. Gibbons who is one of the three members of the Ratings Committee of the Federation. There is no direct evidence of this, but I will make that assumption.

I am not entirely sure what the ratings are in The Australian Fighter. So far as I can tell on the evidence, they are merely ratings that these three gentlemen (Messrs. Mitchell, Marks and Gibbons) have compiled for the purposes of the publication itself and not otherwise. I do not think the existence of that document derogates in any way from the fact that it is the Federation that is generally recognised as the body which determines who are the champions and their respective ratings for the purposes of boxing in Australia.

There was reference, although somewhat obliquely, in the evidence to a company called Stadiums Limited, which at some stage in the past was very active in the promotion of boxing in Australia. From my recollection of the evidence - and I say this without the aid of transcript - it may indeed still play some role in that regard. There is no evidence that it currently produces or, indeed, at any relevant time has produced, ratings as such or declares or has declared persons to be champions.

I am satisfied that it is the Federation that has general recognition throughout this country as the body which determines who our boxing champions are and their respective ratings as boxers, and I am not satisfied that any other body exists that is so recognised and performs the same function.

The advertisement inserted in "The Gosford Star" on 20 May 1981 describing tomorrow's fight as "Australian Junior Welterweight Title, Jeff Malcolm, Current Titleholder", is one which, in my opinion, would be misleading or deceptive under s. 52 of the Act. Although there is no direct evidence of anyone who has been misled or deceived or is likely to be misled or deceived it is, of course, as has been pointed out in a number of cases, including a number of decisions of this Court, a matter ultimately for the Court itself to determine.

In my view, persons interested in boxing, upon seeing the advertisement in the form in which it appeared, would think that Mr. Malcolm is the person currently recognised by the Federation as the Australian Junior Welterweight Champion and that tomorrow's match is a match by him as champion against Mr. Sarago as the number one contender.

Although Mr. Malcolm may have had, for all I know, some second thoughts as to his announcement about retirement (I emphasise there is no direct evidence of this) and may feel in some way he still ought to be recognised by the Federation as the current champion, the fact is that on the findings I have made he is not recognised by the Federation in that capacity, although plainly he was for quite a long time past.

In the circumstances, I have reached the conclusion that the fight to be held tomorrow is one that is being held pursuant to a misleading or deceptive advertisement or one that is likely to mislead or deceive. I do not suggest for a moment that it is intentionally misleading or deceptive on the part of the respondent. There has been no submission to that effect and I make no findings on it one way or the other.

In my view, the applicant is entitled to the injunction that he seeks, together with an additional order in the circumstances that an appropriate announcement be made before the commencement of tomorrow's fight as to what the true facts are. I will say something about that in a moment.

Before I leave the case, I should say I am satisfied on the evidence that, if the fight advertised to be held tomorrow night is permitted to proceed as an Australian championship, it would have harmful effects upon the applicant's position and earning capacity for a number of reasons. There could be confusion in the "club circuit", as it is called, where boxing is substantially carried on in New South Wales. Also, the existence of someone other than himself claiming to be the Australian Junior Welterweight Champion could cause confusion in other parts of Australia than the Central Coast and, indeed, perhaps overseas. There is evidence of negotiations presently being conducted by the applicant's manager, Mr. Bentley, in Indonesia in relation to a prospective fight. Mr. Bentley says that those negotiations could be prejudiced if it appeared that there was more than one person claiming to be the Australian Champion, and if fights were permitted to be staged claiming to be Australian Championships whilst the applicant holds the title and is not a participant in those fights.

Also, there is evidence that the Federation has approved a fight for the applicant to defend his title against Mr. Bell, and Mr. Bell is the gentleman who is recognised in the Australian Boxing News, April publication, as the number one contender. The fight has been arranged to be held at the Cardiff Workers' Club on 21 July next, and there is some evidence that, if the fight to be fought tomorrow night continues to be billed as an Australian Championship, it could have an adverse effect on the financial success of the proposed title bout of the applicant.

Accordingly, I am satisfied in the circumstances that an injunction should lie.

Mr. Bruce, being a final hearing there is no undertaking as to damages, I suppose, technically.

MR. BRUCE: No, your Honour. That undertaking was given yesterday but no doubt it would --

HIS HONOUR: It would cease today?

MR. BRUCE: Yes.

HIS HONOUR: Do you want to say anything about that, Mr. Hamilton?

MR. HAMILTON: No your Honour.

HIS HONOUR: I order that the respondent, Central Coast Leagues Club Limited, by itself, its servants and agents be restrained from holding or further promoting a boxing match presently scheduled to be held at Gosford on Wednesday, 27 May 1981 unless the respondent causes an announcement to be made to all persons attending the said boxing match in the following terms:

"This match has been wrongly advertised as the Australian Junior Welterweight Title. The Australian Boxing Federation recognises Peter Berrigan as the Australian Junior Welterweight Champion. He is not participating and was not invited to participate in this boxing match."

I order that the respondent by itself, its servants and agents be restrained from advertising, promoting or describing the fight to be conducted at its premises on Wednesday, 27 May 1981, between Jeff Malcolm and Dave Sarago as an Australian Junior Welterweight Title Fight or as a fight in respect of the Australian Junior Welterweight Championship or referring to Jeff Malcolm as the Australian Champion or title holder.

That leaves costs.

MR. BRUCE: Yes. I would ask for an order for costs.

HIS HONOUR: Mr. Hamilton, have you anything to say about costs?

MR. HAMILTON: No your Honour.

HIS HONOUR: I order the respondent to pay the applicant's costs of this application including any reserved costs.

MR. BRUCE: There is just one procedural matter that I am not clear on. I was wondering if it might be appropriate for an order dispensing with service of your Honour's order, bearing in mind the hour now and the location of the respondent. It has been a contested hearing.

HIS HONOUR: I would be loath to do that Mr. Bruce. You are thinking in terms of if it was disobeyed and what would flow from that?

MR. BRUCE: Yes.

HIS HONOUR: I think that is unlikely. In any event Mr. Hamilton's instructing solicitor is in Court and he will no doubt convey ---

MR. GARDINER: If it would assist your Honour, I would give an undertaking to notify the secretary/manager of the respondent.

HIS HONOUR: Are you content with that Mr. Hamilton?

MR. HAMILTON: I think perhaps that need not formally be recorded. I think rather than record that as an undertaking to the court ---

HIS HONOUR: I do not like taking undertakings of that sort from solicitors.

MR. HAMILTON: I must say I have difficulty as it is very hard, if anything were to happen that could be construed as conduct against the order, as to who did it and in what circumstances. My learned friend may rest assured that my instructing solicitor will inform the secretary-manager, but I do not think we can consent to other orders.

HIS HONOUR: I think that is perfectly reasonable Mr. Bruce.

MR. BRUCE: Certainly your Honour.

HIS HONOUR: Very well, I will now adjourn sine die.