Marks, L. v Community Newspapers (1985) Pty Ltd

[1987] FCA 420

IN THE FEDERAL COURT	)	NOT INTENDED FOR GENERAL DISTRIBUTION
OF AUSTRALIA	)

WESTERN AUSTRALIA 1

DISTRICT REGISTRY ) No. WAG 73 of 1987

GENERAL DIVISION )

B E T W E E N : MARKS LAUREN

First Applicant

and

WEEKLY ADVERTISER NEWSPAPERS PTY LTD

Second Appllcant

and

COMMUNITY NEWSPAPERS (1985) PTY LTD

Respondent

CORAM:	FRENCH J.	L-
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20 JULY 1987	i
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EX TEMPORE REASONS FOR JUDGMENT L~

This is a clalm for urgent ex parte interlocutory relief

endorsed on a substantlve application brought under s . 8 0 of the

Trade Practices Act 1974	and filed today.	1 ,
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The affidavit which supports the application and the

claim for interlocutory rellef, discloses that the first applicant

is employed as the features editor with a newspaper company known

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as Weekly Advertiser Newspapers Pty Ltd, which is the second

applicant. She has been so employed since 11 May 1987. Prior to that time, accordlng to her affidavit, she worked as what is

called the Pacesetters editor for the respondent, Communlty

Newspapers (1985) Pty Ltd.

2.

It seems from the flrst applicant's affldavit that on 1 4

July 1987 the Wanneroo Tlmes, which 1s owned by the respondent,

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published a two page sectlon under the hearlng Pacesetters, using t .'

the applicant's byline, Lauren Marks.

What is meant by "using her byllne" appears from an exhlblt showing a portlon of the Pacesetters page in the Flanneroo	I
Times of 14 July 1985.

Agalnst the headlng "Pacesetters" are printed the words

"edited by Lauren Marks". In other words, the use of the first

appllcant's "byllne" lnvolves a use of her name and a statement

that the page of the newspaper on which it appears has been edlted

by her; notwithstandlng that her employment wlth the respondent

ceased on 11 May. If that allegatlon is ultimately made good,

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then there would be prima facie a case made out for a

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contravention of s.52 of the Trade Practices Act.

The affldavit seems to proceed on the assumption that

what 1s in issue is a right of the flrst applicant to the

exclusive use of her name and some Infringement of that right on the part of the respondent, as though her name were a registered trademark. It is apparent, however, from the application and from the way in which It has been put by counsel in this clalm for !

interlocutory relief, that what is in truth relled upon is a

contravention of s.52 of the Trade Practices Act.

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3 .

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An lncorrect statement that a features pagc had bccn

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edited by somebody who is no longer in the employ of the relevant

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newspaper would or could constitute misleading or deceptive

conduct or conduct llkely to mislead or decelve in trade or

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commerce.

The matter comes on before me on an ex parte basls and I

am informed that the urgency of it arises because the respondent is preparlng to publlsh the next edition of the Wanneroo Times within 24 hours. Indeed, I am Informed by counsel that the next

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I	print run 1 s scheduled for tonight.
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1	The matter has come on at short	notlce and it appears
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that the applicants were not aware until late thls morning that

’,	they would be able to bring their appllcation on before the Court thls afternoon. I have been Informed by counsel that a letter was
I	sent shortly after 1.00 o’clock by facsimile transmission to the
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,	respondent advising It of the fact of thls appllcation.
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In the circumstances, I am of the oplnion that there is a serious question raised on the material before me and that the balance of convenience so far as the first applicant is concerned appears to favour her. For lf her name is tc be used in the next print run of the Wanneroo Times, then on the material before me,
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I	that would constitute a falrly blatant and obvious contraventlon

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of s.52. l ’

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t.

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4 .

Although there would be some Inconvenience to the

respondent in the necessary alteration of the print run so far as

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the inclusion of the first applicant's name is concerned, that

inconvenience 1 s outwelghed, In my opinlon, by her interest	and	I '
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the publlc interest.	:'

I stress that these observations are provisional in the

sense that they are made on the basis of the necessarily limited

I	and somewhat scanty material before me. They are made in the
context of an applicatlon which 1s brought as a matter of
considerable urgency. The inconvenience to the respondent is mitigated by the preparedness of the second applicant to give an undertaking in the usual form to the Court, and in the
circumstances I will be prepared to make the order sought.
It will, of course, be open to the respondent to apply at short notice to vary or dissolve the order that I propose to
make, and the appllcants will be directed to serve on the
respondent copies of the order and of all other material filed so
far.

Counsel for the applicants has prepared a minute and I

propose to make orders In accordance with the minute, with the

!	insertion of particular tlmes that seem appropriate for the
i	duration of the interlocutory in]unctlon and service of the order
and supportng materials. I will sign the minute and place It on
the file, and a copy of that can be taken and used for the
purposes of effecting service, if necessary, on the respondent.

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5.

The order I make is In the following terms:

That upon the second applicant making the undertaking set out in the minute:-

1. The respondent be restralned and an lnlunctlon is hereby granted restrainlng it, whether by itself, Its offlcers, servants, agents or otherwlse, untll

9.30 on Monday, 27 July 1987, from publishing

and/or distributlng any newspaper, article or

comment under the byline Lauren Marks.

2. Not later than 7 pm on 20 July 1987, the second applicant do serve on the respondent copies of this order and of the affidavit and exhibits flled In support of the applicatlon.

3 . The respondent have liberty to apaly on 24 hours notlce to the second applicant to dissolve or vary thls in~unction.

I certlfy that this and the precedlng

four ( 4 ) pages are a true copy of the Reasons for Judgment of hls Honour Mr Justice French.

Assoclate: W

Date: 20 5- lq87.

Counsel for the Applicants: Mr P. Bates

Solicitors for the Applicants: Messrs. Claudio RUSSO Shaw

! Date of Hearing: 20 July 1987

Date of Judgment: 20 July 1987

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