Parish, Robert James World Series Cricket Pty Ltd

G. No. 72 of l977

ROBERT JAMES

PARISH

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WORLD SERIES CRICKET

PTY LTD

Could you please make the following alterations to the above judgment

of His Honour Mr Justice St. John, dated

30 September 1977, Sydney.

1. pp. 3 and 4 : "Test and Country Crlcket Board" should read "Test

and County Cricket Board!' Please amend on the

following lines:

p.3	lines 7, 18, and 23.
p.4	lme 3.

2. p. 4 : line 17: ".....photographs and printing. The last page....

I t

should read ".....photographs and printing, the last

page. .

Associate to Mr Justice St. John

In the matter of

THE TRADE PRACTICES ACT

1974

HET!ZEI~I :

........ ........ ........ ........

ROBERT JAfiES PARISH

m-.

........ .

........ ........ ........ ........

Appllcant

A l C	........ ........ ........ ........ .
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WORLD SERIES CRICKET

P Y. LTD.

........ ........ ........ .......

Respondent

O R G P R

ST. JOKN J.

30 SEPTEiBEP., 1977.

SYDNEY.

THE COURT

ORDERS THAT: the respondent company be restrained

from engaglng

111 the foUowing conduct:-

Any conduct that

1s misleading or deceptive or

likely to mislead or deceive.

2. Publishing or causing to be published any further advertisement In the form of the adveyt2,sement

belng exhlbit

3. Representlng expressly or by implication that any

crlcket matches organised

by it have the sponsorship

or approval of or any

affihation with the Australlan

Crlcket Board or the International Crlcket Conference.

Referring in such

a way as to be misleadlng

or deceptlve

to any crlcket matches organised

by ic as "Tests"

"Test Series" or "Super Tests".

Referring to any teams

of cricket players

2.n cricket

matches organised

by it as "The Australlan Team" or

"Australia" or any simllar expression in such

a way as

to mislead

or deceive.

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The Appllcant undertakes to the Court that he

will pay to

any party restrained or affected by the restraints Imposed by thls interlm InJunctIon such Compensation as the Court may in its dlscretion conslder in the clrcumstances to

be just, such compensatlon

to be assessed by the Court

or in accordance with such directions as the Court may

make and to be paid in such manner as the Court may direct.

costs reserved.

DISTRICT R E G I S m

IN THE FEDERAL COURT )

1 G.	No. 72 of 1977

OF hUSTRALIA

GENEFUiL DIVISION

In the

matter of -

THE TRADE PRACTICES ACT 1974

B E T W E E N :

ROBERT JAMES PARISH

Applicant

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WORLD SERIES CRICKET PTY-LIMITED

Respondent

ST.JOHN J.

Application has been made by Robert James Parish, Chairman

of the Australian Cricket Board, for

an interim injunction

against the respondent company pursuant to Section

80 of the

Trade Practices Act 1974 (hereinafter referred to as the

Act).

The precise orders sought are that the respondent

company be

restramed from engaging

in the following

conduct

(1) Any conduct that is misleading or deceptive or

is likely

to mislead or deceive.

(2) Publishing or causing to be published any further

a,-ivertisement in the form

of the advertisement

'*being exhibit

EFG 1 to the affidavit

of Edward

Furnival Griffin sworn 22nd September,	1977 and
filed herein.

( 3 ) Representing expressly or by implication that any

cricket matches organised by it have the sponsorship

or approval of or any affiliation with the Australian

Cricket Board or the International Cricket Conference.

(4) Referring in such

a way as to be misleading or deceptive

to any cricket matches organised by it	as "Tests" or
"Test Series" or "Super Tests".

(5.) Referring to any teams of cricket players in cricket

matches organised by it as "The Australian Team" or

"Australia" or any similar expression.

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The application is based upon alleged contraventions of

Section 52 of the

Act, which provides that

a corporation

shall not, in trade or commerce, engage in conduct that

is misleading or deceptlve and Section 53(c) which provldes

that a corporation shall not, in trade or commerce,

in connection with the supply of services represent that

services have sponsorshlp that they do not in fact have.

The Australian Cricket Board,

is an unincorporated

association having as its members state organisations in

Australia. For the purposes

of this application the

significant function of the Australian Cricket Board has been

to arrange test matches between

a team representing

Aus&alia and a team representing one of the other countries

which together with Australia belong to an organlsatlon

J W I O V J ~

as the International Cricket Conference. Mr. Parish's

evidence is to the effect that to his knowledge over the last

forty years test matches in which

a team representing

Australia has taken part have been organised exclusively

by the Australian Cricket Board and the players taking part

have been selected by selectors appointed by that Board.

This evidence is supplemented

by the tender of

a copy

affidavit of Kerry Francis Bullmore Packer in proceedings

in the Chancery Division of the High Court of Justice in

.England. Mr. Packer is

a director of the respondent company

and in his affidavit, inter alia, said this:-

"2. Cricket is

a sport played all over the world, largely

in.countries which have historical associations with

!	Great Britain. The major cricketing countries include
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i	England, Australia, the West Indies, New Zealand,

South Africa, India and Pakistan. There are many other lesser cricketing countries, such as Fiji,

East Africa, Denmark and Singapore. Each country

has its

own governing body which controls the sport.

In England that body is the Test and Count

y Cricket

Board. In Australia it is the Australian Cricket

Board.

3.	International cricket is governed by the

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International Cricket Conference

( "ICC"

) , which

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consists of the various governing boards of the

i	'cricketing countries of which the named Defendants
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are representatives. 'I cannot give details of

the constitution of the ICC but

I elleve that

the voting powers of the various bodies are graded

in accordance with thelr importance

i the world of

i	I	cricket and that the English Test	& Count y Cricket
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Board and Australian Cricket Board have an ultimate

power of veto over the decisions

f the Conference.

An excerpt from the laws of cricket which appear's to

' i	contain a list of the current members of the ICC and

a copy of the rules

of the Test and C0unt.y Cricket

Board are now produced and

shown to me in

a bundle

marked "ICFBP 1".

4. The major cricketing nations other than South Africa

piay international matches against one another

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"Test Matches"

- which are controlled internationally

by the ICC and in England and Australia by the English

Test and Count

y Cricket Board and the Australian

Cricket Board respectively."

The applicant's complaint relates, in

part, to

a brochure

(referred to in the second order sought) which was loosely inserted in a magazine entltled The Australian Women's Weekly

and distributed with that magazine on or about

21 September,

1977 throughout Australia. After the hearing commenced the

respondent company informed the Court that no further

distribution was planned but the applicant persists

in eeking

an order in respect to It. That magazine has

a circulatlon

in excess

of 800,000. Surveys have shown that it is read

by 45% of Australian females over the age of

16 and approximately

1 million males. The brochure consists

of a double leaf

folded over the first three pages of which contain colour

photographs and printing)

f i e last page

of which consists

of an application form for the purchase of tickets to the

"World Series Cricket" matches to be held in Sydney this

coming summer. The first page of the brochure is headed

in large type:-

"WORLD SERIES CRICKET

THE GREATEST INTERNATIONAL

CRICIZET EVENT EVER SEEN

IN AUSTRALIA"

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There is also

a photograph of Ian Chappell,

a former captain

of Australia's test team. On that page also there ape

I	two references to "Super Tests". the first being to "Super

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Tests" and the second to "Super Test stars". On page two

there'is an action photograph of

a former West Indies

test cricket captain, Clive Lloyd, wearing the uniform cap

bearing the insignia of that team. Behind hlm is the England

wicket keeper, Alan Ihott, wearing

cap on which the insignia

of the England cricket team appears. Page

3 is headed,

"For the first time. The full story on the Super Tests.".

The players are named and photographs appear of Rod Marsh

wearing a cap bearing the insignia of the Australlan test

team and two other photographs, one of Alan

Ihott, previously

mentioned and Dennis Lillee. The words "Super Test" appear

on two occasions. On the back and fourth page the words

"Super Test Series" appear on two occasions and the "Super

Tests" are numbered for the purpose

of application for tickets.

The cost stated for tickets for

a full match (a super test)

is $24 for adults and

$8 for children.

The applicant's complaint about this brochure is that it will

mislead and deceive

a substantial segment of the population

into believing that the "Super Tests" there advertised are in fact test matches organised by the Australian Crlcket Board and the same as that Board has organised previously. For the

0 ,	respondent c-ompany it is contended that there are expressions

(including "Super Test") in

t h brochure indicating that the

"Super Tests"

do not come under the auspices of that Board.

For the.applicant, reliance

is placed upon

a nuniber of

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statementsin the brochure. For example, on page

1 under the

photograph of Ian Chappell in the Australian test uniform

appear these words:

"Australia's team will be strengthened by the return of Llllee, Ross Edwards, Gary Gilmour, Ian Redpath and Ian Chappell (seen here).''

The applicant contends that the expression "Australia's team"

can only refer to the recent Australian test team which played

a test series

in the English summer of

1977. With this

contention, I

agree.

On page

3 , a number of South African cricketers are named

and thereafter these words appear, "who have not been seen

under Test Match conditions in Australia for some time.".

This implies that when they are seen in the "Super Tests"

that "Super Test" will be

a test match. On the same page

under a sub-heading, "Respect for tradltion" there

is a

statement that all matches will be conducted and played under accepted "International Cricket Laws and Standards".

Then follows, "This aspect

of the Series is under the control

of a committee of highly experienced and knowledgeable

administrators and former Test Cricketers

. . . . . . . . . . ' l .

According to Mr. Parish the word, "administrators" is one commonly used to describe governing bodies, at various levels, in the game of cricket.

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I	It is to be noted that on page	4 of the brochure in	a number
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I	of instances the respondent has found the words "game's" and "match" adequate alternative descriptions of "Super Tests".

The aspects of the brochure relied upon by the respondent

company as indicating

a lack of connection between "Super

Tests" and those tests organised by the Board are the

announcement that "World Series Cricket" has contracted

the world's top cricketers to particlpate in this summer's

super world series. Also there is

a reference to prize

money, a reference to

coachmg cllnics organised by the

Australian Women's Weekly and

TCN Channel 9. The respondent

company also places

a great reliance upon publlcity attendant

upori 'a controversy between the said Mr. Packer and the

Australian Cricket Board and English cricket authorities which commenced in May 1977 and has continued up until the present time. A number of newspaper chppings, said to total

approximately 1,000, has been tendered in evidence to prove

public awareness of this controversy and public knowledge of

the description of the proposed series

of matches to be

I	organised by Mr. Packer as "Super	Tests", either written
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I	without quotation marks or with them.
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All the major newspapers in Australia are represented in
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the clippings and there are numerous references to Mr. Packer
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and the proposed "Super Tests" and in addition numerous

references to the disputation between Mr. Packer, the company,

J.P. Sport Pty. Limited and the English and Australian Control

Boards. J.P. Sport Pty. Limited either has changed its name,

or is in the process of doing

so, to World Series Cricket

P Y-

Limited.

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It	is pertinent to note that the brochure referred to contams

only one name as the organiSer

of the "Super Tests" and tha t

is World

Series Cricket. There

d i rec t o r ind l rec t

indentification with

M r .

Packer

or J .P.

Sport Pty. Limited

within

the brochure

i t s e l f .

For a xeader of

the brochure

t o connect the cr icket

matches

therein referred to with

M r .

Packer or J . P .

Sport Pty. Limited, he or she

would have t o

draw upon

h i s o r he r

knowledge and recollection of

the con-

troversy i n the newspapers.

It is €ur ther to be noted

t h a t

no press clippings from The Australian Women's Weekly

were

tendered indicating that if

-the reclpient of

the brochure

through the Women' S Weekly was not a reader of other

newspapers that reader would have no means

of identifying

the '"Super

T e s t s "

i n t he

brochure wlth those given publicity

naming M r .

Packer and J . P .

Sport P t y . Limited.

I a m of

the view t h a t such brochure

would mislead a s ignif icant

. section of

the publ ic , into

whose hands

i t came

in to th l s e r ro r

t ha t "Super Tests" were tests organised by the Australian

Cricket Board.

For the respondent

company M r . Chester, the

Deputy-Chairman

Consolidated Press Holdings Limited,

company wlth

numerous subsidiaries, including the respondent

and the company

having ownership	of Television Channel 9 , gave
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evidence.	hr. Chester is i n charge,in	the	absence	of	M r .
..

Packer, who is presently overseas,

and he has informed the

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Court

t ha t

not intended to fur ther dis t r ibute the

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brochure. Without the

s l ightest

ref lect ion

upon

t h a t

' " i '

witnesses' honesty he has

l e f t m e

with the impression

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that his information may not be totally accurate, there

being many other people concerned in the operation.

propose to make an order in terms of order

2 sought.

The respondent company, through its counsel, has informed the Court that it is proposed to commence television

advertisements on the Channel

9 Televislon network in

Sydney and

in Melbourne.

Two advertisements

on video tape had been prepared, one

30 seconds duration and the other

of 60 seconds. These

advertisements, as they will appear on television to	a
viewer were shown in Court.

Subsequently, Mr. Chester was recalled to prove that these

two advertisements would not be used.

I am satisfied,

in this

mstance,of Mr. Chester's prediction because of

the circumstances in which such decision yas made. I feel it unnecessary to comment upon such advertisements.

After I had reserved my decision the hearing was re-opened

and four further videotape advertisements

of 60 seconds

duration were tendered and Mr. Chester gave evidence that it was intended that Channel 9 in Sydney and Melbourne would

show one or more

f these on ten occasions each day,

commencing shortly, at

a cost of $600 per showing. The

cdmbined audience of both these stations averages one

million.

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As part of the factual background it is pertinent that.

Channel 9 broadcast hve the Australia versus England Test

matches of the English summer

of 1977.

The advertisements mostly consist of former Test and other famous cricketers, who are under contract to the respondent company to play in the "Super Tests", speaking of their expectations of a hlgh standard of play in the "Super

Tests" with action shots

f highlights of them in previous

Test or other matches. In number one of that serles the words

"Super Tests" are used on three

occasions and on one such

occasion in

a context suggesting identlflcation with Test

matches as previously organised.

On the present state

of the evidence

I would regard that

advertisement as probably llkely to mlslead because of such

identification.

The remainder of those advertisements seek to distinguish

the "Super Tests" as promising

a higher quality cricket

than test cricket as hitherto played.

The difficult question

is whether the mere use

of the expression

"Super Test" in the context

of former test players, action

shots (some-at least of former test matches), national

emblems on caps worn, against the background

of the

publicity of controversy referred to will probably mislead

a sign'ificant portion of people	who watch these or similar
advertisements.

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There has been no evidence

of persons actually being misled.

That is understandable because of the lack

of time available

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to the

applicant

since

publication

the

brochure.

to the remaining advertisements, on the present state

of the evidence

I am not satisfied of

a likelihood that

people will be misled or deceived.

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I ,	Argument has been addressed to me on the princlples to be

applied in granting an interim Injunction under Section

of the Act. Mr. Gleeson Q.C. has put to

m e that the same

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principles as are applicable in the

New South Wales Supreme

Court in its Equity Jurisdiction should be applied.

On the other hand, Mr. Rogers

Q .C. contends that those

:i	principles	have	no	application	as	the	leglslation	gives
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no indication that equltzble principles are imported Into

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r l	the Act. The mere use of the word "injunction" in an Act

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of Parliament would not appear to me to be signiflcant

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in resolving this argument. Legislatures

have, over the

1 years, given rights to seek injunctions in courts other than

those with an Equity or Chancery jurisdiction. For example,

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the common law jurisdiction

of the Supreme Court

of New

South Wales in defamation proceedings was given the power

to injunct. Amendments to the Act in

1976 produced two

sub-sections to Section 80 namely, sub-sections

6 and 7

a !;

dealing with.undertakmgs

to damages.

Implicit

these

i l

sub-sections,

of course,

the

recognition

that

applicants

may be required to give undertakings as to

da;:3ges.

Undertakings as EO damages are frequently required in

interlocutory or

ex parte injunctions in equity practice.

Mr. Gleeson Q.C. ,

argues that this amendment makes clear

the legislature's intention that other equitable doctrines

such as laches are applicable also. With this

I d agree.

The power

to grant injunctions in the Act is in respect

to contraventions of Parts

IV and V of the Act. The latter

part is headed "Consumer Protection" with

a sub-heading

"Unfair Practices". The contents of Part

V are prohibitions

in general or particular terms

of all manner

of practices

which cheat or otherwise harm consaners. In particular

cases it may be that principles similar

to equitable

doctrines are appropriate for use but in my view it will

be because this dominant consideration

of consumer

protection lends support to their application. Mr. Gleescn

Q.c.

submits there has been laches since May,

1977 when 14r. Packer's

first public announcement

of his intention to hold "Super Tests"

was made. Assuming, without deciding, that such announcement

was "in trade or commerce" and gave the applicant

a r ght

to apply I reject it as

a ground for refusing an injunction.

For a tes-c as

to what is misleading within the meaning

Section 52 of the Act

I adopt what was said by Sheldon and

Sheppard J.J. in C.R.W. v Snedden 1972 A.R. 17 at 28, where

.this appears:

' b "The advertiser must be assumed

io know that the

readers will include both the shrewd and the

ingenuous, the educated and uneducated and the

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experienced and inexperienced i n comnkrcial

transactions.

is not en t i t l ed to

assume

tha t the

reader will

be ab le t o supply for himself or

(of ten) herself omit ted facts or to resolve

ambiguities. An advertisement may be misleading

even though it f a i l s t o deceive more wary

readers."

For the respondent company it has been submitted tha t I should restrict my consideration to persons to whom these

advertisements are dlrected, to persons to

some

extent

knowledgeable about cr icket .

It i s then put

that

with

such

r e s t r i c t ion and

the publ ic i ty

the dispute already

referred to no-one would

be misled.

I n my view I have t o

consider

wider audience. Provision

was

made

the

brochure

for appl icat ion for

t ickets for chi ldren.

The

degrees

knowledge

about cricket must, like every other

subject of knowledge vary between s l igh t knowledge and

erudition.

Coming to the orders sought,

Order 1 is i n the general

terms

of Section 52 of the A c t .

I n Mikasa (N.S.W.)

Pty. Limited

v Festival Stores

1 2 7 C.L.R.

617 the High Court did not

interfere with

similar order, despite the appellant 's

argument tha t it was i n terms too broad.

I propose t o

make	that order.

As.to

the third order sought,

Counsel

for the respondent

company has informed

the Court t h a t t h a t

company has not

t he s l i gh te s t des i r e t o

have

thought

t ha t t he

"Super Tests"

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have the sponsorship of the Australian Cricket Board. In

these circumstances

I find no difficulty in making the

third order having regard to my views on the brochure

set out above.

As to the- fourth order sought, the brochure provides

basis for making this order and

I propose to make it.

I am not prepared to make order

5 as sought. I feel that

it should be qualified with

the addltion of the words,

"in such

a way as to mislead or deceive".

In coming to the conclusion to make the foregoing orders

have'borne in mind that there appear to be alternative

expressions which would seem to be adequate

to describe

"Super Tests" and it would appear also that to emphasise the

difference between "Super Tests" and tests arranged by the

Australian Cricket Board would present no difficulty.

The respondent company seeks the imposition

of a undertaking

as to damages. The applicant, although willing to give

such an undertaking, opposes its imposition. I am informea

that the

fmal hearing could proceed in approximately two

weeks time. In a sense the Australian Cricket Board and the

respondent company are in competltion in the field

organising drlcket matches although the Board is not in

that field for the purpose of profit. This element of

competitlon turns the scales in favour of an undertaking

as to damages bejng

a condition of the making of the orders.

[1977] FCA 67

30 Sep 1977