Pivot Transport Pty Limited Bulkhaul Limited (formerly Polgold Limited)

[1993] FCA 93

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	j NO VG 65 of 1990
1
GENERAL DIVISION	)

BETWEEN:  PIVOT TMSPOZT PTY LIMITED

(Applicant )

AND : BULKHAUL LIMITED

J FORMERLY POLGOLD LIMITED 1

(Respondent)

Corm:  Ryan J

Place: Melbourne

Date:  2 March 1993

MINUTE OF ORDERS

The Court orders:

1. Thst the application be drsmissed.

r'

2.    That the applicant pay the respondent's costs, including any reserved costs, such costs to be taxed.

NOTE :	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	)  No VG 65 of 1990
)
GENERAL DIVISION	)

BETWEEN: PIVOT TRANSPORT PTY LIMITED

(Applicant)

AND : BULKHAUL LIMITED

m M E R L Y POLGOLD LIMITED1

(Respondent)

Coram :  Ryan J

Place: Melbourne

Date:  2 March 1993

REASONS FOR JUDGMENT

Rvan J: The applicant is a subsidiary of the Phosphate Co- Operative Company of Australia Limited which is better known as "The Pivot Fertiliser Group". The applicant was incorporated on 11 April 1985 and conducts a transport operation under the name "Bulkhaul". Hereafter that business is referred to as "Bulkhaul". Bulkhaul was set up with the intention of providing transport services to the Pivot

Group's transport needs. Those services involve mainly the Fertilisers Group and currently supplies ab~ut half the

carriage of large quantities of fertiliser in open-topped

tipping trucks. After its inception, Bulkhaul expanded its operations and since 1987 has prov~ded transport services to a number of other companies as well as the Pivot Group and carries, in addition to fertiliser, goods like motor tyres, salt, peas, gypsum, llme and quarry products. In an affidavit sworn on 23 March 1990, the manager of Bulkhaul, Mr Ritchie, has deposed that "approximately 70% of Bulkhaul's work is for companies other than Pivot."

Between July and September 1989 Bulkhaul conducted an advertising campaign by means of commercials broadcast on radio 3HA transmitting from Hamilton in the Western District of Victoria. The view has been expressed by Bulkhaul's Manager that further advertising has not been necessary as Bulkhaul "enjoys sufficient promotion by virtue of the presence of trucks on the road and the uniforms worn by the drivers." The 1989 issue of the "Yellow Pages" telephone directory for Victoria contains an entry "BULKHAUL" in bold type giving Bulkhaul's Geelong address and telephone number. It bad no corresponding entry in the 1989 issue of the "Yellow Pages" directory for Sydney, Adelaide, Brisbane or Perth.

Bulkhaul has its head office in Geelong, and two other offices in Por-cland and Adelaide. Bulkhaul also has an agent, Murraby Enterprises Pty Ltd, in New South Wales which is primarily concerned with arranging "back-loads" for Bulkhaul vehicles travelling into that state. The premises of that agent do not

connection with Bulkhaul. The business name "Bulkhaul" is	display any "Bulkhaul" insignia or other indication of a
registered in Victoria, Queensland and South Australia. Mr Ritch~e conceded in cross-examination that the applicant took steps to have the name registered in Queensland and South Australia only after learning of the existence of the respondent. The applicant is also registered in Western Australian as the owner of the business named "Pivot Bulkhaul" and in Victoria in respect of the name "Bulkhaul-Wallace".
Bulkhaul presently runs a fleet of eighty trucks which has increased from eight in 1986. Ten of these trucks are owned by Aulkhaul. The rest belong to owner-drivers who provide services under contract to Bulkhaul. Bulkhaul also owns twenty earth-moving vehicles. All trucks and other vehicles used by Bulkhaul, including the owner-drivers' trucks, are either painted with Bulkhaul's name and logo, or have the name and logo affixed to them by means of adhesive stickers. The name and logo also appear on jackets, shlrts and caps worn by the drivers of the trucks and other vehicles. The logo is in the form of a parallelogram enclosing a circle. The name is reproduced directly beneath the parallelogram. Bulkhaul's name and logo also appear on signs at its Geelong and Portland offices and on its stationery.
From 27 June 1986 Pivot Transport Fty Ltd became registered under the Trade Marks Act as the proprietor, in respect of transport and storage services and all other services in that class, of a trade mark consisting of a parallelogram with
broken sides enclosing a circle surmounting the word "BULKHAUL in sloping block capital letters. The goods or services in
relation to which the mark was registered were described as "transport and storage of dry bulk and liquid bulk produce." However, the register contains the notation "Registration of this trade mark shall give no right to the exclusive use of the word BULKHAUL."

The respondent company was incorporated on 13 February 1989, apparently as a shelf company under the name "~olgold Limited". Control of the company passed to its present shareholders in June 1989 and on 1 September 1989 its name was changed to "Bulkhaul Limited". The name "Bulkhaul" had been registered as a business name in New South Wales on 7 July 1989 by Mr Dunbier, the general manager and a dlrector of the respondent. In an affidavit sworn by Mr Dunbier on 30 April 1990, he deposed that the name was thought up by him "as being derivative of the two words "bulk" and "haulage" " . These two words formed part of the name of a company, Camden Coal & Bulk Haulage Ltd, ("Camden") of which Mr Dunbier had previously been a director. Camden had provided cartage services to the coal-nining company Clutha Limited ("Clutha") and the respondent succeeded to that business. In order to procure its registration of the name "Bulkhaul", the respondent obtained the consent of the reslstered owner of the name "Bulk Haulage & Landscaping". Mr Dunbier also deposed that he had never heard of the applicant until it contacted the respondent in September 1989. The respondent has adopted as its logo the

word "Bulkhaul" in white letters on a green background	incorporating a map of Australia. It proposes to obtain a
listing under the classification "Carriers - heavy haulage" in the Sydney issue of the "Yellow Pages" directory but does not intend to advertise its servlces in any other way. Nor does the respondent have any intention of operating generally outside New South Wales. It may, however, carry an exceptional consignment inter-State on the specific request of an existing client.

It is apparent from Mr Dunbier's affidavit that the respondent, since September 1989, has been a transport company carrying exclusively coal, coal by-products and quarry products, and that it operates generally within a radius of 250 kilometres from its operation centre at Narellan in New South Wales. Mr Dunbier gave evidence that his company had a fleet of about eighty trucks and that approximately 90% of the respondent's work was for Clutha which operates three coal mines in the Burragorang Valley, close to Narellan. The respondent also has more than two hundred sub-contractors' vehicles registered with it, of which about fifty usually undertake work for the respondent on any given day. One of Clutha's subsidiaries also owns one-third of the issued shares in the respondent compsny. According to Mr Dunbier's evidence, "the remaining 10% of the respondent's work is carting quarry products from the south coast area, the Wollongong area, back into the Sydney metropolitan area. Narellan is located just outside the outer fringes of the metropolitan area, south-west of Sydney and north-west of

Woilongong.

Evidence was called on behalf of the applicant from Kevjn Maxwell Gray who had been employed as manager of the respondent's predecessor, Camden, when Mr Dunbier was chairman of directors of that company of which one of Mr D~~nbier's co- directors in the respondent, Mr Fordham, was also a director.

M r Gray deposed that at about the end of 1988 Camden had

undertaken a short job carting gypsum for the Geelong-based

Bulkhaul after which he, Gray, called at the Bulkhaul premises in Geelong and indicated Camden's interest in undertaking further work for Eulkhaul if any became available. Mr Gray on that occasion was given a Bulkhaul business card. Mr Gray subsequently became a consultant to Heggies' Transport and after he lezrned that the respondent had been, or was being, formed to carry on business as Bulkhaul Limited, brought to the notice of Mr Fordham the fact that Camden had previously done work for the Geelong-based Bulkhaul. However, I am satisfied that neither Mr Dunbier nor Mr Fordham adverted to that fact, (if he ever knew of it), when deciding to change the name of the respondent to Bulkhaul Limited.

Mr Ritchie first became aware of the exj-stence of the

respondent' in September 1989 when he was informed by the managing director of Mitchell's Transport Pty Ltd, a transport company based in Sydney, that a company based in New South Wales was setting up a transport service under the name "Bulkhaul". M r Ritchie telephoned the respondent on 11 or 12

September 1989 and spoke to one of its directors, Mr Duggan.	It seems that both men agreed that a problem of some sort
could arise from the duplication of the name. Mr Duggan informed Mr Dunbier of his conversation with Mr Ritchie but, as Mr Dunbier said under cross-examination, he did not take any steps to alter his plans because "I had my name registered in New South Wales and I believed that was all I had to do."
A further telephone conversation took place between Mr Ritchie
and Mr Duggan in November 1989. Mr Ritchie heard nothing from the respondent after that conversation. In January 1990 he instructed solicitors to write to the responde~t and proceedings were commenced in this Court in March 1990.
The applicant seeks a declaration "that the advertising offering for supply and supply of transport services under or by reference to the name "Bulkhaul" or the use of the name "Bulkhaul" by the respondent constitutes conduct by the respondent in trade and commerce which contravenes sections 52, 53(c) and 53(d) of the Trade Practices Act 1974." It also seeks an injunction restraining the respondent from continuing the alleged contraventions and orders compelling the respondent to change its name and to despatch to all persons for whom the respondent has carried goods since 1 January 1990 a notice 'that it has changed its name and that it has no connection whatsoever with Pivot Transport Pty Limited. The applicant did not press, in the course of the hearing before me, its claim for damages or an account of profits arising from the alleged breaches of the Trade Practices Act 1974 or
alternatively from the respondent's alleged passing off the services provided by it under the name "Bulkhaul" as services supplied by, or connected with the applicant. Rather, it
sought to have those elements of its prayer for relief reserved for later adjudication if it elected to pursue them.
Sections 52 and 53 of the Trade Practices Act, so far as is relevant to this application provide:

"52. (1) A corporation shall not, in trade or commerce, engage in conduct that is mrsleading or deceptrve or is likely to mrslead or deceive.

53. A corporatron shall not, in trade or commerce, rn connexron with the supply or possrble supply of goods or services or in connexron wrth the promotion by any means of the supply or use of goods or services -

...

(C) represent that goods or servrces have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;

(d) represent that the corporatron has a sponsorshrp, approval or affiliation rt does not have ..."

The approach to be taken by the courts in cases where it is contended that the conduct which allegedly contravenes s.52 involves, actual or likely deception or misleading of the public has been succinctly indicated as follows by Deane and Fitzgerald JJ as members of a Full Court of this Court in Taco

CO of Australia Inc v Taco Bell Pty Ltd (1982) 42 A.L.R. 177

where their Honours observed, at 202:

"In a case, such as the present, where the suggested misrepresentation has not been expressly made and it is alleged that the relevent deception or misleadrng is, or is likely to be, of the public, the following proposrtions appear to be established as affording guidance.

of the public (which may be the publrc at large) by reference to whom	Frrst, rt is necessary to identrfy the relevant section (or sections)
the questron of whether conduct I.S, or is likely to be, misleadrng or deceptrve falls to be tested (We~trnann v Katies Ltd (1977) 29 FLR 336, per Pranki J at 339-40, crted with approval by Bowen CJ and Frankr J in Brock v Terrace Times Pty Ltd (1982) 40 ALR 97 at 99; [l9821 ATPR 40-267 at 43,412).
Second, once the relevant section of the public is establrshed, the matter rs to be considered by reference to all who come w~thin it, "including the astute and the gullible, the rntelligent and the not so rntelllgent, the well educated as well as the pcorly educated, men and women of various ages pursuing a variety of vocations": Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73, per Lockhart J at 93: see also World Serles Cricket v Parish [(1977) 16 ALR 1811, per Brennan J (16 ALR at 203).
Thirdly, evidence that some person has in fact formed an erroneous conclusion is admissible and may be persuasive but is not essential. Such evidence does not itself conclusively establrsh that conduct is misleadrng or deceptive or likely to mrslead or deceive. The court must determ~ne that questlon for itself. The test is ob~ectlve (see, generally, Annand & Thompson Pty Ltd v Trade Przctices Commission (1979) 25 &R 91, per Franki J at 102; Sterllng v Trade Practices Commission (1981) 35 ALR 59, per Frankr J (with whom Northrop J agreed) at 66 and per Keely J at 69; Snold v Handley (1981) 38 ALR 383, per the court (Bowen CJ, Northrop and Morling JJ); and Brock v Terrace Times, supra, per Bowen CJ and Frank J).
Finally, it is necessary to inquire why proven misconceptron has arisen: Hornsby Building Information Centre v Sydney Building Information Centre (18 ALR at 647; 140 CLR at 228). The fundamental
rmportance of this prlnclple is that lt is only by t h ~ s investigat~on
that the evidence of those who are shown to have been led ~ n t c error can be evaluated and it can be determined whether they are confused because of misleading or deceptive conduct on the part of the
respondent. "

In the present case, I consider that there are two relevant sections of the public by reference to which the question of whether the respondent's use of the name "Bulkhaul" is to be tested. The members of the first section are primary consignors who might be concerned to have their products carried into or out of the area constituted by a radius of 250 kms from Narrellan. The second section is made up of cartage contractors seeking to arrange "back-loading" wlthin the same radius.

The evidence disclosed that the practice of "back-loading" is

widespread among cartage contractors. It is designed to	ensure that a vehicle does not return empty from its home
depot or base after unloading its primary consignment. Thus, for example, Mr Barrett, a consultant for Bulkhaul's NSW agent, Murraby Enterprises Pty Ltd, has deposed:

"3.	As Bulkhaul's representative, I have often negotiated contracts for cartage of bulk products in New South Wales. Often I enter ~nto negotiations for work pursuant to a specifrc request from Bulkhaul or alternatively, rf I am aware of available work, I may suggest to Bulkhaul that rt tender for that work and if Bulkhaul is agreeable I then approach the relevant party. I generally become aware of available work through personal contact and have arranged work for Bulkhaul wrth companies including Carey 'S Freight, Dlamond Salt and Mitchell Bros Transport in New South Wales. Contracts are negotiated over the telephone and the work ~nvolved is generally baclcloadrng work designed to return trucks to Melbourne or Geelong after
del~veries have been made in New South Wales or elsewhere.
4.	Normally when acting as representative for Bulkhaul I wrll make lnitial contact by telephone with the person or company for whom I believe Bullchaul would be able to provide services. In mak~ng that contact, I state that I am acting as agent for Bulkhaul. Once a contract has been entered into I often arrange for trucks to cart the particular materials involved."

The evidence also disclosed that Bulkhaul and other transport companies reciprocate in offermg back-loads to each other, and that the other companies involved in those arrangements are aware that Bulkhaul is a subsidiary of Pivot. The practice was exemplified as follows in an affidavit sworn by Mr Gadzinski, the manager of Bulkhaul's South Australian operations:

"In organizing work for Bulkhaul and in CO-ord~nating the transport of freight, I rely upon the telephone as my main means of

communication. For example, I may be contacted by a person in New

South Wales who wants Bullchaul to cart a load of, for example, fertilizer, to New South Wales. If I have a truck ava~lable at the time and place required, I agree freight rates and pick up and dellvery tlmes at that stage. For rnstance, I recently arranged for aulkhaul to cart a load of superphosphate to Wagga ln New South Wales for Murrumbidgee Freighters in this way. After arrangrng for a truck to cart the relevant product I then set about trying to ensure that the truck which will travel to New South Wales, or elsewhere, w ~ l l

have a load to carry back to South Australia. That is, I try to

arrange for "backloading". In order to do this, I telephone businesses, for example, transport companies, in the approxl.mate area to which the trucks from South Australia are heading. I may or may

not have contacted these companres in the past. I often obtain from other contacts the name of a company whrch may be able to provide a load. In these telephone conversations I generally introduce myself slmply as "Ted from Bulkhaul', and ask whether there rs any freight to be carted from that area. It rs often possible for me to arrange for one truck to cart several loads ln any one trip and, in both my positions in Geelong and South Australia I have arranged for trucks to travel extensively throughout South Australia, Victoria, New South Wales and, to a lesser extent, southern Queensland."

Much of the soliciting for back-loads between transport companies is done by telephone, and when that is done on behalf of Bulkhaul, the caller usually introduces himself as

being "from Bulkhaul".

Back-loading is not always from the point of unloading of the primary consignment but the vehicle may have to travel empty for some distance to the point of collection of the back-load. Most of the relatively few customers of Bulkhaul who have been identified as based in New South Wales are other transport companies or consignors introduced by them and are referable to back-loading arrangements.

The evidence does not suggest that it is reasonably likeiy that primary consignors, being collieries or quarry owners within a radius of 250 kms of Narellan, would entrust work to the respondent in the mistaken belief that it was the Geelong- based Bulkhaul, or affiliated with, or approved by, it. Those other cartage contractors with existing reciprocal arrangements with Bulkhaul presumably know of it as a Geelong- based business operating principally from that city. If there are a few of them within 250 kms of Narellan who might be

approached for back-loads by the respondent, they can readily	be advised by Bulkhaul of the true position. Alrflos t
invariably, a basis for discrimination would he afforded by the different destinations to which back-loading is likely to be sought. Where back-loads are solicited by telephone on behalf of Bulkhaul, it can be made clear that the Narellan- based entity has no identity or connection with the Geelong- based Bulkhaul.
I am satisfied that Bulkhaul has a number of substantial
customers for whom products are carried into New South Wales and elsewhere, and that it has regularly carried back-loads from New South Wales for other substantial customers. By reason of that activity it has acquired, and is continuing to develop, a reputation in New South Wales. However, the evidence does not permit me to find that existing or potential customers attracted by that reputation are likely to be deceived into using the services of the respondent. Indeed, it is inherently improbable that they would have occasion to use the services of the respondent at all. Any remote possibility that some of them might be induced by the identity of name to do so mistakenly could be averted by appropriate advice from Bulkhaul disabusing them of the imputed mistake. Because the relevant sections of the public are as I have identified, the reputation which Bulkhaul has acquired and built up in the mind of the general public by its liveried vehicles passing and repassing over the roads of New South Wales can be disregarded.
conclusion that either of the relevant sections of the public Such evidence as there is of confusion does not support the
is likely to be deceived or misled by the respondent's use of the name "Bulkhaul". One example proffered was of a supplier of motor tyres seeking to sell its products for use on a fleet of trucks in New South Wales which it understood Bulkhaul had recently purchased. That approach was initiated by a Mr Linehan, the national marketing manager of the Original Equipment Division of Goodyear Tyre & Rubber CO (Australia) ~ t d who heard that a fleet of 80 or so trucks had been commissioned in New South Wales for a company named either "i3ulkhaul" of "Bulkway". The maker of that approach was readily disabused of his mistake when he spoke by telephone to Mr Ritchie, the manager of Bulkhaul. A similar approach was inade with the same result on behalf of a company offering to instal radios in a fleet of trucks in New South Wales which it understood Bulkhaul to have purchased. On another occasion, Bulkhaul was approached by a person wishing to speak to Mr Dunbier (the managing director of the respondent). That caller had been given Bulkhaul's telephone number by Telecom directory assistance.
Another instance of possible confusion which has been suggested by the respondent arises from the practice of petrol filling stations throughout Victoria, New South Wales, South Australia and southern Queensland of providing large quantities of fuel and other supplies to Bulkhaul drivers and
charging the cost to Bulkhaul's account. It has been suggested that Bulkhaul's account might mistakenly be debited
with the cost of supplies provided by the same filling stations to employees or sub-contractors of the respondent. However, Mr Ritchie, the manager of Bulkhaul, conceded, under cross examination, that the applicant has not so far been the victim of a mistake of that kind which is no more than "quite possible".
I do not regard any of the instances outlined above as persuasive because none of them reveals confusion by a member of either of the relevant sections of the public as I have identified them. Moreover, each instance occurred in circumstances where any confusion could be, or was, readily corrected by Bulkhaul without any deteriment to itself.
It is true, as Counsel for Bulkhaul submitted, that the name "Bulkhaul" is an invented name and not merely a combination of ordinary English words descriptive of the service which the applicant offers or the industry in which it is engaged. However, it is a contraction of a compound of two words, "bulk" and "haulage" which are descriptive in much the same way as the name "Rent-a-Ute" discussed by Pincus J in Rent-a-
Ute Pty ~ t d v Golden 44 Pty Ltd (1987) 9 ATPR 40-800. Acccrdingly, the name "Bulkhaul" was not, immediately upon adoption, apt to become distinctive of either the service provided by Bulkhaul or the applicant's business. That much was recognized by the refusal of the Registrar of Trade Marks
name "Bulkhaul" standing alone. Nor am I persuaded on the to grant to the applicant a right to the exclusive use to the
evidence that the applicant has become so well-known nationally under the name "Bulkhaul" that even persons of the relevant sections of the public within a 250 km radius from Narellan are likely to be misled or deceived by the respondent's use of the name in the same field of activity: c.p. BM Auto Sales Pty Ltd v Budget Rent A Car System Pty Ltd (1977) 51 ALJR 254; Abundant Earth Pty Ltd v R & C Products
Pty Ltd (1985) 7 FCR 233; R & C Products Pty Ltd v Hunters Products Ltd (1988) 10 ATPR 40-839 and Motorcharge Pty Ltd v Motorcard Pty Ltd (1982) 4 ATPR 40-302.
I accept, of course, that a trader may enjoy a reputation in a given geographical area before carrying on business there, and even wi-chout intending ever to carry on business there. In
Fletcher Challenge Ltd v Fletcher Challenge Pty Ltd [l9811 1
NSW LR 196 Powell J observed at 205:

"... ir is, I think, not rlleg~trmate to hold, at least at this stage of the proceedings, that the announcement of the proposed amalgamatron and of the proposed new corporate name created a new reputatron, which reputation preceded, albeit, perhaps, by only a few hours, the lodqment of the auplIcation of reservation of company

name: see, for- example, ~urnei- v General ifotors (Australia) ~ t y ~ t b

(1929) 42 CLR 352.

So far as the second "fact" rs concerned I repeat that, in my view, the relevant questron is, "does the pla~ntiff have the necessary reputation?", rather than "does the plaintiff ~tself carry on business here?" This would seem to have been the view adopted by Plowman J in Sdhner & CO AD v Suhner Ltd [l9671 RPC 336, in wh~ch

case, despite the lack of evidence to show erther that the plaintiff had ever traded in its own name in the Unlted Kingdom or that such of its goods as were, in fact, sold by agents rn the Unrted Kingdom were, in fact, identif~ed wrth the plaintrff - and, one adds, despite the fact that the defendant company had been formed for no other purpose than to block the registration of the plaintiff in the Unlted Kingdom - his Lordship thought it appropr~ate to invoke the law of "passing-off."

However, for the reasons given above, I am not satisfied that	the reputation acquired by Bulkhaul in the relevant area south
of Sydney was of a kind that persons within the sections of the public which I have identified would be misled into believing that the business of the respondent was that of Bulkhaul, or was connected or affiliated with Bulkhaul or sponsored by it. To use the language favoured by Powell J in
Fletcher Challenge (supra), the evidence does not establish
that the applicant had "the necessary reputation" in the relevant area.
An exanple is supplied by Volt Australia Ltd v Directories
(Aust) Pty Ltd (1985) 7 PCR 333 of a case where the necessary reputation was acquired in the relevant area by a firm which it had been announced would become "the Official Advertising Contractor to Telecom Australia commencing January, 1986 in Australia except NSW and ACT". In that case, Jenkinson J observed at 338:

"It is sufficient that the actrvities of the partners and their servants and agents ~nvolvlng the dissem~natron of the firm's busrness name as the name of a frrm to be concerned in procuring Yellow Pages directory advert~sing have been, as I would find, such as to make it very llkely .chat the use of the name "Australian Directories Services Pty Ltd" in the provision of "general credrt serv~ces" would induce in the minds of a number of persons in Victoria and elsewhere in Australia a mistaken belref that the firm and that comgany were one business entity. If that fincling be correct, use of that name would in my oprnion constitute a contravention of s.52(1) of the Trade Practices Act 1974."

The present case is also to be contrasted with Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 65 ALR 477 where Wilcox J observed at 481:

"In the present case it would not be correct to describe the word

the Collins-Robert French Dictionary as meaning, when used as an

"aerospatiale" as a concocted name. As a French word it appears in

adjective, "aerospace" and, as a noun, "aerospace science". But it is not a word known to the Engl~sh language and its use in conjunction with the word "helicopter" would inevitably suggest to persons who were familiar with the business and goods of the applicant that there rras some commercial assoc~at~on between the flrst respondent and the applicant. The similarity between the applicant's name and activrties and the name of the flrst respondent is too great to be accidental."

However, as I have found, there is no likelihood of a similar mistaken belief, or inevitable suggestion, in the minds of members of the relevant sections of the public, that Bulkhaul and the respondent were one business identity.

I have concentrated, so far, on the facts necessary to be

established by the applicants to prove a contravention of s.52 of the T r a d e P r a c t i c e s A c t . However, I also find for the reasons which commended themselves to Pincus J in 10th

C a n t a n a e P t y Limited v S h o s h a n a P t y Limited (1988) 10 ATPR 40-

833 at 48,989, that the applicant has failed to establish a contraventio~z of s.53 of the Act. Because the deficencies which I have found to exist in proof of contraventions of ss. 52 and 53 equally infect the case which the applicant has sought to make by invoking the tort of passing-off the application must be dismissed with costs.

I certify that this and the preceding seventeen (17) pages are a true copy of the reasons for judgment of his Honour Mr Justice Ryan

Counsel for the applicant:	Dr C N Jessup
Mr C M Scerri
Solicitor for the applicant:	Arthur Robinson and Hedderwicks
Counsel for the respondent:	Mr J I Fajgenbaum QC Mr R Dovming
Solicitor for the respondent:	Maddock Lonie and Chisholm as agents for Marsdens