Prospero Publishing Pty Ltd v Rumcoast Holdings Pty Ltd
[2000] WASCA 61
•14 MARCH 2000
PROSPERO PUBLISHING PTY LTD -v- RUMCOAST HOLDINGS PTY LTD [2000] WASCA 61
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 61 | |
| THE FULL COURT (WA) | 14/03/2000 | ||
| Case No: | FUL:158/1999 | 21 FEBRUARY 2000 | |
| Coram: | PIDGEON J WALLWORK J MURRAY J | 21/02/00 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | PROSPERO PUBLISHING PTY LTD (085 993 371) RUMCOAST HOLDINGS PTY LTD (081 972 947) |
Catchwords: | Tort Passing off Trade practices Misleading and deceptive conduct publishing an obscene magazine with a deceptively similar name to an existing magazine Appeal from an Australia wide injunction Whether evidence established an Australia wide reputation Whether necessary to establish a reputation in each State Whether tort established Whether injunction too wide Injunction confirmed |
Legislation: | Service and Execution of Process Act 1992 (Cth) Trade Practices Act 1974 (Cth), s 52 |
Case References: | BM Auto Sales Pty Ltd v Budget Rent-a-Car System Pty Ltd (1977) 51 ALJR 254 Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 Motorcharge Pty Ltd v Motorcard Pty Ltd (1982) 4 ATPR 43,724 Snoid v CVS Records (1981) 38 ALR 383 Warnink v Townend & Sons (Hull) Ltd (1979) AC 731 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 Annabel's (Berkeley Square) Ltd v G Schock [1972] RPC 838 Applied Business Technology v Grandmaster Computers Pty Ltd (1999) 161 ALR 31 Bridge Stockbrokers Ltd v Bridges (1984) 57 ALR 401 Bridges Stockbrokers Ltd v Bridges (1984) 5 IPR 81 Burswood Management Ltd v Burswood Casino Motel/Hotel Pty Ltd (1985) 7 FCR 186 Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1980) 32 ALR 387 Coca-Cola Company v All-fect Distributors Ltd (1998) 43 IPR 47 Campomar Sociedad Limitada v Nike International Ltd (1998) 156 ALR 316 Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (1999) 44 IPR 281 Emap Elan Ltd v Pacific Publications Pty Ltd (1997) 37 IPR 1 Equity Access Pty Ltd v Westpac Banking (1990) ATPR 40-994 Harrods Limited v R Harrod Limited [1923] 41 RPC 74 Hogan v Pacific Dunlop Ltd (1988) 12 IPR 225 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd (1980) 49 FLR 455 Monarch Investments Pty Ltd v Yeramba Estates Pty Ltd (1997) 37 IPR 363 Nicholas v Borg (1986) 7 IPR 1 Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1981) 149 CLR 191 Philips Electronics NV v Remington Products Australia Pty Ltd (1997) 39 IPR 283 R & C Products Pty Ltd v Abundant Earth Pty Ltd (1984) 55 ALR 38 Sheraton Corporation of America v Sheraton Motels Ltd [1964] RPC 202 Siddons Pty Ltd v Stanley Works Pty Ltd (1991) 29 FCR 14 Starcross Pty Ltd v Liquidclor Pty Ltd (1981) 39 ALR 644 SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 Taco Bell Pty Ltd v Taco Company of Australia Inc (1981) 60 FLR 60 Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Thai World Import & Export Co Ltd v Shuey Shing Pty Ltd (1989) 17 IPR 289 The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 The Cricketer Ltd v Newspress Pty Ltd & David Syme & Co Ltd [1974] VR 477 Totalizator Agency Board v Turf News Pty Ltd [1967] VR 605 Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd (1996) 34 IPR 247 Weitman v Katies (1977) 29 FLR 336 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : PROSPERO PUBLISHING PTY LTD -v- RUMCOAST HOLDINGS PTY LTD [2000] WASCA 61 CORAM : PIDGEON J
- WALLWORK J
MURRAY J
- Appellant
AND
RUMCOAST HOLDINGS PTY LTD (081 972 947)
Respondent
Catchwords:
Tort - Passing off - Trade practices - Misleading and deceptive conduct publishing an obscene magazine with a deceptively similar name to an existing magazine - Appeal from an Australia wide injunction - Whether evidence established an Australia wide reputation - Whether necessary to establish a reputation in each State - Whether tort established - Whether injunction too wide - Injunction confirmed
(Page 2)
Legislation:
Service and Execution of Process Act 1992 (Cth)
Trade Practices Act 1974 (Cth), s 52
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr M J Buss QC & Ms L G Meyer
Respondent : Mr C J L Pullin QC & Ms M C Lynn
Solicitors:
Appellant : Gilbert Tobin
Respondent : Ilbery Barblett
Case(s) referred to in judgment(s):
BM Auto Sales Pty Ltd v Budget Rent-a-Car System Pty Ltd (1977) 51 ALJR 254
Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302
Motorcharge Pty Ltd v Motorcard Pty Ltd (1982) 4 ATPR 43,724
Snoid v CVS Records (1981) 38 ALR 383
Warnink v Townend & Sons (Hull) Ltd (1979) AC 731
Case(s) also cited:
10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299
Annabel's (Berkeley Square) Ltd v G Schock [1972] RPC 838
Applied Business Technology v Grandmaster Computers Pty Ltd (1999) 161 ALR 31
Bridge Stockbrokers Ltd v Bridges (1984) 57 ALR 401
Bridges Stockbrokers Ltd v Bridges (1984) 5 IPR 81
Burswood Management Ltd v Burswood Casino Motel/Hotel Pty Ltd (1985) 7 FCR 186
Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1980) 32 ALR 387
(Page 3)
Coca-Cola Company v All-fect Distributors Ltd (1998) 43 IPR 47
Campomar Sociedad Limitada v Nike International Ltd (1998) 156 ALR 316
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (1999) 44 IPR 281
Emap Elan Ltd v Pacific Publications Pty Ltd (1997) 37 IPR 1
Equity Access Pty Ltd v Westpac Banking (1990) ATPR 40-994
Harrods Limited v R Harrod Limited [1923] 41 RPC 74
Hogan v Pacific Dunlop Ltd (1988) 12 IPR 225
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd (1980) 49 FLR 455
Monarch Investments Pty Ltd v Yeramba Estates Pty Ltd (1997) 37 IPR 363
Nicholas v Borg (1986) 7 IPR 1
Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1981) 149 CLR 191
Philips Electronics NV v Remington Products Australia Pty Ltd (1997) 39 IPR 283
R & C Products Pty Ltd v Abundant Earth Pty Ltd (1984) 55 ALR 38
Sheraton Corporation of America v Sheraton Motels Ltd [1964] RPC 202
Siddons Pty Ltd v Stanley Works Pty Ltd (1991) 29 FCR 14
Starcross Pty Ltd v Liquidclor Pty Ltd (1981) 39 ALR 644
SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466
Taco Bell Pty Ltd v Taco Company of Australia Inc (1981) 60 FLR 60
Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Thai World Import & Export Co Ltd v Shuey Shing Pty Ltd (1989) 17 IPR 289
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394
The Cricketer Ltd v Newspress Pty Ltd & David Syme & Co Ltd [1974] VR 477
Totalizator Agency Board v Turf News Pty Ltd [1967] VR 605
Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd (1996) 34 IPR 247
Weitman v Katies (1977) 29 FLR 336
(Page 4)
1 PIDGEON J: This is an appeal from the decision of Templeman J who granted an injunction restraining the appellant from publishing a magazine containing the name "Scoop". The respondents sought this injunction on the basis that they were already publishing a magazine under that name. The injunction was not limited as to the area in which it is to apply and the appeal was argued on the basis that it applies throughout Australia. The appellant claims that the causes of action to ground the injunction were not established and, if established, the injunction was too wide.
Facts
2 The facts on which the respondent sought the injunction were that, in September 1997, it commenced producing a magazine under the name "Scoop". The magazine was published quarterly and copies were sold for the price of $6.95. It was pleaded that the magazine is a lifestyle magazine focusing on the tourism market and the related booking, advertising and sales markets in Western Australia. His Honour's description was that it was a semi-glossy magazine, printed on good quality paper containing approximately 160 pages. It related mainly to Western Australia and contained articles on food and wine together with reviews of films, sporting and other events. His Honour also found that it had a large number of good quality advertisements which he said was a matter of some importance. Each edition sold between 18,000 and 22,000 copies.
3 In February 1999 the appellant commenced to publish a magazine using the name "Scoop" which appeared as the predominate word but it was preceded by the word "the" in very much smaller type. This magazine was published in Sydney, but copies were placed for sale in Western Australia and it was advertised for sale in this State. It would be seen by many as an obscene publication. The copy in evidence shows that on a number of pages there are completely nude photos and language prominently displayed containing words that many would regard as obscene.
4 The respondent brought an action alleging that the appellant contravened the provisions of s 52 of the Trade Practices Act 1974 (Cth) by engaging in deceptive and misleading conduct. The respondent claimed, further, that the appellant was guilty of the tort of passing off.
(Page 5)
5 Templeman J considered, firstly, the question of passing off. His Honour set out the well established principles of the tort and the grounds of appeal do not bring this aspect into question. The first element his Honour considered was whether the respondent, as plaintiff, had established a reputation for its magazine. His Honour found that the respondent had established both in Western Australia and elsewhere in Australia a reputation sufficient to ground the action. The grounds of appeal do not now challenge his Honour's finding as to reputation within Western Australia but they do challenge the finding as to the reputation extending elsewhere in Australia. This latter challenge is important as to the extent of the injunction and will be considered later.
6 The next question his Honour examined was whether the appellant's conduct amounted to a misrepresentation. It was not pleaded that the appellant was aware of the existence of the respondent's publication. His Honour said that there was no question of fraud and that in the absence of fraud, the question was whether persons in the relevant class are likely to be misled into believing that an association exists between the two products. His Honour, after examining the evidence in detail, said that he considered that the word "Scoop" had become distinctive of the respondent's magazine and that the use by the appellant of the same word amounted to a misrepresentation that the appellant is or may be in some way associated with the respondent. His Honour also said that the appellant's conduct constituted a misrepresentation because purchasers or potential purchasers of the respondent's magazine, who were aware of the existence of the appellant's magazine, may conclude that the two have come from the same source. Ground 5(a) challenges these findings. I consider on this question his Honour was correct for the reasons he stated. The evidence on this question, in my view, came close to being overwhelming. The appellant's publication was a little smaller in dimension than the respondent's publication. Each had the appearance of a magazine and the names "Scoop" was a predominant feature of both the appellant's and the respondent's magazine. In the appellant's magazine the word "The" was in much smaller type. The common name in these circumstances would be a compelling feature.
7 The third and final element examined by his Honour, for the purposes of determining whether the tort had been committed, was whether the respondent suffered, or was likely to suffer, damage as a result of the misrepresentation. A plaintiff, in these circumstances, must
(Page 6)
- demonstrate that he or she suffers damage by reason of the erroneous belief engendered by the misrepresentation that the source of the publication is the same for each publication. His Honour said that he was satisfied, that the appellant's conduct in publishing its magazine, was a misrepresentation which was likely to be injurious to the plaintiff's representation, because of a perception that the respondent was associated with the publication of a vulgar or pornographic magazine. Ground 5(b) claims that his Honour erred in concluding that the misrepresentation he found was likely to be injurious to the respondent's reputation.
8 The respondent's claim was that the reputation which its magazine now enjoys is likely to suffer from an injurious perception of association with the respondent's publication. Again, I consider his Honour was entitled to reach the conclusion he did for the reasons he stated. These reasons included an examination of all the evidence. For my part I would have no hesitation in drawing the inference that a significant number of persons purchasing or subscribing to the respondent's magazine would see the appellant's publication as obscene. For that reason some would abstain from obtaining any magazine bearing the name "Scoop" for such purposes as having it in waiting rooms in order to avoid any perception of their being associated with an obscene publication. The effect of the appellant's magazine being available and advertised would cause any magazine bearing the name "Scoop" to be suspect with potential purchasers not wishing to be associated with a magazine of that name. His Honour examined a number of other areas which supported the same conclusion.
9 I consider there was ample evidence for his Honour to reach the conclusion that the tort of passing off had been committed within Western Australia. The trial Judge then dealt with the claim under the Trade Practices Act. He dealt with this shortly by saying that although there was a conceptual difference between passing off and misleading and deceptive conduct under s 52 of the Act, the difference was insignificant in the present case. His Honour said that his observations in relation to misrepresentations in the context of passing off were equally applicable and the contrary proposition is not being argued.
Whether the remedy was too wide within Western Australia.
10 Grounds 6 and 9(a) claim that if a cause of action is established the remedy granted, in so far as it should operate within Western Australia, is too wide. His Honour in his initial reasons indicated, in general terms, the form he considered the orders should take. He referred to a number of
(Page 7)
- authorities in which it was said that even though the conduct may have been innocent, an injunction should be granted by reason of the fact that the continuing use of a mark after awareness that its use does cause the goods of the defendant to be mistaken for the plaintiff's is no less fraudulent in the eye of a court than user with an original intent. His Honour considered a proposition that the appellant change the name of its magazine to "The Weekly Scoop". He said that this would not, in his view, eliminate the perception of association. Consumers might think that the "Scoop" organisation was publishing a downmarket weekly magazine in addition to its upmarket quarterly. He considered therefore, that unless the defendant was prepared to undertake to the court to withdraw "The Scoop", or publish it under a quite different title, an injunction should be granted to prohibit publication in the current name, or in any name which is deceptively similar.
11 His Honour made specific reference to the appellant's radio advertising which he said precipitated the action. He considered the possibility that restraining the advertising might be sufficient and he came to the view that it would not be, both from a practical point of view and in principle. He said there would be nothing to stop the appellant from advertising in some other way. He also considered the suggestion of some disclaimer of association being adequate. He said that, in principle, a person who has established a reputation by the use of a distinctive name is entitled to restrain others from using it. Such person has a right of property which he is entitled to protect. The order which his Honour ultimately made was to grant the injunction. The order does not itself appear to refer to radio advertising, but it would appear to be based on an undertaking that there would be no such advertising.
12 Ground 6 claims that his Honour erred in concluding that the inclusion of a disclaimer in the advertisement would not afford sufficient protection to the respondent. It was suggested in argument that within Western Australia there would be no need for the injunction itself as the appellant's magazine would be sold by retailers in a different location, in a cover and with a disclaimer. I do not see the ground of appeal going this far, but my view is that the use of a disclaimer in either selling the product or in advertising would be inadequate. The perception associated with the title "Scoop" to which I have referred would remain. I consider his Honour's orders were appropriate for operation within Western Australia.
(Page 8)
13 The remaining grounds of appeal bring into question his Honour's order extending the injunction throughout Australia. The order itself does not refer to any geographical limitation, but it would be implicit from his Honour's reasons and from the fact that the order is endorsed as a declaration under the Trade Practices Act, that it would not extend beyond Australia and if it was to be limited to Western Australia, it would be necessary to specify this in the order.
14 The first thrust of the grounds is that it was not open to his Honour to make the findings of fact that the respondent had established a reputation beyond Western Australia. The second thrust is that his Honour erred in ruling that it was not essential for a plaintiff to prove a separate reputation in every State or major population centre in order to qualify for the type of relief obtained. His Honour, when dealing with this latter question said that the question whether a reputation established in one part of Australia is sufficient to justify relief in another part was left open by Gibbs J (as he then was) in BM Auto Sales Pty Ltd v Budget Rent-a-Car System Pty Ltd (1977) 51 ALJR 254 in the following passage at 259:
"It is unnecessary to … consider whether any distinction should be drawn between cases in which the plaintiff's business reputation has been acquired in a foreign country and those in which the reputation has been acquired in a part of Australia other than that in which the proceedings are brought."
15 Sir Harry Gibbs referred to the fact that the plaintiff in that case did not have to rely on its reputation elsewhere in Australia. Templeman J in the present case then cited with approval an observation by Lockhart J in Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302. In that case Lockhart J said that it was no longer valid, if ever it was, to speak of a business having goodwill or reputation only where the business is carried on. Templeman J adopted that statement as being of general application as he said it was based on an appreciation of the extensive nature of present day travel and communication. His Honour said that those considerations are particularly relevant to a business such as Scoop Magazine, which is an adjunct to the interstate tourism industry. He said that he could not ignore the notorious fact that tourists visit Western Australia from all parts of the country. He said these facts, together with the evidence that he had earlier set out, raised a compelling inference that Scoop is known to a substantial number of people in all the other States and territories who have become aware of it through their travels and may be regarded as purchasers, potential purchasers, or consumers. He said
(Page 9)
- that these considerations led him to the conclusion that he should adopt the national, rather than a parochial approach, and not regard it as essential for the plaintiff to prove a separate reputation in every State or major population centre, in order to qualify for relief. He said that the passage of the Service and Execution of Process Act 1992 (Cth) was an extension of State jurisdiction, and the fact that the misleading and deceptive conduct is proscribed by Federal legislation supported his view. His Honour found that the respondent had established both in Western Australia, and elsewhere in Australia, a reputation for its magazine which was sufficient to ground the action for passing off. His Honour accordingly made orders which were capable of being registered in every State under the Service and Execution of Process Act.
16 The first question to consider is whether it was open to his Honour to reach the conclusions he did. There was evidence that the respondent's publication was read beyond Western Australia. The first was the fact that between March 1998 and February 1999 there was published a Scoop "In-Flight Magazine" which was placed in Qantas aircraft operating the Airlink service within Australia. The In-Flight magazine was virtually identical to the basic magazine, but it contained an additional eight pages containing Qantas Airlink promotional materials. There were four editions published over this time. Airlink services operated within Western Australian, the Northern Territory and Queensland, and the planes also operated between Perth and other Western Australian towns and Darwin and Cairns. The service did not operate in New South Wales, Victoria or Tasmania. The next area examined by his Honour was that the publication, with the exception of the Esplanade Hotel in Fremantle, Scoop was distributed free of charge to every one of the 5,000 three, four and five star hotel rooms in Western Australia and to approximately 795 executive apartments in Perth. It was also made available to interstate visitors by the Western Australian Tourist Commission. By reason of these factors visitors from all parts of Australia would come in contact with the publication. His Honour analysed, in depth, figures before him as to the number of people from interstate who may come in contact with the publication. His Honour, in addition, referred to the fact that the respondent had been operating a "Scoop Privilege Club". Membership of the club involves payment of an annual fee which entitles the member to a year's subscription, together with monthly updates by mail about the latest arts, lifestyle and sporting events in Western Australia; the opportunity to reserve VIP seating at selected events in Perth and discount packages applying to various retail and leisure services in Western Australia. There are 400 members of the club of which 27 are resident or located outside
(Page 10)
- Western Australia. Some of the subscribers are corporations, one of which is the Australian Tourist Commission in Woolloomooloo in New South Wales. While the number of 27 may be small, it does indicate that 5 per cent of a particular group are from interstate. There is also a Scoop Website available to persons throughout Australia. This was the evidence from which his Honour made the inferences to which I have earlier referred. His Honour examined the evidence in detail and thoroughly and I consider it was open to draw from this evidence the inferences he did.
17 The next question to consider is whether His Honour erred in ruling that it was not essential for a plaintiff to prove a separate reputation in every State or major population centre in order to qualify for the type of relief obtained. There are a number of possible combinations in respect of establishing reputation in a passing off action. The first is that a company or person carrying on business within the jurisdiction establishes a reputation for the publication in the jurisdiction. This is a normal situation where the issues are comparatively simple. The second possibility is that a person or company carrying on business outside the jurisdiction, establishes a reputation within the jurisdiction. This has been held to be sufficient to give relief within the jurisdiction. This was the situation in the case considered by the House of Lords in Warnink v Townend & Sons (Hull) Ltd (1979) AC 731. This was also the position considered by the Full Court of the Federal Court in Conagra Inc v McCain Foods (Aust) Pty Ltd. The third possibility is the situation which has arisen in the present case, namely a company carrying on business within the jurisdiction has established a reputation outside the jurisdiction in an area where it is possible, by legislation, for the orders of the Court to be enforced. There is, as I see it, no direct authority on this situation and no authority to say what must be established beyond the jurisdiction to enable an injunction to be enforced elsewhere. I do not consider what was said by Lord Fraser in Warnink v Townend & Sons (Hull) Ltd at 755 is of assistance on this question. His Lordship made reference to establishing a reputation in England as a step in obtaining relief throughout England, but he was doing no more than saying in the second class of case to which I referred, that when a company outside the jurisdiction is bringing action, then it must establish its reputation within the jurisdiction and this must be done in order to establish the cause of action. In the present case the cause of action has been established in the jurisdiction and the question is limited to how far the injunction can go. In Conagra Inc v McCain Foods (Aust) there was an extensive review of the authorities by Lockhart J which was the source used by the trial Judge in the present case. Lockhart J, in his analysis at 339 under the heading of
(Page 11)
- "The Basis of Passing Off and the Test of Local Connection", set out what a foreign company outside the jurisdiction must prove in order to obtain relief in the jurisdiction. I consider, however, that the converse does apply in the sense that similar principles would apply to a company within the jurisdiction seeking to establish its reputation outside the jurisdiction. It must show that there is a reputation outside the jurisdiction in respect of a trade or business carried on within the jurisdiction.
18 The cases make it clear that the injunction ought not to extend beyond the area where the reputation has been established. This was the basis of the decision in Snoid v CVS Records (1981) 38 ALR 383. The case of Motorcharge Pty Ltd v Motorcard Pty Ltd (1982) 4 ATPR 43,724 is in a similar category. The trial Judge in that case found, as a fact, that the applicant had established a reputation in Western Australia, but despite some promotional activity in New South Wales and Victoria his Honour was not satisfied that a reputation had been established in those States. Representatives of the company visited those States with a view to establishing the business, but the mere fact that these steps were taken does not necessarily indicate that the reputation is in fact established.
19 The injunctions granted by this court can be extended to other parts of Australia by reason of the provisions of the Service and Execution of Process Act. There would be no basis for saying that there should be special rules other than that the injunction must not extend beyond the area where reputation has been established. The cases are consistent with the proposition that once a reputation has been established in a general geographical area, there is no requirement to prove it in every single part of that area. Once it has been established that there is a general reputation throughout Australia, I do not consider that there would be any basis for saying that the reputation must be established in every jurisdiction in which the injunction is to be registered, as that would be the equivalent of saying that a reputation must be established in every particular part where the injunction is to be enforced. I would see it as being the intention of the Trade Practices Act that once the evidence establishes the appropriateness of a remedy throughout Australia it should be so applied on the basis that Australia is one country and not six States. I do not consider the Service and Execution of Process Act requires the court, in a circumstance such as this, to examine whether the tort has been committed in every jurisdiction where the order might be registered. The cases show that it is open to extend the injunction to the area where the reputation exists and his Honour has found, in this case, that it exists throughout Australia. It could never be proved from which State each reader comes.
(Page 12)
20 It is for these reasons that I joined in the order, made on the day of hearing, dismissing the appeal.
21 WALLWORK J: I agree with the reasons for judgment of Pidgeon J.
22 MURRAY J: I have had the advantage of reading in draft the reasons for decision published by Pidgeon J. They sufficiently express for me the reasons why I joined in the orders dismissing the appeal and cross-appeal and the other substantive orders made at the hearing. The case really turns on questions of sufficiency of evidence and as to those issues, there is nothing which I could usefully add to the reasons of Pidgeon J.
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