Ronald, L.W. v Bretday Pty Ltd

[1987] FCA 198

r' Limited Distribution

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,

C A T C H W O R D S

TRADE PRACTICES - misleading or deceptive conduct - respondents

establishing same business of applicants in an area where

applicants have no reputation o r goodwill - applicants' business

name unregistered - strong evidence of infringement by-

respondents of applicants' copyright, -

INJUNCTIONS - interlocutory -whether prospects of final success a relevant factor in balance of convenience where in a commercial sense the interlocutory application will determine the issue

finally.

INJUNCTIONS - lnterlocutory - mandatory - high	degree	of
assurance required.
Business Names Act 1962-1979 (Qld.)

Trade Practices Act 1974 s.75B

LINDSAY WILLIAM ROMALD & ANOR. V. BRETDAY PTY. L I M I T D & ORS.

QLD NO.G39 of 1987

.

IN THE FED=	COURT OF AUSTRALIA	)
)

QUEENSLAND DISTRICT REGISTRY	1	QLD, G39 of 1987
)
GENERAL DIVISION	1

: - B

LINDSAY WILLIAM RONALD and WONNJZ LONRY

Applicants

AND:

BRETDAY PTY. LIMITED, NORMAN EDWARD STOECKEL, JANINE MAREE ROW.:, RODNEY NORMAN STOECKEL and

H O L E S

Respondents

MINUTE OF ORDET?

JUDGE MAKING ORDER:	SPENDER J -
DATE OF ORDER:	24 APRIL 1987 ,

WHERE MADE: BRISBFNE

"HE COURT ORDERS THAT:

1. The application for lnjunctive relief be refused.

2 -

The first, second and fifth respondents

pay the costs of the application-

-: Settlement and Entry of Orders is dealt with in Order

36 of the Federal Court Rules.

IN THE FEDERAL COURT O F AUSTRALIA

I

QUEENSLAND DISTRICT REGISTRY	1	QLD- G39 of L987
1
GENERAL DIVISION	1

LINDSAY WILLIAM RONALD and WONNE LOWRY

Applicants

AND:

BRITDAY PTY. LIMITED, NORMAN EDWARD STOECKEL,

JANINE W E	ROWE, RODNEY NORMAN STOECKEL. and
HOLMES

Respondents

DATE OF HEARING:	16 APRIL 1987
DATE JUDGMENT DELIVERED:	24 APRIL 1987-

COUNSEL :

for the applicants Mr - J.P.. Rivett

for the respondents Mr. J.C. Sheahari

T. MACDERMOTll

ASSOCIATE TO SPENDER J.

SPENDER J.

BRISBANE

24 APRIL, 1987.

IN THE FEDER?&	COURT OF. AUS!TRALIA	1
1

QUEENSLAND	DISTRICT	REGISTRY	)	QLD. G39 of 1987
1

GENERAI; DIVISION 1

BETWEEN :

LINDSAY WILLIAM RONALD and WONNE LOWRY

Applicants

AND:

BRETDAY PTY. LIMITED, NORMAN EDHARD STOECKEL,

JANINE MAREE ROWE,	RODNEY NORMAN STOECKEL and m
HOLMES

I

Respondents

SPENDER J.

BRISBANE

24 APRIL, 1987

REASONS FOR JUDGMENT

The applicants seek the following interlocutory orders:-

1. FA order restraining the respondents from

using in any way in the course of or in

connection with a business or trade the name

"Word of Mouth Public Relations/Promotions" or

any name which includes the words "Word of

Mouth" o r any other name which is

substantially identical with or deceptively

similar to the name "Word of- Mouth Public

Relations/Promotions" or "Word of Mouth".

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2. An order that he first respondent do

forthwith lodge with the Commissioner for

Corporate Affairs Queensland, a statement of

the kind which is ordained by Section 12(3) of

the Business Names Act 196211979 of the said .

State and in the form prescribed notifying the".

2 ..

said Commissioner that it has ceased to carry

on business in the said State under the

business name 'Word of Mouth Public-

RelationslPromotions" ..

3. An order that the respondents do forthwith

destroy upon oath all signs, notices,

promotional o r advertising material of any

kind whatsoever, letterheads, business cards,

papers or documents of any description

whatsoever in their possession or in the

possession of any of their servants, agents or

suppliers which include the words "Word of

Mouth Public RelationsIPromotions" or "Word of

Mouth" or which have on them an emblem being a

line drawing of a rose positioned diagonally

across the page with the bloom at the top left

hand side and superimposed thereon a digital

telephone inside a rounded black square.

4. An order that upon written request being made by the applicants the respondents and each of

them do forthwith notify the said Commissioner

for Corporate Affairs of their consent to the

registration pursuant to the provisions of the

Business Names Act 1962-1979 of a business

name "Word of Mouth Public Relations" in the

names of the applicants or their nominees.

The first respondent, Bretday Pty. Limited, ("Bretday")

was incorporated on 28 May 1982 and, from 6 Apiil 1985, its

registered office has been Suite 5, 10 Strathaird Road, Bundall

on the Gold Coast.

On 1 November 1986, Bretday applied for registration of

the business name "Word of Mouth Public RelationslPromotions"

pursuant to the Business Names Act 1962-1979 (Qld.). The

2 application states the nature of the business to be business

promotions. Originally, the place of business in Queensland was

said to be Argyle Place, Argyle Street, Breakfast Creek,

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Brisbane, but that place of business has been altered to Office

3, 27 Stoneham Road, Stones Corner, Brisbane.

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The application dated 1 November 1986, signed by the

second respondent, the Managing Director of Bretday, states that

the business commenced on 11 October 1986. The business name was

registered on 1 December 1986.

The third and fourth respondents are directors of

Bretday. Norman Edward Stoeckel, the second respondent, in his

affidavit says that the third and fourth respondents, Janine

Maree Rowe and Rodney Norman Stoeckel, are directors of Bretday

but "have at no stage been personally involved in the running	of
the business of 'Word of Mouth Public Relations'." There is no

other evidence to suggest that they have been involved in any way

in the events the subject of these proceedings. Counsel f o r the

applicants submitted that it is an irresistible inference from

their being directors of Bretday that the third and fourth

respondents are caught by the provisions of s.75B of the Trade

Practices Act 1974.

Section 75B provides:-

"A reference in this Part to a person involved in a

contravention of a provision of Part IV or V shall

be read as a reference to a person who -

(a)	has aided, abetted, counselled or procured the contravention;
(b)	has induced, whether by threats or promises

or otherwise, the contravention;

(c) has been in any way, directly or-indirectly,

knowingly concerned in, or party to, the

contravention; or-

(d) has conspired with others to effect the contravention."

4.

Concerning this provision. Gibbs C.J.. in. Fencott v.

Muller (1982-1983) 152 C.L.R. 570, at p.584; (1983) 57 A . L . J . R .

317, at p.321, said:-

"By the combined provisions of ss.. 75B and 82, the

Parliament has made natural persons liable in damages for. a contravention by the corporation

only if they have been involved in the manner

described by S. 75B, which, in my opinion, refers to a close rather than a remote involvement in the

contravention. In the most general words of

s.75B, those of par..(c), the word 'knowingly'

significantly	confines	the	operation	of	the
provision.

In Yorke v. Lucas (1983) 8 0 F . L . R . 143, the Full Court

of the Federal Court, constituted by Bowen	C.J. ,	Lockhart and
Beaumont JJ., said at p.152:-

"The phrase 'knowingly concerned in' (s.75B(c))

plalnly requires mental a element, namely,

knowledge of the relevant facts: see Mallan v. Lee

(1969) 8 0 C.L.R. 198 at 211.

The act of conspirmg wlth others to effect a contravention ( S . 75B(d)) necessarily involves an

element of intention, requlrlnq an agreement

between two or more people to effect	a proscribed
act.

We can discern no reason why Parliament would have

intended that a section which renders natural

persons liable for c ntravention a by a

corporation should require some mental element or

absence of innocence in every case to which it

refers except one which itself requires in its

first limb that he person was 'knowingly'

concerned the Contravention. in This is

especially so when the word 'party' is found in

accessory provisions of criminal legislation such

as S. 5 of the Crimes Act 1914.

The words 'party to the contravention' necessarily

connote, in our view, that	a person assents to or
concurs :in the conduct	which constitutes the

contravention. He, must therefore know or be aware

. . the of essential facts or matters which must be

proved to establish the-contravention." - . - I.

-.- - - . . -

15 -._ . ,

5.

And later the Court said:-

"In our opinion,. the words 'party to the

contravention' refer to a person who participates

in, or assents to the contravention in question.

To be regarded as participating in or assenting,

such a person must actually or constructively be

aware the el ments of constituting the

contravention. To our minds, it is not sufficient

to render an individual. liable if he is shown to

be aware of some only of those elements.. Where

the contravention in question relates to engaging

in trade or commerce in conduct that is

misleading, one of the elements involved is that

the conduct is misleading. If a person sued under

S, 82 for damages as a person involved in the

contravention is unaware of the essential facts

and matters constituting the contravention, then

he lacks knowledge of an essential element of the

contravention, He cannot, in our view, In those

clrcumstances, be regarded as a party to the

contravention (cf. Guthrie v. Dovle- Dane &

Bernbach Ptv.Ltd. ( 1 9 7 7 1 30 F.L.R. 116 at 119-120,

but see Taperell. Vermeesch & Harland Trade

Practices	and	Consumer	Protection	(2nd	ed)	,
p.6041 . "

On appeal to the High Court, (Yorke v. Lucas (19851 158

C.L.R. 661) the joint judgment of Mason A.C.J., Wil;on, Deane and

Dawson J J . , included at p.670:-

"There can be no question that person cannot be

knowingly concerned in a contravention unless he has knowledge of the essentlal facts constituting the contravention.

In our view, the proper construction of par. (c)	...
requires a party to a contravention to be an
intentional particlpant, the necessary intent
being based upon knowledge of the essentlal
elements of the contravention."

Brennan J. was of the same view. He said, at p.673:-

"The provisions of S. 75B should therefore be

construed as though they were defining the persons ; ., .

.. ,. criminally liable. for contraventions of the. -

6 .

provisions of Pt.IV and S . 52 and for offences

created by the other provisions of Pt. V."

And later,

"Construing S . 75B in that way, civil-liability is

imposed only on those who, if the particular

contravention in Pt-.IV or Pt.V were an offence,

would be held criminally liable for it, Civil

liability is thus imposed only on those who engage

in the conduct prescribed by S . 75B with the state

of mind which the criminal law calls mens rea."

In my opinion, it is impermissible to infer that a

person is knowingly concerned in a contraventionby a company of

the provisions of the Trade Practices Act 1974 or has aided,

counselled, abetted, procured, induced, or has conspired with

others to effect a Contravention from the mere fact that that

person 1s a director of that company.

The fifth respondent is an employee of the first

respondent and has actively engaged in its activities. There is

some evldence that she has seriously slandered the buslness of

the appllcants, but no relief is sought directly on this account.

The applicants, from September 1986, operated a

telephone canvasslng -business under the name "Word of Mouth

Public Relations" from premises sub-leased from the second

respondent on the Gold Coast. The busmess name under which this

business operated was unregistered.

The applicants describe the nature of the business in

this way:-

. -

l

7,

“Ours is a promotional and marketing business. We

reach an agreement with one or two local

businesses normally involved in the hair and

beauty, printing or automotive services whereby

they offer a package to potential customers at a

reduced rate-. The standard package which we seek

to negotiate is- a combination of hair treatment

and.beauty treatment totalling $300.00 in value

and this is offered. to potential” customers f o r

$50.00. We canvass telephone subscribers in a

particular area and sell the package for $50 which.

is a fee payable to us. No other fee is payable.

by the business. The benefit provided to the

business is the additional custom they obtain from

the new customers we attract and the probability

that these customers will become regular customers

of the business. ‘I

In conducting this business, a survey of the area for

appropriate busmesses is made, agreements entered into with

busmesses for the marketing of services on their behalf, and a

standard agreement 1 s signed by the parties- The applicants then

organlse the printing of promotional brochures setting out the

servlces on offer. The brochures are consecutively numbered

1-300 so a proper record can be maintamed of the, Sale5 made;

the brochure printed by the applicants has a logo, being- a line

drawing of a rose with a bloom on the top left hand side,

superimposed on which is b digital telephone enclosed in a

rounded black square. Staff are then employed. as telephone

operators to telephone members	of the public in the promotion of
the offer.

At the present time in the conduct of the business at

Mooloolaba on the Sunshine Coast of Queensland, the applicants

have ten telephones operating from 4.30 p.m. to 9.30 p.m. Monday

to Friday, and Saturday morning from 8.30 a.m. to 1.30 p.m.

. - - . .

8.

After the 300 sales have been made,. the same procedure

is followed in respect of different businesses. The technique

they say has been developed by themselves and has been used

successfully and profitably by them since 1983.

The applicants initially commenced operating in Sydney

under the name "Sungrid Market Developers", which was a

registered business name.	The applicants operated the business
in Sydney until November,	1985, when they left and commenced

business in Melbourne under the business name "Word of Mouth"..

That business was operated for approxlmatelp six months- in

Melbourne, whereupon the applicants returned to Sydney in about

June 1986.	The Sydney business was sold during September	1986
for $25,000.00-

In September 1986, the applicants commenced business

under the name "Word of Mouth Public Relations" on tpe Gold Coast

in premises subleased from the second respondent at 10 Strathaird

Road, Bundall, using	the same brochures that had previously been
devised.

At that time, publishing business from that address and the fifth respondent the second respondent was operating a

I

was operating a publishing business called "Buyers Guide" out of

the same address.

The applicants say that in October 1986, they had a

conversation at the Bundall office with Norman Edward Stoeckel

and with Moya Holmes, the second and fifth respondents. Yvonne

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Lowry In her affidavits says that she toldthe respondents- that

the applicants intended to commence business in Brisbane as soon

i	as they could. On 25 November 1986,. the applicants posted an application form for reservation of the business name "Word of
Mouth Public Relations". They depose to the fact that they were
told by the Commissioner f o r Corporate Affairs that the name was
not available as "Word of Mouth Public Re1ationslPromotions"- had
already been application of the second respondent. On registered by the first respondent on the

l December they say

that they could then only register the name "Advertising bp Word

of Mouth", That business name was registered in January 1987-

On 1 December 1986, the applicants sold the Gold Coast

business for $25,000.00. In them affidavlt they say that they

agreed to allow the purchasers to use the name "Advertising by

Word of Mouth" or, "if we could obtain it 'Word of Mouth Public

Relations' in the area coveredby the '075' telephone prefix."

The applicants say that they were told by Mr. Stoeckel

on 20 December 1986, that the name "Word of Mouth" had been

registered and "we have YOUK promotional material which we got from your office", They say that they left the Gold Coast with the intention of setting up business in Brisbane and on the

;.

, .	n	Sunshine	Coast.
;:,:
._

,. On 27 January 1987, the applicants commenced business on

the Sunshine Coast at 77 The Esplanade, Mooloolaba, after movlng-

) O

..	...	to	the	Sunshine	Coast	on 24 December 1986. The	business
% -'
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X- commenced as "Word of Mouth Public Relations" and operated under

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that name until approximately earlpMarch, when the name was

changed to "Advertising by Word of Mouth" because, as they say,

the only name they could. register was "Advertising by Nord of under the registered name.

On 26 February 1987, the applicants commenced business

in Brisbane, operating out of an office at Strathpine- The

operation of the business in Brisbane is facilitated by access to

telephone listings arranged by computer by a firm called

Micromations into geographical groupings.

The respondents have been operating in Brisbane under

the name "Word of Mouth Public Relations" at 27 Stoneham Street,

Stones Corner, since the second week of December 1986. The

second respondent, Mr. Stoeckel, say5 that, shortly after the

applicants commenced the business "Word of Mouth Public

Relations" from the premises of Bretday on the Gold Coast, they

negotiated for its sale. He says that:-

"I had applied to the Corporate Affairs Office in

Brisbane for registration of the name of "Word of

Mouth Public Relations" in the name of the company

Bretday Pty. Ltd. at about this time.

In registering the name "Word of Mouth Public	...
Relations" in Queensland Bretday Pty. Ltd.
believed that it had the right to use that- name
for a business which it intended to set up in
Brisbane. "

It is clear that, in the operation which the respondents

commenced in Brisbane in December 1986, not only- did they copy,

the business technique which had been developed- by the

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11.

applicants, but more seriously and more importantly-, they quite

slavishly copied the	promotionalmaterial and	other literature in
which the applicants	had. copyright.

As regards the relief claimed by the applicants based.on

breaches of copyright. the respondents, at the hearing, gave an undertaking to the Court in terms of the relief claimed in paragraph 3 of the Notice of Motion.

It seems clear beyond argument that the use of such

material by the respondents at the same time as the applicants

were carrying on a business In Brisbane using that material, was

conduct which would clearly constitute a contravention of

s.52

and would indicate at least an association between those two

businesses.

A s a consequence of the undertaking given by the

respondents, all that remalns to be determined 1 s whether the

applicants are entitled to prevent the respondents using the name

"Word of Mouth Public Relations" in association wlth their

telephone canvassing busmess in Brisbane.

There is no monopoly on ideas. However one might

disagree with the business morality of the respondents in

appropriating the business ideas and techniques developed by the applicants, and however one might think that that conduct really

amounts to "reaping where they haven't sown", in my opinion there

was no lawful impediment to the respondents setting up an

identical business in Brisbane to that which the applicants were

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12.

operating on the Gold Coast. TheIbusiness is essentially local.

At the core of its operation is the method of telephone

canvassing for customers for local businesses. Inherent in the

operation is the requirement that the telephoning be confined to

a single	STD district.
I am not satisfied that at the time the respondents set

up their business in Brisbane, there was reposing in the

applicants any goodwill or reputation in the words "Word of Mouth

Public Relations" in the Brisbane area. This conclusion is determinative of the narrow issue left for adjudication-

Deane and Fitzgerald JJ. said in Taco Companv of

Australia Inc. v . Taco Bell PtT.Ltd. (1982) 42 A . L . R . 1 7 7 at

p. 202 : -

"Irrespectlve of whether conduct produces, or is

likely to produce confusion or misconception, it

cannot, for the purposes of 5-52, be categorized

as misleading or deceptive unless it contains	or
conveys, in all the circumstances of the case, a

misrepresentation. The difficulty yhlch will

commonly arise in a 5.52 case is in determining

whether the conduct contains or conveys, in all

the circumstances, a misrepresentation ..."

They then advanced a number of propositions as affording

guidance, the first wo of which are relevant in the

circumstances of this case. Their Honours said:-

"First, it is necessary to identify the relevant

section (or sections) of the public (which may be

the public at large) by reference to whom the-

question of whether conduct is, or is likely to

be, misleading or deceptive falls to be tested-

(Weitmann v. Katies Ltd.. (1977). 29 FLR 336, per .., .. . ~

Franki J. at 339-40, cited with approvaLby Bowen . . - .. . .-

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CJ and Franki J in Brock v. Terrace Times Pty.

Ltd. (1982) 40 ALR 97 at 99; C19823 ATPR 40-267 at

43,412).

Second, once the relevant section of the public is

established, the matter is to be considered by

reference to all who come within it, 'including

the astute and the gullible, the intelligent and

the not so intelligent, the well educated as. well.

as the poorly educated, men and women of various

~ -

ages pursuing a variety of vocations': puxU

Pty.Ltd. v. Parkdale Custom Built Furniture Ptv.

Ltd. (1980) 31 ALR 73, Per Lockhart J.. at 93:- see

also World Series Cricket v. Parish, supra, per

Brennan J. (16 ALR at 203). "'

At the time the business was set up in Brisbane by the

respondents, it is not open on the present evidence to conclude

that any relevant section of the public would be likely to be

misled or deceived by the conduct of the respondents in carrying

on their business.

The complaint of the applicants, in their counsel's

forceful submission. is that the respondents 'stole'. the business

of the applicants. While in the colloquial sense that mlght be

true, there was in my view no business in Brisbane of the

applicants at any relevant time such as to preclude the

respondents lawfully from carrying on a telephone canvassing

business, identical with that which the applicants carried on at

the Gold Coast, in Brisbane, provided the applicants' copyright

was not infringed.

4

As to the failure by the applicants to register the

business name "Word of Mouth Public Relations" used in the

business- conducted on the Gold Coast,. 1 respectfully agree with,

the conclusion of Jenkinson J. in Aspar Autobarn Co-operative

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Society Ltd. v. Dovala Ptv.Ltd. E19863 ATPR 40-727, where his

Honour concluded that registration by the respondents of the

expression "Autobarn" did not afford in itself an answer to the

claim that the use of that word had constituted breaches of

ss.52, 53(c) or 53(d) of the Trade Practices Act 1974. In that

case, his Honour concluded that the reputation and goodwill for

the protection of which the applicants had sought the Court's exercise of its injunctive power,. did not owe their existence, although substantial enhancement of their values was owed, to deliberate contraventions of the Busmess Names Act 1962 (Vic.)

by the applicants. His Honour concluded at p.47,939 that, in all

the circumstances of this particular case, the consequences of

those contraventions were not of a kind which could have

constituted asubstantial interlocutory injunctive relief. impediment o the granting of

In Epitoma Pty.Ltd. v. Australasian Meat Industry

Employees' Union and Others (No.2) (1984) 54 A.L.R. 730, the Full

Court of the Federal Court (Sheppard, Morling and Beaumont JJ.) held, at p.734:-

"In an application f o r an interlocutory injunction,

the court must inquire first whether there is a

serious question to be tried (see Australian

Coarse Grain Pool Pty.Ltd. v. Barley Marketinq

Board of Oueensland (19821 46 ALR 398; 57 ALJR

425; Tableland Peanuts Pty.Ltd. v. Peanut

Marketinq Board (1984) 52 ALR 651; 58 ALJR 283,

per Brennan J. at 284) . "

In cases of this kind, the applications f o r

interlocutory relief are often substantially determinative of the

15.

factor which has	to be considered in assessing the balance	of
convenience.

In N.A.L. Ltd. v. Woods E19793 1 W.L.R, 1294, Lord

Diplock at p. 1306 said:-

"My Lords, when properly understood, there is in my

view nothing in the decision of this House in American Cvanamid Co. v. Ethicon Ltd. C19753 A-C, 396 to suggest that in considering whether or not

to grant an interlocutory injunction the judge

ought not to give full weight to all the practical

realities of the situation to which the injunction

will apply. American Cyanamid Co. v. Ethicon

Ltd., which enjoins the judge upon an application

for an interlocutory injunction to direct his

attention to the balance of convenience as soon as

he has satisfied himself that there is a serlous

questlon to be tried, was not dealing with a case

in which the grant or refusal of an injunction at

that stage would, in effect, dispose of the action

finally in favour of whichever party was

successful in the applicatlon, because there would

be nothing left on which it was in the

unsuccessful party's interest proceed o to

trlal. "

He later said at p. 1307:-

"Where. however, the grant or refusal of the

interlocutory Injunction will have the practical

effect of putting an end to the action because the

harm that will have been already caused to the

losing party by its grant or its refusal is

complete and of a kind for which money cannot

constitute any worthwhile recompense, the degree

of likelihood that the plaintiff would have

succeeded in establishing his right an o

injunction if the action had gone to trial, is a

factor to be brought into the balance by the judge

in weighing the risks that injustice may result

from his deciding the application one way rather

than the other . lL

Pacific In Hotels Pty.Ltd. v. Asian Pacific

International Ltd. C19867 ATPR -40-730, L -referred to this ,

. question and a number of- cases;particularly those-"passing. off"' -

16.

cases where the practical commercial realities of the. grant or .

refusal of an interlocutory application are considered as being

relevant in determining the balance of convenience aspect of the

application: see also the observations of Lord Denninq M.R. in

Fellowes- & Son v. Fisher E19767 1 Q.B. 122 at pp- 133-5,

In this case, the applicants seek inter alia mandatory

injunctions.

In State of Oueensland V- Australian Telecommunications

Commission (1985) 59 A.L.R. 243, Gibbs C.J. said at 245:-

"It is a	very nice question where the balance of convenience lies in the present case but in the end two considerations have inclined me in favour
of the vlew that 1 ought not to grant an
interlocutory injunction at the present stage.
The first of those considerations is that what is
sought is a mandatory injunction- In Redland
Bricks Ltd. v. Morris IT19707 A.C. 652, the House
of Lords held that the grant of a mandatory
injunction is never made as of course and that a
factor to be taken into consideration is that the defendant has not behaved unreasonably but only
wrongly. According to Halsburv's Laws of Ensland
vol. 24, para 948, the position regarding the
grant of a mandatory injunction an
interlocutory application is as follows: 'A
mandatory injunction can be granted on an
interlocutory application as well as at the
hearing, but, in the absence of special
circumstances, it will not normally be granted.
However, if the case is clear and one which the
court thinks ought to b e decided at once, or if
the act done is a simple and summary one which can
easily be remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory .injunction will. be granted on an interlocutory application.' - . ..

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Megarry J. stated the principle in Shepherd 'Homes _ - .

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Ltd. v. Sandham -.

E19713 1 Ch.

340 at 351, in. the

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following words: ‘...on motion, as contrasted with

the trial, the court is far more reluctant to

grant a mandatory injunction than it wouldbe to

I	grant a comparable prohibitory injunction. In a
normal case the court must, inter alia, feel a
high degree of assurance that at the trial it will
appear tht the injunction was rightly granted; and
this is a higher standard than is required f o r a
prohibitory injunction.‘

In my view this case lacks the high degree of assurance

that should exist for the grant of a mandatory injunction.

The present position is that each party has registered a

business name which includes the phrase “Word of Mouth“ and each

party is able to carry on the business of telephone canvassing

for local businesses under a name which includes that phrase. In

my opinion, the applicants have not established that they had a

reputation or goodwill in the Brisbane area in that name at any

relevant time so as to be entitled to prevent the respondents

from carrying on business under a name incorporating that phrase.

For the reasons L have given, I refuse the application

for injunctive relief. Notwithstanding that 1 refuse the relief sought by the applicants, having regard to all the circumstances

of the case and, in particular, the conduct of the respondents

prior to the making of the present application and the

undertaking in respect of the claims in copyright, 1 think the appropriate order to make bp way o f costs is that the first,

second and fifth respondents pay the costs of the application.

I certify that this and the I (;3 preceding

---?ages.aie~igt&e copy of the reasons for .

.fi ~ - .

“-judgment herein of His Honour -., :I . ,

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