State Government Insurance Corporation v Government Insurance Office of New South Wales

[1991] FCA 198

Re: STATE GOVERNMENT INSURANCE CORPORATION and STATE GOVERNMENT INSURANCE
COMMISSION
And: GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES; GIO HOLDINGS LTD and GIO
LIFE LTD
No. WA G48 of 1990
FED No. 198
Trade Practices - Crown - Insurance - Courts
(1991) 13 ATPR 41-110
101 ALR 259/21 IPR 65/28 FCR 511

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Trade Practices - misleading or deceptive conduct - competing State Government insurance offices - resemblance of logos inducing error - applicants' logo copied from respondents' - whether conduct of respondent causative of error - non-cognitive effects - whether capable of characterising conduct as misleading or deceptive - survey evidence - admissibility - weight - limited utility - Crown immunity - application of Trade Practices Act 1974 to Crown in right of State - whether law relevantly altered by judicial decision - whether applicable to Crown operating beyond State boundaries - whether applicable to State Crown by virtue of s.64 Judiciary Act 1903 - application to subsidiaries of Crown corporation - whether adverse to interests of Crown in right of State - whether Trade Practices Act applicable to State insurers beyond limits of State concerned - factors affecting injunctive relief - Fair Trading Act 1987 (WA) - whether relief available under accrued or cross-vested jurisdiction.

Crown - Crown immunity - construction of statutes - alteration and presumption against binding the Crown - whether affected by s.64 Judiciary Act 1903.

Insurance - State insurance extending beyond limits of State - whether affected by Trade Practices Act irrespective of Crown agency.

Courts - Federal Court - jurisdiction - injunctive relief claimed under Fair Trading Act 1987 (WA) - State Supreme and District Courts designated - whether accrued or cross-vested jurisdiction - procedural implications.

Trade Practices Act 1974 (Cwth) s.52, s.2A, s.4

Judiciary Act 1903 (Cwth)

Fair Trading Act 1987 (WA) s.10, s.3, s.74, s.79

State Trading Concerns Act 1916

State Government Insurance Office Act 1938 sub-s.7(1),, sub-s.7(2), s.5

State Government Insurance Office Act Amendment Act 1943, No. 29 of 1943

State Government Insurance Office Act Amendment Act 1945

State Government Insurance Office Act Amendment Act 1954

State Government Insurance Commission Act 1986, s.6, s.28(1) sub- s.28(5), s.30, s.36

Government Insurance Act 1927 (NSW) s.3

Life Insurance Act 1945

Motor Vehicle (Third Party Insurance) Act 1943

Workers' Compensation and Assistance Act 1981, s.161

Federal Court of Australia Act 1976 s.23

Jurisdiction of Courts (Cross-Vesting) Act 1987

Arnotts Ltd v Trade Practices Commission (1990) ATPR 41-061

Bradken Consolidated Limited v The Broken Hill Proprietary Company Ltd (1979) 145 CLR 107

Bropho v State of Western Australia (1990) 93 ALR 207

Bourke v State Bank of New South Wales (1990) 93 ALR 460

R. v Federal Court of Australia; Ex parte W.A. National Football League (1979) 143 CLR 190

Fencott v Muller (1983) 152 CLR 570

State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282

Melbourne Corporation v The Commonwealth (1947) 74 CLR 31

Province of Bombay v Municipal Corporation of Bombay (1947) AC 58

Townsville Hospitals Board v Council of the City of Townsville (1982) 149 CLR 282

Clark v Downes (1931) 145 LT.20

Smith v Smith (1986) 161 CLR 127

Fencott v Muller (1983) 152 CLR 570

Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261

Taco Co. of Australia Inc. v Taco Bell Pty Ltd (1982) 42 ALR 177

Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82

Tenth Cantanae Pty Ltd v Shoshana Pty Ltd (1988) 79 ALR 299

Chase Manhattan Overseas Corporation v Chase Corporation Ltd (1985) 9 FCR 129

Rhone Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477

Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83

Keehn v Medical Benefits Fund of Australia Ltd (1977) 47 ALR 77

Newton-John v Scholl-Plough Aust. Pty Ltd (1986) 11 FCR 233

Hogan v Pacific Dunlop Ltd (1988) 83 ALR 403

HEARING

PERTH

#DATE 9:4:1991

Counsel for the applicants: D.R. Williams QC and W. Martin

Solicitors for the applicants: Robinson Cox

Counsel for the respondents: J.D. Heydon QC, S. Archer and A.

Robertson

Solicitors for the respondents: Blake Dawson Waldron

Counsel for the Attorney-General
of the Commonwealth Intervening: Dr C.J. Carr

Solicitor for the Attorney-General
of the Commonwealth Intervening: Australian Government Solicitor.

ORDER

The application is dismissed.

The applicants to pay the respondents' costs of the application.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

For many years the Governments of the States of Australia and the Northern Territory have been involved in the provision of insurance services to members of their respective communities. Their role as providers of such services is recognised in the Constitution which, by para 51(xiv) authorises the Commonwealth Parliament to make laws with respect to "insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned". Over much of that time State government insurance offices operated under such titles as State Government Insurance Office and Government Insurance Office and have carried on business within their States of origin. In 1989 however, the biggest of these, the Government Insurance Office of New South Wales, began a vigorous expansion of its activities into other States, including Western Australia, and adopted the business name GIO Australia to reflect what its executives perceived as the national character of its operations. Since about 1981 it had used a logo embodying the acronym GIO in a distinctive red and blue lettering. Other State insurance offices, including the State Government Insurance Office of Western Australia, had adopted the same style of lettering and colour scheme shortly thereafter, apparently in the belief that with each office staying essentially within its own State boundaries, there would be little or no conflict between the various logos.

1. In the result the GIO of NSW and its subsidiaries are carrying on business in Western Australia under the name GIO Australia in competition or prospective competition with the State Government Insurance Corporation, a successor to the State Government Insurance Office, which trades under the acronym SGIO. Both are using logos with identical typestyle and colour schemes, distinguished only by the "S" in SGIO and the use of the word "Australia" in the GIO Australia logo. The two statutory bodies which have succeeded to the operations of the State Government Insurance Office of Western Australia namely the State Government Insurance Commission and the State Government Insurance Corporation, have brought these proceedings against the GIO Australia group alleging misleading or deceptive conduct in contravention of the Trade Practices Act 1974 (Cwth) and/or the Fair Trading Act 1987 (WA). They also allege that the conduct of the GIO Australia group in using their logo in Western Australia amounts to passing off. Further, they complain that the use of the name GIO Australia generally is misleading because it suggests a connection with the Commonwealth Government, which does not exist.

2. As I observed in dealing with the claim for interlocutory relief, it is a sad spectacle to see public bodies, established for public purposes, engaged in unproductive and expensive litigation at a time when community resources generally are under considerable pressure to meet far more pressing needs than those served by these proceedings. The trial of the action went for over 3 weeks, a substantial portion of which time was occupied with evidence relating to the reliability and admissibility of the results of market research surveys conducted on behalf of the applicant. In the event, there was a serious question about the extent to which, in competing logo cases, the Court can derive great assistance from such studies and about the relationship between their cost and the benefits to the litigation generally. For ultimately in logo and get-up cases, the characterisation of the conduct complained of is a matter for the judgment of the Court and the role of market research surveys is at best ancillary.
   Statutory History of the SGIO in Western Australia

3. The first State Government Insurance Office in Western Australia was established in 1926 as a non-statutory body to provide workers' compensation insurance under the control of the State Government Actuary and subject to the State Trading Concerns Act 1916. With the passing of the State Government Insurance Office Act 1938, the Office began its existence as a statutory body. Sub-section 7(1) of the Act provided that it should be under the control of a Minister of the Crown. Sub-section 7(2) conferred corporate status on that Minister:
   

"7(2) The Minister shall by the name The State Government Insurance Office be a body corporate, with perpetual succession and an official seal, and may by such name hold real and personal property and sue and be sued in respect of any matter relating to or connected with the State Government Insurance Office established by this Act and any insurance business engaged in or carried on by or through the same."

The assets and liabilities of the Crown in relation to the pre-1939 Office became assets and liabilities of the new body corporate (sub-s.7(3)). The State Government was expressly authorised to carry on, through the Office, insurance business defined principally by reference to workers' compensation and common law liability for personal injuries suffered during employment (sub-ss.4(1) and 4(2)).

1. Section 5 of the Act provided that:
   

"5. Insurance business as authorised by this Act shall be engaged in, carried on, and conducted by or through the State Government Insurance Office only within the limits of the State of Western Australia and not elsewhere."

1. The definition of the insurance business which the Office was authorised to carry out was extended in 1943 to include "all classes of insurable risks, including third party risks in connection with the ownership and use of motor vehicles". The operation of the amendment was conditional upon the continuance of compulsory third party motor vehicle insurance - State Government Insurance Office Act Amendment Act 1943, No. 29 of 1943. The definition was again extended by the State Government Insurance Office Act Amendment Act 1945 to cover insurance for local authorities and Friendly Societies. And by the State Government Insurance Office Act Amendment Act 1954 the definition was further extended to include medical and related benefits for school and university students. Personal accident insurance for students was included by amendment in 1958. Reinsurance business was expressly included in 1965 and in 1983 the range of authorised insurance business was generalised to "assurance, co-insurance, reinsurance, guarantee and surety and any other class or form of insurance which may be undertaken by an insurer".

2. In 1986, the 1938 Act was repealed and the State Government Insurance Commission Act 1986 was passed. It created two statutory bodies in place of the Office. One was the State Government Insurance Commission and the other was the State Government Insurance Corporation. Both the Commission and the Corporation were established as agents of the Crown in right of the State to enjoy "the status, immunities and privileges of the Crown except as otherwise prescribed" (sub-s.4(3)). The functions of the Commission were described in s.6 in the following terms:
   

"6. The functions of the Commission are -

(a) to issue, or cause to be issued, and undertake liability under policies of insurance as required by the Motor Vehicle (Third Party Insurance) Act 1943;

(b) to issue and undertake liability under policies of insurance as required by -

(i) section 154(6); or

(ii) section 163,

of the Workers' Compensation and Assistance Act 1981;

(c) subject to section 7(5), to manage and administer self insurance arrangements on behalf of

departments, authorities or instrumentalities of the Government;

(d) to provide services and facilities to the Corporation to enable it to carry on insurance business and supervise the carrying on of insurance business by the

Corporation;

(e) to acquire and hold shares in the Corporation in accordance with section 39;

(f) to provide advice to the Government on matters relating to insurance; and

(g) to do such other acts and things or engage in such other activities as it is authorised or required to do or engage in under any written law."

The Corporation was created by s.28(1):

"28(1) There is hereby established a body to be called the State Government Insurance Corporation."

And by sub-s.28(5) the Corporation was empowered to adopt trading names:

"28(5) Notwithstanding subsection (1), the Corporation may use and operate under a trading name approved by the Minister being -

(a) an abbreviation or adaptation of its corporate name;

(b) a name other than its corporate name."

The functions of the Corporation are set out in s.30:

"30(1) The function of the Corporation is to carry on, in the

State or elsewhere -

(a) the business of issuing and undertaking liability under policies of insurance; and

(b) any business related or incidental to the business referred to in paragraph (a), including any form or class of insurance business or life insurance business, or business related or incidental to insurance business or life insurance business, carried on, in the State or elsewhere, by any insurer.

(2) The authority of the Corporation, to carry on any form or class of business is not limited by reference to the practice, usage, form or procedure followed by any insurer."

The governing body of the Commission is a board of 7 Commissioners, including the Managing Director who is the Chief Executive Officer (s.5). The Corporation is governed by a Board of Directors, chaired by the Managing Director of the Commission. The other members of the Board are appointed by the Commission. The ultimate control of the affairs of the Corporation is vested in the Commission which is empowered to "give directions to the Corporation with respect to its function, powers and duties, either generally or with respect to a particular matter and the Corporation shall give effect to those directions" (s.36).

1. The Corporation has an authorised capital of $40 million divided into 400,000 shares of $100 each (sub-s.39(1)). The Commission was to take up 200,000 of the shares as soon as practicable after the commencement of s.39 of the Act (sub-s.39(3). Other shares might be issued and taken up by the Treasurer, the Commission or, with the Treasurer's approval, any other statutory authority.
   Statutory Framework and Administrative Structure of the GIO of New South Wales

2. The Government Insurance Office of New South Wales ("GIO of NSW") was established by s.3 of the Government Insurance Act 1927 (NSW). By sub-s.3(3A) it is provided that "the office shall, for the purposes of any Act, be deemed to be a statutory body representing the Crown". That provision can only have direct application to acts passed by the New South Wales legislature. The functions of the GIO of NSW are set out in s.3A and include, in para 3A(1)(a):
   

"(T)o undertake and carry on the general business of insurance and any class or form of insurance which is, at any time, being undertaken or carried on, whether in New South Wales or elsewhere, by any person engaged in the business of insurance, or which may be considered by the Board to be necessary or desirable".

They extend to businesses and activities "associated with, complementary to, supplementary to, incidental to, or compatible with, the general business of insurance, or any class or form of insurance". The provision of various financial services is among the functions set out in sub-s.3A(2), which services include lending, providing advice on risk management and investment and "the promotion, establishment, control and management of unit trusts and services to investors in connection therewith". The Office is controlled by a Board set up under s.3B. In the exercise of its functions (except in relation to the contents of a report or recommendation made by it) the Board is subject to the control and direction of the Minister (sub-s.3B(3)). There is also a Managing Director who is responsible for the management of the office and is subject to the Board (s.3BD). The insurance business of the Office is divided under s.5B(1) into the following statutory divisions:

(a) life insurance business;

(b) insurance funds administration business, being business comprising the administration of any insurance funds which may from time to time be managed or administered by the Office on behalf of the Government of New South Wales, a public authority or any other person or body;

(c) general insurance business, being all other insurance business.

There appear to be a number of administrative divisions which do not exactly reflect these statutory provisions. As explained by Norman Newbon, the Assistant Managing Director of its Customer Services Division, the Office services its customers through a network of retail offices. The object of his division is "to provide the business environment for the sale and supply of all GIO products and to ensure that the needs of GIO's customers are fully and properly serviced". It manages the relevant outlets, employs all administrative support staff, and provides all administrative support and institutional advertising. There are four major "product divisions" in the Office, they are:

(i) General Division which comprises three product departments responsible for the sale of household, motor vehicle and business insurance respectively.

(ii) The Life Division - selling life insurance and investment products.

(iii) The Investment and Financial Services Division providing for business loans, car leasing and cash and term deposits.

(iv) The Funds Administration Division which sells workers compensation, public liability and special risk insurance to businesses and corporations.

These divisions advertise their own products and have their own advertising budgets.

1. Operating under the general umbrella term "GIO Australia" are two related entities. GIO Holdings Limited is a company, incorporated in New South Wales, which is a wholly owned subsidiary of the GIO of NSW. GIO Life Limited, another subsidiary, was incorporated in the Australian Capital Territory on 28 September 1987. Initially the latter company was to carry on life insurance business in the ACT but in 1989 it was decided that it should begin operating in Victoria, Queensland and Western Australia. The GIO of NSW's life insurance business had up to that time been conducted by the Life Division. And that is still the case in NSW. According to William Jocelyn, the managing director of GIO of NSW, GIO Life Limited was incorporated because of longstanding doubts about the propriety of the Office writing such business outside New South Wales. The nature of the doubts is not clear although they appear to have been raised by the Commonwealth Life Insurance Commission which may have been concerned that the GIO of NSW should only enjoy its constitutional immunity from Commonwealth regulation in respect of business written within N.S.W. The company was registered under the Life Insurance Act 1945 to carry on life insurance business. GIO Holdings Ltd appears to have a function more closely related to finance or investment services. Its precise role in the Western Australia scene did not emerge with any clarity.

1. As to the GIO acronym, that is given a special status by s.18A of the Act:
   

"18A. It shall be sufficient in any document issued for the purpose of any legal proceedings to which the Office is a party to refer to the Office as the GIO or by means of an expression of a similar nature and any such reference in any such document shall be read and construed as if it were a reference to the Office."

For ease of reference, the term "GIO" will be used in appropriate contexts in these reasons to refer to the GIO of NSW and its subsidiaries as a group of related entities.

Development and Uses of the SGIO Acronym

1. Over the 47 years of its existence from 1939 to 1986 the State Government Insurance Office in Western Australia carried on limited categories of insurance business extending beyond workers' compensation to motor vehicle and home insurance and insurance for local government authorities. Between 1961 and 1976 it used the abbreviation "S.G.I.O." for promotional purposes, featuring it in regular press and radio advertising and, towards the end of that time, in television commercials. In 1976 the Office began using the acronym "SGIO" in place of the abbreviation. The change was timed to take advantage of the fact that fifty years had passed since the establishment of the Office. One early example of its use in this way appeared in the West Australian Newspaper of 22 May 1976. A special advertising supplement bore on its cover page the words "FOR 50 YEARS SGIO A GREAT WEST AUSTRALIAN" in large yellow lettering with a black border.

2. Sponsorship of organisations and of sporting and other activities associated with Western Australia formed a significant part of the Office's marketing strategy between 1976 and 1986. It was also an important element of the strategy subsequently adopted by the Commission and the Corporation. The acronym was used in connection with sponsored organisations or activities and, in the case of sporting events, appeared on the participants' clothing. This application was illustrated by a full page advertisement in the West Australian Newspaper of 25 March 1981 showing photographs of successful West Australian competitors in the Australian National Athletic Championships. The Office was a sponsor of the Amateur Athletic Association of Western Australia. Photographs of 7 of the competitors showed 6 wearing tee-shirts with cloth panels bearing the acronym SGIO. Sponsorship was regarded within the Office as the primary method of institutional marketing promoting the office as a good corporate citizen with a commitment to the West Australian community. A marketing campaign was started in 1977 using the acronym as part of the slogan "SGIO We're on Your Side". A well known West Australian athlete, Herb Elliott, featured prominently in the promotion, which involved newspaper and television advertisements and the publication of brochures and other materials using the slogan. The campaign ran from 1977 to 1979. In 1979 the Office was involved in sponsoring activities connected with the 150th anniversary of the settlement of Western Australia. It is not necessary to add to these examples, for it is common ground that from 1976 until 31 December 1986, the Office used the acronym SGIO in the promotion of its business. Further, I find that the use was extensive and in association with the slogans "We're on Your Side", "First Class Protection First Class Service" and "You Can Always Look on the Bright Side of Life". Prior to 1982 it was the policy of the Office to spend about 1.5% of the gross premium income from motor vehicle insurance and 0.1% of its premium income from workers' compensation insurance on marketing. After that time there was no express policy limiting the amount that could be applied for that purpose. Premium income for motor vehicle insurance in the year ended 30 June 1981 was $22,997,638. By 1985/86 it had grown to $39,714,774.
   The Origins of the GIO and GIO Australia Logos

3. Immediately prior to 1980 the GIO of NSW used the acronym GIO and the full name Government Insurance Office of New South Wales. The acronym was used in advertisements in 1979 in a standard typeface known as Futura Black. In February 1980 Mr Jos Trimmer, the then managing director of the GIO of NSW, retained Harris Robinson Courtenay Advertising Pty Ltd to develop a new logo, colour scheme and slogan as part of what he described as "a more commercial image" for the GIO. A number of the advertising company's employees, led by one of its directors, Phillip Harris, who was an account executive, were involved in the project. They were Michael Robinson, described as "creative director", Ian Henry, an artist and Gordon Esem, also an artist. Harris and his colleagues concluded after some market research that the GIO of NSW had the image of being bureaucratic but reliable. They developed the slogans "Big, Safe and Friendly" and "Big, Secure and Friendly" to exploit the positive aspects of that perception. The new logo, they decided, was to suggest "a modern, progressive business style". Esem said the existing logo could be modernised by making the letters "bolder and more symmetrical". He prepared drafts of a number of proposed logo forms with various print styles and colour schemes. These were freehand drawings the purpose of which, according to Harris, was "balance and form as a total concept". The drafts were discussed by the group of people within Harris Robinson who were working on the new GIO of NSW image. They reflected various print styles and colour schemes. None of the draft logos so developed remain in the possession of Harris Robinson. Mr Esem was described by Harris as "a conceptual person". More precise drawings were prepared from his drafts by Mr Henry. Harris exhibited to his affidavit what he described as "the GIO Logo developed by Gordon Esem in a bromide form with colour overlay". His evidence concerning the authorship of these exhibits was confused and, in relation to the bromide, conflicted with that of Russell Bean who had done the artwork for the logo. In the event, Harris said that the overlay and bromide were produced by either Esem or Henry. These were the only depictions of the logo within his office that he had been able to locate.

4. Harris Robinson used a company called The Captions Company Pty Ltd to produce what was described by its managing director, Russell Bean, as "the artwork" for the logo. His instructions were received on or about 30 June 1980 from Steven Landon, who was the production manager for Harris Robinson. The order form which came from Harris Robinson was endorsed in hand printing "FOR GIO LOGO DESIGN AS BRIEFED". This, according to Bean, was a reference to specifications provided to him in the form of "... an accurate representation prepared in pen or pencil of the GIO Logo as created by Harris Robinson". The document bearing that representation was later returned to Harris Robinson. Bean began to prepare artwork for the new logo. This process consisted of copying the drawing of the GIO logo "according to the specifications, that is to the size and shape of the logo, as a high quality precise drawing". He elaborated on this explanation in cross-examination saying that he "interpreted" the coloured layout he was given as a technical drawing using compasses, rulers, set squares, and black ink brushes on high quality art paper. With these instruments he drew a representation of what he understood to be depicted by the rough drawing he had been given. The logo so prepared was in black print on a white background. Bean's company had no involvement in the selection or application of colours to it. He subsequently went through a process which he described as "minute fine tuning" of the artwork so produced. This involved changing the thicknesses of some components, the shapes of others and the spacing between the letters. A final bromide print was then prepared and sent to Harris Robinson.

5. It was put to Bean that the essential difference between the lettering used in the logo and the Futura 'Black typeface' used in the 1979 GIO advertisements was that the `G' and the `O' in the new logo used segments of true circles while the Futura Black used shapes tending to oval. He accepted that but referred to other points of difference and denied that he had merely adapted the shapes of the letters from the Futura Black typeface. No one, he said, had mentioned any particular typeface as a basis for the work and he had not considered using any. He was shown the colour overlay and the bromide print which Harris had said were prepared by Esem or Henry. He had not received the colour overlay and the bromide had been prepared by his own company. I am satisfied, on this evidence and that of Harris, that Harris Robinson prepared a logo in approximately the configuration of the final product but that its precise shape and proportions were the work of Russell Bean. That work went beyond mere reproduction of the Harris Robinson draft. It did not involve a reproduction or adaptation of any existing typeface. I find that each of Esem, Henry and Bean contributed to the final product.

6. The logo in the form of the acronym with the letters GIO coloured blue and red in the style developed by Harris Robinson and The Captions Company Pty Ltd has been used by the GIO of NSW since 1980 and by GIO Holdings Ltd and GIO Life Ltd since their respective incorporations. From 1986 until 1990 the logo has also been used in the promotion of particular services under the divisional names "GIO Life", "GIO Investments" and "GIO Finance". The use of the collocation "GIO Australia", comprising the GIO logo and the word "Australia" in white lettering in a black box did not begin until the end of 1989. At a meeting of the Customer Services Board of the Customer Services Division of the GIO of New South Wales held on 28 November 1989 it was decided to use "GIO Australia" in the promotion of the business of GIO of NSW and its subsidiaries throughout Australia. The Customer Services Board at the meeting in question was chaired by Mr W Jocelyn, the Managing Director of GIO of NSW. According to Norman Newbon, GIO Australia began to be used throughout Australia from early December 1989. And it is clear from the evidence of Jocelyn and Ross Butler, State Manager for the GIO of NSW in Western Australia, that the name is used by the GIO of NSW and its subsidiaries as a business name in connection with all their products and services across the country. The intended extent of the usage within the organisation was set out in a memorandum of 17 January 1990 from Mr T Smith, the general manager of the Customer Services Division, to all officers and heads of divisions. The memorandum began by recording that the "GIO Australia" logo had been developed for use by GIO of NSW interstate offices and was extended to include New South Wales. At para 1.1 of the memorandum it was said:-
   

"1.1 "GIO Australia" is the approved brand to be used to identify the Office and each of its component divisions in all states and territories of Australia".

1. The shortened form "GIO" could be used to describe the office in the body of advertising copy and in the text of other material. The corporate colours identified by the colour codes Blue PMS 293 and Red PMS 485 were to be retained. The word "Australia" was to be reversed white from a black block. A direction was given for the use of the name and logo in television and radio commercials and in all newspaper advertisements and brochures. The additional "corporate positioning tag-line", "Security for your World" was to be used in association with the logo, although not forming part of it. The memorandum also clearly contemplated the application of the logo in interior and exterior signs at GIO premises.

2. To complete this history of the creation and application of the GIO logo and the name GIO Australia, it should be noted that on 13 May 1990 Harris Robinson Courtenay Advertising Pty Ltd executed an assignment to the GIO of NSW of the copyright subsisting in the logo. The assignment embodied a warranty that Harris Robinson was the legal and beneficial owner of the copyright.
   Adoption of the SGIO Logo

3. In 1980, John Venning, who was responsible for marketing and promotion of the Office and is now Manager, Marketing and Distribution for the Commission, wrote to the Government Insurance Offices of Queensland, New South Wales, South Australia, Tasmania and the Northern Territory. He suggested that each of the offices should adopt similar logo styles and colours. He argued that adoption of the common get-up would enable all offices to benefit from each other's advertising. He particularly had in mind perimeter advertising at nationally telecast sporting events. There was no evidence of any immediate response to that letter. However, on 17 and 18 September 1981 he attended a Marketing and Advertising Conference in Melbourne at which representatives of the government insurance offices of each of the states and the Northern Territory were present. The proceedings at the conference were summarised in a two-page minute prepared on 14 October 1981 by Ian Carpenter, Administrative Officer - Public Relations for the GIO of NSW. It described the broad aims of the conference as "investigating the feasibility of creating National Corporate Image". A specific objective was to report to the Government Insurance Office Managers' meeting to be held in Sydney in October 1981. The conference made a number of recommendations including one for the establishment of a common corporate image of state government insurance offices. It also recommended that the state offices consider adopting standard colours of red, white and blue and the typestyle of the GIO of NSW. Nothing was said at the conference to indicate that the GIO of NSW claimed copyright in its logo.

4. According to Venning it was "expressly stated" at the conference, although he did not say by whom, that the government insurance offices would not trade outside their home states. It is common ground that at the time they generally traded within state boundaries, although the GIO of NSW had written some business in Queensland, Victoria and Western Australia for many years. But this was in part reinsurance business and it had no permanent offices in those states. Also discussed at the conference was the increasing competition which the government insurance offices were facing from national and international insurance companies. There was at that time significant cooperation between them in the face of this competition. It included the exchange of information about resources, policies and operational issues. They also exchanged advertising materials used by each of them.

5. After the conference each of the Government Insurance Offices of Victoria, the Northern Territory and Western Australia adopted the standard red, white and blue colours and the typestyle used by the GIO of NSW. Venning oversaw the change to the new logo in Western Australia. It involved the acronym SGIO in red and blue alternate lettering beginning with a red "S" and used the GIO of NSW typestyle. The acronym and logo SGIO were from that time used by the State Government Insurance Office until it went out of existence with the coming into effect of the State Government Insurance Commission Act 1986. It was Venning's evidence, which I accept, that had the representatives of the GIO of NSW indicated at the conference that it proposed to trade outside New South Wales or that copyright was claimed in respect of its colours or typestyle, he would have recommended very strongly against adopting them.
   Use of SGIO Logo by the Commission and the Corporation

6. As has already been noted under the statutory history, the State Government Insurance Commission Act 1986 repealed the State Government Insurance Office Act 1938 with effect from midnight 31 December 1986. On 9 December 1986, Mr Michell, Chairman of the Board of the State Government Insurance Office wrote to the then Premier and Treasurer of the State of Western Australia in the following terms:-
   

"The Insurance Commission has endorsed a corporation resolution for the State Government Insurance Corporation to use and operate under a trading name "SGIO". In accordance with s. 28 (5)(b) of the State Government Insurance Commission Act 1986 your approval of the above resolution is being sought".

1. The letter was endorsed "Approved" by the Premier on 11 December. That approval was premature, as the Act had not come into operation. Nevertheless, it preserved a basic continuity between the promotion of the Office and that of the Corporation, which has used the SGIO acronym and logo since that time. Evidence was given of promotional campaigns undertaken from the beginning of 1987. They included the continuance of a campaign using the slogan "SGIO - you can always look on the bright side of life", which featured a Western Australian actor Mr Jim Smilie. He also appeared in campaigns running from 1987 to 1989 with the slogans "SGIO - you want action" and "SGIO - Autocheck". Campaigns using the logo and slogans "SGIO Priority - we'll stand by you", "SGIO - recommended repairer", "SGIO - term life insurance" and "SGIO - cash approved deposit fund" were undertaken in 1989 and 1990. Those slogans were carried in print media advertisements and electronic media commercials.

2. In June 1990 a further campaign, with the SGIO logo and a slogan "SGIO - LIFE - we'll stand by you", was commenced using direct distribution of materials to prospective customers and through the Corporation's offices including branch offices and other outlets. The emphasis on sponsorship of community activities or events continued. Between January 1987 and October 1990 there were some 13 such sponsorships undertaken. Like the Office before it, the Corporation ensured that the logo was prominently displayed on sponsored occasions. Television advertising campaigns for life insurance and superannuation services were undertaken in July 1990 using a Western Australian television identity, sporting commentator, Denis Cometti. Another campaign advertising motor vehicle insurance and using the same person was begun in August 1990. The SGIO logo is used on signs prominently displayed at each of the corporation's offices and outlets which include a number of metropolitan suburban branches as well as regional offices at Albany, Bunbury, Geraldton, Kalgoorlie and Karratha.

3. I am satisfied on the evidence that from 1987 to the present day the Corporation has used the acronym SGIO and its expression as a logo embodying those letters in the colour and style initiated by the GIO in 1981. I am satisfied also that the use of the logo has been extensive within the state of Western Australia, and that although it has been associated with different slogans from time to time, there was no significant discontinuity marking the transition from the State Government Insurance Office to the Commission and Corporation at the end of 1986. And from evidence of the extent and nature of the promotional and marketing use of the acronym and logo since 1981/82, I am satisfied that a substantial proportion of persons living in Western Australia would recognise them as associated with the provision of insurance services by a Western Australian Government instrumentality. In so finding I note that the respondents do not dispute that the Corporation "has established that it has a reputation in respect of the letters and logo 'SGIO'". They maintain, however, that this reputation has been acquired since 1 January 1987 and that the use of the SGIO logo before that time is of little relevance to these proceedings. It is, I think, strictly true to say that the Corporation has only acquired the relevant reputation since that date as it only then came into existence.

1. The term "reputation" which is attached to individuals or legal entities in the context of passing-off, or its analogues in misleading or deceptive conduct, is however too restrictive as a tool of analysis in this case. The underlying reality of importance is what members of the public think about when the acronym or logo comes to mind. The "reputation" of the Commission or Corporation is of less significance than the recognition that services provided under the name SGIO are provided through a State Government authority, however it may have been organised from time to time. Indeed it is more probable than not, that people think and have thought of "the SGIO" as the relevant entity since at least 1938 and probably before. On the other hand, individual slogans associated with the logo will not have had the same lasting impact on the minds of consumers in this State, and consequently do not have any real part to play in these proceedings except as points of distinction between the SGIO and GIO promotions.
   The Nature and Designation of the Business Carried on by the Commission and the Corporation

2. The statutory functions of the Commission include the issue of policies of insurance under the Motor Vehicle (Third Party Insurance) Act 1943 and the Workers' Compensation and Assistance Act 1981. Its principal activities are in the provision of compulsory motor vehicle third party insurance, specified industrial disease workers' compensation insurance and the management of the State Government's self insurance fund for State Government departments, instrumentalities and agencies. The general insurance business undertaken by the Corporation covers the categories of motor vehicle and workers' compensation insurance generally and extends to insurance with respect to house and contents, business and farming, pleasure craft and local government. Since 1987 the Corporation has offered various forms of life insurance and associated policies. These include term life policies, annuity policies, personal bonds, rollover bonds and insurance bonds. Life insurance products have been offered since 1987 but the range was expanded in the financial year 1989/90. The products currently on offer are designated:
   

1. Priority term life insurance.

2. Priority personal superannuation bonds.

3. Priority insurance savings bonds.

4. Priority rollover bonds.

5. Priority plus savings plan.

6. Priority personal superannuation.

7. SGIO cash approved deposit fund.

Gross premiums for the financial years ended 30 June 1987 to 30 June 1990 were as follows:

Year Gross Personal Workers

Premium Insurance Compensation Income

($m) ($m) ($m)

June

1987 247 2372

June

1988 280 4776

June

1989 298 5378

June

1990 334 5975

Evidence was put before the Court, subject to a confidentiality order, of the number of "life products" sold in the last financial year. It indicated that the life insurance business of the Corporation, although significant, is in a developmental stage relative to the other areas of insurance business in which it is engaged.

1. Venning gave evidence on affidavit of various business names registered by the Corporation, they being "SGIO", "SGIO Priority Life", "SGIO Priority Life and Financial Services", "SGIO Property Investment Services", "SGIO Priority Financial Services" and "SGIO Life". It emerged in cross-examination that in January 1990 the Corporation had also procured the registration of the business names "Government Insurance Office of Australia" and "Government Insurance Office". According to the records of the Corporate Affairs Commission, the nature of the business to be carried on under these names in each case was "life insurance and financial services" and was said to have commenced on 22 December 1989 and 24 January 1990 respectively. Although in cross-examination Venning said that the names had been registered "as a form of protection as far as our future trading is concerned", it is apparent that it was never the intention of the Corporation or its officers to trade under either. The registrations were plainly effected in an endeavour to block the use of such names in this State by the GIO of NSW. To effect the registrations it also appears likely that false statements were made to the Corporate Affairs Commission about their intended use. While the evidence does not bear directly on the issues in the case, except in relation to the discretion to grant or withhold relief, it reflects little credit on the Corporation or the officers who were involved.
   The GIO - Activities in the Western Australian Market

2. Prior to its decision to set up offices in Western Australia, Victoria and Queensland, which was taken in 1989, the GIO of NSW had been writing business outside New South Wales. Norman Newbon said that from 1979 to December 1988 the life division had sold 2,138 life insurance policies or investment products. Of these, 160 were sold to persons with addresses in Western Australia. As at 1 December 1988 there were 1,543 persons outside New South Wales who were current holders of life policies or products with the life division of GIO of NSW. Of these, 126 were from Western Australia. And at 20 July 1990, 2,093 persons outside New South Wales were current holders of life insurance policies or products. The GIO of NSW also has re-insurance business with some 16 insurance companies throughout Australia.

3. The decision to expand operations interstate to the extent of opening offices in Queensland, Victoria and Western Australia seems to have been taken in November 1989. On 27 November 1989, Ross Butler, a former consultant to the State Government Insurance Office in Western Australia, was appointed as the State Manager, Western Australia of the GIO. Since that time he has been involved in setting up and managing the Perth office. The marketing policy underlying GIO of NSW's interstate operations was enunciated in a memorandum dated 4 December 1989 from its General Manager, Customer Services, Mr T. Smith, to the State Managers in Queensland, Victoria and New South Wales, among others. "GIO Australia" was to be the name used for all interstate operations, whose logo and graphics would conform to the approved corporate style. Products to be marketed interstate were:
   

"(a) In all States.

Life: all products

Deposits: all products.

(b) Queensland and Victoria only.

Householders: building, contents, personal effects, mortgagee interest for strata titles; and Motor: TPPDO, comprehensive, caravan and marine."

State management offices were to be fully operational in terms of staff facilities and systems by 1 February 1990 in Melbourne and Brisbane. No date was then specified for Perth. As to the proposed product distribution, it was said in the memorandum:

"Domestic general insurance products will be sold by Customer Services Division through outlets. GIOL representatives may sell this class of business within outlets or elsewhere under arrangements agreed with Customer Services Division."

This did not have any direct application in Western Australia as the GIO organisation did not have the necessary infrastructure in place there to support general insurance business, which is more labour intensive than life insurance.

1. Nevertheless, there was evidence upon which the Commission and the Corporation submitted that the GIO intends eventually to carry on general insurance business in Western Australia. According to Mark Drummond, a journalist employed by the West Australian newspaper, he had a conversation over lunch with Butler on 4 January in the course of which he was told that GIO would offer WA customers services including life, disability, commercial, domestic and governmental insurance. Other services would include Australian and international re-insurance and a broad range of investment, property and fixed interest trusts and deposit facilities. Butler contended that he had told Drummond that GIO's WA operation would initially be restricted to investment trusts, life insurance, rollover funds and deposit facilities, but that it might be expanded into other general insurance later on. GIO did not intend at the time to offer general insurance, and he had no authority to take that decision for himself. It was a matter for senior management in Sydney. His own approach to expansion was reflected in a memorandum of 20 March 1990 to Jocelyn and Newbon. He made the point that there was a need for GIO to feel its way in Western Australia at least until December 1990. If it were operating on a profitable basis by January 1991 then consideration should be given to establishing small retail shopfront outlets in the Hay Street or Murray Street malls in the central business district of the city and in major shopping centres such as Garden City, Rockingham, Fremantle, Karrinyup and Carousel. His memorandum was generally approved by Jocelyn. It did not lay a foundation for an expansion into general insurance, nor did it erect any permanent barrier. A restrictive attitude towards such expansion in the short term was evidenced in a memorandum of 7 May 1990 from Newbon to Butler. Butler was informed that at that time GIO did not wish to offer general insurance in WA. Its experience in Queensland and Victoria had already demonstrated the need for a thoroughly developed supporting infrastructure for any general insurance product marketed interstate. But Newbon did say that the issue could be revisited in 6 months, by which time the life business could be established to the point where additional locations would need to be considered. There were in evidence, as a confidential exhibit (Exhibit 46), 6 pages of a record of telephone enquiries to the GIO office in Perth and responses of staff between 5 and 22 June 1990. In relation to at least 7 enquiries concerning household or motor vehicle insurance, it appears that the enquirers were told expressly or by necessary implication that while those classes of insurance were not presently available, they would be in the future.

2. From the outset, GIO was offering special services to business migrants. It did not offer these anywhere else in Australia although it was intended to market them in Sydney in time. The rationale of this exercise was that business migrants taking advantage of these services would become insurance customers in due course. Legal expenses insurance was also to be offered. And in a significant expansionary move, GIO applied in October 1990 to the Minister for Productivity and Labour Relations for approval under s.161 of the Workers' Compensation and Assistance Act 1981 to operate as a workers' compensation insurer in Western Australia.

3. I have formed the general impression from the evidence of its executives, that GIO is an aggressively competitive organisation. And I am satisfied that while at the time of trial it had no immediate plans to provide general insurance business in Western Australia, it would almost certainly eventually move into that area according to the growth of its business and client base, and thereby into more direct competition with the SGIO than is presently the case.
   Steps Taken by the GIO to Distinguish itself from the SGIO

4. Butler considered it undesirable from a marketing viewpoint that GIO should be associated with SGIO in the minds of investors or potential acquirers of what he described as "life products". His concern was based on his belief that SGIO investments had not been well managed. There had been unfavourable media publicity about investment decisions of the Commission and losses amounting to $117 million for the year to 30 June 1990. He believed that potential customers of the GIO might be deterred from dealing with it if they thought it were associated with the SGIO. In December 1989, he retained Marketing Focus, a market research firm, to investigate consumer awareness of the GIO. One of the research aims he specified was:
   

"Examine reactions to the name 'GIO Australia' and how it may be presented so as to avoid possible confusion with SGIO, convey a desirable image and generally stand out from the crowd."

Another aim was to:

"Examine the extent of confusion consumers may have between GIO and SGIO."

Marketing Focus carried out a street intercept study in the Hay Street and Murray Street malls in the city centre on 18 January 1990. Its report indicated that a total of 100 interviews were carried out. All interviewees were asked questions about which companies they associated with the three product categories of Life Insurance, Managed Investment Trusts, and Superannuation and Rollover Funds. None of the responses nominated the GIO or GIO Australia. When shown the GIO Australia logo, 42 said they definitely recognised it and 16 thought they did. When asked to nominate the company whose logo had been shown to them, 45 mentioned SGIO and 21 referred to GIO Australia. Among the male respondents who identified GIO Australia, a significant percentage was employed in the finance and insurance industries. At this time, GIO had not commenced advertising or promotional activities in Western Australia. Butler saw the Marketing Focus report as confirming his view that GIO should take all necessary steps to distinguish itself from the SGIO.

1. Evidence was given of particular measures adopted to establish such a distinction in the minds of consumers. An early version of corporate newspaper advertisements first published in the West Australian newspaper on 5 June 1990, bore the heading:
   

"GIO AUSTRALIA INVESTMENT PLANNING SERVICE"

And below that in white block letters on a black background, the words:

"GIO AUSTRALIA ARRIVES IN

PERTH

WE'RE NEW,

INNOVATIVE and COMPETITIVE"

A block of smaller black italic print on a white background surrounding the GIO Australia logo appeared next. And below that were the words "NOT CONNECTED WITH SGIO" in larger white lettering on a black strip background. On 8 July 1990, a newspaper advertisement for the GIO Monthly Income Trust first appeared in the Sunday Times newspaper. It also bore the same disclaimer in white block lettering on a black background at the bottom of the page. It both cases the GIO Australia logo was printed in black and white. In August 1990, following judgment on a claim for interlocutory relief in these proceedings, the disclaimers were amended to read "NOT CONNECTED WITH SGIO OR COMMONWEALTH GOVERNMENT". Similar disclaimers were inserted in advertisements for GIO Australia Rollover Funds and in an advertisement setting out its financial results for 1990. The latter also contained the statement:

"The adoption of the Business name GIO AUSTRALIA and the opening of offices in Victoria, Queensland and Western Australia moved the organisation closer to the goal of becoming a national organisation."

Television commercials for the GIO Australia Monthly Income Trust and Rollover initially bore the subscript "NOT CONNECTED WITH SGIO" which was changed to the longer form after the interlocutory judgment. The logos in the commercials appeared in shades of grey and white and a red/brown, essentially monochromatic, version. Between June and September 1990 (inclusive), GIO placed 26 advertisements in the West Australian newspaper, 8 in the Sunday Times, 2 in the Daily News, 1 commercial on Channel Ten, 36 on Channel 7 and 28 on Channel 9. And the GIO Australia Office in Perth has, in glass cabinets on the walls, five large posters which are black and white enlargements of the corporate newspaper advertisements including the disclaimer. These, according to Butler, can be seen from the footpath and the street through the street front windows of the GIO office.

1. Promotional brochures and sales material sent to prospective customers in 1990 included a covering letter which explained that GIO originated in New South Wales and "has no association whatsoever with any other Government Insurance Office outside New South Wales." And on 23 May 1990, Butler sent an instruction to his staff stating that it was "crucial that all phone, mail and counter business enquiries are properly screened to ensure that clients and prospects are talking to the organisation they wish to communicate with". Any enquiries from clients seeking SGIO services were to be referred to the SGIO. He also directed that all new business enquiries be entered into a New Business Leads Book. SGIO/SGIC enquiries were also to be entered, with referral action taken. Copies of six of the pages from the book, covering the period 5 to 22 June 1990, were in evidence as confidential exhibit 46 and have already been referred to in connection with GIO's eventual intention to enter into the general insurance field. They bore the hand printed endorsement at the bottom "REMEMBER TO REFER ALL SGIO ENQUIRIES TO THAT OFFICE - PH 327 7277". In addition to the record of telephone contacts already mentioned, in which prospective customers for general insurance were told that while not being offered at the time it would be offered later, there were other entries for that period referring enquirers for general insurance or workers' compensation to the SGIO. There was no entry to indicate that any person rang the GIO thinking it to be connected with the SGIO.
   Public Confusion Between GIO and SGIO Logos - Testimonial Evidence

2. To demonstrate that members of the public seeing the GIO or GIO Australia logos might conclude that they were connected with SGIO, the applicants called a number of witnesses to testify directly on their reactions. Eric Ball has been in the insurance industry for about 36 years and has worked in all States of Australia. On 5 August 1990, he saw a GIO television commercial relating to facilities for rolling over superannuation funds. It depicted insurance agents in an unflattering light. He recalled seeing the letters GIO in blue and red at the end of the commercial and concluded that it had been run by the SGIO. He complained to the manager of the SGIO's Life Division, but was told that the commercial had been run by GIO Australia. He had seen newspaper advertisements for the GIO but had not paid any particular attention to them or formed any view as to the identity of the company behind them. He accepted, after viewing a video tape of the commercial in question, that the GIO logo was not in colour and that he had been mistaken in that regard.

3. Christine Canny, a policewoman involved in a school based driver education program sponsored by the Commission, was aware of a Police Department "Drive to Stay Alive" campaign using bumper stickers which bore the words "Play Safe - Drive to Stay Alive" followed by the GIO Australia logo. When she first saw them she thought that GIO was connected with SGIO and drew that inference because of the similarity in typestyle and colour of the respective logos. And when she first saw the newspaper advertisement for GIO in June 1990, she thought the newspaper had left the "S" off by mistake. On more careful reading she "realised that the 'GIO' referred to was a separate organisation".

4. An articled clerk employed by the applicants' solicitors was selected for interview by Marketing Focus in its street intercept study in March 1990. Shown a mock-up of the GIO Australia newspaper advertisement he thought it was connected with the SGIO because of the similarity of the logos. The Deputy Shire Clerk of the Shire of Esperance, saw the GIO logo displayed in the telecast of a VFL football match and thought it was an interstate arm of SGIO. And a retired dental surgeon contemplating investments, who saw the newspaper advertisement for GIO, thought SGIO had changed its logo. Only later when he realised that SGIO was still using the SGIO logo did he look back to the newspaper and become aware of the disclaimer.

1. Also to be determined is whether or not the GIO's use of the acronym GIO Australia is misleading or deceptive as tending to suggest a connection with the Commonwealth government. There is no doubt that as a matter of logic, a person looking at the logo could conclude that the inference is open of some such connection. On the other hand, the inference is also open that the acronym refers to some organisation whose operation has a national range, as is the case with the GIO of NSW. The quality of the conduct in this regard cannot be isolated from the context in which the GIO has made the point in letters accompanying its brochures and by way of disclaimers that it originates in the State of New South Wales and is not connected with the Commonwealth Government. Nor can it be, as the survey results seemed to indicate, isolated from public knowledge of the fact of the present litigation. The information thus made available to consumers as part of a background to the use of the logo which, taken in isolation would support more than one inference about the nature of "GIO Australia", in my opinion tips the balance against the characterisation of the conduct in this respect as misleading or deceptive. I bear in mind that the term "Australia" or its derivatives appear in many commercial settings which have nothing to do with Government. In this respect also, therefore, the claim that the conduct of the respondents was misleading or deceptive or likely to mislead or deceive, fails.

2. It follows from the findings made in relation to misleading or deceptive conduct, that the passing off claim cannot succeed. The applicants in their submissions on this cause of action emphasised the elements of misappropriation of their goodwill and reputation said to arise from the conduct of the respondents. For the reasons already indicated, I am not satisfied that the respondents can be said in any relevant sense to have engaged in conduct causative of that result, if it did occur. The claim in passing off will be dismissed.
   The Copyright Question

3. Against the event that my conclusions adverse to the applicants in relation to misleading or deceptive conduct and passing off are found to be in error, I will shortly deal with the copyright question raised by the respondents in their defence. It was pleaded as a matter going to the discretion to grant injunctive relief. The defence depended upon the proposition that the GIO of NSW is the owner of the copyright in the GIO logo and had revoked a non-exclusive licence granted to the State Government Insurance Office in 1981. At the time that the licence was allegedly granted, the GIO of NSW was said to be exclusive licensee from Harris Robinson Courtenay Advertising Pty Ltd who subsequently executed a formal assignment of it. The whole argument, however, rests upon the assumption that Harris Robinson was the owner of the copyright. I have already found that that company prepared a logo in approximately the configuration of the final product, but that its precise shape and proportions were the work of Russell Bean, Managing Director of the Captions Company Pty Ltd. Accepting as I do, that the final product was an original artistic work and not a mere application of a pre-existing typestyle, the author of the work was Mr Bean and copyright subsists in his employer, the Captions Company Pty Ltd. Absent any evidence of a written assignment of the copyright to Harris Robinson, the necessary proof of ownership was not made out. I would therefore have found against the respondents to the extent that they relied upon the proposition that copyright in the logo now subsists in the GIO of NSW.

4. It is unnecessary to deal with the other discretionary matters that were raised in the defence, save to mention that in my opinion neither the incident involving the registration by the Corporation of the business names, "Government Insurance Office" and "Government Insurance Office of Australia", nor the alleged absence of any commercial interest on its part in conduct of the respondents outside Western Australia, would have sufficed to displace the public interest in the grant of injunctive relief had misleading or deceptive conduct been proven.

5. For the above reasons, the application as a whole will be dismissed.