The Animal Welfare League v Alexander, G.

[1987] FCA 254

NOT FOR DISTRIBUTION ..- -.- .- - . - .e

No. G . 1 3 1 of 1527

;d. DX'JISION

These proceedings xere commencec! 27 appllcstion f l l z c !

m 23 April 1387. At the directions hearing an 1 May 1?8? I

indicated that the Court would be able to g1;re a final hearing

in tke matter in eight at nine xeeks time. Tsday I gi-ien

ii=xti:n3 tkat - A L L ha-Je ths natter rt3t.l; f s r a zxo 13;- f ~ a l

hearing ;S comenc'e an 1 :U:;- 1 9 9 7 .

i n I d s t a n c e and form f r m those that ;till govern the result sf

a f inal hear ing. They d i f f e r i n f o r 3 i n that there xas on 1

May no cross-examination upon a f f i d a v i t 3 and at the final

hearing the ;rifidaPit material may be supplemented 3r

mperseded. The issues differ in substance because here I m

dealing with ( a ) the question of case acd ( 5 ! the

p e s t i o n of balsr,ce o€ ccnvenience, not vith t he u l t i aa t e

issues of contravention of ss. S2 and 55 of the Trade Pract ices

Act ancl of gassing-off .

3 .

domestic) with an appreciation of their rzle in the natural

order, to educate the public (particular17 the young) an the

role of animals in society, to disseminate information to make

owners aware of their responsibilities in the proper care,

control and support of their animals, and to support farmers

and wild life authorities in gcod management ;;rcgrammei to

ensure proper balance of animals and preser-Je the ecolc3j-.

m e applicant has a Zurrent mcnberahip 3f j u s t o - x r

2000 perscr.3 m 6 it h s recel*Jed, C r m its nsnber3 a?.d frsr?.

memb2rs cf t k e general Fu3lit xho are ccncerned f:r t k Yelfars

of ylimal3, aver $3 millicn in l~rjscies an2 1 ; ~ ~ 9 e s : 3 . Thz

legacies and bequests come f r m many p?oplt nct r?adlly ~ ? O L T

to the applicant and at prestnt more xn-mnder3 l2sve k g x i s z

than members. A number of bequest3 t3 tke apFlicar,t do no;

;i-Je its full corporate name.

The applicant’s principal activities includz the

xnduct of ar. animal care centre at West Hoxton. This handles 1avar.ted miIals and hcld3 them until they can ?e plxzd ir.

iuitakle hom5s. A t Fresent t h e centrc kas zat3, izgs, 22r3e5,

Zheep. g c a t s ciucks m d 3esse. !rot unexpectedly, tk? main

activity at :he centre :cncerns :at3 ard C393 aci t?xo~gk t k

32plissnt’~ .dvertistner.ts man? Feopie *;lsit +.h2 anis31 :ar2

:entre and o-tain an aninal if the centrt has xkat :?.ey a r e

lssk1r.g fzr. The aFplicsnt 1130 zcnductz -;>.at is :sllsr! sn

Q.

"autreach visitation" programme whereby a suitale animal LT&

trained 0-mer ?isit by arrangement nursing homes ss as ta

assist elderly persons otherwise denied access to pets.

The total staff number of the applicaht i 3 about 15.

The principal advertising ur,dertak?n by the applicant i s the televising of 30 and 60 second community service 3nnouncements

free of charge by three Sydney televisLon channels. The

applicant also publishes a quarter17 jourcsl kncm as t k e !re=

3outh Xaalss Animal Welfare League 2ews %X! I shall refer laze:

t3 tke material appearing in that f3u2 for 23rch 1?27. Z i s

jsurnal ha a circulation cf scut 2500. aainly :S r n e n h r s a?&

i3 librarin3, includizg 1llc3t 3ikOOi libraries i n !I%% 5;uth IJal ta . The applicant also aci-J-Jerti323 frequcntl; in tke :!ex

Zouth ??ales advertising pages	sf the montLljr pub l i t a t i cn ,	me
Au3tralim Lau Journal.

5 .

"GA [meaning Mr Alexander1 introduced Dr H.

Frederick who advised the meetkg of his esperiences in the formation of a similar group in the US. This group, The Farm Animal Welfare

Committee was formed in Washingtcn DC

approximately five years ago and was established

initially to combat the attack by animal

rightists on the veal raising industry.

A list of suggested names was circulate6 and

committee members were individually asked for

opinions.

There =as c~nsensus that the name 3houk l h

simple and include tht zords "hstralia",

Welfare Federation of Australia" xas acc5ptel h?	"Federation", "Welfare", md "h ina l " . "Arurnal
311 present. It as tkrougkrt an advantage to
express the philoscphy of the federatlm in the
form. of guiding principal sbjecti-zs an2
activities. The following will be presented -3r S
Toting at the general neetlng."

@.at then follow in the minutes i x l z d e s a 5tatsmer.t of

ob jectives and acti-~ities. Amongst ac i-~i:ies are

"development of a network of trained spokespeople tz present

the 'Jiews of the Federation and redress trroneous extravagant

and misleading statements about the keeping of animals;

provide expert advice in appropriate cases; presencaticn t o

committees 3f inquiry and to seek repre~entati~n X mima:

xelfare 3tatutory bodies; soli:it m C mcnltjr :~nm.,?ltj.

attitudes t o animal xelfare; ad;.ise member3 cn neasuree ! z

zountcr the activist wing of the animal rights nc*:er?nt".

October 1986 - an item appeared in the "Pinanzial P.evitsj".

=.e	itsn zas hsaded ".b.imal RiTkts Yc-mnent c':eck"	?.?d	J
- + = L -.l ~ - ~ ~ ~

that a I??" zrgmisation had beon fxmed to keep t k e x i n a l

6.

right3 movement in check. It said t3at the organization had

been convened by CSIRC) chief research scientist, Dr George

..Uewnder, and that the organization aimed "to see all anisal

users get a fair go". The article reportee that Er AlesulCer

had said his concern about the snimal rights movement stemmed from personal attacks on scientists who =ern lkensed. to

conduct experiments on animals. The item also reported. tkat

it vas ezpected that groups such as the National Farsers

Federation,. CZIFiO Officers Ajscciation, AgricuLturaS a-d

'J2tcrinary Cnemicsls Asociation and Zcience Ttackrz :f

Australia ;rould be among tbe groups that zoul0 bcccne merzers.

Mr Drummond &rote to the Carpcrats .Uflirs Ccmizz:cn

in 9yL?ey on 24 NcVnmber 1986. Csrrespondcncs follcKed cnCinq

sn 11 March 1937. Included in the correspondence is a lsttcr

Lated 14 January 1987 from the Ccrrpcrate .E'fair3 COEni33~X	to
i.lr Drumoncl wfilch states that:

7 .

correspondence, that of 11 March 1987, the Corporate Affairs

Commission informed Mr Drummond that there were no grounds on

-xhich the Commission could refuse to register the name	“Ani al
Welfare Federation of Australia“.

Concurrently with the approaches t o the Corporate

Affairs Commission, Mr Drummond approached the Trade Practices

Commission. By letter to him dated 24 February 1987 an

afficer af t5e Trade Practices CoIi~ni33iOn indicated tkat that 3ody would not take any action 83 regards tht .Animal Welfare Federation of Australia.

In additicn, Mr Drummond commenced corresponience x

5 February 1987 with officers of the new hsdy. On 2 4 February

1987 the respondents’ solicitors wrote to him. He recei-led

this letter on 4 March 1987. In this letter the rspondents’

3olicitors said that an application had been made to the !Jew

South Wales Corporate Affairs Comission for reseriratlon of the name Animal Welfare Federation of Australia Incorporated and tL%t the intention was to register it 3s an as3oc2at1:n

urder the Associations Incorporaticn Act 1934 (:!EN). ?-P

letter vent on to say that the unincorporated as3ocisticn, 2s

it then xa3, .;as firsly of the view that tfie aims and objects

sf Mr Drunond’s League xoulC m t in x y way Le scnfusizg to

the Fublic or to the media. The lett?r cor.tinued:

S.

The AHFA [meaning the proposed FeCsration3

intends to do nothing more than provide an

information source to the media and interested

individuals and organizaticns. It also intends

to apply €or registration as a charity 5ut 7111

not be trading or having any relationship Fith

conmmers. The members of the A W A are members

of substance and reputable standing in the

community and will be moat concerned to ensure

that there is no confusion between your league

and the subject federation and -all1 endeavcur to

ensure that there are no activities conducted

5jr

the ANFA which will in any -ay misleac? the

public.

The letter ccncluded by stating that the solicitsrs ;:ern happy

to provide Er Zrummond vit5 a copy of the body's con3titution

33 submitteC for registration and they cncloseL ~ i t h tCe letter a copy of the application f o r incorpcratix! of the !??deration. TC,e necessarr fcrnalitics for inc3r~zr=tizn kave

not yet been completed but incorporation under	t?-t 1954	Act
appears to be imminent.

In the issue of the applicant's mgasine for Ehrch

1387, a full page 3tatement appeared under the heading ".WIY!

ELFARE m m I 9 N OF AVSTRALIA	BExARE THIS XAi.	The
statement included tha fo1lot;inr;:

entertainment and industrial groups that rely on petitioned the Corporate Mfairs Commission to

activities of those other groups.

seriously examine any approach for t e

registration of the above name and not to approve

it. consider Ne the name to be a

misrepresentation of the aims and objectives of

the group with welfare as is generally understood

not being substantiated. Unfortunately the

Corporate Affairs Commission is not designed to

determine the rights of claimants to comgetlng'

names or interests and registration does not

confer any proprietary rights.

The newsletter from this organization 13 said to

be an appropriate forum for, amcngst other

things, to counter the activist wing of the

animal rights movement. Our 'hands on' velfare

of unwanted animals is entirely different but yet

ye have names with similar meaning to the general

publlc. As we are enjoined to beware cf false

prophets so we should also beware of names cf

organizations giving the general public a name

2hich construes a diiferent actl*:ity tkar, ;Ut

appears to be actually intended or generally

accepted as interpretation of yelfare.

A news sheet distributed urder the title ".bimal

Welfare Federation of .%ustralia" and bearing t5.e date April

1387 stated that Elders Faatoral had agresd to beccme the

major sponsor for the Federation. It a130 gave details of a

"high profile launch" for 8 May 1987 at tle AJC Centre at

P,md;'ick in Zjrdney. At the recent Royal Agricultural Sccirty

Easter Show in SyCnejr. Elder3 Paztcral had a stsni, along ~ i 2 .

the applicant. At the Elders Fastoral 2:ar.d ccpies were

distributed of this news Yheet. In adtftlsn &cut 1 5 2 3

crganizatlons and Individuals have received 3 Srachure

distributed early In April. This refers to :he afficlal

"launch" and "public f:rum" to Se conducted ;r. 3 May 1997.

10.

The first respondent has deposed in his affida.r.it

that the cspected cost of this activity is $11,975. It is

agreed that this includes the cost of provision of food and

drink. The Federation, according to the first respondent, has

had considerable difFicultp in arranging for the speakers

listed in the announcement of the "launch" and it 13 said that if the "launch" is delayed the Federation would have great difficulty in re-organising this activity and woulC not be able to do so for many months. In addition, it is 3ziZ that

the costs shich !-dve already been comaitted i n relstim

this activit? would be thrown away.

m e applicant seeks interlocutsr? relief in ttrm of

3ub- paragraphs (3) and ( 5 ) of parsgra~h 1 zf the A~plicatisn.

These read as follows:

1. An order, including a? interlocutory srder,

that the members of the an;mal Helfare Fcderation

of Australia ('the FederstLon") be rstrained from

(a) in trade or commerce engagizg Fr. my of the activities set cut 1.1 schedule B under the

name ".9ninul Nelfare FcCcrstim 5,F

.iustralis" or any n m e csntzining c t e ;-or33

"-4nimal Welfare"

(i) among :he ztates, vit?dn a

Tcrritcry, Sctveen a Ztate ami 3

Territory or bet-aeen t30

TerritcrLes, 3r

(ii)  to :he ester.: to zhich my zuc.*.

acti-;it? in-;c:7es tY-2 u3e J : pcszsl,

telegraphic S: teicpknic zer-~icez

sr takts place i n a r36io cr

te1evi:izn 3rJadcats:.

11.

(b)	in trade or commerce engaging in conduct that is liable to mislead the public into
believing that any journal, newspaper,
periodical or other document published 31:

distributed by the Federation 13 published or distribuited by or with permission of the applicant.

Schedule A sets out what appears to be a atatement of the

objectives of the Federation. It 'All be apparent that

~

paragraph l(a)(i) is based on s .52 of the Tradz Practices Act read with 3.6(2)(a) thereof, and that paragraph l(a)(ii) of

the Application is based on 3. 52 of the Trade Practices Act

read vith 3.6(3) thereof. Counsel indicated that paragraph

l(b) is baled on 3.55 of the Trade Practices Act. Final

relief is also sought in the accrued juri3diction in raspect

sf pasing-off, but no interlocutory relief	i3 slaimed 22	t b t
faoting.

There was Cebate before me a3 ts xhether tke

applicant could bring the present conduct of the

respondents, and apprehended conduct of the respondents and

the proposed corporation within the expression in 3.52 and in

5.55, "in trade or commerce". ?.e point :S that t h z

Parliament may, by using the preFositim "in", :?aye placed a

somewhat 3harper focus upon wA activity 3aid tc 3e cf 3

traCing or commercial character than if Parliament had ksed a

phrase such a3 "in relation to" (Fountain - J . Alexander ! ?3?1,)

150 CLR 612, Focrri '7. Whiddett (1985) 60 .=P. '163 at 173) c r 3

phrase such as "-aith respect t ~ " !Victcria v. Tke Ccmscnxe3:th

(1371) 122 CLR 252 at 2 3 9 - 4 0 0 ) .

' I

12.

There was debate before me also as to whether the

materials identified in paragraph l(b) of the Application are

"goods" within the meaning of 3.55 of the Trade Practices Act.

It may also be noted that 9 .55 is said to be based on the

provisions of the Paris Convention for the Protection of

Industrial Property.

I -as referred in the cour~e of ~u5mlssion3 upon

these matters ta gloriq *J. W. 2nd P!l?P c2 Pt7 L h i t e . ?

!1391! 55 FLR 310. Regard may also be had to Ec?koq 'J. m

West AU3trali3n Cricket Assoclaticq (1086) 53 .m 660. m e

rspondents, 'Jhilst conceding that ordinsr? -xrc!s aay a:quire

3econdary meaning and be the occasion far &cepti-x cmduct

xithin the scope of s.52 of the Trade Practices Act, pointed

to the proposition that, where organizatlcns Lcar titles

comprising ordinary words, small differences m? be decizi*Je in egativing contravtntisn of 3.52 (Hornsb? Euitclinq

Sncormation Centre v. S-Tdne? Buildinu Infornation Cectre

: 1 ? 7 3 ) 143 CLR 116 at 2 2 ? ) . I ha-:? ref$rrec! s1zexhere tc

!?ice GrCwer3 "-Caerati-?c L:,aite,2 -- * . ~:G-:~F.z -.,--a=* :-L'----

.\U3tr31ia ?+7 LimiteC, 2 3 December L?E5, w.reportet! t o t 4 e

nature of interlocutory injunctive relief m t e r 3.8C sf C,:??

TraCe Practices A c t for contraventions of Part v? 05 that 4 z t .

I do not now repeat ghat i s there said. I 3'-;ulL cnl;- 322

that the 3i3h Caurt PAS since coxfirmed t:& m sn tpplicatlon

3uch as thi3 it i3 xithi?. the Csurt'3 discretisx to rsfrair.

from attempting to resolve, at this stage, questions of law

that arise (m v. Peko Wallsend Limited (1986) 61 ALJR 5 7 1 .

I so refrain in this case at this stage.

However, in my view, the applicant has made out its

case that there are serious questions to be tried in respect

of contraventions of ss. 52 and 55. On their part, a3 to the

balance of convenience, the respondents stressed ( a ) the

disruption to their activities that vould follow the grmting

2f the interlocutory relief sought (b) the difficulty in

quantifying this harm for the purposes of enforcing any

undertaking as to dunages proferred by the applicant, ar,d ( c !

the measure of delay by the applicant in instituting these

proceedings in this Court.

The applicant pointed to its recent receipt of the

April newsletter, but it has been clear at least since

FeBruary that a new body with the new name was soon to be

launched and I accept, on the question of delay, the

respondents' description of %hat happened az in-;ol;ring the applicant seeking to avoid the coming to pasa sf ;hat it now

asks the Court to enjoin, by first 2ursuing represcntatixa to

the Csrporate Affairs Commission and t o the Trade Oractlces

Commis~ion anC by drawing attention to the zituatisn by the

Ilngthy noticc in the Karch 198? issue of the applicant's jsurnal, (ts xhich I h37e referreef.:.

14.

It was of course perfectly open to the app1icar.t to approach the matter in this way, but it did so at the risk,

now realised, of meeting with a claim of delay when it did come to this Court for interlocutory relief. Counsel for the

applicant submitted that an earlier approach to the Court

would have been premature. He referred to Aero~eatiale

Societie Nationale Industriellc v. Aeroseatiale Htlicccters

(1986) 65 ALR 477. However, on my reading of that

decision, such result vould 57 no meana necessarily k a ~ e

Pollswed from that decision,	if applie? to	the	c i r c m s t ~ 7 ; e s
of this case.

In this situation the only interlocutory relief I

Yould consider a3 pOS9ibl;r 3aFropriate ;-odd 5e ir, the terms si paragraph l(b) of the Application, but 'Ilth the rider that the respondents may engage in the acti:-itlrs ir. ;;uestkn if

they sufficiently distinguish their organization from that of

the applicmt. I appreciate that this use of a qualification

or rider will not always be a appropriatc 3here ~ h t is

invcl-red iz a restraint upon 311 use of 3 trading stile k i a

parti:ula.r buzineas m d 3 qualificatisn ts t h : rrztraizt

(Qridue SioclcSrokerq 3 . Bridqez t 1 9 e 4 ) LI FZ? 460 at 4 7 2 :

U r 33ocd P??.auement Lisi c -7. 2urs=c,z< C33ix %tel ?-,-

1,irnitA C19353 AT?R 46,701, a t 45,710; Ch..sa? ?!zkattm Y:?rz?az

rxmratlon - J . ,%se Csroora:isn LiZitee cloe51 48,141

48,156 - 48,157). Eut 3 restrlcticn cf thiz kin2 q c n 3

particular c1393 c€ acti-zit? :oulC ~n the ~rezent sase

15.

possibljr have been appropriate. I need consider no further the possibility of this form of relief. This is because the

applicant in address disclaimed any application for it.

In 9 event, the early final hearing vhich the Court

has been able to give the parties should bring all matters in

dispute to	a prompt resolution.
Accordingly, the application for interlocutory

relief is refused. I would be minded to reserve the questisn

of costs €or the hearing if that is appr6priate.

?he application for interlocutory relief is refusecl

and costs are reserved.

I certify that this and the fourteen (14)

preceding pages are a true copy of tine

Reasons for Judgment of his Honour Mr Justice

Gummow *

Associate:

Date: I +

Counsel and Solicitors fcr

Applicant:

and

Counsel and Solicitcr~ for Mr T.M. Zxovi :

Respondents:	instructed 37 !4essrs Bcdors.
Date of Hearing:	5 May 1987
Date of Judgment:	5 May 1257