The Harbour Agency Pty Ltd v Agency for the Performing Arts Pty Ltd

[1989] FCA 395

JUDGMENT NO. 3%?.~&

CATCHWORDS

TRADE PRACTICES - misleading and deceptive conduct - interlocutory injunction granted restraining use of "Business Plan" of entertainment booking agency - application to discharge injunction - whether serious question to be tried - whether balance of convenience in favour of continutation of injunction - whether allegedly misleading and deceptive statements merely represented the authorsr belief.

Trade Practices Act 1974: s.52, 53.

No. G276 of 1989.

DATE :  10 July 1989.

CORAM:  Hill J.

PLACE: Sydney

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. G276 of 1989

1

GENERAL DIVISION 1

BETWEEN:	THE HARBOUR AGENCY PTY LIMITED First Applicant
PREMIER ARTISTS PTY LIMITED Second Applicant
MOSSTROOPER PTY LIMITED trading as and professionally known as IAN MOSS Third Applicant
TAVEFILM PTY LIMITED trading as and professionally known as
ICEHOUSE  -
Fourth Applicant
BIGBOOM OPERATORS PTY LIMITED trading as and professionally known as BOOM CRASH OPERA
Fifth Applicant
CALTOONS PTY LIMITED trading as and professionally known as CAL Sixth Applicant
BERNARD NEESON professionally known as DOC NEESON Seventh Applicant
HICHAEL THOMAS, MARCUS SCHINTLER, MARK WALLIS, RICHARD BURGMAN and

PETER LAWLER trading as and

professionally known as
WEDDINGS PARTIES AND ANYTHING
Eighth Applicant

GRANT McLENNAN, ROBERT FORSTER, JOHN
WILSTEAD, AMANDA BROWN and LINDY
MORRISON trading as and
professionally known as
THE GO-BETWEENS
Ninth Applicant

r 1 !C?̂ ?

18 ]JL .J1 I ROCKMELONS MUSIC PTY LIMITED trading

.,lq	CT	as and professionally known as
B , 3	ROCKMELONS

> ,	Tenth Applicant HOUSE TOURING PTY LIMITED tradlng as and professionally known as CROWDED HOUSE Eleventh Appllcant
RIC SWINN formerly known professionally as the VENETIANS Twelfth Applicant
TUTENKHAMEN NOMINEES PTY LIMITED trading as and professionally known as THE ANGELS Thirteenth Applicant
AMYSILVER PTY LIMITED trading as and professionally known as JOHNNY DIESEL AND THE INJECTORS Fourteenth Applicant
TOUR WORKS PTY LIMITED trading as and professionally known as NOISEWORKS Fifteenth Applicant
BIG BAD MUSIC PTY LIMITED trading as and professionally known as CHOIR BOYS Sixteenth Applicant
1927 PTY LIMITED trading as and
professionally known as 1927 Seventeenth Applicant
ROSS WILSON Eighteenth Applicant
KIZREEL PTY LIMITED trading as and professionally known as LIME SPIDERS Nineteenth Applicant

THE RADIATORS ENTERTAINING GROUP PTY

LIMITED trading as and
professionally known as RADIATORS
Twentieth Appllcant

DIRTY SHEET MUSIC PTY LIMITED
tradlng as and professionally known
as JIMMY BARNES
Twenty First Appllcant

HOODOO GURUS PTY LIMITED trading as
and professionally known as
HOODOO GURUS
Twenty Second Applicant
KATE CEBRANO PRODUCTIONS PTY LIMITED
trading as and professionally known
as KATE CEBRANO AND THE MINISTRY OF
FUN
Twenty Third Applicant

AND :	AGENCY FOR THE PERFORMING ARTS PTY LIMITED First Respondent
RICHARD MACDONALD Second Respondent
CHRISTOPHER M MURPHY Third Respondent
DUSTBARKO PTY LIMITED tradrng as MMA MANAGEMENT Fourth Respondent
A J WATSON Fifth Respondent

MINUTES OF ORDER

CORAM: Hill, J.
PLACE: Sydney

DATED: 10 July 1989

THE COURT ORDERS THAT:

1.   The orders made by Pincus J on 25 May 1989 be varied to read as follows:

(a)

Until further order the first, second, third and fourth respondents by themselves, their servants or agents be restrained from further publishing, distributing, circulating or making available to any person an origlnal or copy of the Business Plan being annexure "A" to the affidavit of Warren Bramble Cross sworn 25 May 1989 and flled herein, or publishing, distributing, clrculatlng or makrnq available to any person any part or extracts of or a copy of any part or extract of the said Business Plan referring to any of the thlrd to twenty third applicants.

(b)

That the said respondents be restrained until further order from by themselves, thelr servants or agents doing or attempting to do any of the following:

(i)

representing that the first respondent has locked-ln or has as certainties any of the applicants being the third to twenty thlrd applicants hereln for the purpose of engaging such applicants as performers in Australia whether in respect of a particular performance or in respect of performances generally except with the consent in writing of such applicant or where such applicant has agreed with the first respondent in writing that the first respondent is authorised to engage such applicant as a performer in Australia in respect of that particular performance or performances generally;

(ii)

representing to any person that the said respondents or any of them are or are about to be authorised to engage the services of any of the applicants being the third to twenty third applicants for the purposes of live entertainment in Australia except with the consent of such applicant in writing or where such applicant has in writing agreed with the first respondent that the first respondent is authorised to engage the service of such applicants in accordance with the representation.

2.    The flrst, second, third and fourth respondents pay the applicants' costs of the motion.

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

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. G276 of 1989

1

GENERAL DIVISION 1

BETWEEN:	THE HARBOUR AGENCY PTY LIMITED First Applicant
PREMIER ARTISTS PTY LIMITED Second Applicant
MOSSTROOPER PTY LIMITED trading as and professionally known as IAN MOSS Third Applicant
TAVEFILM PTY LIMITED trading as and professionally known as ICEHOUSE Fourth Applicant
BIGBOOM OPERATORS PTY LIMITED trading as and professionally known as BOOM CRASH OPERA
Fifth Applicant
CALTOONS PTY LIMITED trading as and professionally known as CAL Sixth Applicant
BERNARD NEESON professionally known as DOC NEESON Seventh Applicant
MICHAEL THOUS, MARCUS SCHINTLER, MARK WALLIS, RICHARD BURGNAN and

PETER LAWLER trading as and

professionally known as
WEDDINGS PASTIES AND ANYTHING
Eighth Applicant

GRANT MCLENNAN, ROBERT FORSTER, JOHN
WILSTEAD, AMANDA BROWN and LINDY
MORRISON trading as and
professionally known as

THE GO-BETWEENS

Ninth Applicant

ROCKMELONS MUSIC PTY LIMITED trading
as and professionally known as
ROCKMELONS
Tenth Applicant
HOUSE TOURING PTY LIMITED trading as
and professionally known as
CROWDED HOUSE
Eleventh Applicant

RIC SWINN formerly known
professionally as the VENETIANS
Twelfth Applicant

TUTENKHAMEN NOMINEES PTY LIMITED
trading as and professionally known
as THE ANGELS
Thirteenth Applicant

AMYSILVER PTY LIMITED trading as and
professionally known as JOHNNY
DIESEL AND THE INJECTORS
Fourteenth Applicant

TOUR WORKS PTY LIMITED trading as
and professionally known as
NOISEWORKS

Fifteenth Applicant

BIG BAD MUSIC PTY LIMITED trading as
and professionally known as
CHOIR BOYS
sixteenth Applicant

1927 PTY LIMITED tradlng as and
professionally known as 1927
Seventeenth Applicant

ROSS WILSON
Eighteenth Applicant

KIZREEL PTY LIMITED trading as
and professionally known as
LIME SPIDERS
Nineteenth Applicant

THE RADIATORS ENTERTAINING GROUP PTY

LIMITED tradlng as and

professionally known as RADIATORS

Twentieth Applicant

DIRTY SHEET MUSIC PTY LIMITED
trading as and professionally known
as JIMMY BARNES
Twenty Flrst Applicant

HOODOO GURUS PTY LIMITED tradlng as
and professionally known as
HOODOO GURUS
Twenty Second Applicant
KATE CEBRANO PRODUCTIONS PTY LIMITED
trading as and professionally known
as KATE CEBRANO AND THE MINISTRY OF
FUN
Twenty Third Applicant

AND :	AGENCY FOR THE PERFORMING ARTS PTY LIMITED First Respondent
RICHARD MACDONALD Second Respondent
CHRISTOPHER M MURPHY Third Respondent
DUSTBARKO PTY LIMITED trading as
M M A  MANAGEMENT
Fourth Respondent
A J WATSON Fifth Respondent

CORAM: Hill, J.
PLACE: Sydney

DATED: 10 July 1989

REASONS FOR JUDGMENT

On 25 May 1989 Pincus J, after hearing argument from both parties, granted on the application of the applicant an injunction against the first, second, third and fourth respondents restraining them until further order from further

publishing, distributing, circulating or making available to any	person the original or a copy of a document which is referred to
in the application as the "Business Plan" and also restraining them from making certain representatlons. Leave was reserved to the respondents to move to discharge the inlunctlon and the present proceedings, which are still interlocutory, arise on a motion by the respondents to set aside the orders made by Pincus
J to which I have referred.
The first and second applicants carry on business as booking agencies for contemporary live music. Together they account for at least 70 percent of all of the bookings effected in Australia for contemporary Australian live music. The first applicant, The Harbour Agency Pty Limited, is principally concerned with bookings in New South Wales, and the second applicant is principally concerned with bookings in Victoria. Apparently the two companies have found it more effective to have interrelated booking arrangements than for each company to attempt in competition with the other to carry on business throughout Australia. Each of the applicants have similar arrangements with other companies or persons in other States.
Agencies such as those conducted by the first and second applicants and the first respondent provide a service for performers in the music industry by co-ordinating their live performances. They deal with promoters of concerts and persons responsible for entertainment in clubs, pubs and other venues around Australia. For this service the agency receives a fee based on a percentage of the appearance money for the individual artist or band, as the case may be. The agency is involved in
and where a tour of Australia or a part of Australia is involved the negotiation of the actual fee received for the performance
maps out a series of fixtures and venues for the artist which are then submitted to the artist or his/her or its business manager for approval and discussion. The agency thereafter negotiates the individual fees for each performance and is involved in the preparation of contract documents.
The remalnlng applicants are corporations, partnerships or lndivlduals who professionally are bands or artists well known in the Australian music industry. Many, if not all, of these bands and artists are household names throughout Australia.
The first respondent commenced business in November 1988 in competition with the first and second applicants. ~ t s
directors are the second and third respondents who were its promoters.
Both Mr MacDonald and Mr Murphy have had considerable experience in the music industry. Mr MacDonald, who was himself originally a musician, joined a music agency business run by Mr Murphy's father and worked in that business for two years: he worked as an independent agent for a further two years, became agency manager with a company called Dirty Pool Artist Management which represented a number of successful bands in Australia, later formed a company which acted as a promoter of tours and concerts and managed a number of agents, organised a number of concert tours throughout Australia in 1987 under the banner "Australian Made" and spent time overseas in management
activities with the artist Jimmy Barnes and also with the group "The Divinyls". Mr Murphy who had founded his own agency in the
19701s, left it to form another agency and became a manager of the band INXS, one of Australia's most successful bands internationally if not the most successful band lnternationally at the present time.
Since the first respondent commenced business it has, it is alleged, made arrangements with 14 artists and has also secured its first international tour.
In or about March 1989, a document referred to as the "Business Plann was prepared for the purpose of being sent to potential investors. The evident aim of the preparation of the document was to raise money. The Plan was said to have been directed to particular investors whom it was thought would assist in the future development of the first respondent by reason of their associations and affiliations. All of the potential investors to whom the Plan was distributed are said to have been persons or companies who or which had a close assoclation wlth either Mr MacDonald or Mr Murphy. No doubt the prohibition in the Companies (NSW) Code against offers and invitations to the public ensured or should have ensured that the distribution of the Business Plan was so llmited.
According to the evidence the document was distributed to 19 persons or corporations. The document bore at the bottom of its cover the name "Price Waterhouse", the name of a well
Watson, the fifth respondent, although from informatron provlded known firm of accountants and appears to have been complled by Mr
by the second, third and fourth respondent. Mr Watson appeared at a directions hearing, but as no relief was sought against hlm, he was excused from further partlclpation in the matter.
A significant part of the Business Plan is devoted to financial projections for the business of the first respondent in connection with its intended capital raising of $450,000 from outside investors for a 75 percent interest in the capital and profits of the first respondent. The document predicts that in Year 1, the first respondent could obtain 40 to 50 percent of the market, in Year 2 that this would be consolidated and a further
10 percent obtained and that by the end of the second year the
agency would hold 50 to 60 percent of the market. At the bottom of page 3 of the document under the heading "Analysis of acts to be approached" there appears the following words:

"It is envisaged that in the initial stages the agency will concentrate on rock bands of excellent appeal and income potential. In the future the agency would, it is hoped, move more into general entertainment and not be locked in to the promotion of rock music."

The next page contains a list of what are said to be potential clients and the possible income to be earned from them. The information on this page is as follows:

"Potential Clients

Possible

Income

Certainties	$
Ian MOSS

Ice House
Boom Crash Opera
Jenny Morris
The Salnts
Big Storm
Cal
Doc Neeson
Weddings, Partles & Anything
Shane Howard
Vanilla Chainsaws
The Go Betweens
The Triffids
Wendy Matthews
Never Never
On
Crashland

Good Possibilities

Rock Melons
Crowded House
The Venetians
The Angels
Johnny Diesel
Richard Clapton
Noiseworks

The Choirboys

1927

Rooart Label Roster
Ross Wilson
Mental as Anything
Machinations
The cockroaches

The Lime Spiders

Near Possibilities

The Radiators
Jimmy Barnes
Hoodoo Gurus
Bigger Than Texas
Divinyls
Kate Cebrano

Page 8 bears the headlng "Financial Information". It refers to two appendices being Cashflow Projections and Projected Balance Sheet and then gives a summary of assumptions used, presumably in the preparation of either or both of these appendices. Under the sub-heading "Summary of Assumptions used"

the following Information appears: 

"Agent's commissions: The prolected agent's

commissions for the next three years are based on:

Local Acts

~ l g storm 1an MOSS

Mark Calahan	Ice House
Steve Gilpin	Boom Crash Opera
Rockmelons	The Saints
Weddings, Parties	DOC Neeson

& Anything/ Separate Tables Shane Howard

Crashland	vanilla Chainsaws
Never Never (Perth)	The Go Betweens
On	The Triffids
Jenny Morris	Wendy Mathews

International Acts

Stevie Ray Vaughan
A1 Jarreau

The above acts have either been "locked in" or are 90% certainties. Other acts which are also highly probable have been included in the projections. Traditionally, the summer months (October to March of the following year) are large fee earning months in the music industry. Projected commission income in these months are higher. Commission income has been projected on the basis that most of the available dates up until mid 1989 will already be locked in with other agencies."

The applicants claim that the material on pages 4 and 8 constitutes conduct that was misleading or deceptive, or was likely to mislead or deceive in contravention to s.52 of the Trade Practices Act 1974 (Cth). It is also claimed that this material is in breach of ss.53(c), (d) and ( £ 1 of that Act. So far as the second, third and fourth respondents are concerned, it is claimed that each of them aided, abetted, counselled or procured breaches of that Act by the first respondent.

Evidence was adduced from the applicants that of the persons referred to as "certainties" on page 4 of the Business	Plan, seven had either been not approached or had been approached
and refused, or had had no discussions and in one case only, said that if an offer were put to them it would be considered. As to the fifteen artists or bands referred to under the heading of "Good Possibilities" nine had either been not approached or had been approached and rejected overtures from the first respondent or otherwise had no intention of moving. Of the six acts referred to as "Near Possibilities" two had not been approached, one had had an informal discussion and nothing more, and one had been approached after the preparation of the Business Plan to have a discussion but had not in fact turned up at that discussion.
Of the local acts referred to at page 8 of the Business Plan evidence was adduced from the business managers of six of the artists to the following effect:

1.   The band "Weddings, Parties & Anything" had been approached by Mr Macoonald but had replied that it was happy with its representation by the first applicant but would consider an offer.

2.    Ian Moss had never been approached by anyone on behalf of the first applicant and, had he been so approached, would have refused an offer.

3.    The band "Ice House" had been approached by Mr MacDonald and its business manager had replied, "No I am not even interested in considering the proposition."

4.    The band "Boom Crash Opera" had been approached by Mr

MacDonald prior to March 1989 but its business manager had indicated to Mr MacDonald that he had no intention

of switching.

5.    Doc Neeson was represented by a Mr Woodruff who also represents the "Angels" and Johnny Dlesel. Apparently Mr Woodruff has been involved in legal proceedings against Mr MacDonald and a Supreme Court judgment had been obtained against Mr MacDonald in those proceedings. M woodruff had apparently said, "We would not be associated with hlm [i.e. Mr MacDonald] In any way."

6.    "The Go Betweens" are represented by a Mr Grierson who deposed that he had at no time been approached by anyone on behalf of the first respondents and that he would have refused had he been so approached.

None of the business managers of the artists in question gave oral evidence or was crossexamined. It was, however, agreed between the parties that were the managers present to give evldence they would concede that they would only act on what they regarded as the best interests of their clients and it was also conceded for the purposes of the proceedings that the business managers of the relevant artists would agree that competition between agencies would in certain circumstances be of benefit to their clients. The following further concessions were also made although I have not regarded them as relevant in the disposal of the present proceedings:

It was conceded by the flrst and second applicants that

the policies pursued by them are such that if a performer wished

object to that. I was advised that the applicants, in agreeing	to cease to use their services they could not and would not
not to crossexamine Mr MacDonald, dld not concede that he ever believed the representations in the Buslness Plan to be
predictions or statements of future intention. or was it
conceded that the statements made were statements of future intention as opposed to statements of existlng facts. It was further not conceded that Mr MacDonald believed the statements to
be true either as statements of future intention or as statements of existing fact.
There was no dispute as between the parties as to the proper tests to be applied in the present interlocutory proceedings. It was agreed between the parties that I should enquire first whether there was a serious question to be tried and that I should then consider where the balance of convenience lies in determining whether to grant or refuse the continuance of the present injunction: Australian Coarse Grain Pool Pty Ltd v. Barley Marketing Board of Queensland (1982) 46 ALR 398; 57 ALJR 425; Tableland Peanuts Pty Ltd v. Peanut Marketing Board (1984) 52 ALR 651; 58 ALJR 283; Epitoma Pty Ltd v. Australasian Meat
Industry Employees' Union & Ors (No 2) (1984) 54 ALR 730, 734.
It was argued on behalf of the respondents that having regard to the background and nature of the statements made, the statements made at pages 4 and 8 of the Business Plan document were looking in futuro and represented merely the belief of the author of the document that the acts in question were certainties, good possibilities or near possibilities or
acts to be approached and not statements suggesting that the acts "locked-in" etc. as the case may be. These were, it was said,
in question had been approached and could be categorised as stated on the relevant pages.
Second, it was sald that the orders made by his Honour were too wide and should in any event be varied.
Finally, it was sald that if there were at all a breach of the Trade Practices Act which was not accepted, the breach was not a substantial one, would not be repeated and that an undertaking had been proffered and was still available to be accepted (that undertaking being that the respondents would not further publish the Buslness Plan in its present form). Accordingly it was submitted that the balance of convenience was opposed to the continuance of the injunction.
It must be remembered, the present proceedings belng interlocutory, that it is not incumbent upon me to find at thls stage whether the statements made in the Business Plan are misleading or deceptive or likely to cause someone reading them to be misled or deceived. It is sufficient for present purposes that this issue is arguable. Nevertheless it seems to me that a reasonable person reading the document as a whole would form the opinion, particularly in respect of those acts which are sald to have been certainties or "locked-in", that the artists in question had been approached and that they had consented to the making of an arrangement with the first respondent. In my view there is a very strong case indeed for the applicants that the
of the document were more than a mere statement of predlctlon but statements at pages 4 and 8 when read together with the remainder
were in fact statements of existlng facts implyrng, as I have sald, that the artists in question were approached and agreed to arrangements wlth the flrst respondent.
If the matter be considered as a prediction or opinion, it does not follow that the Business Plan would not amount to misleading or deceptive conduct in any event. The summary of the law given by Burchett J in Bateman & Anor v. Slatyer & Ors (1987) 71 ALR 553 at p.559, followed by Von Doussa J recently in Brown &
Anor v. Australian Havestore Products Pty Ltd & Ors (unreported)
9 June 1989, in my view correctly states the law:

"It is of course clear law that a statement of opinion cannot be regarded as false or misleading, or as misleading or deceptive, sim~lv because it turns out to be- incorreci: ~lobal- s$ortsman Pty Ltd v. Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at

But such an opinion may convey that there is a basis for it, that-it is honestly held, and when it is expressed as the opinion of an expert, that it is honestly held upon rational grounds involvinq an

application of the relevant expertise: see ~ i m e s

v. Australia and New Zealand Banking Group-
(1986) 64 ALR 347 at 312; Geale v. Glenhoun

Holdings Pty Ltd (1985) 7 46, 970 at

46,978 - 9."

The question, having regard to the evidence from the artists put before me as to whether or not the predictions in the document were honestly held upon rational grounds would itself raise a triable issue for the purposes of interlocutory relief.

It is true that from the outset an undertaking was

proffered on behalf of the respondents that they would not

and 8. Before Pincus J the argument pressed before me was also	further publish the Business Plan in the form containing pages 4
put. It was said having regard to the undertakings, that it was unnecessary to grant interlocutory rellef. The argument was rejected by Pincus J and in my respectful opinion, correctly.
Where there has been a case, which on its face, represents a very significant infringement of the Trade Practices Act the principle is not, as initially put by the respondent, that the Court would only grant an injunction or continue it if it formed the view that there was llkely to be a further breach. The problem with such a proposition, and it was conceded that it was not a proposition of law, is that the Court will generally be unable to form a view as to the likelihood of further breach in any event. Where there has, in the opinion of the Court, been a breach and that breach has been significant it will ordlnarlly be appropriate for injunctive relief to be granted, particularly in a case where the undertaking proffered might not ultimately adequately protect the applicants.
It is noted that while the undertaking was not to publish the Business Plan in its present form, the undertaking did not extend, as the injunctive relief presently does, to ensuring that the respondents make no similar representatlons in other documents, particularly in documents which might be issued in other contexts where false or misleading statements could be even more harmful to the applicants. Accordingly, I am of the view that, subject to a question as to the form of the orders to be made, the balance of convenience, notwithstanding the
continued. proffered undertaking, is that the present injunctions be
It was said that there was some ambiguity In the flrst of his Honour's orders and as to the second that there should be excluded from the ambit of the injunction a circumstance where the reference to a particular applicant has been consented to by that applicant or that applicant has entered into an agreement with the first respondent authorising the first respondent to represent the relevant applicant. I requested counsel to confer to see if agreement could be reached as to the form of an appropriate order or if agreement could not be reached to each prepare drafts dealing with these two matters.
I have considered the two drafts (agreement presumably not being able to be reached) and note that they vary but marginally. The only significant difference in my view between the two drafts is the issue whether any consent of an applicant or agreement of an applicant with the first respondent, as the case may be, should be in wrltlng. After consideration I am of the view that to avoid further litigation it would be desirable that the consent be in wrltlng. Accordingly, I would vary the orders made by Pincus J to read as follows:

(a) Until further order the first, second, third and fourth respondents by themselves, their servants or agents be restrained from further publishing, distributing, circulating or making available to any person an orlglnal or copy of the Business Plan

being annexure "A" to the affidavit of Warren

Bramble Cross sworn 25 May 1989 and filed herein,

or publishing, distributing, circulating or making available to any person any part or extracts of or a copy of any part or extract of the sald Business Plan referring to any of the third to twenty third applicants.

(b)

That the sard respondents be restrained until further order from by themselves, thelr servants or agents doing or attempting to do any of the following:

(i)

representing that the first respondent has locked-in or has as certainties any of the applicants being the third to twenty third applicants herein for the purpose of engaging such applicants as performers in Australia whether in respect of a particular performance or in respect of performances generally except with the consent in writlng of such applicant or where such applicant has agreed with the first respondent in writing that the flrst respondent is authorised to engage such applicant as a performer in Australia in respect of that particular performance or performances generally;

(ii)

representing to any person that the sald respondents or any of them are or are about to be authorised to engage the services of any of

the applicants being the thlrd to twenty third

applicants for the purposes of live entertainment in Australia except with the consent of such applicant in writlng or where such applicant has in writlng agreed with the first respondent that the first respondent is authorised to engage the service of such applicants in accordance wl th the representation.

Subject to the variation of the order the order will

continue.

Pincus J ordered that the costs of and incidental to the application before his Honour be applicants' costs in the proceedings. The orders made by his Honour were, as I have already indicated, not made ex parte and were made after proceedings which comprised some 28 pages of transcript. The respondents have sought to obtaln an order discharging the injunction and have failed. I think in the circumstances of the present case that the respondents, excluding the fifth respondent, should pay the applicants' costs of the motion.

I certify that this and the

pages are a true copy of the

preceding SA (17 )

Reasons for Judgment herein of
hls Honour Mr. Justice Hill.

Associate W" Dated: l o & 9 / ? g ?

Counsel and Solicitors R Campbell instructed by

for Applicant:  Lilley Brereton

Counsel an& Solicitors	A J L Bannon instructed by
for Respondent:	Gray & Perkins
Dates of hearing:	28 June 1989
Date Judgment Delivered:	10 July 1989