Wayne Alan Richards v Starfingers (Wholesale) Pty Ltd

[1996] ATMO 24

TRADE MARKS ACT 1955

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS

Opposition by STARFINGERS (WHOLESALE) PTY LTD to Trade Mark Applications Nos 624902, 624903 and 624904 in the Name of WAYNE ALAN RICHARDS

On 15 March 1994 Mr Wayne Alan Richards (“the applicant”) lodged three applications, numbered 624902, 624903 and 624904, to register the trade mark shown below:

The Classes in which the applications were lodged and the goods or services in respect of which registration of the mark was sought were as follows:

624902           Class 3           Artificial finger nails; preparations and cosmetics in this   class for use on nails

624903           Class 8           Manicure sets; all other items in this class used for the   care of finger and toe nails

624904           Class 42         Beauty salon services

Acceptance of the applications was advertised in the Official Journal on 29 September 1994 and on 12 December 1994 a notice of opposition to the registration of the trade mark in all three Classes was lodged by Starfingers (Wholesale) Pty Ltd (“the opponent”) in accordance with s50 of the Trade Marks Act 1955.

Evidence in support of the opposition was served by the opponent on the applicant in accordance with reg 43 of the Trade Marks Regulations made under the 1995 Act on 12 March 1995. This evidence consists of:

• a declaration by Robert Osborne Shearman, a director of the opponent company, together with Annexures ROS1 to ROS14

• a declaration by Richard Bruce Lewis, solicitor, together with Annexures RBL1 to RBL5

No evidence in answer to the opposition was served by the applicant on the opponent within the time prescribed by reg 44 and by letter dated 23 June 1995 the solicitors for the opponent requested that a time and place for the hearing of the matter of the opposition be fixed pursuant to reg 49. The opposition was accordingly set down for hearing before me in Melbourne on 11 June 1995. Mr Bruce Caine of counsel appeared for the opponent at the hearing. The applicant was unrepresented.

Mr Caine commenced his submissions by stating that the opponent relied on the following grounds of opposition as set out in the notice of opposition:

• that the applicant was not, nor entitled to claim to be, the proprietor of the trade mark for which registration was sought (s40 of the Act)

• that the trade mark for which the applicant sought registration was one the use of which at the date of application for registration would be likely to deceive or cause confusion, the use of which would be contrary to law and was one which would otherwise not be entitled to protection in a Court of Justice (s28 of the Act)

• that the trade mark which the applicant had applied to register was substantially identical with or deceptively similar to registered trade mark no. A426199 registered in the name of the opponent, and to the trade mark the subject of applications nos 576595, 576598 and 576600 (s33 of the Act)

• that the three applications mentioned above were withdrawn by Wayne Alan Richards by reason of fraud.

Mr Caine then took me to the evidence which, he submitted, established the following sequence of events:

CHRONOLOGY

DATE	DESCRIPTION OF EVENT	EVIDENCE
1978	Opponent’s predecessors in business (Mr and Mrs Shearman) commenced to carry on business under the name “STARFINGERS”	Shearman para 3
June 1982	Opponent commenced to carry on business under the name “STARFINGERS” in relation to: ·   nail care and beauty products ·   specialised training	Shearman para 3
2 May 1985	Opponent (through Francine Shearman, a director of the opponent) registered the trade mark STARFINGERS (No. A426199)	ROS1
5 April 1992	Trade mark applications 576595 - Class 3 576598 - Class 8 576600 - Class 42 were lodged in the name of Star Nail Products Pty Ltd	RBL1
October 1992	Star Nail Products Pty Ltd commenced carrying on business under the mark “STAR NAIL”	Shearman para 6
13 January 1994	Exclusive Australian distributorship of Star Nail Products Pty Ltd terminated	ROS5 & ROS6
16 February 1994	Star Nail Products Pty Ltd placed in liquidation	RBL2
14 March 1994	Application for withdrawal of applications 576595, 576598 and 576600 made by Wayne Alan Richards
15 March 1994	Applications under opposition lodged in the name of Wayne Alan Richards	ROS4
14 April 1994	Withdrawal of applications 576595, 576598 and 576600 advertised	RBL3 & RBL4
6 June 1994	Opponent became exclusive Australian distributor of “STAR NAIL” products	ROS3
19 August 1994	Star Nail Products Inc. made application for registration of the mark STAR NAIL A638254 - Class 3 A638255 - Class 8 A638256 - Class 42	ROS13
September 1994	Opponent promoted and sold products throughout Australia under name STAR NAILS	Shearman para 10
22 November 1994	Deborah Street and Star Nails Australia Pty Ltd assigned to opponent: (a) all right, title and interest in Victoria, NSW and Queensland business names registration (b) goodwill in names “Star” or “Starnail”	ROS1
29 November 1994	Star Nail Products Pty Ltd (in liquidation) assigned to opponent: (a) all right, title and interest in SA, NT, ACT and Tasmania business names registration (b) goodwill in names “Star” or “Starnail	ROS12

the issue ofproprietorship

Subsection 40(1) of the Act provides as follows:

Application for registration

40. (1) A person who claims to be the proprietor of a trade mark may make          application to the Registrar for the registration of that trade mark in Part A or            Part B of the Register.

The opponent is the registered proprietor of trade mark no.A426199 as shown below:

This trade mark is registered in Class 3 in respect of “Cosmetics being nail care products in this class, including fixatives in this class for artificial nails”. The registration dates from 2 May 1985, the date of lodgment of the application, but the mark had been in use by the opponent or its predecessors in business since 1978 (see Chronology). To the extent that the claim to proprietorship depends on the prior use of this trade mark I think the argument can be shortly disposed of. In Carnival Cruise Lines v Sitmar Cruises Limited 1994 AIPC 91-049 Gummow J of the Federal Court, in considering the disputed claims to proprietorship of the marks FUNSHIP or FUN SHIP, posed the following questions:

Will substantial identity suffice? Or may questions of deceptive similarity be       considered? Or is visual identity essential?

Then, having considered a submission based on The Shell Company of Australia Limited v Rohm and Haas Company (1949) 78 CLR 601, His Honour continued:

When the decision is understood in this way, it does not supply any general authority for the proposition that in the case of disputed claims to proprietorship under the present statute anything less than substantial identity between the two marks will suffice. The phrase "substantially identical" as it appears in s62 (which is concerned with infringement) was discussed by Windeyer J in The Shell Company of Australia Limited v Esso Standard Oil (Australia) Limited (1963) 109 CLR 407 at 414. It requires a total impression of similarity to emerge from a comparison between the two marks. In a real sense a claim to proprietorship of the one extends to the other. But to go beyond this is, in my view, not possible.

...

In the present case there would, in my view, be no material distinction to be drawn between "Fun Ship" and "Funship" or between the addition of the definite article or the use of the plural. However, "Fun Ship" is for this purpose a substantially different trade mark to "Sitmar's Funship" and "Fairstar The Funship".

In Karu Pty Ltd v Robert Leon Jose 30 IPR 407 Drummond J, while noting that the comments of Gummow J were obiter, applied them directly to the matter before him. He said, at 415:

Although Gummow’s comments were obiter, I think they show that the registrar’s           delegate was right in holding that disputed claims to proprietorship of marks can only    arise where the marks in question are identical or substantially identical.

When the applicant’s and opponent’s marks are compared side by side the differences between them are so great that it is not possible to say that they are substantially identical.

However, I understood Mr Caine’s submission to be that Mr Richards was not entitled to claim proprietorship of the mark in suit by virtue of the earlier lodgment of applications 576595, 576598 and 576600 in the name of Star Nail Products Pty Ltd in respect of the identical mark In this he relied on the concept of the proprietorship of an unused trade mark as explained by Fullagar J in Aston v HarleeManufacturing Company 103 CLR 391 as follows, at 398-399:

Section 32 of the Act provides that any person claiming to be the proprietor of a trade mark may apply to the Registrar for the registration of his trade mark.  The right to registration depends, therefore, on proprietorship of a mark.  The conception of proprietorship, other than proprietorship acquired by a user which has made the mark distinctive of the applicant's goods, is a difficult conception, but it has been explained by Dixon J. in Shell Co. of Australia Ltd v Rohm and Haas Co (1), where his Honour refers to the history of the English legislation.  His Honour quotes Cotton L.J. as saying in In re Hudson's Trade Marks (2): "The difficulty is this:  Is a man to be considered as entitled to the use of any trade mark when he has never used it at all?  That is a difficulty, but I think the meaning is this.  If a man has designed and first printed or formed any of those particular and distinctive devices which are referred to in the first part of s 10, he is then looked upon as the proprietor of that which is under that Act a trade mark, which will give him the right so soon as he registers it." (3).  Dixon J. then sums up the position by saying:  "It is clear enough from the course of legislation and of decision that an application to register a trade mark so far unused must, equally with a trade mark the title to which depends on prior user, be founded on proprietorship.  The basis of a claim to proprietorship in a trade mark so far unused has been found in the combined effect of authorship of the mark, the intention to use it upon or in connection with the goods and the applying for registration" (4).  "Authorship", says his Honour a little later, "involves the origination or first adoption of the word or design as and for a trade mark. (5).

(1) (1949) 78 CLR 601, at pp.625 et seq.

(2) (1886) 32 Ch.D., at p.319,320.

(3) (1949) 78 CLR at p.626.

(4) (1949) 78 CLR at p.627

(5) (1949) 78 CLR at p. 628

His Honour went on to explain that authorship of a mark does not mean that the applicant must have been the "true and first inventor" or have "thought of it first". The applicant may yet be the author although he has copied or adopted a mark registered in a foreign country in respect of the same description of goods. "Local authorship" will suffice. What is essential to a valid claim to proprietorship is that no other person has acquired a prior right to use the mark in Australia for the goods or services in question. The “original” applications, as Mr Caine referred to them, were lodged by Mr Richards himself, as an “authorised employee” and “owner” of the trade mark, in the name of Star Nail Products Pty Ltd. By order of the Supreme Court of Victoria dated 16 February 1994 that company was placed in liquidation and on 14 March 1994 Mr Richards requested that the applications be withdrawn.. The following day he lodged the present applications in his own name in terms identical to those of the “original” applications. These applications were advertised withdrawn on 14 April 1994. During that time and later representations had been made to the Registrar by the solicitors for the opponent and by the official liquidator of the company that the applications should not be withdrawn, or should be restored, on the ground that Mr Richards was not in fact authorised to act on behalf of the company Star Nail Products Pty Ltd. There is, at Annexure RBL2, a copy of a letter from the liquidator in which he states that Mr Richards had not at any time been a director or secretary of the company and that the company’s wages records did not record him as an employee of the company. He further states that Mr Richards was the de facto husband of a director of the company Ms Deborah Street. That he was not a director or secretary of the company at the time of lodgment of the “original” applications is borne out by Annexure ROS8 which is a copy of an “historical company extract” from the records of the Australian Securities Commission in respect of Star Nail Products Pty Ltd which gives details of present and past directors and secretaries of the company. The Registrar, however, took the view that if Mr Richards was not authorised to withdraw the applications then it followed that he was not authorised to lodge the applications in the first place and that therefore nothing would be gained by restoring the applications. Mr Caine went further and argued that Mr Richards acted fraudulently in withdrawing the applications in the company’s name so as to make way for his own applications and, presumably, to prevent the applications falling into the hands of the liquidator. Although his request to withdraw the applications was made less than a month after the winding up order was made and his own applications were lodged the day after that, even though the applications had been pending in the name of the company for approximately two years, the circumstances surrounding the lodgment of those applications is not at all clear and I am not prepared to find that the “original” applications were invalidly lodged or that Mr Richards acted fraudulently in withdrawing them.. I am, however, prepared to accept the submission that Mr Richards was not, as at 15 March 1994, entitled to claim to be the proprietor of the trade mark but that Star Nail Products Pty Ltd was the proprietor of the mark by virtue of the applications lodged on 5 April 1992 and of the uncontradicted evidence that it commenced to carry on business under the mark STAR NAIL in October 1992. Those applications were not withdrawn until one month after the present applications were lodged and there is no evidence that the company had the intention to abandon the mark. It appears from the evidence that Star Nail Products Pty Ltd acted as a distributor of the goods of an American corporation, Star Nail Products Inc.,which carried on business overseas under the mark in suit, that the former company’s exclusive Australian distributorship was terminated on 13 January 1994, that the opponent became the exclusive Australian distributor on 6 June 1994 and that the American corporation itself applied to register the trade mark on 19 August 1994. However, as Williams J held in The Seven Up Company v O.T. Limited and Another 75 CLR 203, in the absence of fraud it is not unlawful for a trader to become registered proprietor of a trade mark which has been used, however extensively, by another trader as a trade mark for similar goods in a foreign country, provided there has been no use of the foreign trade mark in Australia at the date of application for registration. Regardless of use, the right to register a foreign mark is restricted to those who cannot be said to owe any duty to the proprietor of the foreign trade mark. Thus the trade mark of a foreign company may not properly be registered in Australia by its agent or by an Australian importer of its goods or by an employee of the importer. Any such registration will be invalid even if the agent is honestly registering to protect the principal, or if the goods have never been sold in Australia bearing the trade mark (the "Certina" case (1970) 44 ALJR 191, also Blackadder v Good Roads Machinery Co. Inc. (1926) 38 CLR 332). However, there is no evidence that Star Nail Products Pty Ltd was an agent of the American company or that it stood in any relationship of a fiduciary nature to that company as at 5 April 1992 when the applications for registration were lodged. In the absence of any evidence of use of the trade mark by the American company or of fraud in the above sense there is nothing to displace the claim of the Australian company to proprietorship of the trade mark in Australia as at 15 March 1994 so that such a claim could be made by Mr Richards. I find therefore that the applicant was not entitled to claim to be the proprietor of the trade mark at the date of lodgment of the applications for registration. The purported assignments in November 1994 of business names and of the goodwill in the names “Star” or “Starnail” (see Chronology) have no bearing on the matter since the Act makes no provision for the assignment of unregistered trade marks.

section 28
Mr Caine then addressed the question of s28 of the Act which provides as follows:

Scandalous and improper marks

28. A mark-

(a) the use of which would be likely to deceive or cause confusion;

(b) the use of which would be contrary to law;

(c) which comprises or contains scandalous matter; or

(d) which would otherwise be not entitled to protection in a court of justice,

shall not be registered as a trade mark.

He submitted that the use of the trade mark applied for by the applicant would deceive or cause confusion by virtue of the extensive use by the opponent of its trade mark both in connection with the goods in respect of which it is registered and also in connection with the service of “specialised training for manicurists” (Shearman declaration). He said that the date at which the probabiity of deception or confusion was to be judged was the date of the opposed application: Southern Cross Refrigerating Company v Toowoomba Foundry Proprietary Limited 91 CLR 592, but that the opponent and its predecessors in business had carried on business under the name STARFINGERS since 1978 and had therefore established an overwhelming reputation in the trade mark. The likelihood of deception or confusion was the greater because of the importance in both marks of the word STAR, the words FINGERS and NAIL respectively being merely descriptive in relation to the relevant goods and services. Purchasers of those goods and services would therefore be misled by the presence of the word ‘Star’ in the applicant’s mark into believing that there was a connection with the goods and services of the opponent. The goods themselves were items of small price so that not much consideration would be given to the marks used in connection with them at the time of purchase. For all these reasons, Mr Caine submitted, the use of the applicant’s mark at the date of lodgment of the applications was likely to deceive or cause confusion.

In deciding this question the test to be applied may be stated as follows, paraphrasing the words of Evershed J. in Smith Hayden & Co Ltd's Application (1946) 63 RPC 97, in which he compared the tests under ss.11 and 12 of the Trade Marks Act 1938 (UK), which correspond to ss.28 and 33 of the Trade Marks Act 1955 (Cth):

The questions for my decision ... have been formulated, and I think accurately formulated, as follows:

(a) (Under s.28) "Having regard to the reputation acquired by the name      STARFINGERS, is the Registrar satisfied that the mark applied for, if used in a           normal or fair manner in connection with any goods covered by the         registration     proposed, will not be reasonably likely to cause deception and confusion       amongst a substantial number of persons?";

The evidence as to the reputation acquired by the opponent in its mark consists of the statements, in the Shearman declaration, that the predecessors of the opponent had carried on business under the “business name Starfingers” and that since 1982 the opponent itself had “widely promoted and advertised its businesses by reference to the name, word and mark “Starfingers” (“Starfingers” mark) including the use of the Starfingers Mark on price lists, advertisements (including television advertisements), trade displays. promotions and other advertising materials.” Annexure ROS2 to this declaration consists of samples of this promotional material including price lists and articles and advertisements in various journals and newspapers which circulate mainly in Victoria. Some of this material, such as the price lists, is undated but of that which can be dated, such as the newspaper advertisements, there is nothing earlier than 1991, the bulk of it bearing dates in 1993. There is no evidence as to the extent of sales of goods or services under the mark. Altogether I find the evidence of reputation in the opponent’s mark is insufficient to enable me to be satisfied that the use by the applicant of the mark applied for as at 15 March 1994 would have been reasonably likely to cause deception or confusion amongst a substantial number of persons.

Mr Caine went on to address the question of “blameworthy conduct” on the part of the applicant. This was because of a Practice Note published by the Office in the Official Journal of 12 September 1991 following the decision of the High Court in New South Wales Dairy Corporation v Murray Goulburn Co-operative Ltd 171 CLR 363. With respect to opposition proceedings that Note said:

In dismissing the appeal the Court affirmed the decision of the Federal Court in Murray Goulburn Co-operative Company Ltd v New South Wales Dairy Corporation and anor 16 IPR 289 that the application of para 28 (a) is limited by a requirement of "blameworthy conduct" on the part of the proprietor of the mark in suit. Consequently, Office practice with regard to objections under s 28 will be as follows:

...

2. Opposition proceedings

In order to succeed an opponent will be required to show not only that the use of the applicant's mark would be likely to cause confusion or deception but that that likelihood has been brought about by conduct on the part of the applicant which is somehow wrongful. Although the Court left the question of what constitutes blameworthy conduct unclear it seems that by a bare majority the Court would have favoured the view that blameworthy conduct could be equated with conduct which would render a mark disentitled to protection in a court of justice.

That practice has since been followed in numerous decisions of the Registrar.
Mr Caine argued that the applicant was guilty of blameworthy conduct in that he had improperly withdrawn the “original” applications to make way for the registration of the trade mark in his own name. But for the withdrawal of the applications the mark would have proceeded to registration in the name of Star Nail Products Pty Ltd which the evidence had shown had used the mark. There was no evidence of any connection in the course of trade between the trade mark and the applicant. Moreover, the applicant had chosen not to appear at the hearing and had thus treated the tribunal with disdain.

Strictly speaking it is not necessary for me to come to any conclusion as to whether or not the applicant has been guilty of the sort of conduct contemplated by the High Court in the Murray Goulburn case in relation to para (d) of s28 since I have found that the opponent has failed to make out a case in terms of para 28(a). For the sake of completeness, however, I will say that I am not able to conclude that the applicant is guilty of such conduct for the reasons I have already stated in connection with the question of proprietorship of the mark in suit, namely, that the cicumstances surrounding the lodgment and withdrawal of the “original” applications are not sufficiently clear to enable me to draw any inference as to the applicant’s conduct in relation to those transactions. That may simply be because the applicant has chosen not to adduce any evidence in answer to the opposition or to appear at the hearing but, however that may be, I cannot find that his conduct has been such as to be characterised as “blameworthy”.

section 33

This section provides as far as relevant:

33. (1) Subject to this Act, a trade mark is not capable of registration by    a person in respect of goods if it is substantially identical with or         deceptively similar to a trade mark which is registered, or is the subject of an application for registration, by another person in respect of the same goods, of goods of the same description as those goods or of services that are closely related to those goods, unless the date of           registration of the first-mentioned trade mark is, or will be, earlier than            the date of registration of the second-mentioned trade mark.

(2) Subject to this Act, a trade mark is not capable of registration by a       person in respect of services if it is substantially identical with or      deceptively similar to a trade mark which is registered, or is the subject of an application for registration, by another person in respect of the same services, of services of the same description as those services, or      of goods that are closely related to those services, unless the date of   registration of the first-mentioned trade mark is, or will be, earlier than      the date of registration of the second-mentioned trade mark.

In invoking this section Mr Caine was of course relying on the opponent’s registered trade mark no. 426199 the details of which have been given above. He did not address the issue of whether the goods in respect of which that trade mark is registered were the same goods or goods of the same description as those specified in applications nos. 624902 and 624903 or whether the goods were closely related to the services specified in application no. 624904. However, I think there is no question but that that is the case. What remains to decide therefore is whether the applicant’s trade mark is substantially identical with or deceptively similar to the opponent’s mark. I have already found that the respective marks are not substantially identical in connection with the question of proprietorship.

The phrase “deceptively similar” is defined in s6(3) of the Act:

For the purposes of this Act, a trade mark shall be deemed to be deceptively         similar to another trade mark if it so nearly resembles that other trade mark   as to be likely to deceive or cause confusion.

The test is that set out in Smith Hayden:

(Under s.33) "Assuming user by the opponent of its mark STARFINGERS and device in a normal and fair manner for any of the goods covered by the registration of that mark ... is the Registrar satisfied that there will be no reasonable likelihood of deception and confusion amongst a substantial number of persons if the applicant also uses its mark STAR NAIL and device normally and fairly in respect of any goods covered by their proposed registration?"

Mr Caine also referred me to the words of Dixon and McTiernan JJ in Australian Woollen Mills Ltd v F.S. Walton & Co. Ltd 58 CLR 641 at 658:

In deciding this question, [ie “whether in fact there is such a reasonable probability of deception or confusion that the use of the new mark and title should be restrained”] the marks ought not, of course, to be compared side by side.  An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought.  The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same.  The effect of spoken description must be considered.  If a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their desire to have the goods, their similarities both of sound and of meaning may play an important part.  The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected.  Potential buyers of goods are not to be credited with any high perception or habitual caution.  On the other hand, exceptional carelessness or stupidity may be disregarded.  The course of business and the way in which the particular class of goods are sold gives, it may be said, the setting, and the habits and observation of men considered in the mass affords the standard.  Evidence of actual cases of deception, if forthcoming, is of great weight.

He also referred to the judgment of Windeyer J in The Shell Co. of Australia Ltd v Esso Standard Oil (Australia) Ltd. 109 CLR 407, 415 to similar effect.

There is no evidence in this case of actual deception or confusion between the two marks and while it is true that the goods are relatively inexpensive so that the trade marks may not demand the same condideration as more expensive items, nevertheless I do not think that the marks are so similar as to produce a reasonable likelihood of deception and confusion amongst a substantial number of persons. I think this conclusion is reinforced by the fact that the word “star” is a very common element in trade marks so that the opponent’s mark cannot be said to be a particularly “strong” mark. Below is a list of marks registered in Class 3 which are registered in respect of all goods in that Class or which include cosmetics in general and which would therefore in either case include the goods specified in the opponent’s registration:

TRADE MARK NUMBER	TRADE MARK	GOODS
108234	STARMIST	Cosmetic Preparations
185780	STARCOL	Cosmetic Preparations
282400	ROMANSTAR	Cosmetics
282401	STARRUBY	Cosmetics
296599	STARLIGHT	Cosmetics
299335	SERVISTAR	All goods in Class 3...
565603	LONESTAR	Cosmetics
578864	EVENING STAR	All goods in this Class including cosmetics
594095	STARSTRUCK	...cosmetics and all goods in Class 3
594726	STARLET	All goods in class 3
609215	HYDRA-STAR	Cosmetics
625467	SUN MOON STARS	Cosmetics
628823	AMERISTAR	Cosmetics

All of the above marks coexist with the opponent’s mark on the Register and could be legitimately used in connection with the nail care products which are of interest to the opponent.

conclusion

I have found that the opponent has failed to make out a case in terms of s28 and s33 and the opposition therefore fails on those grounds. However, I have also found that the applicant was not entitled to claim to be the proprietor of the trade mark in suit at the date of lodgment of the applications. The opposition therefore succeeds on the s40 ground and accordingly I refuse applications 624902, 624903 and 624904.

costs

Mr Caine submitted that in view of Mr Richards’ conduct in this matter and his failure to appear at the hearing I should vary the Official Scale of Costs in Opposition Proceedings and award the opponent its full costs. I cannot accept the failure of a party to appear at a hearing as sufficient reason to vary the amount of costs. It is the right of every party to inter partes proceedings before the Registrar to choose not to appear. I have also said that the evidence is not sufficient to enable me to draw any inferences as to Mr Richards’ conduct. I therefore award costs to the opponent in accordance with the Official Scale.

Michael Homann
Hearing Officer

24 April 1996