Wickham, T. v Associated Pool Builders Pty Ltd

I - .

. r

TRADE PWCTICES - applicant agreed to promote and endorse

respondent's products

- respondent registered business name

whlch

includes applicant's name

- promotion agreement terminated

whether continusd use

of business name contravenes ss.52, 53(c),

53(d) of Trade Practicps

Act 1974.

IMJUMCTION - interlocutory - principles applicable

where

applicant has strong prima facie case

- adequacy of damages for

Infringement of 3oodw1ll and foregone royalties	- delay In
commenclng proceedings.

Trade Practices

Act 1974

American Cyanamid Co. v. Ethicon Ltd. t19757

A.C. 396

Epitoma Pty. Ltd. v. Australasian Meat Industry Emplo-rees' Unlon

( ~ 0 . 2 ) (1984) 54 A . L . R .

730 at 734.

Fellowes and Son v. Fisher C19767

9 . B .

122.

TRACEY LEE WICKHAM v . ASSOCIATED POOL BUILDERS	PTY.LTD. & ORS.
G129 OF 1986.
SPENDER J.
BRISBMJE 12 SEPTEMBER, 1986.

IN THE FEDER.AL_COJRT .&F AUSTRALIA

)

DUEENSLAND DISTRICT REGISTRY

)	QLD. G129 of 1986

GENERAL DIVISION

)

BETWEEN :

TRACEY LEE WICKHAM

Applicant

AND:

ASSOCIATED POOL BUILDERS PTY.

LTD.

First Respondent

AND:

GEOFFXEY JAMES RAMSEY

Second Respondent

AND :

SOHKMET PTY. LTD.

Third Respondent

AND:

WESTSIDE ENTERPRISES	& MANAGEMENT
SERVICES PTY. LTD.

Fourth Respondent

AND:

HALHAPIN PTY. LTD.

Fifth Respondent

AND :

DIRECTORIES (AUSTRALIA) PTY.

LTD.

Sixth Respondent

AND :

AUSTRALIAN TELECOMMUNICATIONS COMMISSION

Seventh Respondent

DATE JUDGMENT

DELIVERED:

12 SEPTEMBER 1986.

I	COUNSEL	: - for	the	applicant	Mr. L. Stephens	instructed by	> .
L.S.J. Dyne

. for the first, second

I. 1

and fifth respondent	Mr. A . Robb instructed by
Hicks & Bennett

for the seventh

respondent

Miss C. Cameron of Australian

Government Solicitor

P. APPLEGARTH

ASSOCIATE TO SPENDER

! '

IN THE FEDERAL COURT

OFAUSTRALIA

1 )

I	9UENSLAND DISTRICT	EGISTRY	)	QLD. G129 of 1986
)

GENERAL DIVISION

)

BFllWEEN :

TRACEY LEE WICKHAM

Applicant

AND:

ASSOCIATED POOL BUILDERS PTY. LTD.

First Respondent

AND:

GEOFFREY JAMES RAMSEY

Second Respondent

AND :

SOWMET PTY. LTD.

Third Respondent

AND:

WESTSIDE ENTERPRISES	& MANAGEMENT
SERVICES PTY. LTD.

Fourth Respondent

AND:

HALHAPIN PTY. LTD.

Fifth Respondent

AND :

DIRECTORIES (AUSTRALIA) PTY. LTD.

Sixth Respondent

AND:

AUSTRALIAN TELECOMMUNICATIONS COMMISSION

Seventh Respondent

MINUTES OF ORDER

JUDGE MAKING

O R D E R :

SPENDEB J.

DATE

O R D E R :

12 SEPTEMBER 1986.

WHERE W E :

BRISBANE

THE COURT 0RDW.S THAT:

1. Upon the undertaking in terms in paragraph

38 of Geoffrey James Ramsey

on behalf of

the first, second and third respondents,

the application f o r interlocutory relief be	I '
dismissed.	L

The c o s t s

of the interlocutory proceedings

be the first, second and

fifth respondents'

costs In the

principal proceedings.

3 .

No order

as to the costs of

the sixth and

seventh respondents.

4. The

matter

mentioned

9.15 a.m.

Friday, 3 October 1986.

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

I ’

IN THE FEDERAL COURT

OF AUSTRALIA

) )

QUEENSLAND DISTRICT REGISTRY

QLD. G129 of 1986

DIVISION	GENERAL	1	_ I
~

BETWEEN :

TRACEY LEE WICXHAM

1 Applicant

AND :

ASSOCIATED FOOL BUILDERS PTY. LTD.

i	First Respondent
I

AND:

GEOFFREY JAMES RAMSEY

Second Respondent

AND :

SOHKMET FTY. LTD.

Third Respondent

AND:

WESTSIDE ENTERPRISES

& MANAGEMENT

SERVICES PTY.

LTD.

Fourth Respondent

AND:

HALHAF’IN PTY. LTD.

Fifth Respondent	:
i

AND:

DIRECTORIES (AUSTRALIA) PTY. LTD.

Sixth Respondent

AND:

AUSTRALIAN TELECOMMUNICATIONS COMMISSION

Seventh Respondent

EXTEW’ORE REASONS FOR JUDGMENT

L .

Tracey

Lee

Wickham,

the

applicant,

claims

that

Associated

Pool

Builders

Pty.

Ltd.

and

some

the

other

respondents

are

falsely

representing

that

hey

have

affiliation or connection with her or that the pools which they manufacture or distribute have a sponsorship or approval which in fact they do not have.

This

conduct

said

constitute

misleading

deceptlve conduct contrary to

5 - 5 2 of the Trade Practices Act

1974 and also to involve a contravention

of s.53(c) and (d).

She seeks interlocutory injunctions to restrain that

conduct.

The applicant describes herself in her affidavit as a

sportswoman, media personality and promoter. She deposes to an

international sporting reputation. As a sportswoman she competed

for Australia in two Commonwealth Games and won four gold medals

for swimming. She held five world records in swimming events,

and

is the current record holder for the

400 and 800 metre

distances. She won two gold medals in the World Championships in

Berlin in 1978

and has been awarded

an M.B.E.

She has appeared

in a number of television programmes and has been involved	with a
number of promotions.

On 10	September, that is, two days	ago, she filed an	1.'
I.

application seeking an injunction

to restrain a number of the

respondents from the conduct to which

I have referred. The

injunction seeks

to restrain the use in trade or commerce

of the

3 .

words,

"Tracey

Flickham",

any

other

colourable

imitation

thereof and the use in trade

or commerce of a logo, in the shape

of a letter "W", of two medal ribbons and medals. In particular,

she seeks to restrain the publication in the

1987 edltion of the

Yellow Pages Telephone Directory of the words, "Tracey Wickham",

any words comprising them

the logo to which

have

referred. Other auxiliary orders are souqht.

contract

February

1983, Miss

Wickham

and

Associated Pool Builders Pty. Ltd., (hereafter called

"A.P.B."),

entered

into an

agreement

whereby

Miss

Wickham

authorised

A.P.B. to

use

and

exhiblt

her

name

and

photograph

advertisements of A.P.B. swimming pools and in promotlonal and

marketing material. She undertook to be available on reasonable

notice to permit photographs to be taken for use by A.P.B and to

endorse its products.

royalty per pool was agreed to be paid,

with Miss

Wickham agreeing to make herself available upon reasonable notice

I .

.. I '

for one personal appearance to promote A.P.B.'s swimming pools

f o r every multiple of the sum of $1,000.00	of royalties that she
received.

Clause 6 of the agreement provided:-

"Termination:

This Agreement may be terminated

(a1

After the expiration of three ( 3 ) years from the date hereof by one (1) month's notice in

by one party to the other,

D	l ..
>

(b) Forthwith by Miss Wickham,

I€ A.P.B. fails

to make payment to Miss Wickham of any

royalty

due

her and such

default

continues for a period of seven

( 7 ) days

after

notice

Miss

Wickham

that

she

requires

payment

the royalty

question.

l '

That contract, which I will describe as a

promotion agreement,

I. .

was

foot

for

a number

years

and,

under

it, not

insubstantial sums by way of royalties were paid to	Mlss Wickham.	/ "
L

However, difficulties arose between the parties in relation to it. In November 1984, A.P.B., under the name, Tracey Wickham

Pools, and with the "W" medal logo,

produced a circular

dealmg

with the expansion of Tracey Wickham Pools to Sydney. On

January 1985,

A.P.B.

wrote to the applicant on

a letterhead

"Tracey Wickham Pools", and one may infer that Miss Wickham,	at
least from then onwards, knew of the use of that style	of

letterhead and advertlsing under the name "Tracey Wickham

Pools".

On 5 December 1985, the then solicitors for Miss Wickham

wrote complaining about the registration by

A . P . B .

a business

name of the name, Tracey Wickham	Pools.	In that letter the
solicitors said, in part:-

"We are

instructed

that

our

client

has

never

consented to the company carrying on business

under her name and demands that it ceases doing

forthwith.

We further

r quest

that

you

immediately file a notice of cessation of the	. I	I >.
business name in the Corporate Affairs Office."

3 5.

A search of the Register of Business Names shows that

number of business names. including or containing the words

Tracey Wlckham Pools, are currently registered. On

December

1985, the solicitors for A.P.B. complained of what was said to be

non-performance by Miss

Flickham of her obligations under that

contract. Part of that letter said:

"We

are

instructed

request

from

you an

undertaking

that

you

will comply

with

the

aqreement in the future (if our client chooses to

renew the same) and that you	will reasonably
promote our client's products."

On 10 December 1985, a letter in more acrimonious terms

was sent by Miss Wlckham's then solicitors. A.P.B.'s sollcitor,

by letter, on 11 Decelnher, continued the disagreement between the

parties. On

18 December 1985, Miss Wickham's then solicitors

wrote to the solicitors for A.P.B., saying in part:-

''	'Wlthout Prejudice', we are instructed that our

cllent does not for the time being intend to take

steps to prevent

your client trading under the

name 'Tracey Nickham Pools' however the business name was registered without our client's consent

or knowledge, and she reserves her rights to take

such steps as she may

see fit in the future to

prevent the unauthorised use of her name."

After some further correspondence, on

29 January 1986,

the A.P.B's solicitors wrote to Miss Wickham's then solicitors to

advise

that

'I.

pursuant to Clause 6(al of

the

Promotion

Agreement our client elects to give one

(1) month's notice of the

termination of the Agreement."

February

1986,

Mlss

Wickham,

through

her

solicitors, stated that she did not accept that the letter of 29

January

was

a valid

notice,

and

herself

gave

notice

termination pursuant to clause 6(b), effective from 16 February

I .

1986. That letter also contalned

ultimatum concerning the

I ..

non-payment of royalties:-

"Unless we hear from you by midday on Wednesday the

5th

February,

1986

conflrming

your

client's

acceptance

our

client's

requirements

and

enclosing a statement

for the number of pools sold

since February, 1983 and your client's cheque for

outstanding royalties, we have instructions to

commence proceedings without further notice."

On 11

February 1986, a letter enclosing a statement of

royalty payments up to December 1985 was given. On 19 February

1986, Miss Wickham's then solicitors wrote a letter which in part

said:

"We note that in your

telex of the

6th February,

1986, you assert that our client has no right to

demand that your cllent cease using the name

'Tracey Wickham Pools'. On our instructions, our

client granted to your client the right to carry

on business under the name 'Tracey Wickham

Pools'

during

the

term

of the

agreement

and

respectfully suggest that the Court is unlikely to

accept your client's argument

which is, as we

understand it, that

our client granted to your

client the right to use her name in perpetuity in

consideration of an

agreement capable of being

terminated by either

party after the expiration

three years from the

date of commencement."

Also on 19 February, her then solicitors wrote to the

solicitors for the first respondent. Part of that letter was in

these terms:-

. -

"We are instructed that unless

we hear from

you

within

seven

days

that

registration.

the

business name 'Tracey Wickham Pools' has been

cancelled

every

State

where

has

been

registered,

and

r ceive

your

client's

undertaking

not

represent

that

has

' _

connection or affiliation with our client, we are

, .'

to commence

proceedings

for

damages

and

injunction against your client."

On 19

June 1986, the then solicitors for Miss Wickham

again requested A.P.B. to cease using her name or photograph in

advertisements and in promotional and marketing material, and

continued:

si.

I '

"If all

such

advertising

and

material

is not

withdrawn within twenty-one

( 2 1 )

days from the

date hereof, our client wlll take such action as

she may be advised to protect

her rights."

the

end

July, letters were written by Miss

Wickham's

then

solicitors

the

Manager

Directories

(Australia) Pty. Ltd., the Commissioner of Corporate Affairs, and

the

Trade

Practices

Commission,

advising

Mlss

Wickham's

ob~ectlon to the form of advertisement then appearing in the

Yellow Pages and, insofar as the Trade Practices Commission was

concerned, requesting it to investigate alleged breaches of the

Trade Practices Act. The Commission replied that its resources

were finite

and, on

the priorities under which it operated,

suggested that clvil remedies were the route by which Miss

Wickham should advance her interests.

There is no dispute that, since the termination of the

promotion contract, A.P.B.

has continued to use the name Tracey

Wickham for promotion of its pools.

The pools are, apparently,

of high reputation, having won the 1985 Queensland Pool of the Year Award, and the 1985 National Pool of the Year Award.

The applicant's case is that, unless restrained, A.P.B.

will

infringe the goodwill that she has in her reputation,

. .

contravene ss.52, 53(c) and 53(d) of the Trade Practices Act

1974, and engage in passing off.

The first, second and fifth respondents assert that, at

a lunch in December 1982 where

promotional agreement was

I..

discussed, an agreement was reached in respect of royalty and

personal

appearances.

The

second

respondent,

Geoffrey

James

Ramsey, deposes that:-

"...the applicant's then usual price for performing a personal appearance was $500.00. We agreed with

her at

the lunch that she would only have to do

one appearance for every multiple of $1,000.00 she

received, that is we agreed to double the rate of payment to her. The reason for this was that we

told

her

the

lunch

that

the name of the

business would be Tracey Wickham

Pools. We agreed

with her that in return for her

selling to us the

name

Tracey

Wickham Pools that A.P.B. would pay

more than her

usual rate.

A.P.B.'s

case

that,

for

a consideration somehow

I...

represented

the

consideration

expressed

the

written

promotion agreement. there was, in effect, the sale in perpetuity

by Miss Wickham of the name Tracey Wickham

Pools and that,

notwithstanding the termination of

the promotion agreement in

February

1986, contractually they are entitled to continue to

conduct business under the name Tracey Wickham Pools, and,

accordingly, that such conduct does not contravene ss.52, 53(c)

II	:
I

9 .

or 53(d), or constitute passinq off. AlternaLively, they contend

that Miss Wickham is estopped for

reasonable period from

denying their entitlement to trade under the name "Tracey Wickham

i i

Pools

I S .

l ..

On this interlocutory application,

I must first consider

whether there is a serious question to be tried.

If the promotion agreement was terminated in February

1986,

then it

is difficult, in the light of the promotional

materlal and conduct of

A.P.B.,

not to

conclude that it is

asserting

an association or

affiliation or sponsorshlp between

its products and Miss Wickham. In particular, the Yellow Page

advertisements which are sought to be enjoined contain the words

"Tracey Wickham

Pools" in quite large type with the

W medal logo

to which

I referred and, below, the words "The name speaks for

itself

1 "

Advertisements to that effect are proposed

to be

inserted in the swimming pool section and the landscaping section

of the Yellow

Pages, and it is that imminent printing which leads

to the urgency of this present application.

Notwithstanding the submission by counsel for the first

respondent that the use of the name "Tracey Wickham	Pools" does	..
I - '

not imply a sponsorship or approval by Miss Wickham, without deciding whether the name itself has that consequence, in my view

there cannot be much argument that the proposed advertisements

indicate such a connection. Nevertheless, the question

for trial

is whether there is

a basis for that sponsorship or approval.

10.

In American Cyanamid

Co. v.

Ethicon Ltd.

C19753 A.C.

396,

Lord Diplock

(with whom Viscount Dilhorne, Lord Cross of

Chelsea, Lord Salmon, and Lord Edmund-Davies agreed), referred to

I. :

the supposed rule that the court	is not entitled to take any	I	=
I,

account of the balance of convenience unless it has first been

satisfied that if the case went to trial upon no other evidence

than is before the court at the hearing of the application the

plaintiff

would

entitled

judgment

for

permanent

injunction in the same terms as the interlocutory injunctlon

sought. At p.407, his Lordship stated:-

"Your

Lordships

should

view

take

this

opportunity of declaring that there is no such

rule.

The use of such

expresslons

probability,' 'a prima facie case,' or 'a strong prima facie case' in the context of the exercise of a discretlonary power to grant an interlocutory

injunction leads to confusion as to the object

sought to be achieved by this form of temporary

relief.

The court no doubt must be satisfled that

the claim is not frivolous

or vexatious; in other

words, that there is	a serious question to be
tried.

is no part of the court's function

at this

stage

the

litigation

try

resolve

conflicts of evidence on affidavit as to facts on

which

the claims of either party may ultimately

depend

nor to decide difficult questions of law

which call

for

detailed

argument

and

mature

' .

considerations. These are matters to be dealt

with at the trial. One of the reasons

for the

introduction	of	the	practice	of	requiring	an	i .
'i

undertaking	as to damages upon the grant of	an	.I.
L .

interlocutory inlunction was that 'it aided the

court in doing that which was its great object,

viz. abstaining from expressing any opinion upon

the

merits

the

case

until

the

hearing':

Wakefield v. Duke of Buccleuqh (1865)

12 L.T. 628,

629.

unless the material available to the

court

at the hearing of the application for

interlocutory injunction fails to disclose that

the plaintiff has

any real prospect of succeeding

in his claim for

a	permanent injunction at the

trial, the court should go on

to consider whether

the balance of convenience lies in favour of

granting or refusing the interlocutory relief that

is sought.

11.

The High Court recently adopted this test in Murphy v.

Lush (unreported, 27.6.86).

The Full Court of the Federal

- Court

(Sheppard, Morling and Beaumont

JJ.) said in Epitoma Ptv.Ltd.

Australasian Meat Industrv Emplovees' Union (No.2)	(1984)	S4
A.L.R. 730 at 734:-

, .

"In an application

for an interlocutory injunction,

the court must inquire first whether there is a

serious

question

trled

(see

Australian

Coarse Grain

Pool

Ptv.Ltd. v. Barlev Marketina

Board of Queensland. (1982) 46 ALR 398; S7 ALJR

425;

Tableland

Peanuts

Pty.Ltd.

v. Peanut

I \

Marketins Board (1984) S2 ALR

651; 58 ALJR 283,

. I

per Brennan J. at

2841."

There can be no argument that Miss Wickham clearly

satisfies that test. The

only problem in that regard is whether

I may give effect to my impression of the strength

of her case.

Paclfic

Hotels

Pty.

Ltd.

v. Asian

Pacific

International

Limited (unreported, 5.9.86), I stated:-

"The extent

to which these principles admit

exceptions

controversial

issue.

(See

Gray, "Interlocutory Injunctions since Cyanamid",

40 C.L.J. 307,

especially

316-325.)

One

suggested exception is where the facts of a case

are clear, and

where 'the prospect of success is a

matter within the competence

the judge who

hears the interlocutory application' (Fellowes

Son v. Fisher C19763 1 Q.B. 122 at

141 per Sir

John Pennycuick).

This suggested exception has

been

applied

number

English

cases,

including passing

off cases (Newsweek Inc.

B.B.C.

C19793

R.P.C.

441;

The

Athletes

Foot

Marketinq Associates Inc.

Cobra Sports Ltd.

C19803 R.P.C. 343 at

349)."

12.

Assuming that exception exists, the question in this

present case is whether the facts are

so ascertamed as to permit

a conclusion about the applicant’s prospect

of success. There

are factual issues to be resolved involving the purport and

effect of the luncheon conversation in December

1982.

While I

formed a tentative view as to the strong prospects of Miss

Wickham‘s success on the issue

of the contractual entitlement for

which A.P.B. contends, that matter is properly one for the trial

of this action, and will depend

on an assessment of the accounts

given by the parties to the conversations in question. That is

matter which cannot be determined without oral evidence, and the

advantages which that gives in the resolution of conflicts

between witnesses.

The position then is that a serious issue remains to be

determined between the parties, and

I have now to conslder the

balance of convenience. American Cyanamid Co.

Ethicon Ltd.

C19753

A.C.

396

established

the

principles

which

the

discretion whether or not	to grant an interlocutory injunction
should be exercised.

Those principles usefully are set out by Browne

L.J. in

Fellowes and Son v. Fisher C19767	Q.B. 122.	The first principle
is stated to be:-

“As to that, [i.e.

the balance of convenience3, the

governing principle is that the court should first

consider‘ whether, if the plaintiff succeeds at

the trial, he would be adequately compensated by

damages for any

loss caused by the refusal

grant an interlocutory injunction. ‘If damages

13.

... would be adequate remedy and the defendant

would be in a financial positlon

to pay them, no

interlocutory

injunction

should

normally

granted,

however

strong

the

plaintiff's

clam

appeared to be

at that stage':"

And then follow six other principles. It is, in my view, on the first principle to which I have referred that Miss Wickham fails in her application for interlocutory rellef, irrespective of the apparent strength of her claim.

No	suggestion is made that the respondents lack the

financial

capacity

pay

any

damages

ultimately

awarded.

Notwithstanding the difficulties of assessment

of those damages,

counsel for Miss Wickham correctly conceded that "It

1 s possible

to assess damages, but it would be difficult".

Any case involving an Incursion of

a person's goodwill

or requiring	a	notional computation	of foregone royalties, or	I i
.. .

that mlght have been earned had

an injunction been granted,

involves difficulties of

assessment. But the difficulty of that

assessment does not mean that damages are not

an adequate remedy.

One would expect that in those circumstances where, on

a trial,

a plaintiff's

proprietary

rights

were

held

have- been

infringed,

any

difficulties

assessment

would

viewed

beneficially towards the person whose rights had been infringed.

In the context of the negotiations between the parties,

the dispute is essentially

a commercial one and, if it

ultimately held that the first respondent

is acting in a way that

infringes Miss Wickham's rights, then

a commercial assessment of

~ .. c

14.

what

she ought to be paid for that unauthorised use

her

goodwill and reputation is able to be made and there	1s nothing
to suggest lack of capacity to pay it.

further

factor

considerlng

the

balance

convenience is that, because the application has not been brought until 10 September, shortly before the busiest months for selling

swimming pools, and

at a time when a large degree of the

preparation and sales promotion for the forthcoming season has

been embarked upon and financial commitments made, A.P.B. is now

in a position where the damage that it would suffer

will

considerably more than

had an

appllcation been brought earlier.

Mr. Ramsey deposes that sales

of swimming pools are slow

in autumn and winter and considerably greater In spring and

summer; that in September, October, and November he would expect

the first respondent to sell at least

120 pool kits and stock

levels will be built up in anticipation of that demand; that

television advertising commenclng Saturday,	13 September, has	I I
. .

been booked and cannot be cancelled

at this stage and that the

liability of that advertising is in the order of

$20,000.00.

The Queensland

Pool and Spa Show run by the Queensland

Swlmming Pools Association, the major body of swimming pool manufacturers and sellers, in conjunction with the "Sunday Sun" newspaper, is scheduled to take place at the Brisbane Exhibition

grounds on 19 to 21 September

1986 and, as part

of the promotion

of that show,

A.P.B. has entered into an agreement to give away

swimming pool in return for advertising

in the

"Sunday Sun".

a ”

15.

Further

promotional

arrangements

have

been

made

with Kern

Corporation Ltd. in opening

a new centre

at Sunnybank where

another swimming pool has been provided by way of promotion of

tl..

A.P.B. and

the

shopping

centre.

In addition,

there

are

engineering drawings, advertising brochures and other material

which will have to be replaced

if it is restrained from using the

I-

name “Tracey Wickham

Pools“.

There are also the two advertisements costing $8,000.00

in the Yellow Pages. Only today has sufficient information

appeared that it would be possible, were

an injunction to be

granted, for the content of those advertisements to be changed;

I . L.

but that is a matter which, in my view, does not affect the balance when viewed against the other expenses which will be thrown away should this injunction be granted on an interlocutory

basis.

The final matter

is delay. While one can understand the

natural reluctance of Miss Aickham to resort to litigation and	> =
r .
her hope that the matter could be resolved by negotiation, it is

quite difficult to understand that

the

application was not

commenced until

September. In that regard, the statement

which appears in

Snell’s Principles of Equitv, 28th Ed., (1982)

!	at	644	is apposite. There the learned authors say:-
I

“...a lesser

degree

acquiescence

or laches

suffices to debar a plaintiff from interlocutory

relief than from obtaining

a perpetual injunction;

the refusal of

an interlocutory injunction

merely a temporary rebuff, whereas the refusal of

a perpetual injunction at the trial

of the action

‘amounts to

a decision that a right which has once

existed is absolutely

and

for

ever

lost.’

I '

16.

(Johnson v. Wyatt (1863) 2 De G.J. & S. 18 at 25,

per Turner

L.J.). Moreover, interlocutory relief

is granted only in matters of

urgency, so that a

plaintiff

who

delays

thereby

demonstrates

the

absence of any urgency requiring prompt relief.

That is not to say that delay must necessarily result in

that evidentiary conclusion being arrived at, but it is one

the matters to take into account. (See also Spry, The Principles

of Equitable Remedies, 3rd Edition

(19841, p.469 et seq.)

In this case, because

of the delay, costs have been

incurred

which

would have been avoided had a more timely

application been made, and that is another telling factor against

the grant of interlocutory relief.

The primary reason for which

I refuse the application

for interlocutory relief is that, in my view, if Miss Wickham can

establish at trial contraventions

of ss.52, 53(c), 53(d),

passing o f f , then damages will be an adequate remedy	for her, and
the respondents have the capacity to pay them.

[1986] FCA 491

12 Sep 1986