Horwitz Grahame Books Pty Ltd v. Performance Publications Pty Ltd & Ors [1987] FCA 82

Horwitz Grahame Books Pty Ltd v. Performance Publications Pty Ltd & Ors [1987] FCA 82

The Court was not persuaded that there was a serious issue to be tried that readers would mistake "Super Street Magazine" for "Street and Custom" when the magazines were viewed overall. Three small passages arguably conveyed that the publisher of "Super Street Magazine" had also published relevant issues of "Street and Custom", but the Court had considerable doubt that they were actionable because of s.65A and, in any event, refused interlocutory injunctive relief as a matter of discretion because the passages were relatively insignificant, about 35,000 copies had already been printed, bound and shipped, and the applicant had not complained when a proof copy was supplied before binding....

Jurisdiction
Australia
Judgment Date
18 February 1987
Procedural Posture
Application for Interlocutory Injunction Alleging Misleading Conduct Under the Trade Practices Act 1974 / Interlocutory Application
Outcome
Application for interlocutory injunction restraining publication and distribution of the magazine refused; respondents' undertakings concerning specified statements accepted; costs ordered as respondents' costs in the principal proceeding to the extent of 80 per cent.
Legal Topics
['misleading Conduct' 'interlocutory Injunction' 'magazine Publication and Distribution' 'prescribed Publication by Information Provider' 'advertising Circulars' 'costs']
['trade Practices' 'consumer Protection' 'equity' 'intellectual Property and Passing Off Related Relief'] ['misleading Conduct' 'interlocutory Injunction' 'magazine Publication and Distribution' 'prescribed Publication by Information Provider' 'advertising Circulars' 'costs']

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Procedural Posture

Application for Interlocutory Injunction Alleging Misleading Conduct Under the Trade Practices Act 1974 / Interlocutory Application

Legal Issues

  1. 1 ['Whether distribution of the first issue of "Super Street Magazine" would constitute misleading conduct by suggesting it was the applicant\'s magazine "Street and Custom".' 'Whether particular statements in "Super Street Magazine" conveyed that its publisher had also published earlier issues of "Street and Custom".' 'Whether s.65A of the Trade Practices Act 1974 excluded the impugned magazine statements from the operation of s.52.' 'Whether the Court should exercise its discretion to grant an interlocutory injunction after printing, binding and shipment of about 35,000 copies.' "Whether statements in the 20 November 1986 circular to advertisers about purchase price litigation and advertisers' contracts were misleading."]

Ratio Decidendi

The Court was not persuaded that there was a serious issue to be tried that readers would mistake "Super Street Magazine" for "Street and Custom" when the magazines were viewed overall. Three small passages arguably conveyed that the publisher of "Super Street Magazine" had also published relevant issues of "Street and Custom", but the Court had considerable doubt that they were actionable because of s.65A and, in any event, refused interlocutory injunctive relief as a matter of discretion because the passages were relatively insignificant, about 35,000 copies had already been printed, bound and shipped, and the applicant had not complained when a proof copy was supplied before binding....

Court Disposition

Application for interlocutory injunction restraining publication and distribution of the magazine refused; respondents' undertakings concerning specified statements accepted; costs ordered as respondents' costs in the principal proceeding to the extent of 80 per cent.

Orders

  • ['The Court noted the undertaking given by counsel on behalf of the respondents and each of them that they will not repeat orally or in writing any statement regarding the non-payment of purchase price by the applicant to DBS Publications or regarding any resultant legal proceedings.' 'The Court noted the...