Re Gary Honey v Australian Airlines Limited and House of Tabor Inc

[1989] FCA 234

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(Judgment by: Northrop J)

Re Gary Honey
v.Australian Airlines Limited and House of Tabor Inc

Court:

Judge:
Northrop J

Judgment date: 18 May 1989

Melbourne

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Judgment by:
Northrop J

ORDER

The application be dismissed.

The applicant pay the respondents' costs including costs of and incidental to the cross claim.

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

DECISION

1.This application illustrates how commercialism is pervading all aspects of our society. The applicant is a person professing to be an amateur athlete. He is claiming damages from the respondents for using a photograph of him in the conduct of their business activities. He is seeking also injunctions restraining them from continuing to use the photograph. He is seeking other relief as well.

2. There had been no communication between the applicant on the one hand and the respondents on the other before the application was issued and served on the respondents in mid May 1988. There had been no letter of complaint or of demand forwarded by the solicitors for the applicant. As a result there was no conflicting evidence as to what had occurred. In fact, I formed the view that each of the witnesses was a witness of truth. I formed the view that at all times each of the respondents had acted in good faith without any idea that they might have been infringing the rights of the applicant. Further, I found the applicant a very impressive person. He presented as an articulate person who was engaging and frank in manner. He was cross-examined at length on his religious beliefs and in my opinion he answered those questions extremely well and coped with what is often considered a difficult and delicate subject exceedingly well and with great credit. This case, however, must be decided according to law and so the facts, which, in reality are not in dispute, must be set out.

3. Gary Honey is an outstanding Australian athlete. He is a champion long jumper and has participated in the triple jump and the 4 x 100 metre relay. He won the gold medal for the long jump at the 1982 Commonwealth Games in Brisbane. He won the silver medal at the 1984 Olympic Games at Los Angeles. He won the gold medal at the 1986 Commonwealth Games at Edinburgh. He either came first, second or third at a number of athletic meetings both within Australia and overseas between the years 1983 and 1988. He is the holder of the Commonwealth long jump record. He has been the Australian record holder nine times and the Victorian champion eleven times. He has represented Australia at the Commonwealth Games and the Olympic Games with great success and distinction with the result that he has received much publicity in the media within Australia. The applicant is, and at all material times was, a well known athlete in each of the States and the Territories of Australia by the reason of his participation and success in the Games. He would be perceived by the public as a champion amateur athlete.

4. During the hearing of this case, some evidence was directed to showing the difference between a professional athlete and an amateur athlete, but the Court, on that evidence, is unable to form any final view on that difference. The applicant said in evidence that the distinction between a professional and an amateur athlete has disappeared. The applicant said:-

"What basically happens, amateurs can now compete in the Stawell Gift, win the Stawell Gift, collect the prize money. The prize money or any sponsorship moneys get put into a trust fund set up by the Australian Athletic Union for us and that money is then given back to us for any expenses. The word "expenses" is very liberal. For instance if you wanted to build a swimming pool in your backyard and say that you used that to train in there would be no problems. If you wanted to use it for a car to get to training there is no problem. If you wanted to use it for rent or loan repayments on a house because you have to live somewhere again there is no problems. So basically the differential between an amateur and a professional has now gone."

In fact, the applicant has been a member of the amateur athletic body in Victoria, the Victorian Athletic Association, at the same time as he was a member of the professional athletic body, the Victorian Athletic League. The applicant's counsel contended it would be quite correct to describe the applicant as a professional athlete and such a description could not cause offence.

5. The paradox arising from the apparent absence of the distinction between an amateur athlete and a professional athlete may be explained by reference to the rules of the International Amateur Athletic Federation ("the IAAF") the members of which are the national governing bodies for amateur athletics. The Australian Athletic Union ("the AAU") is the national governing body for amateur athletics in Australia. Amateur athletics within Australia are regulated directly and indirectly by the AAU. The rules of the IAAF restrict the class of persons who are permitted to compete in athletic events conducted under international athletic meetings such as the Olympic Games, to amateurs. An amateur, for the purposes of the rules, is a person who abides by the eligibility rules of the IAAF; see Rule 51. Rule 53 specifies a number of matters any one of which makes an athlete ineligible to compete in competitions such as the Olympic Games. Rules 53 (viii) provides:-

"The following persons are ineligible to take part in competitions whether held under IAAF rules or the domestic rules of the Member:-

(viii) allows his name, picture or athletic performance to be used for advertising, except when this is connected with a contract for sponsorship or equipment entered into by his national governing body, and any resulting payment or benefit goes to the national governing body. The national governing body after deducting any percentage considered appropriate, can pay the remaining part of such sponsorship payment or benefit to an athletic fund (see Rule 17)."

6. Rule 17 comes within a group of rules grouped under the heading "Assistance for Amateur Athletes". Under that heading, the following note appears:-

"NOTE - The following Rules 14-17 are based on the principle that an athlete's health must not suffer, nor must he or she be placed at a social or material disadvantage as a result of his or her preparation for or participation in the sport of athletics. An athlete's national Federation shall control such material and financial assistance as may be reasonable and necessary to assure this."

7. Rules 14, 15 and 16 are headed "Expenses", "Provision of Equipment and Services" and "Subventions to Assist Athletes" respectively. The last relates to payments to assist athletes "in the expenses incurred in training for or participation in any competition". Rule 17 is headed "Athletic Funds". The Rule makes provision for the establishment of funds for the benefit of athletes including monies arising under Rule 53(viii) or from other permitted sources. In Australia, the funds must be held, controlled and administered by the AAU which must be administered by regulations made by the AAU. Rule 17(5) provides:-

"5. If monies in a fund established under this Rule are paid to an athlete or disbursed at his request, except under Rules 14, 15 and 16, the athlete concerned shall automatically cease to be eligible to compete at any level of competition. No reinstatement will be permitted once an athlete has become ineligible under this rule."

8. In the present case, no material was placed before the Court relating to regulations made by the AAU in conformity with Rule 17. The evidence set out earlier in these reasons is consistent with the existence of a fund set up by the AAU and administered by the AAU in conformity with regulations. There is no suggestion that the applicant has received monies otherwise than in conformity with the rules of the IAAF. In these circumstances I find that the applicant is an amateur athlete within the meaning of the rules of the IAAF and that in these circumstances it would be inappropriate to describe him as a professional athlete. The distinction between the two classes may be fine, but it is a distinction which exists and must be recognised. There was no direct evidence relating to the right to compete in the Commonwealth Games, but I am prepared to infer that similar provisions apply and that competition in the Commonwealth Games is limited to amateur athletes in a sense similar to athletes competing in the Olympic Games. These findings are consistent with the perception of the public that competitors in the Olympic Games and the Commonwealth Games are amateurs even though it is accepted that they might receive financial benefits as a result of their activities as amateur athletes.

9. Apart from his activities as an athlete, the applicant was engaged in other activities. Between 1983 and 1988 he was employed as a physical education and social studies teacher at St. Joseph's Christian Brothers College. He has obtained the degree of bachelor of education from the Phillips Institute of Technology, Melbourne. In 1988, together with three other persons, he set up a company to carry on business in the insurance industry in connection with the National Mutual group of companies. In addition he has had sponsorship contracts with suppliers of sportswear. Following his success in winning the silver medal at the Los Angeles Olympic Games in 1984, the applicant entered into what is described as a "Track & Field Consultant Contract" with Nike Inc., a company incorporated in the United States of America with its principal place of business in Oregon but having business interests throughout the world in providing sportswear. The contract was in evidence before the Court. The contract was to remain in force from 1 December 1984 until 30 November 1988. It is not necessary to make detailed reference to the contract but reference is made to some aspects of it. Under the contract Nike is required to pay an annual fee, described as base compensation, to the applicant, the amount increasing each contract year. The applicant is required, if requested by Nike, to make up to four appearances during each contract year in connection with the advertisement, promotion and sale of Nike products. Nike pays expenses connected with these appearances. Provision is made for additional payments, called additional compensation, in certain circumstances. The greater the success of the applicant, the greater the amount of the additional compensation. The applicant is required to wear Nike products and is required to report on the products supplied. Nike has the rights, called "Grant of Endorsement Rights" to use the name, nickname, initials, autograph, voice, video or film portrayals, facsimile signature, photograph, likeness and image or facsimile image of the applicant in connection with the advertisement, promotion and sale of Nike products. Nike has the right to determine the contract within the period if certain events occur and likewise may reduce the amounts of the base compensation. The payments depend upon the applicant continuing being successful and maintaining a high position in the world rankings for the long jump. The contract is governed by the law of the State of Oregon.

10. In addition, the applicant receives the benefit of moneys paid to him by the Government in the form of grants and from other agencies within Australia to enable him to train and compete in athletics. In the past he has received moneys under sponsorship arrangements with other companies. When competing in the Olympic Games and the Commonwealth Games he is required to wear material advertising other company brands. This arises from the fact that the organisers of those Games have sponsorship arrangement with sponsors which require the competitors to use material advertising the sponsors.

11. On a number of occasions the applicant has attended at schools to speak to students on his experiences as a sportsman, the importance of athletics and the motivation required. He has not charged a fee for doing this but considers it as good promotion for the sport. He has attended sportsman's nights and on some occasions has spoken at these functions. Normally, he has not been paid for his appearances at these functions when organised by small clubs but when they are organised by large clubs or associations particularly when fund raising is involved, he charges a fee of $500 a night. If a school asked for his photograph, he would provide one free of charge but the photograph would be one of him wearing Nike sportswear. That would be a method by which he promoted Nike products.

12. Australian Airlines, formerly known as TAA, is engaged in the business of providing domestic air services within Australia. It is a corporation under the Trade Practices Act 1974 ("the Act"). For many years Australian Airlines has produced posters for the purpose of promoting and encouraging sport within Australia. The posters normally are approximately some 74cm in length and some 49cm in width. Some are fixed to a solid backing. The posters are well presented and colourful. Normally they depict persons competing in a sporting activity. The posters are based on photographs. Some depict one person only, some depict members of a team or crew, some contain a number of different photographs. Sometimes the persons competing are not champions, for example one poster in evidence depicted four photographs of children competing in a little athletics competition. Another depicts a man engaged in bocce bowls. The posters are colourful and are ideal for placing on a wall for decorative purposes. At the same time they have the effect of promoting a particular sport as well as sport generally. Normally at the bottom side of the poster are words being either "TAA" or "Australian Airlines" and in the latter case the "logo" of that corporation together with words describing the sport.

13. Australian Airlines publishes a limited number of each poster so prepared, normally about 1000 copies being produced. Copies are distributed throughout Australia through the offices of Australian Airlines at cities where Australian Airlines conducts its business, the offices being referred to as "ports". They are distributed free to schools, sporting associations, sporting bodies and similar types of groups. Often they are supplied on request. As Mr Cumming, the airlines display manager of Australian Airlines said, the main purpose of providing and distributing the posters is to recognise sportspeople in Australia, to show the achievements of Australian sportspersons, events which take place and to encourage wider participation in sport generally. The posters are not sent to travel agents. Australian Airlines normally provide travel agents with material depicting destinations, package holidays, business services and corporate promotions.

14. In 1987 Australian Airlines decided to produce a series of three posters based on the 1986 Commonwealth Games at Edinburgh. These three posters formed part of 18 posters provided in the year 1987. Two of the Commonwealth Games posters depicted team events namely the women's relay team and the other was the team pursuit cycling. The third poster was based on a photograph of the applicant. This poster forms the basis of the claim by the applicant.

15. The poster is based on a photograph taken by Tony Feder while the applicant was air-borne in the long jump at the Commonwealth Games. It has been superimposed on a colourful background highlighting different colours. It depicts the applicant clearly and highlights the energy and momentum of a champion striving his utmost to achieve success. His arms are stretched high above his head, one leg is stretching forward and the other is bent back. Concentration, determination and endeavour are shown by the facial features. The muscles are taut illustrating the extreme effort being utilised. It was described, truly, as a dynamic presentation and it is easy to understand how it could inspire others to participate in sporting activities. The photograph depicts the applicant wearing material promoting "Adidas" and "Guiness" presumably sponsors of the Games. The poster can be described as a work of art which would be sought after by many people for decorative and motivational purposes. One can visualise many young people of both sexes being very proud to have the poster fixed to their bedroom or study wall.

16. On the bottom right side of the poster in small print when compared with the size of the poster and the size of the photograph of the applicant are the words:-

"ATHLETICS

Commonwealth Games

Edinburgh, Scotland

Long Jump

Gary Honey, Gold Medal Winner (Photography by: Tony Feder, Melbourne) AUSTRALIAN AIRLINES (Logo)"

17. The photo of the applicant dominates the poster. It takes a conscious effort to drag the eyes from the photo to the words. The words are legible and clear but, like the shrinking violet, seem difficult to find. They are there but must be searched for. The poster does not highlight the words "Australian Airlines". The printed words and logo are white and are placed within an area 11 1/2cm wide and 7 1/2cm deep.

18. Australian Airlines obtained the permission of Tony Feder, the photographer, to use the photo but there was no evidence as to the terms of the arrangement by which that permission was obtained. There was no evidence as to how Tony Feber came to be on the field to enable him to take the photo. There was no evidence as to who had the copyright in the photo. Australian Airlines did not seek permission from the Applicant to use the photograph. In fact, Australian Airlines had never sought permission from persons depicted in the other posters prepared by it.

19. Australian Airlines produced 1000 copies of the poster. Of these 30 were mounted on masonite. The posters were distributed to major sporting associations, to schools and similar groups throughout Australia. The distribution commenced in the latter half of the year 1987. Some were distributed direct to associations such as the Australian Institute of Sport at Canberra and at Olympic Park at Melbourne. Others were supplied on request by other groups.

20. The House of Tabor is a non profit association incorporated pursuant to s.22 of the Associations Incorporation Act 1985 (SA). The House of Tabor conceded, for the purpose of this proceeding, that it is a corporation under the Act and for the purposes relevant for this proceeding was engaged in trade or commerce within the meaning of that phrase appearing in s.52 of the Act. The House of Tabor was formed and is controlled by persons being christians and being members mainly of the Pentecostal church. The House of Tabor is a non-denominational charismatic teaching centre located in South Australia. Its aim is to be a people's teaching centre to which men and women of all churches could come for leadership training and practical tuition in how to serve God more effectively. To that end it conducts in South Australia the Tabor College to provide a teaching program marked for its biblical and practical qualities and its emphasis on excellence. It claims to be the only multi-denominational charismatic school in Australia. The charismatic movement flourishes within christian denominational churches, the Roman Catholic church and Protestant churches. In many respects, persons active in the charismatic movement accept the literal application of the bible and the existence of the Holy Spirit. They accept that they must be committed to Jesus Christ and it is only through faith in Him can they live in the image of God and that it is only by the power of the Holy Spirit that they have the strength to fulfill in practice the demands of serving God. They believe that the Holy Spirit has the power to achieve miracles and that through faith miracles can be achieved in their daily lives. Not all members of the denominational churches within which the charismatic movement exists accept the way of the members of the charismatic movement. Often the existence of the charismatic movement within those churches causes divisions within the membership of those churches.

21. As part of its activities, the House of Tabor publishes a magazine called "New Day International". It is published 10 times a year. It contains news, inspiration, healing and encouragement and attempts to speak with a prophetic voice to the people of God. The magazine is an expression of the objective of the House of Tabor to present a positive, charismatic approach to christianity. In addition, from time to time the House of Tabor publishes books.

22. In 1987 the House of Tabor was planning to publish and published a book titled "How to Live the Kind of Life You've Always Wanted to Live" by Barry Chant. Bary Chant is the President of the House of Tabor and the book is based upon his Creative Living course presented to students attending the House of Tabor College. It is dedicated as follows:-

"To the hundreds of students at Tabor College who enthusiastically enrolled - and sat through – my lectures on Creative Living and then proceeded to put them into practice."

23. At the hearing, evidence was given by Dennis Stanley John Slape, the executive director of the House of Tabor. I accept him as a witness of truth.

24. During the latter part of the year 1987, the House of Tabor was seeking an appropriate feature to be illustrated on the cover of the book "How to live the kind of life you've always wanted to live". Mr Slape acted in an advisory capacity on this aspect. A decision was made that having regard to the theme of the book the front cover should show a photograph of a sportsperson in action. Mr Slape made enquiries at the Olympic Federation in Adelaide. He spoke to a Richard John Rodda, the secretary of the South Australian Olympic Council Inc. Mr Rodda is a member of the executive board of the Australian Olympic Federation and has been involved in sporting administration since 1955. At the hearing Mr Rodda gave evidence confirming the evidence of Mr Slape. In substance, Mr Slape told Mr Rodda what he wanted and was told by Mr Rodda that the House of Tabor could use any photo appearing in books and journals published by the Olympic Federation for the magazine "New Day" and the Book "How to Live" provided they gave accreditation to the Australian Olympic Federation. Mr Rodda supplied a number of journals to Mr Slape to enable Mr Slape to choose an appropriate photo. Mr Slape was given the journal "Olympic Games 84 Official Report". Mr Slape thought a cover photo of Glynis Nunn, a well known Australian athlete, might be suitable for the purpose but it wasn't exactly what was being sought. Shortly afterwards in about November 1987, Mr Slape noticed the Australian Airlines poster depicting the applicant. The poster was displayed in a travel agents office in Adelaide and he thought it an ideal photo for the magazine and the book. As Mr Slape said:-

"When I saw it (the poster) I looked a little closer to try and establish the source, and I noted that it was Australian Airlines."

This unsolicited answer supports my impression that the effect of the poster highlights Gary Honey and in reality a search must be had to see the words Australian Airlines and its logo.

25. Mr Slape then went to the office of Australian Airlines in Adelaide and explained to an employee what the House of Tabor was and whether they could use the photograph on the poster for the front cover of the book and the magazine. Mr Slape was told that he would have to speak to Melbourne and was given a phone number. He rang that number and explained to the man he spoke to what he wanted and was told that checks would have to be made. Later Mr Slape rang again. He has forgotten the name of the person to whom he spoke but believes it was the same person he had spoken to on the telephone previously. The person told him that it would be "okay" to use the poster "provided we acknowledge courtesy Australian Airlines". That person suggested also that Mr Slape go to the Adelaide Office and ask for "at least a couple of posters". Mr Slape did this and was given two of the Gary Honey posters.

26. In evidence, Mr Cumming, of Australian Airlines, said that in the normal course of business, any request to use the Gary Honey poster would have been referred to him, that the request by Mr Slape had not been referred to him and that enquiries made by him had failed to find anyone within Australian Airlines who had spoken to Mr Slape. I accept the evidence given by Mr Slape.

27. The book "How to Live" was published in November 1987. It is a paperback but with a glossy outer cover. The book is 11cm wide and 17.8cm long. The cover has on it, in colour, a copy of the photo of Gary Honey taken from the poster and with the bright background. The photo reproduction is 8.5cm wide and 10.8cm long. The word "Guiness" has been removed from the number being worn by Gary Honey but the "Addidas" logo is apparent. Superimposed on part of the lower left of the photo and on the cover is the reproduction of a gold medal won at the Los Angeles Olympics, 1984. This was taken from the gold medal won by Glenys Nunn who supplied the gold medal to the House of Tabor for reproduction. She did not charge a fee for that service. The front cover contains the name of the book and the name of the author. It contains also the words "Foreword by Robert H. Schuller". On the back cover there appear the words "Cover photo courtesy of Australian Airlines". Nowhere on the cover or in the book is the subject of the photo said to be Gary Honey. His name does not appear at all. Five thousand copies of the book were printed. Copies of the book were forwarded to churches and to "christian bookshops" for sale to the public. The House of Tabor did not seek the consent of the applicant to use the photograph of him on the cover of the book. The applicant did not consent the House of Tabor using the photograph.

28. The "New Day" magazine for March 1988 was published in March 1988. It is a glossy magazine 20cm wide and 26.5cm long. On its front cover is a colour reproduction of the photo of Gary Honey as appearing on the poster but with the word "Guiness" removed. The photo is 18.3cm wide and 26.5cm long. The words "New Day" in bold colour appear on the of the cover. Under these words, in much smaller print, is the word "International" printed between parallel lines. Then there appear the words "No. 75 March, 1988 Price $2". Apart from the words "New Day" the other words are difficult to read. On the lower right side of the photo are the clearly read words "Inside: How to Live the Kind of Life You've Always Wanted to Live". Under these words there is superimposed a photograph of Barry Chant, the author of the book. On the left side of the photo are the clearly read words: "This is Man", "How to Use Spiritual Gifts" and "When God Prays". These are the titles of three of the features appearing in the magazine. On the lower right corner of the photo are the clearly read words "For Charismatic Revival and Unity. Registered by Australia Post Publication No. SAR2437".

29. On the top of the third column on page 3 of the magazine there is a black and white reproduction of the of the body and the head of Gary Honey taken from the coloured photo above the words "HOW TO LIVE THE KIND OF LIFE ... Living creatively is possible for all those who know the power of the Creator at work in their lives. Barry Chant has written an inspiring book. Page 31". On page 31 of the magazine is a black and white reproduction of the cover of the book and a review of the book by Geoff Strehan, together with a note that the price of the book is $11.95. The magazine does not appear to contain an acknowledgement that the front photo was by courtesy of Australian Airlines. The front cover appears to be directed to promoting the book "How to Live". The magazine was forwarded to subscribers and to a number of "christian bookshops" for sale to the public. The distribution was made in March 1988. The name "Gary Honey" does not appear in the magazine. The House of Tabor did not seek the consent of the applicant to use the photograph of him on the cover of the magazine. The applicant did not consent to the House of Tabor using the photograph.

30. Under cover of a letter on the letterhead of the House of Tabor and dated 13 April 1988, Barry Chant forwarded a copy of the book to the applicant. The book and letter were received by the applicant about the middle of April. The letter was signed by Barry Chant as President and was as follows:-

"Dear Gary,

I am writing to you as the author of the book enclosed - How to Live the Kind of Life You've Always Wanted to Live. As you will see, it has a photograph of you on the front cover. We obtained the photograph from Australian Airlines but, regrettably, (sic) omitted to include your name in the acknowledgements. We do sincerely apologise for this.

We thought it was a particularly suitable picture for the content of the book, as well as being a wonderful action shot of an Australian sportsman. I hope you will have time to read the book and find it of interest.

Again, our apology for the omission of your name.

Yours sincerely,"

31. The applicant first saw the Australian Airlines poster incorporating his photograph in about November 1987. He was shown the poster by a person with whom he trained. He saw the poster at the National Training Centre at the Institute of Sport and at the South Australian Athletic Association and at the Victorian Sport offices as well. The applicant says that he rang Australian Airlines to find out who gave them permission to use the photo and when he found out that no one had given permission on his part he decided to seek legal advice. No letter of demand was sent to Australian Airlines. The application is dated 11 May 1988. Although the matter was raised on several occasions, there is no satisfactory evidence as to the date the applicant first sought legal advice. The recollection of the applicant on this aspect is unreliable. In evidence in chief he said he first saw the magazine in late 1987 probably December. Obviously, he was in error with respect to that date. Later he said he first saw his solicitors late 1987 or early 1988. There was no evidence from his solicitors on when they first received instructions on this matter. In all the circumstances, I find he did not consult his solicitors until late April or early May 1988 and that no letter of demand was sent to either Australian Airlines or to the House of Tabor.

32. The applicant gave evidence that he first saw the magazine while teaching at St. Josephs. He thought it was late 1987. A fellow teacher, the religious education educator had attended a conference and brought a copy back with him and showed it to him. He looked through the magazine and discovered there was a book as well. He saw the photographs on pages 3 and 31. This must have been during March at the earliest being the month the magazine was published. He said he received a copy of the book about three days after he had asked his solicitors to get a copy of the book.

33. When the applicant first saw the magazine he reacted with bemusement. He did not read the magazine at that time. It was treated in the staffroom as a great joke. He did not contact the House of Tabor although its address is given in the magazine. He only looked at the pages on which his photo appeared. He did not read the book when he received it from Mr Chant. He first read the book when he went through it with counsel prior to the hearing.

34. The applicant is a practising member of the Roman Catholic church. He does not agree with a number of the views and matters expressed in features included in the magazine and in the book. This arises, essentially, from the fact that he is not a member of the charismatic movement within the Roman Catholic church and the divisions which sometimes arises within a denomination in which that movement is active. What relevance, if any, this has to the question of damages will be deferred. Although the amount of damages claimed by the applicant as against the House of Tabor is based on the fee he would have charged to permit his photo to be used, the applicant gave evidence that had he known of the contents of the magazine and the book he would not have given his consent to the use of his photo.

35. The application and the supporting statement of claim was served on the House of Tabor on Tuesday, 18 May 1988. The first directions hearing was stated to be on 25 May. On Wednesday, 19 May, Mr Slape wrote a reply but, on second thoughts, decided to consult a solicitor who advised that a letter from the solicitors should be written. Such a letter was written and dated, strangely, Sunday, 23 May 1988. It was addressed to and received by the solicitors for the applicant. The contents are consistent with the evidence given by Mr Slape who, in addition, confirmed the truth of the matters set out in the letter. I accept the contents as being accurate and correct. The letter was as follows:-

"re: Honey v. Australian National Airlines & House of Tabor

We have been instructed by the House of Tabor Incorporated following delivery by Courier Service on 18th instant of a statement of claim and application in the Federal Court Victorian Registry. We have instructed Victorian Agents to appear and seek an adjournment on the directions hearing. This was the first indication to our client that anything was amiss.

Our client is an incorporated, non-profit body which, inter alia, produces and promotes literature with a christian message. On previous occasions when using material from another source permission has been sought and obtained and an acknowledgement printed within the publication of the source of the material as invariably requested by the source. It may well be that the letter written by Pastor Barry Chant to Mr. Honey dated 13th April 1988, enclosing a copy of the book of which Mr. Chant was author, may have been the manner in which this matter came to the knowledge of Mr. Honey. Our client was searching for action photograph of an Australian Sportsman or Sportswoman to create an image of living and enjoying life to the full in a positive and creative way. The Olympic Federation and a number of other organisations had been approached for such material but without success. It was after this that the poster of Australian Airlines depicting Mr. Honey was first noticed and immediately appealed to those concerned as the appropriate action photograph.

Based on that, our client approached Australian Airlines in Adelaide and was referred to Head Office in Melbourne which was done and after two telephone calls permission was given to use the photograph provided Australian Airlines were acknowledged as the source of the material. This has been the procedure adopted by our client when asked by other organisations wanting to use magazine articles etc. that they simply acknowledge that source of the material in the publication.

The magazine cover was designed to highlight the release of the new book "How to live". Our instructions are that the circulation of the magazine is small being about 4,900 copies per issue (10 per annum) and approximately 80% of the circulation goes to regular individual subscribers and most of the balance to christian bookshops. Of the book, 5,000 copies were printed and these mainly went to christian people from various denominations and again through christian bookshops. The quantities of both magazine and book produced were unlikely to have covered the costs omitting from those costs any labour.

In an endeavour to ensure that there would be no transgression of copyright our client removed from the shirt worn by Mr. Honey the Edinburgh Commonwealth Games Logo because it was unsure who to approach to clear its use which indicates that it does not wantonly use material for which it has no permission.

The Olympic Gold medal of which a photograph appears on the book cover is the property of Glynis Nunn who originally was intended to be depicted upon the cover but a useful action photograph could not be located. With her permission and assistance the medal was made available for photographing. She did not want any credit recorded for use of the photographed medal. Our client through us and in any other way necessary wishes to apologise to Mr. Honey for any problem which it has caused to him but hastens to add that what it did was, in its belief, the correct procedure to obtain permission to use the photograph, that no profit has been made from the use of the photograph and in fact a loss would almost certainly have occurred. Our client is anxious to minimize its involvement in these proceedings irrespective of the relationship between Mr. Honey and Australian Airlines. In obtaining the consent of Australian Airlines to the use of the photograph concerned our client believed it had done all that was necessary and, we believe, was not even sure at that point of the name of your client.

Bearing in mind that our client has not acted wantonly or with any disregard for your client (this is surely corroborated by the letter from Mr. Chant to your client on 13th April apologising for the oversight of Mr. Honey's name being not mentioned) we ask that you seek instructions from your client whether or not he is prepared to discontinue the proceedings against our client hopefully on the basis that each party pay their own costs and, should there be any further form of apology required we feel sure that our client would agree to anything reasonable in that regard.

In conclusion, this is not a matter where a business operator has used a photograph for the purpose of profiting but merely that a christian organisation sought to emphasise its theme by the use of what is believed to be a permissable course using a photograph which it believed to be the ideal depiction of the theme it wished to promote in a non-financial sense.

We look forward to hearing from you as soon as you can obtain instructions in the light of our letter."

36. The applicant's claim is based upon sections 52 and 53 of the Act and upon the tort of passing off. By the application, the applicant sought injunctions, declarations, orders for corrective advertising, delivering up of the offending material, damages under the Act and damages for passing off or, at the option of the applicant, an account of profits.

37. By letter dated 3 June 1988, the solicitors for Australian Airlines gave the following undertaking on behalf of Australian Airlines:-

"Thank you for your letters of May 27 and 31, 1988.

We are instructed that Australian National Airlines Limited, without making any admissions and with a denial of liability will forthwith take all reasonable steps to stop any further publication, printing or circulation of the poster referred to in paragraph 4 of the Statement of Claim."

38. By letter dated 16 June 1988 and signed for and on behalf of the House of Tabor by Mr. Chant and Mr. Slape, the House of Tabor gave the following undertaking to the applicant's solicitors:-

"We refer to your request for an undertaking and advise as follows:

1. With respect to the magazine, "New Day International", we advise that the photograph was used for the cover of one issue only, that the plates for printing the cover of this issue have now been destroyed and we undertake not to print or distribute any further copies of the issue with this covering photograph.

2. With respect to the book, "How to Live" we undertake not to print any further copies of this book using the cover photograph of Gary Honey until the issues presently before the Federal Court have been decided."

39. At this stage, and before making findings of fact based on the evidence directed to the questions of damages and the other consequential relief, it is desirable to determine the issue of whether the Court should make the declarations sought in the application. The declarations, presumably, are sought pursuant to s.21 of the Federal Court of Australia Act 1976 . The declarations sought, as set out in the application, are:-

"2. A declaration that the respondents and each of them:

(a)

have engaged in conduct that is and was misleading or deceptive or likely to mislead or decieve in contravention of section 52 of the Act;

(b)

have represented that they:

(i)

were connected with the applicant;

(ii)

were permitted or licensed by the applicant in respect of the use of the applicant's name and photograph;

(iii)

were sponsored or approved by the applicant; and

(iv)

were sponsored by, or approved by or affiliated with the applicant;

(c)

(i) were not connected with the applicant;

(ii)

were not permitted or licensed by the applicant in respect of the use of the applicant's name and photograph;

(iii)

were not sponsored or approved by the applicant; and

(iv)

were not sponsored by, or approved by or affiliated with the applicant."

40. It is apparent that these declarations are based upon sections 52 and 53 of the Act. Sub-section 52(1) provides:-

"52(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." Paragraphs 53(c) and (d) provide:- "53 A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services-

(a)

...

(c)

represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;

(d)

represent that the corporation has a sponsorship, approval or affiliation it does not have;

(e)

..."

41. Sub-section 52(1) of the Act has general application and nothing in paragraph 53(c) or (d) limits by implication the generality of that sub-section; see sub-section 52(2). Thus, for the purposes of this application and the declarations sought, the applicant claims that the conduct by Australian Airlines in publishing and distributing the poster, constitute false representations of the kind set out in declaration 2(b).

42. Intention is not a necessary ingredient in an action based upon s.52 and 53 (c) and (d). It is for the Court to determine whether the conduct complained about does contravene those provisions. In order to succeed, the applicant has to establish that a significant segment of persons seeing the poster would be likely to associate the applicant with Australian Airlines; see 10th Cantanae Pty. Ltd. v Shoshana Pty. Ltd. (1988) 79 ALR 299 and especially per Wilcox J. at p 301. At the hearing, counsel for the applicant relied strongly on opinions expressed in that case even though the applicant failed in its claim under the Act and in passing off. Nevertheless, the opinions expressed are of assistance for present purposes.

43. On the facts of the present case, I am not satisfied that the applicant has made out a case against Australian Airlines insofar as it was based upon the Act. It is true that the name "Australian Airlines" and its logo appear on the poster and to that extent the poster promotes or advertises Australian Airlines. But regard must be had to the overall effect of the poster and the class of persons to whom the poster was directed. At the same time it must be remembered that any member of the public might see the poster. A full description of the poster has been given. Its overall effect has been stated. It was directed to school children, members of sporting clubs and associations and its purpose was to promote sport. In my opinion, it has that effect and the members of the public seeing the poster would be encouraged by the achievements of the applicant and encouraged to participate in sport and to achieve according to the best of their ability.

44. The groups and members of groups receiving the poster would have been aware that the poster was but one of many published and distributed by Australian Airlines depicting sporting activities in which, mainly, the persons whose photographs appeared were non-celebrities. On a true analysis, the poster should be described as promoting excellence in sport and the desirability of participating in sport. The poster itself does not constitute, in my opinion, a representation that Australian Airlines was connected with the applicant, that it was permitted or licensed by the applicant in respect of the applicant's name and photograph, that its services were sponsored or approved by the applicant or that it was sponsored by, or approved by or affiliated with the applicant. The poster does not even give rise to a state of wonder as to whether there is any connection between Australian Airlines and the applicant. It is seen as an art work supporting participation and excellence in sport and nothing more. The name "Australian Airlines" is seen as nothing more than the source of the poster. In this respect, that name is seen as being no different from the naming of the person who took the photograph. The essential aspect is the photo itself and the identification of the name of the athlete and the event in which he was competing.

45. In my opinion, the applicant has not made a case against Australian Airlines based upon a contravention of the Act. Accordingly the declarations sought should not be made against Australian Airlines.

46. Different considerations apply with respect to the House of Tabor. The name of the applicant does not appear in either the magazine or the book and so any connection between the House of Tabor and the applicant depends, of necessity, on the fact that a significant segment of the public would recognize and identify the applicant by his photograph. The applicant is a well known athlete in each of the States and the Territories of Australia by reason of his participation and success in the Commonwealth and Olympic Games, but I have doubts as to whether, in the absence of his name appearing on the cover of the magazine or the book, a significant segment of the public would identify the person depicted in the photo as the applicant. The segment of the public who would be likely to so identify the applicant would be those connected with athletics or interested in watching sporting activities. The Games are held every two years, alternating between the Commonwealth and Olympic games. Between these games, the high profile given to competitors declines and the memories of the public fade.

47. Often, the fact that a photograph of a person appears on the cover of a magazine or a book suggests to the public that the magazine or the book contains material about that person. That is so particularly if the name of the person is given as well. In those circumstances persons might be deceived into buying a copy of the magazine or the book to read about the person depicted on the cover. That is not the complaint made in this case.

48. The magazine and the book are unique in some respects. Neither is presented to the public generally. Most of the copies of the magazine are forwarded to subscribers who subscribe for the purpose, presumably, of reading the contents. Even if the subscribers recognised the photo on the cover as being the applicant, it is most unlikely they would think there was any connection between the applicant and the House of Tabor. A reference to the articles contained in the magazine shows that much is made of the experiences of named persons. The applicant is not named on the cover of the magazine or in the magazine and there is no basis for the reader to believe that the applicant has some connection with the House of Tabor. The subscribers would be unlikely even to wonder about any possible connection.

49. The magazine is forwarded also to "christian bookshops" for sale to members of the public who frequent bookshops of that kind. No detailed evidence was given concerning the nature of christian bookshops but it is to be expected that they would attract a limited segment of the public, which, in general, would be interested in reading the contents of the magazine. The applicant is not named on the cover of the magazine and in my opinion the persons visiting this type of bookshop would not believe that the applicant has some connection or relationship with the House of Tabor.

50. I come to a similar conclusion concerning the book. The book was forwarded to a number of christian churches for sale as well as to christian bookshops. If any member of the public coming within the class of persons attending at that type of place recognize the photo on the cover as being that of the applicant, in all probability that person would know that he had not won a gold medal at the Los Angeles Games. In this regard the existence of the reproduction of the gold medal from the Los Angeles Olympiad superimposed on part of the photograph of the applicant may have caused wonder about what this was all about. This wonder, however, does not lead to a belief that there was a connection or relationship between the applicant and the House of Tabor.

51. Counsel for the applicant contended that members of the general public might see a person reading the magazine or book in a public place, might recognise the applicant from his photograph and be led to believe that the applicant had some connection or association with the House of Tabor. In my opinion this is too remote a consequence and in any event the identity of the House of Tabor does not appear on the cover of either the magazine or the book. As was said earlier in these reasons, the applicant's case is not that the public might be mislead into buying the magazine or book by being led into the wrong belief that the magazine or the book contained articles concerning the applicant.

52. In my opinion, in all the circumstances of this case neither the magazine nor the book constitutes a representation that the House of Tabor was connected with the applicant, that it was permitted or licensed by the applicant in respect of the applicants photograph, that its products or services were sponsored or approved by the applicant or that it was sponsored by, or approved by or affiliated with the applicant. In my opinion, the applicant has not made out a case against the House of Tabor based upon a contravention of the Act. Accordingly the declarations sought should not be made against the House of Tabor.

53. I turn to consider whether the applicant has made out his case based upon the tort of passing off. To a large extent, counsel for the applicant linked the claim based on passing off with a claim based upon a breach of the law of privacy. The essential complaint made by the applicant is similar to that made by the applicant in the case of 10th Cantanae Pty. Ltd. v Shoshana Pty. Ltd., above. Adapting what was said by Wilcox J. at p 300, the essential complaint made by the applicant is that the respondents have, without his permission, exploited his name and his identity. His Honour then said:-

"In the United States of America such a claim would fall within that aspect of the law of privacy which is called "appropriation". This was the first of the four separate torts, now treated as aspects of privacy law, to be recognised in that country as being actionable: see Prosser and Keeton on Torts 5th ed, 1984, pp 851-4. It remains probably the most significant of those torts, although its inclusion amongst the interests protected under the rubric of "privacy" is somewhat ironic. Most American plaintiffs have not been concerned to maintain the privacy of their identity, but rather to safeguard their monopoly in the publicity value attaching to that identity.

Anglo-Australian law does not, of course, recognise privacy interests, as such, although the expansion of the protection given by the law of passing off which was effected in Henderson v Radio Corp Pty Ltd (1960) SR (NSW) 576 goes some distance towards covering the appropriation cases. I see no reason to exclude the application of the law of passing off from a case such as the present, provided that the court were satisfied that the advertisement published by the appellants would be read as containing a representation that Ms Smith endorsed, or was otherwise associated with, the Blaupunkt video recorder. It is true that, even under the Henderson approach, the protection offered by the law of passing off is limited to persons "engaged in business, using that expression in its widest sense to include professions and callings": see per Evatt C.J. and Myers J at 593."

54. Counsel for the applicant relied strongly upon the opinions expressed in Henderson v Radio Corp. Pty. Ltd. and in Krouse v Chrysler Canada Ltd (1971) 25 DLR (3d) 49 , a decision of the Ontario High Court constituted by Haines J. Counsel relied strongly also on the article by Dr C. Pannam, "Unauthorised Use of Names or Photographs in Advertisements" appearing in (1966) 40 ALJ 4. An interesting fact arising from a reading of that article is the reminder of the earlier authorities that suggested that an amateur sportsman could recover damages for defamation if an advertisement had the effect of suggesting that in receiving a fee for the advertisment, the sportsman had endangered his amateur status; see for example Tolly v J.S. Fry & Sons Ltd [1931] UKHL 1 ; (1930) 1 KB 467.

55. In the Canadian case, the plaintiff was a truly professional sportsman. His identity was made use of by the defendant to advertise its products without the consent of the plaintiff. The court declined to decide whether in Ontario there was a common law right to privacy. The issue decided by the court, as appearing in the statement of claim was:-

"The plaintiff has become identified with the products of the defendant Chrsyler and he has had his chances of advertising for other automobile manufacturers seriously affected."

56. The Court considered the claim on the basis of a wrongful appropriation of a right of the plaintiff, being the right to sell his endorsement for advertising purposes, and the tort of passing off. The claims were based on the commercial advertising power possessed by professional athletics and in this case there was no doubt that the defendant had made direct use of the plaintiff in the advertisement of its products. The Court found that the plaintiff did possess a saleable advertising power which was used by the defendant without the plaintiff's use. The Court stated the problem at pp 61-2 as follows:-

"Was this wrongful appropriation a taking of a property right of Krouse's? At first blush this appears to be a redundant question. His picture for advertising purposes has real value as advertisers feel it enhances saleability and it is common practice to pay for endorsements and the like. One would think that the wrongful appropriation of that which in the business world has commercial value and is traded daily must ipso facto involve a property right which the Courts protect. Property being an open-ended concept to protect the possession and use of that which has measurable commercial value, logic seems to impel such a result. However, the numerous cases cited by the defence require a closer consideration."

57. The Court then considered the two strands involved namely the right of an individual to his elements of identity and passing off but to some extent these two strands became intertwined. In the course of considering these matters, one of the cases referred to was Henderson v Radio Corp. Pty Ltd, above. The court held that the defendant had committed the tort of passing off. In this respect the court said at p 68:

"The passing-off strand is even more clearly on point. What could be a more precise example of "an improper appropriation of the plaintiff's reputation" than appropriating that reputation in the commercial exploitation of one's goods. If it is accepted that there is a general business of giving endorsements and being involved in advertising promotion, and that at the very least professional athletes are part of that business, and that on the evidence adduced at trial Krouse is involved in that business, then the common ground necessary for passing-off actions is established. In this context I do not see any difference between A passing off B's endorsement as being C's and A either fabricating C's endorsement or using C's picture without permission. In either situation C suffers the very injury which passing off is intended to remedy."

58. The Court applied also the reasoning in Henderson to find for the plaintiff.

59. In Henderson, a full Court of the Supreme Court of New South Wales had to consider a suit in equity involving a claim, in substance, based upon the tort of passing off. As suggested by Wilcox J. in 10th Cantanae, above, at p 300 that authority went "some distance towards covering the appropriation cases". Nevertheless, in a claim based upon the tort of passing off, the applicant must show that a significant segment of the public seeing the offending advertisement would be likely to associate the business of the respondents with the business, in its widest sense, of the applicant. In 10th Cantanae Wilcox and Pincus JJ in the Full Court, held that the applicant had not established a case in passing off. At p 304-5 Pincus J., referred to Henderson, and what was said by Deane J in Moorgate Tobacco Co. Ltd. v Philip Morris Ltd (1984) 156 CLR as follows:-

"It is desirable to say something of the applicable principles, before analysing the learned primary judge's findings further. His Honour, as appears from what is said above, accepted a wider view of the notion of passing off than that which had prevailed in this country before the decision in Henderson v Radio Corp Pty Ltd (1960) SR (NSW) 576. His Honour quoted (1987) 79 ALR 279 at 288) and apparently accepted Mr Ricketson's statement that "any representation that the plaintiff is in some way associated with the defendant's business, whether by way of partnership, sponsorship or licensing, will suffice". In Moorgate Tobacco Co Ltd v Philip Morris Ltd [1984] HCA 73 ; (1984) 156 CLR 414 at 445; [1984] HCA 73 ; 56 ALR 193 the High Court, in referring to Henderson's case, did not go quite so far. Deane J, with whom the other members of the court agreed, referred to the "... adaptation of the traditional doctrine as passsing off to meet new circumstances involving the deceptive or confusing use of names, descriptive terms or other indicia to persuade purchasers or customers to believe that goods or services have an association, quality or endorsement which belongs or would belong to goods or services of, or associated with, another or others".

60. His Honour then continued:-

"It should be noted that the apparent approval, in this passage, of the expansion of the tort of passing off does not go beyond instances in which people are led to believe that certain goods or services have a characteristic belonging to other goods or services; the question whether the law of passing off gives protection to the alleged proprietary right, "in gross", in the use of a well-known name, is left open."

61. His Honour then considered a number of other authorities and made some general comments and concluded as follows at p 306:-

"It should not be too readily accepted that the mere mention of a name in an advertisement necessarily connotes that the goods advertised have any characteristic - for example, that they have been approved, or even examined, by the person named. In commercial parlance, it may be that a racing car driver "endorses" all the products referred to on his car and clothing, but he is not generally thought to be thereby expressing a view about them. Putting this more shortly, passing off is not necessarily constituted by the mere authorised use of someone's name or picture or the name or picture of a well-known fictitious character, in an advertisement."

This last observation has the same force and application if the word "unauthorised" is used instead of the word "authorised".

62. Gummow J. dissented on the issue of passing off. At pp 313-323, the judgment of His Honour contains an interesting and helpful analysis of the tort of passing off. At p 318-319 His Honour made it clear that in order to found a claim for passing off the plaintiff had to establish that a reasonably significant number of persons reading the advertisements, being potential purchasers of the Blaupunkt equipment, would draw or be likely to draw from the advertisements the message that the media personality, Sue Smith, was giving her endorsement "to the goods or services being advertised". His Honour contended that the advertisment depicted Sue Smith as endorsing the products without her consent and was a passing off.

63. The facts of the present case are very different from the facts in 10th Cantanae, which involved a typical type of advertisement relating to the sale of goods. Earlier in these reasons I made findings based on the evidence with respect to whether the respondents had engaged in conduct in contravention of the Act. On those findings, I am not satisfied that the applicant has established that a reasonably significant number of persons seeing the poster, the magazine or the book, would draw or be likely to draw from them the message that the applicant was giving his endorsement to Australian Airlines or to the House of Tabor.

64. Further, the House of Tabor did not attempt to make use of the identity of the applicant. He was not named. The House of Tabor made use of a photograph depicting an activity; a type of life. The identity of the subject of the photograph was of no consequence.

65. Further, my findings are supported by my finding that the perception of the public that competitors in the Olympic Games and the Commonwealth Games are amateurs even though it is accepted that they might receive financial benefits as a result of the activities as amateur athletes. The applicant is not a professional athlete in the general understanding of that phrase. He must comply with the rules of the IAAF to be qualified to compete in the Olympic or Commonwealth Games. He cannot charge directly for his services but only through a contract approved by the AAU and the moneys so received must be paid to a trust. There was no evidence before the Court that the applicant had ever "charged" a fee to enable his name or photo to be used in the manner adopted by the respondents. There was no evidence that the amateur athletes had "charged" a fee for similar services. The Track and Field Consultant Contract with Nike Inc. is of a very different kind to the type of contract on which the claim for passing off is based. That contract is based on the fact that members of the public watching sporting events, either directly or through the media, and may be influenced in buying sporting gear manufactured by Nike and being used by the applicant.

66. In all the circumstances of this case, I am not satisified that the applicant has made out a case based on passing off.

67. Having come to these conclusions it is not necessary to consider the remedies that would have been granted if the applicant's case had been established including the amount of damages, if any, to be awarded.

68. The House of Tabor cross claimed against Australian Airlines seeking indemnity or constitution if it was liable to the applicant. In my opinion, from the evidence accepted, that action was reasonable but it is not necessary for me to consider whether the cross claim would have succeeded. Having formed that view, it is reasonable in my opinion that the applicant should pay the costs of the respondents relating to the cross claim.

69. In the result, the application should be dismissed with costs including the costs of and incidental to the cross claim.