Industry witnesses
82 The applicant called a number of witnesses directed towards establishing the name by which the market conducted by the applicant is known. Mr Osmelak, the Executive Director of Flower Victoria, said in his first affidavit that for the last twenty years he had always known the market as "Sydney Flower Market". In his third affidavit he said that the market is only colloquially known by that name, and that it is not its business or trading name. The market was also known and referred to as "Flemington Market", "the Haymarket" or "Sydney Markets".
83 Ms Maddock was a district horticulturalist in Sydney in the period 1983-1992. She had involvement with the flower industry and was also involved in the production of a newsletter "Flower Talk", information sheets and other publications relating to flowers. During her employment as district horticulturalist she always referred to the flower market located in Sydney as the Sydney Flower Market. She always referred to the market by that name in any publications which she produced. In addition, sometimes she referred to the market more specifically as "The Sydney Flower Market in shed F at Flemington Markets". The schedules with which I was provided demonstrate that Ms Maddock, more than most people, was reasonably consistent in her usage of the expression "Sydney Flower Market" to describe the applicant's market, but there are occasional references in publications for which she was responsible to the "Flower Markets at Flemington" and to "the Flower Market". Mr Jones was a magazine editor and publisher who publishes "Flower Link" and "The Market Link". He has had dealings with SMA and the applicant for a period of 18 years. His evidence was that he has always known the flower market conducted by SMA or the applicant as "Sydney Flower Market" or "the Flemington Flower Market".
84 Three florists who have purchased flowers from the market for very many years swore affidavits on behalf of the applicant that each of them referred to the market as "Sydney Flower Market" both before and after the shift to Flemington.
85 Affidavits were also sworn by two flower growers, each of whom has been a stallholder at the market for a period in excess of 25 years. Mr Lynch said that he had always known the flower market conducted by the applicant, and by SMA before it, as either "Sydney Markets" or "Sydney Flower Market". Yet invoices issued by Leo Lynch & Sons have given its address as a Post Office box at Flemington Markets, and in telephone directories the address appearing is Stands 55-57, Sydney Markets Flemington. The other grower, Mr Oliveri said that he has always known and referred to the market as the Sydney Flower Market, and that is the name which he uses in his dealings with other growers, stallholders and florists. Yet on his stationery, the business is described as A & L Florists Supplies, Stand 102, F Shed, Flemington Markets. He said in cross-examination that he regards that as the address of his business for people who come and see him in the market, but when interstate or overseas, he refers to the market as the Sydney Flower Market.
86 A review of the sections "Florist Supplies" and "Florists-W'sale" in the 1986-2000 editions of the Sydney Yellow Pages showed that no standholders at the flower market conducted by the applicant referred to themselves as being located at the "Sydney Flower Market". The standholders refer to themselves as being located at "Flemington Market", "Sydney Market Flemington", "Sydney Markets" or "F Shed, Flemington Markets" with some occasional minor variations of these expressions.
87 Affidavits were filed on behalf of the respondent by eight florists who purchased their flowers from the markets, and by six growers who sold their produce to stallholders at the markets or who were themselves stallholders. There are differences in the detail of this evidence. There is, however, a common thread. Each has always known and referred to the flower market conducted by the applicant or its predecessor as "Flemington Markets". They have never known the market as Sydney Flower Market, or heard it referred to as Sydney Flower Market. In addition, an affidavit was filed by Mr White, the General Manager of a company which is a national wholesaler and flower growing company. He has been involved in the flower industry for over 25 years. In his experience, the market has been referred to by a number of names, including "Flemington Markets", the "Sydney Flower Market" and "the Markets". His company always addresses correspondence to the "Flemington Markets", as in his understanding "the Sydney Flower Market" is merely a colloquial reference to the markets.
88 Paragraph 8 of Mr White's affidavit is as follows:
"If someone, during a conversation was to refer to the 'Sydney Flower Market', which entity I believed they were referring to, would depend on the context in which the reference 'Sydney Flower Market' is made. For example, if it was in the context of retail florist sales, I would assume they were referring to the respondent. On the other hand, if the reference was in the context of flower markets throughout Australia, I would assume they were referring to the flower market conducted by the applicant. This is because, from my experience, it is common in the flower industry in Australia, to refer to the particular flower market in a city by reference to that city. For example, although the flower market in Melbourne is officially called the 'National Flower Centre' if I was talking to someone in the industry, in particular who was located interstate, I would refer to it as the Melbourne Flower Market. However, if I was referring to someone in the flower industry located in Melbourne I would refer to it as the 'Footscray Markets' or the 'Market'."
Whilst hypothetical evidence as to what an expression would convey to a person is rarely of much assistance, I quote this passage because it makes the obvious point that much depends upon the context in which the expression is used.
89 There are florists' shops called the Bellevue Hill Flower Market, The Lane Cove Flower Market, The Hills Flower Market and the Cronulla Flower Market. There may be others which incorporate the words "Flower Market".