Dear Members

It’s again time to bring you up to date with the latest developments regarding the dispute between the ACTCCC and Cundy Sports Marketing (CSM) regarding the management and ownership of the Canberra Marathon.

The background to this dispute was set out in the previous two open letters to members. However, as background for new members the dispute started in June 2008 when CSM objected to the ACTCCC conducting a review to obtain members views about the Canberra Marathon. The matter was quickly escalated by CSM when they had their lawyer write a long letter to the Club in June 2008, asserting that CSM had a right to conduct the Canberra Marathon “indefinitely”, had a right to the trademark “Canberra Marathon” and claiming restrictions on the information about sponsorship that we could discuss with our members. That first letter has been followed by many others from CSM’s lawyers making similar assertions and fairly quickly also claiming ownership of the event.

We have during the course of the dispute made various offers to CSM through our solicitors in an attempt to resolve the dispute without litigation but they have all been rejected or ignored.

On 1 September 2009 CSM commenced proceedings against the Club in the Federal Court in Sydney under the Trade Practices Act 1974 and have submitted a lengthy statement of claims. In summary, CSM is claiming that we are interfering in its business through the following actions: 

·      undertaking a review the of the Canberra Marathon;

·      claiming that  the ACTCCC owns the Canberra Marathon;

·      applying for a trade mark; and

·      communicating with sponsors and the ACT Government. 

On 8 September 2009, the matter was referred to mediation by Judge Perram of the Federal Court.  Our barrister attempted to have the mediation moved to Canberra but this request was refused. There were two mediation sessions (3 and 23 November) requested by CSM’s solicitor both held in the Federal Court building in Sydney. The mediation was conducted by the Registrar of the Federal Court. The mediation unfortunately was unsuccessful in achieving a resolution to the dispute. However, the mediator has urged both parties to continue discussion with a view to reaching a settlement outside of the court process.

We consider it unlikely that any further discussion will ensue, as after the first mediation CSM’s solicitor intervened to prevent continuing dialogue between parties preferring to seek to have us return to Sydney, thereby maximizing our inconvenience and expense.  This is further reinforced by the fact that CSM has not changed its position from the one it held at the start of the dispute (i.e. it is claiming ongoing rights to manage the Canberra Marathon in perpetuity and by extension, ownership of the event).

We are now faced with full court proceedings to determine the case. A further directions hearing took place on 30 November at which time the Court set down a time table for the submission of evidence. We understand from Court officials that given the current caseload it would be unlikely for the case to be listed for hearing before about March 2011. This means that it is now unlikely that the 2010 event will take place and also leaves doubt about the 2011 event (unless of course CSM is prepared to change its approach and settle the matter out of court).

In response to the first letter to members you strongly indicated that you wanted us to fight to retain ownership of the Canberra Marathon.  The committee has been acting on this direction and will continue to do everything necessary to retain ownership. Our legal team is of the view that in Court we have a good chance of demonstrating ownership and of having a judgment awarded in our favour.

Clearly the dispute will continue to occupy much of the committee’s time in 2010.  We ask for your continued support for the Club during these proceedings, which will pose challenges, including of a financial nature.

We thank you for your continued interest, views and expressions of support for the work the Committee is undertaking in this difficult matter. If you have further comments or suggestions please pass them to any committee member or email them to secretary@canberrarunner.com.au.

ACTCCC Committee.