Alexander, H. v Murphyores Inc. Pty Ltd - [1986] FCA 71

Re: HUBERT ALEXANDER; JOHN EGAR (also known as JOHN EAGER) and JAMES PRESTON
CONSIDINE
And: MURPHYORES INCORPORATED PTY. LTD. and PETER MAXWELL LAURENCE
No. QLD G125 of 1985
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.

CATCHWORDS

Practice and Procedure - Courts - Federal Court of Australia - Accrued Jurisdiction - Discretion where accrued jurisdiction present - Trade Practices Act 1974 - Injunction to restrain Supreme Court proceedings - Interlocutory Injunctions.

Trade Practices Act 1974

Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457.

Mister Figgins Pty. Ltd. v. Centrepoint Freeholds Pty. Ltd. (1981) 36 ALR 23.

Rolls-Royce Motors Ltd. v. D.I.A. (Engineering) Pty. Ltd. (1981) 50 FLR 340.

Muller v. Fencott (1982) 39 ALR 496.

Stack v. Coast Securities (No.9) Pty. Ltd. (1983) 154 CLR 261.

Francis C. Mason Pty. Ltd. v. Citicorp Australia Ltd. (1984) 57 ALR 130

Epitoma Pty. Ltd. v. Australasian Meat Industry Employees' Union (No. 2) (1984) 54 ALR 730.

The Australian Coarse Grain Pool Pty. Ltd. v. The Barley Marketing Board of Queensland (1982) 57 ALJR 425.

Tableland Peanuts Pty. Ltd. v. The Peanut Marketing Board (1984) 58 ALJR 283.

HEARING

BRISBANE

#DATE 14:3:1986

ORDER

The first respondent be restrained from proceeding against the applicants or any one of them in Supreme Court of Queensland action Writ No. 3978 of 1985 until the determination of these proceedings or further earlier order.

The first respondent be restrained until the determination of these proceedings or further earlier order from entering into possession of that part of the land described as Portion 211 in the District of Brisbane, County of Ward, Parish of Gilston contained in Special Lease No. 29401, as outlined in red on the plan set forth in the First Schedule of a sub-lease granted by Comserve Holdings Pty. Ltd. to the second and third applicants on 9 December, 1980, a copy of which sub-lease is Exhibit "C" to the affidavit of Richard Cameron Morton filed in these proceedings on 16 December, 1985.

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

JUDGE1

These proceedings concern the occupation and possession of certain land at The Spit on the Gold Coast. I am presently concerned with the question of interlocutory relief.

The first applicant, Hubert Alexander, and the second applicant, John Egar, operate a tourist attraction called "The Great White Shark Expo" and also trade under the name "Marine Display Services". Peter Maxwell Laurence, the second respondent, is the Managing Director of the first respondent which has a number of leases at The Spit.
The Great White Shark Expo was opened on 29 November, 1980. It is situated in premises upon certain leasehold land (Special Lease No. 29401).
In November, 1978, Comserve Holdings Pty. Ltd. became the registered lessee of Special Lease No. 29401. On 9 December, 1980, it agreed to sub-lease part of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1986] FCA 71
Decision Date: 14 MARCH 1986

CaseChat Overview and Summary

Alexander and others brought an application against Murphyores Inc. Pty Ltd in the Federal Court of Australia, seeking relief from the Supreme Court of Queensland's proceedings. The applicants sought an injunction to restrain the first respondent from proceeding with the action in the Supreme Court and from entering into possession of specific land. The legal issues before the court involved the exercise of the Federal Court's discretion in cases where jurisdiction had accrued and the Trade Practices Act 1974.

The court considered whether it was appropriate to grant an interlocutory injunction to restrain the Supreme Court proceedings and the entry into possession of the specified land. The court evaluated the balance of convenience and the need to prevent irreparable harm, as well as the applicants' likelihood of success on the merits. The court found that the applicants had demonstrated a strong case and that the balance of convenience favoured the grant of the injunctions.

Accordingly, the court restrained the first respondent from proceeding with the Supreme Court action and from entering into possession of the specified land until the determination of these proceedings or further order. The court's decision was based on the applicants' demonstrated need for protection against the potential harm caused by the Supreme Court proceedings and the risk of the first respondent taking possession of the land in question.

Orders

Orders of the court

The first respondent be restrained from proceeding against the applicants or any one of them in Supreme Court of Queensland action Writ No. 3978 of 1985 until the determination of these proceedings or further earlier order.

The first respondent be restrained until the determination of these proceedings or further earlier order from entering into possession of that part of the land described as Portion 211 in the District of Brisbane, County of Ward, Parish of Gilston contained in Special Lease No. 29401, as outlined in red on the plan set forth in the First Schedule of a sub-lease granted by Comserve Holdings Pty. Ltd. to the second and third applicants on 9 December, 1980, a copy of which sub-lease is Exhibit "C" to the affidavit of Richard Cameron Morton filed in these proceedings on 16 December, 1985.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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