Ascic v Australian Federal Police

[1986] FCA 260

IN THE FEDERIIL, COURT OF AUSTR.aIA 1

1

rm SOUTH WALES DISTRICT REGISTW ) No. G:% of 1386

)

GENERAL DIVISION	!	I
l
:

. -	i !
1

EETGEEN: M . .S G. LEHEE BR0THEP.C FTY. LIEIITE33

l

Applicant

C3LTEX OIL (AUSTPALIA) FTY. LIMITED	!
i
I
Respondent	! ~
,

Judqe making order: Eeaumont, J.	I .
, - I , I

Date order made: 3 July 1386

!

Where made : Sydney

1

i

1 - C0W.T THE ORDERS THAT:

1.	Note that the applicant renews	its undertaking as
to damages.
-.

_. flote that the respondent renews its e:iistln+

. undzrtaking to the Court until further order.

3. Reserva liberty to apFl7 cn txo days' notice.

1.	C x t s of this inttrlm application be costs in the
proceedings. I !

LJote: Zettlement and entry of ardsrz 13 dealt Yith in

ilrder 36 of the Federal Court Rules. j

r

. !'

I

I

tJOT FOR GENERAL DISTRIBUTION

i

IB THE FDERAL C0UF.T OF AUSTEALIA	)	I
1	!.

P J E W SOUTH WLES DISTRICT REGISTRY	1	Hp. C258 of 1986
1
GENERAL DIVISION	)

._

!

I I

BETWEEN	:	M. Si G . WEHBE BROTHERS PTY. LIMITED	1
Applicant	I
i
!

i	m&N	:	CALTEX OIL (AUSTRALIA) FTP. LIMITED	.	I
!
Respondent

COPAM: Beaumont , J.

* - .

DATED: S July 1986 l i

REASONS FOR JUDC-IWNT

The applicant seeks interlocutory relief that, pending i

the final hearing of these proceedings, the respondent continue

t

to deliver to the applicant petroleum Droducts to the retail

outlet conducted by the respondent	at the premises altuated .at
110 Canterbury Road, Bankstown.

In his affidavit sworn 29 June 1986. Mr. M.N. lqehbe, a

director of the applicant, says that in early May 1386, the I

respondent offered to enter into a Reseller Supply Ccntract and Collateral Agreement for the supply of petroleum products. This

contract and thls agrsement yere intended to renew similar

previous arrangements which xere about to esplre by effluxion of

I I

\	7	I
b .

I	I
I .

time. On 13 May 1986. the applicant executed a counterpart of

these agreements which were to subsist for a period of one year

I

at least. However, by letter dated 16 June 1986. the respondent	:
informed the applicant that it did not propose to renew the

existing supply arrangements. - -

The applicant’s case 1s th&t the respondent has- engaged !

in misleadmg or deceptive conduct within the meaning of	5 - 5 2 of
_ -

the Trade Practices Act 1974 (the Act). Alternatively, the

applicant seeks to invoke the accrued jurisdiction of the Court

and claims under the general law an order for specific

performance of what It alleges to be a contract to supply !

petroleum products.

!

The matter is urgent and, accordingly, I have arranged

for it to be heard, on a final basis, on 21 July. Since I will

fie hearing the matter myself, I propose to deal with the matters

hl-iefly.	In	dolng	this, I acknowledge	the	assistance	I have	t
!.’

obtained from the written submlssions forwarded by counsel.

In my opinion, notwithstanding the futurity of the !

~

I

representations relied upon (cf. s.51A of the! Act - inserted-by I

Act No. 17 of 1386. 5.211, a “serious	question	to	be	tried”	I
l

arises as to whether the conduct of the respondent, taken as a

Yhole, was likely to mislead the applicant. C-i-;en that

conclusion. the suggestion by the respondent that the applicant

zas merely	fabricatinq	jurisdiction	by	raising	5.52 of the	Act	l
,-
l

*

. .. - . --

.l..

i

b,	should	be	rejected,	at	this	stage	at	least.
_.

The respondent relies also on a number of discretionary I

l defences. One isJ that the respondent asserts that the applicant

is somehow involwed in dealing in stolen petrol. However, at

j

this point of -time. whilst I note that the application for

interim relief came forward at short notice, the respondent has

adduced no eviden-ce-yet to support the assertion. The matter was

:

put to Mr. W&be in cross-examination but he denied the

suggestion.

Another discretionary defence is said to arise from the

nature of the relief sought: it may be said to be tantamount to

an attempt to obtain specific performance of an agreement calling

for the continuous supervision of its performanuv the-Court.

>

i

It is suggested that the Court should decline to exercise its

P +	discretlon under	9.87 of the Act	for reasons similar to those
i

zhich would lead a Court of Equity to decline to interfere in

! I .

such a case. There is obviously room for argument on the point

but I must hold that there is. at least, a serious question to be !

i tried in this respect also.

Apart from the stolen petrol matter, in respect of xhich

no evidence has been adduced	by	the	respondent. the balance af	, -
I

convenience suggests that interim relief should be granted in

order to maintain the status quo. The respondent has already

! .

proferred a suitable undertaking to the Caurt and has indicated

i

1 .

I

i

- . - - . - . - r. , - . _ . _ .-. . . . - . . - . . -. . . 1 -

I

4 .

that, if the Court were minded to qrant an interlocutory

I

injunction, the respondent xould prefer, instead, to renew its	.
undertaking.

I propos;e to make the following orders:	I .
,

1. I note that the applicant renews its undertaking as to

damages.

I note that the respondent renews its existing

undertaking to the Court until further order.

3 .	I reserve liberty to apply on two days’ notice.
4 .	I order that costs of this interim application be costs
in the proceedings. ’.

i

l

i

. .

!

!

i