Australian Postal Corporation v Streetfile Pty Ltd
[1996] FCA 964
•6 NOVEMBER 1996
CATCHWORDS
AUSTRALIAN POSTAL COMMUNICATIONS ACT - services reserved to Australian Postal Corporation - exceptions to reserved services - whether items delivered fall within exception to reserved services
REMEDIES - damages - calculation of damages - level of damages referable to foregone revenue - whether assessment to allow for costs of delivery
REMEDIES - injunction - whether injunction should be granted - whether intention to continue contraventions
ICI v Trade Practices Commission (1992) 38 FCR 248
Australian Postal Corporation Act 1989 (Cth)
AUSTRALIAN POSTAL CORPORATION v STREETFILE PTY LTD
NO. VG 130/95
NORTHROP J
MELBOURNE
6 NOVEMBER 1996
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 130 of 1995
GENERAL DIVISION
B E T W E E N :
AUSTRALIAN POSTAL CORPORATION Applicant
A N D :
STREETFILE PTY LTD Respondent
COURT: NORTHROP J
PLACE: MELBOURNE
DATE: 6 NOVEMBER 1996
MINUTES OF ORDER
THE COURT ORDERS THAT
That there be judgment for the applicant in the sum of $2,691.83 of which the sum of $486.50 is interest under s 51A of the Federal Court of Australia Act 1976.
Otherwise the application is dismissed.
There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 130 of 1995
GENERAL DIVISION
B E T W E E N :
AUSTRALIAN POSTAL CORPORATION Applicant
A N D :
STREETFILE PTY LTD Respondent
COURT: NORTHROP J
PLACE: MELBOURNE
DATE: 6 NOVEMBER 1996
REASONS FOR JUDGMENT
Australian Postal Corporation ("Australia Post"), as applicant, is seeking a number of orders against Streetfile Pty Ltd ("Streetfile") as respondent. The relevant orders being sought, as set out in the application and deriving from the Australian Postal Corporation Act 1989 (the "Act"), are:
"2.An injunction to restrain the Respondent by itself, its officers, servants or agents, or howsoever otherwise, from delivering, or causing to be delivered, letters within Australia in contravention of Section 29 of the Act.
Damages or at the Applicant's election an account of profits pursuant to Section 31(2) of the Australian Postal Corporation Act 1989.
Interest pursuant to Statute."
Because of somewhat unusual procedures that developed before and at the hearing of the application, it is useful to set out the whole of the statement of claim supporting the application, including further and better particulars added in respect of paragraph 9 in accordance with an order of the Court made on 4 April 1995:-
"1.The Applicant is, and was at all material times:
(a)established pursuant to statute;
(b)able to sue and be sued in its corporate name; and
(c)known as "Australia Post".
The Respondent is, and was at all material times, incorporated pursuant to law.
Pursuant to Section 14 of the Australian Postal Corporation Act 1989 ("the Act"), the principal function of Australia Post is to supply postal services within Australia and between Australia and places outside Australia.
By reason of Section 29 of the Act (and subject to certain exceptions under Section 30) Australia Post has the exclusive right to collect, carry and deliver letters within Australia.
Pursuant to Section 3 of the Act, "letters" is defined as meaning:
'any form of written communication that is directed to a particular person or address, and includes:
(a)any standard postal article;
(b)any envelope, packet, parcel, container or wrapper containing such a communication; and
(c)any unenclosed written communication that is directed to a particular person or address.'
In contravention of Section 29 of the Act, the Respondent in or about February 1995 delivered, or caused to be delivered, letters within Australia to various addresses, namely a compact disc pack containing:
(a)a letter addressed to a particular person at the various addresses;
(b)a single folded sheet of paper containing advertising material about the 'HBA Singles System';
(c)advertising material entitled 'HBA Singles System'; and
(d)a reply paid envelope.
PARTICULARS
The Applicant refers to and relies upon an example of the material described above delivered to Mr John Power of 26 Bent Street, Bentleigh, 3204.
The Applicant will provide further particulars after discovery.
By delivering, or causing to be delivered, the letters referred to in paragraph 6, the Respondent acted in contravention of Section 29 of the Act.
By reason of the foregoing, the Applicant has suffered, loss and damage.
PARTICULARS OF LOSS AND DAMAGE
Loss of revenue which would have been earned by
Australia Post if it had carried the letters.
Further particulars of loss and damage will be
supplied before trial.
Further, or in the alternative, the Respondent intends unless restrained to deliver, or cause to be delivered, letters of the type referred to above in continuing breach of the Act.
PARTICULARS
(i)The Respondent is involved in the business of printing, addressing and delivering of
advertising material. In this regard the Applicant particularly refers to submission number 280 dated 14 September 1992 to the Industry Commission on Mail, Courier and Parcel services by Pac-Rim Printing Pty Ltd.
(ii)The Respondent has previously delivered articles which the Applicant considers to be delivered contrary to the Australian Postal Corporation Act 1989 ("Act") being the following:
- November 1991 - 1991 Myer Christmas catalogue.
- Nov-Dec 1991 - Respondent delivered materials to American Express card holders.
- Late 1992 -The Respondent delivered statements from the New South Wales State Authorities Superannuation Scheme to Superannuants, such statements containing personalised information, which delivery the Applicant contends was in breach of its reserved powers under the Act.
- November 1993 - The Respondent delivered a letter for Good Year Auto Service Centre, which delivery the Applicant contends was in breach of its reserved powers under the Act.
In consequence of the above actions of the Respondent, the Applicant alleges that the Respondent intends, unless restrained, to deliver, or cause to be delivered, letters of the type referred to above in continuing breach of the Act."
By its amended defence, filed on 8 June 1995, Streetfile admitted the allegations contained in paragraphs 1 to 7 of the statement of claim, did not admit the allegations contained in paragraph 8 and denied each and every allegation contained in paragraph 9. Thus, on the pleadings, the only issues to be tried related to damages or an account of profits and whether an injunction should be granted.
The matter was set down for hearing. Australia Post gave no formal notification of whether it was seeking damages or an account of profits. Streetfile did not seek particulars of loss and damage. Despite what appeared in paragraph 8 of the statement of claim, Australia Post did not supply particulars of loss and damage before trial. It was made clear by counsel for Australia Post at the hearing that it was seeking damages.
No directions were given prior to trial as to whether evidence would be given by way of written statements or affidavit. When the matter came on for trial, counsel for Australia Post sought to rely on affidavits one of which had been sworn on the morning of the hearing. The Court gave leave for this course to be adopted but difficulties arose both for the Court and Streetfile.
Before turning to the facts, it is necessary to make reference to some of the provisions of the Act. Under the Act, Australia Post is constituted as a corporate body. Its principal function is described in section 14 to supply postal services within Australia and between Australia and places outside Australia. The phrase "postal services" is not defined in the Act but it is clear that it includes the carrying of letters within Australia. Thus, under section 4, an article is carried by post if it is carried by or through Australia Post. The word "article" is defined to mean any matter or thing, and as including, for example, among other things, a letter and a packet containing a letter. In the same section, the word "letter" is defined to mean any form of written communication that is directed to a particular person or address, and includes, among other things, any packet containing such a communication.
Part 3 of the Act imposes obligations on Australia Post. It is headed "Australia Post's Obligations and Reserved Services". Part 3 comprises sections 25 to 31. In the Act, the phrase "reserved services" is defined to mean the activities in which Australia Post has, by section 29, the exclusive right to engage. Because of the submissions made by counsel on behalf of Australia Post, it is necessary to set out subsections 27(1), (2), (3) and (4):-
27.(1)Australia Post shall supply a letter service.
The principal purpose of the letter service is, by physical means:
(a)to carry, within Australia, letters that Australia Post has the exclusive right to carry; and
(b)to carry letters between Australia and places outside Australia.
Australia Post shall make the letter service available at a single uniform rate of postage for the carriage within Australia, by ordinary post of letters that are of standard postal articles.
Australia Post shall ensure:
(a)that, in view of the social importance of the letter service, the service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(b) that the performance standards (including delivery times) for the letter service reasonably meet the social, industrial and commercial needs of the Australian community."
Section 29 confers on Australia Post what can only be described as a monopoly. Subsections 29(1) and (2) are set out:
"29.(1) Subject to section 30, Australia Post has the exclusive right to carry letters within Australia, whether the letters originated within or outside Australia.
29.(2) The reservation of services to Australia Post under subsection (1) extends to:
(a)the collection, within Australia, of letters for delivery within Australia; and
(b)the delivery of letters within Australia."
Section 30 sets out a number of exceptions to the reserved services described in section 29. One of those exceptions is relevant for present purposes, it being argued that certain articles delivered by Streetfile come within the exception described in paragraph 30(1)(c). That paragraph provides as follows:
"30.(1) The reserved services do not include any of the following:
...
(c)the carriage of a newspaper, magazine, book, catalogue or leaflet, whether or not directed to a particular person or address and whether or not enclosed in any sort of cover;"
Australia Post brings this action under the terms of section 31 of the Act the relevant subsections of which are:
"31.(1) Where a person has engaged, or is proposing to engage, in conduct that involves , or would involve, an infringement of Australia Post's exclusive right to undertake the reserved services, Australia Post may apply to the Federal Court for relief.
(2) The relief that may be granted includes an injunction and, at the option of Australia Post, either damages or an account of profits. ...
(3) ...
(4) The power of the Federal Court to grant an injunction restraining a person from engaging in conduct may be exercised:
(a)whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;
(b)whether or not the person has previously engaged in conduct of that kind; and
(c)whether or not there is imminent danger of substantial damage to Australia Post if the person engages in conduct of that kind."
When the matter came on for hearing, difficulties became apparent resulting from the absence of particulars of the damages being sought by Australia Post. Counsel explained that the damages were based on the loss of revenue that would have been received by Australia Post if it had supplied the postal services. It claimed that Streetfile had delivered 34,239 letters in contravention of section 29 of the Act, that Australia Post would have charged 57 cents for delivering each of those letters and that therefore it had lost the product of those amounts namely $19,516.23.
By its defence, Streetfile had admitted the allegations contained in paragraph 6 of the statement of claim. By a quirk of fate, the letter referred to in the particulars to paragraph 6 had been addressed to Mr John Power who happened to be the Manager of the Letters Group of Australia Post and was the main witness called to give evidence for Australia Post. The number of letters delivered, stated to be 34,239 gave rise to a disputed question of fact, Streetfile claiming that some of the documents sent were not letters within the meaning of the Act or, if letters, were within the exclusion provided by paragraph 30(1)(c) of the Act. Findings need to be made on this issue even though it was not raised by the pleadings.
In February 1995 Streetfile delivered a number of articles directed to named persons at particular addresses. Each article consisted of a hinged flat plastic box of the type often used to contain compact discs. Each box contained advertising material relating to benefits provided by HBA. Each was addressed to a member of HBA and sought to entice the member to encourage family members to take out a particular type of cover tailored to suit single persons.
During the hearing each article was described as a "CD Pack" or "Pack". The evidence disclosed that two types of CD Packs were delivered, one featuring a pale blue starfish (the "Blue Pack") and one featuring a purple starfish, called "dark blue" during the course of the hearing ("the Purple Pack"). In each type of Pack, the name and address of the person to whom the article was delivered was printed across the centre of the starfish. This name and address could be seen through the lid of the plastic box. On the top left of the article the address "Private Bag 10 Camberwell Vic 3122" appeared. This was the postal address of HBA. On the top right of the article there appeared the following - "Hand delivered to you by Streetfile. If address details are incorrect please ring 1800 803 551 Free Call.". The document on which the name and address appeared, when unfolded, showed the starfish and the name and address of the person to whom the article had been delivered. The document in the Purple Packs then commenced with the words "Dear ...", the name of the addressee being inserted, and contained a facsimile signature of Richard Bowden, the General Manager of HBA. The document concluded with a cut-off form related to a special type of cover for the benefit of the members of the family of the addressee. To accept the offer, the addressee was required to cut off the form and return it post free to HBA in the envelope enclosed in the Pack.
Included among the other documents in the Purple Pack was a document which had a red starfish appearing on the top of the front and a booklet entitled "HBA Singles System". On the red starfish the words "To the coolest one in the household" were printed across the centre of the starfish. The text commenced with the word "Hi" but was not signed. The text was designed to encourage young people being members of the family of the addressee to become members of HBA. The booklet contained material offering enticements to persons who did become members of the HBA under its singles system.
In the Blue Pack, the document containing the blue starfish was the same size and shape as the documents containing the purple starfish and the red starfish. The text of the blue starfish document was headed "Hi", but the name of the addressee was not inserted.
The text of this document was different, but similar in purpose to, that appearing on the red starfish document but it concluded with the facsimile signature of Li-Ann Lieu, the Singles System Co-ordinator of HBA. This document did not contain a cut-off form nor was a reply paid envelope enclosed. The booklet "HBA Singles System" was included in the Blue Packs.
Counsel for Streetfile submitted that the statement of claim, by reason of the particulars of articles contained in paragraph 6 of the statement of claim, referred to the Purple Packs only because the Blue Packs did not contain a letter addressed to a particular person at an address or any reply paid envelope. It was said that these documents did not contain any "salutation" and therefore could not be a letter. A total of 34,239 CD Packs were delivered by Streetfile at least 17,931 of which were Purple Packs, leaving a balance of 16,308 CD Packs which could have been either blue or purple. It was conceded by Streetfile that its delivery of the Purple Pack did constitute a contravention of the monopoly conferred by section 29 of the Act. It was argued that the carrying of the Blue Packs did not constitute a contravention of that monopoly.
Section 29 confers an exclusive right on Australia Post "to carry letters within Australia". In this section the word "letter" is defined in the Act to mean, for relevant purposes, "any form of written communication that is directed to a particular person or address including any packet ... (or) ... container containing such a communication". On any view, the documents being those containing the blue starfish and the purple starfish, constitute a communication from HBA to the named addressee. Each sets out the name and address of the addressee and is signed by an officer of HBA. The suggestion made on behalf of Streetfile that the blue starfish document is not a letter because it does not contain a "salutation" makes no sense. The absence of the name of the addressee after the word "Hi" is immaterial. In my opinion each of the 34,239 packs carried and delivered by Streetfile constitutes a letter within the meaning of section 29 of the Act.
It was argued on behalf of Streetfile that the Blue Packs came within the exclusion contained in paragraph 30(1)(c) of the Act. It will be recalled that "reserved services" means the activities that Australia Post has, because of section 29, the right to engage in. Subsection 30(1) lists a number of activities which are to be excluded from the reserved services. The reserved services are limited to the rights "to carry letters within Australia". Therefore, logically, unless an activity comprised the carrying of letters within Australia, that activity would not constitute a reserved service. This view appears to be accepted by the wording of subsection 30(1). The subsection commences "The reserved services do not include any of the following:". There are then set out 16 paragraphs, 13 of which commence with the words "the carriage of a letter" or "the carriage of letters". Of the other three, one, paragraph (m), refers to the carriage of writs and other documents required to be served under the practice and procedure of a court or tribunal, and another, paragraph (g), refers to any service that under the regulations, is not reserved to Australia Post. In any event, unless communications coming within paragraphs (m) or (g) were letters, as defined, these activities would not constitute reserved services.
In the present case, counsel for Streetfile sought to rely upon the exclusion conferred by paragraph 30(1)(c) of the Act which excepts from the reserved services:
"(c)the carriage of a newspaper, magazine, book, catalogue or leaflet, whether or not directed to a particular person or address and whether or not enclosed in any sort of cover".
The proper construction and application of paragraph 30(1)(c) gives rise to difficulties. For example unless the articles enumerated in paragraph (c) are letters, the carriage of them does not constitute a reserved service under the Act. Thus, for example, unless the carriage of a newspaper from a newsagent to the home of a purchaser of the newspaper by a home delivery person, constitutes the carriage of a letter, that activity does not constitute a reserved service under the Act and thus need not form the subject of an exclusion. It is difficult to see how the newspaper would constitute a letter. It may be that paragraph (c) is intended to remove doubts, but its wording is obscure. In the present case, counsel submitted that the documents in the Blue Packs were leaflets within the meaning of the word "leaflet" in paragraph (c). In the present case, Streetfile has admitted that the Purple Packs were carried by it in contravention of the Act. In these circumstances it is difficult to see how the carriage of the Blue Packs is to be treated differently. This illustrates the difficulties arising from the pleadings in this case and the absence of particulars of damages sought. Because of the nature of the pleadings and the difficulties already mentioned, the Court is not in a position to express a view on the submissions of counsel for Streetfile but will proceed on the basis that the Purple Packs and the Blue Packs each constitute letters and that the provisions of paragraph 30(1) have no application to the carriage of those articles. In the result, the Court accepts the evidence given by the invoice of Streetfile to HBA that it carried 34,239 Packs for HBA and that on the pleadings that activity was in contravention of the monopoly conferred upon Australia Post by section 29 of the Act.
As outlined in the opening, Australia Post is seeking an injunction and damages under section 31 of the Act. The relevant parts of that section have been set out earlier in these reasons. Streetfile has admitted that it engaged in conduct that involved an infringement of Australia Post's exclusive right to undertake the reserved services. The Court considers first the question of damages under subsection 31(2).
The submissions of counsel for Australia Post or the question of damages were simple. Reference was made to the obligation imposed on Australia Post by section 27 of the Act. They referred to the evidence called on behalf of Australia Post, which evidence establishes the facts, as the Court finds, that, pursuant to this obligation Australia Post provides a letter service which has the capacity to operate in excess of demand and that at the time of the carrying of the Packs, Australia Post had the capacity to carry all those Packs without incurring any additional costs or expenses. Thus the damages suffered by reason of the infringement of its exclusive right to carry the Packs so it was said, should be the sum of the rate of postage applicable to the 34,239 Packs without any deduction for expenses. This sum, so it was said, was the true loss suffered by Australia Post and thus constituted the damages suffered by Australia Post.
In my opinion, there is a fallacy in this contention. It is easy to isolate any group of letters, to assert that no cost was involved in carrying that group of letters since it came within the excess capacity of Australia Post and therefore the total rate of postage received by Australia Post in carrying that group of letters constitutes profit. On this basis, the costs of providing the letter service would never be spread between all the letters carried.
Australia Post keeps detailed records of its receipts and expenses on a monthly basis having regard to the number of articles of particular types carried during that month and the apportionment of its expenses incurred with respect to the provision of its postal service for each particular type. In this case, figures were given in evidence with respect to the relevant month, namely February 1995. During that month Australia Post carried some 19.72 million articles of the type within which the Packs came. The total number of Packs carried by Streetfile is so small by comparison that any difference in figures can be ignored. The figures provided by Australia Post show that it made a profit of 11.3% on the rate of postage for each relevant article carried.
In my opinion, the damages suffered by Australia Post should be calculated on the loss of profit it would have received if it had carried the Packs. This gives a truer picture of the loss suffered by Australia Post than that claimed by its counsel.
Initially, the rate of postage claimed was 57 cents per Pack after allowing a discount of 20% on the standard rate. In evidence, Mr Power conceded that the correct rate should be 54 cents per Pack with respect to Packs which contained a pre-paid return envelope. The Court is unable to determine from the evidence the number of these Packs. The evidence discloses Streetfile carried 34,239 Packs. Prima facie the rate of postage for each Pack was 57 cents. In the absence of further evidence showing the number for which the rate would have been lower, the prima facie rate applies. Accordingly the loss of profit is calculated as 11.3% of 34,239 articles at the rate of 57 cents per article, namely $2,205.33. Australia Post is entitled to an order for damages in the sum of $2,205.33.
In addition, pursuant to section 51 of the Federal Court of Australia Act 1976, Australia Post has made application that there should be included in the sum for which judgment is given an amount being interest at the rate of 13.2% from the date of the issue of the application to the date of judgment on, in this case, the sum of $2,205.33. Unless good cause is shown to the contrary, the application should be granted. No good cause has been shown. Accordingly judgment will be given in the sum of $2,691.83 of which the sum of $486.50 is interest calculated from 7 March 1995 to 6 November 1996.
Australia Post sought an injunction originally in the form set out in the application but, at the hearing, in the following form:-
"1.The Respondent by itself its servants and agents be restrained from carrying or causing to be carried for reward in Australia any generic letter which bears:
(a)the name or address of the intended recipient; and either
(b) a salutation:
(i)that includes the name of the intended recipient; or
(ii)which identifies the recipient by description (for example, "member", "cardholder", "ratepayer" or "subscriber") where the description is referable to a class of persons the members of which are ascertainable; or
(c)a signature (including a replicated signature) on behalf of the sender.
In this order "generic letter" is a letter which:
(a)weighs 250 grams or less unless it is an envelope packet parcel container or wrapper containing two or more separate letters;
(b)has an identical text for a class or classes of addresses and is intended for distribution to that class or those classes;
(c)is carried for reward at a price less than 4 times the then rate of postage for the carriage within Australia of a standard postage article by ordinary post;
and
(d)is not carried:
(i)solely to or from the nearest office by Australia Post of another office of Australia Post authorised by it; nor
(ii)solely to an office of Australia Post where it is then lodged for delivery by the bulk interconnection service."
In support of the claim for injunctive relief, counsel for Australia Post contended that section 31 of the Act indicated that in an appropriate case injunctions should be granted to deter repeated contraventions by an offender. Reference was made to earlier legislative provisions which provided criminal sanctions; see for example section 98 of the Postal Telegraph Act 1901 and section 85 of the Postal Services Act 1975. It is clear that the legislature no longer intended that contraventions should be criminal offences. In these circumstances, the granting of injunctions should not be automatic. Counsel referred to the difficulty Australia Post has in detecting contraventions and asserted that Streetfile has been guilty of repeated contraventions. By analogy, counsel referred to the power conferred on the Federal Court by section 80 of the Trade Practices Act 1974 and authorities on that section and in particular ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 per Lockhart J at 255-257 and Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 per Gummow, Foster and Hill JJ at 574.
Despite the strong submissions by counsel for Australia Post, in my opinion, on the facts of this case, no injunction should be granted.
It is accepted that Streetfile is engaged in the business of printing, addressing and delivering advertising material for reward. Of necessity it is engaging in activities which could involve possible infringements of Australia Post's exclusive right to undertake the reserved services conferred on Australia Post by section 29 of the Act. The evidence discloses that Streetfile has not adopted any processes whereby a decision can be made by a responsible officer of Streetfile whether any proposed activity by Streetfile would, or would be likely to, constitute an infringement of the reserved services. No informed decision on this question was made by any responsible person in the present case. Coupled with this is the fact that it is difficult for Australia Post to detect infringements.
As claimed by Australia Post, there may have been infringements by Streetfile in the past. These are referred to in the particulars to paragraphs 9 of the statement of claim as set out earlier in these reasons.
In the 1991 Myer Christmas catalogue matter, by letter dated 18 November 1991, the solicitors for Streetfile undertook on behalf of their client:
"(a)that it will immediately cease distributing the Myer Christmas "Celebrate" catalogue and that it will not recommence distribution without providing you with three business days notice in writing of its intention to do so.
(b)that it will not carry out any activities in breach of the exclusive right of Australian Postal Corporation to carry letters within Australia pursuant to section 29(1) of the Australian Postal Corporation Act."
These undertakings were given on the basis that there was no admission of any infringement of the reserved services. The letter referred also to the provisions of paragraph 30(1)(c) of the Act.
There was no evidence of any action being taken by Australia Post with respect to the other matters referred to in the particular to paragraph 9 of the statement of claim. The Court is not in a position to express an opinion on whether the activities alleged do constitute infringements.
In the present case, the Court has not had to consider whether the carrying of the Purple Packs constituted an infringement. The finding with respect to the Blue Packs was based largely on the admissions contained in the pleadings. It is sufficient to say many difficult questions could arise in determining issues of this kind. The fact that Streetfile made the admissions it did suggests it is now more aware of the problems and is not likely to offend in the future.
The details of the injunctions sought by counsel for Australia Post illustrate the difficulties involved. The form of the injunction shows that account is taken of a number of exceptions contained in subsection 30(1) of the Act. The Court heard no submissions on these provisions. Apart from a minor matter, the Court did not need to consider any definitive meaning to be given to the word "letter" in section 29 of the Act. In these circumstances it is undesirable for the Court to grant an injunction as sought. On the facts of this case it is inappropriate to make the shorter form of order as sought in the application.
The claim for the injunction is refused.
In the present case, the matter came on for hearing on an admission of liability with respect to damages and no admission with respect to any injunction. The admissions as to liability for damages was made by way of amendment to the defence as first delivered. The evidence shows that before the hearing negotiations took place between the parties seeking a resolution of the dispute. It is not appropriate to refer to the evidence led on these matters. The application was issued on 7 March 1995. In April 1995 a cheque in the sum of $5,000.00 was sent by the parent company of Streetfile to Australia Post as an offer of settlement. By letter dated 12 May 1995 the solicitors for Streetfile wrote to the solicitors for Australia Post as follows:-
"Re:Streetfile Pty Ltd ats. Australian Postal Corporation
We refer to the above matter and advise that in order to resolve the current dispute our client instructs that it is willing to offer your client the sum of $5,000.00 in full and final settlement of proceedings.
We are instructed further, that the offer in the above sum comprises the payment of $3,500.00 in settlement of the dispute plus the sum of $1,500.00 on account of legal fees incurred by your client. The total offer being $5,000.00.
We advise that our client's offer to settle is an open offer and our letter is not to be regarded as confidential for the purposes of this proceeding.
In the event this offer is rejected by your client, this letter will be produced to the Court on the question of costs."
The Court takes note of that open offer. It is not an offer of compromise within Order 23 of the Federal Court Rules. In all the circumstances of the case, including the open offer, the fact that the damages awarded amount to less than the amount of the offer, the admissions made on behalf of Streetfile and the fact that the claim for the injunctions failed, the Court in the exercise of the powers conferred by section 43 of the Federal Court Act, makes no order as to costs.
I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment of The Honourable Justice R.M. Northrop.
Associate:
Date: 6 November 1996
ATTACHMENT
Counsel for the Applicant: Mr G Nettle QC with
Mr P Almond
Solicitors for the Applicant: Holding Redlich
Counsel for the Respondent: Ms H Symon
Solicitors for the Respondent: Dunhill Madden Butler
Date of Hearing: 3-4 July 1996
6 November 1996
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