Axarlis v Pets Paradise Franchising Pty Ltd

[2009] FCA 640

FEDERAL COURT OF AUSTRALIA

Axarlis v Pets Paradise Franchising Pty Ltd [2009] FCA 640

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1

Timar v The Minister for Justice and Customs [2001] FCA 295

SUSAN AXARLIS and FIONA MILLER v PETS PARADISE FRANCHISING PTY LTD ACN 069 620 391, GLOBAL PET PRODUCTS PTY LTD ACN 005 666 599, IT VISIONS PTY LTD and GARY DIAMOND

VID 418 of 2009

MARSHALL J
12 JUNE 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 418 of 2009

BETWEEN:

SUSAN AXARLIS
First Applicant

FIONA MILLER
Second Applicant

AND:

PETS PARADISE FRANCHISING PTY LTD ACN 069 620 391
First Respondent

GLOBAL PET PRODUCTS PTY LTD ACN 005 666 599
Second Respondent

IT VISIONS PTY LTD
Third Respondent

GARY DIAMOND
Fourth Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	12 JUNE 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for interlocutory relief is dismissed.

2.The applicants pay the respondents’ costs of the application.

3.The directions hearing is adjourned to 10.15 am on 31 August 2009 before the docket judge, Justice Gray.

4.The costs of the directions hearing aspect of today’s hearing are reserved.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 418 of 2009

BETWEEN:

SUSAN AXARLIS
First Applicant

FIONA MILLER
Second Applicant

AND:

PETS PARADISE FRANCHISING PTY LTD ACN 069 620 391
First Respondent

GLOBAL PET PRODUCTS PTY LTD ACN 005 666 599
Second Respondent

IT VISIONS PTY LTD
Third Respondent

GARY DIAMOND
Fourth Respondent

JUDGE:	MARSHALL J
DATE:	12 JUNE 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 4 June 2009 the applicants commenced a proceeding in this Court in which they allege that the respondents have breached ss 47, 51AA, 51AC, 52, 53, 75AZC and 75B(1)(c) of the Trade Practices Act 1974 (Cth) (“the Act”). They allege that the respondents have engaged in misleading or deceptive conduct, unconscionable conduct and exclusive dealing.

2. In the “details of claim” section in their application the applicants allege that the breaches of the Act arose in the context of a franchise agreement with the respondents. They claim loss and damage “as outlined in the statement of claim”.

3. The statement of claim asserts loss and damage as a result of breaches of ss 47, 52, 53 and 75AZC of the Act. It also asserts that the applicants have suffered loss and damage “due to the failure of the PP franchise system”.

4. By way of interlocutory relief today the applicants seek orders staying the execution of a County Court judgment, which the County Court itself has refused to stay. This Court has no jurisdiction to stay that judgment so no interlocutory relief in that form can be granted, see s 23 of the Federal Court of Australia Act 1976 (Cth). In any event, the interlocutory relief claimed bears no relation to the substantive claims in this proceeding. The Court has no power to make an order of that kind now, given that it would have no power to make such an order at the conclusion of the proceeding; see Timar v The Minister for Justice and Customs [2001] FCA 295 at [12] to [15]. No interlocutory order of that type is necessary to ensure the effective exercise of the jurisdiction invoked; see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 33.

5. The Court also has no jurisdiction to grant a formal stay of “any further proceedings against the applicants by the respondents”, as sought by the applicants.

6. The applicants further seek, in this proceeding, interlocutory relief in the form of the setting aside of a bankruptcy notice issued as a consequence of their lack of success in the County Court.

7. The applicants have not complied with the requirements of r 3.02 of the Federal Court (Bankruptcy) Rules in respect of seeking to set aside a bankruptcy notice. The applicants if they wish to set aside a bankruptcy notice, should apply to do so properly in accordance with the provisions of the Bankruptcy Act 1966 (Cth) or apply under s 41 of that Act to extend the time for compliance with the bankruptcy notice. The current application has nothing to do with bankruptcy. It is not necessary to ensure the effective exercise of the jurisdiction invoked in the application to set aside a bankruptcy notice (which is not in evidence) until the hearing of this proceeding.

8. The application for interlocutory relief is dismissed with costs. The directions hearing is adjourned to 31 August at 10.15 am before the docket judge, Gray J.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        12 June 2009

Representative for the Applicants:	Mr M Axarlis, by leave of the Court
Counsel for the First, Second and Fourth Respondents:	Mr P Crennan
Solicitor for the First, Second and Fourth Respondents:	Robert James Lawyers
The Third Respondent did not appear.

Date of Hearing:	12 June 2009
Date of Judgment:	12 June 2009