B&n Agencies Pty Ltd v Mcdonald & Mcdonald No. DCCIV-99-1044

B&N Agencies Pty Ltd -v- McDonald & McDonald
[2001] SADC 28

Judge Anderson
Civil

By Application, dated 22 March 2000, the First Defendants seek to have an injunction and associated orders set aside.
A specially returnable application for injunction and Anton Pillar order, with supporting affidavits, was lodged in this Court on 26 July 1999. At that time, an Inter Parties Summons with Statement of Claim annexed was filed at Court and the appropriate fee paid. Thereupon, the action was given a file number. The application for injunction was issued and made returnable at 9.30am on 27 July 1999.
At that time, an ex‑parte order for injunction was made.
On 29 July 1999, the First Defendants, through their legal representatives, gave an undertaking until further order and upon so doing the injunction orders against them were discharged. To date that undertaking has not been varied or withdrawn.
A Statement of Claim was filed on 16 June 2000.
Mr Downs appeared for the Applicant/First Defendants and Mr Robertson for the Respondent/Plaintiff in this Application.
Mr Downs submitted that this Court does not have jurisdiction to issue an interlocutory injunction where pleadings have not been issued. No issue arises as to that power where pleadings have been issued.
In support of his submission that, by virtue of the provisions of s8 of the District Court Act, this Court does not have concurrent jurisdiction with the Supreme Court, Mr Downs relied upon what fell from the Full Court in Sherriff v Dudley [2000] SASC 324.
In that case, Lander J, with whom the other members of the Court agreed, pointed out that s8(1) of the District Court Act does not give this Court a concurrent jurisdiction with the Supreme Court. It merely invests it with the same jurisdiction as is described in s8(1) subject to the there following qualifications.
Section 8 of the District Court Act is in these terms:
“8(1)......... The Court has the same civil jurisdiction (both at law and in equity) as the Supreme Court at first instance subject, however to the following qualifications:
(a) the Court has no jurisdiction in probate or admiralty;
(b).... the Court has no supervisory jurisdiction except as expressly conferred by statute with respect to inferior courts or tribunals, or with respect to administrative acts, and has no jurisdiction to grant relief in the nature of the prerogative writ.
(2)............. The Court, in its Criminal Injuries Division, has the jurisdiction conferred on it by the Criminal Injuries Compensation Act 1978.
(3)............. The Court, in its Administrative and Disciplinary Division, has the jurisdiction conferred by statute.
(4)............. The Court has any other civil jurisdiction conferred by statute.
(5)............. All proceedings before the Court, other than in its Criminal Division, are to be regarded as civil proceedings for the purposes of this Act or any other Act or law.
(6)............. Subsection (5) does not affect any special rule as to the conduct of proceedings for a contempt of Court.”
Mr Downs referred to s29 of the Supreme Court Act which gives that Court power to grant, inter alia, an injunction by an interlocutory order where it appears “to be just or convenient so to do” Section 29 is in these terms:
“29(1)...... The court may grant a mandamus, or an injunction, or appoint a receiver, by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do.
(2)............. Any such order may be made either unconditionally or upon such terms and conditions as the court thinks just.
(3)............. If an application is made (whether before, or at, or after the hearing of any cause or matter for an injunction) to prevent any threatened or apprehended waste or trespass, the injunction may be granted, if the court thinks fit, whether the person against whom the order is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable.”
He noted that s30 of the District Court Act refers to “the subject matter of an action” when reciting the powers to make injunctions. Section 30 is in these terms:
“30........... In any action arising out of the breach of any covenant, contract, or agreement, or instituted to prevent the commission or continuance of any wrongful act or for the specific performance of any covenant, contract, or agreement, the court shall have power to award damages to the party injured either in addition to or substitution for the injunction or specific performance, and those damages may be assessed by the court or in such manner as it directs.”
Upon the authority of Des Salles d’Epinoix v Des Salles d’Epinoix [1967] 2 AER 539 he submitted that there exists in this Court no power to make an injunction where there are no pleadings in existence so as to enable a party to properly argue the convenience point before any such order is made. That there exists such a power in the Supreme Court because it has wider powers which have not been limited in any way is not in issue. This proposition requires that s30 of the District Court Act be read down so as not to encompass interlocutory injunctions generally.
Mr Robertson took issue with the proposition advanced in support of the contention that the power of this Court to grant injunction relief is conditional upon the existence of pleadings.
He referred to there being no such limiting factors in s30 of the District Court Act. There is no implication in the words of the section so as to reasonably imply additional criteria before the power there given may be invoked.
Each counsel has made mention of what Lander J said in Sherriff. It is of significance that when discussing s8(1) of the District Court Act, the learned Judge said:
“The District Court has the same civil jurisdiction to hear any action brought at common law or equity and to give the same relief or remedy as the Supreme Court might in any action based upon common law or equity.”

The qualification in s8(1) limits the jurisdiction of this Court. Subject thereto, the District Court Act has the same jurisdiction as the Supreme Court when regard is had to the principle that in fixing these jurisdictions Parliament is not to be seen to be in conflict with itself.
The use of the word “action” in s3 of the District Court Act and Rule 5 of the District Court Rules is synonymous with the word “proceeding”. I am not of the view that this word has a particularly narrow meaning for the purpose of its use in s30 of the District Court Act. Interestingly, the word “action” is not mentioned in s29 of the Supreme Court Act.
The provisions of s8(1) do not provide a basis for the distinction between the powers of this Court and those of the Supreme Court as set out in s29 of the Supreme Court Act. Neither do the Rules of Court assist in founding such a distinction. The jurisdiction to hear an application for an injunction in the circumstances as they existed on 27 July 1999 arose as a normal incident of the hearing of “any action brought at common law or equity” (Lander J). This was such a proceeding and consequently, there was jurisdiction to entertain the application on that day.
In these circumstances, I have not stayed to consider what, if any, consequences flow from the undertaking given on 29 July 1999 by the First Defendants’ legal representatives.
The application is refused. I shall hear the parties as to the question of costs.

[2001] SADC 28

2 March 2001