Boddy & Collins Pty Ltd v Ampol Petroleum Ltd

[1981] FCA 113

CQMMONWEALTH REPORTING SERVICE

Clty Mutual Eulldlng, PRINCIPAL REPORTER,

Hobart Place,

AUSTRALIAN CAPITALTERRITORY

CANBERRA CITY, A C T. 2601

PO. Box 476

Telephone: [phone]

CORRECTION TO TRUTSCRIPT

In the matter of BODDY and COLLINS PTY LIMITED and

Nlcholas DESNOND, Marlon Gertrude DESMOND and -4rIPOL

PETROLEUM LIPIITED, heard in the Federal Court f Australia

before Fox J, at Canberra on Thursday, 2 July lgSl, please

substitute pages 127 - 143 for transcrlpt previously

issued.

ThIs transcrlpt has been re-lssued at the request of

the court, to Incorporate the Judgment	delivered by the
Court.

I

W. J . MILLS	Prlncrpal Reporter
13/7/1981

per:

I

That unless otherwise authorized and

dlrected by the sub-lessor the sub-lessee

wlll sell and use In hls buslness only

petroleum products supplied or dlstrlbuted

by Ampol Petroleum Llmlted or Its agents

under the terms of that company's normal

tradlng agreement from the date hereof

untll 29 March 1983 and thereafter that the

sub-lessee wlll only sell and use In its

business petroleum products supplled or

dlstrlbuted by such petroleum company (if

any) with whom the sub-lessor shall have

a trading agreement coverlng the said

block 1 section 12 Fyshwlck at that tlme.

Even at common law the effect of that clause must

be a matter for debate but it 1s a provlslon of the

sub-lease whlch 1s especially polnted to in the

present proceedmgs.

On 1 July 1976 the applicant entered into an

agreement called a "resellers agreement" with Ampol.

It vas in substance an agreement for the sale and

purchase of petrol for an lnltlal perlod of 38 months

from 1 July 1976, termmable on notice thereafter.

There were ancillary provislons about the loan of

equipment by Ampol and powers in Ampol t remove

the equlpment in certaln circumstances. The principal

part of the equlpment comprlsed four underground tanks and flve electrlc pumps or b vrsers. In certain

circumstances the appllcant had an option	o purchase
the equipment or part of It.

On 17 March 1981, wlth effect from 1 February

1980 to 31 January 1985, the Desmonds entered into an

agreement with Ampol. The exact purpose and effect of thls agreement 1 s not clear and as it has not been

discussed at any length before me I shall not deal

with It beyond referring to two matters. One	1s
clause 5, which is in the following terms:

Ampol agrees mth Desmonds that it shall

during the term hereof use its best sub-lessees marketing Ampol petroleum products

endeavours to asslst thelr present sub-lessees

to improve the method f operation of the

motor garage and service station busmess

carrled on at the premises wlth a vlew to

increasing, where possible, the level of

sales of Ampol motor spirit, dlstdlate and

lubrlcant oil therefrom.

The other matter is that under the agreement

the Desmonds were to receive commisslons and In

particular were to receive a commission of 2.2 cents

per lltre on the petrol sold at the servlce statlon

bopet 2.7.81	129
t5f 4 par

conducted by the appllcant. Mr Collins has said that he was unaware of thls commission agreement. He had sought through the Desmonds the grant of a

subsldy of one cent per lltre from Ampol and for

much of the time he recelved that amount from the

Desmonds, but he says he rras qulte unaware of a

further amount, being pald by way of commlsslon

to the Desmonds.

In May of thls year there were dlscussions

between Mr Collins and Ampol or Its representatlves.

It is unnecessary to go into these in any detail.

M r Collins says that he was seeking a reduction In

price from Ampol and was at that time not able to

resell the petrol supplied by them at a proflt.

At all events, he looked elsewhere for petrol

supplies and obtained them at lower prlces than

those being charged by Ampol.

It would seem that for a time the petrol

supplled from the other sources was put Into Ampol's

tanks, and then bowsers were used. On or about

21 or 22 May of thls year Mr Colllns removed the Ampol bowsers and replaced them wlth others. Thls

1s apparently a fairly stralghtforward mechanlcal

procedure. Since then the service statlon business

has been carrled on with petrol supplied from the

other sources, only uslng Ampol's tanks. There 1 s

no dispute about the fact that the agreement between to supply petrol and the applicant does not have any obllgation to receive it.

the applicant and Ampol has been terminated and that

The intention of Ampol to remove its bowsers

or have them removed for it was made apparent a

little whlle ago. Their present intentlon, I

understand, 1s not to have any further dealings wlth

the appllcant. On the other hand, so far as appears,

I

the Desmonds have not taken any steps to terminate

the lease, o r llcence, as the case may be, of the

servlce statlon area.

There has recently been a spate of appllcatlons

to the courts. On 12 June last, In an actlon

number 716 of 1981, brought in the Supreme Court

of the Australian Capital Terrltory by the Desmonds

against the appllcant in thls case, Boddy and

Collins Pty Limited, Blackburn J. granted interlocutory

injunctlons. The relevant orders were as follolrs,

and I set them out:

It is ordered that the defendant by midnlght

on Monday, 15 June 1981, remove the petrol

bowsers presently erected on the plaintiff's

land, belng block 1 section 12 divlslon

Fyshwlck, other than those petrol bowers

bopet 2.7.81	130
t5f 5 par

o f t h e d i r e c t l o n s t h a t y o u r Honour might glve In

connectlon wlth t h e matter g e n e r a l l y would be I n

terms of s e t t l n g a t u n e t a b l e for the flllny of the

necessary documents by the respectlve partles.

HIS HONOUR: I do not know. d lscovery and o ther th lngs? What abou t l n t e r roga to r l e s and

MR BYRNE: The a p p l l c a n t - as t h e matter s t ands a t t h e moment -

would n o t be has a l r eady been d l scove red o r t han w a n t m g t o d i s c o v e r more, 1- t h lnk . t han

we a r e a l r e a d y

aware o f , t h a t h a s emerged l n t h e c o u r s e o f t h e many

a p p l l c a t l o n s t h a t h a v e come t o the cour t . The

respondents may, of course, wlsh t o i n t e r r o g a t e t h e

app l l can t , o r have d l scove ry o f t he app l l can t ' s

documents.

HIS HONOUR: Yes. A s f o r t h e flrst ma t t e r you mentloned, t h a t

1s not ready to proceed .

MR BYRNE: It 1s not , your Honour.

HIS HONOUR: I n a l l events I f It can come before m e a t a l l ,

it h a s t o come be fo re m e i n t h e a p p e l l a t e

J u r l s d i c t l o n o f t h l s c o u r t a n d we can walt and see -

you have got a document - what 1s t o be done

about It when you have. As t o t h e directions,

t h a t 1s perhaps a matter that needs t o b e g i v e n

more thought , bu t It seemed t o m e It mlght be

usefu l i f I s a l d s o m e t h l n g a b o u t a l l t h l s case. It 1s

g e t t l n g more confuslng by the hour and nobody ~ 1 1 1

I ever b e a b l e t o work out what has happened or what

vlevrs anybody had or anyth lng else so I I n 1 1 say

a b i t a b o u t It. I understand a t t h e moment t h a t

you are n o t p r e s s l n g m e t o t h e p o l n t o f d i s m i s s l n g

an a p p l l c a t l o n . If you were I would have t o know

more c l e a r l y w h a t t h e a p p l l c a t l o n was because

It has only been several o l d v a r l a t l o n s on a

document. However, I 1~111 say somethlng about it

and we can see where we then get t o . I t h l n k t h a t

1s t h e best th lng and i f t h e r e 1s anythlng I have

s a l d which 1s wrong t o any subs t an t l a l deg ree you

can mentlon it t o m e a t the conc lus ion , bu t I do

th lnk It 1s d e s l r a b l e t ha t I t r y t o p u t t h e t h m g

I n some s o r t o f o r d e r , b o t h for my own sake and

for the sake of anyone else who h a s t o p l c k it up.

!

bopet 2.7.81	127	MR	BYRNE
t 5 f 2 pc

I am hearing an application under the Trade

Practices Act 1974 for an interlocutory inlunctlon. provlslons of s.47. The applicant is a company which

carrles on the buslness of a petrol service statlon at Fyshwlck in the Australian Capltal Terrltory. It

has been operatlng on	the same slte	for about five
years.

The flrst respondents - Mr and Mrs Desmond -

are by definrtion a corporation for the purposes of the Act. They are the lessees from the Crown of the

land on which the business I have mentloned 1 s

carried on and of other land contiguous wlth It.

The second respondent has, untll recently,

supplled to the appllcant the petrol it sells and

for that purpose has provided the necessary bowsers

and storage tanks.

The Desmonds origlnally leased land to the applicant by memorandum of sub-lease dated 29 June

1976 for a period of three years from 29 April 1976. further lease of the same land was granted to the applicant for a term of three years from 29 March 1980. The grant is expressed to be of "that portion

of the building erected on block 1 section 12

Fyshwick, being areas 2B on sub-lease plan number 279

and areas 3 and 4 on sub-lease plan number 256". The

area thus described excludes the whole of the area

used for the operatlon of the servlce statlon except

I

that a cash register used In connection therewith

is located on part of the area demlsed.

Mr Collins, a director of the applicant, who

manages the service station on Its behalf, says that

he had always thought that the lease included the

service station area. I understand there is some

dlsagreement concerning the exact location of the

boundaries of the lease but there seems not to be

any agreement that the lease shocld include the

service station area. However, the servlce station

vas set up with the full concurrence of the Desmonds

and has continued to be op rated wlth thelr approval.

The sub-lease contains requirements concerning It. Presumably the only payment the Desmonds have received for the use of the land by the appllcant

I	has been that stipulated for as rent under the
sub-lease. The part of the land ex?ressed to be
demlsed would not permit of the conduct thereon of even the smallest servlce station.

Clause 5(g) of the sub-lease is In the

followlng terms:

!

bopet 2.7.81	128
t5f 3 par

PRINCIPAL REPORTER,

I

City Mutual Bulldmg,

!

Hobart Place, AUSTRALIAN CAPITAL TERRITORY

I

CANBEARACITY.ACT.2601

I

P.O. Box 476

Telephone: [phone]

CORRECTION TO TRANSCRIPT

In the matter of Thomas William BELL and Garv Ian

GRIFFITHS, heard in the Australia before

Fox, DavIes Morling Tuesday, and 14

April 1981 , please substitute pages	23 - 27 for transcript
previously issued.

This transcript has been re-Issued at the request

of the court, to Incorporate the judgment delivered by the

Court.

W . J. MILLS

Princrpal Reporter

13/7/1981 . .

per:

the property of Ampol Pctrolcwn Limlted,

and it 1s further ordered that he

defendant be restrained until further

order from erectlng on the said land

bowsers other than those	the property of
wpol Petroleum Limited.

It 1s apparent that the effect of these injunctlons,

having in mind the Intentions of Ampol, is to

prevent the appllcant from carrying on business.

I am told by counsel for the Desmonds that there

was not at that time evidence before His Honour as

to the lntentlons of Ampol.

On 19 June 1981, In the Supreme Court of the

Australian Capital Territory, in proceedings

number 816 of 1981, in whlch the present appllcant

was plalntlff and Ampol Petroleum Llmlted was the

defendant, Connor J. granted two injunctions. One

was on the appllcation of the defendant, that 1s

impol, and it vas in the following terms, and	I
set them out:

It 1s ordered that the plaintiff, its

servants and agents be restralned from

preventing or hlnderlng the defendant,

Its servants	or agents from enterlng onto
the premises	on or after 25 June 1981,

at the corner of Canberra Avenue and

Yallourn Street, Fyshwlck, at which the

plaintiff conducts the buslness of garage

proprietor and service statlon operator,

for the purpose of removing the equipment

or any part thereof llsted In the schedule

attached to the aforementioned notice of

motion.

The schedule, I am told, referred to, or included,

the bowsers and the storage tanks.

On the same occaslon, the learned Judge granted

an lnjunction on the application of the plalntiff

- that is to say the appllcant In the present

proceedings before me - and the order then made was

as f 011011s :

It is ordered that the defendant and its

subsidiaries and agencies be restrained

from interfering wlth or rendering unusable the petrol pumps, petrol storage tanks, pipes and other equipment associated with

delivery, storage and sale of petroleum

products located in, on, about or beneath

the buildings and lands occupied or used

by the plalntiff at the corner of Canberra

bopet 2.7.81	131
t5f 6 par

I

Avenue and Yallourn Street, Fyshwlck, in

the Australian Capltal Territory In connection

with the conduct by the plalntlff on that

site of the busmess of garage proprletor

and service station operator.

i '

I understand that his Honour made it plain at the I

tlme that he was dealing in this injunction 111th

damage to the equipment mentioned rather than

removal. In this way the two orders he made are

reconcilable.

The present application before me was flled on 30 June and was heard by the Court as a matter of

urgency. There are many orders sought in the

applicatlon. As I have already indlcated, the

immediate rellef sought is an injunction. It is

relevant to observe at thls stage that it 1 s

!

established by authority that a court should not

grant an interim declaration as a declaratlon is

always meant to be a final statement of the rights

I of the parties (see Internatlonal General Electrlc

Co. of New York Limited v Commlssloner of Customs

and Excise (1962) ch 784; (1962) 2 All ER 398) -

In substance, what the applicant seeks before me is an Injunction which will have the effect of

enabling it to install other bowsers - that is to

say bowsers other than those of Ampol Petroleum

Llmited - to enable it to carry on its business.

Consistently with the earlier orders to which I have

referred, the Ampol bowsers have been restored, and,

as I understand, they are presently in use. Ampol

threatens to remove them at the very first

opportunlty.

In the appllcation before me, reliance was

orlglnally placed on s.47(9) of the Act, but

rellance was later also placed on s.47(8). The

partlcular paragraphs which are now relied upon are

paragraph (c) of S . 47 (8) and paragraph (d) of

s.47(9). These the sub-sectlon (1) of s.47 whlch simply says: of course are both o be read wlth

Subject to this section, a corporation

shall not, In trade or commerce, engage

In the practice of excluslve dealing.

The other sub-sections to which I have referred are

really exegetical of that	sub-section. If the
particular paragraphs can	be relied upon there is no

need f o r an inquiry to be undertaken concerning a substantlal lessenlng of competitlon, as required in relation to other provlsions by sub-section (10).

I

I have not fully explored the appllcation of

these provisions and have not heard counsel for the

respondents thereon. Having heard most of what

bopet 2 - 7.81 132

t5f l par

I	counsel for the appllcant wanted to put to me about those matters I was nevertheless drlven to an
lnquiry as to how I could grant the rellef sought, Supreme Court, and more particularly the second of having in m m d the orders already made in the
the injunctlons granted by Blackburn J. It will
be recalled that he ordered that the present
applicant be restralned from erectlng o the land
bowsers other than those of Ampol.
The appllcant here claims the right nevertheless to do Just that. The restraint imposed by his
Honour did not extend to other equlpment but I
think it is academic to conslder that separately
If there is no way of dellvering the petrol to
customers through bowsers. In any event his the other equlpment supplled by Ampol.
Havlng indicated my concern to counsel for the applicant and havlng discussed wlth him some possibilities to meet the particular difficulty, he
did late yesterday and earlier today make applicatlons
to Mr Justice Blackburn as Chlef Judge of the
Supreme Court of the Australian Capital Terrltory.
At or before that tlme, so I am told by counsel, a
notice of appeal agalnst his Honour's interlocutory
order, to which I have referred, had been lodged
by the applicant.
His Honour, order in respect of the inJunctions granted by him on 12 June. In proceedings number 816 of 1981 hls I am told, declined to make any
Honour dissolved the inJunctions granted by Connor J.
on 19 June. He made further orders, the short
effect of which was to repeat the first of the
orders made by Connor 3 . but with the deletion of
the words "on or after 25 June 1981" thus having
an injunction which In form operated immediately
to prevent the applicant, Boddy and Colllns Pty premises for the purpose of removing Its equlpment. However, Blackburn (2.3. stayed the operatlon of the fresh order thus made by hlm until further order.
The effect of all this is that Ampol can enter on the premises for the purpose of removlng its bowsers
and other equipment and the present applicant IS,
for the time being, free to resist any such removal.
I imagine his Honour's purpose was to enable the
appllcant to see whether he could obtain some order from this court whlch would enable the applicant to resist any removal by Ampol.
The fact remains, however, that there is the lnjunctlon granted by Blackburn J., which is now
under appeal, and any order of any practical use
to the applicant whlch I could make would directly
contravert his Honour's order.

bopet 2.1.81	133
t5f 8 par

The problem problem lnherent In t h a t a r i s e s can be seen a s a

the ex i s t ence of o r l g i n a l

ju r l sd i c t ion in bo th Fede ra l and Te r r l t o ry Cour t s

and t h e same problem could of course exlst between

Federal and doub t l e s s a problem t h a t ~ r l l l State Supreme Courts . Thls i s

be w l t h u s f o r a

long t i m e and I	do no t sugges t	it has any easy or
ready reso lu t ion .

The most the cour t s can do , or a t least t h e

most t h l s Cour t can l i k e l y t o b e c r e a t e d b e c a u s e o f t h e c i r c u m s t a n c e t o do, is t o minimize the d is rupt ion

which I have r e fe r r ed and , a t t he same t i m e , t o t r y

and p rov ide r eady ju s t i ce to pa r t l e s i nvok ing the

j u r i s d i c t i o n o f t h e C o u r t a n d e n s u r e t o them t h a t

t h e i r r i g h t s u n d e r f e d e r a l l e g l s l a t l o n a r e n o t

ignored or set a t nought.

This Court must, as a ma t t e r of comity, recognlze

t h e j u r l s d l c t i o n and powers of cour t s of coord ina te

j u r i s d l c t i o n . It is n o t uncommon i n t h i s c o u r t t o

r e s t r a m par t ies from proceedlng with or commenclng

a c t i o n s i n o t h e r c o u r t s i n c l u d l n g S t a t e Supreme

C o u r t s , b u t t h i s i s because o f t he spec la l e f f ec t

of r e l e v a n t encountered f e d e r a l laws. I have not myself prevlously

the p re sen t t ype o f s i t u a t i o n where an

i n j u n c t l o n has been issued and t h i s C o u r t i s asked

t o r e n d e r It nugatory. It seems t o me t h a t t h e

only way t h l s c o u l d be done would be t o o r d e r t h e

r e l e v a n t p a r t y or p a r t l e s n o t t o t a k e any steps t o

en fo rce the in junc t lons o r o the rwise execu te on t h e

orders which have been made. This , it seems t o m e ,

would be a s e r i o u s s t e p and one not comporting wlth

the pr lnc lp le of comi ty to which I have re fer red .

I do n o t s a y t h a t It can never happen but it would

be a ma t t e r of las t r e s o r t .

HIS Honour, Justlce Blackburn was, I am told by .

- counsel, informed today of t h e d l f f l c u l t i e s t h a t I

had seen but he took the course whlch he did and it

is n o t €or m e t o make any critlclsm of It a t a l l .

I s h o u l d s a y t h a t t h l s matter of comity so f a r a s

it a f f e c t s t h i s C o u r t h a s b e e n t o some e x t e n t d e a l t

wi th by Bowen C . J . i n Hughes Motor Serv ice P ty L l m l t e d

I v Wang Computer Llmited ( 2 ATPR 40-098, p- 17961) -

Having r e f e r r e d t o t h e aspect of comity, I

should say t h a t It seems t o m e t h a t t h e r e were ways

i n which the d l f f l cu l ty cou ld r ead l ly have been m e t

and the p re sen t s i t ua t ion avo lded . A t l e a s t , t h l s

can be an injunct lon seen in re t rospec t . When t h e a p p l i c a t l o n f o r

w a s made by t h e Desmonds i n a c t i o n 716

of 1981 it was open to counse l t o p re s s a rgumen t s

upon h l s Honour by way of defence , based d i rec t ly

on the Trade Pract ices Act , and s .47 the reo f . The

law enunclated i n t h e A c t i s a f e d e r a l law of

g e n e r a l a p p l i c a t l o n so f a r a s i t s terms extend.

bopet 2.7.81 134

t 5 f 9 p a r

!

It is, of course, the fact that relief under the Act is, speaking generally, obtainable exclusively ln thls Court. If pressing an argument based on the

Trade Practices Act had lead to any compllcatlon, having in mind the exclusive vestlng of jurisdlctlon to grant relief in this Court, it would have been

open to counsel to ask for a short adjournment for

the purpose of making an appllcation t thls Court.

It would then have be n possible to deal 111th the

matter uninhlbited by any InJunction granted by the Supreme Court. In the clrcumstances of thls case it is quite likely that thls Court could have dealt

with almost, if not the whole, of the situation

arislng between the parties. Nelther of the courses

mentioned were followed. There may have also been

others that could have been adopted. I mention the

situation not by way of crltlclsm of anyone but

Just to indicate that difficulties can arise unless

the situatlon which has now come about	1 s anticlpated
as a posslblllty.

Although I have not to this polnt been asked

I	by counsel for the applicant to make a formal order
in respect of the appllcation, I can make It clear
that I would not make an order running counter to
the injunctlon granted in the Supreme Court and I
would not make an order preventing any of the
parties from enforcing the inJunctions already
obtained. It ls, of course, to be remembered that in all Courts the applications have been of an
I	lnterlocutory nature.

bopet 2.7.81	135
t5f 10 par

HIS HONOUR: Well, I t h i n k may be somethlng else t h a t I have overlooked. t h a t is about a l l , M r Byrne. There

MR BYRNE: There were two matters t h a t r e f e r r e d t o - - -

HIS HONOUR: It he lps t o p u t t h e t h i n g i n some s o r t o f

t o t a l frame, I th ink .

MR BYRNE: Y e s , indeed and we are obl iged t o your Honour I

f o r t h a t . T h e r e are two t h i n g s tha t o c c u r r e d t o

m e , your Honour, and one was t h a t t h e o r d e r s made

by h i s Honour M r Jus t lce Blackburn were, as t o

yes t e rday evenlng , i n r e f u s i n g t o do anyth lng in

connec t lon wl th the InJunct ion of 1 2 June.

HIS HONOUR: I see. I thought t ha t was the morning.

MR BYRNE: N o , t h l s morning was concerned wi th the orders

of 1 9 June.

HIS HONOUR: Well, I should say by way of correction t o what

I have a l r eady sa id t h a t t h e a p p l l c a t l o n t h a t c o u n s e l now informs m e

t o M r Jus t i ce Blackburn i n

respect of h i s own - t he InJunc t ion g ran ted by

hlm was made la te yesterday. It must have been

very l a t e I imaglne.

MR BYRNE: It was very l a te , your Honour. The second

matter, your Honour, 1s t h a t a c lose exammat lon

o f t he memorandum of sub-lease wlll show t h a t t h e

area lease t o Boddy & Col l ins P ty Llml ted was

n o t t h e t h r e e acres,two roods and 15 perches.

HIS HONOUR: Was It not?

MR BYRNE: But it was t h a t p o r t i o n o f t h e b u l l d l n g e r e c t e d

on t h o s e areas descr ibed . The wordlng 1s a l l t t l e

b i t - not fo l lowlng i t se l f b u t It d e a l s wi th - - -

I HIS HONOUR: It seemed a l o t f o r what he had I know, it

seemed t o m e - - -

MR BYRNE: It i s v a s t l y more than he had, yes. I t h l n k t h e

i n t e n t of t h e lease - - -

HIS HONOUR: The lease shou ld su re ly set o u t t he re , shou ld

It not , the area demlsed.

MR BYRNE: Yes, I think what It says - It says i n t h e o r i g l n a l

lease of -‘,no, I a m sorry, your Honour, the lease

t h a t was e x e c u t e d i n 1980, a t least my copy of it,

desc r lbes it areas 28 on SL p lan 279 and area a s b e i n g “ t h a t p o r t i o n o f t h e b u l l d i n g

erected on block 1, s e c t l o n 1 2 , Fyshwick, being

3 and 4 on SL plan

no 256 o f t he	bui ldmg erected on a11 tha t plece of
l and con ta in ing	th ree acres, two roods, 15 perches.“

bopet 2.7.81 136 MR BYRNE

t lOf 1 cr

HIS HONOUR: Well, that should be, should it not, the area

demlsed?

M R SALMON: No, It 1s the whole of the land in the certlficate

of title, your Honour. I agree It is not very

artistic but it is Just describing --for some reason

In these forms you set out the whole of the area contalned in the certlficate of tltle.

HIS HONOUR: Yes, I see, belng the whole of the land comprised

in a certlficate of title.

FIR SALMON: Part of the whole in other words. Why it 1s

extra typlng - it no doubt adds extra costs for

conveyances, your Honour.	You are able	to type
In a bit more there.

HIS HONOUR: Yes, lt gets even more double dutch as it goes

on. But your point 1 s that It 1s not the same

area although probably it had the same descriptlon.

I have not checked the descriptlon, in fact, there

are some words written in the first lease whlch

I cannot qulte follow. Perhaps It is third and

fourth In somethlng, so I Just took the measure,

but I see what you say.

MR BYRNE: I must make It clear, your Honour, that I will

be invltlng the court to interpret the lease in

a manner that - thls is, when the matter comes on

for hearmg - interpret the lease in a manner

that 1s favourable to the lessees.

HIS HONOUR: Well, you can have It interpreted or you can have

It rectifled.

MR BYRNE: That is so, your Honour, yes. I do not say

that what your Honour said 1s not correct ultimately

but It is not that that the - - -

HIS HONOUR: No, well I did not mean to be expresslng somethlng

- I dld not mean to be givlng you that land

In a recltal of the facts, Mr Byrne.

M R BYRNE: It is Just at this stage I have not alleged that

- - -

HIS HONOUR: I can see that It was really my error notwlthstandlng

- I might have had a lot of excuse for it but - - -

MR BYRNE: Because I have not yet alleged that we have a lease

of three acres.

HIS HONOUR: Yes, I follow. Well, I trled to leave it open

in what I sald for you to seek to have the lease

Interpreted favourably to you and also to have It

rectified if you wanted to. I am not lnclting you

to do those thlngs but I just left It open for you

to do It. The reason I cited one of those or set

bopet 2. l . 81 131 BYRNE MR

tlOf 2 cr

out In full a couple of those passages was Just

because of what seemed to be the amblvalence about

what vas comprehended In the lease.

MR BYRNE: Yes.

MR SALMON: Your Honour, there 1 s one other matter

In your Honour's remarks whlch may have been the result of some lnformatlon your Honour had whlch

his Honour Mr Justlce Blackburn dld not have.

Your Honour said that the lntentlon of his Honour's inlunctlon was to prevent the applicant from carrylng on business, that is my note. That 1s the

part of the Injunction which lnslsted on only

Ampol bowsers being on the property. I am

sorry, It mlght have been the - your Honour said

the effect of the injunctlon rather than the

Intention. I am not quite certaln whlch one.

HIS HONOUR: I think probably I could have - I meant to.

MR SALMON: At the tlme hls Honour made that order there had

been - well, I wlthdraw that. There was no

evldence before hls Honour of any termlnatlon

of the Ampol trading agreement. I am not certaln,

and I do not know exactly what the fact was as

to whether Ampol had In fact dellvered some

termlnatlon or lndlcatlng the intentlon to

termmate, but that	was not	In fact In evldence
before hls Honour.

HIS HONOUR: Well, I cannot deal wlth the evldence that he

had. I am not sure what I sald but what you have

just sald has been noted and I wlll have a look

at what I sald In the light of It and I may amend

it. But I thlnk I probably sald, dld I not,"the

effect ln the light of Ampol's intentlons."

MR SALMON: Yes, your Honour dld say that. Those intentlons were not necessarlly before - In fact on my

recollectlon they were not before hlm.

HIS HONOUR: NO, well I am Just saylng, well If you llke,

that is the effect.

MR SALMON: That is the present effect, certalnly, your

I Honour.

MR BYRNE: I can tell your Honour that hls Honour b l r Justlce

Blackburn dld not know of the exlstence of the

notlce. It was In fact dellvered Into hls Honour's chambers but the contents of It were

not communlcated as I recall.

HIS HONOUR: Well, let us get on. Now, that is where we

stand. What do you want to do? Do you want to

get dlrectlons or - - -

bopet 2.7.81	138	MR	SALMON
tlOf 3 cr

i MR BYRNE: Yes, your Honour. I can lnform your Honour

that - - -

I

HIS HONOUR: What I wlll do then 1 s - I will Just stand

over the hearlng of this application untll the

hearlng of the action.

MR BYRNE: Yes. As I lndicated to your Honour a

statement of clalm could be flled xrlthln the

week, probably Wednesday. The applicant at

thls stage In any event - - -

HIS HONOUR: What I would prefer you to do, rather than

me slt here as a clerk, 1s to work It out between

yourselves what to do and I wlll deal wlth

those later if you want to, but it should be

posslble for you to make known to each other

whether you want dlscovery or interrogatorles

or what. If you do not, well that slmpllfles

I

thlngs and would shorten the tlmetable.

MR BYRNE: Yes, qulte.

HIS HONOUR: They may want you to amend your appllcatlon.

I glve you leave to amend It generally too, If that

1s any help to you. I stand over the further

hearlng of It untll the hearlng of the actlon.

MR BYRNE: Yes, thank you. Your Honour, I foreshadowed

shortly after the luncheon adjournment that

the appellate Jurlsdlctlon of the court had

been invoked and that there would be an

appllcatlon by way of notlce of motlon pursuant

to the lodgment of the appeal.

HIS HONOUR: Yes.

MR KELLER: Well, before my frlend moves on to another

matter, your Honour, and I take It is another

matter to which I am not a party, or my cllent

1s not a party - - -

MR BYRNE: That 1s so.

HIS HONOUR: Yes, that 1s rlght, you are not.

MR KELLER: Your Honour, in so far as thls application -

the appllcatlon to vhlch Amp01 1s a party, I

would ask that your Honour glve consideratlon

at thls stage to maklng an order for costs.

Your Honour has power to make an order for costs

as contained m sectlon 43 of the act which

makes the award of costs in the absolute dlscretlon

of the court or a Judge. Your Honour, order	62
rule 3, provldes:

That the court may In any proceeding

proceedlng. . . - - . - . - .conclusion of the

bopet 2.7.81	139	MR	KELLER
tlOf 4 cr

HIS HONOUR: Yes.

MR KELLER: Sub-sectlon ( 2 ) of that rule, your Honour,

provldes :

Where the court makes an order In

any proceedlng. . . . . . .is not concluded.

Your Honour, It 1 s a llmited applicatlon for

costs. It is not an appllcatlon for an order

for costs agalnst the appllcant In relation to

the costs of yesterday and today because as the

appllcatlon now transplres, your Honour, it

1 s merely an appllcatlon for directlons and that

could have been dealt with on Tuesday afternoon.

That riould be my submlssion, your Honour, I would

not want	to put anythlng further	to you about
that.

HIS HONOUR: Yes. Well, I do not know. Costs are

always a dlfflcult matter as I have sald so

mny hundreds of tlmes as I have sald before now.

But what I had In mlnd was that we dld strlke

an unusual situation whlch was, I suppose,

avoldable but In a sense not a matter of

an Issue between the partles so much as a result

of what had been done elsewhere. You had moved

In one case and the Desmonds had moved ln

another. The case 1s part heard. You are a

party to the actlon, the present actlon, I assume

that - if, of course, any one moved to have It

struck out or somethlng, well then you can

ask for costs, otherwise you have an opportunlty

later -

The merlts of the present appllcatlon have not been fully explored. You are rlght that

r7e are now movlng on to dlrectlons and you are

rlght that they could have been obtalned on

Friday afternoon, although I suspected It would

have taken about a day to explaln to me what

It was about. I thlnk the only way In whlch the

court can really form a vlew as to the merlts,

which wlll Include to some extent the procedural

aspects of It, If I can put it that way, 1 s to

walt untll the actlon is heard or isposed of in

some way. What I thought to do was just to

reserve costs. I do not llke doing that s a rule

because you do not know who hears the actlon and

even If you hear It yourself you do not k w what

the - you cannot recall all the circumstances.

I thlnk that 1 s all I can do really, that IS,

reserve costs.

MR KELLER: If your Honour pleases.

H I S HONOUR: Dlrections are one thlng. What I have done 1 s

sald. well, you can get together about dlrectlons.

Now, If you would llke to do that now I will adJourn

bopet 2.7.81	1 4 0	MR	KELLER
tlOf 5 cr

t

and you can l e t m e know whenever you have flxed

It. But you are no par t of what I nnderstand

Mr Byrne now wants t o proceed wlth. So you

p lease yourse lves whlch way r r e go.

MR BYRNE: Well, perhaps your Honour mlght ad journ for

a few mlnutes so t h a t we mlght cons lder the

d i r e c t l o n s matter	and then dea l	with
t h i s a s p e c t .

H I S HONOUR : ~ l l r l g h t . I wlll adjourn now for a

shor t whi le .

I

bopet 2.7.81	141
t lOf 6 cr

MR SALMON: Your Honour, just before your Honour leaves the appllcatlon with whlch your Honour has already

been dealing, as I understood It your Honour stood

over the further hearlng of that appllcatlon to the

hearing of the actlon and granted leave to the applicant to amend the appllcatlon generally and reserved the questlon of costs. Your Honour

lndlcated your Honour's lntentlon to make the

second two orders.

HIS HONOUR: I beg your pardon?

MR SALMON: Your Honour lndlcated that you were contemplatlng

making those second two orders: I assume your Honour

intended to make them. I do not wlsh to be heard

on them.

HIS HONOUR: I make them on the basls if they want to bring

on an appllcation in an interlocutory way they can

amend the application and do that.

bm BYRNE: Your Honour we dlscussed the matter of directlons outside. The general view was that the only

directlon sought at the moment would be that the

applicants flle the statement	of clalm by 4 pm on
Wednesday next.

HIS HONOUR: Yes.

MR BYRNE: At that time the several respondents would be In

a better sltuation to know the case they are meetlng

and those directlons that they should seek.	Is
that rlght?

NR SALMON: Yes.

HIS HONOUR: And when do you want the further hearing on

directions?

MR BYRNE: We had thought that a date would be flxed for that,

I your Honour; that the parties would have leave to

seek a dlrections hearing following upon the servlce

of the statement of clalm.

HIS HONOUR: All right. It is better to flx a date if you can.

All I wlll do by way of directlons at this stage i

order the applicant In matter ACT G 17 of 1981 to

flle and serve statement of clalm before 4pm next

Wednesday, 8 July, and I stand over the further

hearlng of dlrectlons to a date	to be fixed by
the dlstrlct reglstrar.

MR SALMON: On three days notlce by any party, your Honour?

bopet 2.7.81	142
tllf 1 J1