Boddy & Collins Pty Ltd v Nicholas Desmond

[1981] FCA 275

JUDGMENT No. 2-75	........ ........ .	J .... .... ..
J

IN THE FEDERIL COURT OF AIJSTRALIA ) -l

AUSTRALIAN	CAPITAL	TERRITORY	5
) No. ACT G 18 oE 1 9 8 1

REGISTRY DISTRICT 1

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DIVISION GENERAL j

BODDY 6 COLLINS PTY. LIMITED

Appellant

NICHOLAS DESMOND and	IMARION
GERTRUDE DESMOND

Respondents

Coram: Fox J

7 July 1981

Canberra

I have now heard argument as to whether or not

a stay should bc granted. For the appellant the matter is put on both a practical and a legal basis. The position is - and it has not becn disputed - that if the injunction sought to be stayed is left in operation the appellant will

not be ablc to trade at all. It is said that this will lead

to financial loss and also loss of goodwill. Whilst it is

agreed that damages could be recovered under s . 6 2 of the

Tradc Practices Act 1 9 7 4 and whilst it is the fact that an

undertaking as to damages has been given by the present respondents when obtaining the injunction, it is said that these will lead to difficulties in calculation and

estimation and further proceedings may have to be instituted

for recovery. It is also said, on a practical l e v e l , that

a number of people - about a dozen - will be put out o f

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employment pending the hearing of an appeal and the

finalisation o f the present disputes.

On a legal basls I think the matter can be summed

up fairly shortly by saying that in the light of my earlier

reasons, given in the application under s.47 of the Trade

Practices Act, while the injunction in question remains in

. operation the appellant will not be able to succeed in that

application. It will be denied relief in this Court,

because of the injunction granted by the Supreme Court.

It is put that there is a reasonable prospect of

the appeal succeeding, and of the injunction in question

being dissolved or at least stayed until proceedings under

s .47 have been finalised in this Court. In the meantime,it

is submitted, the appellant should be permitted to trade,

For the respondents it is put that there is a

general rule against staying orders which have be n duly

made after hearing argument on both sides. The fact that an

undertaking as to damages has been given is emphasised. It

is said that the conduct of the appcllant to date has been

such that the stay should be refused.

An offer 1 s made, on behalf 01 the respondents,

to permit the appellant to move the petrol remaining in the

undcrground petrol tanks on the sitc. 'It is said, on behali

of the respondents, that thc appcllant has been treated as a

trespasser and therefore the respondents are in a dominant

posltion as to what should be allowcd and not be allowed to

be done on the land. It 1s at the same time common ground

that the licence has not been terminated, and certainly the

,

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l ea se has no t . The l e a s e p l a i n l y r e q u i r e s t h e a p p e l l a n t t o

c o n t i n u e t h e s e r v i c e s t a t i o n b u s i n e s s .

As I have mentioned in my r e a s o n s g i v e n i n r e s p e c t

o f t he app l i ca t ion unde r s .47 , t h e r e i s a p r o v i s i o n i n t h e

l e a s e t h a t o n l y Amp01 products w i l l be so ld . P r i m a f a c i e a t

l e a s t t h i s p r o v i s i o n is c o n t r a r y t o t h e T r a d e P r a c t i c e s Act

and, indeed, a p a r t i a l c o n c e s s i o n t o t h a t e f f e c t h a s b e e n

made in ea r l i e r co r re spondence by the p re sen t r e sponden t s .

When dea l ing wi th the app l i ca t ion unde r s .47 , I

gave a summary of t h e f a c t s a s I understood them t o t h a t

t ime. I then mentioned the problem which arose so f a r a s t h e

p r e s e n t a p p e l l a n t o b t a i n i n g r e l i e f was concerned, namely the

e x i s t e n c e a f t h e p r e s e n t i n j u n c t i o n . In p a r t , t h e p r o b l e m

a r i s e s a s I have men t ioned f rom the f ac t t ha t t he re a re two

d i f f e r e n t C o u r t s w h i c h h a v e j u r i s d i c t i o n i n r e l a t i o n t o t h e

s u b j e c t matter and t h a t it i s only this Court which can grant

r e l i e f unde r t he T rade P rac t i ces Ac t . In dea l ing wi th an

a p p l i c a t l o n u n d e r t h a t Act, and fo l lowing in the p r inc ip l e s

l a i d down i n t h e P h i l l i p M o r r i s c a s e , t h e C o u r t c a n c o n s i d e r

t h e g e n e r a l l e g a l p o s i t i o n o f t h e p a r t i e s and g ran t appropr i a t e

r e l i e € i f t h e f a c t s a r e t h e same or v e r y c l o s e l y s i m i l a r .

I do no t w i sh to say any th ing abou t t he l i ke l ihood

of success o r o the rwise o f t he appe l l an t on the hca r ing o f

t he appea l beyond saying that i t seems t o me t h a t t h e r e a r e

.

i n d i c a t i o n s o f a poss ib l e deg ree o f success , This will

largely depend upon the way i n which the matter was presented

t o t h e Supreme Court and what material was p u t i n be fo re t h a t .

Whatever happens i n r e l a t i o n t o t h a t a p p e a l , i t seems t o me

I

,

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t h a t some course has to be followed which enables the

a p p e l l a n t t o proceed i n t h i s C o u r t i n r e l i a n c e u p o n s . 4 7

of the Trade Prac t ices Act.

In the c i r cums tances , It seems t o me t h a t I

should grant the s tay which i s sought and I w i l l t h e r e f o r e

order tha t par t o f the order appea led f rom, which reads :

AVD I T IS FURTHER ORDERED t h a t t h e

defendant be r e s t r a i n e d u n t i l f u r t h e r

o rde r f rom e rec t ing on t h e s a i d l a n d

bowsers other than those the property

of Ampol Petroleum Limited.

b e s t a y e d u n t i l f u r t h e r o r d e r . . ' T h e s t a y i s g ran ted on t h e

unde r t ak ing o f t he appe l l an t , now g i v e n , t o t a k e a c t i v e

s t e p s t o e x p e d i t e t h e h e a r l n g o f t h e a p p e a l .

A s I u n d e r s t a n d t h e p o s i t i o n i n r e l a t i o n t o t h e

a p p l i c a t l o n b e f o r e me under 5.47 of the Trade Prac t ices Act,

s t e p s a r e b e i n g t a k e n t o b r i n g t h a t t o a f i n a l h e a r i n g a n d

I have alrcady given somc d i r e c t i o n s t o t h a t e n d . ,