Budget Rent a Car System Pty Ltd v Dewhirst, Allen - [1984] FCA 279

Trade Practices - misleading o r deceptive	conduct -
appllcatlon for interlocutory relief
Trade Practices Act 1974 (Cth) s . 5 2

BUDG!ZT RENT

A C A R SYSTEM PTY L I M m

v ALLEN DEWHIRST.

KAY RENT A CAR PTY LIMITED and DINERS CLUB LIMITED

NO. VG.217 OF 1984

Davles, J

16 August 1984

Melbourne

IN THE FEDEXAL COURT

OF AUSTRALIA )

VICTORIAN	DISTRICT	REGISTkY	l	No. VG.217 of 1984
)

DIVISION

GENERAL

)

BETWEEN :

BUDGET RENT A CAR SYSTEM

PTY LIMITED

Appllcant

AND	A-DEWHIRST, KAY RENT A C A R PTY LIMITED a n d DINERS CLUB LIMITED

Respondents

JUDGE MAKING ORDE3i

bavles, J

DATE OF ORDER

l6 August

1984

MADE	WHERE	Melbourne
THE COUkT ORDERS

the thlrd named respondent, ljlners Club Limlted, undertaklng by Its counsel,

not to dlstrlbute or cause to be dlstrlbuted the

brochure that

1s exhlbit VLR 1 to the atfidavlt of Vlcki L o u s e

Rlchardson

sworn

August

1984

untll

the

hearlng

and

determlnatlon of the

appllcatlon,

or further order, the

appllcatlon

for

lnterlocutory rellei aqalnst the third named

respondent 1s by consent dlsmlssed.

The costs of and incldental to thls appllcatlon

are reserved.

IN THE FEDERAL COURT

OF AUSThALI

A )

)

VICTORIAN DISTRICT	REGISTRY	1	No. VG.217 of 1984
)
GENERAL DIVISlON	)

BETWEEN	B U W E T RENT A	CAR SYSTEM
-	PTY LIMITED

Applicant

ANrJ	ALLEN DEWHIRST, KAY RENT
A CAR PTY LIMITED and
DINERS CLUB LIMITED

Respondents

JUEGE MAKING ORDEX	Davies, J
BATE OF ORDER	16 August 1984
WHERE MADE	Melbourne

the applicant by It

S counsel undertaking to abide by any

order the Court may make as to damages In

case the Court should

heremafter be

oplr.lon

that

the

flrst

and

second

named

respondents

shall

have sustalned any by reason

of thls order

uhlch the appllcant	ought to pay
-	THE COURT ORDERS

1 .

Until the nearlng

arid drtermlnatlon of

thls appllcatlon or

further order the respondencs. Allen Dewhlrst and

Kay Rent A Car

Pty Llmited and each

of them be restrained by themselves, thelr

servants and agents from clrculatlng or

dlstrlbutlng or causlng

to clrculate or dlstrlbute the brochures which

are exhlblt DML 2

to the affldavlt

Duncan McAlllster Leltch sworn

7 August 1984

and exhlblt WIK	5 to the affidavir:	of Wllllam Davld King sworn	15
August 1984.

2. The costs of and lncldental tcj thls appllcatlon are reserved.

3.	‘The dlrectlons hearlnq	1 s ad~ourned to Frlday,	24 August
1984.

4. Liberty 1 s reserved to apply generally.

IN THE FEDERAL COURT

OF AUSTRALIA )

)

VICTORIAN DISTRICT	REGISTfiJ	)	No. VG.217 of 1984
)
GENERAL DIVISION	)

tllX'W1'WCE:N :

DUDGEX' RENT A CAR SYSTEM

=LIMITED

Appllcant

=EN	UEWHIRST, KAY RENT
A-CAR	PTY LIMITED and

DlNERSCLUB LIMITED

Respondents

REASONS FOR JUDGMENT

( e x tempore)

CORAM : Davles, J

16 Auqust 1984

Thls

1 s an applicatlon for

interlocutory Injunction.

The appllcation 1 s brought by Budget Rent

A Car System Pty

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Budget Rent a Car System Pty Ltd v Dewhirst, Allen

Details

AGLC: Budget Rent a Car System Pty Ltd v Dewhirst, Allen [1984] FCA 279
Case: [1984] FCA 279
Decision Date: 16 Aug 1984

CaseChat Overview and Summary

Budget Rent a Car System Pty Ltd sought an interlocutory injunction against Allen Dewhirst, Kay Rent a Car Pty Ltd, and Diners Club Limited. Budget alleged that the respondents were engaging in misleading or deceptive conduct in contravention of Section 52 of the Trade Practices Act 1974 (Cth). The central dispute was over a brochure distributed by Hertz through Diners Club International and American Express, which described the benefits of using the Hertz Club Key Card. Budget claimed that several statements in the brochure were misleading, suggesting that Hertz offered unique benefits not provided by competitors like Budget.

The court considered whether the statements in the brochure were misleading and if an interlocutory injunction should be granted. The judge found that the statements in the brochure were misleading, as they inaccurately suggested that Hertz offered benefits that were substantially different from those offered by Budget. The judge noted that Budget's own promotional materials contained similarly misleading claims, but still concluded that the injunction should be granted to prevent further misleading advertising. The judge was persuaded that the potential harm to the public from misleading advertising outweighed any issues with Budget's own promotional materials.

The court ordered that Allen Dewhirst and Kay Rent a Car Pty Ltd were to be restrained from distributing the brochures in question until the hearing and determination of the application or further order. Budget also undertook to pay any damages that the respondents might suffer as a result of the court's order. The directions hearing was adjourned to a later date, and liberty was reserved to apply generally.

Orders