Budget Rent-A-Car System Pty Ltd v Hertz Pacific Ltd

[1981] FCA 182

IN THE FEDERAL COURT

OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY	)	No. VG 1 6 3 of 1981
1
GENERAL DIVISION	1

BUDGET RENT-A-CAR SYSTEM PTY.

LIMITED

Applicant

HERTZ PACIFIC LIMITED

Respondent

Coram: Fox J

15 September 1981

Melbourne.

EX TEMPORE JUDGMENT

In this matter Northrop J last Friday, 11

September, granted ex parte injunctions on the application

of the present applicant. The injunctions related to

television advertisements concerning the Le Mans Service,

which related to the hiring at airports of Hertz cars.

r

The ex parte injunction was to continue until 4.15

tomorrow, the 16th September, o r further order. The

injunction had three parts, which I need not set out. The

party made respondent and against whom the injunctions

were ordered was Hertz Pacific Limited. It now appears to

be the fact that Hertz Pacific Limlted is not directly

connected with the advertisements in question and 1s

probably nis-joined. However, at this stage the applicant

makes no request to have that party dismissed; instead,

when this matter came on f o r hearing before me this after-

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noon an order was sought and made by consent that Kay seems to be common ground that it is the appropriate respondent, which has responsibility for the advertise-

ment s .

The injunction granted does not operate against

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Kay Rent-A-Car Pty. Limited and no application has been

made that it should do s o . However, argument has

proceeded to some extent on the basis that that company

may be in contempt of court, it being the company respon-

sible for the advertisements; that it acted contrary to

the injunction against Hertz Pacific Limited, of which	it
was well aware.

The application before me this afternoon is one

made by Kay Rent-A-Car Pty. Limited and is an application

to discharge the existing injunction. This, of course, is done on the basis I have mentioned, namely, that it is or

+ may be affected by the operation of the injunction, although

granted only against Hertz Paclfic Limited.

The application is brought on at short notice and

there has been an application by the applicant for an adjournment. However, it is agreed on all sides that the matter is urgent and I have refused that application. One o f the consequences is that I cannot see the television

advertisement in question, an advantage which Northrop J, I

am told, had. However, I did have before me a transcript

of the spoken words in the advertisement. There was a

question as to whether the matter should stand over until

Y

i

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tomorrow s o that in the course of that day the applicant

could move to continue the injunction, but this suggestion

was resisted by counsel on behalf of Kay Rent-A-Car Pty.

Limited on the grounds of the urgency today	of the
resolution of the present matter.

Counsel for Kay Rent-A-Car foreshadowed the

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possibility of an application against the present applicant,

based, I imagine, on s . 5 2 of the Trade Practices Act

(1974) in relation to advertisements and notices which it

had published recently and since the ex parte Injunction

was granted.

This is a separate matter, although, as I will

mention, the publication of such material has some relevance

to the present matter. The injunction was, as I would

understand, granted by the learned judge on the basis of

s .52 of the Trade Practices Act, which deals with mislead-

ing or deceptive conduct, o r conduct likely to mislead o r

c deceive.	I am not at present hearing an appeal from the judge and I think that I should accept at this stage his view that there was in the television advertisement matter
likely to mislead o r deceive. However, I think it is
apparent, from the short time for which the order he made
was to run, that he was of the vlew that an early oppor-
tunity should be given to the party o r parties affected to
argue the matter and I think I am entitled to act on the
view that, there being misleading or deceptive conduct, it
was nevertheless slight.

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The q u e s t i o n , t h e r e f o r e , h a s g r e a t e r

s i g n i f i c a n c e t h a n m i g h t o t h e r w i s e b e t h e c a s e i n r e l a t i o n

t o t h e b a l a n c e o f convenience. Hls Honour had very l i t t l e

m a t e r i a l t o go on i n t h i s c o n n e c t i o n . T h e r e i s now be fo re

me evidence which ind ica tes tha t Kay Rent-A-Car Pty.

Limited has spent a g rea t dea l o f t ime and money i n t h e

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prepara t ion of an adver t i s ing campaign and in suppor t o f t h e v i e w t h a t t h e t e l e v i s i o n a d v e r t i s e m e n t i n q u e s t i o n

ough t no t be a l t e r ed . Under t h e p r e s e n t p l a n s t h a t company

i s committed t o f u r t h e r p u b l i c a t i o n o f t h e same a d v e r t i s e -

ment, and because of what has been done is r a t h e r h e a v i l y

committed.

This , o f course , i s not any f ina l answer bu t i s

a mat te r re levant to what should be done a t the p resent

s t a g e . T h e r e a r e o t h e r f a c t o r s , one of which I have

already adverted to, namely that Budget has embarked upon

an a t t a c k on t h e Le Mans programme u s i n g , t o some e x t e n t ,

6 t h e b e n e f i t it has gained from the injunction which it

obta ined . I t a l s o seems t h a t n o t much harm, i f any, can be

incu r red by t h e a p p l i c a n t , c e r t a i n l y n o t o v e r a per iod of

a few days, i f t h e i n j u n c t i o n i s r e fused o r i s now d i s -

charged.

The ev idence on bo th s ides d i sc loses t ha t t he

h i r e c a r b u s i n e s s i s very much a competi t ive one and doubt-

l e s s the cour t p rocess i s be ing u sed t o ob ta in a s much

bus iness advantage as poss ib le . This , I r e a l i s e , i s a two-

s ided ma t t e r bu t when cons ide r ing t he harm l i k e l y t o be

incu r red by the app l i can t ove r a s h o r t p e r i o d u n t i l t h e

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in te r locutory p roceedings can be b rought on and evidence

heard and cons idered a t g rea te r l ength , i t i s r e l e v a n t t o

b e a r i n mind t h a t any deception i s s l i g h t and t h a t t h e

appl icant can use t h e i n j u n c t i o n t o o b t a i n a d i sp ropor -

t i o n a t e b e n e f i t .

My vi.ew i s t h a t i f the learned judge had had

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before him t h e material now be fo re me he would probably not

have granted any ex par te in junc t ion bu t would , on t h e

other hand, have l e f t the ma t t e r f o r a n e a r l y i n t e r l o c u t o r y

hear ing . This i s p r e c i s e l y what I now seek to b r ing about .

I t h ink t he ex i s t ing i n junc t ion shou ld be d i scha rged . A s I

have s a id , t he on ly i n junc t ion t ha t does ex i s t as a g a i n s t

Her tz Pac i f ic L imi ted should be d ischarged and the cour t

w i l l do a l l t h a t t h e p a r t i e s w i s h t o e n a b l e an e a r l y h e a r i n g

t o be e f f ec t ed , on a p rope r bas i s , o f any i n t e r l o c u t o r y

a p p l i c a t i o n t h a t e i t h e r w i s h e s t o p u r s u e	i n	r e l a t i o n t o t h e
advert isement .

r.

r The o rde r I t h e r e f o r e make i s t h a t t h e i n j u n c t i o n

t o which I h a v e r e f e r r e d b e d i s s o l v e d , t h a t t h e c o s t s o f

t h i s a p p l i c a t i o n b e c o s t s i n any in te r locutory p roceedings

b rough t t o ob ta in t he same o r a similar i n j u n c t i o n o r

i n j u n c t i o n s . What about the hear ing? I do n o t t h i n k t h e r e

are any more o r d e r s t h a t you want a t t h i s s t a g e . ( R e f e r

to Report o f L i s t i n g f o r d d d i t l o n a l o r d e r ) .

I c e r t l f y t h a t t h l s and the 4

preced ing p , - - S a L e r? t:x:e col’g of the I

Reascps f o ~ .j:,,,L,me;:t h c r e l n o f ‘ h l s lionour

d I