Budget Rent-A-Car System Pty Ltd v Hertz Pacific Ltd - [1981] FCA 182

IN THE FEDERAL COURT

OF AUSTRALIA )

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

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.

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-

- 2 -

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

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

- 3 -

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

_ -

possibility of an application against the present applicant,

based,

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 Hertz Pacific Ltd

Details

AGLC: Budget Rent-A-Car System Pty Ltd v Hertz Pacific Ltd [1981] FCA 182
Case: [1981] FCA 182
Decision Date: 15 Sep 1981

CaseChat Overview and Summary

In the case of Budget Rent-A-Car System Pty Ltd v Hertz Pacific Ltd, the dispute centred around television advertisements concerning the Le Mans Service, which pertained to the hiring of Hertz cars at airports. Budget Rent-A-Car System, the applicant, sought an injunction against Hertz Pacific Limited, the respondent, based on the argument that the advertisements were misleading or deceptive under Section 52 of the Trade Practices Act (1974). The injunction was initially granted ex parte by Northrop J and was set to continue until further order.

The legal issues before the court included whether the injunction should be discharged or continued, considering the balance of convenience and the evidence presented. Key considerations involved the potential harm to the applicant if the injunction was discharged, the applicant's ability to secure disproportionate benefits from the injunction, and the significant resources spent by the respondent in preparing and publishing the contested advertisements.

The court found that the evidence indicated that the misleading or deceptive conduct alleged was slight. It was noted that the injunction had been granted without substantial evidence and for a short duration, suggesting an intention to allow an early interlocutory hearing. Given the competitive nature of the car hire business and the relatively minor harm to the applicant if the injunction was discharged, the court decided that the injunction should be discharged to facilitate an early hearing of the substantive issues. The court ordered the dissolution of the injunction, with costs of the application to be costs in any subsequent interlocutory proceedings aimed at obtaining a similar injunction.

Orders