Douglas Motors Pty Ltd v Cambridge Motors Pty Ltd

[1978] FCA 84

CATCHWORDS

Trade Practices - Appllcation for interlocutory relief -

termination of motor vehicle retail dealerships by wholesale

distributors and appointment of new dealers - Trade Practlces

_. Act 1974 s.4E, dG, 45, 46, 80.

DOUGLAS 14OTOKS PROPRIETARY LIl4ITED

Appllcant

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Respondents

S.A. No. G42 of 1978

Cowl: FISHER J.

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ADELAIDE.

1 September 1978.

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IN THE FEDERAL’ COURT OF AUSTRALIA

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SOUTH AUSTRALIAN DISTRICT	REGISTRY)	S.	A.	No.	G42	of 1978
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GENERAL D I V I S I O N	.	l

I N THE MATTER Of THE	TRADE	PRACTICES
ACT 1974
BETWEEN:

I

DOUGLAS MOTORS PROPRIETARY LIMITED

Applicant

I

- and -	,
CAMBRIDGE MOTORS PTY. LTD.- and

B R I T I S H MOTORS IXDUSTRIES PTY. LTD.

tradlng as “CO!*U.’IERCIAL MOTOR I h T U S T R I E S “

and DUTTON MOTORS PROPRIETARY LIXITED

Respondents

ORDER

JUDGE MAICCNG	ORDER:	F I S H E R J.
DATE O F ORDER:	1 SEPTEMBER 1978
WHERE MADE:	ADELAIDE

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i THE COURT ORDERS TIpT:

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I 1. The appllcatlon for an Interim ~n~unctlon is refused.

2. The questlon of the costs of the appllcatlon reserved.

3. The application 1 s adjourned s l n e die.

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I N THE FEDERAL COURT O F AUSTRALIA	)
1

SOUTII AUSTRALIAN DISTRICT REGISTRY ) S.A. No. G42 of 1978

)

GENERAL DIVISlON 1

I N THE NATTER Of THE TRADE PRACTICES

I	ACT 1974
BETWEEN:
DOUGLAS MOTORS PROPRIETARY LIMITED

Applicant \

- and -

I Respondents

CORAM: Flsher J.

1 -

I 1 September 1978

i JUDGMENT

I n t h J s m a t t e r Douglas Notors Pty. Limited (“the applicant“)

obtained from this Court on 10 August 1918 an order n i s i c a l l i n g

upon the respondents Cambridge Motors Pty. Llmited ( “ t h e flrst

respondent”) Brl t lsh Motor Industr ies Pty. Limited t rading as

Commercial Motor I n d u s t r i e s ( “ t h e second respondent“) and Dutton

Motors P ty . L lml ted (“ the th i rd respondent“) to show cause why

certain orders should not be made restraining al leged contravent lon

by a l l respondents of	s.45	of	the Trade Practices	A c t 1974 ( “ the Act!‘]
-cLa

and alleged contravention by t h e f i r s t and second respondents ,of

2.

s.46 of t h e A c t . S u f f i c e t o s a y a t t h i s s t a g e t h a t t h e a l l e g e d

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contravent ions ar lse out of the terminatlon by t h e first and

second respondsnts of the applicant's appolntment by each of them

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a s a r e s a l e d i s t r l b u t o r a t Murray Bridge. The appl lcant was so

appolnted by t h e first respondent i h respect of Toyota motor c a r s

and by t h e second respondent I n respect of Toyota commercial

vehicles. A t or about the date of such termination each of those

respondents appolnted the thlrd respondent or a l ternat ively

companies or persons associated with that respondent resale

d i s t r i b u t o r of their respect lve vehicles .

f

Return date on t h e o r d e r n l s i was Friday 1dAugust 1978, on

-. which day the appllcant sought an lnter im injunct lon pursuant o

the provis ions of s.80 ( 2 ) of the A c t . A f t e r M r . Williams @.C.

f o r t h e a p p l l c a n t had opened h ls case genera l ly , the hear ing of

th i s app l l ca t lon was ad-Journed u n t l l Wednesday 2 3 August l978 t o

enab le add l t lona l a f f ldav l t s t o be f l l ed . I t 1 s appropr l a t e a t

t h i s s t a g e t o n o t e t h a t r a t h e r t h a n t h e customary paucity of

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evidence I have before m e a subs t an t i a l number o f a f f i d a v i t s

dea l ing in some de ta i l w l th the f ac t s cons lde red r e l evan t by t h e

parties. However, a s t h e r e is much c o n f l l c t on t h e s e f a c t s and I n

r the c l rcumstance tha t none of the evidence has been tested by

cross-exammatlon It 1 s more than usua l ly des l rab le tha t I r e f r a i n

a t t h l s s t a g e from maklng unnecessary flncllngs. Such f m d i n g s ,

of course could not be f l n a l b u t would be made only on the evidence

as i t a t present stands. Moreover, much of the evldence i s i n a

form which may w e l l , lf objec ted to , be ru led as inadmlssable upon

a f ina l hear ing .

3 .

The pr inclp lles upon CI rhich I shou Ad exerclse my dlscre !tlon t o

grant inter lm relief a re we l l s e t t l ed i n t h i s court . I refer I n

pa r t i cu la r t o the judgment of t he Chlef Judge of t h i s Court i n

World Serles Crlcket P t y . Limited v Robert James P?rlsh (1977) 1 6

A.L.R. 181 a t p.186 e t seq.

It was on the hearing I n this mat ter not disputed that the

onus l ies on the appl icant to make out a prima f ac i e case of

contravention of the sec t ions (o r one of them) i n the sense

f- explained by the Hlgh Court of Australla i n Beecham Grouv Ltd v

B r i t l s h Laboratorles P t y . Linnted (1968) 118 C . M . p.618. I r e f e r

L t o the followlng passage a t p. 622 of t he Judgment of the Court:

"The Court addresses i tself I n a l l c a s e s , p a t e n t a s well

a s o t h e r , t o two maln enquir ies . The f l r s t 1 s whether

t he p l a ln t l f f has made out a prlma f ac l e case , i n t he sense

t h a t i f t h e evldence remalns as It is chere is a probabi l l tv

t h a t a t t h e t r l a l of the ac t lon the p l a in t l f f will be held -

e n t i t l e d t o r e l l e f : P r c s t o n v Luck (1884) 27 Ch.D.497, a t

p.506; Challender v Rovle (1867) 36 Ch.13.425: a t p.436.

How strona the rxrobabllltv needs t o be depends, no doubt,

upon the nature-of the r i y h t s h e a s s e r t s ;nd the p r a c t i c a l

- consequences likely fl w to from the order he seeks."

It 1 s also Incumbent on the appl lcant to show t h a t on conslderatlon

of the balance of convenlence the respondents should be restralned

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1 pendlng f ina l he r ing .

In es tab l i sh ing a prima f a c l e c a s e , I n the relevant sense,

it 1s not necessary for the appllcant to persuade m e t h a t , on the

p re sen t s t a t e of the evldence, lt is more l ikely than not chat It w l l l

ultimately succeed. Rather t h e applicant mus t show t h a t it has

some r e a l and s l g n l f l c a n t p r o s p e c t t h a t i f the evidence remalns as

it is a t the moment, lt wlll succeed a t t r i a l . The tes t of "a f a i r

chance of success" was adopted by Bowen C . J . I n Commercial Bank of

Australla L t d . v Insurance Brokers' Association of Australla (1977)

4.

16 A.L.R. 161 at p.168 and takenup b! f Brennan J. in The Vic :torian

Eqq Marketlnq Board v Parkwood E q q s Pty. Ltd. a decislon of the Full

Court of thls Court dellvered 4 August 1978, and to me seems very

appropriate in the present circumstances as lndicatlng how strong

the probablllty needs to be.

As mentloned above the applicant contends that the three

respondents have contravened s.45 of the Act and the first two

respondents have In additlon contravened s.46. The relevant parts

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[ of s.45 relled upon by the applicant read as follows:-

" ( 2 ) A Corporatlon shall not -

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(a)

(b) glve effect to a provlsion of a contract arrangement

or understandlng ..... ~f that provlslon	-
(1)

(ii) has the purpose, or has or is likely to have

the effect, of substantlally lessening

competltlon.

(3) For the purpose of this section . . . . . . ' l competltlon" In

relatlon to a provlslon f a contract, arrangement cr

understandlng ...... means competltlon In any market In

which a Corporatlon that 1s a party to the contract

arrangement or understandlng ..... supplles or acqulres,

or is llkely to supply or acqulre, goods or services, or

would but for the provlslon, supply or acqulre, or be

likely to supply or acqurre, goods or servlces.

Two deflnltlons are relevant and were referred to:

"4E. For the purposes of thls Act, "market" means a market

In Australla and, when used 111 relatlon to any goods or

servlces, Includes a market for those goods or servlces

and other goods and servlces that are substitutable for,

or otherwise competltlve wlth the flrst mentloned goods

or services.

4G. For the purposes of this Act, references to the

lessening of competitlon Include references to preventing

or hindermg competition- I'

5.

As wlll become apparent It was crucial under s.45 that the

appllcant establish a prlma facie case in the requlsite sense

as to the existence of an arrangement or understanding to whlch

at least one of the flrst two respondents and company belng

the third respondent or an assoclated company was a party. The

last mentloned partymoreover had of necessity to be found to be

operating In a market comprlslng at least the town of Nurray

Bridge. Finally, the arrangement or understanding had to contaln

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a provlsion or provisions whlch had the purpose or was likely

l r ', to have the effect of substantlally lessenlng competifion. As

I would be expected, much debate took place on each element o€

this prlma facle case.

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The essential features of s.46. as relled upon by the appllcant

are as follows:

F "(1) A Corporatlon that is In a position substantlally to

control a market for goods or servlces shall not take

I advantage of the power In relahon to that market that

it has by vlrtue of	bang In that positlon for the
purpose of -

(a) (b) (c) deterring or preventlng a person from engagmg in

cornpetltlve conduct	in that markec or any other
market. "

The deflnltlon of market In s.4E abovementloned is also

relevant in relation to s.46

6 .

It i s f a n t o say t h a t M r . Wllllams Q.C. fo r the appl icant

acknowledged hls d l f f i c u l t l e s under s.46 and d ld no t p re s s fo r

an order i n r e l l a n c e upon th is sec t lon should he have es tab l l shed

an entltlement under s.45. I n respect of the former section the

applicant likewlse accepted the relevant onus of s a t l s fy lng m e on

the i s s u e of subs t an t i a l con t ro l of a market, and the u s e o f t ha t

power for the purpose of deterr ing or prevent lng the appl lcant

from engaging I n competltive conduct m t h a t o r any other market.

The appl lcant car r les on b u s l n e s s a t Murray Brldge as \ a r e t a l l

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se l l e r o f Toyota motor c a r s and commerclal vehicles . The f i r s t

respondent i s the wholesale dis t r ibutor of Toyota motor c a r s

f- and the second respondent 1 s the wholesale distrlbutor of Toyota

c3nunercial vehicles and each respondent 1 s the only such dis t r lbutor

In t h l s S t a t e . I n mld 1975 each of these two respondents appolnted

the appl icant as an authorlsed Toyota dea le r fo r t he sa l e of t h e l r

respect lve vehlcles for Murray Bridge and surrounding dis t r lc ts .

- The form and terms of the appolntment have I n nel ther Instance

been sat isfactor l ly proved before me, but nothlng t u r n s , it would

appea r , a t t h i s s t age on tha t mat te r . By l e t te r dated 23 J u n e 1978

(- the f i r s t respondent purpor ted to t e rmlna te the appl icant ' s

appolntment a s i t s d i s t r l b u t o r a s from 28 Ju ly 1978. By le t ter

dated 26 J u n e 1978 the second respondent purported to terminate

i t s appolntment of the appl lcant as from the same da te , namely

28 Ju ly 1978. A t or about that date each of those two respondents

appolnted a new dealer i n Murray Brldge. It 1 s common ground

t h a t n e i t h e r of these respondents operates i n t h e r e t a i l market

fo r veh ic l e s i n t h a t town.

7.

There is a degree of uncertalnty as to who were appolnted as

new dealers In that there 1 s In addltlon to the thlrd respondent r

another company, Dutton Crash Repairs Pty. Ltd. and a partnershlp

of Messrs E. & C. Dutton, operating in Murray Bridge. The latter

partnershlp, on the evidence as it stands before me, would appear

to have been appolnted dealer by the flrst respondent at l ast

from 3 August 1978. There is confllcting evidence as to whlch of the'

three entlties was appolnted dealer by the second respondent.

Ultlmate determlnation of these issued may well be crucial to the

(,- success of the applicant's case In chat under s.45 (3)-it is

doubtless essential that a "corporation" engaged in the relevant

,--	market be a party to the necessary arrangement or understandlng.
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A signlflcant feature of the applicant's case, or at least one
aspect thereof, 1 s the contentlon that the new dealer- whoever It is,
1 s not, as the appllcant was, dealing only in Toyota vehicles.
E. & C. Dutton would appear to be the local dealer in Volvo vehlcles
and Dutton Motors Pty. Llmlted (the thlrd respondent) the local
/-	dealer In General Xotos and Bedford vehlcles. There is also evldence
from the respondent to the effect that they were of opinlon that
*-	Murray Brldge vas only capable of supportlng one Toyota dealer.
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Finally, there l:, evldence to the effect that although the flrst
two respondents are not related companies but completely separate

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autonomous organlsatlons they often act together to implement com.on

commerclal pollcles. Yet although lt sometimes happens that for

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reasons of economy they appoint one and the same dealer to represent ~

. them both at the one location, they have on occaslon appointed

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separate dealers In the same Country town and acted lndependently I

in cancelllng dealershlp arrangements.

In addition to the abovementloned evldence there was much

information as ?o the dlscusslons and happenlngs rdnch led up to

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the termlnatlon ot the appl icant ' s dea le rsh lp and the appointment I

of the new dea lers . I n t h i s a r e a t h e r e was conslderable dlsputat lon :

on t h e a f f i d a v l t s and the vldence 1s grea t ly i n conf l i c t . The I

appl icant ' s content ion i s t h a t on this evldence I should be

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prepared to f lnd tha t there was an i n i t l a l arrangement or under- I

standing between the f l r s t r e sponden t and the Duttons that the

Duttons (be It the indlvlduals or one of t he companles) would accept ,

the dealershlps only ~f they were offered both and t h a t t h a t

respondent and the Duttons would work towards brlnging this about.

(- Ultimately, It 1 s contended the f l r s t respondent and the Duttons

agreed with the second respondent that the Duttons would be

appointed Toyota dealers In Murray Brldge by those two respondents

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on t h e b a s i s t h a t , as Murray Brldge would support only one dea le r , t h e applicant's dealzrshlp would be termmated and the dealershlps " t ransfer red" to the Dut tons .

I t i s an arrangement or understandlng such as t h i s whlch the

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/ applicant 1 s r e q u i r e d t o s a t l s f y me lt has a f a i r chance of

e s t ab l i sh ing a t t he u l tuna te t r la l I f It 1s to ob ta in ln te r locutory

i r e l i e f . I t has to be acknowledged t h a t ar: t h l s s t a g e much of the

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evidence relled upon by the appl icant 1s equlvocal and the

respondents have polnted to many clrcumstances which point s t rongly

agalnst the prospect of r:he appllcant provlng its case a t t r l a l .

However I a m not requlred to determlne the probabi l i t les b u t

'whether the appl icant has a r e a l a s opposcd t o an i l l u so ry chance

oi success. I f I was persuaded that the applicant could surmount

the next obs tac le , namely that the arrangement or understandlng

contained provlslons or a provis lon tha t had the purpose or was

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l i k e l y t o have the effect of subs t an t l a l ly lessening competltlon,

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9.

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I would be prepared CO flnd that the Gppllcant has a fair chance

of success at trial on S. 45.

However the appllcant must dlscharge the relevant onus of

establishlng not only the arrangement or understanding but also

that it contains provisions which have or are likely to have the

relevant purpose or effect. It 1s on thls aspect that I am of

opinion that the appllcant falls to make out a prima facie case.

The evidence in this area was relatively minimal, at least compared.

with the evldence on the topic of arrangement or undeEstandlng, and ,

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I am lust not satisfsed that if	It remalns as It is, the appllcant	,
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has a fair chance	of establishlng a substantial lessenlng of	I.
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competition at trial. When pressed 1~11. Wllllams contended he was

entitled to rely on three aspects of the underscanding, namely

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the termlnation of the applicant's dealerships, the appointment	as	- ,
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new dealer of a company or individuals who already held a dealership l

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for another make or vehlcle, and thirdly that the first and second

respondents elther had granted 2 de facto exclusive dealershlp to

the Duttons, or at least had agreed not to terminate thelr dealer-

ships unilaterally. Each of these provisions he submltted would

i s

produce a substantlal lessenlng of competition. h%ether a partlcularl

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provrsion had or was likely to have the effect of substantlally

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lessening competition was, he said, a matter of law for determlnaclon

by the Court. I must say I doubt the correctness of this proposltlon

but as it was not argued out in depth I refraln from maklng an

express flndlng at thls stage.

It 1 s common ground that the particular market in which It is

necessary to be satisfled there was or was likely to be a lessening

10.

of competltlon was the retall market for Toyota vehicles or thelr

substitutes or.competitors (s.4E) in at least Murray Brldge. It c

was suggested and indeed there 1s some evidence that the relevant market as to geographlcal area, would Include Mannum and Mount

Barker but that	is a question of fact for determination at the
trlal.

The flrst two aspects of the effect of he arraogement or

understandlng, namely the termlnatlon and new appointments, can be

considered together. In response to the obvlous comment that

whereas prior to the 28 July 1978 (date of termination) there was

one Toyota dealer ln the town, and thls was exactly the situation .

I after the new appointment, Mr. WlUlams argued thac the evil lay

rather in the cholce of the new dealer In that it or they held

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competing dealerships. A solo dealer, he contended, vould be more

competltlve In the market than a dealer holding two dealershlps.

There was however no satlcfactory evidence before me as CO how a

dual dealer would operate, and In partlcular how the operaclon of a

dual dealership Ilould detrlmentally affect competitlon. The

relevant market was after all on the evldence before me the retail

market ~n vehlcles generally, and not the market In Toyota vehlcles.

Generally, there was a lack of evldence tendered by the applxcant

on the actual or probhble effect of these two aspects of the alleged

understandlnq. In so far as it 1s open to draw Inferences m the

absence of posltlve evldence lt would seem more approprlate to draw

a contrary lnicrence from the conduct of the first and second

respondents. Thcy are after all interested 111 the selllng of their vehlcles in a competitlve market and they would hzrdly have appointed a dual dealer if such was likely to lessen competltlon.

11.

In addl t lon I must a t l e a s t be t en ta t lve ly sa t l s f l ed tha t t he l i ke ly '

lessening of cqmpetltlon w i l l be subs tan t ia l . It has been suggested - I

t h a t t o s a t i s f y t h e t e s t of subs t an t l a l i t y the l e s sen lng of

competition must be conslderable and su f f i c i en t ly de f inab le to

permlt some fac tua l judgment.of I ts relative Importance. (Trade

Prac t ices and Consumer Protect lon 2nd ed. para. 541). The evidence

a t t h i s s t age does no t s a t l s fy me tha t the appl icant has a f a l r

chance of success on e i t h e r of t h e s e a s p e c t s a t trial.

The other provision of the arrangement or understandlng

r e l l e d upon by the appl lcant was t o t h e e f f e c t t h a t t h e d e a l e r s h i p s

were de facto excluslve I n t h a t i t was accepted by t h e t h r e e p a r t l e s

t h a t t h e town would only support one dealership. Moreover, it was

submitted that an agreement could be spelt out between the flrst

two respondents each not to t e rmlna te the l r par t lcu lar dea le rsh lps , _

without the concurrence of the o ther . On the l a t te r poin t there

i s ln su f f l c l en t ev lden t l a ry founda t ion l a ld a t ch i s s t age fo r

i n fe r r lng such an agreement. It 1 s mere c o n j e c t u r e a s t o how they

&l1 operate I n fu tu re , and l u s t no t poss ib le to draw th l s i n fe rence .

from t h e f a c t t h a t t h e r e 1 s some cvldence that they possibly operated '

i n con~unc t ion I n appolnting the new dea le r , assuming of course

t h a t It ult lmately i s establlshed they appolnted the same dea ier .

i

I f a de facto excluslve clealershlp could be spelt out of t he

evidence a t t h i s s t a g e , i t would be arguable that there was a

l ikelihood of a lessenlng of competltlon. Conversely the fact

t h a t a dealershlp mlght be tcrmlnated on shor t no t ice and another

dealer appolnted or the area of t h e dealershlp reduced would e n s u r e

that the dealer operated competit lvely i n s e l l l n g Toyota vehicles

i n the r e l evan t market. If he dld not so ope ra t e to the sa t l s f ac t ion

of the f i r s t and second respondents, the dealershlp would be a t r i s k .

1 2 .

However a cruclal element ln thls submlssion is t h e n e c e s s i t y t o

e s t ab l i sh an exclusive dealershlp, or a t l e a s t an understanding .-

t o t h i s e f f e c t . I n t h e l l g h t of pos i t i ve evidenc:e t o the contrary

i n the agreement of 3 August 1978 between the f i r s t respondent and

E. .S c. Dutton I must f i n d t h a t on the evldence before me t h e

applicant does not have	a	suff ic ient l lkel lhood of success	on	t h e
ult imate hearlng.

I n respect of t h e second respondent there IS, a s abovementlonec?,

F uncer ta in ty as to who or which company holds the dealership. In

the l e t t e r of appolntment there 1 s not any suggestion of an !

exclusive appointment, and nothing to suggest that that respondent '

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h a s i n any way restrlcted Its r ight to terminate , appoint an

addi t ional dealer , or reduce the geographlc area of the dealership.

So long a s tha t r e sponden t had the r lgh t t o t ake ac t ion If t h e

dealer	did	not	perform	to	ensure	chat	Its product was competltlve	I
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i n t h e Murray Bridge market, It would fo l low tha t an excluslve

/- I

I dealership would be unl lkely to lessen competi t lon. Here agaln i

there 1s not suff lc ient evldence to support a con tennon tha t t he

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- appl lcant has a f a l r chance of success on t h l s i s s u e a t t r i a l .

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A s my concluslon a t t h i s s t a g e is tha t the appl icant has not

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made o u t , f o r t h e abovementioned reasons, a prlma case case, I need

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not consider a f u r t h e r d l f f l c u l t y which l i es I n i ts path. The

d i f f l c u l t y i s the consequence of t he poss ib l l l t y i n the case o f

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t he	second respondent and the probablli ty in the case	of	t h e f i r s t	,
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respondent that l t has appointed two persons (and not a corpora t ion) ! ,

a s i t s dealer . It seems very des l rab le tha t because th i s will be a

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sclbstantial I s s u e on the f lna l hea r lng I r e f r a l n from lndica t lng

any Further vlews, vhlch views are in the event not

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13.

necessary for the reaching of my conclusion.

--. I.

In m e w of my findmg that the applicant has not made out a

prima facie case of contraventlon of s.45, it is necessary to

consider the applicant's case under s.4G. The appllcant has

correctly acknowledged that It has a more dlfficult task of maklng

out a sufficlent case here. The relevant portions of that sectlofi

as relied upon by the appllcant have been set out above. As has

already been mentloned the flrst and second respondents are each

,--

\ the only suppller ~n South Australla of their particular types

of motor vehicles. Moreover on thls aspect of the matter certain

-	evldence	1 s most important, namely, those respondents' contentions,	;
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whch are well supported by documents, that they terminated the

applicant' S dealershlp because of thelr dlssatisfaction with Its

performance as a dealer over a perlod of years. It is not

necessary to determlne the rlghts and wrongs f uch dissatlsfac-

tlon, which the applicant contends is un-~ustified. All that 1s

necessary at this stage is to note that there is much evldence In

support of the contentlon that this	wa the reason for	t h e
terminatlon.

It is my oplnlon that the appllcant has on the evidence before

me not made out a prlma facle case, in the relevant sense, of

contraventlon of s.46. In the flrst lnstance It appears at least

probable that nelther of the respondents 1s In a posltlon

"substanClally to control" the relevant market. The definltlon

of market In s.4.E above is slgniflcant in that it enlarges the

market in which those respondents are operating to Include the

market of goods whlch are substltutable for or In competltion with

their own goods. The market therefore,lt appears probable,is

P 14.

not merely the wholesale market for Toyota motor cars or Toyota

commerclal vehlcles, as the case may be, but the expanded market -

which includes vehlcles substltutable for or In competltlon

with Toyota motor cars and Toyota colnmerclal vehlcles. Seen In

thls manner there 1s no evldence to date that elther of them,

the first or second respondents, 1 s in a posltlon to control the

expanded market. Addltlonally, in the llght of the evidence that ,

Ihe respondents took the step of termmating the dealerships because

of their dissatlsfactlon 511th the applicant and the lack of

! evidence that elther of them exercised thelr undoubted right

of termlnatlon (and re-appolntment If relevant) for the purpose

of deterring or preventing the applicant from engaglng in

i-

competitive conduct, lt 1s not possible to find that the appl.lcant

!

has a fair chance of success of establlshlng a contraventlon	of
s.46 on the evldence to date.

In concluslon It 1 s necessary to make the point that even If

I had found that the appllcant had made out a prima facle case

of contraventlon of one or other of the sections, lnterlocutory

_-	relief would not follow	as a matter of course.	A s mentioned at
!

the outset the appllcant would have had to establish that the

balance of convenience was In Its favour. Even if thls was

establlshed I am uncertaln that an approprlate restralnlng order

could have been formulated. However It was agreed that counsel

should address me further on the form of the order and other

.

consequentlal matters ~f I found that the appllcant had made out

a case for lnterlocutory rellef. A s In my view the appllcant has

falled, it is nelther appropriate nor helpful to glve further

conslderatlon to these dlfflcultles at this stage.

. 15.

, ’ U .Q

The order of the Court is that the appllcation for an

illLerlm lujunctlurl is refused.

I

I certify that t h l s and the 14 precedlng pages are a true copy of the Reasons for Judgment of Mr. Justlce Fisher.

I

Associate

Dated: 5 September 1978.

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CATCHWORDS

Trade Practices - Appllcation for interlocutory relief -

termination of motor vehlcle retail dealerships by wholesale

distributors and appolntment of new dealers - T ade Practlces

- 1974 s.4E, 4G, 45, Act 46, 80.

BETWEEN: DOUGLAS MOTORS PROPRIETARY LINITED

Applicant

CAMBRIDGE MOTORS PTY. LTD. and

- AND

BRITISH MOTORS INDUSTRIES PTY. LTD.

trading as "COMPIERCIAL MOTOR INDUSTRIES" and DUTTON MOTORS PROPRIETARY LIMITED

Respondents

S.A. NO. ~ 4 2 of 1978

CORAM: FISHER J.

ADELAIDE.

1 September 1978.

i

I N THE FEDERAZ. COURT O F AUSTFSGIA )

1

SOUTH AUSTRALIAN DISTRICT REGISTRY) S.A. No. G 4 2 of 1978

1 L

GENERAL D I V I S I O N 1

I N THE MATTER O f THE TRADE PRACTICES

ACT 1974

BETWEEN:

DOUGLAS MOTORS PROPRIETARY LIMITED

Applicant

- and -

CAMBRIDGE MOTORS PTY. LTD.- and

B R I T I S H MOTORS INDUSTRIES PTY. LTD.

t r ad ing as “COImERCIAL MOTOR INDUSTRIES“

and DUTTON MOTORS PROPRIETARY LIMITED

R e s p o n d e n t s

ORDER

JUDGE MAKING ORDER:	FISHER J.
DATE O F ORDER:	1 SEPTEMBER 1978

\!?HERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The appllcatlon for an lnterlrn ~ n ~ u n c t i o n 1 s refused.

2. The q u e s t l o n of the costs of the appllcatlon reserved.

3. The application 1s adjourned sine die.

IN THE FEDERAL COURT OF AUSTRALIA

1

SOUTH AUSTRALIAN DISTRICT REGISTRY	)	S.A. No. G42 of 197%
)

DIVISION GENERAL )

IN THE MATTER of THE TRADE PRACTICES

I

ACT 1974

BETWEEN:

DOUGLAS MOTORS PROPRIETARY LIMITED

, S

applicant

- and -

CAMBRIDGE MOTORS PT". LTD. and

BRITISH MOTORS INDUSTRIES PTY. LTD.

tradlng as "COiWERCIAL MOTOR INDUSTRIES"

and DUTTON iViOTORS PROPRIETARY LIMITED

Respondent S

CORAM: Fisher J.

1 September 1978

JUDGMENT

In thls matter Douglas Motors Pty. Limlted ("the applicant")

obtalned from this Court on 10 August 1978 an order nisi calling

upon the respondents Cambridge Motors Pty. Llmited ("the first

respondent") Britlsh I40tOr Industrles Pty. Llmited trading as

Commercial Motor Industrles ( "the second respondent" ) and Dutton

Motors Pty. Llmlted ("the third respondent") to show cause why

certaln orders should not be made restraining alleged contraventlon

by all respondents of s.45 of the Trade Practices Act 1974 ("the Ace')

and alleged contraventlon by the flrst and second respondents-of

I L .

I s.46 of the Act. Sufflce to say at thls stage that the alleged

contraventlons arlse out of the termmation by the flrst and

.-

second respondents of the applicant's appolntment by each of them

as a resale distrlbutor at Nurray Brldge. The applicant was so

appolnted by the first respondent in respect of Toyota motor cars

and by the second respondent I respect of Toyota commercial

vehicles. At or about the date of such termmation each of those

respondents appolnted the thlrd respondent or alternatively

companles or persons assoclated with that respondent resale

distrlbutor of thelr respectlve vehlcles.

Return date on the order nisl wa Friday 18 August 1978, on

which day the appllcant sought an lnterlm injunction pursuant to

the provlslons of s.80 ( 2 ) of the Act. After IGr. P7illiams Q.C.

I

for the appllcant had opened hls case generally, the hearlng of

this appllcatlon was adlourned untll Wednesday 23 August 1978 to

I

enable addltional affldavlts to be flled. It is approprlate at

this stage to note that rather than the customary paucity of

evidence I have before me a substantlal number of affidavlts

dealing In some detall wlth the facts consldered relevant by the

parties. However, as there is much confllct on these facts and m

I

the circumstance that none of the evidence has been tested by cross-examinatlon It IS more than usually deslrable that I refrain

at thls stage from maklng unnecessary findmgs. Such flndlngs,

of course could not be fmal but would be made only on the evldence

as it at present stands. Moreover, much of the evldence is In a

form whlch may well, lf oblected to, be ruled as inadmlssable upon

a final hearlng.

3 .

The prlnclples upon whlch I should exercise my dlscretlon to

grant lnterim rellef are well settled In this Court. I refer In ...

particular to the judgment of the Chlef Judge of thls Court In

World Serles Crlcket Ptv. Llmited v Robert James Pprish (1977) 16

A.L.R. 181 at p.186 et seq.

It was on the hearing in this matter not disputed that the

onus lies on the appllcant to make out a prima facie case of

contravention of the sections (or one of them) in the sense

explained by the High Court of Australia in Beecham Grouo Ltd v

Britlsh Laboratorles Pty. Limited (1968) 118 C.L.R. p.618. I refer I

r to the follovlng passage at p. 622 of the ludgment of the Court:

"The Court addresses itself In all cases, patent as well

as other, to two maln enquiries. The first is whether

the plaintiff has made out a prima facie case, in the sense

that If the evidence remalns as It is chere is a probablllty

that at the trlal of the action the plalntiff will be held

entltled to rellef: Preston v Luck (1884) 27 Ch.D.497, at p.506; Challender v Rovle (1887) 36 Ch.D.425: at p.436;

How strong the probablllty needs to be depends, no doubt,

upon the nature of the rlghts he asserts and the practlcal

consequences llkely to flow from the order he seeks."

It is also incumbent on the appllcant o show that on conslderation

I	of the balance of convenlence the respondents should	be restralned
pending flnal hearing.

In establlshing a prima facie case, m the relevant sense,

It is not necessary for the applicant to persuade me that, on the

present state of the evidence, ~t 1s more likely than not that it w1ll

ultlmately succeed. Rather the appllcant must show that It has

some real and significant prospect that if the evidence remzins as

It is at the moment, It wlll succeed at trlal. The test of "a falr

chance of success" was adopted by Bowen C.J. In Commercial sank of

Australla Ltd. v Insurance Brokers' Associatlon of Australla (1977)

4.

16 A.L.R. 161 at p.168 and takenup by Brennan J. in The Vlctorian !

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Eqq Marketlnq Board v Parkwood Eqqs Pty. Ltd. a declslon of the Full-

Court of this Court dellvered 4 August 1978, and to me seems very

approprlate In the present clrcumstances as lndlcatlng how strong

the probability needs to be.

AS mentloned above the appllcant contends that the three

respondents have contravened s,45 of the Act and the first two

respondents have in addltlon contravened s.46. The relevant parts

of s.45 relied upon by the appllcant read as follows:-

! " ( 2 ) A Corporation shall not -

(a)

(b) glve effect to a provlsion of a contract arrangement

or understandlng ..... ~f that provlsion	-
(1)

(il) has the purpose, or has or is llkely to have

the effect, of substantially lessening

competltlon.

( 3 ) For the purpose of thls sectlon ......l' competltion" in

relatlon to a provlsion of a contract, arrangement or

understandlng ...... means competltlon In any market In

which a Corporatlon that 1 s a party to the contract

arrangement or understandlng ..... supplies or acqulres,

or 1 s llkely to supply or acqulre, goods or servlces, or

would but for the provision, supply or acquire, or be

likely to supply or acquire, goods or servlces.

Two deflnltlons are relevant and were referred to:

"4E. For the purposes of thls Act, "market" means a market

I	In Australla and, when used In relatlon to any goods or
servlces, lncludes a market for those goods or services I
and other goods and servlces that are substltutable for,
or otherwise competltlve {nth the first mentloned goods '
or servlces.
I

4G. For the purposes of this Act, references to the

lessenmg of competltion lnclude references to preventlng	'I
or hlnderlng competltlon.

5.

A s \v111 become apparent It was c ruc la l under s.45 t h a t t h e

-

appllcant establish a prlma f ac l e case in the r equ i s i t e s ense

a s t o the ex i s t ence of an arrangement or understanding t o which

a t l e a s t one of t h e f l r s t two respondents and a company being

the third respondent or an associated company was a par ty . The

last mentloned partymoreover had of necess l ty t o be found t o be

operating I n a market comprising a t l e a s t t h e town of blurray

Brldge. Fmally, the arrangement or understandmg had to conta ln

a provlslon or provlslons which had the purpose or was l i k e l y

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t o have the e f f ec t of substantially lessenlng competit ion. A s

would be expected, much debate took place on each element of

t h i s prlma f ame case .

The e s sen t i a l f ea tu re s of s.46 a s r e l l e d upon by the apphcan t

are as follows:

“(1) A Corporatlon that 1 s I n a pos l t l on subs t an t l a l ly to

control a market fo r goods or se rv ices sha l l no t take

advantage of the power I n r e l a t l o n t o t h a t market t ha t

r t has by v l r t u e of belng I n t ha t pos i t i on fo r t he

purpose of -

( a ) ( b )

( c ) deterr lng or prevent lng a person from engaglng I n

competltlve conduct In that	marker: or any other
market I ‘I

The de f ln l t l on of market I n s.4E abovementloned i s a l so

relevant i n r e l a t lon t o s.46.

6 .

It IS f a l r t o s a y t h a t Mr. Mllllams Q.C. for the appl lcant

acknowledged his d l f f l c u l t l e s under s.46 and dld not press for r

an order i n r e l l a n c e upon thls sect ion should he have establ lshed

an entltlement under s.45. I n respect of the former sectlon the

appllcant llkewzse accepted the relevant onus of s a t l s fy ing m e on

the l s s u e of substant la l control of a market, and the use of t h a t

power for the purpose of deterr ing or prevent ing the appl lcant

from engaglng in competltlve conduct i n t h a t or any other market.

I

The appl lcant car r les on b u s i n e s s a t Murray Bridge as a r e t a l l

seller of Toyota motor ca r s and commercial vehlcles. The f i r s t

respondent is the wholesale dlstrlbutor of Toyota motor c a r s

and the second respondent 1 s the wholesale dls t r lbutor of Toyota

cmunerclal vehlcles and each respondent i s the only such distributor

i n t h i s S t a t e . I n mld 1975 each of these two respondents appolnted

the appl icant as an authorlsed Toyota dealer for the sale of thelr

respective vehlcles for Murray Brldge and surroundmg dls t r ic ts .

The form and terms of t he appointment have In ne l ther ins tance

been sat lsfactor l ly proved before m e , but nothlng t u r n s , it would

appear , a t th l s s tage on tha t mat te r . By l e t t e r d a t e d 23 June 1978

the f i rs t respondent purported t o termlnate the appl lcant ' s

appointment a s i t s d l s t r l b u t o r a s from 28 Ju ly 1978. By le t ter

dated 26 June 1978 the second respondent purported to termlnate

I t s appolntment of the appl lcant as from the same da te , namely

28 Ju ly 1978. A t or about that date each of those two respondents

appolnted a new dea ler In Murray Brldge. I t i s common ground

tha t ne l the r of these respondents operates I n t he retail market

I fo r veh ic l e s I n t ha t town.

7 .

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There is a degree of uncertalnty as to who were appolnted as

new dealers ln that there 1 s ln addltlon to the thlrd respondent r

another company, Dutton Crash Repalrs Pty. Ltd. and a partnershlp

of Messrs E. 6. C. Dutton, operatlng In Murray Brldge. The latter

partnership, on the evldence as it stands before me, would appear

to have been appolnted dealer by the flrst respondent at least

from 3 August 1978. There 1 s confllctlng evidence as to whlch of the

three encltles was appointed dealer by the second respondent.

Ultlmate determlnatlon of these Issued may well be crucial to the

success of the appllcant's case in that under s.45 (3)-lt 1 s

doubtless essential that a "corporatlon" engaged in the relevant

market be a party to the necessary arrangement or understanding.

A significant feature of the appllcant's case, or at least one

aspect thereof, 1s the contentlon that the new dealer whoever It 1 s .

1 s not, as the appllcant was, dealing only in Toyota vehicles.

E. & C. Dutton would appear to be the local dealer ln Volvo vehlcles

and Dutton rlotors Pty. Llmlted (the thlrd respondent) the local

dealer in General Kotorsand Bediord vehlcles. There is also evidence

from the respondent to the effect that they r r e r e of oplnion that

Murray Brldge vas only capable of supporting one Toyota dealer.

I

Finally, there 1 s evldence to the effect that although the flrst

two respondents are not related companles but completely separate

autonomous organlsatlons they often act together to Implement common

comrnerclal pollcles. Yet although It sometlmes happens that for

reasons of economy they appoint one and the same dealer to represent

them both at the one locatlon, they have on occasion appointed

separate dealers In the same country town and acted independently

In cancelllng dealershlp arrangements.

In addltlon to the abovementionedevldence there was much

lnformatlon as L~ the dlscusslons and happenmgs which led up to

8.

the termlnation of the appllcant's dealership and the appolntment

of the new dealers. In thls area there was considerable disputation - .

on the affldavlts and the evidence 1s greatly In conflict. The

applicant's contention 1s that on thls evldence I should be

prepared to frnd that there was an lnltlal arrangement or under-

standing between the flrst respondent and the Duttons that the

Duttons (be it the indlviduals or one of the companies) would accept

the dealershlps only If they were offered both and that that

I	respondent and the Duttons would work towards bringlng thls about.
Ultimately, It is contended the flrst respondent and the Duttons agreed wlth the second respondent that the Duttons would
I

be

appointed Toyota dealers In Murray Brldge by those two respondents

on the basls that, as PIurray Bridge would support only one dealer,

the appllcanc's dealership would be terminated and the dealershlps

l ' transf erred" to the Duttons.

It is an arrangement or understandlng such as thls whlch the

applicant IS requlred to satlsfy me It has a fair chance of

establlshing at the ultlmate trlal If It is to obtaln lnterlocutory

relief. It has to be acknowledged that at thls stage much of the

evldence relled upon by the applicant 1s equivocal and the

respondents have pointed to many clrcumstances which point strongly

agalnst the prospect of the appllcant proving Its case at trlal.

IJowever I am not requlred co determme the probabllitles but

whether the appllcant has a real as opposed to an illusory chance

of success. If I was persuaded that the applicant could surmount

the next obstacle, namely that the arrangement or understanding

contalned provlsions or a provlslon that had the purpose or was

llkely to have the effect of subscantlally lessenlng competition,

9.

I would be prepared to flnd that the appllcant has a fair chance	i
I

trlal at of success on s.45. r

However the appllcant must dlscharge the relevant onus establishlng not only the arrangement of

or understandlng but also

that It contalns provlslons which have or are llkely to have the

relevant purpose or effect. It 1 s on thls aspect that I m of

oplnlon that the appllcant fails to make out a prlma facie case.

The evldence 12 this area was relatively mlnlmal, at least compared

with the evldence on the topic f arrangement or undecstandlng, and

I am lust not satlsfled that If it remalns as it IS, the appllcant

has a falr chance of establlshlng a substantlal lessening of

competitlon at trial. When pressed Mr. Wllllams contended he was

entitled to rely on three aspects of the understanding, namely

the termlnation of the appllcant's dealershlps, the appointment as

new dealer of a company or indivlduals who already held a dealershlp

for another make or vehicle, and thirdly that the first and second

respondents elther had granted a de facto exclusive dealership to

the Duttons, or at least had agreed not to termlnate their dealer-

ships unilaterally. Each of these provisions he submltted would

produce a substantial lessenlng of competltion. Whether a partlcular

provision had or was likely to have the effect of substantially

lessenlng competltion was, he sald. a matter of law for determinatlon

by the Court. I must say I doubt the correctness of thls proposltion

but as It was not argued out in depth I reiraln from maklng an

I express findmg at thls stage.

It 1 s common ground that the partlcular market In which It 1 s

necessary to be satlsfled there vas or was llkely to be a lessening ,

10.

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of competitlon was the retall market for Toyota vehicles or thelr

substitutes or competitors (s.4E) in at least Nurray Brldge. It .

was suggested and Indeed there 1 s some evidence that the relevant market as to geographlcal area, would Include Nannum and Mount Barker but that is a yuestlon of fact for determinatlon at the trlal.

The flrst two aspects of the effect of the arrangement or

understandlng, namely the termlnatlon and new appolntments, can	be
consldered together. In response to the obvlous comment that

whereas prior to the 28 July 1978 (date of termination) there was

one Toyota dealer In the town, and thls vas exactly the sltuatlon

after the new appolntment, Nr. Wllllams argued that the evil lay

rather in the cholce of the new dealer ln that it or they held

competlng dealershlps. A solo dealer, he contended, would be more ,

competltive in the market than a dealer holding two dealershlps.

There vas hovever no satlsfactory evldence before me as to how a

dual dealer vould operate, and In partlcular how the operation of a

dual dealershlp would detrlmentally affect competltlon. The

relevant market was after all on the evldence before me the retall

market in vehicles generally, and not the market In Toyota vehlcles.

Generally, there vas a lack of evldence tendered by the appllcant

on the actual or probable effect of these two aspects of the alleged

understandlng. In so far as it 1 s open to draw Inferences In the

absence of posltive evldence It would seem more appropriate to draw ,

a contrary Inference from the conduct of he first and second

respondents. They are after all interested In the selling of their vehlcles In a competitlve market and they vould hardly have

appolnted a dual dealer If such was llkely to lessen competltlon.

I .

11.

In addltion I must at least be tentatlvely satlsfled that the likely

lessenlng of competltlon wlll be substantlal. It has been suggested

that to satlsfy the test of substantiallty the lessenlng of

competitlon must be conslderable and sufflclently deflnable to

permlt some factual ~udgment of Its relative Importance. (Trade

Practlces and Consumer Protection 2nd ed. para. 541). The evldence

at this stage does not satlsfy me that the applicant has f a n

chance of success on either of these aspects at trlal.

The other provlsion of the arrangement or understandmg

I

relied upon by the appllcant was to the effect that the dealerships

were de facto excluslve In that it was accepted by the three partles

that the town would only sup2ort one dealershlp. Moreover, lt was

submitted that an agreement could be spelt out between the flrst

two respondents each not to termlnate thelr particular dealerships

wlthout the concurrence of the other. On the latter point there

I

1 s lnsufflclent evldentlary foundation lald at zhls stage for

I inferrlng such an agreement. It is mere con-~ecture as to how they '

will operate In future, and ~ u s t not possible to draw thls Inference

from the fact that there 1s some evldence that they possibly operated

in con~unctlon In appolntlng the new dealer, assumlng of course

that It ultlmately 1 s establlshed they appolnted the same dealer.

If a de facto excluslve dealershlp could be spelt out of the

evidence at thls stage, It would be arguable that there vas a

likelihood of a lessenlng of competltlon. Conversely the fact

that a dealershlp mlght be termlnated on short notlce and another

dealer appolnted or the area of the dealershlp reduced would ensure ,

that the dealer operated competitlvely In selllng Toyota vehlcles

in the relevant market. If he dld not so operate to the satlsfactlon'

of the flrst and second respondents, the dealershlp would be at rlsk.

- - -. - - .-

12.

However a cruclal element In thls submlsslon 1s the necesslty to

estdl~lish an exclusive dealcrshlp, or at least an undersrandlng /

to thls effect. In the llght of posltlve evldence to the contrary

- in the agreement of 3 August 1978 between the first respondent and

E. & C. Dutton I must flnd that on the evldence before m the

applicant does nor; have a sufflclent llkellhood of success	on the
ultimate hearlng.

In respect of the second respondent there is, as abovementloned,

uncertalnty as to rwho or which company holds the dealgrshlp. In

the letter of appolntment there is not any suggestlon of an

excluslve appolntment, and nothmg to suggest that that respondent

has In any way restrlcted ~ t s rlght to termlnate, appolnt an

addltional dealer, or reduce the geographlc area of the dealership.

So long as that respondent had the rlght to take action I f the

dealer did not perform to ensure that Its product was competltlve

In the blurray Brldge market, it would fol low that an excluslve

dealership would be unllkely to lessen competitlon. Here agaln

there 1s not sufflclent evldence to support a concention that the

applxcant has a falr chance of success on this issue at trlal.

AS my conclusion at this stage 1s that the applicant has not

made out, for the abovementioned reasons, a prlma case case, I need

not consider a further dlfflculty which l l e s in Its path. The

difflculty is the consequence of the possiblllty in the case of

the second respondent and the probability In the case of the flrst

respondent that It has appointed two persons (and not a corporation)

as Its dealer. It seems very deslrable that because this will be a

substantlal issue on the flnal hearlng I refraln from lndicatlng

any further vlews. whlch vlews are in the event not

, .

I *

13.

I necessary for the reachlng of my concluslon.

.--

In vlew of my flndlng that the appllcant has not made out a

prlma facle case of contraventlon of s.45, It 1 s necessary to

conslder the zppllcant‘s case under s.46. The applicant has

correctly aclmowledged that rt has a more difflcult task of maklng

out a sufficient case here. The relevant portlons of that sectlon

as relied upon by the appllcant have been set out above. A s has

already been mentloned the flrst and second respondents are each

the only suppller In South Australla of thelr particular types

of motor xrehicles. Moreover on thls aspect of the matter certaln

evidence 1 s most Important, namely, those respondents’ contentions,

vhich are vel1 supported by documents, that they termlnated the

applicant's dealershlp because of thelr dlssatlsfactlon with its

performance as a dealer over a perlod of years. It 1 s not I

necessary to determlne the rlghts and wrongs of such dlssatlsfac-

tlon, which the appllcant contends 1 un~ustlf~ed. All that 1s

necessary at thls stage is to note that there is much evldence In

support of the contentlon that this	va the reason for the
termlnatlon.

It 1 s my oplnlon that the applicant has on the evldence before ,

me not made out a prlma facle ase, In the relevant sense, of

contraventlon of s.46. In the fnst instance It appears at least

probable that nelther of the respondents 1 s In a positlon

“substantlally to control“ the relevant market. The definltlon

of market In s.43 above 1 s slgniflcant in that It enlarges the

market in whlch those respondents are operatlng to include the

market of goods whlch are substitutable for or in competltion wlth

tkieir own goods. The market therefore,lt appears probable,rs

not merely the wholesale market for Toyota motor cars or Toyota

commercial vehlcles, as the case may be, but the expanded markec

which includes vehlcles substltutable for or In competltlon

\nth Toyota motor cars and Toyota commerclal vehicles. Seen In

this manner there 1s no evldence to date that either of them,

the first or second respondents, 1 s In a posltion to control the

expanded market. Addltionally, In the llght of the evidence that the respondents took the step of termlnatlng the dealerships because '

of thelr dlssatlsfactlon wlth the appllcant and the lack of i

evldence that elther of them exerclsed thelr undoubted rlght

of termlnation (and re-appolntment If relevant) for the purpose

of deterrlng or preventing the appllcant from engaglng in

competitlve conducc, lt 1 s not posslble to find that the appllcant I

has a falr chance of success of establishlng	a contravention of
s.46 on the evldence to date.

In concluslon It 1 s necessary to make the polnt that even if

I had found that the appllcant had made ouk a prlma facie case

of contraventlon of one or other of the sections, interlocutory

rellef would not follow as a matter of course. As mentioned at

the outset the appllcant would have had to estabhsh that the

balance of convenlence vas In its favour. Even if this was

establlshed I am uncertaln that an approprlate restralnlng order

could have been formulated. However lt was agreed that counsel

should address me further on the form of the order and other

consequentlal matters If I found that the appllcant had made out

a case for lnterlocutory rellef. As I n my vlew the appllcant has

falled, It 1 s nelther approprlate nor helpful to glve further

conslderatlon to these dlfficultles at thls stage.

15.

I .

The order of the Court 1 s that the appllcation for an

interlm ~n~unctlon 1 s retused.

l

I certlfy that thls and the 14 precedlng pages

are a true copy of the Reasons	for Judgment of
Mr. Justlce Flsher.

Assoclate

Dated: 5 September 1978.