| I N THE | FEDERAL | COURT | O F AUSTRALIA | ) |
| ) |
| NEW SOUTH WALES DISTRICT | REGISTRY | ) | N o . | G 1 4 9 | of | 1981. |
| ) |
| GENERAL | D I V I S I O N | 1 |
| I N THE MATTER OF | THE | TRADE | |
| |
| BETWEEN: | | -- | COMITE | INTERPROFESSIONNEL | |
| DU V I N DE | CHAMPAGNE | and | |
| |
| - |
| |
A p p e l l a n t s
R e s p o n d e n t s
ORDER
| 1. | T h e appeal be dismlssed with costs. |
| The O r d e r of | the C o u r t is that : |
| I N THE | FEDERAL | COURT | OF | AUSTRALIA | ) |
| NEW SOUTH | WALES | D I S T R I C T | R E G I S T R Y | ) | N o . | G 1 4 9 | of | 1981. |
| G E N E R A L | D I V I S I O N | ) |
| I N | T H E | M A T T E R | O F | T H E | T R A D E |
| P R A C T I C E S | A C T | 1974 |
| BETWEEN: | C O M I T E | I N T E R P R O F E S S I O N N E L | DU |
| ~E-EE-C%%IPAGNE | and | C H A R L K |
| B A R K E R | A U S T R A L I A | P T Y . | L I M I T E D |
A p p e l l a n t s
R e s p o n d e n t s
| CORAM: | B o w e n | C . J . , | M c G r e g o r | and | E l l i c o t t | JJ. |
| T h l s i s an appeal a g a l n s t a | decis ion of | a | Judge of |
| thls | C o u r t , | F r a n k i | J. | d l s m i s s l n g | an | appl icat ion | by | the |
| appel lants | for | i n t e r l o c u t o r y | r e l i e f | m | the | f o r m of | ce r t a ln |
| i n j o n c t l o n s | pending | the | hea r lng . | The | a m e n d e d | app l l ca t ion | l n |
| t h e | p roceed ings , | i n s o f a r | as | it | asked | f o r | i n t e r l o c u t o r y |
| relief, was in terms | limnlted to Freixenet wine and sought |
| orders | estraining | the | r spondents | from, | in any |
advertlsement, poster or promotlonal material in connectlon
| wlth the promotion, advertlsing or sale | of Freixenet wlne |
using the word "champagne" or the expression "unknown
imported champagne" or any other expresslon includlng the
| words "unknown" and "champagne". Although not stated | in the |
| formal orders sought in the amended application, the |
| applicants before His Honour also pressed | a | claim for an |
| order restrainlng the respondents from uslng the | word |
| "champagne" or the words "imported champagne" | or | "Spanish |
champagne" or "imported Spanish chavpagne" in relation to
Frelxenet wlne.
| The amended applicatlon including the claim | for |
| interlocutory relief was based upon the provlsions | of ection |
| 52 (1) of the Trade Practices | Act 1974 which prohlbits | a |
| corporation in trade | or commerce engaging 5n conduct which is |
mlsleadlng or deceptive or is likely to mislead or decelve.
The learned trial Judge refused the lnterlocutory injunctions
| sought. He held | that he was | not | satisfied | that | the |
| appllcants had made | out a prima facie case in the sense ln |
| which this expression is used in Beecham | Group Limlted | v. |
| Brlstol Laboratories Pty. Limited (1968) 118 C.L.R. | 618. | He |
arrived at this result by holding on the evidence before hlm
| that the word "champagne" was descriptive | of a particular |
| type of wlne, when | the word was used in trade or commerce in |
| Australia. It was used in this way in relation | to various |
brands of Australian wine on the market. The applicants did
not seek to prevent this. His Honour was not satisfied that
a prlma facie case had been made out that the words "lmported
champagne" were restricted in their appllcation ln Australla
| to champagne produced by the great houses | In the Champagne |
District of France. Evidence was put before him of various
| countrles exporting wine to Australia which was | called |
| "champagne". | HIS Honour stressed that | at the lnterlocutory |
| stage his flndings were provisional | and based very largely | on |
| affidavit evidence | in circumstances where the deponents had |
not been cross-examlned.
| We are not persuaded that any reason | has been shown |
| why we should Interfere with Hls | Honour's decislon on this |
| aspect | of | the matter before us. Since the issues involved |
would have to be determined at the trial, where the evidence
may to some extent be different, it is advisable that we
should refrain from entering upon a discusslon of the
| evidence in these reasons. | We are mlndful that this is an |
appeal agalnst an interlocutory order, an exerclse attended
| with difflcultles that are well known. The order sought to |
be upset is in its nature discretionary. An appeal court is always reluctant to Interfere with the exercise of a
| discretion. | A s | the High Court | has recently said, an |
| lnterlocutory order for | in~unctlon is a matter of practice |
| and procedure, referring | at the same time to the fact that |
appellant courts exerclse "particular cautlon in reviewing
| decisions pertainlng to practlce and procedure": see Adam | P. |
| Brown Male | F | ashions Pty. Limited v Phi1 | -. ~ p | Morris Incorporated |
| and Anor (1981) 35 A.L.R. | 625 at 629: see | also In re the |
| Will of F.B. Gilbert (Deceased) (1946) | 46 | N . S . W . R . | 318. |
| His Honour went | on to express the view that even if | he |
| were wrong in holdlng that | no prima facle case | was |
| established, nevertheless | he would refuse relief | on the |
| ground that the balance | of convenience was against granting |
| an injunction. One proposition asserted by His Honour in | the |
| course of his | reasons | for | flndlng | that | the | balance | of |
| convenience was against the grant | of rellef was that "the |
| flrst respondent has made some sales | of wine as Freixenet |
| champagne for some 15 years". This | was criticlsed by the |
| appellants. | The | evldence | which | H l s Honour | apparently |
accepted was to the effect that the first respondent had over
| a period of some | 15 years sold Freixenet wine in the same |
| bottle as It was currently using. The label | on this bottle |
refers to the "methode champenoise" but does not carry the
| word "champagne". The evidence as to the use | of | the word |
"champagne" by the first respondent in trade and commerce
indicated that It had been using it in promotional material
| for 4 or 5 years. We do not consider | that, if there was |
| error In His Honour's reference to 15 years, the error was | of |
such slgnlficance in relation to hls decision the balance of convenlence that this Court should interfere, If It was otherwlse of the vlew that the prima facie case had been made
| out. His Honour summed up the position | in | relatlon to the |
balance of convenience in the following way:
"It seems to me that the questions which arise in
| this case are | of considerable significance. | I |
| have in mind | In particular the unchallenged use |
| of the word 'champagne' for | a product made | by the |
'methode champenoise' in Australia and that it
seems undesirable to interrupt the first
respondent's business unless the benefit to the
public is signlficant. It seems to me that the
issues which arise in this matter can best be
| determined at the trial | of the actlon". |
| Altogether we think that His Honour' | S | approach was |
correct.
It would be possible to give an early hearlng for the
| trial of this | matter. | At | such | a | hearing | the | complex |
questlons of fact which are in lssue could be properly
investigated and the questions of the law arlslng from them
| in | consequence | settled | with | some | authority. | The | learned |
trial Judge did provide for pleadings and a timetable for the
| partles which would enable them | to obtaln a relatlvely early |
| hearing. | Thus | he directed by consent | the | filing | of a |
Statement of Clalm by the apFellants on or before 29 January 1982 and successive steps in a timetable which would have led to the final step of interrogatorles being answered on or
| before 11 June 1982. | It appears that advantage has not been |
taken of these arrangements for an early hearing and that no
| Statement of Claim has | yet been filed | by the applicants, |
(appellants in the appeal). Finally, at the hearing the first
respondent offered an undertaklng in the following terms:
| l ' . . . . .it | will | not , | nor | w i l l | it | cause | any | o | ther |
| p e r s o n , | i n | t r a d e | or | commerce | and | In | connec t ion |
| wlth | t | promotlon, | e | advert isement | o r . sale | of |
| Freixenet | Spanish | champagne, |
| (a) | u s e | the | proposed | advert lsement , | a | copy of |
| which | i s e x h i b l t | ' A ' | h e r e i n , |
| ( b ) | In | any | advert isement | use | the | word | 'unknown' |
| as | it | a p p e a r s | i n | t h e | e x p r e s s l o n | ' t h e | unknown |
| ( c ) | f u r t h e r | d l s t r i b u t e | t h e | F o s t e r | exhib i t | ' B ' |
h e r e i n " .
| The | e x h l b l t | ' A ' | r e f e r r e d | t o | i n | t h a t | u n d e r t a k l n g | w a s | a |
| newspaper advertisement headed | "Champagne | Buffs" which | a t t h e |
| hear lng | before | H i s | Honour | became | e x h i b i t | 'J' | . | The | e x h i b i t |
| ' B ' | r e f e r r e d | t o | i n | t h a t | undertaking | was | a | poster | headed |
| "Unknobn Imported Champagne" which a t t h e | h e a r i n g | became |
| e x h i b i t | ' € 1 ' . | The | undertaking | was | r e l e c t e d | b | y | t h e | a p p l l c a n t s |
| so | t h a t the respondents | did | not | become | bound | by it. However, |
| a t | t h e | h e a r i n g | w e | were | in formed | tha t | he | respondent | had | In |
| f a c t | b e e n | c a r r y i n g | o u t | t h e | terms | o f | t ha t | unde r t ak lng | and |
| c o u n s e l | f o r | t h e | first respondent | informed | u s | t h a t h i s c l i e n t |
| would cont | inue | to observe | it. |
| I n the | r e s u l t w e would | dismiss | the | appeal | with | costs | . |
| The | Order of the Court | w i l l | be | appea l d i smissed wi th cos ts . |