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
imported champagne'
,
( 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 .
Details
AGLC
Doyle v Chief of Staff [1982] FCA 124
Case
[1982] FCA 124
Decision Date
CaseChat Overview and Summary
The case of Doyle v Chief of Staff involves an appeal against a decision dismissing an application for interlocutory relief in the form of certain injunctions. The applicants, Comite Interprofessionnel du Vin de Champagne and Charles Barker Australia Pty Limited, sought to restrain the respondents from using specific terms in relation to the promotion, advertising, or sale of Freixenet wine. The application was based on the Trade Practices Act 1974, specifically section 52(1), which prohibits misleading or deceptive conduct in trade or commerce. The trial judge dismissed the application, finding that the applicants had not established a prima facie case and that the balance of convenience did not favour granting the injunctions.
The court considered the discretionary nature of interlocutory injunctions and the reluctance to interfere with the trial judge's decision, especially given the complex factual issues involved. The court also noted the trial judge's arrangement for an early hearing and the respondents' offer of an undertaking which the applicants rejected. Despite some criticism of the trial judge's findings, the court found no significant error that warranted interference. The appeal was dismissed with costs. The final orders of the court were that the appeal be dismissed with costs.