Emjay Motors Pty Ltd v Cabcharge Australia Pty Ltd

[1992] FCA 219

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	1 No. VG 78 of 1992
1
GENERAL DIVISION	1
B E T W E E N :

S W A Y MOTORS PTY. LTD.

Applicant

CABCHARGE AUSTRALIA PTY. LTD.

JUDGE :	Heerey J.
PLACE :	Melbourne
DATE :	20 March 1992

EX TEMPORE REASONS FOR JUDGMENT

I have come to the conclusion that I should grant the

injunction sought. This matter has been extensively debated by experienced counsel on both sides and I do not thmk any useful purpose would be served by me canvassing the evidence or commenting on the various inferences which may or may not be derived from it.

sought is not in form or in substance mandatory. The practice	referred to by Gibbs CJ in the State of Oueensland v
Australian Telecommunications Commission (1985) 59 ALJR 562 is directed towards cases where there is mandatory relief sought in a real sense, such as, for example, the demolition of a building erected unlawfully or, as in that case itself, an injunction that Telecom provide maintenance to certain telephone systems installed in the offices of the Queensland Government.
Here we have evidence of a practice which has existed for some years on a regular basis of the applicant cashing vouchers with the respondent or, more correctly, presenting them to the respondent and subsequently receiving cash from Regal Combined Taxis Limited. The injunction simply has the effect of preventing interference with that practlce and course of business.
As to the balance of convenience, I am satisfied that it is very much in favour of the grant of an injunction. If it turns out at trial that the injunction should not have been granted, the respondent will have suffered little tangible loss at all since it is common ground that if any fraudulent dockets are cashed by the applicant the money in respect thereof has to be paid by the applicant.
On the other hand, if no injunction is granted but the applicant succeeds at trial I think I can infer that it will
have lost a very substantial amount of goodwill as well as loss which may be very difficult to quantify in money tens.
As I remarked earlier in the course of argument, it is highly desirable that this case be heard as soon as possible since the ordinary business activities of the parties must be affected by the uncertainty awaiting the outcome of proceedings. Without at this stage making a formal order for a speedy trial, I would record that on my assessment of the case it certainly deserves to be pressed forward speedily and I would think that with a reasonably tight timetable of should be possible to have a trial in not much more than one month's time.

I am satisfied that there is a triable issue as to whether there is a separate market within the meaning of s.46(1) of the Trade Practices Act 1974 for the provision of credit services for users of taxis and also that there is a triable issue as to whether the impugned policy of the respondent was initiated for one of the purposes proscribed by ss.46(l)(a) and (c). I particularly note that there is conflicting expert evidence from two very eminent experts in the field of market competition economics.

I agree with the submission of M r Shavin that the relief

I certify that this and the preceding four (2) pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Heerey

Dated:  q u 14q

Appearances

Counsel for the Applicant:	M r D Shavin
Solicitors for the Applicant:	Mark G Caldwell
Counsel for the Respondent:	Mr J Fajgenbaum Q.C. wlth
Mr I R Jones
Solicitors for the Respondent:	S D Ratner & CO by their Victorian agents Shatin & Bernstein