Granny Mays Management Pty Ltd v Adra

[1991] FCA 939

JUDGMENT No. ........ ,........ J &% !M ,

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH W&ES	DISTRICT REGISTRY) NO NG 165 of 1991
GENERAL DIVISION	1

Between : GRANNY MAY 'S MANAGEMENT P m

LIMITED

Applicant

and: PHILLIP ADRA & ANOR

2 0 J A N 2003 Respondent

EX TEMJ?ORE JUDGMENT

EINFELD J SYDNEY 25 JUNE 1991

The respondents in this case under the Trade Practices Act are individuals. The applicant therefore is compelled to bring and has in fact brought the proceedings under section 6 ( 3 ) of the Trade Practices Act which extends the operation of that Act to covering relevantly offending conduct:

t o the ex ten t t o which the conduct invo lves the use o f

postal te legraphic o r te lephonic s e r v i c e s .

Having heard argument on this matter now on I think three separate occasions, it seems to me that at best only a small part of the matter has any basis at all in the jurisdiction of the Federal Court. Although that may permit the Federal Court to assume jurisdiction, usually called the accrued jurisdiction, in the passing off action which is the true basis of the case, it is clear that an essential part of a passing off action, namely damages, are neither large in quantum nor the prime or a significant purpose of this case. Injunctive relief appears

likely to be its main goal. The New South Wales Fair Trading Act

provides another basis for the whole claim which the Trade
Practices Act does not provide on the facts of this case.

This type of litigation is most naturally and commonly to be found in the Supreme Court. Although it will be for the applicant in the first instance and that Court in due course to decide where the case will be listed, to the extent to which injunctive relief is urgent, the equity division has an ample and regularly energised jurisdiction to supply the major relief sought here. Although the applicant tried to suggest otherwise, it is inconceivable as a matter of practical experience that, so far as injunctive relief at any rate is the major matter in dispute at this time, that it would be elsewhere than in the equity division.

By section 5(4)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act [l9871 (Cth) this Court is bound to transfer a proceeding to the Supreme Court if it is in the interests of justice that the case be determined by that Court. In my opinion this is one such case. I therefore transfer the proceeding to

the Supreme Court.