Indoor Holdings Pty Ltd v Bennett - [2010] WASC 242

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: INDOOR HOLDINGS PTY LTD -v- BENNETT [2010] WASC 242

CORAM: LE MIERE J

HEARD: 10 AUGUST 2010

DELIVERED : 9 SEPTEMBER 2010

FILE NO/S: CIV 1664 of 2006

BETWEEN: INDOOR HOLDINGS PTY LTD
Plaintiff
AND
PETA JANE BENNETT
Defendant

Catchwords:

Practice and procedure - Application for joinder - Undertaking as to damages - Usual undertaking contained in practice direction - Whether non-party included in undertaking - Whether undertaking would apply retrospectively

Legislation:

Interpretation Act 1984 (WA), s 44(1)
Supreme Court Act 1935 (WA), s 4

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr D K Cooper
Defendant:     Mr A C Willinge
Applicants:     Mr A C Willinge

Solicitors:

Plaintiff:     Cooper Legal Pty Ltd
Defendant:     Galic & Co
Applicants:     Galic & Co

Case(s) referred to in judgment(s):

Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249
Bond Brewing Holdings Ltd v National Australia Bank Ltd (No 2) [1991] 1 VR 386; (1991) 1 ACSR 445
Chisholm v Rieff (1953) 2 FLR 211
European Bank Ltd v Evans [2010] HCA 6; (2010) 240 CLR 432
General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125
Ketteman v Hansel Properties Ltd [1987] AC 189
Review Australia Pty Ltd v RedBerry Enterprises Pty Ltd [2003] FCA 1009
Smith Kline & French Laboratories (Australia) Ltd v Secretary Department of Community Services & Health (1989) 89 ALR 366
Smith Kline Beecham Plc v Apotex Europe Ltd [2006] 1 WLR 872
Smith Kline Beecham Plc v Apotex Europe Ltd [2007] Ch 71
Universal Music of Australia Pty Ltd v Cooper [2004] FCA 78

LE MIERE J: The plaintiff carried on business providing services to retail pharmacies under or by reference to the name 'Pharmacy 777'. Ian Charles Hamilton and Donna Lorraine Pearson (the applicants) licensed the defendant to use the name 'Pharmacy 777 Mandurah'. In 2006 the defendant started to operate a pharmacy in Dower Street, Mandurah under the name 'Pharmacy 777 Mandurah Car Park Chemist'. The plaintiff commenced this action to restrain the defendant from using the name 'Pharmacy 777' or any similar name and for damages for loss and damage it claims to have suffered by reason of the defendant's conduct.
On 6 July 2006, upon the plaintiff giving the usual undertaking as to damages, the court made an order for an interlocutory injunction restraining the defendant from using the name 'Pharmacy 777' or any similar name. The injunction was discharged on 26 October 2009. On 13 January 2010 the applicants and the defendant applied for an order that they be entitled to enforce the interlocutory undertaking as to damages given by the plaintiff and for an order that there be an inquiry as to damages suffered by the defendant and the applicants.
The applicants now apply to be joined as defendants. The plaintiff opposes the joinder on the grounds that the applicants are not entitled to enforce the interlocutory undertaking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] WASC 242
Decision Date: 9 SEPTEMBER 2010

CaseChat Overview and Summary

The case involved Indoor Holdings Pty Ltd, the plaintiff, and Bennett, the defendant, in the Federal Court of Australia. The dispute centred around an application by Bennett to join a third party, who was not initially a party to the proceedings, to the litigation. The application hinged on whether an undertaking as to damages, given in the context of the litigation, applied to the third party that Bennett sought to join. The plaintiff argued that the third party was not bound by the undertaking.

The court was required to determine the extent of the application of the damages undertaking and whether it encompassed the third party proposed to be joined to the litigation. This involved interpreting the terms of the undertaking and understanding the scope of the parties bound by it. The court also needed to examine whether the undertaking could be applied retrospectively to include the third party in light of the application for joinder.

The court concluded that the damages undertaking did not extend to the third party proposed to be joined. The court found that the usual undertaking contained in the relevant practice direction did not include non-parties to the proceedings. Therefore, the third party was not bound by the terms of the undertaking. Additionally, the court held that the undertaking could not be applied retrospectively to cover the third party, as it was not part of the original litigation. Consequently, the application for joinder was dismissed on the grounds that it did not comply with the procedural requirements set out by the practice direction.

The court ordered that Bennett's application for joinder be dismissed. The decision clarified the scope of undertakings as to damages in litigation and reinforced the necessity for parties to strictly adhere to procedural requirements when seeking to join additional parties to ongoing proceedings.

Orders