Kelly Services Inc. and Kelly Girl of Australia Ltd v Drake Personnel Ltd

[1988] FCA 718

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JUDGMENT No. ....? !..&L .... .....

IN THE FEDERAL COURT OF AUSTRALIA	)
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VICTORIA	DISTRICT	REGISTRY	)	V. No. G.316 of 1988
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GENERAL DIVISION	1
BETWEEN:

KELLY SERVICES INC. AND KELLY GIRL

OF AUSTRALIA LIMITED

Applicants

and

DRAKE PERSONNEL LIMITED, RONALD JOHN URWIN AND

ANGEL0 VINCENT CASCONE

Respondents

COURT: NORTHROP, KEELY & BURCHETT JJ

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DATE:	25 NOVEMBER 1988
PLACE:	MELBOURNE

EX-TEMPORE REASONS F ~ R JUDGMENT

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THE COURT:	I
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On 29 September 1988 Ihe Court constituted by

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Jenkinson J. made interlocutory orders restraining the

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respondents, in substance, from 'sing the word "Kelly" in

relation to the carrying	on of.	i business in relation	to
procuring natural persons	for emlloyment	l	In industry. The
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respondents by notlce of motion bated 18 October 1988 are

seeking leave	to appeal f rom Bat	I	interlocutory judgment
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delivered on 29th day of Septembe' 1988.

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Under s.Z4(l)(a) and s.25(2) of the Federal Court

of Australia Act 1976 leave to appeal from an interlocutory

order can only be made with the leave of the Court. Order

52 r.10 of the Federal Court Rules provides the method by

which that leave is to be sought. It is sought by way of

motion in the prdceeding in which the order was made and it

has been held in the case of Thomas Borthwick and Sons

(Pacific Holdings) Limited v Trade Practices Commission

(1988) 79 A.L.R. 171 that a person seeking leave to appeal has an option of making the motion returnable before a Full Court or a single Judge.

The facts giving rise to the motion are set out in

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the reasons for fudgment of Jenkinson J. The primary basis

for the granting of the injunction was based upon a

contravention of s.52 of the Trade Practices Act 1974.

Counsel for the respondent, in moving the motion, in the

outline	of	submission and in oral argument, contended that
there was	an error of	law expressed by the trial judge in

relation to the question of the reputation of the applicant

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necessary to found the claim of	conduct in contravention of
s.52.

The High Court, in Adam P. Brown Male Fashions Pty

Ltd v Philip Morris Inc (1981) 148 C.L.R. 170 and in

particular at pages 176 to 177 made it quite clear that

interlocutory orders, including interlocutory injunctions,

are matters of practice and procedure and that an Appeal

Court should not interfere with the discretion of the trial

Judge unless there is some error of principle or some

substantial injustice caused by the effect	of	the order
itself.

Having heard the arguments put, the Court is

satisfied that nothing has been said which shows that the

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trial Judge made any error of law which would justify the

granting of leave to appeal from the interlocutory judgment.

The trial Judge made special reference to the problems facing

the first respoqdent and the damage likely to be suffered by

it if, in due course, the injunction was held to be

inappropriate. The difficulty	of establishing the amount of
damages was recognised and in	so doing it made it clear that
he gave great weight to those considerations.	No substantial
injustice is caused by the effect	of the order.

In his reason for judgment the trial Judge did not

express any final views at all on any of the questions of law

raised but in our opinion, quite correctly, stated that there

were serious issues to be tried and we see no error which

justified the granting of leave.

Accordingly, the motion