Kwa, Francis Tak Lau v Australian Youth Hostels Association

[1997] FCA 991

FEDERAL COURT OF AUSTRALIA

PROCEDURE  - mandatory injunction - no substantive application - prior application dismissed - costs of prior application unpaid - parallel proceedings in Supreme Court - whether different state of circumstances or new evidence - where motion should be heard.

Trade Practices Act 1974 (Cth), ss 45, 46, 55A

The Mayor, Aldermen and Burgesses of Liverpool v Chorley Waterworks Co. 99 RR 347
Attorney-General v The Sheffield Gas Consumers Co. 98 RR 151

FRANCIS  TAK LAU KWA v AUSTRALIAN YOUTH HOSTELS ASSOCIATION
WAG 104 of 1997

R D NICHOLSON J
PERTH
12 SEPTEMBER 1997

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	WAG 104 of 1997

BETWEEN:	FRANCIS TAK LAU KWA Applicant
AND:	AUSTRALIAN YOUTH HOSTELS ASSOCIATION Respondent

JUDGE:	R D NICHOLSON J
DATE OF ORDER:	12 SEPTEMBER 1997
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The motion be dismissed.

1. The applicant pay the respondent’s costs to be taxed and paid forthwith.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	WAG 104 of 1997

BETWEEN:	FRANCIS TAK LAU KWA Applicant
AND:	AUSTRALIAN YOUTH HOSTELS ASSOCIATION Respondent

JUDGE:	R D NICHOLSON J
DATE:	12 SEPTEMBER 1997
PLACE:	PERTH

REASONS FOR JUDGMENT
(EX TEMPORE)

HIS HONOUR:   This matter comes before the Court on a notice of motion for an interlocutory injunction supported only by an application for such an injunction.  The injunction sought is against the respondent to compel it to publish the applicant's advertisement, as published in the YHA Australia 1997 Accommodation and Discount Guide and in the YHA Australia 1998 Accommodation and Discount Guide valid from 1 October 1997 to 30 September 1998.

An injunction in such terms would be a mandatory injunction compelling publication in those terms.  Such an injunction will not normally be granted on a motion except in special circumstances: see Shepherd Homes Ltd v Sandham [1971] Ch 340. The special circumstances said to apply here are that, unless the respondent is injuncted today, the publication will proceed and the applicant and his business will receive no advertisement in it to the serious detriment of both of them.

There are four serious obstacles to the motion being heard.  The first is there is no substantive application.  For the purposes of enabling the applicant to address the Court, it was accepted by counsel for the respondent it could be assumed the motion was capable of being supported by an application being filed in the same terms as that which was filed by him in matter WAG 96 of 1997 before this Court.

Secondly, application WAG 96 of 1997 itself gave rise to an application for an interlocutory injunction.  It was heard by Lee J on 29 August 1997.  On that occasion the applicant, who is a life member of the Youth Hostels Association of Western Australia Inc (“the YHAWA”), was represented by counsel.  In brief oral reasons his Honour dealt with each of the arguments put before him or likely to be raised in the applicant's case and found there was no serious question to be tried and the balance of convenience did not favour the making of an interlocutory injunction.  On the face of it, the motion today seeks to re-activate the same matters which came before Lee  J.

Thirdly, it is said by the applicant, but contested on behalf of the respondent, the application for an interlocutory injunction is brought here at the direction of Scott J made during proceedings against the present respondent and the YHAWA in the Supreme Court of Western Australia.  I am told, on behalf of the respondent, and it is not disputed by the applicant, the interlocutory application in those proceedings was dismissed as against the present respondent but remains on foot against the YHAWA.

There is therefore the serious possibility that even if the applicant filed an application in this matter to support the motion, in terms the same or similar to that in matter WAG 96 of 1997, he would be endeavouring to litigate in this Court matters which are the subject of litigation in the Supreme Court of Western Australia.  In that latter Court, as I have said, the YHAWA is the remaining respondent and was the first respondent in former matter WAG 96 of 1997.

Finally, on a more technical level, I note that in Kerr on Injunctions, 6th edn, at p664 it is stated:

“If a motion for an injunction has been refused with costs, a second motion for the same object cannot be made until those costs have been either paid or secured by payment into Court.”

Lee J in WAG 96 of 1997 ordered that the present applicant pay the respondents’ costs of that application.  There is no evidence such payment has occurred or been proffered.

It is stated by the applicant the application before Lee J was handicapped by the fact the barrister representing him failed to put before the Court evidence which was then available and which may have assisted his case.  In Kerr on Injunctions (supra) at p663 it is accepted, citing The Mayor, Aldermen and Burgesses of Liverpool v Chorley Waterworks Company 95 RR 347 and Attorney-General v The Sheffield Gas Consumers Company 98 RR 151, that:

“[T]he dismissal of the action does not prevent the plaintiff from bringing another for the same purpose under a different state of circumstances, or upon new facts.”

That statement is made in the context of the consideration of the effect of initiation of a new action upon injunctions.  The implication is that if there are new facts a fresh application may be made for an injunction.

With that consideration in mind, the Court, with the consent of the respondent, heard the applicant as to what fresh evidence there may be which he would bring before the Court in support of the present motion if it could be heard.  Taking the matters referred to in the reasons of Lee J as an index of the issues upon which the applicant might have fresh evidence, the position appears as follows.

In relation to s 45 of the Trade Practices Act 1974 (Cth) (“the Act”), namely the allegation the respondent has entered into a contract containing an exclusionary provision, or having or likely to have the effect of substantially lessening competition, the applicant has drawn attention to two contracts.  These are the contracts which he says his counsel on the prior occasion failed to bring to the attention of the Court.  The first contract is one from 1 June 1990 for 12 months between himself and the YHAWA.  There is evidence that while that contract was not expressly renewed, it was rolled on, as it were, until he entered into a contract with the same Association for the period from 1 July 1995 to 30 June 1996.  In that latter contract in cl A.7(d) it is relevantly stated:

“In order to permit the Association to list the Hostel in the annual Australian YHA Accommodation Guide (Handbook) the Operator is to advise the Association by 30 June each year (or such date as advised by YHA) of the accommodation charges, conditions and facilities to apply at the Hostel from the following 1 October...”

It is this clause which the applicant relies upon as evidence of the contract having some effect within the terms of s 45 upon him.

This additional evidence, assuming it not to have been brought to the attention of this Court on 29 August 1997 as contended by the applicant, is not evidence which assists his case. It is evidence of a contract between himself and the YHAWA. That is not a present respondent. There is no evidence of any contract which can attract the application of s 45 in respect of the present respondent.

For the applicant it is submitted nevertheless the YHAWA is to be understood as being in a position of reciprocity with the present respondent, so the actions of the former can be regarded as the actions of the latter.  He has drawn to the attention of this Court the constitution of the YHAWA.  In cl 4.4 it is stated that body and its Council must follow and adopt, as far as possible, having regard to any special conditions in existence or operating in Western Australia, all policy directives made by the International Youth Hostels Federation (“the IYHF”) and the respondent.  Furthermore it provides if any conflict arises between the policy directives, suggestions or recommendations of the IYHF and the respondent, the policy directives, suggestions or recommendations made by the respondent must prevail.  In my opinion there is nothing in that provision which has the consequence in law that contractual actions of the YHAWA are in any way arguably the contractual acts of the respondent.

In relation to s 46 of the Act, which deals with misuse of market power, the applicant has again stated his case. It is an appealing one in the sense it graphically illustrates the significance to him of the loss of the opportunity to advertise in the respondent’s publication as a consequence of his loss of membership of the YHAWA effective from 30 June 1997, that is, the date upon which the contract his last contract with that body expired.

Nevertheless, the fact is he brings no new evidence the respondent has a substantial degree of power in the market nor that the respondent is taking advantage of that power in the requisite ways for the section.  That does not, however, preclude him obtaining such evidence, if it exists, for the purpose of arguing his substantial case.  The point is, however, there is not presently evidence before the Court on those issues to support his application to renew the application for an interlocutory injunction previously rejected by this Court.

In relation to s 55A of the Act dealing with misleading conduct, the applicant relied upon, as his counsel had previously, the alleged misleading conduct by employees of the YHAWA. That is not conduct relevant to the respondent, nor is it new evidence.

Not surprisingly, the applicant, as an unrepresented person, does not bring any fresh argument to the questions of implied term of contract or the issue of estoppel and there is nothing by way of new material upon which I conclude there may be arguments now able to be sustained on the basis of either of those principles in law.

The applicant addressed the issue of whether there is a serious question to be tried by turning in particular to the fact Scott J in the Supreme Court adjourned the Supreme Court action and the Equal Opportunity Commission did not refuse his application.  This, he submits, shows he has a serious question to be tried.  In this argument the applicant misunderstands what is required to establish a serious question.  To reach that level, it is necessary for him to show the arguments of law upon which he relies are ones to be taken seriously for the purposes of an interlocutory injunction and the invocation of the power of the Court in that respect.  The actions of other courts and tribunals are not of that character.

Then the applicant, in his argument today, turned again to questions of convenience pointing to the serious damage which he would suffer compared to the relative lack of harm to the respondent.  He points also, by way of assertion, to the fact his hostel is one of only a few with a “high backpack rating” and should not be made, in a weighing of the balance of convenience, to suffer the loss of business which the failure to advertise may occasion.

The failure of the applicant by way of new evidence to establish there are serious questions to be tried at law means the balance of convenience is not a factor which can weigh as a final determination of the matter.  I note, however, on the prior occasion Lee J weighed the balance against the applicant because of considerable delay and the absence of any explanation of the delay in bringing the application between May, when he was told his contract would not be renewed with the YHAWA, and the date of his lodgement of the application in this Court.  Today there is no fresh evidence brought as to whether there is any explanation to offer for such delay.  I do not consider the events recited in the applicant’s affidavit can be so characterised.

For these reasons I consider it is not appropriate for the Court to again hear any application from the applicant in the terms raised by the motion.  It should therefore be dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON J

Associate:

Date:              18 September 1997

Counsel for the Applicant:	F T L Kwa
Solicitor for the Applicant:	None on record
Counsel for the Respondent:	K W Stewart
Solicitor for the Respondent:	Pullinger Stewart
Date of Hearing:	12 September 1997
Date of Judgment:	12 September 1997