Milora Pty Ltd v Philbest Pty Ltd

[1992] FCA 214

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	)
GENERAL DIVISION	) NO. VG 132 Of 1992
B E T W E E N :

MILORA PTY. LTD.

(A.C.N. 006716267) Applicant

- and -

PHILBEST PTY. LTD.

(A.C.N. 004015972) Respondent

Coram:	Olney J
Place:	Melbourne

Date : 16 April 1992

MINUTE OF ORDERS

THE COURT ORDERS:

1.   The applicant have leave to renew its application for interlocutory injunctions before a judge of the Court on 23 April 1992;

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

2.    The applicant cause the respondent to be served forthwith with the application herein and supporting affidavit, together with a copy of this order such service to be effected by facsimile transmission to facsimile no. [phone];

3.    Costs reserved.

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	)
GENERAL DIVISION	) No. VG 132 of 1992
B E T W E E N :

MILORA PTY. LIMITED

Applicant

- and -

PHILBEST PTY. LIMITED

Respondent

Coram:  Olney J

Place	:	Melbourne
Date	:	16 April 1992

EX TEMPORE JUDGMENT

The evidence that has been put before me on this application

entered into between the applicant and the respondent. It is	suggests that there was some type of dealership arrangement
equally consistent with that arrangement having been terminated unilaterally by the respondent on a date in March of 1992. The material relied upon leaves it open as to whether that was on 14 March or 25 March, but on the applicant's evidence, so far as there is evidence before me, there seems to be no doubt that on the latter of those dates it was made clear to him by the respondent that the dealership
had been terminated.
The applicant seeks by way of relief injunctions preventing the respondent from terminating or attempting to terminate his dealership; preventing the respondent from engaging or attempting to engage any Melbourne agent in respect of the sale of Viscount Caravans; and preventing the respondent from interfering with the applicant's right to participate in the Melbourne Caravan and Camping Show. If the facts are as appears on the material - and it is not to say that when the matter is more fully investigated a different view would not be open, I think that at this stage I have to proceed on the basis that there has been a termination. And, accordingly, it would be inappropriate to attempt to restrain the respondent from doing something that has already been done.
The affidavit evidence concerning the engagement of another Melbourne agent is double hearsay. The deponent says that he was told by somebody who was told by somebody else that the
That does not appear to be a very strong foundation to grant third person was seeking to be appointed as a Viscount dealer.
an injunction at this stage of the proceedings. And, again, on the evidence that is before me there is nothing to really suggest that the respondent is in any way interfering with the applicant's right, which is its own right, to participate in the show. I think the real complaint appears to be that the respondent apparently wishes to also participate in the show.
On what is before me at this stage, I would have considerable reservation in invoking the jurisdiction of this Court to grant injunctions as sought. I appreciate that the matter has been brought on at short notice, although there has been no explanation as to what has happened since 25 March. It appears that the applicant's solicitors made some demand on the respondent by letter on 3 April, but it was not until today that it was thought necessary to pursue the matter. Having regard to all these things, I am not prepared to grant ex parte any of the injunctions that have been sought. It has not been shown that a further delay of a relatively short period is going to cause undue hardship or harm to the applicant.
It is desirable that, where possible, a respondent should have the opportunity of being heard, and I do not regard a fax sent to a Sydney number a short time before the matter is called on to be adequate. There is no evidence as to when the fax was sent but the reply from the respondent came at a quarter past
appropriate way for this matter to proceed is to give to the three, about half an hour before this hearing commenced. The
applicant leave to renew its application before a judge at the earliest convenient time, and that would be on Thursday 23 April.
I propose adjourning the application to that date. I will further order that the application and supporting affidavits, together with a copy of this order, be served forthwith on the respondent (if they have not previously been served) and that service be effected by way of facsimile transmission to the respondent's facsimile service number [phone]. That appears to be the number from which the respondent's reply today emanated. Such notice will provide the respondent with at least a minimum opportunity of being heard, and it would seem to me that the interests of the applicant will not be unduly affected prejudicially by the delay. There will be orders accordingly. The costs of today's application will be reserved.

I certlfy that this and the

preceding 3 pages is a true copy of the Ex Tempore Judgment of the Honourable Mr. Justice Olney

Dated: Zq

- I*C~Z_

Heard:	16 April 1992
Place:	Melbourne
Judqment :	16 April 1992
Counsel for the applicant:	Mr L.M. Schwarz
Solicitors for the applicant:	Leddra Westmore & Co.