Minister for Immigration and Ethnic Affairs v Daniele

[1981] FCA 212

U ub ,L..- -.

*- L Irs-r IN THE FEDERAL COURT OF AUSTRALIA )

N E W SOUTH WALES DISTRICT REGISTRY ) No. G.149 of 1981

GENERAL DIVISION 1

BETWEEN: COMITE INTERPROFESSIONNEL

DU VIN DE CHAMPAGNE

Applicant

AND: N.L. BURTON PTY. LIMITED

T/as FREIXENET SPANISH CHAMPAGNE DISTRIBUTORS

AND:

GARLAND FARWAGI S! PARTNERS

PTY. LIMITED

Respondents

Applicants in the motion.

O R D E R

JUDGE MAKING ORDER:	FRANK1 J.
DATE OF ORDER:	25 November 1981
WHERE MADE:	Sydney.
THE COURT ORDERS THAT:

1. The application by the applicants in the motion to be

joined as respondents is refused.

2. The applicants t8 the motion have liberty to apply as

they may be advised after the statement of claim has

been filed upon 7 days notice to the other parties.

3.

The applicant in the action is to serve its statement in this motion at the same time as it or they are filed.

4. The question of costs is reserved.

L -

t

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) NO. G.149 OF 1981

DIVISION GENERAL )

BETWEEN: COMITE INTERPROFESSIONNEL

DU VIN DE CHAMPAGNE

Applicant

AND: GARLAND FARWAGI E, PARTNERS

PTY. LIMITED

Respondents

AND :

Applicants in the motion.

FRANK1 J.

25 November 1981

REASONS FOR JUDGMENT IN MOTION

Comite Interprokessionnel Du Vin De Champagne (hereinafter called "Comite") seeks injunctive relief pursuant to

s.80 of the Trade Practices Act 1974 ("the Act") alleging a

Contravention of s .52 by N.L. Burton Pty. Limited T/as Freixenet

Spanish Champagne Distributors and Garland Farwagi & Partners

.,, . ' i

, i c, , 1,. 2.

Pty. Ltd. ("the respondents"). Comite also seeks an

interlocutory injunction. The application by Comite for

interlocutory relief was first before me on 4 November 1981 when

I adjourned the matter to a later date to give the respondents

sufficient time to properly prepare the matter.

On 10 November 1981 an application was made on behalf of

B. Seppelt h Sons Pty. Limited, S. Wynn (S.A.) Pty. Limited, Penfolds Wines Pty. Limited and The Australian Wine & Brandy Producers Association Incorporated ( "the applicants in this motion") to be joined as respondents.

It was alleged in an affidavit filed by Comite that it is a corporation established by a law of the Republic of France and that one of its functions is to take steps in countries

outside France to protect the appellation "Champagne" as used by

the producers of wine known as "Champagne" in the district. of

France which is also known as the Champagne District. It is

alleged by Comite that the first respondent is importing and

distributing a white sparkling wine in Australia called

"Freixenet" which Comite believes is produced in Spain.

The original application, inter alia, sought an

injunction restraining the respondents from conduct that is

misleading or deceptive or likely to mislead or deceive which

conduct included advertiaing, promoting, displaying, offering for

sale, selling or otherwise in trade or commerce, dealing with any

3 .

wine by or with the use of the word "Champagne" alone or in conjunction with other words in relation to or in connection with

wine not produced in the district in France known as the

Champagne District.

By an amended application of 6 November 1981 the

interlocutory injunctive relief sought by Comite, so far as is relevant, inter alia, sought to prevent the respondents from, in

trade or commerce, and in connection with the promotion,

advertisement or sale of Freixenet wine in any advertisement

poster or promotional material using the word "champagne" or the

expression "unknown imported champagne" or other expression

including the words "unknown" and "champagne".

The companies, the applicants in the motion, are

companies which manufacture in Australia and sell sparkling wine

under the description champagne. They seek to be joined because

although no relief is sought against them since the relief now

sought is only in relation to what is called "Freixenet wine";

they suggest that the question of what can properly be called

champagne in Australia may be an issue and that although any

order would not bind them their use of the words "champagne"

might in the eyes of some persons be under a cloud.

The application to be joined was based on Order 6 rule 8

of the Federal Court Rules. In Trade Practices Commission v.

Milreis ex parte Thompson Publications (Australia) Pty. Ltd.

4.

(1978) 2 A.T.P.R. 40-063 I had to consider the question of the

joinder of a party at a time before the present rules of this

Court were promulgated when the corresponding rule was Order 16

rule 4 of the High Court Rules.

Order 6 rule 8(1) of the current rules provides:

"8.	(1) Where a person who is not a party -
(a) ought to have been joined as a

party: or

(b) is a person whose joinder as a party

is necessary to ensure that all

matters in dispute in the proceeding

may be effectually and completely

determined and adjudicated upon,

the Court, on application by him or by any

party or of its own motion may order that he

be added as a party and make orders for the

further conduct of the proceeding."

The only difference between this rule and Order 16 rule

4 of the High Court Rules is that it uses the words "is

necessary" whereas the High Court Rule used the words "may be

necessary". In Thompson Publications (supra) I considered that

the relevant law was that laid down by the Privy Council in

Pegang Mining Co. Ltd. v. Choong Sam (1969) 2 Malayan Law Journal

52 at pp.55-56. The test there laid down in relation to the

question of whether a party should be joined under a rule which was substantially the same as Order 16 rule 5 of the High Court Rules is; will the rights of the person seeking to be joined

against. or his liabilities to, any party to the action in

respect of the subject matter of the action be directly affected

by any order which may be made in the action.

. c ' . ' *

5.

The case before me is presented upon the basis that the

applicants to the motion are persons whose joinder as a party is

necessary to ensure that all matters in dispute in the proceeding

may be effectually and completely determined and adjudicated

upon. Because of the change of the words "may be" to "is" it is certainly no eaaier to get the Court to order the joinder of a party under the current rules of this Court than it was

previously. In Thompson Publications (supra) I came to the

conclusion at p.17654 that, because of the particular

sircumstances of that case, the rights of the applicant seeking

to be added to conduct its business were likely to be directly

affected and I ordered that it be joined. In that case, although

no order was sought against the applicant to be joined, it appeared to me that the effect of an injunction such as that to which certain parties were prepared to consent, would have an

immediate effect in that	it would stop the applicant's trade with
certain of the parties.

Senior counsel for the first respondent indicated that

his client proposed to call substantially the same evidence as

would be called by the applicants in the motion, if joined, but he supported this application for joinder. The application for interlocutory relief is to proceed before me on 26 November 1981

but the applicant in this motion sought to have me determine this

matter before I heard the interlocutory application. No pleadings have yet been filed in the action and I have fixed a timetable and stood-over the directions hearing until 16 February 1982.

6 .

No relief is sought by Comite against the applicants in the motion and I cannot see how the joinder of those applicants

"is necessary" to ensure that all matters in dispute in the

proceeding may be effectually and completely determined and

adjudicated upon. Apart from what may be embraced by Order 6

rule 2 the rules of the Federal Court do not contain a rule with

powers comparable to those in Order 15 rule 6 (2) (b) ( ii) of the

present English Supreme Court Rules.

The application was also put under the provisions of

Order 6 rule 2, which so far as is relevant, reads: Two or more

persons may be joined as applicants or respondents in any

proceeding where the Court gives leave so to do. In my opinion

this is not a case where leave should be granted under that rule.

I do not think it is appropriate to attempt to lay down any principles which should govern the Court exercising its powers

under that rule. It is appropriate to record that I am aware of

the judgment of Sheppard J. in Trade Practices Commission v. Westco Motors (Distributors) Pty. Ltd. ( 5 May 1981 - unreported) and I have had in mind my own judgment in Trade Practices

Commission v. Queensland Aggregates Pty. Ltd. (10 March 1981	-
unreported).

Once a party is joined he becomes a party for all

purposes and he has the same rights of appeal as the other

parties. This may result in an applicant incurring a much

greater liability than would otherwise be the case in having his

7.

dispute with the party or parties he has chosen to proceed

against determined. I consider that aspect mitigates against

joining	the applicants in the motion as respondents at this
stage.
I have decided to refuse to order that the applicany to

this motion be added as respondents. However it may be that the

situation will be different after the precise nature of the claim

by Comite is determined by the pleadings. For this reason I give

liberty to the applicants to make such further application as

they may be advised after the statement of claim has been filed

and I order that Cornite serve its statement of claim and any

amendments thereto upon the applicants in this motion at the same

time as it or they are filed. This liberty to apply may be

exercised on 7 days notice to the parties in the action.

I reserve the question of costs.

I certify that thls and the SIK C b )

precedingpages are atrue copy ofthe

Reasons forSudgmenthereinofhlsHonour

Mr. Justice $r&nG,

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Associate

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