Skouloudis v Georges Jet Gas Australia Pty Ltd

[1986] FCA 411

NOT CONSIDERED SUITABLE FOR CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA

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NEW SOUTH WALES DISTRICT REGISTRY NO. 315 Of 1986 No. 316 of 1986

GENERAL DIVISION	)
BETWEEN:

SKOULOUDIS

Applicant

- AND :

GEORGES JET GAS

(AUSTRALIA) PTY

LIMITED

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

This is an application for an order restraining the

respondent from continuing certain proceedings in ejectment in the Supreme Court of New South Wales. The background is that an

application was made f o r relief under the Petroleum Retail

Marketing Franchise Act 1980 in respect of notices to terminate agreements in relation to service stations at Milperra and

Holbrook, and to vacate the premises involved, issued by the

respondent against the applicant on 1 July 1986. Promptly after the issue of the notices, proceedings were begun by the applicant

in this Court under s.16 of the Petroleum Retail Marketing

Franchise Act 1980. Later, ejectment proceedings were begun by

the respondent in the Supreme Court of New south Wales,aiiid-later

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again, further notices were issued by the respondent which were expressly based on the Petroleum Retail Marketing Franchise Act 1980.

The applicant now seeks to restrain the respondent from

continuing the Supreme Court proceedings on the footing that

those proceedings will not deal with the whole dispute, and that

the proceedings in this Court were appropriate to do so and were

begun first. ne says that both proceedings should not go on at

once, and that his choice of a forum should not be ignored. I do

not understand the respondent to dispute that the issues under the later notices cannot arise in the Supreme Court proceedings, having regard to their date in relation to the commencement of those proceedings, which are in ejectment, and the terms of the statute.

It should be borne in mind that the Act confers on the franchisee the ability to approach a Court for an appropriate order. See s.16 (4) which provides:

"Where a franchisor serves notice on the

franchisee under sub-section ( 3 ) terminating the agreement, the franchisee may apply to a court for an order declaring the notice to have had, or to have, no effect."

See also the remarks of Wilcox J. in Brindle v. Mobil Oil

(Australia) Limited when that case was heard before him at first

instance ((1984) 56 A.L.R. 541 at 554).

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No submission was put that a prima facie case was not

made out in respect of the premises at Milperra, but it was submitted the applicant ' S case , in the light of cross-examination, was insufficient as regards the site at Holbrook. In my view there is also a prima facie case in respect

of the site at Holbrook. The evidence of the applicant perhaps

raises inferences which are less than clear in respect of that

site, but no affidavit was filed by the respondent, which

contented itself with cross-examination.

I am not called upon at this interlocutory stage to

reach final conclusions, and it is best I refrain from stating

any proposition which could prejudice the final hearing. It is

enough to say that I think there is a prima facie case on the

affidavits of the applicant. The great width of the provisions

of the Act with respect to what constitutes a relevant agreement

must be taken into account. The respondent relies particularly

on the suggestion that at the Holbrook site there was really

conducted a commission agency - see Mobil Oil (Australia) Ltd v.

Brindle (1985) 62 A.L.R. 89, at 93.

But the applicant, despite some answers on which the

respondent fastens, repeatedly denied that this was the case in

the course of his cross-examination. He asserts, as I understand

his evidence, that the commission agency proposal was an

afterthought which he repudiated. I think it would not be right

to say he has not made out a sufficient claim within the

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4.

; .'

.	principles laid down in the Epitoma Case 3 F.C.R. 55, the Coarse
Grain Case 57 A.L.J.R. 425, and by the Court of Appeal of the
Supreme Court of New South Wales in Shercliff's Case L19781 1
N.S.W.L.R. at 734, to entitle him to maintain this application.

I have already indicated some of the matters which bear on the discretionary question which then arises, and on the

appropriate forum. The applicant had already begun proceedings

in a Court able to deal with all questions in what is really the

seamless weave of a single pattern of controversy. The Act in

s.16(5) gives the Court power, where an application is made under

sub-s.(4), by order, either (a) to declare the notice referred to in that sub-section to have had or to have no effect, or (b) to

declare that notice to have terminated or to terminate the

agreement on the date specified in the notice, or on such later

date as is specified in the order. And the sub-section goes on:

' l . . . and may, in either case, make such

ancillary or consequential orders as it

thinks fit, including orders directing the

preparation and execution of documents."

My attention has also been drawn by counsel for the applicant to the decision of Neaves J. when J. and M. O'Brien Enterprises Pty Limited v. Shell Company of Australia Limited came before him. His decision is reported in 47 A.L.R. 537, and at page 545 he considered the question whether this Court has jurisdiction to entertain a claim that an oil company is entitled to possession of premises under the general law in connection

5.

. with a claim arising out of the Act. His Honour said:

"Applying the principles laid down by the High Court in Philip Morris Inc. v. Adam P. Brown Male Fashions Pty Ltd (1981) 33 A.L.R. 4 6 5 , I am satisfied that the Court has jurisdiction."

The respondent queries this Court's power to order

delivery up of possession of the land in this case. I would be

prepared to follow the decision of Neaves J., but the grant of the relief sought by the applicant is a discretionary matter, and I think that it is appropriate that the relief should be granted on a basis which leaves no room for doubt with the attendant

possibility of protracted further proceedings after one of the

two courts presently seised of the matter has completed the

decision making process. It is obvious that such a situation

would be extremely undesirable, and one need go no further than

refer to the remarks which were made in Stack's Case.

I think in the circumstances that it is appropriate that the applicant should be required to give an undertaking designed to minimise any such possibility, and I have taken an undertaking designed to ensure that all questions will be raised which should be raised, in order that the matter of entitlement to possession of the land may be determined once and for all in the proceedings

in this Court. Such an undertaking has been given.

Upon the undertakings which have been given, and for

these reasons, I make an order that, pending the final

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. determination of these proceedings or further order of the Court, the respondent by itself, its servants and agents, be restrained from continuing proceedings in ejectment in the Supreme Court of

New South Wales in respect of the sites the subject of this proceeding, or either of those sites, and be further restrained from instituting any further such proceedings in respect of the said sites or either of them on the basis of the further notices which have been given, or in relation to the matters in dispute in this proceeding.

I order that the costs of the present application be the applicant's costs in the principal proceeding.

I certify that this and the

preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett.

& Associate

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Dated: 2 September, 1986.