StarTrack Express Pty Ltd v TMA Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

StarTrack Express Pty Ltd v TMA Australia Pty Ltd [2023] FCA 1271   

File number: VID 822 of 2023
Judgment of: SNADEN J
Date of judgment: 23 October 2023
Catchwords: PRACTICE AND PROCEDURE – interlocutory application for urgent injunctive relief – where urgent injunctive relief sought to restrain respondent from operating an ecommerce website – whether there is a prima facie case that favours injunctive relief – alleged breach of contractual restraint – alleged breach of contractual term not to use confidential information – misleading and deceptive conduct – passing off – whether balance of convenience favours injunctive relief – application for interlocutory relief dismissed  
Legislation:

Competition and Consumer Act 2010 (Cth), sch 2 ss 18, 21, 29

Federal Court of Australia Act 1976 (Cth), ss 23, 37AA, 37AE, 37AG, 37AF, 37AI

Cases cited:

Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd [2021] FCAFC 188

Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1

Bradto Pty Ltd v State of Victoria (2006) 15 VR 65

CIP Group Pty Ltd v So (No 3) [2023] FCA 518

Findex Group Ltd v McKay [2020] FCAFC 182

Hogan v Australian Crime Commission (2010) 240 CLR 651

Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359

Just Group Ltd v Peck (2016) 344 ALR 162

Liberty Financial Pty Ltd v Jugovic [2021] FCA 607

Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Union Industry [2019] FCA 1265

Naude v DRA Global Limited [2023] FCA 493

Nintendo Co Ltd v Care (2000) 52 IPR 34

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1

Ricegrowers' Co‑Operative Limited v Howling Success Australia Pty Limited (1987) ATPR 40-778

Safetynet Security Ltd v Coppage [2013] EWCA Civ 1176

The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth)(No 2) (2020) 275 FCR 377

Turner v General Motors (Australia) Pty Ltd (1929) 42 CLR 352

Unique International College Pty Ltd v Australian Competition and Consumer Commission (2018) 266 FCR 631

Verrocchi v Direct Chemist Outlet Pty Ltd (2015) 112 IPR 200

Verrocchi v Direct Chemist Outlet Pty Ltd (2016) 247 FCR 570

Wilson Pateras Accounting Pty Ltd v Farmer [2020] FCA 1763

Yimiao Australia v Cyber Intelligence [2023] VSCA 21

Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs: 108
Date of hearing: 13 October 2023
Counsel for the Applicant: Mr R Heath KC with Ms L O’Rorke
Solicitor for the Applicant: Lander & Rogers
Counsel for the Respondent: Mr P Wallis KC with Ms L Davis
Solicitor for the Respondent: K & L Gates

ORDERS

VID 822 of 2023
BETWEEN:

STARTRACK EXPRESS PTY LTD

Applicant

AND:

TMA AUSTRALIA PTY LTD

Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

23 OCTOBER 2023

UPON THE RESPONDENT, BY ITS COUNSEL, UNDERTAKING:

1.until trial or further order, and whether by itself, its…

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Details
Case
[2023] FCA 1271
Decision Date

CaseChat Overview and Summary

StarTrack Express Pty Ltd sought an interlocutory injunction against TMA Australia Pty Ltd to prevent the latter from operating an ecommerce website, alleging breaches of contract, misuse of confidential information, misleading and deceptive conduct, and passing off. The Federal Court was tasked with determining whether there was a prima facie case for injunctive relief and whether the balance of convenience favoured such relief.

The court examined the merits of the claims, including the enforceability of contractual restraints, the use of confidential information, and the potential for misleading conduct and passing off. The court considered the evidence presented and concluded that a prima facie case had not been established. Furthermore, the balance of convenience did not favour granting the injunction, as the potential harm to StarTrack if the injunction were not granted did not outweigh the prejudice to TMA.

The application for interlocutory relief was dismissed. Additionally, the court made an order restricting the disclosure of certain confidential documents to only the parties, their legal representatives, and officers of the court. This order was made under specific provisions of the Federal Court of Australia Act 1976, and the court warned of penalties for non-compliance with the order.

No further orders were made. The dismissal of the application and the confidentiality order were the only directions given by the court in this instance.

Orders

Orders of the court

1. The application for interlocutory relief be dismissed.

2. Pursuant to s 37AF(1)(b) of the Federal Court of Australia Act 1976 (Cth) and until further order, there be no publication or disclosure of the following documents to any person other than the parties to the proceeding, their legal representatives and officers of the court, namely:

(a) the exhibit marked “Confidential RA-2” to the affidavit of Rebecca Louise Arsenoulis sworn on 4 October 2023;

(b) the exhibit marked “Confidential RA-3” to the affidavit of Rebecca Louise Arsenoulis sworn on 4 October 2023;

(c) the exhibit marked “Confidential RK-4” to the affidavit of Rhys Andre Kneepkens affirmed on 6 October 2023;

(d) the exhibit marked “Confidential RK-5” to the affidavit of Rhys Andre Kneepkens affirmed on 6 October 2023; and

(e) the annexures marked “RK-8”, “RK-10”, “RK-11”, “RK-21”, “RK-23” and “RK-28” to the affidavit of Rhys Andre Kneepkens affirmed on 11 October 2023.

3. Order 2 is made on the ground specified in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

PENAL NOTICE

TO: TMA AUSTRALIA PTY LTD

IF YOU (BEING THE PERSONS BOUND BY THIS ORDER):

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING

WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS

ORDER MAY BE SIMILARLY PUNISHED.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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