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
Verrocchi v Direct Chemist Outlet Pty Ltd (2015) 112 IPR 200
Verrocchi v Direct Chemist Outlet Pty Ltd (2016) 247 FCR 570
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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- Case
- [2023] FCA 1271
- Decision Date
CaseChat Overview and Summary
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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