Trade Practices commission v A.R. Hogg & M.F. Moore & Quality Publications Pty Ltd

[1989] FCA 715

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;IUDGMENT - No. ........ ........ .. L

IN THE FEDERAL COURT OF AUSTRALIA)

I

VICTORIA DISTRICT REGISTRY	)	NOS. VG 95-137 of 1989
1
GENERAL DIVISION	)

B E T W E E N :

TRADE	PRACTICES
COMMISSION

Prosecutor

A N D :

ALLAN RAYPlOND HOGG, NAXWELL FRANK MOORE and QUALITY PUBLICATIONS PTY. LIMITED

Defendants

29 AUGUST, 1989 KEELY J.

REASONS FOR JUDGMENT

(DELIVERED EX TEI4PORE - REVISED FRO# TRANSCRIPT)

In this matter the prosecutor has moved by motion for injunctions to be granted under S. 79(4) of the Trade Practices Act 1974 ("the Act"). That sub-section is in the following terms:

"(4) In proceedings under this section against a person for contravening a

provis~on of Part V, the Court may -

(a) grant an injunction under section 80

against the person in relation to -

the

or is contravention; alleged duct that o constitutes, r con titute,^

other conduct of that kind; or

L RECEIVED

2 2 NOV 1989

FEDERAL COURT OF.
AUSTRALIA

PRINCIPAL REGISTRY

c, ?

4 l &

(b) make an order under sectlon 80A in

relation to the contraventlon."

That sub-section was inserted in the Act by Act No. 17 of
1986.

I assume, wlthout deciding, that the court has power under that sub-section to grant an interim injunction against the corporate defendant. However I do not accept the argument advanced by Mr. Maxwell, of counsel, on behalf of the Trade Practices Commlsslon, that the court should read S. 79(4) "liberally" and construe that sub-section as authorising the grant of injunctions against persons alleged to have offended against ss. 79(1)(4)(b), (c), (d) and (e) of the Act.

On the assumption that I have made as to the court's power to injunct the corporate defendant, it would follow that the National Parl~ament considers that there may be cases where that power should be exercised against corporate defendants at a time when the court has not decided whether

Neither counsel for the Trade Practices Commission, nor my	to convict the defendant. Such a power is an unusual one.
researches, have revealed any case where the court has made - or has refused to make - an order under S. 79(4). I have considered, during the luncheon adlournment and since standing this matter down this afternoon, all of the material referred to by mr. Maxwell in support of his motions and the grounds enunciated by him this morning.
It would, of course, not be proper for me to form any vievr at this stage as to the likelihood of any of the prosecutions succeeding. The Trade Practices Commission has not asked me to do so, but it has urged that the court should be satisfied that there is a serious question to be tried.
I am not persuaded that the correct principle is that the court should exercise lts discretion under sub-S. 79(4) in criminal proceedings if it is satisfied that there is a serious question to be tried and that the balance of convenience favours the making of the interim injunctions sought. I am aware of the authorities relating to the exercise of the court's discretion in civil proceedings but in my opinion it does not follow that the same principles should apply to the exercise of the power granted by sub-S. 79(4).
Mr. Maxwell sought to rely on the fact that the corporate defendant has pleaded gullty to the charges in matters VG 106, 107 and 110 of 1989. However those charges relate to the actions of one salesman of that defendant, alleged to have occurred in June 1987.
On the whole of the material, and having regard to the fact that the hearing of these informations will resume on 23 October 1989, I am unable to form the opinion that "it is desirable to ... grant an interim injunction pending determination of an application under sub-section (l)" - the words appearing in S. 8 0 ( 2 ) of the Act. Accordingly the motions are dismissed.
I should add that my decision wlll not prevent the Trade Practices Commission, if it is so advised, to seek a speedy hearing, by another judge, of its application for injunctions in matter number VG 154 of 1989 - the matter referred to by its counsel as the civil proceedings.
I certify this and the
preceding three pages are a
true copy of the ex tempore Reasons for Judgment, delivered by Mr. Justice Keely on 29 August 1989, and revlsed this day by his Honour from the transcript.
Associate:
Date:  4 September,

Dates of Hearing : 29 August, 1989

Solicitors for Prosecutor : Dlrector o f Public

Prosecutions

Counsel for Prosecutor	: Mr. C. $1. Maxwell
Solicitors for Defendants	: Allan McMonnies
Counsel for Defendants	: Mr. R. D. Shepherd