Trade Practices Commission v Email Ltd - [1980] FCA 86

IN THE FEDERAL COURT

OF AUSTRALIA 1

NEW SOUTH WALES DISTRICT REGISTRY

No. G42 of 1980

DIVISION

GENERAL

BETWEEN: PETER HOWARD BARRAND

Applicant

AND:	ENDEAVOUR RESOURCES LIMITED

Respondent.

JUDGE MAKING ORDER:	Franki J.
DATE OF ORDER:	19 June 1980
WHERE MADE:	Sydney.

O R D E R

THE COURT ORDERS THAT:

1. The action is dismissed.

2. The applicant is to pay the respondent‘s costs

up to the conclusion

f the proceedings on

Monday 9 June 1980.

No order is made as to costs

of the proceedings

after Monday.

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY)

No. G.42 of 1980

)

DIVISION

GENERAL

BETWEEN: PETER HOWARD BARRAND

Applicant

AND: ENDEAVOUR RESOURCES LIMITED

Respondent

Coram: FRANK1	J
19 June 1980.

REASONS FOR JUDGMENT

On Friday 6 June 1980 an application was made

to m e in

chambers at 5.30pm for an ex parte interim injunction under

S .80

of the Trade Practices Act

1974 ("the Act"). The application was

supported by an affidavit of Mr Graham	John Cowley, solicitor for
the applicant.

A	meeting of shareholders of Endeavour Resources Ltd.

the respondent, was to be held in.Melbourne at 3.30pm

on the

following Monday and one of the resolutions to be proposed sought

the approval of the acquisition by a wholly owned subsidiary

the respondent of certain shares in a company called Bond Mining

and Exploration Pty. Ltd. It appeared that this transaction

would result in the respondent indirectly controlling certain

shares in White Industries Ltd, part

of whose assets were said

-2 -

company

called

Ulan

Coal

Mines

Ltd.

whlch

apparently held certain reserves of steaming coal recoverable by open pit mining. There is no need to go into the facts alleged in any detail but, in substance, there appeared to be a

difference between the content and value

of those reserves of the

coal as stated in a circular

to shareholders which accompanied

the notice of the meeting and as stated in

a letter which a Mr

White, chairman

of White Industries Ltd.

was said to have written

to the chairman of directors of the respondent on Friday

6 June.

The application before me was filed on 6 June. It was in the usual form and sought interlocutory relief both restraining the passing of the resolutions proposed and restrainlng the

respondent in trade and commerce from engaging in conduct which

is misleading or deceptive or likely

to mislead or deceive.

The application was based upon

s . 5 2

the Act. The

only relief senior counsel sought on Friday was in relation to

the meeting. The application was somewhat novel and it seemed

to me desirable to endeavour, so far as was practicable,

enable

the

respondent

oppose

any

order.

Notice

the

application was served upon the solicitors who had acted for the respondent in other litigation on Saturday 7 June and at 9am on Monday. 9 June I sat in what…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1980] FCA 86
Decision Date: 19 Jun 1980

CaseChat Overview and Summary

In Trade Practices Commission v Email Ltd, Peter Howard Barrand, the applicant, sought an ex parte interim injunction under section 80 of the Trade Practices Act 1974 against Endeavour Resources Limited, the respondent, to prevent the passing of resolutions at a shareholders' meeting of the respondent. The applicant claimed that the resolutions, which involved the acquisition of shares in Bond Mining and Exploration Pty Ltd, would result in misleading or deceptive conduct contrary to section 52 of the Act. The court was required to decide whether to grant the interim injunction and, if so, whether it should be rescinded.

Franki J considered the application on an ex parte basis due to the urgency of the matter. The court issued the interim injunction but stood the proceedings over to allow the respondent to oppose the application. On the day of the hearing, the applicant filed a Notice of Discontinuance and consented to an order for costs in favour of the respondent. The respondent opposed the dismissal of the proceedings and sought to cross-examine the applicant and his solicitor. The court allowed the cross-examination of the solicitor but not the applicant, as no affidavit of the applicant had been used. The court found that the misstatements in the solicitor's affidavit did not change any relevant facts before the court when the interim injunction was granted. The court decided not to rescind the injunction and dismissed the action.

The final orders were that the action was dismissed, the applicant was to pay the respondent's costs up to the conclusion of the proceedings on Monday, and no order was made as to costs of the proceedings after Monday.

Orders