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

1

DIVISION GENERAL 1

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.

3. 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 1

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 of

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 to

-2 -

be shares in a 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 of 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, to

enable the respondent to oppose any order. Notice of 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 was a directlons hearing in the proceedings but which were only intended to deal with the

question of granting an interim injunction in relation	to the
meeting that afternoon.

-3-

The respondent was represented by sen lor counse l b u t no

evidence was f i l e d by it. I i n d i c a t e d t o t h e p a r t i e s t h a t it was

no t poss ib l e t o t r e a t the matter o t h e r t h a n upon t h e b a s i s o f

d e t e r m i n i n g i n t h e t i m e t h a t was a v a i l a b l e what, i f any , o rder I

should make wi th r e spec t t o conduc t a t the meet lng in Melbourne

t h a t a f t e r n o o n a n d t h a t t h i s i n v o l v e d my t r e a t i n g the a p p l i c a t i o n

very much upon t h e basis of an ex p a r t e a p p l i c a t i o n . A f t e r some

argument , senior counsel for the respondent sought t o c r o s s

examine Mr Cowley, sugges t ing , i n t e r a l i a , t h a t t h e bulk o f t h e

m a t e r i a l i n the c i r c u l a r was obta ined from public documents of

White Indus t r i e s L td . H e a l s o s a i d t ha t he wished t o a s k

ques t ions about M r Cowley ' s ins t ruc t ions f rom M r Barrand, the

appl icant . Because o f the shor tage o f time I dec ided tha t it was

n o t p o s s l b l e t o o p e n up t h o s e i s s u e s and I r e fused l eave t o c r o s s

examine and made c e r t a i n i n t e r i m i n ~ u n c t i o n s , the d e t a i l s o f

whlch it i s n o t n e c e s s a r y t o se t o u t , b u t which i n s u b s t a n c e

r e s t r a ined the r e sponden t , i t s s e r v a n t s or agents from making any

s t a t emen t s , a t the m e e t i n g , f a l l l n g w i t h i n S . 5 2 of the A c t . The

proceedings were then stood o v e r u n t i l Wednesday 11 June for t h e

purpose of proceeding with the h e a r i n g o f t h e i n t e r l o c u t o r y

i n j u n c t i o n . I also ordered t h a t M r Barrand f i l e and serve an

a f f i d a v i t b y loam on the Tuesday , t ha t any a f f idav i t ev idence

upon which t h e a p p l i c a n t i n t e n d e d t o r e l y s h o u l d be f i l e d by the

same t ime and tha t M r Cowley a t t e n d for cross examint ion.

-4-

On Tuesday 10 June 1980. the sollcitors for the

applicant filed a Notice of Discontinuance in the action and, In

a letter to the Registrar of the Court and to the solicitors for

the respondent, consented to	an order for costs in favour	of the
respondent.

On Wednesday 11 June 1980, the matter was listed and

senior counsel for the applicant accepted that the Notice	of
Discontinuance did not satisfy the rules. At this time it was common ground that the meeting had been held and any relevant resolution had been passed. It thus appeared that there was

little purpose in continuing the interlocutory proceedings and

senior counsel for the applicant, at the commencement of the

proceedings on Wednesday 11 June, said that he would accept

dismissal of the interlocutory proceedings and the suit and that

he did not wish to make any particular submission as to costs.

Senior counsel for the respondent opposed the matter

being dismissed and indicated that he wished to cross examme

both Mr Barrand and Mr Cowley. The matter then proceeded upon

the basis that I should consider first the interlocutory

application. Although this application on its face sought

relief other than at the meeting no such relief had ever been the

sub~ect of any submissions. Senior Counsel for the respondent

argued that s.80 ( 3 ) of the Act permitted the court to "rescind"

an interim injunction and that cross examination would asslst

his submissions in this regard and that the in~unction should be

-5-

r e s c i n d e d i n t h e s e n s e t h a t it should be t rea ted as never havlng

been made. H e a l s o s t a t e d t h a t the respondent was s e e k l n g c o s t s

other than on a p a r t y and p a r t y b a s i s . I allowed the cross

examination of Mr Cowley b u t n o t M r Bar rand because no a f f idavi t

of M r Barrand had ever been u s e d . A f o r m a l a f f i d a v l t of M r

Barrand had been f i led in purported compliance w i t h my order o f

Monday 9 J u n e 1980.

Cross examination of M r Cowley e l i c i t e d t h a t h e a c t e d

for Mr White i n s e v e r a l m a t t e r s c u r r e n t l y b e i n g l i t i g a t e d a n d ,

fol lowing up on a conversa t ion wi th M r Whlte, M r Cowley had

s o u g h t i n s t r u c t i o n s t o act i n t h i s m a t t e r from Mr Barrand. In

cross e x a m i n a t i o n o t h i n g e m e r g e d r e l e v a n t t o M r Cowley‘ s

a f f i d a v i t except t h a t i n p a r a g r a p h s 2 and 3 of it M r Cowley had

s t a t e d he had been informed by the applicant whereas he conceded

i n cross examinat ion tha t this was n o t h e p o s i t l o n . However,

nothing emerged to throw any doubt upon the f a c t s a l l e g e d i n

paragraphs 2 and 3 a p a r t from t h e s o u r c e o f the informat lon

con ta ined i n them. I d e n t i t y of t h e a p p l l c a n t i s , of course , of

no s ign i f i cance because the A c t permits any person t o s e e k r e l i e f

under S .80. While Mr Cowley’ S m i s s t a t e m e n t s concernlng the

source of his informat ion in paragraphs 2 and 3 of h i s a f f i d a v i t ,

t o say the l e a s t of i t , warran ts ’evere c r i t i c i sm, it does n o t

change any re levant fact which was be fo re me when I made t h e

o r d e r s on Monday 9 June. I a l s o t h o u g h t it proper t o mention

du r ing t he p roceed ings on Monday 9 J u n e t h a t , when s e n l o r

c o u n s e l f o r t h e a p p l i c a n t w a s seeking an ex p a r t e i n j u n c t i o n from

6-

me in chambers, I asked whether there was any evidence about who

the applicant was and senior counsel informed me, in substance,

that Mr Barrand had some association with White Industrles Ltd	or
its directors.

The injunction which I made on Monday has expired but,

in the absence of any change in the relevant evidence before me

when I made it, I do not propose to rescind it.

The respondent does not seek to pursue the action and so

I propose to dismiss it.

This leaves the question of costs. Bearing in mind that

the facts and law upon which the interim injunction depended w re

not examined other than in a way appropriate in the circumstances

I consider that the applicant should pay the respondent' S costs

up to the conclusion of the proceedings on Monday. I consider

that the proceedings on Wednesday were not necessary. At the

beginning of these proceedings on Wednesday, senlor counsel for

the applicant offered to have them dismissed. I consider it is

appropriate that each side be left to pay their own costs of

Wednesday's proceedings.

-7-

The orders I make are that :

1 . The ac t ion 1 s dismissed.

2 . The applicant i s to pay the respond e n t ' S CO s t s up to t h e

conclusion of the proceedings on Monday 9 June 1980.

3 .	No order is made as to costs of the	proceedings	a f ter
Monday.

I N THE FEDERAL COURT OF AUSTRALIA

N E W SOUTH WALES DISTRICT REGISTRY I No. G42 of 1980

GENERAL DIVISION

BETWEEN: PETER HOWARD BARRAND

Applicant

MID: 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 ac t ion is dismlssed.

2.	The appl icant is t o pay the r spondent 's costs
up to the conclusion o f the proceedings on

Monday 9 June 1980.

3. No order is made as t o cos ts o f the proceedings

af ter Monday.

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY) No. G.42 of 1980

1

DIVISION GENERAL )

BEWEEN: 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 me 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 of

the respondent of certain shares in a company called Bond Minlng

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 to

-2 -

be shares

in apparently held certain reserves a company called Ulan Coal Mlnes Ltd. which

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 whlch 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 restraining 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.52 of 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, to

enable the application was served upon the solicitors who had acted for the respondent to oppose any order. Notice of the

respondent in other litigation on Saturday 7 June and at 9am on Monday. 9 June I sat in what was. a directions hearing in the proceedings but which were only intended to deal with the

question of granting an interim injunction in relation	to the
meetlng that afternoon.

-3-

The respondent w a s represented by sen io r counse l bu t no

evidence was f i l e d b y it. I i n d i c a t e d t o t h e p a r t i e s t h a t it w a s

no t possible t o t rea t the ma t t e r other than upon t h e basis of

determining i n the time t h a t w a s a v a i l a b l e what, i f any , o rder I

shou ld make wi th respect t o conduct a t t h e meeting in Melbourne

tha t a f t e rnoon and that this involved my t r e a t i n g the a p p l i c a t i o n

ve ry much upon t h e basis of a n ex p a r t e a p p l i c a t i o n . A f t e r some

argument, senior counsel for the r sponden t sough t t o c ros s

examine Mr C o w l e y , s u g g e s t i n g , i n t e r a l i a , t h a t h e b u l k o f t h e

m a t e r i a l i n t h e c i r c u l a r was obtained from public documents of

White I n d u s t r i e s L t d . H e a l s o s a i d tha t wished he t o ask

ques t ions about M r Cowley ' s ins t ruc t ions f rom M r Barrand, the

app l i can t . Because o f t he sho r t age o f t i m e I d e c i d e d t h a t it w a s

no t poss ib l e t o open u p t h o s e i s s u e s and I r e f u s e d l e a v e t o cross

examine and made c e r t a i n i n t e r i m i n j u n c t i o n s , t h e d e t a i l s of

which it i s n o t n e c e s s a r y t o set o u t , b u t which i n s u b s t a n c e

r e s t r a ined the r e sponden t , i t s s e r v a n t s or agents from making any

statements, a t t h e m e e t i n g , f a l l i n g w i t h i n s.52 of the A c t . The

proceedings were then s tood ove r un t i l Wednesday l1 J u n e f o r t h e

purpose of p r o c e e d i n g w i t h t h e h e a r i n g o f t h e i n t e r l o c u t o r y

i n j u n c t i o n . I a l s o r d e r e d t h a t M r Barrand f i l e and se rve an

a f f i d a v i t b y loam on the Tuesday , t ha t any a f f idav i t ev idence

upon which same time and t h a t M r Cowley a t t e n d for cross examint ion. t h e a p p l i c a n t i n t e n d e d to r e l y s h o u l d be f i l e d by the

-4-

On Tuesday 10 June 1980, the solicitors f o r the

applicant filed a Notice of Discontinuance in the action a d, in

a letter to the Registrar of the Court and to the solicitors for

the respondent, consented to an order for costs	in favour of the
respondent.

On Wednesday 11 June 1980, the matter was listed and

senior counsel for the applicant accepted that the Notice

of

Discontinuance did not satisfy the rules. At this time it was

common ground that the meeting had been held and any relevant

resolution had been passed. It thus appeared that there was

little purpose in continuing the interlocutory proceedings and

senior counsel for the applicant, at the commencement of the

proceedings on Wednesday 11 June, said that he would accept

dismissal of the interlocutory proceedings and the suit and that

he did not wish to make any particular submission as to costs.

Senior counsel for the respondent opposed the matter

being dismissed and indicated that he wished to cross examine

both M r Barrand and Mr Cowley. The matter than proceeded upon

the basis that I should consider first the interlocutory

application. Although this application on its face sought

relief other than at the meeting no 'such relief had ever been th

sublect of any submissions. Senior Counsel for the respondent

argued that s.80 ( 3 ) of the Act permitted the court o "rescind"

an interim injunction and that cross examination would assist

his submissions in this regard and that the injunction should be

-5-

rescinded in the sense that it should be treated as never having

been made. He also stated that the respondent was seeking costs

other than on a party and party basis. I allowed the cross

examination of M r Cowley but not Mr Barrand because no affldavit

of Mr Barrand had ever been used. A formal affidavit of M r

Barrand had been filed in purported compliance with my order	of
Monday 9 June 1980.

Cross examination of Mr Cowley ellcited that he acted

for Mr White in several matters currently being lltigated and,

following up on a conversation with Mr White, Mr Cowley had

sought instructions to act in this matter from Mr Barrand. In

cross examination nothing emerged relevant to M r Cowley's

affidavit except that in paragraphs 2 and 3 of it Pr Cowley had

stated he had been informed by the applicant whereas he conceded

in cross examination that this was not the position. However, nothing emerged to throw any doubt upon the facts alleged in

paragraphs 2 and 3 apart from the source of the informatlon

contained in them. Identity of the applicant is, of course, of

no significance because the Act permits any person to seek relief

under S .A0 . While Mr Cowley' S misstatements concerning the

source of his information in paragraphs 2 and 3 of his affidavit,

to say the least of it, warrants severe criticism, it does not

change any relevant fact which was before me when I made the

orders on Monday 9 June. I also thought it proper to mentlon

during the proceedings on Monday 9 June that, when senior

counsel for the applicant was seeking an ex parte injunction from

6-

me in chambers, I asked whether there was any evldence about who

the appllcant was and senior counsel informed me, in substance,

that Mr Barrand had some association with White Industrles Ltd	or
its directors.

The injunction which I made on Monday has expired but, in the absence of any change In the relevant evidence before me

when I made it, I do not propose to rescind it.

The respondent does not seek to pursue the action and so

I propose to dismiss it.

This leaves the question of costs. Bearing in mind that

the facts and law upon which the interim injunction depended were

not examined other than in a way appropriate in the circumstances

I consider that the applicant should pay the respondent' S costs

up to the conclusion of the proceedings on Monday. I consider

that the proceedings on Wednesday were not necessary. At the

beginning of these proceedings on Wednesday, senior counsel for the applicant offered to have them dismissed. I consider it is

appropriate that each side be left to pay thelr	own	costs	of
Wednesday's proceedings.

-7-

The orders I make are that:

1. The action is dismissed.

2. The applicant is to pay the respondent's costs up to the

conclusion of the proceedings on Monday 9 June 1980.
3.	No order is made as to costs of the proceedings after

Monday.