Trans Atlantic Freight Pty Ltd v Olympic Airways S.A

[1987] FCA 474

JUDG..".1ENT rb. 47 . . . + .. 1 ........ . "._"

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	No. G.318 of 1987
GENERAL DIVISION

BETWEEN :

TRANS ATLANTIC

FREIGHT PTY LIMITED

Appllcant

- AND :

OLYMPIC AIRWAYS S.A.

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

I am able to dellver judgment rlght away. In this

application, a statement of clalm was flled on 15 J u l y alleglnq

breaches of s.52 of the Trade Practices Act 1974. The claim is

made by the applicant, a corporation conducting the business of a travel agent operated by Mr. Adamopoulos, to whom for convenlence

I shall refer as the appllcant. It 1 s made against the

respondent Olympic Airways SA, to which I shall refer as Olymplc,

and which is a corporation reglstered within Australla.

Mr. Milne of Queen's Counsel, for the applicant, opened

the present appllcation for interlocutory relief S said

by the respondent's representative	that It would
equally, and that was false.

L .

The question arises in the context of the travel agent's activities selling airline tickets in respect of travel between Australian airports and Athens. Olymplc, after some years durlng which it did not fly to Australia, recommenced dolng so ~n December 1984. About that tlme, there was a meeting of travel agents addressed by executives of Olympic at which, there is evidence, the assertion relied on was made. Thereafter, the

applicant sold a number of Olympic tickets as an IATA agent. He received 9 per cent commission, according to the IATA scale. Rut Olympic at that time was paying, or agreeing to pay, further

commissions to its agents - referred to as overrldlng commissions

- according to a sliding scale depending on annual tlcket sales.

The effect was that an agent who sold more tickets would receive a higher commission.	That additional commission would be
paid only after the flight,	and only lf the passenger dld not

transfer to another airline. In the industry, it was called an

overriding commission on flown revenue. The appllcant says the

effect was that agents (referred to as consolidators), selling large numbers of tickets by engaging sub-agents to sell on their behalf, were able to btaln much hlgher commlsslons, and

therefore could offer greater discounts to customers.

a result, the applicant was forced to sell at an unprofitable discount against his smaller commission, because of his smaller turnover, in order to match his competltlon. He says this situatlon involved, in breach of the representatlon, an

As

unequal treatment of agents. Olympic, on the other hand, says

all agents were treated identically. It was open to any to earn

the same higher canmission by selllng the same number of tlckets.

3.

However that may be, after February 1985, the applicant ceased to buy tickets from Olympic and purchased from a consolidator. ne must have known Olympic would be paying, in respect of each ticket, asubstantial commission to that consolidator, and he must have contracted with the consolidator for a remuneration which would, presumably, be paid out of the consolidator's commission. Then, in 1987, the applicant resumed selling on behalf of Olympic as an agent dealing directly with it.

In June 1987 the applicant sold tickets to an amount of

$424,251.93 which he did not remlt under his contract with

Olympic; instead, he commenced this proceeding. On 21 July

Olympic, for its part, took action ~n the Supreme Court in

commercial causes against the applicant, and it has entered

judgment for $424,251.93 plus costs. There is presently a stay in the Supreme Court of that judgment pending thls application. What is sought here is interlocutory relief, in respect of the enforcement of the ~udgment, until determlnation of the Trade Practices Act claim.

It is pointed out, by counsel for Olympic, that in

Qantas v. Stephens Travel Service (Clarke J., unreported, 4 April

1986) it was held that the moneys received by a travel agent in

such circumstances are held in trust, and it is put this would

militate against relief in the present case. The first question,

however, is whether - within the principles in Epitoma Pty

Limited v. AMIEU (1984) 3 F.C.R. 55 - the applicant has made out

a sufficlent case for interlocutory relief.

4 .

It is easy to sympathize with the applicant's commercial

plight but, quite apart from the question whether the positlon was ever misrepresented to him, he faces the difficulty that it

is admitted he was told clearly, by Mr. Joannides (an executive

of Olympic) by February 1985, that commissions were paid

according to a scale depending upon ticket sales and upon flown

revenue. As at that date, a relatively small amount of business

had been done; sufficient, on the applicant's own case, to

entitle him to no more than about $15,000 additional commlssions.

The answer to this difficulty, proffered by Mr. Milne, is that he

was already in a position from which he could not extricate

himself: but after February 1985, and for nearly two years, he

did in fact cease to act as an agent buying directly from

Olympic, and it is admitted that on the evidence he has no claim in respect of tickets sold by him during that period. It appears that he ceased to act directly for Olympic for reasons which are quite unrelated to the present claim.

When the applicant resumed selling for Olympic in 1987,

on the terms on which he did sell, it seems to me the evidence

slmply does not, at this interlocutory stage, permit me to

conclude that he was doing so as a result, direct or indirect, of

the alleged misrepresentation. In those circumstances, I do not think a sufficient case has been made out to justify the relief sought. This conclusion makes it unnecessary for me to deal with certain other submissions put on behalf of Olympic, though I should add that it seems to me beyond argument that the Court would have had power to grant appropriate rellef against Olympic

5 .

if a case had been made	out.	For these reasons	I dismiss the
application.

I certify that this and the

preceding four ( 4 ) pages are a

true copy of the Reasons for

Judgment herein of his Honour

Mr. Justice Burchett.

H% Associate

Dated: 11 August, 1987.