APM Investments Pty Ltd v Trade Practices Commission & Ors [1983] FCA 248

APM Investments Pty Ltd v Trade Practices Commission & Ors [1983] FCA 248

The primary judge erred in principle by releasing FCL and SCI from their reciprocal undertakings, thereby restoring to them commercial freedom while maintaining practical restraints upon APM Investments, without adequate new facts or changed circumstances justifying such release, and effectively determining the issue in favour of SCI without a proper interlocutory hearing or consideration of justice between parties, thus occasioning substantial injustice to the appellant.

Parties
Appellant: A.P.M. Investments Pty. Limited; First Respondent: Trade Practices Commission; Second Respondent: Fibre Containers Limited; Third Respondent: Leigh-Mardon Pty. Ltd.; Fourth Respondent: Associated Nominees Pty. Ltd.; Fifth Respondent (trustee for Leigh Mardon Pty. Ltd.): Francis Burke; Sixth Respondent (trustee for Leigh Mardon Pty. Ltd.): Peter Becker; Seventh Respondent (trustee for Leigh Mardon Pty. Ltd.): William Gibson; Eighth Respondent (trustee for Leigh Mardon Pty. Ltd.): John Francis Elfverston; Ninth Respondent: Arthur Kevin Smith; Tenth Respondent: S.C.I. Operations Pty. Ltd. (S.C.I. Packaging Pty. Ltd.)
Jurisdiction
Australia
Judgment Date
21 September 1983
Procedural Posture
Appeal / Interlocutory Appeal From Discretionary Order Releasing Undertakings
Outcome
Appeal allowed
Legal Topics
Interlocutory Injunctions, Undertakings to the Court, Trade Practices Act 1974 S.50, Practice and Procedure on Interlocutory Applications, Principles for Appeal Against Exercise of Discretion
Competition Law Commercial Law Interlocutory Injunctions Undertakings to the Court Trade Practices Act 1974 S.50 Practice and Procedure on Interlocutory Applications Principles for Appeal Against Exercise of Discretion

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Parties

A.P.M. Investments Pty. Limited

Appellant

Trade Practices Commission

First Respondent

Fibre Containers Limited

Second Respondent

Leigh-Mardon Pty. Ltd.

Third Respondent

Associated Nominees Pty. Ltd.

Fourth Respondent

Francis Burke

Fifth Respondent (trustee for Leigh Mardon Pty. Ltd.)

Peter Becker

Sixth Respondent (trustee for Leigh Mardon Pty. Ltd.)

William Gibson

Seventh Respondent (trustee for Leigh Mardon Pty. Ltd.)

John Francis Elfverston

Eighth Respondent (trustee for Leigh Mardon Pty. Ltd.)

Arthur Kevin Smith

Ninth Respondent

S.C.I. Operations Pty. Ltd. (S.C.I. Packaging Pty. Ltd.)

Tenth Respondent

Procedural Posture

Appeal / Interlocutory Appeal From Discretionary Order Releasing Undertakings

Legal Issues

  1. 1 Whether the primary judge erred in principle or occasioned a substantial injustice by releasing parties from undertakings given to the Court in relation to competitive bids for shares under the Trade Practices Act 1974, s.50, without establishing an adequate basis for variation or discharge of undertakings.
  2. 2 Whether change in commercial circumstances or parties' preferences after undertakings were given justified release from those undertakings on principles of justice.

Ratio Decidendi

The primary judge erred in principle by releasing FCL and SCI from their reciprocal undertakings, thereby restoring to them commercial freedom while maintaining practical restraints upon APM Investments, without adequate new facts or changed circumstances justifying such release, and effectively determining the issue in favour of SCI without a proper interlocutory hearing or consideration of justice between parties, thus occasioning substantial injustice to the appellant.

Court Disposition

Appeal allowed

Orders

  • The order of Woodward J. releasing the undertakings is set aside.
  • All motions for release of undertakings are dismissed.