Boddy & Collins Pty Ltd & Ors v Nicholas Desmond & Anor [1981] FCA 275

JUDGMENT No. 27S ad 8.

Ex Temeore )

IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

) ) No. ACT G 18 of 1981 ) ) )

GENERAL DIVISION

BODDY §& COLLINS PTY. LIMITED Appellant

NICHOLAS DESMOND and MARION GERTRUDE DESMOND

Respondents

Coram: Fox J

7 July 1981

Canberra

I have now heard argument as to whether or not a stay should be granted. For the appellant the matter is put on both a practical and a legal basis. The position is - and it has not been disputed - that if the injunction sought to be stayed is left in operation the appellant will not be able to trade at all. It is said that this will lead to financial loss and also loss of goodwill. Whilst it is agreed that damages could be recovered under s.82 of the Trade Practices Act 1974 and whilst it is the fact that an undertaking as to damages has been given by the present respondents when obtaining the injunction, it is said that these will lead to difficulties in calculation and ° estimation and further proceedings may have to be instituted

for recovery. It is also said, on a practical level, that

a number of people - about a dozen - will be put out of

employment pending the hearing of an appeal and the

finalisation of the present disputes.

On a legal basis I think the matter can be summed up fairly shortly by saying that in the light of my earlier reasons, given in the application under s.47 of the Trade Practices Act, while the injunction in question remains in operation the appellant will not be able to succeed in that application. It will be denied relief in this Court,

because of the injunction granted by the Supreme Court.

It is put that there is a reasonable prospect of the appeal succeeding, and of the injunction in question being dissolved or at least stayed until proceedings under s.47 have been finalised in this Court. In the meantime, it

is submitted, the appellant should be permitted to trade.

For the respondents it is put that there is a general rule against staying orders which have been duly made after hearing argument on both sides. The fact that an undertaking as to damages has been given is emphasised, It is said that the conduct of the appellant to date has been

such that the stay should be refused.

An offer 1s made, on behalf of the respondents, to permit the appellant to move the petrol remaining in the underground petrol tanks on the site. "It is said, on behalf of the respondents, that the appellant has been treated as a trespasser and therefore the respondents are in a dominant position as to what should be allowed and not be allowed to be done on the land. It 1s at the same time common ground

that the licence has not been terminated, and certainly the

lease has not. The lease plainly requires the appellant to

continue the service station business.

As I have mentioned in my reasons given in respect of the application under s.47, there is a provision in the lease that only Ampol products will be sold. Prima facie at least this provision is contrary to the Trade Practices Act and, indeed, a partial concession to that effect has been

made in earlier correspondence by the present respondents.

When dealing with the application under s.47, I gave a summary of the facts as I understood them to that time. I then mentioned the problem which arose so far as the present appellant obtaining relief was concerned, namely the existence of the present injunction. In part, the problem arises as I have mentioned from the fact that there are two different Courts which have jurisdiction in relation to the subject matter and that it is only this Court which can grant relief under the Trade Practices Act. In dealing with an application under that Act, and following in the principles laid down in the Phillip Morris case, the Court can consider the general legal position of the parties and grant appropriate

relief if the Facts are the same or very closely similar.

I do not wish to say anything about the likelihood of success or otherwise of the appellant on the hearing of the appeal beyond saying that it seems to me that there are indications of a possible degree of success. This will largely depend upon the way in which the matter was presented to the Supreme Court and what material was put in before that.

Whatever happens in relation to that appeal, it seems to me

that some course has to be followed which enables the

appellant to proceed in this Court in reliance upon s.47

of the Trade Practices Act.

In the circumstances, it seems to me that I should grant the stay which is sought and I will therefore

order that part of the order appealed from, which reads:

AND IT IS FURTHER ORDERED that the defendant be restrained until further order from erecting on the said land

bowsers other than those the property of Ampol Petroleum Limited.

be stayed until further order..." The stay is granted on the undertaking of the appellant, now given, to take active

steps to expedite the hearing of the appeal.

As I understand the position in relation to the

application before me under s.47 of the Trade Practices Act,

steps are being taken to bring that to a final hearing and

I have already given some directions to that end.

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