IN THE FEDERAL COURT OF AUSTRALIA V.6 No. 42 of 1977 GENERAL DIVISION BETWEEN: LITTLE'S GIPPSLAND COACHES PTY. LTD. Plaintiff and @ TRANSPORT REGULATION BOARD, ALAN VOLENS CARTWRIGHT Defendants COOK, JAMES OLIVER MACTIER, PETER HOCKING, TRARALGON BUS LINES LIMITED, MORWELL BUS LINES LIMITED, LATROBE VALLEY BUS LINES, ARNOLD CARLYLE TILLOTSON, THOMAS HARRY FURLONGER and CECIL ERNEST STAMMERS REASONS FOR JUDGMENT NORTHROP J. @ 27TH MAY 1977 LITTLE'S GIPPSLAND COACHES PTY. LTD, Plaintiff and TRANSPORT REGULATION BOARD and OTHERS Defendants HIS HONOUR: This is the return of a summons taken out by the Plaintiff, directed to the first four defendants, seeking interim or interlocutory injunctions restraining them from continuing with the hearing of certain proceedings under the Transport Regulation Act, pending the hearing and determin- ation of the matters raised by this writ. The first defendant is the Transport Regulation Board, which is incorporated and is a corporation by reason of the Transport Regulation Act 1958, s.4. The second, third and fourth defendants are members of the Transport Regulation Board - reference may be made to s,.5 of the Transport Regulation Act for these purposes. It is important to stress that this is an inter- locutory matter, and it is undesirable for me to express any final view on the matters which have been raised. In coming to my conclusion, I shall apply the principles referred to py Mr. Justice Menhennitt in the case of Gabriel v. Lobban (1976) VR.689 at 690, where His Honour, quoting from the High Court decision of Beecham Group Limited v. Bristol Laboratories Pty. Limited 118 C.L.R. 618 at 622 said - "The Court addresses itself in all cases, patent as well as other, to two main inquiries. The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief," Then two authorities are cited in support of that. Later, at p.623, the Court said: "The second inquiry is directed to this aspect of the matter. It is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or 1S outweighed by the injury which the defendant would suffer if an injunction were granted." For the present purposes, it is necessary to apply the first of those two inquiries only. «/2eee On behalf of the plaintiff 1t is argued that the first named defendant, by reason of s,4 of the Transport Regulation Act, is a corporation within the meaning of the Trade Practices Act 1974. The word "corporation" is defined in that Act as meaning a body corporate that (a) 1s a foreign corporation, (b) is a trading corporation formed within the limits of Australia or is a financial corporation so formed, (c) is incorporated in a territory or (d) 1s a holding company of a body corporate of a kind referred to in paragraphs (a), (b) or (c). The wording of s,4 of the Transport Regulation Act is in a form common in statutes for the incorporation of bodies, and in my opinion cannot be used in any way at all to show that a body so incorporated 1s a trading corporation or a financial corporation. Next, it was argued that the activities of the Transport Regulation Board in regulating trading activities of commercial vehicles, whether of passengers or of goods itself constituted the Transport Regulation Board a trading corporation. This argument is not sufficient to persuade me at this stage and on the material presently before me that there is a prima facie case that the Transport Regulation Board is a trading corporation. In order to determine this question it 18 necessary to look at the functions being performed by the corporate body itself, aud this is made clear from the High Court decision in the Queen v. Trade Practices Tribunal ex parte St. George Council, 130 C.L.R. p.533. It was turther argued that the Transport Regulation Board by receiving monies could well be a financial corporation. In addition, it is urged the Transport Regulation Board may be engaging in activities of trade, in any event, and this could not be established until after discovery and interogatories. ./3. In my opinion, at this stage of the proceedings and on the material before me I am not satisfied that the Transport Regulation Board 1s a financial corporation or a trading corporation because of possible undisclosed activities. In my opinion, having regard to the functions and powers conferred upon the Transport Regulation Board by that Act, and also the Commercial Goods Vehicles Act, it is a regulatory body performing functions on behalf of the government of Victoria and cannot be said to be a corporation within the meaning of the Trade Practices Act 1974. It was next argued that the second, third and fourth defendants could well be corporations because of the fact they used the postal facilities and therefore came within the provisions of the Trade Practices Act because of their activities in connection with postal communications, and that in any event the Transport Regulation Board and its members could be supplying goods or services to the Commonwealth in a sense of individuals within the Commonwealth. In my opinion, there is not a sufficient prima facie case established on the material before me to justify any such conclusion. In these circumstances, I am not satisfied that the plaintiff has made out a prima facie case in the sense that 1f the evidence remains as it is now, to quote from the Beecham case, "There is a probability that at the trial of the action the plaintiff will be held entitled to relief." I have tried to avoid going into too much detail on the legal arguments which have been addressed to me. I have concerned myself only with the initial question of whether the Transport Regulation Board, and the second and third and fourth defendants are corporations within the meaning of the Act. -/4.. In these circumstances, I will dismiss the summons seeking the interim and interlocutory injunctions and make an order that the plaintiff pay the defendants' costs of the summons and I certify for counsel. AT 12.07 P.M. THE COURT ADJOURNED SINE DIE