Phillip Morris Inc & Phillip Morris Ltd v Adam P. Brown Male Fashions Pty Ltd [1980] FCA 101

CATCHWORDS

Practice and Procedure - application for interlocutory injunction - undertaking to Court in lieu of injunction - application to vary undertaking - power to release where

mistake or error - Appeal from discretionary order of

trial judge.

PHILIP MORRIS INCORPORATED AND PHILIP MORRIS LIMITED v. ADAM P. BROWN MALE FASHIONS PTY. LTD.

(VG No. 14 of 1980)

CORAM: C. A. Sweeney, Northrop & Fisher JJ.

15 July 1980

Melbourne

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG No. 14 of 1980 GENERAL DIVISION

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

PHILIP MORRIS INCORPORATED Appellants and PHILIP MORRIS LIMITED (Plaintiffs) and

ADAM P. BROWN MALE FASHIONS PTY. LTD. Respondent

(Defendant) ORDER JUDGES MAKING ORDER: C. A. SWEENEY, NORTHROP & FISHER JJ. DATE OF ORDER: 15 JULY 1980 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The judgment and order appealed from be set aside and in lieu

thereof it be ordered that the respondent's motion be dismissed.

2. The stay of proceedings granted on 28 April 1980 in respect of the order appealed from cease to operate upon the

prorouncement of the judgment of the Court on this appeal.

3. The respondent pay the appellants' costs of the respondent's

motion and of this appeal.

IN THE PMDERAL COURY OF AUSTR«LTA

VICTORIAN DISIPICT RUCTSTPY

GENTRAL DTVIS LON

ON APPEAL PROM THE TRDER7.L COURT OF AUSTRALIA

BETWEEN

PHILIP MORRIS INCORPORATED AND PHILIP MOFPIS LIVITED

and

ADAM P. BROWN MALE PASHIONE PTY. LTD. Respondent.

(Defendant) CORAM: C -A. SWEENEY, NORTHROP _& FISHER Jd. IS July 1980 :

x

REASONS FOR JUDGMIUNT

C. A. SWEENEY, 3d.

The history of this matter 1s set out in detail in the reasons for judgment of Northrop, J. which I have had the advantage of reading. The plaintiffs unstituted an action seeking damages, injunctions and othcr relief in respect of alleged breaches of s.5? of the Trade Practices Act. and of allegations of passina off. They 1ssuec a summons for interlocutory injunctions restraining the defendent, until the hearing and determination of the action or further order, trom engaging in any of the conduct comulained of in their statement of claim. This summons care on for hearing before a single judye of this court on 11 Sapterber 1979. On the fitth day of the hearing, before tne case for the pieintiffs had been completed, senior counsel for the defenaant in open court offered to give an undertaking on hehalf ef his client in the terms of paragraph A(i) cof the summons. Senior counsel for the plaintiffs replied that they would prefer an