114: RA ' IN TAB PERERAL Conn! 1a5K4 Jib 2uKIty VICLORLAN REGT GDNERAL PTVISTON dJudce Making Ord r: Dale of Order: Where Made: Melbourne the 2n dealt with in eccordance with «& this Court, Upon the peis vealisiaction tne sum of $3569.06 OF AUSTRALTA } ) St Ky ) VG No. 112 of 1980 ) ) In the matter of the Trade Practices Act 1974 BEEWEEN: BRINAN PEY. LUD. (IN TVeUrTpAt TON), BRIAN CRVANAGH NANCARROW AND DIANT POSALYTL N&NCARRO® Applicants AND: VACC INSURANCE CO. LIMIPhy, TTY BAL S!aT DR VILLAGE Ev, AND LLLIS BARRISS prs: Respondencs Smithers J. 2 Decenber 1980 onal applicants giving security to ef the Registrar or the Court Sucn sur lo .waat and be Further order of second-naned shall the Lespordcnt take such steps «6S are necessary te ensure that execution upon judgments in County Ceurts Proceedings Nos. s932633 of 1975 urd s503902 of 1980 are not furthe. pursued or continued pending further order by this Court. To preserve the status quo during a reasonable time for the personal applicants to provide such security I order that the second-naswed respondent maintain its existing restraint upon execution of the said judgments as are operating by agreement between the parties in the perivd immediately preceding the making of this order until the expiration of fourteen days therefrom. Liberty is reserved to each party to apply. IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DIST RIC! REGISTRY VG No. 112 of 1920 ee eee GENERAL DIVISION In the matter of the Trade Practices Act 1974 BETWEEN: BRINAN PLY. LTD. (IN CAVANAGH NAWCARROW AND DIANE ROSALTE WANCARPOW Applicants AND: VACC INSURANCE CO. L°MITHO, BAYSWATER VIILAGCE PFY. Lin. AND ELLIS BARRASS er Y. ETE. Respondents Coram: Smithers J. 2 December 1980 REASONS FOR JUDGMENT In proceedings VG No. 112 of 1980 in this Court the applicants seek relief by way of, (a) damages pursvant pursuant to s.82 of the Trade Practices Act 1974 (the Act); (b) (c) rescission of a lease in which the applicant company 1s lessee and the Respondent Bayswater Village Pty. Ltd. is the lessor; a declaration that an indemnity entered into between the personal applicants and Bayswater Village Pty. Ltd. 1s not enforceable against the personal applicants; further or cther relief. By notice of motion dated 24 September 1980 second and third applicants, (the personal applicants) seek orders:- ny i. That the secondnamed Respondent proceed no further witn County Court actions No'd $932633 of 1979, $503903 of 1980 and $526484 of 1980 against the secondnamed Applicant and the thirdnamed Applicant claiming pursuant to the indemn'ty referred to in Paragraph 12 of the statement of claim herein pending the hearing and determination of this application. 2. That the secondnamed Respondeni take such steps as are necessary to prevent execution of warrants issued under default judgments obtained in County Court proceedings No'd $932633 of 1979 and S503903 of 1980 against the secondnamed Applicant and the thirdnamed Applicant pending the hearing ana determination of this application." It appears that on 8 December 1977 the first named applicant entered into a lease between itself as lessee and the respondent Bayswater Village Pty. Ltd. (Bayswater) of shop 7 1n the Bayswater Village Shopping Centre for a term of three mene ae nee - ~ See oer years from 15 December 1977 for a rental which in the first two years wes fixed at $453.33 per month, the shop to he used aS a retail shoe store. By a deed dated 8 December 1977 the second and third named applicants agreed to indemnify che second named respondent against any loss or damage which thc second named respondent might suffer or incur as a result of the failure of the first named applicant to perform and observe any cf the teims, conditions or covenants contained in the said indenture. The first named applicant took possession of the shop and remained in possession at least until the beginning of 1980. It became unable to pay its debts and went into ligujidation in May 1980. Early in 19t0 Bayswater took action in the County Court at Melbourne against the two personal applicants under the indemnity referred to above. Judgments in default of defence were entered. The applicants first became aware of this at about the end of March 1980. In April 1980 proceedings were commenced to set the Judgments aside but after negotiations between the solicitors for the parties these were allowed to lapse and process of execution by Bayswater is at present in train. The two judgments are for sums which including costs total $3668. A third County Court action is pending in which the sum clained against the personal applicants in respect of the indemnity is $2281.36. On 10 September 19€0 the applicants commenced the re ern pymen nee ee ~ ee - - = _ proceedings in this Court. 'The claim for relief is based upon allegations that the lease and the indemnity were entered into as the result of untrue representations constituting misleading or deceptive conduct engaged in by or on behalf of Bayswater and the third respondent in ccntravention cf the provisions of s.52 of the Act, or false representations that certain services were of a particular standard and otherwise constituting false and misleading statements made in contravention of s.53 of the Act, or false and misleading statements made in contravention of s.53A of the Act. lt is unnecessary to deal with the merits of these allegations further than to say that they are sufficiently supported to justify an order provading the relief c)aimed in the Notice of Motion to the extent stated hereunder if othecwise it would be proper to grant such relief. Mr. Caston appeared for Bayswater and the third respondent. He contended that the orders sought should not be granted, in the first instance because tnere 1s no jurisdiction or power in the Court to make them. He also contended that if there be jurisdiction or power the Court should refra?n from so doing. He submitted that to do so would be in conflict with that comity which exists between Courts. In support of this he submitted also that this Court should, at least, delay makinz such orders until the applicants had sovght, in the County Court a stay of Lenten wewrnnee ic se ne cone - eee ee aes ' execution. In respect of his contention as to the jurisdiction or power of the Court he relied upon the decision of the Full Court of this Court in Thomson Publications (Austrelia) Pty. Ltd. v. Trade Practices Commission & Ors (1979) A.T.P.R. 40-133. In that case relief having been sought by the Trade Practices Commission against various respondents in respect cf alleged contraventions of the Act by way of final relief, injuncecions were granted by consent restraining certain defendants from particular conduct. Some items of that conduct were of a kind that if engaged in by a party would constitute a contravention of the provisions of the Act. Other items of the conduct restrained were not of that character. It was said by the Court at p. 18443:- "In ou view, the clear inference to be drawn from the provisions of s.80 of the Act 1s thar the power of the Court to grant final injunctive relief in respect of an actual or threatened breach of the provisions of Pt. IV of the Act was intended by the Parliament to be restricted to the joining of conduct of the kind referred to in sec. 80(1) of the Act and not to extend to the enjoining of conduct not encompassed by the kinds of conduct specified in that subsection. This conclusjson does not mean that a final injunction under sec. 80 must refer to kinds of conduct as distinct from specific conduct. What it means ig that the conduct enjoined, preferably by precise description, must come within one or more of the kinds of conduct which sec. 8&0(1) mertions. Nor does this conclusion necessarily apply to the power to grant interim injunctions for which specific provision is made in sec. 80(2) of the Act and in respect of which particular considerations may apply (see Victorian Eag oes a ne wee eee - - om --- - - . ce oes . mee Marketing Board v. Parkwood Eggs Pty. Ltd. ( P. (1978) A.T.P.R. I2y at p. t40)." The present application is based upon s.80(2) and s.23 of the Act. It was said of s. 23 by the Court in Thomson Publications (Australia) Pty. Ltd. v. Trade Practices Commission & Ors. (Supra) at p. 18442:- "It is plain that the provisions of sec. 32, 22 and 23 of the Federal Court of Lustralia Act were deliberately framed by the Commonwealth Parliament in wide and general terms. Tt would be inconsistent with the clear legislative intent appearing from them to construe them narrowly or unduly to restrict the wide associated jurisdiction and general powers which they were plainly intendeé to confer. The Court's original jurisdiction in any particular Matter must however be defined primarily by reference to the provisions of the particular Act of the Parliament which contains the relevant primary grant of jurisdiction. In the present case, the relevant svecific grant of original jurisdiction is to be found in the provisions of s.80 of the Act." But the relief claimed in this motion 1s not final relief. if it were, no doubt it could be granted only if it were within the limits imposed expressly or impliedly by the Act in respect of the kind of 1:elief which is authorised thereby. But s.23 would seem to be a provision particularly apt to clothe the Court with those powers ancillary to its jurisdiction which are appropriate and necessary to enable it to act effectively in 'relation to matters in which it nas jurisdiction to facilitate the Getermination so far as possible of all matters 1n controversy between the parcies (see s.22). ee Oh eer roan It was the view of Toohey J. expressed in St. Justins Properties Pty. Ltd. & Ors. v. Rule Holdings Ptv. Ltd. (1980) A.T.P.R. 40-146 that it was not right to say that because the applicants were seeking relief under the Trade Practices Act any power to grant an order rertraining a party from continuing proceedings in a State Suprene Court between the same partics as those before the Federal Court pending the conclusion of those proceedings must be founli in the Trade Practices Act. In that case his Honour refrained, on the merits, from exercising the power but did consider the question of the existence cf the power at some length. Ue did not dismiss the view that the power might possibly ieside in the inherent jurisdiction of the Court. But without stating a concluded view on that point he found 1t granted by statute 1n the terms of s.19 and s.23 of the Federal Court of Austrelia Act. His Honorr's view was stated after consideration of Thomson Publications (Australia) Pty. Ltd. v. Trade Practices Commission & Ors. (Supra). He did not consider that what was said in that case was incompatible with the view he adopted. T would respectfully express agreement in this. In this case the matters in controversy between the parties directly concern the question wnethe: and to what extent the personal applicants may be entitled to relief from liability to Bayswater under the indemnity cof 8 December 1977 and whether and to what extent it may be entitled to damages ae wee ee weet, Ce eee in respect of the alieged contravencions of s.52 of the Act. It is apparent that this relief may take the form of a judaom.nt for damages. If a case for damages be successful tha award would, 1n all likelihood be measured in part at least by the sums already paid by the applicants to the respondents in respect of rent claimed to be due under the Jease. If the sums for which judgment has already Feen entered in the County Court proceedings mentioned are now recovered from the personal applicants the amount thereof would almost certainly be included in the damages to be recovered. It 1s clear therefore that the ultimate rights of the parties in respect of the sums the subject of the current proceedings by way of execution of tle County Court Juagments will be determined in the proceedings in this Court. Tt is for this reason that the current application is one for an order "in relation to a matter in waich this Court has jurisdiction". lt is contended for the applicants that 1t would not be just or reasonable, that at this stage, they should now be called upon to pay to Bayswater the sums of money which or the equivalent of which Bayswater may have to pay to them in accordance with the determination of this Court. They support this contention by evidence which estrblishes reasonable ground for concluding thar they have reasonable prospects of obtaining a determination to that effect. ree seer ee Although Lf course not conceding the validity of any aspect of this evidence or it. effectiveness in relation to the issue in dispute, Mr. Caston did not contend that the view tnat for current purposes the evidence docs raise issues which 1f ultimately established might justify relief in some Materia] degree might not be valid. This did not affect his insistence that on this motion the persenal applicants should fail. This Court has consistently applied principles reflecting its recognition of what is conveniently referred to as comity between Courts. Mr. Caston said if the Court did so in this case it would not interfere with the processes of the County Court of Victoria. It is to be observed however, that to require Bayswater to cease from execution in relation to its judgment is not to interfere with the processes of the County Court but merely to restrain a party from exercizing certain of its rights. Such a procedure is in personam. It leaves the judgment untouched and leaves the process of execution where, in any event, at all times, it has been, namely, subject to the control of the judgment creditor. It could well be, in certain circumstances, tnat considerations of the comity between Courts could induce this Court to refrain from action until an application for instance, for a stay of execution, were made to the Court 10. whose judgment is in process of execution. But in this cas«, where the ultimate rights of the parties will almost certainly be decided by reference to the provisions of the Act in relation to conduct for which the County Court does not have jurisdiction under that Act, to grant relief, I consider that the burden of assessing the justice of the situation should Le borne by this Court as its responsibility. There is a case to be made against the personal applicants on the ground of delay in seeking relief either in this Court or the County Court. And that has to be taken into account in @eciding whether the relief currently sought should be granted. However the situation is not one where on principles of equity the personal applicants' rights would be lost by delay. And what is sought is merely interim relief enly in a practical situation where there is grave risk of injustice if 1t be not granted. The strength of the evidence at present before the Court is particularly important. Finally, it was contended on behalf of Bayswater that 1t would not be just or reasonable that it be deprived of the fruit of its judgment merely on the ground that the applicants have shown a possibility of obtaining relief on the ground of vontraventions of the Act. There is strength in the competing contentions in respect of the practicalities concerning the destination of the money in question while this action is on foot. Each points to the possible detriment which it may suffer in the event that the other is unable to meet its liabilities as in due course they may turn out to be as determined by this Court. To my mind the interests of justice and convenicnce may be served by the order set out below which will so far as possible take account of the interests of each party. For this purpose I order that on the applicants giving security to the satisfaction of the Registrar of this Court in the sum of $3666 such sum to await and be dealt wath an accordance with the order of this Court in this action, Bayswater shall take steps to ensure that the current proceedings by way of execution of the County Courc judcment hereinbefore mentioned are not further pursued or continved pending further order by this Court. To preserve the status quo during a reasonable time for the personal applicants io provide such security I order that Baswater maintain its existing restraint upon execution of the said judgments as are opecating by agreement between the parties in the period immediately preccding the making of this order until the expiration of fourteen days therefrom, and I grant liberty to apply.