a # AUSTRALIA, BUSS a2 COMMONWEALTH REPORTING SERVICE City Mutual Building, PRINCIPAL REPORTER, Hobart Place, AUSTRALIAN CAPITAL TERRITORY CANBERRA CITY, AC T. 2601 PO. Box 476 Telephone: (062) 49 7322 CORRECTION TO TRANSCRIPT In the matter of BODDY and COLLINS PTY LIMITED and Nicholas DESMOND, Marion Gertrude DESMOND and AMPOL PETROLEUM LIMITED, heard in the Federal Court of Australia before Fox J, at Canberra on Thursday, 2 July 1981, please substitute pages 127 - 143 for transcript previously issued, This transcript has been re-issued at the request of the court, to incorporate the judgment delivered by the Court. < om t 7, WV. J. MILLS \ ree 2 Principal Reporter \ Fe er 13/7/1981 YUCK vf , per: Lerch That unless otherwise authorized and directed by the sub~lessor the sub-—lessee will sell and use in his business only petroleum products supplied or distributed by Ampol Petroleum Limited or its agents under the terms of that company's normal trading agreement from the date hereof until 29 March 1983 and thereafter that the sub-lessee will only sell and use in its business petroleum products supplied or distributed by such petroleum company (if any) with whom the sub-lessor shall have a trading agreement covering the said block 1 section 12 Fyshwick at that time. Even at common law the effect of that clause must be a matter for debate but it 1s a provision of the sub-lease which 1s especially pointed to in the present proceedings. On 1 July 1976 the applicant entered into an agreement called a "resellers agreement" with Ampol. It was in substance an agreement for the sale and purchase of petrol for an initial perz1od of 38 months from 1 July 1976, terminable on notice thereafter. There were ancillary provisions about the loan of equipment by Ampol and powers in Ampol to remove the equipment in certain circumstances. The principal part of the equipment comprised four underground tanks and five electric pumps or bowsers. In certain circumstances the applicant had an option to purchase the equipment or part of it. On 17 March 1981, with effect from 1 February 1980 to 31 January 1985, the Desmonds entered into an agreement with Ampol. The exact purpose and effect of this agreement is not clear and as it has not been discussed at any length before me I shall not deal with 1t beyond referring to two matters. One is clause 5, which is in the following terms: Ampol agrees with Desmonds that it shall during the term hereof use its best endeavours to assist their present sub-lessees Boddy and Collins Pty Limited or any subsequent sub-~lessees marketing Ampol petroleum products to improve the method of operation of the motor garage and service station business carried on at the premises with a view to increasing, where possible, the level of sales of Ampol motor spirit, distillate and lubricant oil therefrom. The other matter is that under the agreement the Desmonds were to receive commissions and in particular were to receive a commission of 2.2 cents per litre on the petrol sold at the service station bopet 2.7.81 129 t5f 4 par bopet 2.7. t5f 5 par conducted by the applicant. Mr Collins has said that he was unaware of this commission agreement. He had sought through the Desmonds the grant of a subsidy of one cent per litre from Ampol and for much of the time he received that amount from the Desmonds, but he says he was quite unaware of a further amount, being paid by way of commission to the Desmonds. In May of this year there were discussions between Mr Collins and Ampol or its representatives. It is unnecessary to go into these in any detail. Mr Collins says that he was seeking a reduction in price from Ampol and was at that time not able to resell the petrol supplied by them at a profit. At all events, he looked elsewhere for petrol supplies and obtained them at lower prices than those being charged by Ampol. It would seem that for a time the petrol supplied from the other sources was put into Ampol's tanks, and their bowsers were used. On or about 21 or 22 May of this year Mr Collins removed the Ampol bowsers and replaced them with others. This 1s apparently a fairly straightforward mechanical procedure. Since then the service station business has been carried on with petrol supplied from the other sources, only uSing Ampol's tanks. There is no dispute about the fact that the agreement between the applicant and Ampol has been terminated and that Ampol does not therefore have any continuing obligation to supply petrol and the applicant does not have any obligation to receive it. The intention of Ampol to remove its bowsers or have them removed for it was made apparent a little while ago. Their present intention, I understand, is not to have any further dealings with the applicant. On the other hand, so far as appears, the Desmonds have not taken any steps to terminate the lease, or licence, as the case may be, of the service station area. There has recently been a spate of applications to the courts. On 12 June last, in an action number 716 of 1981, brought in the Supreme Court of the Australian Capital Territory by the Desmonds against the applicant in this case, Boddy and Collins Pty Limited, Blackburn J. granted interlocutory injunctions. The relevant orders were as follows, and I set them out: It is ordered that the defendant by midnight on Monday, 15 June 1981, remove the petrol bowsers presently erected on the plaintiff's land, being block 1 section 12 division Fyshwick, other than those petrol bowsers 81 130 of the directions that your Honour might give in connection with the matter generally would be in terms of setting a timetable for the filing of the necessary documents by the respective parties. HIS HONOUR: I do not know. What about interrogatories and discovery and other things? MR BYRNE: The applicant ~ as the matter stands at the moment - would not be wanting to discover more, Y think, than has already been discovered or than we are already aware of, that has emerged in the course of the many applications that have come to the court. The respondents may, of course, wish to interrogate the applicant, or have discovery of the applicant's documents. HIS HONOUR: Yes. As for the first matter you mentioned, that 1s not ready to proceed. MR BYRNE: It 1s not, your Honour. HIS HONOUR: In all events if 1t can come before me at all, it has to come before me in the appellate jurisdiction of this court and we can wait and see - you have got a document - what 1s to be done about it when you have. As to the directions, that 1s perhaps a matter that needs to be given more thought, but 1t seemed to me it might be useful if I said something about all this case. It is getting more confusing by the hour and nobody will ever be able to work out what has happened or what views anybody had or anything else so I will say a bit about 1t. I understand at the moment that you are not pressing me to the point of dismissing an application. If you were I would have to know more clearly what the application was because 1t has only been several old variations on a document. However, I will say something about it and we can see where we then get to. I think that 1s the best thing and if there 1s anything I have said which 1s wrong to any substantial degree you can mention it to me at the conclusion, but I do think 1t 1s desirable that I try to put the thang in some sort of order, both for my own sake and for the sake of anyone else who has to pick it up. bopet 2.7.81 127 MR BYRNE t5£ 2 pe bopet 2.7. t5f 3 par I am hearing an application under the Trade Practices Act 1974 for an interlocutory injunction. Reliance is placed on the "exclusive dealing" provisions of s.47. The applicant is a company which carries on the business of a petrol service station at Fyshwick in the Australian Capital Territory. It has been operating on the same site for about five years. The first respondents - Mr and Mrs Desmond - are by definition a corporation for the purposes of the Act. They are the lessees from the Crown of the land on which the business I have mentioned is carried on and of other land contiguous wath it. The second respondent has, until recently, supplied to the applicant the petrol it sells and for that purpose has provided the necessary bowsers and storage tanks. The Desmonds originally leased land to the applicant by memorandum of sub-lease dated 29 June 1976 for a period of three years from 29 April 1976. By memorandum of sub-lease dated 9 April 1980 a further lease of the same land was granted to the applicant for a term of three years from 29 March 1980. The grant is expressed to be of "that portion of the building erected on block 1 section 12 Fyshwick, being areas 2B on sub-lease plan number 279 and areas 3 and 4 on sub-lease plan number 256". The area thus described excludes the whole of the area used for the operation of the service station except that a cash register used in connection therewith is located on part of the area demased. Mr Collins, a director of the applicant, who manages the service station on its behalf, says that he had always thought that the lease included the service station area. I understand there is some disagreement concerning the exact location of the boundaries of the lease but there seems not to be any agreement that the lease should include the service station area. However, the service station was set up with the full concurrence of the Desmonds and has continued to be operated with their approval. The sub-lease contains requirements concerning 1t. Presumably the only payment the Desmonds have received for the use of the land by the applicant has been that stipulated for as rent under the sub-lease. The part of the land expressed to be demised would not permit of the conduct thereon of even the smallest service station. Clause 5(g) of the sub-lease is in the following terms: 81 128 4 ? - f aA . t S yA user BAW aut COMMONWEALTH REPORTING SERVICE City Mutual Building, PRINCIPAL REPORTER, Hobart Place, AUSTRALIAN CAPITAL TERRITORY CANBERRA CITY, AC T. 2601 P.O. Box 476 Telephone: (062) 49 7322 - CORRECTION TO TRANSCRIPT In the matter of Thomas William BELL and Gary Ian GRIFFITHS, heard in the Federal Cow Australia before Fox, Davies and Morling JJ, o( canberra Tuesday, 14 April 1981, please substitute pages 23 - 27 for transcript previously issued. This transcript has been re-issued at the request of the court, to 2uncorporate the judgment delivered by the Court. W. J. MILLS Principal Reporter 13/7/1981 per: Vxretuet- bopet 2.7. t5£ 6 par the property of Ampol Pctrolcum Limited, 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. It 18 apparent that the effect of these injunctions, having in mind the intentions of Ampol, is to prevent the applicant from carrying on business. I am told by counsel for the Desmonds that there was not at that time evidence before His Honour as to the intentions of Ampol. On 19 June 1981, in the Supreme Court of the Australian Capital Territory, in proceedings number 816 of 1981, in which the present applicant was plaintiff and Ampol Petroleum Limited was the defendant, Connor J. granted two injunctions. One was on the application of the defendant, that is Ampol, and it was in the following terms, and I set them out: It 1s ordered that the plaintiff, its servants and agents be restrained from preventing or hindering the defendant, its servants or agents from entering onto the premises on or after 25 June 1981, at the corner of Canberra Avenue and Yallourn Street, Fyshwick, at which the plaintiff conducts the business of garage proprietor and service station operator, for the purpose of removing the equipment or any part thereof listed in the schedule attached to the aforementioned notice of motion. The schedule, I am told, referred to, or included, the bowsers and the storage tanks. On the same occasion, the learned judge granted an anjunction on the application of the plaintiff - that 1s to say the applicant in the present proceedings before me - and the order then made was as follows: It is ordered that the defendant and its subsidiaries and agencies be restrained from interfering with or rendering unusable the petrol pumps, petrol storage tanks, pipes and other equipment associated with delivery, storage and sale of petroleum products located in, on, about or beneath the buildings and lands occupied or used by the plaintiff at the corner of Canberra 81 131 bopet 2.7. t5£ 7 par Avenue and Yallourn Street, Fyshwick, in the Australian Capital Territory in connection with the conduct by the plaintiff on that site of the business of garage proprietor and service station operator. I understand that his Honour made it plain at the time that he was dealing in this injunction with damage to the equipment mentioned rather than removal. In this way the two orders he made are reconcilable. The present application before me was filed on 30 June and was heard by the Court as a matter of urgency. There are many orders sought in the application. As I have already indicated, the immediate relief sought is an injunction. It is relevant to observe at this stage that it is established by authority that a court should not grant an interim declaration as a declaration is always meant to be a final statement of the rights of the parties (see International General Electric Co. of New York Limited v Commissioner of Customs and Excise (1962) ch 784; (1962) 2 All ER 398). In substance, what the applicant seeks before me is an anjunction which will have the effect of enabling it to install other bowsers - that is to say bowsers other than those of Ampol Petroleum Limited - to enable it to carry on its business. Consistently with the earlier orders to which I have referred, the Ampol bowsers have been restored, and, as I understand, they are presently in use. Ampol threatens to remove them at the very first opportunity. In the application before me, reliance was originally placed on s.47(9) of the Act, but reliance was later also placed on s.47(8). The particular paragraphs which are now relied upon are paragraph (c) of s.47(8) and paragraph (d) of s.47(9). These of course are both to be read with the sub-section (1) of s.47 which simply says: Subject to this section, a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing. The other sub-sections to which I have referred are really exegetical of that sub-section. If the particular paragraphs can be relied upon there is no need for an inquiry to be undertaken concerning a substantial lessening of competition, as required in relation to other provisions by sub-section (10). I have not fully explored the application of these provisions and have not heard counsel for the respondents thereon. Having heard most of what 81 132 bopet 2.7. t5f 8 par counsel for the applicant wanted to put to me about those matters I was nevertheless driven to an inquiry as to how I could grant the relief sought, having in mind the orders already made in the Supreme Court, and more particularly the second of the injunctions granted by Blackburn J. It will be recalled that he ordered that the present applicant be restrained from erecting on the land bowsers other than those of Ampol. The applicant here claims the right nevertheless to do just that. The restraint imposed by his Honour did not extend to other equipment but I think 1t is academic to consider that separately if there is no way of delivering the petrol to customers through bowsers. In any event his Honour's reasoning would probably extend to cover the other equipment supplied by Ampol. Having indicated my concern to counsel for the applicant and having discussed wath him some possibilities to meet the particular difficulty, he did late yesterday and earlier today make applications to Mr Justice Blackburn as Chief Judge of the Supreme Court of the Australian Capital Territory. At or before that time, so I am told by counsel, a notice of appeal against his Honour's interlocutory order, to which I have referred, had been lodged by the applicant. His Honour, I am told, declined to make any order in respect of the injunctions granted by him on 12 June. In proceedings number 816 of 1981 his Honour dissolved the injunctions granted by Connor J. on 19 June. He made further orders, the short effect of which was to repeat the first of the orders made by Connor J. but with the deletion of the words "on or after 25 June 1981" thus having an injunction which in form operated immediately to prevent the applicant, Boddy and Collins Pty Limited from preventing Ampol entering on to the premises for the purpose of removing its equipment. However, Blackburn C.J. stayed the operation of the fresh order thus made by him until further order. The effect of all this is that Ampol can enter on the premises for the purpose of removing its bowsers and other equipment and the present applicant is, for the time being, free to resist any such removal. I imagine his Honour's purpose was to enable the applicant to see whether he could obtain some order from this court which would enable the applicant to resist any removal by Ampol. The fact remains, however, that there is the injunction granted by Blackburn J., which is now under appeal, and any order of any practical use to the applicant which I could make would directly contravert his Honour's order. 81 133 bopet 2.7. t5£ 9 par The problem that arises can be seen as a problem inherent in the existence of original jurisdiction in both Federal and Territory Courts and the same problem could of course exist between Federal and State Supreme Courts. This is doubtless a problem that will be with us for a long time and I do not suggest it has any easy or ready resolution. The most the courts can do, or at least the most this Court can do, is to minimize the disruption likely to be created because of the circumstance to which I have referred and, at the same time, to try and provide ready justice to parties invoking the jurisdiction of the Court and ensure to them that their rights under federal legislation are not ignored or set at nought. This Court must, as a matter of comity, recognize the jurisdiction and powers of courts of coordinate jurisdiction. It is not uncommon in this court to restrain parties from proceeding with or commencing actions in other courts including State Supreme Courts, but this is because of the special effect of relevant federal laws. I have not myself previously encountered the present type of situation where an injunction has been issued and this Court is asked to render it nugatory. It seems to me that the only way this could be done would be to order the relevant party or parties not to take any steps to enforce the injunctions or otherwise execute on the orders which have been made. This, it seems to me, would be a serious step and one not comporting with the principle of comity to which I have referred. I do not say that it can never happen but it would be a matter of last resort. His Honour, Mr Justice Blackburn was, I an told by | counsel, informed today of the difficulties that I had seen but he took the course which he did and it is not for me to make any criticasm of 1t at all. I should say that this matter of comity so far as it affects this Court has been to some extent dealt with by Bowen C.J. in Hughes Motor Service Pty Limited v Wang Computer Limited (2 ATPR 40-098, p. 17961). Having referred to the aspect of comity, I should say that it seems to me that there were ways in which the difficulty could readily have been met and the present situation avoided. At least, this can be seen in retrospect. When the application for an injunction was made by the Desmonds in action 716 of 1981 it was open to counsel to press arguments upon his Honour by way of defence, based directly on the Trade Practices Act, and s.47 thereof. The law enunciated in the Act is a federal law of general application so far as its terms extend. 81 134 It is, of course, the fact that relief under the Act is, speaking generally, obtainable exclusively ian this Court. If pressing an argument based on the Trade Practices Act had lead to any complication, having in mind the exclusive vesting of jurisdiction to grant relief in this Court, it would have been open to counsel to ask for a short adjournment for the purpose of making an application to this Court. It would then have been possible to deal with the matter uninhibited by any injunction granted by the Supreme Court. In the circumstances of this case it is quite likely that this Court could have dealt with almost, if not the whole, of the situation arising between the parties. Neither of the courses mentioned were followed. There may have also been others that could have been adopted. I mention the situation not by way of criticism of anyone but just to indicate that difficulties can arise unless the situation which has now come about is anticipated as a possibility. Although I have not to this point been asked by counsel for the applicant to make a formal order in respect of the application, I can make 21t clear that I would not make an order running counter to the injunction granted in the Supreme Court and I would not make an order preventing any of the parties from enforcing the injunctions already obtained. It 1s, of course, to be remembered that in all Courts the applications have been of an anterlocutory nature. bopet 2.7.81 135 t5£ 10 par HIS HONOUR: Well, I think that is about all, Mr Byrne. There may be something else that I have overlooked. MR BYRNE: There were two matters that referred to - - - HIS HONOUR: It helps to put the thing in some sort of total frame, I think. MR BYRNE: Yes, indeed and we are obliged to your Honour for that. There are tyvo things that occurred to me, your Honour, and one was that the orders made by his Honour Mr Justice Blackburn were, as to yesterday evening, in refusing to do anything in connection with the injunction of 12 June. HIS HONOUR: I see. I thought that was the morning. MR BYRNE: No, this morning was concerned with the orders of 19 June. HIS HONOUR: Well, I should say by way of correction to what I have already said that counsel now informs me that the application to Mr Justice Blackburn in respect of his own - the injunction granted by him was made late yesterday. It must have been very late I imagine. MR BYRNE: It was very late, your Honour. The second matter, your Honour, is that a close examination of the memorandum of sub-lease will show that the area lease to Boddy & Collins Pty Lamited was not the three acres,two roods and 15 perches. HIS HONOUR: Was it not? MR BYRNE: But it was that portion of the building erected on those areas described. The wording is a little bit - not following itself but it deals with - - - HIS HONOUR: It seemed a lot for what he had I knov, it seemed to me - —- - MR BYRNE: It is vastly more than he had, yes. I think the antent of the lease - - - HIS HONOUR: The lease should surely set out there, should 1t not, the area demised. MR BYRNE: Yes, I think what it says - it says in the original lease of -'-no, I am sorry, your Honour, the lease that was executed 1n 1980, at least my copy of it, describes it as being "that portion of the building erected on block 1, section 12, Fyshwick, being areas 28 on SL plan 279 and area 3 and 4 on SL plan no 256 of the building erected on all that piece of land containing three acres, two roods, 15 perches." bopet 2.7.81 136 MR BYRNE t1l0f locr HIS HONOUR: Well, that should be, should it not, the area demised? MR SALMON: No, 1t 1s the whole of the land in the certificate of title, your Honour. I agree it is not very artistic but it is just describing ~--for some reason 1n these forms you set out the whole of the area contained in the certificate of title. HIS HONOUR: Yes, I see, being the whole of the land comprised un a certificate of title. MR SALMON: Part of the whole in other words. Why it is extra typing - it no doubt adds extra costs for conveyances, your Honour. You are able to type in a bit more there. HIS HONOUR: Yes, 1t gets even more double dutch as it goes on. But your point is that it 1s not the same area although probably it had the same description. I have not checked the description, in fact, there are some words written in the first lease which I cannot quite follow. Perhaps it 1s third and fourth 1n something, so I just took the measure, but I see what you say. MR BYRNE: I must make it clear, your Honour, that I will be inviting the court to interpret the lease in amanner that - this is, when the matter comes on for hearing - interpret the lease in a manner that 1s favourable to the lessees. HIS HONOUR: Well, you can have it interpreted or you can have 1t rectified. MR BYRNE: That 18 so, your Honour, yes. I do not say that what your Honour said 18 not correct ultimately but 1t 18 not that that the - - - HIS HONOUR: No, well I did not mean to be expressing something - I did not mean to be giving you that land 1n a recital of the facts, Mr Byrne. MR BYRNE: It 1s just at this stage I have not alleged that HIS HONOUR: I can see that it was really my error notwithstanding - I maght have had a lot of excuse for it but - - - MR BYRNE: Because I have not yet alleged that we have a lease of three acres. HIS HONOUR: Yes, I follow. Well, I trzed to leave it open in what I said for you to seek to have the lease interpreted favourably to you and also to have it rectified if you wanted to. I am not inciting you to do those things but I just left it open for you to do it. The reason I cited one of those or set bopet 2.7.81 137 MR BYRNE tlO£f 2 er out in full a couple of those passages was just because of what seemed to be the ambivalence about what was comprehended in the lease. MR BYRNE: Yes. MR SALMON: Your Honour, there is one other matter in your Honour's remarks which may have been the result of some information your Honour had which his Honour Mr Justice Blackburn did not have. Your Honour said that the intention of his Honour's injunction was to prevent the applicant from carrying on business, that is my note. That is the part of the injunction which insisted on only Ampol bowsers being on the property. I am sorry, 1t might have been the - your Honour said the effect of the injunction rather than the intention. I am not quite certain which one. HIS HONOUR: I think probably I could have - I meant to. MR SALMON: At the time his Honour made that order there had been - well, I withdraw that. There vas no evidence before his Honour of any termination of the Ampol trading agreement. I am not certain, and I do not know exactly what the fact was as to whether Ampol had in fact delivered some termination or indicating the intention to terminate, but that was not in fact in evidence before his Honour. HIS HONOUR: Well, I cannot deal with the evidence that he had. I am not sure what I said but what you have just said has been noted and I will have a look at what I said in the light of it and I may amend it. But I think I probably said, did I not,"the effect in the light of Ampol's intentions." MR SALMON: Yes, your Honour did say that. Those intentions were not necessarily before - in fact on my recollection they were not before him. HIS HONOUR: No, well I am just saying, well 1f you like, that is the effect. MR SALMON: That is the present effect, certainly, your Honour. MR BYRNE: I can tell your Honour that his Honour Mr Justice Blackburn did not know of the existence of the notice. It was 1n fact delivered into his Honour's chambers but the contents of 1t were not communicated as I recall. HIS HONOUR: Well, let us get on. Now, that is where we stand. What do you want to do? Do you want to get directions or - - - bopet 2.7.81 138 MR SALMON tiloOf 3 cr MR BYRNE: Yes, your Honour. I can inform your Honour that - - - HIS HONOUR: What I will do then is - I will just stand over the hearing of this application until the hearing of the action. MR BYRNE: Yes. As I indicated to your Honour a statement of claim could be filed within the week, probably Wednesday. The applicant at this stage 1n any event - - - HIS HONOUR: What I would prefer you to do, rather than me sit here as a clerk, is to work it out between yourselves what to do and I will deal with those later if you want to, but it should be possible for you to make known to each other whether you want discovery or interrogatories or what. If you do not, well that simplifies things and would shorten the timetable. MR BYRNE: Yes, quite. HIS HONOUR: They may want you to amend your application. I give you leave to amend 1t generally too, if that 1s any help to you. I stand over the further hearing of it until the hearing of the action. MR BYRNE: Yes, thank you. Your Honour, I foreshadowed shortly after the luncheon adjournment that the appellate jurisdiction of the court had been invoked and that there would be an application by way of notice of motion pursuant to the lodgment of the appeal. HIS HONOUR: Yes. MR KELLER: Well, before my fr1rend moves on to another matter, your Honour, and I take it 1s another matter to which I am not a party, or my client 1s not a party - - - MR BYRNE: That is so. HIS HONOUR: Yes, that is right, you are not. MR KELLER: Your Honour, in so far as this application -— the application to which Ampol is a party, I would ask that your Honour give consideration at this stage to making an order for costs. Your Honour has power to make an order for costs as contained in section 43 of the act which makes the award of costs in the absolute discretion of the court or a judge. Your Honour, order 62 rule 3, provides: That the court may in any proceeding «2 6 6 we ee se 6 /CONcCLUSiON of the proceeding. bopet 2.7.81 139 MR KELLER t1i0f 4 cr HIS HONOUR: Yes. MR KELLER: Sub-section (2) of that rule, your Honour, provides: Where the court makes an order in any proceeding. ... .. -is not concluded. Your Honour, it 1s a limited application for costs. It is not an application for an order for costs against the applicant in relation to the costs of yesterday and today because as the application now transpires, your Honour, it is merely an application for directions and that could have been dealt with on Tuesday afternoon. That would be my submission, your Honour, I would not want to put anything further to you about that. HIS HONOUR: Yes. Well, I do not know. Costs are always a difficult matter as I have said so Many hundreds of tames as I have said before now. But what I had in mind was that we did strike an unusual situation which was, I suppose, avoidable but 1n a sense not a matter of an 1ssue between the parties so much as a result of what had been done elsewhere. You had moved in one case and the Desmonds had moved in another. The case 1s part heard. You area party to the action, the present action, I assume that - if, of course, any one moved to have 1t struck out or something, well then you can ask for costs, otherwise you have an opportunity later. The merits of the present application have not been fully explored. You are right that we are now moving on to directions and you are right that they could have been obtained on Friday afternoon, although I suspected it would have taken about a day to explain to me what it was about. I think the only way in which the court can really form a view as to the merits, which will include to some extent the procedural aspects of it, if I can put it that way, 1s to wait until the action is heard or disposed of in some way. What I thought to do was just to reserve costs. I do not like doing that as a rule because you do not know who hears the action and even 1f you hear it yourself you do not know what the -—- you cannot recall all the circumstances. I think that is all I can do really, that is, reserve costs. MR KELLER: If your Honour pleases. HIS HONOUR: Directions are one thing. What I have done is bopet 2.7 ti0f 5 cr said, well, you can get together about directions. Now, 1£ you would like to do that now I will adjourn -81 140 MR KELLER and you can let me know whenever you have fixed at. But you are no part of what I understand Mr Byrne now wants to proceed with. So you please yourselves which way we go. MR BYRNE: Well, perhaps your Honour might adjourn for a few minutes so that we might consider the directions matter and then deal with this aspect. HIS HONOUR: All right. Twill adjourn now for a short while. bopet 2.7.81 141 t1l0f 6 cr MR SALMON: Your Honour, just before your Honour leaves the application with which your Honour has already been dealing, as I understood it your Honour stood over the further hearing of that application to the hearing of the action and granted leave to the applicant to amend the application generally and reserved the question of costs. Your Honour indicated your Honour's intention to make the second two orders. HIS HONOUR: I beg your pardon? MR SALMON: Your Honour indicated that you were contemplating making those second two orders; I assume your Honour intended to make them. I do not wish to be heard on them. HIS HONOUR: I make them on the basis if they want to bring on an application in an interlocutory way they can amend the application and do that. MR BYRNE: Your Honour we discussed the matter of directions outside. The general view was that the only direction sought at the moment would be that the applicants file the statement of claim by 4 pm on Wednesday next. HIS HONOUR: Yes. MR BYRNE: At that time the several respondents would be in a better situation to know the case they are meeting and those directions that they should seek. Is that right? MR SALMON: Yes. HIS HONOUR: And when do you want the further hearing on directions? MR BYRNE: We had thought that a date would be fixed for that, your Honour; that the parties would have leave to seek a directions hearing following upon the service of the statement of claim. HIS HONOUR: All right. It is better to fix a date if you can. All I will do by way of directions at this stage is order the applicant in matter ACT G 17 of 1981 to fale and serve statement of claim before 4pm next Wednesday, 8 July, and I stand over the further hearing of directions to a date to be fixed by the district registrar. MR SALMON: On three days notice by any party, your Honour? bopet 2.7.81 142 t11£ 1 31