Pd IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VG 163 of 1981 ) GENERAL DIVISION ) BUDGET RENT-A-CAR SYSTEM PTY. LIMITED Applicant HERTZ PACIFIC LIMITED Respondent Coram: Fox J 15 September 1981 Melbourne. EX _TEMPORE JUDGMENT In this matter Northrop J last Friday, 11 September, granted ex parte injunctions on the application of the present applicant. The injunctions related to television advertisements concerning the Le Mans Service, which related to the hiring at airports of Hertz cars. The ex parte injunction was to continue until 4.15 tomorrow, the 16th September, or further order. The injunction had three parts, which I need not set out. The party made respondent and against whom the injunctions were ordered was Hertz Pacific Limited. It now appears to be the fact that Hertz Pacific Limited is not directly connected with the advertisements in question and 1s probably mis-joined. However, at this stage the applicant makes no request to have that party dismissed; instead, when this matter came on for hearing before me this after- noon an order was sought and made by consent that Kay Rent-A-Car Pty. Limited be added as a respondent and it seems to be common ground that it is the appropriate respondent, which has responsibility for the advertise- ments. The injunction granted does not operate against Kay Rent-A-Car Pty. Limited and no application has been made that it should do so. However, argument has proceeded to some extent on the basis that that company may be in contempt of court, it being the company respon- sible for the advertisements; that it acted contrary to the injunction against Hertz Pacific Limited, of which it was well aware. The application before me this afternoon is one made by Kay Rent-A-Car Pty. Limited and is an application to discharge the existing injunction. This, of course, is done on the basis I have mentioned, namely, that it is or may be affected by the operation of the injunction, although granted only against Hertz Pacific Limited. The application is brought on at short notice and there has been an application by the applicant for an adjournment. However, it is agreed on all sides that the matter is urgent and I have refused that application. One of the consequences is that I cannot see the television advertisement in question, an advantage which Northrop J, I am told, had. However, I did have before me a transcript of the spoken words in the advertisement. There was a question as to whether the matter should stand over until tomorrow so that in the course of that day the applicant could move to continue the injunction, but this suggestion was resisted by counsel on behalf of Kay Rent-A-Car Pty. Limited on the grounds of the urgency today of the resolution of the present matter. Counsel for Kay Rent-A-Car foreshadowed the possibility of an application against the present applicant, based, I imagine, on s.52 of the Trade Practices Act (1974) in relation to advertisements and notices which it had published recently and since the ex parte injunction was granted. This is a separate matter, although, as I will mention, the publication of such material has some relevance to the present matter. The injunction was, as I would understand, granted by the learned judge on the basis of s.52 of the Trade Practices Act, which deals with mislead- ing or deceptive conduct, or conduct Likely to mislead or deceive. I am not at present hearing an appeal from the judge and I think that I should accept at this stage his view that there was in the television advertisement matter likely to mislead or deceive. However, I think it is apparent, from the short time for which the order he made was to run, that he was of the view that an early oppor- tunity should be given to the party or parties affected to argue the matter and I think I am entitled to act on the view that, there being misleading or deceptive conduct, it was nevertheless slight. The question, therefore, has greater significance than might otherwise be the case in relation to the balance of convenience. His Honour had very little material to go on in this connection. There is now before me evidence which indicates that Kay Rent-A-Car Pty. Limited has spent a great deal of time and money in the preparation of an advertising campaign and in support of the view that the television advertisement in question ought not be altered. Under the present plans that company is committed to further publication of the same advertise- ment, and because of what has been done is rather heavily committed. This, of course, is not any final answer but is a Matter relevant to what should be done at the present stage. There are other factors, one of which I have already adverted to, namely that Budget has embarked upon an attack on the Le Mans programme using, to some extent, the benefit it has gained from the injunction which it obtained. It also seems that not much harm, if any, can be incurred by the applicant, certainly not over a period of a few days, if the injunction is refused or is now dis- charged. The evidence on both sides discloses that the hire car business is very much a competitive one and doubt- less the court process is being used to obtain as much business advantage as possible. This, I realise, is a two- sided matter but when considering the harm likely to be incurred by the applicant over a short period until the interlocutory proceedings can be brought on and evidence heard and considered at greater length, it is relevant to bear in mind that any deception is slight and that the applicant can use the injunction to obtain a dispropor- tionate benefit. My view is that if the learned judge had had before him the material now before me he would probably not have granted any ex parte injunction but would, on the other hand, have left the matter for an early interlocutory hearing. This is precisely what I now seek to bring about. I think the existing injunction should be discharged. As I have said, the only injunction that does exist as against Hertz Pacific Limited should be discharged and the court will do all that the parties wish to enable an early hearing to be effected, on a proper basis, of any interlocutory application that either wishes to pursue in relation to the advertisement. The order I therefore make is that the injunction to which I have referred be dissolved, that the costs of this application be costs in any interlocutory proceedings brought to obtain the same or a similar injunction or injunctions. What about the hearing? I do not think there are any more orders that you want at this stage. (Refer to Report of Listing for ddditional order). I certify that this and the + | preceding pir?s aie a true copy of the Reasons for juugment herein of bis Honour Mr. Justice Fox Mn __Assoctaté | oatee: 99 Oct 178!