, NOTE:- NOT APPROPRIATE FOR REPORTING OR FOR GENERAL CIRCULATION. AQT (AEW) IN THE FEDERAL 'COURT .OF AUSTRALIA VICTORIA DISTRICT. REGISTRY VG No. 309 of 1984 wwe ew wv GENERAL DIVISION _ -: BETWEEN : GARRY FRANCIS BULLOCK, JOHN SKILBECK GRAHAM JAMES HARKNESS Applicants and THE FEDERATED FURNISHING TRADES SOCIETY OF AUSTRALASIA L. KYRIACOU, A. FINDLAY, R. SHUGG, ALVONNE NOMINEES PTY. LTD. (Trading as A.F. CARPET DISTRIBUTORS), COLONY CARPETS PTY. LTD., R.G. CARPET AGENCIES PTY. LTD., CARPET WHOLESALERS (VIC.) PTY. LTD., OTTO FLOORS PTY. LTD., V.E. MACKEY & CO. PTY. LTD. JASON CARPETS COMMERCIAL PTY. LTD., and GURIAN PTY. LTD. (Trading as MYER TEALE) Respondents ORDER -- JUDGE MAKING ORDER Woodward J. DATE OF ORDER 5 December Melbourne WHERE MADE THE 'COURT ORDERS THATs!' Senui - ve ae 1. Leave to appeal be granted to the applicants. te By consent the appeal book contain the following: all affidavits and txhibits admitted into evidence; rules and financial accounts of the. Union; ' a interlocutory orders of Jenkinson J; \ Gray J's orders- and reasons for Gecision; »)— or: this Order;) +4 notice of appeal... .- °F as Appointment with the Registrar to settle the appeal book be dispensed with. The fifth-named and following respondents be served with a copy notice of appeal and this order. The hearing of the appeal be set down for 11 December 1984 at 2.15 p.m. Costs reserved. IN THE FEDERAL: COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION: «#0. BETWEEN : JUDGE: DATE: appeal should bevgranted?¢ E-think it!:is unnecessary that: d-shoukd tnar ) ) VG No. 309 of 1984 ) GARRY FRANCIS BULLOCK, JOHN SKILBECK GRAHAM JAMES HARKNESS Applicants and THE FEDERATED FURNISHING TRADES SOCIETY OF AUSTRALASIA L. KYRIACOU, A. FINDLAY, R. SHUGG, ALVONNE NOMINEES PTY. LTD. (Trading as A.F. CARPET DISTRIBUTORS), COLONY CARPETS PTY. LTD., R.G. CARPET AGENCIES PTY. LTD., CARPET WHOLESALERS (VIC.) PTY. LTD., OTTO FLOORS PTY. LTD., V.E. MACKEY & CO. PTY. LTD. JASON CARPETS COMMERCIAL PTY. LTD., and GURIAN PTY. LTD. (Trading as MYER TEALE) Respondents Woodward J. ' 5 December 1984 EX-TEMPORE JUDGMENT - ae I have formed a clear view in this matter that leave to state my reasons at any length. I accept that, in order to arrive at that conclusion, 'I have to be satisfied that there are special circumstances .involved .in the interlocutory order: which justify the matter being taken to a Full Court, having in mind the additional costs to -the. parties and the delay..which can be involved in that .course. I also accept that I «have .to consider "whether a substantial injustice could follow" from the refusal of leave to appeal. I take those words from the case of Niemann v Electronic Industries Ltd. reported in 1978 Victorian Reports 431, at 439. I appreciate that in a number of other passages in that report the test is stated as being whether a substantial injustice "would" or "will" follow, but that case was one which had been argued at length before a Full Court and in those circumstances it was appropriate to use the more definitive language. (Indeed the distinction between such cases and the case of a single judge asked to grant leave, was adverted to at p.441 of the report.) I think that a judge sitting alone in order to determine whether leave to appeal should be granted, should not go into the matter in great detail. He should look at it broadly and if it appears from the -nature of the case, and the interests which are likely to be affected by the -interlocutory order appealed from, that a substantial injustice could follow if leave to appeal is not granted, then: -I:ibelieve that leave to appeal should be granted. H -- In this matter is is clear that there is an important issue as to the correct test to be applied in determining whether there is sufficient material before:the court to justify the grant of an interlocutory injunction. There are a number of possibly conflicting decisions and"dicta, both of the Full Court-of this ----- 2 Court and of judges of the High Court. His Honour in this matter 'took one view of the authorities which was open to him. I think that other views are just as arguable and, because of the way in which he has expressed himself in his judgment, I think that, had he taken a different view as to the appropriate test to be applied, he could have come to the opposite result. It is also apparent that he based his finding that no prima facie case had been made out (which was the test he adopted) on the view that he took of a number of aspects of the law, particularly the proper interpretation of sections 45E and 45(2) of the Trade Practices Act 1974 and the appropriate principles to be applied to the claim under the accrued jurisdiction of the court, based upon common law doctrines of restraint of trade. I think that it is arguable that his -Honour's conclusions on those:matters may be in error and that that is a matter which should be considered by a Full Court, although it would not be necessary or appropriate, in all probability, for the Court hearing this appeal to reach final conclusions' on those issues. But ifsthe .FubbtCourt hwere'toCccame tertheoviewethatthisview tr Honour's findings sas: to the -llaw-are arguably wrong; .then that - would clearly affect the question as to whether. the first requirement for-the grant of interlocutory relief had been i. satisfied. If that stage were. reached, it would of course be necessary to .consider the .balance of- convenience, which is a matter which his Honour did not find it necessary to go into. However the applicants .maintain: that they -have vital- issues at stake affecting their livelihood. 1 For all the reasons that I have expressed, I believe that leave to appeal should be granted and I invite counsel now to address me on the practicalities of hearing such an appeal. I certify that this and the (3) three preceding pages are a true and accurate copy of the Reasons for Judgment herein of The Hon. Mr. Justice Woodward