3h 'NOTE: This judament relates to 1t5 owm facts and 1s not of a sufficient qenerai interest to justify circulation,' IN THE FEDEFAL COUPT OF AUSTFALTA ' CUDENSLANG PLETrie? REGLITRY ) QLD Gel of 1985 SENEFAL DIVISTON ) RETWEEN : xe t BSPRT FoOCD FROCES&OPS PUY ET Applicant AND: PAINECW SRFOMOTICNS PRY LTE respordent DETE OF HEAPING . 2+ duly 19285 DATE JUOGMENT DRLIVEPED: 24 July 1985 COUNSEL. . ror the applicant Mr L.D. Bowden instructed by J.C. Tlarke and Co. . for the respondent Mr &.G. Bain instructed by D.T. O'PFIEN TATE To PINCu? J, IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) OLD G62 of 1985 GENEPAL DIVISION ) BETWEEN KEFST FOOR FRI CESSCPS PY LIS AN?: PAINBOW SP UMOTIINS FRY LPO Respondent MINUTE? OF OREEF SUDGE MAFING CROER: PEWS oF DATE UF FDEF: 24 JULY 1325 WHEFE "AD RE: BPT?PANL PVE COURT ORDERS TKAT: l. Joon the respondent br 1ts counsel undertaking that it all not, after 24 August 15385, sell its pork tyackle in packets, o2 which example are Exhibits D. E and F to the affiis wit of Mr Peter Winkxley fried here an 15 July 1985, in the State of Queensland or an tne State of New South Wales north of a Line from the cuast to the berder through the tres of Coffs Harbour and Armidais or in those 16125, the rpelication for an irterlecutory anjurnztion wiil be adjcurned sine ale. bs Tne costs cf the application shall pe the applicant's costs in any event. tlement and entry of orders 15 dealt with in Order 36 the Federal Court Rules. NOTE: 3 fa) IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTPICT REGISTRY ) QLD Go2 of 1985 GENERAL DIVISION ) BETWEEN - BEFFI Poor PROCESSORS © AND: PAINSc | PPrMOTTOYS FIY LTC . Resvondent i 94 FILLY 1985 PINct t) L ro Ex TEMPORE PESSONS Fop JUDGMENT This 1s an application for an interlocutory injunction onduct urder s.52 of she Trade "I w aQ allegira misleading or decept1 Act 1374 or cassing-ofrf. The basis of tne application to tnase used cy 'tre anolicant. The s wNLblal question with which the case was concerned was whethe Fhat was se, as if 15 was so, 1 seamed clear that the appizrcant fT, 1¢* having been, so to speak. first into the market-place. In substance, however, the dispute has resolved itself unto a marrower one and that for two reasons: firstly, certain or the containers fornerly in question are now to be no longer They are the boxes in which packets of the product, which io wa D [on is called pork crackle. were soli. I pause to observe tnat 1t seems clear enough that those boxes are very similar to the applicant's boxes and it 1s difficult to believe that the Similarity had not the purpose of causing buyers to assume that thers was a business connecticn oetween the apelicant and the responcent. However, tncse boxes desimm 1s being cranmed. narrowed the quettisan bet the responaent has, during the courte ofr arqument., offered an undertaking, subsequently amendecd, the form of whith was as follows: the offer 2s that tne respondert will net, ater 24 Seorsmcer 1985, sell wts core crackls in vackets, of whith examples ar2 Exhios1ts T, Mm and Foto tae affidavir of Me Fecer border through the cities of Corfs "ilarbour and Armidale or in these c1tiss. fu w a + i] i) i re) u i The pericd proposed during which the res¢o able to readjust 1t5 warketing methods has been retuced from twe months ta siz: weeks during the course of subseaguent discussion, and I have had evidence from Mr Wilson ané Mr Ainkley on the gentlemen did their best, reither of them seems to me anple to Give me any accurate estimate of the length of time likely to be J ts an which to sell the oO wD involved in producing new pack respondent's product. No doubt the time ain which that can, in fact, be achieved may depend upon circumstances of various kinds, Surh as the reliability of the manufacturer, what his commitments are at voresent and what they become in the next few weeks. To some extent then, the achievement cf mv purpose, which 1s to fix a time freoam which the restraint will operate without unreasonanl or oppressively damaging che respondent, must be a matter or estimate and cannot be arrived at sracisely. My view of the matter, nowever, ais influenced by the circumetance that the resvoondert has, in my provisional view, made mot the sliahtest attempt ta distinauish its product ina wenuine wavy feocm that of the applicant. That 1s, in view of the ceior cealationshie between them. one would have tnought that common honesty woule have brougnt absut the result that the respondent would make sure ut cceuld not be accused of patsina-cift. Sa far from doing 'nat, 1t nas produced packets which suxerficially lsok qaurte similar and which I am confident would be lixely to be mistaken by at least som2 purchasecs for those produced by the applicant. It ais pessible that the apnoearance of scmething arpeoaching sharp practice is deceptive and that this hapnoened by mistake, but I must take into account matters as they appear ta me at this anterlscutorvy stage ani tre way they anpear to ne is "hac the respenden* has nor taken been taken when it ventured into competition with the applicant, for which 1t had previously been a distributor. Taking that matter into account. I am inclined to favour the contention of the applicant but only to the extent of fixing a shorter time. That 15, whereas the applicant has cantended that the restraint should be operative immediately, in view of iT the fact tnat the product has now been sold for some manths ft de eI mot tnink that should o8 done at this interlocutory stage. x2eD in mind that the applicant still has tne possibility of cursuing a clara in damages. Tt 15 theretore my view that the restraint snould operate as from a date cre calendar mcnth from Mr Bazin now offers to give an undertaking operative from Ecoliow a a3 Mm upon the respondent by ats counsel uncertaking that 1t will not, after 24 August 1985, seli its pork crackle in packets, of which examples are Exhibits 0D, E and F ta the affidavit of Mr Peter Winkiey filed here on 15 duly 1985, in the State of Queensland or in the State of New South Wales north of a iine from the coast to Ene berdar througn the cities of Coris Harbour and armidale or in oa for an ainterlocutory intunctisn a those cities, the applicattior W1lil bea adjourned sine die. The reason that I make the order for adjournment is that my attention has Feen drawn oy Mr Bewden to tne possibility that the new packet nay still infringe the rights he says his client has and I prefer not to dispose of the application finally. As to costs in the ordinary final order for costs should be nade interlocutory injunction because, the sdlbrlitvy alwavs exists that ie) injunction 15 made will suceest ak the those costs. It seems case distinguish the the fact that, as lamentably late; of i nat off 1D "5 p C into that, ain my belief, LS deception, the appropriate oraér, of today's applicaticn snould be the wirii event. That is, the apolicant result of the trial. meat Oy 7 ty of aay bare Ss tha that the rcumstance fer atcoun' a strong in my view, have those ry thar tt heron of } way I do not think that a on an application for an as Mr Bain rightly points out, party against whom the trial and then should have e1ee cumstance ardinary. Ther that the matter has ing ar underta! d hefore anc also prima acie 1s that applicant's costs costs whatever the & eding ns reacens for rec ws and aed of rue cory c alt 3 Hiuour Panca vel oe ae