CATCHWORDS Trade Practices - injunctions - undertakings offered - jurisdiction to accept undertakings - Trade Practices Act 1974. Trade Practices Act 1974, s.80. Thomson Australian Holdings Pty.Ltd.v. The Trade Practices Commission & Ors. (1981) 37 A.L.R. 66 TRADE PRACTICES COMMISSION v. OLYMPIC PRODUCTIONS AND PUBLICATIONS PTY.LTD. & ANOR. QLD. G74 of 1985 Spender J. Brisbane 4 November, 1985 RECT "Sh 2 2 JAN 1986 IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD No.G74 of 1985 GENERAL DIVISION ) BETWEEN : TRADE PRACTICES COMMISSION Applicant AND: OLYMPIC PRODUCTIONS AND PUBLICATIONS PTY.LTD. First Respondent AND: PARAMOUNT PRODUCTIONS PTY.LTD. Second Respondent MINUTES OF ORDER JUDGE MAKING ORDER: SPENDER J. DATE OF ORDER: 4 November 1985 WHERE MADE: BRISBANE THE COURT ORDERS THAT: On the undertakings offered by each of the First and Second Respondents, through its counsel, there be no order as to costs, including reserved costs. bad [e} H Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD No.G74 of 1985 GENERAL DIVISION ) BETWEEN : TRADE PRACTICES COMMISSION Applicant AND: OLYMPIC PRODUCTIONS AND PUBLICATIONS PTY.LTD. First Respondent AND: PARAMOUNT PRODUCTIONS PTY.LTD. Second Respondent SPENDER J. 4 NOVEMBER, 1985 REASONS FOR JUDGMENT In these proceedings the applicant, the Trade Practices Commission, seeks injunctions against both Olympic Productions and Publications Pty.Ltd. and Paramount Productions Pty.Ltd. The injunctions seek to restrain the respondents by themselves, their servants or agents, from engaging 1n conduct that is misleading or deceptive, or is likely to mislead or deceive by selling, delivering or otherwise forwarding to any other person, firm or corporation any invoice, statement or similar document in respect of advertising services in a publication printed or published by or on behalf of the respondents in circumstances where that advertising had not been authorized by or on behalf of that person, firm or corporation. Though not precisely the terms of the application as filed, after submissions and discussion before me, that is the nature of the injunctive relief sought. Essentially, the Trade Practices Commission seeks to enjoin each of the respondents from forwarding invoices which are in fact in respect of unsolicited advertising services. Each of the respondents, through its counsel, offers undertakings in accordance with the injunctions sought by the Commission. The Commission 1s prepared to accept those undertakings. The question then 15 whether this Court has jurisdiction to accept the undertakings offered without proceeding to inquire into the factual circumstances leading to that offer. Section 80 provides, so far as 1s presently relevant: "80.(1) Subject to sub-section (1A), where, on the application of the Minister, the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute - (a) a contravention of a provision of Part IV or V; (b) attempting to contravene such a provision; (c) aiding, abetting, counselling or procuring a person to contravene such a provision; (d) anducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) conspiring with others to contravene such a provision, the Court may grant an injunction in such terms as the Court determines to be appropriate. (4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised - (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; (b) whether or not the person has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind. (5) The power of the Court to grant an injunction requiring a person to do anact or thing may be exercised - (a) whether or not 1t appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing." The short point is whether it is necessary that, before this Court can accept undertakings in lieu of injunctive relief, it must be shown to the Court's satisfaction that a person has engaged in, or is proposing to engage in, conduct that constitutes, or would constitute, any of the conduct specified in s.80(1)(a) to (£) inclusive. The undertakings are offered without any admission that either respondent has engaged in or is proposing to engage in conduct that would constitute any of those six categories of conduct. Notwithstanding the declining to make admissions of any such past conduct, or of any proposal tq engage in any such conduct in the future, the undertakings as offered are acceptable to the Commission. It 1s therefore necessary to consider whether, conformably with principle, I might accept the undertakings offered in the absence of admissions establishing to the Court's satisfaction that a person has engaged in or is proposing to engage in conduct of any one of those six categories set out in s.80(1). In Thomson Australian Holdings Pty.Ltd v. The Trade Practices Commission and Ors. (1981) 37 A.L.R.66, Gibbs C.J., Stephen, Mason and Wilson JJ. said, in the light of the then provisions of s.80, at p.73: "When a specific statute which invests the court with jur1sdiction in matters of a particular class does so in such a way as to limit the power of the court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court of Australia Act. The provisions of that Act, correctly understood, do not empower the court to grant injunctions restraining, or relating to, contraventions of the Trade Practices Act in situations falling outside the boundaries drawn by s.80 of that Act." Their Honours said, at p.75, "The parties by consent cannot confer power upon the court to make orders which the court lacks power to make." Thomson's case presented the difficulty that the terms of the orders made restrained the defendants from engaging in conduct which did not constitute contraventions of any Part of the Act. It followed then that the precise question determined in that case was that the Federal Court did not have jurisdiction to restrain the conduct covered by the orders made and had no jurisdiction, therefore, to receive undertakings which were directed to those factual circumstances. In this particular case, there is no doubt that the undertakings offered are in respect of conduct covered by Part IV of the Act. There 1s no doubt that the Court would have, in the appropriate factual circumstances, jurisdiction to grant injunctions in terms identical with the undertakings offered. Nor 1s there any doubt that, were injunctions granted in terms of the undertakings offered, any conduct constituting a breach of those orders would be punishable by contempt proceedings. As Gibbs C.J. Stephen, Mason and Wilson JJ. noted in Thomson at p.76: "An undertaking to the court is given in lieu of an injunction and, if broken, is treated as the equivalent of an order for the purpose of enforcement; it may therefore be enforced in the same manner as an injunction: Milburn v. Newton Colliery Ltd. (1908) 52 Sol Jo 317; London and Birmingham Railway Co. v. Grand Junction Canal Co. (1835) 1 Ry & Can Cas 224 at 241; Re National Federated Electrical Association's Agreement (1961) LR 2 RP 447 at 452; Biba Ltd. v. Stratford Investments Ltd. £19731 Ch 281 at 285-7." Subsections (4) and (5) of s.80 make it clear that it is not necessary that there be an intention to repeat or to continue infringing conduct, or that there have been past infringing conduct, or that there be an imminent danger of substantial damage, before an injunction may be granted. However, 1t seems to me that paragraph (a) of each of subsections (4) and (5) is directed to those circumstances where it appears to the court that the person has in the past or is at that present time engaging in contravening conduct, while paragraph (b) in each of subsections (4) and (5) merely repeats and underlines the fact the grant of power in subsection (1) extends to the granting of anjunctions to restrain proposed contravening conduct, and before any such conduct has occurred. Franki Jd., the primary judge in Thomson, rejected a submission that the court should not grant an injunction, even by consent, unless the relevant matters referred to in s.80 were established either by evidence or by admissions. He said: "I consider that when the court is asked by consent of the parties to a settlement to implement terms of that settlement it should not raise unnecessary difficulties about pleadings and, for example, require an amendment provided that the court is satisfied that any consent orders it makes, or consent undertakings it accepts, are not inappropriate and are within jurisdiction." The majority judgment of the High Court in Thomson said at p.75: "In deciding whether consent orders sought are in conformity with legal principle the court is entitled to treat the defendants' consent as involving an admission of all facts necessary or appropriate to the granting of the relief sought." In my view, this Court has jurisdiction to accept the undertakings offered on behalf of the respondents. Those undertakings are acceptable to the applicant, and I propose to accept them in lieu of the injunctive relief claimed. I propose to make no order as to costs, including reserved costs. There have been no express admissions as to conduct and there is therefore no basis for determining one way or the other the merits of the allegations made in the pleadings. Moreover, the undertakings, made without express admissions as to facts, are acceptable to the applicant. No basis exists therefore to resolve what are plainly disputed evidentiary questions and the court cannot make a guess as to how they might have been resolved had a different course been adopted by the parties. It seems to me therefore that the proper order to make 1s that there be no order as to costs, including reserved costs. G " ANovemper 19857 & -