WHT Seo! DAT RAR LQ IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G352 of 1986 ) GENERAL DIVISION ) BETWEEN : EXCHANGE TRADE INTERNATIONAL PTY. LIMITED First Applicant PETER WYNNE _CARRINGTON Second Applicant JEFFREY CHARLES BARRETT Third Applicant AND: BELTECH CORPORATION LIMITED First Respondent C.W.B. PTY. LIMITED Second Respondent PIONEER NOMINEES PTY. LIMITED Third Respondent TELBASE PTY. LIMITED Fourth Respondent OTHWELLS LIMITED Fifth Respondent MEDIA PORTFOLIO LIMITED Sixth Respondent JOSEPH SACCA Seventh Respondent ONIO BELCASTRO Eighth Respondent COLIN VOST Ninth Respondent THOMAS FORREST HUGALL Tenth Respondent . JOHN MICHAEL DORSEY ' Eleventh Respondent \ FEDERAL CJURT OF * Ase kh JOHN ALBION SCOLES REGISTRY Oy Twelfth Respondent < 2. IAIN ROBERT WATSON Thirteenth Respondent 26 September 1986 REASONS FOR JUDGMENT LOCKHART J. This matter was commenced by the filing of an application and a statement of claim on 22 August 1986. The applicants allege that representations were made by certain of the respondents relating to the entry by various persons, including parties to these proceedings, into certain agreements of 15 May 1986. The representations are said to be misrepresentations that constitute misleading and deceptive conduct within the meaning of sg. 52 of the Trade Practices Act 1974 ("the Act"). The corporate respondents are sued as alleged contraveners and the natural persons as persons involved in the contravention within the meaning of that expression in s. 75B of the Act. On the assumption that the case of misrepresentation has been made out the applicants seek as relief, amongst other things, declarations that the agreements are void and injunctive relief restraining the respondents from assigning or otherwise dealing wit' interests in Beltech Corporation Limited ("Beltech") that arose ov the agreements. Other orders sought include damages and relief s. 87 of the Act, to which I need not refer. under 3. The proceedings have been on foot for some time and on 24 September 1986 an application was made to another Judge of this Court for an ex parte injunction to restrain the second, third and fourth respondents, all of which are corporations from assigning or otherwise dealing with their interests in Beltech which arose out of any of the agreements to which I have referred. An order was also sought that Beltech be restrained from lodging an application form for the listing of 18,000,000 vendors' shares and options issued to the first applicant, Exchange Trade International Pty. Limited. The Court granted ex parte injunctions and directed that the notices of motion and affidavits be served by a prescribed time, and that the motion be made returnable on 26 September 1986 (today) at 2.15 p.m.. The date appears from the report of listing in the papers prepared by the Judge's Associate, but I notice that it does not find expression in the formal order taken out in the Registry on 25 September 1986. That point is not without some significance because counsel for the applicants said this afternoon, when the matter was called on for hearing, that he was under the impression that the ex parte injunctions, granted by the Court on 24 September, were to operate according to their tenor - that is to operate without temporal limitation. This would render the ex parte injunctions unusual because, in my experience, they are invariably granted only for a short time, after which the onus is on the moving party to seek to continue them. I am of course not certain as to what occurred; but the fact that the motion was made returnable at 2.15 p.m. suggests to me that 4. his Honour had in mind that the usual course be followed; namely that the ex parte injunctions were not intended to operate without limitation as to time but were to operate until today, so that if the applicants wished to continue them they could so move today. In any event, the proper approach to take in these matters is to assume that the applicants, since they have had the benefit of ex parte injunctions, must adopt the role of the moving party to seek to continue those injunctions until some later time; be it at the hearing of the proceedings on a final basis or at some earlier time. It is not incumbent upon the respondents, in effect, to move to set aside the injunctions of which they had no notice until the orders were formally served upon them and in which they had no opportunity to play @ part. Accordingly, I have approached the matter on that basis; namely, that it is for the applicants to make good their case in accordance with the usual principles governing the grant of interlocutory relief. Mindful of the paucity of evidence that the Court has, counsel for the applicants wisely has confined his application in essence to limit the continuation of the injunctions for a period of about seven days so that his clients' case may be put in order. However, I can act only on the evidence that is before me; and I am not satisfied that, as the evidence stands at present, there is sufficient material to support the conclusion that there is a serious question to be tried or a reasonable prospect of success on 5. the part of the applicants. Much less does the evidence support the view that there is a prima facie case in accordance with the earlier principles expounded by the High Court in matters of this nature. Accordingly, I decline to grant any interlocutory injunctions. If I were to have considered the matter as counsel for the applicants in effect asked me to, namely, to treat it as if there were injunctions on foot to subsist indefinitely and that it lay upon the respondents to move to set them aside, I am satisfied on the material before me that I would make an order setting the injunctions aside. However, in the light of the approach I have taken I need not take that course. It is always open for the applicants to come back with proper evidence to present their case for interlocutory injunctive relief and nothing I have said is intended to preclude them from taking that course. What I will do today is simply say, so that there will be no doubt about the matter in the light of the form of the order that has been taken out, that the injunction numbered 1 in the order taken out on 25 September, namely, an order restraining the second, third and fourth respondents from assigning or otherwise dealing with their interests in Beltech arising out of any agreements with the second or third applicants, is an injunction which I decline to continue. In relation to the injunction numbered 2, namely, an order restraining the first respondent from lodging an application form for the listing of eighteen million vendors shares and options issued to 6. the first applicant, [ terminate the injunction to the extent it is necessary to do so. As to the question of costs I order the applicants to pay the costs of the first, second, third and fourth respondents of this motion. 1 certify that this and the Que ss) preecding paces ce a fue copy of the ; Reactors '.. Sececect here.n ct hy Honour" fore aee) ~ Me Jestice Loce. 2. Dated: A, SOPT a6