JUDGMENT No.t hm NOT SUITABLE FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.318 of 1987 GENERAL DIVISION BETWEEN: TRANS ATLANTIC FREIGHT PTY LIMITED Applicant OLYMPIC AIRWAYS S.A. Respondent EX-TEMPORE REASONS FOR JUDGMENT BURCHETT J. I am able to deliver judgment right away. In this application, a statement of claim was filed on 15 July alleging breaches of s.52 of the Trade Practices Act 1974. The claim is made by the applicant, a corporation conducting the business of a travel agent operated by Mr. Adamopoulos, to whom for convenience I shall refer as the applicant. It 1s made against the respondent Olympic Airways SA, to which I shall refer as Olympic, and which is a corporation registered within Australia. Mr. Milne of Queen's Counsel, for the applicant, opened equally, and that was false. I] =DSEP 1987. |: FEDERAL CCURT OF N AUSTRALIA {/ / - PRINCIP, "4 cy AEGISTAY " \/ oe aN? » SO OY 2. The question arises in the context of the travel agent's activities selling airline tickets in respect of travel between Australian airports and Athens. Olympic, after some years during which it did not fly to Australia, recommenced doing so in December 1984. About that time, there was a meeting of travel agents addressed by executives of Olympic at which, there is evidence, the assertion relied on was made. Thereafter, the applicant sold a number of Olympic tickets as an IATA agent. He received 9 per cent commission, according to the IATA scale. But Olympic at that time was paying, or agreeing to pay, further commissions to its agents - referred to as overriding commissions - according to a sliding scale depending on annual ticket sales. The effect was that an agent who sold more tickets would receive a higher commission. That additional commission would be paid only after the flight, and only if the passenger did not transfer to another airline. In the industry, it was called an overriding commission on flown revenue. The applicant says the effect was that agents (referred to as consolidators), selling large numbers of tickets by engaging sub-agents to sell on their behalf, were able to obtain much higher commissions, and therefore could offer greater discounts to customers. As a result, the applicant was forced to sell at an unprofitable discount against his smaller commission, because of his smaller turnover, in order to match his competition. He says this situation involved, in breach of the representation, an unequal treatment of agents. Olympic, on the other hand, says all agents were treated identically. It was open to any to earn the same higher commission by selling the same number of tickets. However that may be, after February 1985, the applicant ceased to buy tickets from Olympic and purchased from a consolidator. He must have known Olympic would be paying, in respect of each ticket, a substantial commission to that consolidator, and he must have contracted with the consolidator for a remuneration which would, presumably, be paid out of the consolidator's commission. Then, in 1987, the applicant resumed selling on behalf of Olympic as an agent dealing directly with it. In June 1987 the applicant sold tickets to an amount of $424,251.93 which he did not remit under his contract with Olympic; instead, he commenced this proceeding. On 21 July Olympic, for its part, took action in the Supreme Court in commercial causes against the applicant, and it has entered judgment for $424,251.93 plus costs. There is presently a stay in the Supreme Court of that judgment pending this application. What is sought here is interlocutory relief, in respect of the enforcement of the judgment, until determination of the Trade Practices Act claim. It is pointed out, by counsel for Olympic, that in Qantas v. Stephens Travel Service (Clarke J., unreported, 4 April 1986) it was held that the moneys received by a travel agent in such circumstances are held in trust, and it is put this would militate against relief in the present case. The first question, however, is whether - within the principles in Epitoma Pty Limited v. AMIEU (1984) 3 F.C.R. 55 = the applicant has made out a sufficient case for interlocutory relief. It is easy to sympathize with the applicant's commercial plight but, quite apart from the question whether the position was ever misrepresented to him, he faces the difficulty that it is admitted he was told clearly, by Mr. Joannides (an executive of Olympic) by February 1985, that commissions were paid according to a scale depending upon ticket sales and upon flown revenue. As at that date, a relatively small amount of business had been done; sufficient, on the applicant's own case, to entitle him to no more than about $15,000 additional commissions. The answer to this difficulty, proffered by Mr. Milne, is that he was already in a position from which he could not extricate himself; but after February 1985, and for nearly two years, he did in fact cease to act as an agent buying directly from Olympic, and it is admitted that on the evidence he has no claim in respect of tickets sold by him during that period. It appears that he ceased to act directly for Olympic for reasons which are quite unrelated to the present claim. When the applicant resumed selling for Olympic in 1987, on the terms on which he did sell, it seems to me the evidence simply does not, at this interlocutory stage, permit me to conclude that he was doing so as a result, direct or indirect, of the alleged misrepresentation. In those circumstances, I do not think a sufficient case has been made out to justify the relief sought. This conclusion makes it unnecessary for me to deal with certain other submissions put on behalf of Olympic, though I should add that it seems to me beyond argument that the Court would have had power to grant appropriate relief against Olympic 5. if a case had been made out. For these reasons I dismiss the application. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Chetan Chole Associate Dated: 11 August, 1987.