Ibe Nor FoR orsmREBUTIN ye evr ys, SOL) FF CATCHWORDS PRACTICE AND PROCEDURE - Notice of motion discontinued by applicant - costs of parties. INDEPENDENT LOCKSMITHS (NSW) PTY. LIMITED v. A. AARDVARK MASTER LOCKSMITHS PLY. LIMITED and AUSTRALIAN TELECOMMUNICATIONS COMMISSION G 555 of 1986 LOCKHART J. SYDNEY 8 DECEMBER 1987 28 JUN 1999 FEDERAL OGURT OF AUSTRALIA PRINCH#AL IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 555 of 1986 ) GENERAL DIVISION ) BETWEEN : INDEPENDENT LOCKSMITHS (N.S.W. ) PTY. LIMITED Applicant B A. AARDVARK MASTER LOCKSMITHS PTY. LIMITED First Respondent AUSTRALIAN TELECOMMUNICATIONS COMMISSION Second Respondent ROSS CATTAN Third Respondent JUDGE MAKING ORDERS: LOCKHART J. DATE OF ORDER: 8 DECEMBER 1987 WHERE ORDER MADE: SYDNEY MINUTE OF ORDERS THE COURT ORDERS THAT: 1. Leave be granted to the applicant to discontinue the Notice of Motion filed on 13 November 1987; 2. The applicant pay the costs of the notice of motion of the first and third respondents; and 3. There be no order as to the costs of the second respondent. NOTE: SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 555 of 1986 ) GENERAL DIVISION ) INDEPENDENT LOCKSMITHS (N.S.W. ) BETWEEN PTY. LIMITED Applicant AND: A. AARDVARK MASTER LOCKSMITHS PTY. LIMITED First Respondent AUSTRALIAN TELECOMMUNICATIONS COMMISSION Second Respondent ROSS CATTAN Third Respondent 8 December 1987 REASONS FOR JUDGMENT LOCKHART J. On 4 December 1986 the Court heard a motion for interlocutory injunctive relief by Independent Locksmiths (NSW) Pty. Limited ("Independent Locksmiths") joining as respondents A. Aardvark Master Locksmiths Pty. Limited ("Aardvark") and the Australian Telecommunications Commission ("Telecom"). Independent Locksmiths had sought to restrain Aardvark from engaging in what was alleged to he misleading or deceptive conduct within the meaning of s. 52 of the Trade Practices Act 1974 ("the Act"), and from making certain representations which were said to contravene paras. 53(c) and (d) of 2. that Act. The conduct complained of was the alleged use by Aardvark of the words "Interdependent Locksmiths Co." or "Interdependent Parramatta" or "Interdependent Locksmiths Company" or like words when the Independent Locksmiths' business was carried on under the name of Independent Locksmiths. The matter, heard on 4 December 1986, was decided in favour of the applicant and interlocutory relief granted. The applicant was directed to bring in short minutes of order that afternoon, to give effect to the Court's orders. However, on the same day counsel for the parties announced that the case had been settled, and the Court was asked to make certain orders by consent on a final basis, which it did. Telecom was, of course, joined for more abundant caution and it became a submitting respondent. On 13 November 1987 a notice of motion was filed in this Court by Independent Locksmiths, joining as respondents Aardvark, Telecom and Mr. Ross Cattan, a director of Aardvark. The applicants, Independent Locksmiths, seek to punish Aardvark and Mr. Cattan for contempt of the orders granted by this Court on 4 December 1987. The statement of charge which accompanied the notice of motion particularises the alleged contempt as threefold: (a) publishing an entry in the Parramatta and Holroyd Pink Pages 1987 telephone directory; (b) publishing an entry in the Yellow Pages section of the 1987 Parramatta and Hills District Community phone book; and (c) publishing an advertisement in the 1988 Sydney Yellow Pages, each instance being an alleged contravention of the orders of 4 December 1986. The notice of motion was supported by affidavit evidence, and first came before this Court for hearing on 23 November 1987. Certain 3. documents had been subpoenaed by Independent Locksmiths from third parties, presumably those responsible for the publication or printing, or both, of the three telephone directories to which I have referred. The parties were granted leave to inspect the necessary documents that were produced on subpoena and the motion was then adjourned until 8 December 1987. Counsel for Independent Locksmiths informed me at the commencement of these proceedings that it no longer sought to proceed with the notice of motion. Leave to discontinue the motion was sought not opposed and granted. The dispute thus becomes one of costs. Independent Locksmiths says that it should not have to pay the costs of Aardvark and Mr. Cattan of the motion. The grounds are, first, that the long arm of coincidence was said to be too long, because of allegedly offending entries in the three directories to which I have referred. Second, it was necessary to bring these proceedings so as to obtain by subpoena the necessary documents from the publishers or printers of the directories in order to discover what had, in fact, occurred. Third, the publishers or printers of the allegedly offending entries appearing in the recent directories did not have sufficient notice of the orders of the Court of 4 December 1986. No blame is laid by the applicant against the respondents in respect of these entries. Counsel for Aardvark and Mr. Cattan submits that the costs should follow the event in the usual way. It is, no doubt regrettable that it required the bringing of the notice of motion for the facts to emerge relating to the publication of the allegedly offending entries since 4 December 1986, 4. and it may be that that could not have been done other than by bringing some form of proceeding with appropriate subupoenas to the publishers or printers of the directories concerned. I say nothing more about that. I do not think that Independent Locksmiths can be criticised for bringing the proceedings that it has; there were entries that ex facie appeared to be in breach of the injunctions granted on 4 December 1986. Perhaps the coincidence was sufficiently great to cause Independent Locksmiths the concern which it did and to justify bringing these proceedings. However, I do not think that the institution of proceedings by the applicant can be swept aside and expressed in no order being made as to costs. Aaardvark and Mr. Cattan were brought here against their will, with charges of contempt of Court against them. The proceedings are to be discontinued. The respondents have, therefore, succeeded in their resistance to the notice of motion and the usual order for costs should apply. Accordingly, I order the applicant, Independent Locksmiths, to pay the costs of Aardvark and of Mr. Cattan of the notice of motion filed on 13 November 1987. There will be no order as to the costs of Australian Telecommunications Commission of the notice of motion. The documents which were produced to the Court pursuant to subpoenas issued in this matter may be returned whence they came. I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of the Honourable Mr. Justice Lockhart. a Associate la Naw Date: 8 December 1987