o . Boy NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G850 of 1988. GENERAL DIVISION —eTr Tw BETWEEN: BUSINESSWORLD COMPUTERS PTY. LIMITED Applicant AND: AUSTRALIAN TELECOMMUNICATIONS COMMISSION trading as TELECOM Respondent CORAM: GUMMOW J. PLACE: SYDNEY. DATE: 6 JUNE 1988. EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: The applicant seeks orders indicated in the notice of motion filed in Court on 3 June 1988; in particular, the applicant seeks an order that the sum of $15,000 paid into Court by the applicant on 28 April 1988 be paid out to the applicant. On 22 April 1988, the Court gave certain interlocutory relief after a hearing on 20 and 21 April 1988. The applicant was successful in obtaining interlocutory relief having the effect of requiring the reconnection of certain telephone services; however, the granting of that relief was conditional upon the applicant rat ie taking various steps including the payment into Court, o > ON, Wy an an before 28 April - by bank cheque - of the sum of $15,0 i \ TT OTN AEE Nu. . ra a coe TAY te Pern FEDERAL COURT OF AGSTRALIA PIPL hiviail? The evidence concerning the state of account between the parties was summarised at pages 10 and 11 of the reasons for judgment delivered on 22 April 1988. It now appears, from subsequent dealings with the parties, that a sum of some $17,727.58 1s 1n dispute between them in respect of allegedly due and unpaid accounts. The respondent, however, seeks no increase in the amount of the undertaking. Events have also taken a further turn in that 1t is now plain that it 1s necessary for the proceedings to continue by statement of claim and, in particular, it is now clear that the applicant presses a claim for damages; it is thus apparent that the time necessary for the final disposition of the proceedings may exceed what appeared likely to be the case at the time of the interlocutory judgment on 22 April 1988. The applicant in these circumstances invites the Court to have regard to facts subsequently discovered or revealed as to the earlier promptitude of its payments to the respondent and from that point to proceed to a result whereby the undertaking would, as I have indicated, effectively be discharged by the payment out of the sum of $15,000 but the injunctive relief would be continued until the disposition of the proceedings. The relevant principles are set out in the joint judgment of four members of the High Court in Adam P. Brown Male Fashions Pty. Limited v Philip Morris Inc. (1981) 148 CLR 170 at 177-178. Their Honours there said and I quote (omitting their citations of authority): 3. Considerable argument was directed to the question whether a court has power, otherwise than in the case of mistake operative at the time of giving it to release a party from an undertaking, at least in the absence of the consent of the other party. But in our opinion a court undoubtedly has such a power. Just as an interlocutory injunction continues "until further order", so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust... Of course, the changed circumstances must be established by evidence... In my view, the materials before the Court this morning do not render it unjust to continue the orders in the form in which they were made on 22 April 1988. Accordingly, the motion dated 3 June 1988 is dismissed. I certify that this and the two (2) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr. Justice Gummow. LD Associate: Jihtievh haee- Date: 6 June 1988. Counsel and Solicitors for Mr. P. Clay of Messrs. Vindin the Applicant: Littlejohn. Counsel and Solicitors for Mr. C.J. Stevens instructed the Respondent: by the Australian Government Solicitor. Date of Hearing: 6 June 1988. Date of Judgment: 6 June 1988.