Packer v eReturn Pty Ltd [2000] FCA 1314

FEDERAL COURT OF AUSTRALIA

Packer v eReturn Pty Ltd [2000] FCA 1314

KERRY PACKER v ERETURN PTY LTD & ANOR N 959 OF 2000 EMMETT J 5 SEPTEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 959 OF 2000

BETWEEN: KERRY PACKER

APPLICANT

AND: eRETURN PTY LTD

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 5 SEPTEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The injunction order 4 September 2000 be extended until further order. 2. The matter be stood over for mention on Friday 8 September 2000 at 9.30 am. 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 N 959 OF 2000

BETWEEN: KERRY PACKER

APPLICANT

AND: eRETURN PTY LTD

RESPONDENT

JUDGE: EMMETT J

DATE: 5 SEPTEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, Mr Kerry Packer, claims declarations that certain proposed publications by eReturn Pty Limited of an advertisement would constitute contravention of Part V of the Trade Practices Act 1974 (Cth). He seeks orders restraining eReturn Pty Limited from publishing or causing to be published in any print, television or other medium any advertisement in the form of a draft advertisement or to the effect of that advertisement or in respect of the business of eReturn Pty Limited which uses or makes reference to the name or image or a quote of Mr Packer. 2 Late last night, I granted injunctions ex parte, restraining the publication of advertisements up to and including tomorrow. I directed that the application could be made returnable before me at 4.15 pm this afternoon and abridged the time for service to 2.00 pm today. There was no appearance for the respondent when the matter was called at 4.15 pm today. However, there was evidence that the respondent had been notified of the orders and of the commencement of the proceedings. 3 In addition, there has been tendered a form of consent order purporting to be signed by Lawson Donald as the Chief Executive Officer of the respondent. By the order, the respondent would be restrained permanently from publishing or causing to be published in any print, television or other medium, including Internet advertisements, of the description to which I have just referred. 4 However, at this stage, I have no evidence as to the authority of Mr Donald to consent to orders on behalf of eReturn Pty Limited nor is there firm evidence that the consent orders have in fact been signed by Mr Donald. 5 I do have evidence from Mr Packer's solicitor that he has spoken to a person who identified himself as Lawson Donald and I have absolutely no reason to doubt that the conversation deposed to by him is true. However, the solicitor would not be in a position to verify that the person to whom he spoke was in fact Mr Donald or that Mr Donald was authorised to consent to orders on behalf of the respondent. Having regard to the consequences of consenting to an order contravention of which would constitute contempt, I am not disposed at this stage to make final orders on the basis of consent. 6 The appropriate course, in the absence of any appearance from the respondent, is to extend the injunction I ordered last night until further order on an interlocutory basis. I will stand the matter over for mention before me at 9.30 am on Friday. If, at that stage, there is adequate evidence before me then I will contemplate making final orders by consent in the terms sought by Mr Packer. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.