Metcash Trading Limited v Bunn [2006] FCA 322

FEDERAL COURT OF AUSTRALIA

Metcash Trading Limited v Bunn [2006] FCA 322

INTERLOCUTORY APPLICATION – application for injunction to restrain the publication of certain allegations – whether there was a serious question to be tried – whether the balance of convenience favoured the applicants – whether damages adequate remedy – application allowed.

Trade Practices Act 1974 (Cth), ss 6(3), 52, 53, 90 METCASH TRADING LIMITED (ACN 000 031 569) & ORS v PETER CHADLEY BUNN SAD 29 of 2006 LANDER J 9 MARCH 2006 PERTH (VIDEOLINK TO ADELAIDE AND CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 29 OF 2006

BETWEEN: METCASH TRADING LIMITED (ACN 000 031 569)

FIRST APPLICANT

IGA DISTRIBUTION PTY LTD (ACN 004 391 422)

SECOND APPLICANT

AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645)

THIRD APPLICANT

AND: PETER CHADLEY BUNN

RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 9 MARCH 2006

WHERE MADE: PERTH (VIDEOLINK TO ADELAIDE AND CANBERRA)

THE COURT ORDERS THAT: 1. Leave to the applicants to delete paragraph 6 of the Details of Claim in the Application filed on 24 February 2006 and substitute for paragraph 6 of the Details of Claim: '6. An injunction restraining the Respondent, his servants or agents from publishing, whether on the internet or by any other means of communication to the public, any allegation to the effect that: a. the Respondent or the Respondent's former company, Chadmar Enterprises Pty Ltd (In Liquidation) is currently pursuing recovery proceedings against any of the Applicants or their related entities; b. the Applicants actively and deliberately operated in a manner calculated to destroy the Respondent's business; c. the Applicants actively and deliberately operate in a manner calculated to prejudice, damage or destroy the business of independent retailers with whom they deal; d. the Applicants have deliberately and improperly concealed the existence of substantial actions commenced by suppliers and customers and thereby caused Metcash Limited to breach its disclosure requirements'. 2. Leave to the Applicants to delete paragraph 6 of the Claim for Interlocutory Relief in the Application filed on 24 February 2006 and substitute for paragraph 6 of the Claim for Interlocutory Relief: '6. That until further order, restrain the Respondent, his servants or agents publishing, whether on the internet or by any other means of communication to the public, any allegation to the effect that: a. the Respondent or the Respondent's former company, Chadmar Enterprises Pty Ltd (In Liquidation) is currently pursuing recovery proceedings against any of the Applicants or their related entities; b. the Applicants actively and deliberately operated in a manner calculated to destroy the Respondent's business; c. the Applicants actively and deliberately operate in a manner calculated to prejudice, damage or destroy the business of independent retailers with whom they deal; d. the Applicants have deliberately and improperly concealed the existence of substantial actions commenced by suppliers and customers and thereby caused Metcash Limited to breach its disclosure requirements'. 3. Upon the Applicants' undertaking to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court to any person, whether or not a party, adversely affected by the operation of this order and to pay compensation as directed the Court orders that: 3.1 Until further order, the Respondent, his servants or agents be restrained from: a. operating or promoting directly or indirectly websites under the names www.metcashinfo.net or www.IGA-ALM.net or any website address incorporating the words "Metcash", "ALM" or "IGA"; b. publishing whether on the internet or by any other means of communication, any written contract or arrangement or any account of the terms of any contract or arrangement between any one or more of the Applicants and any other person or entity, including the Respondent. 3.2 Until further order, the Respondent, his servants or agents be restrained from publishing or republishing the allegations contained in the "Open Letter" dated 17 December 2005 being exhibit "PAC 11" to the affidavit of Peter Andrew Campbell sworn 23 February 2006. 3.3 Until further order, the Respondent, his servants or agents be restrained from soliciting or obtaining any contract or arrangement or copy contract or arrangement or any account of the terms of any contract or arrangement between the Applicants, or one or more of them, and any other person or entity the subject of a term of confidentiality. 3.4 If and insofar as the Respondent has or should receive, obtain or be provided with any written contract or arrangement or copy contract or arrangement or record of the terms of a contract between the Applicants, or any one or more of them, and any other person, the Respondent be restrained from publishing or republishing the contract or arrangement copy or record thereof. 3.5 Until further order, the Respondent, his servants or agents be restrained from publishing, whether on the internet or by any other means of communication to the public, any allegation to the effect that: a. the Respondent or the Respondent's former company, Chadmar Enterprises Pty Ltd (In Liquidation) is currently pursuing recovery proceedings against any of the Applicants or their related entities; b. the Applicants actively and deliberately operated in a manner calculated to destroy the Respondent's business; c. the Applicants actively and deliberately operate in a manner calculated to prejudice, damage or destroy the business of independent retailers with whom they deal; d. the Applicants have deliberately and improperly concealed the existence of substantial actions commenced by suppliers and customers and thereby caused Metcash Limited to breach its disclosure requirements'.