Socasen Pty Ltd v Caltex Australia Petroleum Pty Ltd [2007] FCA 997

FEDERAL COURT OF AUSTRALIA

Socasen Pty Ltd v Caltex Australia Petroleum Pty Ltd [2007] FCA 997

TRADE PRACTICES – claim of unconscionable conduct under s 51AC of the Trade Practices Act 1974 (Cth) (TPA) – application for interlocutory relief concerning notice of termination of franchise – case for relief not strong – damages an adequate remedy – Held: application refused Trade Practices Act 1974 (Cth) ss 51AC, 80, 87

Australian Broadcasting Corporation v O'Neill(2006) 229 ALR 457 applied CPSU, The Community and Public Sector Union v Commonwealth of Australia (2006)157 IR 470 referred to SOCASEN PTY LTD ACN 001 985 208 v CALTEX AUSTRALIA PETROLEUM PTY LTD ACN 000 032 128 NSD 304 OF 2007

BRANSON J

28 JUNE 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 304 OF 2007

BETWEEN: SOCASEN PTY LTD ACN 001 985 208

Applicant

AND: CALTEX AUSTRALIA PETROLEUM PTY LTD

ACN 000 032 128

Respondent

JUDGE: BRANSON J DATE OF ORDER: 28 JUNE 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for further interlocutory relief concerning a notice of termination served on the applicant be refused. 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 NSD 304 OF 2007

BETWEEN: SOCASEN PTY LTD ACN 001 985 208

Applicant

AND: CALTEX AUSTRALIA PETROLEUM PTY LTD

ACN 000 032 128

Respondent

JUDGE: BRANSON J

DATE: 28 JUNE 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 Caltex Australia Petroleum Pty Ltd conducts a franchise system for the operation of a network of retail service stations in Australia using the Caltex trademark. Since at least 1 July 2000 Socasen Pty Ltd has operated a retail service station in North Richmond, New South Wales as a Caltex franchisee. 2 Socasen instituted this proceeding on 2 March 2007 claiming to have suffered loss or damage by conduct of Caltex that was done in contravention of s 51AC of the Trade Practices Act 1974 (Cth) ('the TPA') and in breach of its franchise agreement. The application additionally sought an order that Caltex be restrained from terminating Socasen's franchise. No claim was made for interlocutory relief. 3 A first directions hearing was held on 27 March 2007. On that day Gyles J ordered Socasen to file and serve an amended statement of claim before 2 April 2007. This order was not complied with. The time within which Socasen was to file and serve an amended statement of claim was subsequently extended to 10 May 2007. An amended statement of claim was filed on 9 May 2007. 4 On the same day (ie 9 May 2007) Caltex gave Socasen a notice of termination of its franchise agreement effective on 31 May 2007. 5 The matter came before Madgwick J as duty judge on 18 May 2007. Socasen made an oral application for interlocutory injunctive relief in respect of the notice of termination. His Honour adjourned consideration of the application to 24 May 2007 and ordered Socasen to file a further amended statement of claim by 5.00 pm on 23 May 2007. A review of the transcript of argument on 18 May 2007 discloses that his Honour's intention was to give Socasen the opportunity to plead its case in respect of the notice of termination. 6 Socasen has not filed a further amended statement of claim although such a document was prepared and signed by counsel on 24 May 2007. A copy of this document has been provided to the Court and I am willing to treat it as though it were a filed pleading. 7 On 24 May 2007, Madgwick J, on the basis of certain undertakings given by Paul James Simpson, a director of Socasen, and his wife, Deidre Simpson, restrained Caltex until 30 June 2007, or further order, from taking further action consequential on the termination notice. The parties accept that the relief granted by his Honour was in the nature of interim relief and that it is necessary for Socasen to demonstrate, according to the usual principles, an entitlement to interlocutory relief beyond that date. 8 On 26 June 2007 I heard Socasen's application for, as I understand it, an order restraining Caltex from taking possession of the North Richmond site in reliance on the notice of termination until the delivery of final judgment in this proceeding or its earlier termination. My hesitancy as to the precise interlocutory order sought by Socasen is occasioned by Socasen's failure to amend its application to claim interlocutory relief, to file a notice of motion seeking interlocutory relief or otherwise to reduce to writing the precise order or orders sought by it. 9 For the reasons set out below I have concluded that Socasen's application for interlocutory relief should be refused.