Brisbane Gas Co. v. Hartogen Energy Ltd & Ors [1982] FCA 152

Federal Court of Australia|1982-07-22|Before: Fitzgerald J

TRADE PRACTICES - acquisition of shares - control or domination of market - interim injunction pending determination of application for declaration and order of divestiture -~ application by person other than the Minister or the Commission - whether Court may entertain such application in respect of a breach of s.50.

BRISBANE GAS CO v. HARTOGEN ENERGY LTD (First Respondent) and STREET NOMINEES PTY LTD (Second Respondent)

NEE PTD WEEE, ATEN PO I PR ASE MES LUP INTE I WII Et eh ow

Applicant AND: HARTOGEN ENERGY LTD First Respondent AND: STREET NOMINEES PTY LTD Second Respondent ORDER JUDGE MAKING ORDER: Fitzgerald J. DATE OF ORDER: 21 July 1982 WHERE MADE: Brisbane

The First and Second Respondents' Application to strike out paragraph 7 of the Applicant's

IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) Qld No. G76 of 1982 GENERAL DIVISION )

Applicant AND: HARTOGEN ENERGY LTD First Respondent AND:

Brisbane Gas Company Limited, presently a registered shareholder in Oil Company of Australia No Liability, has commenced proceedings against Hartogen Energy Limited and Street Nominees Pty Limited claiming, inter alia,

fourteen million and thirty two thousand ordinary shares in the capital of

contravened Section 50 of the Trade Practices Act, 1974.

An order for directions pursuant to Section 81 of the Trade Practices Act, 1974 for the purpose of securing the disposal by the First Respondent and the Second Respondent of all of the shares so acquired in contravention of Section 50 of the Trade Practices Act, 1974."

"An injunction pending the disposal of the said shares restraining the First Respondent and the Second Respondent and themselves, their servants or agents or otherwise from dealing with the said shares and from exercising such voting rights which attach thereto."

paragraph 7 of the Application "pending the hearing".

When the application for that interlocutory order came on before me this morning, senior counsel for the respondents, Hartogen Energy Limited and Street Nominees Pty Limited, raised a preliminary objection and submitted that I should strike out paragraph 7 of the application. In substance, it was argued that this court has no power to grant such an order except on the application of the Minister or the Trade Practices Commission. Reliance was placed upon the decision of the High Court in

Thomson Australian Holdings Pty Limited v. The Trade

Practices Commission (1981) 55 A.L.J.R. 614 for the

proposition that s.80 of the Trade Practices Act is the exclusive source of this court's power to grant an injunction in proceedings brought under that Act.

relate to an alleged contravention of s.50 of the Act, no person other than the Minister or the

There are circumstances of urgency surrounding the application for an interlocutory injunction, and it is accordingly necessary for me to deal with the preliminary objection forthwith. Two matters may be noted immediately. Firstly, notwithstanding that it includes reference to a past contravention of s.50, the operation of sub-s. (1A) of s.80 is confined to restricting the class of persons who may "make an application under sub-s. (1) for an injunction...". Subsection (1A) of s.80 imposes no limitation upon those who may otherwise apply for an injunction, even where the conduct upon which the application for an injunction is based includes an alleged breach of s.50. Secondly, s.80(1) relates only to applications for injunctions to restrain the entry into or continuation of the conduct which constitutes a contravention of a provision of the Act - in this case, s.50 - or which constitutes

-an attempt to do so, or which amounts to an involvement in such conduct (to paraphrase

prohibits only the acquisition of shares. Section 80(1) does not relate to applications for injunctions to restrain a person who has contravened a provision of the Act, for example s.50, from engaging in conduct based upon the position thus illegitimately

As Mr Pincus Q.C., senior counsel for Hartogen, correctly pointed out, the matters to which I refer involve no automatic answer to his principal submission. On the contrary, according to his argument, unless the relevant claims for injunctions made by Brisbane Gas can be founded in s.80(1) they have no foundation at all. Thus, for example, so far as the present application for interlocutory relief is concerned, the interim injunctions for which s.80(2) provide are only those granted "pending determination of an application under sub-s. (1)"; i.e., where what is sought to be restrained 1s a breach or anticipated breach of s.50, on application by the Minister or Commission. Likewise, both sub-ss. (4) and (5) of s.80 are related to injunctions restraining "conduct referred to in sub-s. (1)", and to the granting of

injunctions "under sub-s. (1)" or "under sub-s. (2)".

these proceedings under s.80 of the Trade Practices

Act. I leave out of account, as presently immaterial,

paragraph 1 of the Application which seeks an injunction against Hartogen by reference to a quite separate allegation that Hartogen is party to a contract, arrangement or understanding in contravention of s.45 of the Act. For immediate purposes, the substantive relief sought by Brisbane Gas is a declaration that Hartogen's shares in O11 Company of Australia No Liability were acquired in contravention of s.50 of the Act - an order acknowledged as being with the Court's power - and an order for divestiture under s.81 of the Act, which expressly provides that

v. The Trade Practices Commission, supra, the Commission sought as part of the substantive relief claimed permanent injunctions to restrain the defendant from giving effect, or conspiring to give effect, to arrangements and undertakings alleged to contravene s.45, s.45A, s.45B and s.45C of the Trade Practices Act. Briefly stated, the major question in issue in the

power to make final orders, or to accept undertakings, in respect of such claims for injunctive relief. The majority of the High Court held that s.22 and s.23 of the

Federal Court of Australia Act, 1976, do not extend this

or relating to contraventions of the Trade Practices

Act in situations falling outside the boundaries drawn by s.80 of that Act". (See the joint judgment of Gibbs CJ, Stephen, Mason and Wilson JJ at p.618, first column C). On the same page in the second column, their Honours said at B:;

constitutes the Federal Court's exclusive charter to grant injunctions

restraining, or relating to, contraventions of the Trade Practices Act."

relating to contravention of the Trade Practices Act"

seem to involve a convenient abbreviation of the carcumstances specified in s.80(1)(d}) to (j). AtD

"The inference is irresistible that Parliament looked upon s.80 as

a complete and comprehensive statement of the circumstances in which injunctions might be granted in respect of relief sought under the Trade Practices Act."

It is, in my opinion, beyond argument that the quoted statements were made in dealing with permanent injunctions sought by way of substantive relief in the

proceedings. Emphasis is added to that view, which 1s

to my mind clear from the language used in the context 1n which it appears, by the connection made on the same page between this court's relevant jurisdiction and its power to grant permanent substantive injunctive relief. For example, at the second column F on page 618, the following passage appears:

restraining a person from engaging in conduct of a svecified kind."

Later, the majority judgment proceeded to deal with undertakings given in lieu of injunctions, and held that the limitations which affect the court's jurisdictional power to grant a final injunction are also applicable to the acceptance of such undertakings. At page 619, second column B, after referring twice in dealing with such limitations to a "fanal injunction",

"No doubt the Federal Court has power to accept an undertaking at an interlocutory stage when the undertaking 1s reasonably related

court or to the subject matter of the litigation, as Deane and fisher JJ observed, even though 1t is not ina form which falls within section 80."

I am satisfied that the Court also has power in a case such as the present to grant an interlocutory injunction which is reasonably related to the orderly procedure of the court or the subject matter of the litigation, even though it is not in a form which falls within s.80 of the Act.

Practices Commission, supra, at p.619, second column A, the same principles govern the grant

of an injunction and the acceptance of an undertaking. There is no present call to pursue that topic in relation to an application for

an interlocutory injunction pending the trial of an application for permanent and substantive relief by way of injunction. The only substantive relief relevantly involved in the present proceedings consists of claims for a declaration that Oil Company of Australia No Liability shares were acquired by the respondents in contravention of

Those claims are within this court's jurisdaction and power. The only interlocutory injunction asked is claimed merely incidentally

the present question, and I would be anxious to apply loyally even relevant obiter if any statement

present preliminary objection to the application in

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory

Holdings Pty Limited v. The Trade Practices Commission,

"arms the court with power to make all kinds of orders and to issue all kinds of writs as may be appropriate, but it does not provide authority for granting injunction where there is otherwise

Their Honours had mentioned in the previous sentence that a right to an injunction may exist "under the

There has been much modern discussion of the operation of the analogues of s.23 of the Federal Court Act which are to be found in the Judicature Acts of the various states and England, particularly in connection with what are known as "Mareva injunctions". I need not, and I should not on this application for an interlocutory injunction, say any more than that it is sufficiently arguable to preclude the dismissal of the application on a preliminary point, that s.23 of the Federal Court of Australia Act empowers interlocutory relief, incidental to an application

for an order for divestiture, which 1s necessary to

present point was that no interlocutory injunction might be granted and was in no way related to the form of the interlocutory injunction claimed in paragraph 7 of the application. Nothing decided by me up to this point in any way impinges upon other questions which Hartogen may yet wish to argue, including the question of whether the interlocutory injunction asked by paragraph 7

Accordingly, I dismiss the respondent's application to strike out paragraph 7 of the Application. It is unnecessary to make any order with respect to paragraph 5 of the Application of

or additional considerations, although interlocutory

Court Act is not expressly confined to interlocutory

At a glance

Court

Decision date

Before

Source

Judgment (62 paragraphs)