Bryson Industries Ltd & Ors v Brents Motors Nominees Pty Ltd [1978] FCA 21

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new and used Jaguar motor vehicles conducted by or on behalf of the respondent under the name "Brent Motors" or otherwise any express or amplied statement or claim that the said business is -

aun Victoria; (12) the largest dealer in new Jaguar motor

(3) Libe:ty 1s reserved Lo any party to apply on 2 days'

BETWEEN : BRYSON INDUSTRIFS LIMITED, BRYSON INDUSTRICS (VIC.) PTY. LTD. and BRYSON INDUSTRIDS ("WHOLESALE

PTY. LTD. Applicants AND : BRENTS MOTORS NOMINDLCS PTY. .TD. Respondent

On 22nd March 1978 Smithers ¢. ordered the respondent to

"should not be restrained from engaging in the following conduct, namely, doing or attempting to do all or any of the following, that is to say, making publishing or broadcasting by any means, whether in the course of advertising or promoting the business of the sale and distribution of new and used Jaguar motor vehicles conducted by or on behalf of the respondent under the name ''Brents Motors' or otherwise any express or implied statement or claim that the said business is -

(i) the largest dealer in Jaguar motor vehicles in Victoria; (ii) the largest dealer in new Jaguar motor vehicles

(211) the largest reseller of used Jaguar motor vehicles

(iv) the largest reseller of used Jaguar motor vehicles

• or any other statement or claim to the like or similar effect",

At the same time, upon the usual undertaking as to damages being given on behalf of the applicants, Hus TMonour made an ex parte order -

"that the respondent by itself its servants or agents

or howsoever otherwise be restrained until the hearing

further order from engaging in any of the said conduct". The "said conduct" was the conduct specified in the order to show cause set out above.

The matter came before me in Melbourne last Wednesday, 29th March 1978, when the parties were informed that if the hearing commenced but could not be completed on that day it would have to be adjourned for a considerable time but that an alternative course would be to adjourn the matter for hearing by another judge on 10th April 1978, Counsel for both the applicants and the respondent after a short adjournment agreed that it was most probable that the matter could not be finished within the day.

Mr. Archibald sought an adjournment of the matter on behalf of the applicants on the ground that they had been served only that morning with an affidavit filed on behalf of the respondenc. Mr. Merkel for the respondent opposed éeny adjournment, asked for the hearing to commence despite the likelihood that 1t would not finish in the day but also stated that he wished to apply for the dissoluticn of the 1nterim injunction. In the circumstances I ruled that I would hear the application for dissolution of the interim injunction and adjourn the substantive hearing until 10th April, 1978.

Mr. Archibald stated that, having regard to the material in the affidavit of Brian Forshaw, filed on behalf of the respondent, and to the carly hearing date which had been fixed for the hearing,

the applicants did not seek the continuance of the interim injunction

in so far as 1t related to the matters contained in paragraphs (i11)

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and (iv) of the order made by Smithers J. as set out above. Accordingly the issue before me is whether, pending the hearing and determination of the application, the interim 1unjunction should continue in force as to the remazning matters or should be dissolved completely as sought by Mr. Merkel for the respondent.

Both counsel have carefully analysed the material parts of the affidavit of David James Tainsh, the exhibits thereto and his oral evidence, and the affidavit of Brian Forshaw and the exhibits thereto. As Mr. Merkel pointed out there is no onus on the respondent to satisfy the court that the advertisements in question are not misleading or deceptive or likely to mislead or deceive. It 1s also true that the statements in the advertisements have to be read in their context. However, on the material before the court at this stage I am not prepared to accept that the two material sentences in the advertisement by the respondent, dated 6th March 1978 read together and in context mean, as Mr. Merkel submitted, that "Brents have become the largest dealers because last month they outsold the other two largest dealers put together und that made them the largest dealer".

As the matter is at an interlocutory stage it is undesirable that I should express any detailed views on the evidence relating to the matters in dispute. However, despite Mr. Merkel's able submissions on the material before me I have come to the conclusion that the applicants have established a prima facze case in the sense used by the Full High Court in Beacham's Case 118 C.L.R. 618. I have not, of course, reached any concluded view on the facts in the matter - my view is confined to the prima facie position shown by the evidence

As to the question of the balance of convenience, on the material at present before the court, I am satisfied that the injury which the applicants would be likely to suffer if an interlocutory injunction were refused outweighs any injury or inconvenience which the respondent 1s likely to suffer if the injunction continues in the form now sought.

The respondent's evidence did not suggest that arrangements had already been made for further similar advertisements and Mr. Merkel submitted that the evidence before the court does not suggest that such advertisements are being considere or are likely. Although it us true tiat any loss to the respondent by reason of the interlocutory injunctior would be extremely diffi¢gult to quantify, it 1s also true that any damage to the applicants by reason of a publication or similar advertisements would be difficult to quentify.

In my view the balance of convenience is in favour of continuing the anterim injunction in the more limited form now sought. Accordingly Nr. Merkel's application to dissolve the interim injunct.son is rejected except to the extent consented to by Mr. Archibald. As the terms of the interim injunction granted by Smithers J. used the words "the said conduct", referring bach to the specification of the conduct in the order to show cause appearing earlier in His Ilonour's order, 1t may be desirable that I should specifically set out the terms of the interim injunction made by Smithers J. as amended by me by consent. It is as follows :

"Phe respondent by itself its servants or agents or

howsoever otherwise is restrained until the hearing

and determination of the said application or until further order from engaging in any of the following conduct, namely, doing or attempting to do all or

any of the following, that 1s to say, making publsshing or broadcasting by any means, whether in the course of advertising or promoting the business of the sale and distribution of new and used Jaguar motor vchicles conducted by or on behalf of the respondent under the

. "name 'Brents Motors" or otherwise any express or implied statement or claim that the said business 1s -

{i) the largest dealer in Jaguar motor vehicles in Victoria;

(il) the largest dealer in new Jaguar motor vehicles an Victoria;

• or any other statement or claim to the like or Similar effect".

Costs of the proceedings are reserved and liberty is

reserved to any party to apply on 2 days' notice to the other side.

OF AUSTRALIA GENERAL DIVESTON No. VG 16 of 1978 BETWEEN : BRYSON _INDUSTRILS LIMITED, BRYSON TNDUSTRIES (VIC) PT). FID, and BRYSOs PL stil (WHOLESALE) PLY. Ltt. Applicants AND: BRENTS MOTORS NOMINIPES Respondcnt ORDER JUDGE MAKING QRUVER: KEELY J.

(1) The order made by Smithers J. on 22 March 1978, restraining the respondent from engaging in certain eonduct until the hearing and determination of the

application herein, be anended to read as follows:-

The respondent by ttself its servants or agents or howsoever otherwise be restrained until the hearing and determination of the said application or until further order from engaging in any of the following conduct, namely, doing or attempting to do all or any of the following, that is to say, making publishing or broadcasting by any means,

the business of the sale and distribution of

• new and used Jaguar motor vehicles conducted by or on behalf of the respondent under Lhe name "Brent Motors" or otherwise any express or amplicd statement or claim that the said business is - (2) the largest dealer in Jaguar motor vohicles

an Victorias (11) the largest dealer 1n new Jaguar motor

(3) Liberty is reserved to any party to apply on 2 days'

BETWEEN : BRYSON INDUSTRIES LIMITEOD, BPYSO: LNDUSTRTIRS (VIC.) Pry.

PTY. LTD. Applicants AND : BRENTS MOTORS NOMINEES PTY. Respondent

On 22nd March 1978 Smithers ¢C. ordered the respondent to why it

"should not be restrained from engaging in the following conduct, namely, doing or attempting to do all or any of the following, that is to say, making publishing or broadcasting by any means, whether in the course of adverlising or promoting the business of the sale and distribution of new and used Jaguar motor venicles conducted by or on behalf of the respondent under the name 'Brents Motors' or otherwise any express or implied statement or claim that the said business 1s -

(i) the largest dealer in Jaguar motor vehicles in ° Victoria; (ii) the largest dealer in new Jaguar motor vehicles

(iii) the largest reseller of used Jaguar motor vehicles in Victoria;

(iv) the Jargest reseller of uscd Jaguar motor vehicles in Australia

• or any other statement or claim to the like or similar nf fanee

At the same time, upon the usual undertaking as to damages being given

on behalf of the applicants, Hzs Wonour made an ex parte order -

"that the respondent by itself its servants or agents

or howsoever otherwise be restraincd until the hearing

further order from engaging in any of the said conduct". The "said conduct" was the conduct specified in the order to show cause set out above.

The matter cane before me in Melbourne last Wednesday, 29th March 1978, when the parties were informed that if the hearing commenced but could not be completed on that day it would have to be adjourned for a considerable time but that an alternative course would be to adjourn the matter for hearing by another judge on 10th April 1978. Counsel for both the applicants and the respondent after a short adjournment agreed that it was nost probable that the matter could not be finished within the day.

Mr. Archibald sought an adjournment of the matter on behalf of the applicants on the ground that they had been served only that morning with an affidavit f1led on behalf of the respondent. Mr. Merkel for the respondent opposed any adjournment, asked for the hearing to commence despite the likelihood that 1t would not finish in the day but also stated that he wished to apply for the dissoluticn of the anterim injunction. In the circumstances I ruled that I would hear the application for dissolution of the interim injunction and adjourn the substantive hearing until 10th April, 1978.

Mr. Archibald stated that, having regard to the material in the affidavit of Brian Torshaw, filed on behalf of the respondent, and to the early hearing date which had been fixed for the hearing,

the applicants did not seek the continuance of the interim injunction

in so far as it related to the matters contained in paragraphs (i?1)

• and (iv) of the order made by Smithers J. as set out above. Accordincly

the issue before me is whether, pending the hearing and determination of

• the application, the interim injunction should continue in force as to

the remaining matters or should be dissolved completely as sought by Mr. Merkel for the respondent.

Both counsel have carcfully analysed the material parts of the affidavit of David James Tainsh, the exhibits thereto and

his oral evidence, and the affidavit of Brian Forshaw and the exhibits

thereto. As Mr. Merkel pointcd out there is no onus on the respondent to satisfy the court that the advertisements in question are not misleading or deceptive or likely to mislead or deceive. It is also true that the statements in the advertisements have to be read in their context. However, on the material before the court at this stage I sam not prepared to accept that the two matcrial eentences un the advertisement by the respondent. dated 6th March 1978 read together and in context mean, as Mr. Merkel submitted, that "Brents have become the largest dealers because last month they outsold the other two largest dealers put together and that made them the larges dealer".

As the matter is at an interlocutory stage 1t 1s undesirable that I should express any detailed views on the evidence relating to the matters in dispute. However, despite Mr. Merkel's able submissions on the material before me I have come to the conclusion that the applicants have established a prima facie case in the sense used hy the Full High Court in Begcham' s Case 118 C.L.R. 618. I have not, of course, reached any concluded view on the facts in the matter - my view is confined to the prina facie position shown by the evidence

As to the question of the balance of convenience, on the material at presont before the court, I am satisfied that the injury which the applicants would be likely to suffer if an anterlocutory injunction were refused outweighs any injury or inconvenience which the respondent is likely to suffer if the injunction continucs in the {Lorin now sought.

The respondent's evidence did not suggest that arrangements had already been made for further similar advertisements and Mr. Merkel submitted that the evidence before the court does not suggest that such advertisements are being considered or are likely. Although it is true tlat any loss to the respondent by reason of the interlocuto.y injunctior, would be extremely diffigult to quantify, it 1s also true that any damage to the applicants by reason of a publication or similar advertisements would be difficult to quantify.

In my view the balance of convenience is in favour of continuing the anterim injunction in the more limited form now sought. Accordingly Mr. Merkel's application to dissolve the interim injunction is rejected except to the extent consented to by Mr. Archibald. As the terms of the interim injunction granted by Smithers J. used the words "the said conduct", referring bacr to the specification of the conduct in the order to show cause appearing earlier in His Honour's order, it may be desirable that I should specifically set out the terms of the interim injunction made by Smithers J. as amended by me by consent. It 1s as follows :

"~The respondent by itself its servants or agents or

howsoever otherwise 18 restrained until the hearing

further order from engaging in any of the following

any of the following, that 1s to say, making publishing

or broadcasting by any means, whether 1n the course of

advertising or promoting the business of the saJe and

distribution of new and used Jaguar motor vchicles conducted by or on benalif of the respondent under the

. "name "'Brents Motors' or otherwise any express or implicd statement or claim that the said business is -

(i) the largest dealer in Jaguar motor vehicles in Victoria;

{i1) the largest dealer in new Jaguar motor vehicles in Victoria;

~ or any other statement or claim to the like or similar effect".

Costs of the proceedings are reserved and liberty is

reserved to any party to apply on 2 days' notice to the other side.