Comite Interprofessionnel Du Vin De Champagne v. N.L. Burton Pty Ltd [1981] FCA 212

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) NO. G.149 OF 1981

BETWEEN: COMITE INTERPROFESSIONNEL DU_VIN DE CHAMPAGNE

PTY. LIMITED, PENFOLDS WINES PTY. LIMITED AND THE AUSTRALIAN WINE & BRANDY PRODUCERS ASSOCIATION INCORPORATED

" Comite Interprofessionnel Du Vin De Champagne (hereinafter called "Comite") seeks injunctive relief pursuant to s.80 of the Trade Practices Act 1974 ("the Act") alleging a contravention of s.52 by N.L. Burton Pty. Limited T/as Freixenet

Spanish Champagne Distributors and Garland Farwagi & Partners

Pty. Ltd. ("the respondents"). Comite also seeks an interlocutory injunction. The application by Comite for interlocutory relief was first before me on 4 November 1981 when I adjourned the matter to a later date to give the respondents

On 10 November 1981 an application was made on behalf of B. Seppelt & Sons Pty. Limited, S. Wynn (S.A.) Pty. Limited, Penfolds Wines Pty. Limited and The Australian Wine & Brandy Producers Association Incorporated ("the applicants in this

It was alleged in an affidavit filed by Comite that it is a corporation established by a law of the Republic of France and that one of its functions is to take steps in countries outside France to protect the appellation "Champagne" as used by the producers of wine known as "Champagne" in the district.of France which is also known as the Champagne District. It is alleged by Comite that the first respondent is importing and distributing a white sparkling wine in Australia called

"Freixenet" which Comite believes is produced in Spain.

fhe original application, inter alia, sought an injunction restraining the respondents from conduct that is misleading or deceptive or likely to mislead or deceive which conduct included advertising, promoting, displaying, offering for

sale, selling or otherwise in trade or commerce, dealing with any

wine by or with the use of the word "Champagne" alone or in conjunction with other words in relation to or in connection with wine not produced in the district in France known as_ the

By an amended application of 6 November 1981 the interlocutory injunctive relief sought by Comite, so far as is relevant, inter alia, sought to prevent the respondents from, in trade or commerce, and in connection with the promotion, advertisement or sale of Freixenet wine in any advertisement poster or promotional material using the word "champagne" or the expression "unknown imported champagne" or other expression

The companies, the applicants in the motion, are companies which manufacture in Australia and sell sparkling wine under the description champagne. They seek to be joined because although no relief is sought against them since the relief now sought is only in relation to what is called ""Freixenet wine", they suggest that the question of what can properly be called champagne in Australia may be an issue and that although any order would not bind them their use of the words "champagne"

might in the eyes of some persons be under a cloud.

The application to be joined was based on Order 6 rule 8

of the Federal Court Rules. In Trade Practices Commission v.

Milreis ex parte Thompson Publications (Australia) Pty. Ltd.

(1978) 2 A.T.P.R. 40-063 I had to consider the question of the joinder of a party at a time before the present rules of this

Court were promulgated when the corresponding rule was Order 16

rule 4 of the High Court Rules. Order 6 rule 8(1) of the current rules provides:

(a) ought to have been joined as a party; or (b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon, the Court, on application by him or by any party or of its own motion may order that he be added as a party and make orders for the further conduct of the proceeding." The only difference between this rule and Order 16 rule 4 of the High Court Rules is that it uses the words "is necessary" whereas the High Court Rule used the words "may be necessary". In Thompson Publications (supra) I considered that

the relevant law was that laid down by the Privy Council in Pegang Mining Co. Ltd. v. Choong Sam (1969) 2 Malayan Law Journal 52 at pp.55-56. The test there laid down in relation to the question of whether a party should be joined under a rule which was substantially the same as Order 16 rule 5 of the High Court Rules is; will the rights of the person seeking to be joined against, or his liabilities to, any party to the action in respect of the subject matter of the action be directly affected

The case before me is presented upon the basis that the applicants to the motion are persons whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon. Because of the change of the words "may be" to "is" it is certainly no easier to get the Court to order the joinder of a party under the current rules of this Court than it was previously. In Thompson Publications (supra) I came to the conclusion at p.17654 that, because of the particular circumstances of that case, the rights of the applicant seeking to be added to conduct its business were likely to be directly affected and I ordered that it be joined. In that case, although no order was sought against the applicant to be joined, it appeared to me that the effect of an injunction such as that to which certain parties were prepared to consent, would have an immediate effect in that it would stop the applicant's trade with

Senior counsel for the first respondent indicated that his client proposed to call substantially the same evidence as would be called by the applicants in the motion, if joined, but he supported this application for joinder. The application for interlocutory relief is to proceed before me on 26 November 1981 but the applicant in this motion sought to have me determine this matter before I heard the interlocutory application. No pleadings have yet been filed in the action and I have fixed a timetable and stood-over the directions hearing until 16 February

No relief is sought by Comite against the applicants in the motion and I cannot see how the joinder of those applicants "is necessary" to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon. Apart from what may be embraced by Order 6 rule 2 the rules of the Federal Court do not contain a rule with powers comparable to those in Order 15 rule 6(2)(b)(ii) of the

The application was also put under the provisions of Order 6 rule 2, which so far as is relevant, reads: Two or more persons may be joined as applicants or respondents in any proceeding where the Court gives leave so to do. In my opinion this is not a case where leave should be granted under that rule. I do not think it is appropriate to attempt to lay down any principles which should govern the Court exercising its powers under that rule. It is appropriate to record that I am aware of the judgment of Sheppard J. in Trade Practices Commission v.

Westco Motors (Distributors) Pty. Ltd. ( 5 May 1981 ~ unreported)

and I have had in mind my own judgment in Trade Practices

Commission v. Queensland Aggregates Pty. Ltd. (10 March 1981 -

Once a party is joined he becomes a party for all purposes and he has the same rights of appeal as the other parties. This may result in an applicant incurring a much

greater liability than would otherwise be the case in having his

dispute with the party or parties he has chosen to proceed against determined. I consider that aspect mitigates against

joining the applicants in the motion as respondents at this

I have decided to refuse to order that the applicany to this motion be added as respondents. However it may be that the situation will be different after the precise nature of the claim by Comite is determined by the pleadings. For this reason I give liberty to the applicants to make such further application as they may be advised after the statement of claim has been filed and I order that Comite serve its statement of claim and any amendments thereto upon the applicants in this motion at the same time as it or they are filed. This liberty to apply may be

exercised on 7 days notice to the parties in the action.

I certify that this anathe Six Ce) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Fronk '