Comite Interproffessional Di Vin De Champagne & Anor v N.L. Burton Pty Ltd [1982] FCA 124

CHAMPAGNE DISTRIBUTORS and GARLAND FARWAGI_ & PARTNERS PTY. LIMITED

This is an appeal against a decision of a Judge of this Court, Franki J. dismissing an application by the appellants for interlocutory relief in the form of certain injunctions pending the hearing. The amended application in

the proceedings, insofar as it asked for interlocutory

relief, was in terms limited to Freixenet wine and sought orders restraining the respondents from, in any advertisement, poster or promotional material in connection with the promotion, advertising or sale of Freixenet wine using the word "champagne" or the expression "unknown imported champagne" or any other expression including the words "unknown" and "champagne". Although not stated in the formal orders sought in the amended application, the applicants before His Honour also pressed a claim for an order restraining the respondents from using the word "champagne" or the words "imported champagne" or "Spanish champagne" or "imported Spanish champagne" in relation to Freixenet wine.

The amended application including the claim for interlocutory relief was based upon the provisions of section

52(1) of the Trade Practices Act 1974 which prohibits a

corporation in trade or commerce engaging in conduct which is misleading or deceptive or is likely to mislead or deceive. The learned trial Judge refused the interlocutory injunctions sought. He held that he was not satisfied that the applicants had made out a prima facie case in the sense in which this expression is used in Beecham Group Limited v.

Bristol Laboratories Pty. Limited (1968) 118 C.L.R. 618. He

arrived at this result by holding on the evidence before him that the word "champagne" was descriptive of a particular type of wine, when the word was used in trade or commerce in

Australia. It was used in this way in relation to various

brands of Australian wine on the market. The applicants did not seek to prevent this. His Honour was not satisfied that a prima facie case had been made out that the words "imported champagne" were restricted in their application in Australia to champagne produced by the great houses in the Champagne District of France. Evidence was put before him of various countries exporting wine to Australia which was called "champagne". His Honour stressed that at the interlocutory stage his findings were provisional and based very largely on affidavit evidence in circumstances where the deponents had not been cross-examined.

We are not persuaded that any reason has been shown why we should interfere with His Honour's decision on this aspect of the matter before us. Since the issues involved would have to be determined at the trial, where the evidence may to some extent be different, it is advisable that we should refrain from entering upon a discussion of the evidence in these reasons. We are mindful that this is an appeal against an interlocutory order, an exercise attended with difficulties that are well known. fThe order sought to be upset is in its nature discretionary. An appeal court is always reluctant to interfere with the exercise of a discretion. As the High Court has recently said, an interlocutory order for injunction is a matter of practice and procedure, referring at the same time to the fact that appellant courts exercise "particular caution in reviewing

decisions pertaining to practice and procedure": see Adam P.

Brown Male Fashions Pty. Limited v Philip Morris Incorporated

and Anor (1981) 35 A.L.R. 625 at 629; see also In re the

Will of F.B. Gilbert (Deceased) (1946) 46 N.S.W.R. 318.

His Honour went on to express the view that even if he were wrong in holding that no prima facie case was established, nevertheless he would refuse relief on the ground that the balance of convenience was against granting an injunction. One proposition asserted by His Honour in the course of his reasons for finding that the balance of convenience wasS against the grant of relief was that "the first respondent has made some sales of wine as Freixenet champagne for some 15 years". This was criticised by the appellants. The evidence which His Honour apparently accepted was to the effect that the first respondent had over a period of some 15 years sold Freixenet wine in the same bottle as it was currently using. The label on this bottle refers to the "methode champenoise" but does not carry the word "champagne". The evidence as to the use of the word "champagne" by the first respondent in trade and commerce indicated that it had been using it in promotional material for 4 or 5 years. We do not consider that, if there was error in His Honour's reference to 15 years, the error was of such significance in relation to his decision on the balance of convenience that this Court should interfere, 1f it was otherwise of the view that the prima facie case had been made out. His Honour summed up the position in relation to the

"It seems to me that the questions which arise in this case are of considerable significance. I have in mind in particular the unchallenged use of the word 'champagne' for a product made by the 'methede champenoise'' in Australia and that it seems undesirable to interrupt the first respondent's business unless the benefit to the public is significant. It seems to me that the issues which arise in this matter can best be determined at the trial of the action".

Altogether we think that His Honour's approach was correct.

It would be possible to give an early hearing for the trial of this matter. At such a hearing the complex questions of fact which are in issue could be properly investigated and the questions of the law arising from them in consequence settled with some authority. The learned trial Judge did provide for pleadings and a timetable for the parties which would enable them to obtain a relatively early hearing. Thus he directed by consent the filing of a Statement of Claim by the appellants on or before 29 January 1982 and successive steps in a timetable which would have led to the final step of interrogatories being answered on or before 11 June 1982. It appears that advantage has not been taken of these arrangements for an early hearing and that no Statement of Claim has yet been filed by the applicants, (appellants in the appeal). Finally, at the hearing the first

respondent offered an undertaking in the following terms:

",eee-it will not, nor will it cause any other person, in trade or commerce and in connection with the promotion, advertisement or- sale of Freixenet Spanish champagne,

(a) use the proposed advertisement, a copy of which is exhibit ''A' herein,

The exhibit 'A' referred to in that undertaking was a newspaper advertisement headed "Champagne Buffs" which at the hearing before His Honour became exhibit 'J'. The exhibit 'B' referred to in that undertaking was a poster headed "Unknown Imported Champagne" which at the hearing became exhibit 'H'. The undertaking was rejected by the applicants so that the respondents did not become bound by it. However, at the hearing we were informed that the respondent had in fact been carrying out the terms of that undertaking and counsel for the first respondent informed us that his client would continue to observe it.

In the result we would dismiss the appeal with costs. The Order of the Court will be appeal dismissed with costs.

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