Flogineering Pty Ltd v Blu Logistics SA Pty Ltd

1. Each respondent is restrained, pursuant to Section 232 of the Australian Consumer Law, whether by itself, its agents, or other representatives, or otherwise howsoever, from affixing or causing to be affixed or otherwise marking or causing to be marked on, or to, any instrument or measuring system used to measure the volume of milk as it is transferred on to, or from, a vehicle used to haul milk (a milk tanker), an Approval Number described as "No 5/6E/13A" issued by the Chief Metrologist to Flogineering Pty Ltd under the provisions of the National Measurement Regulations 1999 (Cth), without the approval of Flogineering Pty Ltd and each respondent is restrained whether by itself, its agents, or other representatives, or otherwise howsoever, from otherwise adopting or incorporating on or in relation to any such measuring instrument, measuring system or milk tanker upon which any such measuring instrument or measuring system is installed, the Approval Number "No 5/6E/13A", without the approval of Flogineering Pty Ltd.
2. Each respondent is restrained, pursuant to Section 232 of the Australian Consumer Law, whether by itself, its agents, or other representatives, or otherwise howsoever, from using a measuring instrument or measuring system to measure the volume of milk transferred on to, or from, a milk tanker where the measuring instrument, measuring system or milk tanker upon which such a measuring instrument or measuring system is installed has affixed to it or is otherwise marked with an Approval Number described as "No 5/6E/13A" or otherwise adopts or incorporates a reference to such an approval number, without the approval of Flogineering Pty Ltd.
3. The restraints recited in injunction Orders 1 and 2 subsist until such time as the Approval issued by the Chief Metrologist bearing the Approval Number "No 5/6E/13A" expires or is amended so as to permit some person other than the applicant to approve the marking of measuring instruments purporting to comply with the Approval, with the Approval Number.
4. The costs of and incidental to the proceeding to date are reserved until the final determination of the proceeding.
5. The proceeding is listed for case management on 29 October 2018 at 9:30am.
6. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), r 1.32 and r 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers. Schedule 1 Blu Logistics SA Pty Ltd (a) PM207, registration number SB-50-MT. Wastell Milk Haulage Pty Ltd (a) Tanker 151, registration number 257QNI - 20 January 2010; (b) Tanker 162, registration number 746QPX - 9 February 2010; (c) Tanker 168, registration number 554QSU - 27 November 2010; (d) Tanker 171, registration number 320QUB - 30 June 2011; (e) Tanker 172, registration number 321QUB - 31 January 2012; (f) Tanker 173, registration number 644QUJ - 2 April 2012; (g) Tanker 174, registration number 785QVA - 15 October 2012; (h) Tanker 176, registration number 772QYT - 17 October 2014; (i) Tanker 178, registration number 887UBZ - 24 November 2015; (j) Tanker T169, registration number 918QTI - 7 May 2011; Wadene Pty Ltd (a) Tanker 167, registration number 894 QSB -1 June 2010; and Jurss Robertson Pty Ltd (a) Tanker 126, registration number 328QQN - 21 January 2010; (b) Tanker 127, registration number 296QRE - 9 March 2011; (c) Tanker 20, registration number 283QBP - 7 June 2010. JR Bulk Pty Ltd (a) Tanker 131, registration number 571QTD - 22 June 2010 (b) Tanker 132, registration number 123QSN - 21 June 2010 (c) Tanker 135, registration number 330QQZ - 17 February 2012 (d) Tanker 136, registration number 331QQZ - 14 February 2012 (e) Prime mover 141, registration number 669TUJ - 19 November 2014 (f) Prime mover 143, registration number 671TUJ - 18 November 2014 (g) Prime Mover 148, registration number 906VBK - 26 February 2015 (h) Prime mover 149, registration number 905VBK - 2 April 2015 (i) Prime mover 152, registration number 319VOI - 12 August 2015 (j) Tanker T130, registration number 314 QXI - 19 November 2014

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GREENWOOD J: 1 These observations are concerned with the question of the final form of the relief to be granted arising out of the determination of the separate questions the subject of the reasons for judgment in Flogineering Pty Ltd v Blu Logistics SA Pty Ltd [2018] FCA 1479 (the "Principal Judgment"). These reasons and observations are to be read together with the Principal Judgment. 2 As a result of Orders made on 28 September 2018 the parties put on written submissions on the question of whether a declaration is to be made having regard to the findings reflected in the Principal Judgment and if so the terms of the declaration. The parties also put on submissions concerning the question of whether an injunction ought to be granted under s 232 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) having regard to the findings and observations set out in the Principal Judgment. The parties were also requested to put on submissions on the question of whether an Order for costs ought to be made at this state of the proceeding recognising that the Principal Judgment addresses the separate questions but not the totality of the relief claimed in the proceeding generally. The wider remedies sought by the applicant against each respondent involve a claim for damages pursuant to s 236 of the Australian Consumer Law ("ACL") and interest, apart from a claim for costs generally and any such order as the Court considers appropriate. 3 The parties put on written submissions by 12 October 2018 arising out of publication of the Judgment in Court on 28 September 2018. In those submissions the parties accept that a declaration ought to be made as to the conduct found to engage contraventions of ss 18 and 29(1)(e) and 29(1)(g) of the ACL. However, the parties disagree as to the precise scope of the declaration to be made. The parties also accept that it is appropriate to exercise the discretion to grant an injunction under s 232 of the ACL directed to the conduct found to engage contraventions of ss 18 and 29(1)(e) and 29(1)(g) of the ACL. The parties disagree as to the scope of the restraining orders to be made. As to the declaration, there is utility in making a declaration as to the scope of the conduct found to involve contraventions of ss 18 and 29 of the ACL as described because the declaration so made explains the legal character of the conduct found to be contravening conduct and also assists in explaining the foundation for the statutory remedy in s 232 of the ACL restraining the respondents from further engaging in contravening conduct. The role of the declaration is to declare the true character of the particular contravening conduct. The role of each injunction is to grant restraints restraining the respondents from engaging in conduct of that character. The injunctions ought not to be constrained by the specific examples of contravening conduct. Rather, contravening conduct having been established, the proper approach is to frame the restraints in a way which addresses conduct of the character found to have occurred not just the particular examples of the conduct found to have involved contraventions. 4 Two declarations are to be made. The first addresses the particular conduct and the second declares that that conduct constitutes conduct in contravention of ss 18, 29(1)(e) and 29(1)(g) of the ACL. As to the injunctions, the first injunction Order restrains each respondent from affixing or otherwise marking any instrument or measuring system used to measure the volume of milk relevantly transferred, with the Approval Number "No 5/6E/13A" or otherwise adopting or incorporating that Approval Number on or in relation to any such measuring instrument, measuring system or milk tanker upon which any such instrument or system is installed, without, in each case, the approval of Flogineering Pty Ltd. The second injunction Order restrains each respondent from using a measuring instrument or measuring system to measure the volume of milk relevantly transferred where the measuring instrument, measuring system or milk tanker upon which such a measuring instrument or measuring system is installed has affixed to it or is otherwise marked with the Approval Number described as "No 5/6E/13A" or otherwise adopts or incorporates a reference to such an Approval Number, without the approval of Flogineering Pty Ltd. Order 3 recognises the period during which the restraints contemplated by injunction Orders 1 and 2 are to subsist. 5 As to the costs, it seems to me that the question of costs ought to be determined once all of the issues raised by the proceeding are determined. Accordingly the costs will be reserved until that time. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

SCHEDULE OF PARTIES QUD 883 of 2016 Respondents Second Respondent: WASTELL MILK HAULAGE PTY LTD ACN 147 389 302 Third Respondent: WADENE PTY LIMITED ACN 010 248 307 Fourth Respondent: JR BULK LIQUID TRANSPORT PTY LTD ACN 143 639 276 Fifth Respondent: JURSS ROBERTSON PTY LTD ACN 114 767 734