Peter Howard Barrand v. Endeeavour Resources Ltd [1980] FCA 86

would result in the respondent indirectly controlling certain

shares in White Industries Ltd, part of whose assets were said to

be shares in a company called Ulan Coal Mines Ltd, whach apparently held certain reserves of steaming coal recoverable by open pit mining. There is no need to go into the facts alleged in any detail but, in substance, there appeared to be a difference between the content and value of those reserves of the coal as stated in a circular to shareholders which accompanied the notice of the meeting and as stated in a letter which a Mr White, chairman of White Industries Ltd, was said to have written to the chairman of directors of the respondent on Friday 6 June. The application before me was filed on 6 June. It was in the usual form and sought interlocutory relief both restraining the passing of the resolutions proposed and restraining the respondent in trade and commerce from engaging in conduct which

is misleading or deceptive or likely to mislead or deceive.

The application was based upon s.52 of the Act. The only relief senior counsel sought on Friday was in relation to the meeting. The application was somewhat novel and it seemed to me desirable to endeavour, so far as was practicable, to enable the respondent to oppose any order. Notice of the application was served upon the solicitors who had acted for the respondent in other litigation on Saturday 7 June and at 9am on Monday, 9 June I sat in what was'°a directions hearing in the proceedings but which were only intended to deal with the question of granting an interim injunction in relation to the

The respondent was represented by senior counsel but no evidence was filed by it. I indicated to the parties that it was not possible to treat the matter other than upon the basis of determining in the time that was available what, if any, order I should make with respect to conduct at the meeting in Melbourne that afternoon and that this involved my treating the application very much upon the basis of an ex parte application. After some argument, senior counsel for the respondent sought to cross examine Mr Cowley, suggesting, inter alia, that the bulk of the material in the circular was obtained from public documents of White Industries Itd. He also said that he wished to ask questions about Mr Cowley's instructions from Mr Barrand, the applicant. Because of the shortage of time I decided that it was not possible to open up those issues and I refused leave to cross examine and made certain interim injunctions, the details of which it is not necessary to set out, but which in substance restrained the respondent, its servants or agents from making any statements, at the meeting, falling within s.52 of the Act. The proceedings were then stood over until Wednesday 11 June for the purpose of proceeding with the hearing of the interlocutory injunction. I also ordered that Mr Barrand file and serve an affidavit by 10am on the Tuesday, that any affidavit evidence upon which the applicant intended to rely should be filed by the

same time and that Mr Cowley attend for cross examintion.

On Tuesday 10 June 1980, the solicitors for the applicant filed a Notice of Discontinuance in the action and, in a letter to the Registrar of the Court and to the solicitors for the respondent, consented to an order for costs in favour of the

On Wednesday 11 June 1980, the matter was listed and senior counsel for the applicant accepted that the Notice of Discontinuance @id not satisfy the rules. At this time it was common ground that the meeting had been held and any relevant resolution had been passed. It thus appeared that there was little purpose in continuing the interlocutory proceedings and senior counsel for the applicant, at the commencement of the proceedings on Wednesday 11 June, said that he would accept dismissal of the interlocutory proceedings and the suit and that

he did not wish to make any particular submission as to costs.

Senior counsel for the respondent opposed the matter being dismissed and indicated that he wished to cross examine both Mr Barrand and Mr Cowley. The matter th@n proceeded upon the basis that I should consider first the interlocutory application. Although this application on its face sought relief other than at the meeting no such relief had ever been the subject of any submissions. Senior Counsel for the respondent argued that s.80 (3) of the Act permitted the court to "rescind" an interim injunction and that cross examination would assist

his submissions in this regard and that the injunction should be

rescinded in the sense that it should be treated as never having been made. He also stated that the respondent was seeking costs other than on a party and party basis. I allowed the cross examination of Mr Cowley but not Mr Barrand because no affidavit of Mr Barrand had ever been used. A formal affidavit of Mr Barrand had been filed in purported compliance with my order of

Cross examination of Mr Cowley elicited that he acted for Mr White in several matters currently being litigated and, following up on a conversation with Mr White, Mr Cowley had sought instructions to act in this matter from Mr Barrand. In cross examination nothing emerged relevant to Mr Cowley's affidavit except that in paragraphs 2 and 3 of it Mr Cowley had stated he had been informed by the applicant whereas he conceded in cross examination that this was not the position. However, nothing emerged to throw any doubt upon the facts alleged in paragraphs 2 and 3 apart from the source of the information contained in them. Identity of the applicant is, of course, of no significance because the Act permits any person to seek relief under s.80. While Mr Cowley's misstatements concerning the source of his information in paragraphs 2 and 3 of his affidavit, to say the least of it, warrants severe criticism, it does not change any relevant fact which was before me when I made the orders on Monday 9 June. I also thought it proper to mention @auring the proceedings on Monday 9 June that, when senior

counsel for the applicant was seeking an ex parte injunction from

me in chambers, I asked whether there was any evidence about who the applicant was and senior counsel informed me, in substance, that Mr Barrand had some association with White Industries Ltd or

The injunction which I made on Monday has expired but, in the absence of any change in the relevant evidence before me

The respondent does not seek to pursue the action and so

This leaves the question of costs. Bearing in mind that the facts and law upon which the interim injunction depended were not examined other than in a way appropriate in the circumstances I consider that the applicant should pay the respondent's costs up to the conclusion of the proceedings on Monday. I consider that the proceedings on Wednesday were not necessary. At the beginning of these proceedings on Wednesday, senior counsel for the applicant offered to have them dismissed. I consider it is appropriate that each side be left to pay their own costs of

The orders I make are that: The action is dismissed.

The applicant is to pay the respondent's costs up to the conclusion of the proceedings on Monday 9 June 1980. No order is made as to costs of the proceedings after

The applicant is to pay the respondent's costs up to the conclusion of the proceedings on Monday 9 June 1980.

) NEW SOUTH WALES DISTRICT REGISTRY) No. G.42 of 1980

On Friday 6 June 1980 an application was made to me in chambers at 5.30pm for an ex parte interim injunction under s.80 of the Trade Practices Act 1974 ("the Act"). The application was supported by an affidavit of Mr Graham John Cowley, solicitor for

A meeting of shareholders of Endeavour Resources Ltd, the respondent, was to be held in Melbourne at 3.30pm on the following Monday and one of the resolutions to be proposed sought the approval of the acquisition by a wholly owned subsidiary of the respondent of certain shares in a company called Bond Mining and Exploration Pty. Ltd. It appeared that this transaction

would result in the respondent indirectly controlling certain

shares in White Industries Ltd, part of whose assets were said to

be shares in a company called Ulan Coal Maines Ltd, which apparently held certain reserves of steaming coal recoverable by open pit mining. There is no need to go into the facts alleged in any detail but, in substance, there appeared to be a difference between the content and value of those reserves of the coal as stated in a circular to shareholders which accompanied the notice of the meeting and as stated in a letter which a Mr White, chairman of White Industries Ltd, was said to have written to the chairman of directors of the respondent on Friday 6 June. The application before me was filed on 6 June. It was in the usual form and sought interlocutory relief both restraining the passing of the resolutions proposed and restraining the respondent in trade and commerce from engaging in conduct which

is misleading or deceptive or likely to mislead or deceive.

The application was based upon s.52 of the Act. The only relief senior counsel sought on Friday was in relation to the meeting. The application was somewhat novel and it seemed to me desirable to endeavour, so far as was practicable, to enable the respondent to oppose any order. Notice of the application was served upon the solicitors who had acted for the respondent in other litigation on Saturday 7 June and at 9am on Monday, 9 June I sat in what was'a directions hearing in the proceedings but which were only intended to deal with the

question of granting an interim injunction in relation to the

The respondent was represented by senior counsel but no evidence was filed by it. I indicated to the parties that it was not possible to treat the matter other than upon the basis of determining in the time that was available what, if any, order I should make with respect to conduct at the meeting in Melbourne that afternoon and that this involved my treating the application very much upon the basis of an ex parte application. After some argument, senior counsel for the respondent sought to cross examine Mr Cowley, suggesting, inter alia, that the bulk of the material in the circular was obtained from public documents of White Industries Ltd. He also said that he wished to ask questions about Mr Cowley's instructions from Mr Barrand, the applicant. Because of the shortage of time I decided that it was not possible to open up those issues and I refused leave to cross examine and made certain interim injunctions, the details of which it is not necessary to set out, but which in substance restrained the respondent, its servants or agents from making any statements, at the meeting, falling within s.52 of the Act. The proceedings were then stood over until Wednesday 11 June for the purpose of proceeding with the hearing of the interlocutory injunction. I also ordered that Mr Barrand file and serve an affidavit by 10am on the Tuesday, that any affidavit evidence upon which the applicant intended to rely should be filed by the

same time and that Mr Cowley attend for cross examintion.

On Tuesday 10 June 1980, the solicitors for the applicant filed a Notice of Discontinuance in the action and, in a letter to the Registrar of the Court and to the solicitors for

the respondent, consented to an order for costs in favour of the

On Wednesday 11 June 1980, the matter was listed and senior counsel for the applicant accepted that the Notice of Discontinuance did not satisfy the rules. At this time it was common ground that the meeting had been held and any relevant resolution had been passed. It thus appeared that there was little purpose in continuing the interlocutory proceedings and senior counsel for the applicant, at the commencement of the proceedings on Wednesday 11 June, said that he would accept dismissal of the interlocutory proceedings and the suit and that

he did not wish to make any particular submission as to costs.

Senior counsel for the respondent opposed the matter being dismissed and indicated that he wished to cross examine both Mr Barrand and Mr Cowley. The matter than proceeded upon the basis that I should consider first the interlocutory application. Although this application on its face sought relief other than at the meeting no such relief had ever been the subject of any submissions. Senior Counsel for the respondent argued that s.80 (3) of the Act permitted the court to "rescind" an interim injunction and that cross examination would assist

his submissions in this regard and that the injunction should be

rescinded in the sense that it should be treated as never having been made. He also stated that the respondent was seeking costs other than on a party and party basis. I allowed the cross examination of Mr Cowley but not Mr Barrand because no affidavit of Mr Barrand had ever been used. A formal affidavit of Mr Barrand had been filed in purported compliance with my order of

Cross examination of Mr Cowley elicited that he acted for Mr White in several matters currently being litigated and, following up on a conversation with Mr White, Mr Cowley had sought instructions to act in this matter from Mr Barrand. In cross examination nothing emerged relevant to Mr Cowley's affidavit except that in paragraphs 2 and 3 of it Mr Cowley had stated he had been informed by the applicant whereas he conceded in cross examination that this was not the position. However, nothing emerged to throw any doubt upon the facts alleged in paragraphs 2 and 3 apart from the source of the information contained in them. Identity of the applicant is, of course, of no significance because the Act permits any person to seek relief under s.&@0. While Mr Cowley's misstatements concerning the source of his information in paragraphs 2 and 3 of his affidavit, to say the least of it, warrants severe criticism, it does not change any relevant fact which was before me when I made the orders on Monday 9 June. I also thought it proper to mention during the proceedings on Monday 9 June that, when senior

counsel for the applicant was seeking an ex parte injunction from

me in chambers, I asked whether there was any evidence about who the applicant was and senior counsel informed me, in substance, that Mr Barrand had some association with White Industries Ltd or

The injunction which I made on Monday has expired but, in the absence of any change in the relevant evidence before me

The respondent does not seek to pursue the action and so

This leaves the question of costs. Bearing in mind that the facts and law upon which the interim injunction depended were not examined other than in a way appropriate in the circumstances I consider that the applicant should pay the respondent's costs up to the conclusion of the proceedings on Monday. I consider that the proceedings on Wednesday were not necessary. At the beginning of these proceedings on Wednesday, senior counsel for the applicant offered to have them dismissed. I consider it is appropriate that each side be left to pay their own costs of

The applicant is to pay the respondent's costs up to the conclusion of the proceedings on Monday 9 June 1980.

No order is made as to costs of the proceedings after

: : GS E70 a true Copy of the

Tor Judgment herein of his Honour