FEDERAL COURT OF AUSTRALIA

N.A. Retail Solutions Pty Ltd v St George Bank Limited [2010] FCA 290

THE COURT NOTES THAT:

1.                  Orders were made by the Court on 26 March 2010 to implement the Court’s reasons for judgement which are now delivered, such orders being as follows:.

1.    Upon the First, Second and Third Applicants giving the usual undertaking as to damages, the Second Respondent, by itself, its servants or agents, is, until further order restrained from acting upon or implementing or from relying upon the notice of Termination of Merchant Facilities under the Merchant Agreement between the Third Applicant and St. George addressed to the Third Applicant purportedly given under cover of letter dated 2 February 2010 (the ‘2010 Termination Notice’) in relation to Merchant Facilities numbered 3679180, 3676400, 3677002, 3677036, 3677465, 3678174, 3679081, 3680105, 3680477, and 3679958 (the ‘Merchant Facilities’) or from issuing any substitute notice.

2.    Upon the First, Second and Third Applicants giving the usual undertaking as to damages, the Second Respondent, by itself, its servants or agents, is, until further order restrained from treating the Merchant Agreement with the Third Applicant as being at an end upon the expiry of the 30 day notice period referred to in the 2010 Termination Notice or any extension of the notice period which the Second Respondent has notified as 15 March 2010.

3.    Upon the First, Second and Third Applicants giving the usual undertaking as to damages, until further order the Second Respondent reinstate the Merchant Facilities, including but not limited to the EFTPOS equipment and associated electronic banking facilities which the Second Respondent deactivated on or about 15 March 2010.

4.    Costs be reserved.

5.    The proceedings be listed for directions before the docket Judge on a date to be notified to the parties by the Registrar.

THE COURT FURTHER ORDERS THAT:

1.                  St. George Bank Limited be removed as the First Respondent in this proceeding with the effect that Westpac Banking Corporation Limited will be henceforth the sole respondent.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     On 17 March 2010 the applicants filed an application seeking interlocutory and final relief against St. George Bank Limited (‘St. George’) in respect of alleged breaches of an implied term to act in good faith in commercial transactions, and of alleged breaches of ss 45, 45D and 51AC of the Trade Practices Act 1974 (Cth) (‘the Trade Practices Act’). Such relief was sought in respect of the termination by St. George of an EFTPOS Merchant Facility as detailed hereunder.

2                     The application came before Flick J on 18 March 2010. On that occasion there was no appearance by St. George. Instead, an appearance was made by Westpac Banking Corporation (‘Westpac’) and the Court was informed by counsel for Westpac that St. George ‘no longer exists, it merged with Westpac’. Accordingly, leave was granted to amend the application to join Westpac as the second respondent.

3                     The evidence in support of the application consisted of two affidavits of Adil Azir Magar (‘Mr Magar’), the principal of the first applicant (‘N.A. Retail’), sworn 17 March 2010 and 18 March 2010 respectively. Westpac relied upon affidavits of Sasha Alexander Slevac, National Manager Card and Merchant Risk Operations for St. George Bank – a division of Westpac Banking Corporation, sworn on 18 March 2010, and Ngaire Elizabeth Ballment, also sworn on 18 March 2010.

4                     Flick J heard the contested application for interlocutory relief. Having heard evidence and submissions, his Honour ordered that the claim for interlocutory relief be dismissed and that the costs of such application be the respondent’s costs in the proceedings: see N.A. Retail Solutions Pty Limited v St George Bank Limited [2010] FCA 259.

5                     In dismissing the claim for interlocutory relief his Honour also made directions for the future conduct of the proceedings. Those directions were as follows:

3.    Any further application for interlocutory relief, together with all affidavit evidence on which reliance is to be placed, are to be filed and served by 4:00 pm on 19 March 2010.

4.    Any amended Application, together with a Statement of Claim, is to be filed and served by 4:00 pm on 19 March 2010.

5.    The Respondents are to file and serve any evidence upon which they intend to rely by 12:00 midday on 23 March 2010.

6.    Any Notices to Produce are to be filed and served by 4:00 pm on 19 March 2010.

7.    The proceeding is to be stood over before the Duty Judge at 9:30 am on 22 March 2010 for the purpose of calling upon any Notices to Produce.

8.    Any application for further interlocutory relief is to be stood over for hearing before the Duty Judge at 10:15 am on 24 March 2010.

6                     Pursuant to the directions the applicants have filed an amended application, a statement of claim and an affidavit of Mr Adil Azir Magar sworn on 19 March 2010. The respondents filed a further affidavit of Mr Slevac sworn on 23 March 2010, and Ivor Thren Keuneman, Transaction Banking Manager, Strategic Groups, St. George Bank, a division of Westpac Banking Corporation, also sworn on 23 March 2010.

7                     The Court will refer to the facts before considering the legal issues now raised before it. The facts have been amplified by the recent evidence and supersede the discussions of the facts referred to by his Honour in his reasons for judgment.

FACTS

8                     The first applicant (‘N.A. Retail’) operates lease hold interests in 10 service stations in metropolitan Sydney (‘the service stations’), most of which are operated by agreements which, subject to later discussion, appear to be a form of agency agreement.

9                     The service stations receive revenue from sales of petroleum products and also from sales of items in the associated grocery or amenity stores operated in conjunction with the service stations. Revenue from the operations of each service station is received daily by N.A. Retail in accordance with arrangements made between N.A. Retail and the operators of those sites.

10                  The second applicant owns the business name ‘Volume Plus’. It permits the service stations to use such name but otherwise the second respondent does not appear to have any active involvement in the daily trading of the service stations.

11                  The third applicant (‘Tadco’) is a corporation which entered into a Merchant Agreement with St. George in July 2009.

EFTPOS FACILITY

12                  For approximately 10 years prior to 2009 agreements known as Merchant Agreements existed between N.A. Retail and other associated companies of N.A. Retail with St. George pursuant to which St. George provided EFTPOS facilities to customers of N.A. Retail and its associated companies. However in more recent years, a single Merchant Agreement had been held between N.A. Retail and St. George in respect of all of the service stations conducted by N.A. Retail.

13                  The provision of EFTPOS facilities is of the utmost importance to the operation of the service stations. Pursuant to the Merchant Agreement all revenue from sales purchased through EFTPOS facilities at the service stations was received via St. George’s EFTPOS systems into the bank account of N.A. Retail. Thereafter, N.A. Retail accounted separately to each service station agent for their remuneration for the conduct of the operations pursuant to arrangements made between the service station agent and N.A. Retail.

TERMINATION

14                  By letters dated 27 May 2009 St. George wrote to each of the service stations terminating the arrangements for the provision of EFTPOS services pursuant to Clause 26(b) of the Merchant Agreement. No reason was provided for such termination.

15                  After the receipt of such letters Mr Magar (who was known to St. George as Eddie Magar) enquired of Mr Keuneman of St. George of any reason for the termination of the EFTPOS facilities. Initially no reason was provided, however the notice period was subsequently extended by a period of 30 days.

16                  The parties present conflicting versions of the various discussions which took place between Mr Magar and Mr Keuneman. Since these proceedings are interlocutory and no cross-examination has occurred in respect of them, the Court will make its findings based upon the critical facts which are not in dispute. The discrepancies between the versions of events are not of crucial significance for this application.

17                  According to Mr Keuneman’s version of events, shortly after the notification of termination, Mr Keuneman met with Mr Magar at a coffee shop outside Mr Magar’s Fairfield office for a discussion. Mr Magar was then informed that the termination had occurred because St. George had become aware that the Workplace Ombudsman was conducting an inquiry into alleged non-payment of statutory entitlements to N.A. Retail employees. During such meeting Mr Magar disputed that there was any outstanding claim by the Workplace Ombudsman and enquired why St. George had taken such action. Mr Keuneman responded that it was a ‘risk matter’ and that he had to be guided by the Risk Management group. Mr Keuneman said to Mr Magar:

Listen, N.A. Retail Solutions runs the risk of being black listed over this business with the Ombudsman. If that happens, you won’t be able to get EFTPOS facilities for the company in Australia again.

18                  According to this version of events, Mr Magar then suggested that if St. George was concerned with the operation of his companies that he could ‘hand over’ his sites to his brother-in-law who would then apply for Eftpos facilities in his own name. Mr Keuneman claims that in response to such suggestion he said:

I can’t promise anything. Send through the application form and we’ll see how compliance responds. As long as there is no involvement with you at all, it should be okay.

19                  Mr Magar recalls a slightly different version of events, one in which the various discussions took place over the phone. During such discussions, Mr Magar contends that the statement was made that N.A. Retail had been blacklisted and would not be able to obtain EFTPOS facilities. Mr Keuneman specifically denies such claim.

20                  Mr Magar also recalls Mr Keuneman saying words to the following effect:

The only way you can stay with St. George is to put another name on the application for merchant facilities that does not mention your name.

21                  At the end of the 30 day period the termination was confirmed. Mr Magar claims that during such period several of the agents operating Volume Plus petrol stations on behalf of N.A. Retail and its associated companies had been visited by Mr Keuneman and that they had been told by Mr Keuneman to ‘change the EFTPOS merchant facilities into [their] own names’. Mr Keuneman denies that he did so.

22                  At some stage following receipt of the termination notices Mr Magar applied to the Commonwealth Bank of Australia (‘CBA’) and Australia and New Zealand Banking Group Limited (‘ANZ’) for EFTPOS merchant facilities but such applications were declined.

TADCO

23                  Thereafter Mr Magar arranged with Mr Nader Tadros, a director of Tadco, to apply to St. George for EFTPOS merchant facilities, with an understanding between Tadco and N.A. Retail that Tadco would reimburse N.A. Retail for the revenue received through EFTPOS. Such application was approved and a letter was written to Mr Keuneman by Mr Magar dated 31 July 2009 which stated relevantly:

This is to confirm that effective 24^th July 2009, TADCO PTY LTD. manages the operation of all Volume Plus retail sites. This includes taking care of all the EFTPOS facilities in the outlets.

24                  As a result of the arrangement, the EFTPOS merchant facilities were transferred from the name of N.A. Retail to Tadco’s name in or about July 2009. However, on 15 February 2010 Mr Magar received a letter from St. George addressed to Tadco dated 2 February 2010 advising of the termination of the merchant facilities pursuant to Clause 26(b) of the Merchant Agreement made between Tadco and St. George. The termination was stated to take effect at the close of business on 4 March 2010. Mr Magar then contacted Mr Keuneman to request an explanation. In response Mr Keuneman told him that it had been discovered that money was being transferred from Tadco to N.A. Retail arising out of the operation of the service stations.

25                  Shortly thereafter Mr Magar arranged for another company, namely Felix Energy (‘Felix’), to apply to CBA for EFTPOS merchant facilities. Whilst it appeared that the application would be approved, on 4 March 2010 Felix was advised that the application for EFTPOS facilities made to CBA had been rejected.

26                  Thereafter correspondence has taken place between 4 March 2010 to the date of the institution of these proceedings which has not resulted in any arrangement being made for the provision of EFTPOS facilities. The termination of the EFTPOS facilities to Tadco was effected on the evening of 15 March 2010.

27                  The applicants claim that in consequence of the termination of the agreements they are incurring loss and damage because they are unable to offer EFTPOS facilities to their customers.

REASONS FOR REFUSAL OF RELIEF

28                  In the decision dated 18 December 2010 refusing interlocutory relief, Flick J referred to obstacles which were faced by the applicants including; the fact that the relief claimed sought a mandatory injunction against St. George, an entity which might no longer exist; the fact that the current status of the Merchant Agreements held with St. George was unclear; the fact that the relationship between the applicants was unclear; and the fact that there had been delay in the institution of the proceedings.

29                  Since Flick J delivered his reasons the applicants have, by the application now before the Court again sought interlocutory relief. In doing so they have provided the Court with evidence relating to each of the reasons for the refusal of relief before Flick J. The Court will now address each of the matters referred to and make its finding in respect thereof.

FINDINGS

(a) Status of respondent

30                  The legal status of St. George has been clarified since these proceedings were before Flick J. A transaction has taken place between St. George and Westpac pursuant to the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) (‘the Act’), the precise details of which are not before the Court. Under the provisions of Part 4A of the Act, restructures may be effected as provided by s 36A of the Act in respect of an authorised deposit-taking institution (referred to in the Act as an ‘ADI’). Pursuant to Division 2 of the Act, a restructure of such an ADI may be approved by the Minister.

31                  It is now common ground that Westpac, pursuant to such provisions, has taken over St. George and an internal transfer certificate as defined in s 36L of the Act has been issued. Pursuant to s 36R of the Act, the assets and liabilities of St. George have been transferred to Westpac. However, as provided by s 36R(2)(b) of the Act, ‘the duties, obligations, immunities, rights and privileges applying to the transferring body [St. George] apply to the receiving body [Westpac]’. As a result of such transactions Westpac is rendered liable to the applicants as if St. George had been liable. Accordingly, the Court will hereafter refer to the submissions made before the Court as submissions of Westpac, not of St. George.

(b) Applicants

32                  The affidavit of Mr Magar sworn 19 March 2010 has also clarified the status of the applicants. Mr Magar’s affidavit confirms that N.A. Retail conducted the service stations via its agents who are referred to as ‘station agents’. At the end of each trading day, revenue received via the EFTPOS facilities pursuant to the Merchant Agreements held with St. George was paid into the bank account of N.A. Retail and N.A. Retail then accounted to the station agents for their remuneration in accordance with the arrangement held between that agent and N.A. Retail.

33                  The status of the second applicant is now established. It has no active role, other than lending its name to the operations. However, it claims that its reputation will suffer if service stations carrying its name are unable to provide EFTPOS facilities and accordingly is entitled to be compensated for their loss or damage pursuant to the provisions of s 87 of the Trade Practices Act.

34                  The third applicant’s position has also been clarified. It seeks reinstatement of the EFTPOS Merchant Agreement made between itself and St. George which existed in the period of approximately nine months following the termination of the Merchant Agreement between St. George and N.A. Retail in July 2009 until the termination of the agreement held between it and St. George on 15 March 2010.

(c) Causes of action

35                  The actions have also now been clarified by virtue of the filing of the amended application and statement of claim for which Flick J granted leave on 18 March 2010. The amended application, filed 22 March 2010, has widened the scope of relief claimed. In addition to the grounds set out in the original application the amended application now includes a breach of ‘Banking Code of Practice imported into the contract’, and includes an alleged breach of s 51AB of the Trade Practices Act as well as breaches of ss 12CA, 12CB, 12CC of the Australian Securities and Investments Commission Act 2001 (Cth) (‘the ASIC Act’). The claim for interlocutory relief has been amended to seek injunctions of a mandatory kind against Westpac seeking reinstatement of the merchant facilities

36                  In respect to the contractual claims the applicants allege breach of an implied term of good faith in respect of the termination of the Merchant Agreements and breaches of an express term of the written agreements. The applicants submit that whilst Clause 26(b) thereof empowers St. George to terminate the Merchant Agreement ‘at any time without cause by giving written notice to the Merchant’, such clause is subject to the obligation of good faith and subject to the provisions of s 38 of the Merchant Agreement. Section 38(a) provides:

The relevant provisions of the Code of Banking Practice apply to this Agreement, if the Merchant is an individual or Small Business.

37                  The applicants’ businesses are each classified as ‘Small Business’ pursuant to the definition contained in Clause 1 of the Merchant Agreement. Clause 2.1 of the Code of Banking Practice itemises ‘key commitments and general obligations’ and includes an obligation by St. George to provide effective disclosure of information and to explain information concerning banking services obligations. Clause 2.2 provides:

We will act fairly and reasonably towards you in a consistent and ethical manner. In doing so we will consider your conduct, our conduct and the contract between us.

38                  The applicants submit that such obligations have been breached by St. George.

39                  The claims alleging breaches of ss 12CA, 12CB and 12CC of theASIC Act have been incorporated in the event that it be determined that the claims made against St. George are made in relation to the provision of financial services in respect of which relief under the Trade Practices Act may not be available.

40                  Westpac submits that the notices of termination, even if invalid, do not necessarily constitute breaches of any contractual arrangement between St. George and the applicants nor do they necessarily involve any statutory breach as alleged. Westpac also submits that the doctrine of good faith cannot operate to prevent a termination of the Merchant Agreements if express rights permit St. George to do so. In this respect it is submitted that St. George was entitled to assess its forward analysis to assess the risk of the first applicant and to decide that the risk of future dealings with the applicants was unacceptable.

41                  In respect of the operation of any implied terms into the Merchant Agreement, Flick J at [18]-[22], having referred to the relevant authorities, concluded that a breach of implied term of good faith might prima facie be available to the applicants. The Court respectfully adopts his Honour’s reasons. The Court also refers to the decision of Davies J in Sundararajah v Teachers Federation Health Ltd [2009] NSWSC 1443 in which his Honour found that serious questions to be tried arose because within the unqualified power to terminate the agreement in the proceedings then before him there existed the possibility for implication of contractual limitations or equitable constraints.

42                  Flick J found that the alleged breaches of the terms of such agreement, including any conduct relating to ‘blacklisting’ the applicants for EFTPOS facilities with other institutions, and of any breach of the Trade Practices Act or of the ASIC Act, gave rise to serious questions to be tried.

(d) Delay

43                  The Applicant submits that the issue of delay has now been further clarified by the affidavit of Mr Magar sworn on 19 March 2010. In such affidavit Mr Magar explains that following the termination of the Merchant Agreements between N.A. Retail and St. George in June 2009 he negotiated the Tadco arrangement which continued until he received a letter on or about 15 February from St. George dated 2 February 2010. Mr Magar said that he was surprised by such termination since a letter had been sent by N.A. Retail to St. George at Mr Keuneman’s request ‘confirming my companies continued involvement with the Eftpos arrangement’. Further, the transfers of money between Tadco and N.A. Retail had been conducted by St. George through its own transfer system from approximately July 2009 until termination of the arrangement in February 2010.

44                  In his affidavit sworn 19 March 2010, Mr Magar claims that following termination of the Tadco arrangement, the application by Felix to the CBA was made and had been initially approved but was then rejected on or about 4 March 2010. Following the rejection of Felix’s applications to CBA he immediately consulted legal advisors, in consequence of which the termination notice relating to Tadco was extended to 15 March 2010. The services were terminated on the evening of 15 March 2010 and the application was filed two days later. The applicants submit that there was accordingly no undue delay.

45                  Westpac submits that no proper explanation has been provided for the delay in the institution of the proceedings and further that the lack of any action by N.A. Retail from May 2009 to enforce its agreement has the effect of disqualifying it from now seeking injunctive relief. However the Court is satisfied that by virtue of the further evidence which has been adduced the reasons which his Honour gave as at 18 March 2010 relating to delay no longer prevail.

COMPETENCY OF THE CURRENT APPLICATION

46                  A threshold question arises on this application, namely whether the applicants are entitled to bring a further application for interlocutory relief.

47                  The applicants submit that the application now before the Court does not give rise to res judicata and creates no estoppel. The Court was referred to the decision of McLelland CJ in Eq in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44. In that decision his Honour said the following at 46:

Interlocutory orders, of their very nature, create no res judicata or estoppel, and the Court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.

48                  The parties have referred the Court to several authorities upon the issue whether the second application for interlocutory relief is competent given the application’s substantial similarity to the unsuccessful first application. Both parties submit however that there is no consistent guidance provided by those authorities.

49                  In Paras v Public Service Body Head of the Department of Infrastructure (No 2) 152 IR 352, a second interlocutory application in the proceeding sought a discharge or stay of a interlocutory injunction already granted by the Court. Young J referred to the Court’s discretionary power to vary or set aside an entered interlocutory order under O 35 r 7(2)(c) of the Federal Court Rules (Cth) and said at [4]:

In each case, the power is discretionary, and the authorities in this Court indicate that it is ordinarily only exercised in exceptional circumstances: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552; Dudzinski v Centrelink [2003] FCA 308 at [11]; and McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25].

50                  Young J continued at [5]:

Further as Spender J emphasised in Dudzinski in relation to O 35 r 7(2)(c), the rule is not an alternative to the appellate procedure in respect of interlocutory judgements, nor is it to be invoked for the purpose of allowing a party to present a case a second time to its better advantage.

51                  In P Dawson Nominees Pty Ltd and Another v Australian Securities and Investments Commission and Others (No 2) (2009) 255 ALR 466 Goldberg J at [38] considered the question of allowing a moving party to seek to vary or change an interlocutory order which has previously been made and said:

[A]t the end of the day, it is a matter for the discretion of the Court.

52                  His Honour at [39] referred to the majority of the High Court of Australia in Adam P Brown Male Fashion Proprietary Limited v Phillip Morris Incorporated and Another (1981) 148 CLR 170 at 178 when it observed:

A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust…

53                  Goldberg J at [40]-[41] referred to the majority judgement of Brooking and Hayne JJA in D.A. Christie Pty. Ltd. v Baker [1996] 2 VR 582 as an example of the ‘strict’ approach. In that decision their Honours held that as purported new material had been available at the time of the first application and as the applicant had not offered any explanation for the reason why it had not been adduced, the second application should be stayed as an abuse of process. However Charles JA dissented, and said at 610-11:

I do not think it is open to this court to adopt a rule which would preclude, as an abuse of process, the making of a second application for an extension of time simply because the applicant seeks to bring forward additional relevant facts which would not satisfy the “fresh evidence” rule.

… I conclude that it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent.

54                  In Nominal Defendant v Manning (2000) 50 NSWLR 139, Heydon JA, addressing the question whether a further interlocutory application can be made when an earlier interlocutory application has been determined, said at [46]:

These “general rules” and “ordinary rules of practice” are to be administered bearing in mind the “overriding principle governing the approach of the court to the interlocutory applications”, namely that the court should do whatever the interests of justice require in the particular circumstances of the case”: Brimaud v Honeysett Instant Print Ltd (at 4).

55                  At [71]-[72] Heydon JA adopted the dissenting judgement of Charles JA in D.A. Christie when his Honour said:

For present purposes it is not necessary to go further than to reject the test proposed by the Nominal Defendant, and to decline to apply the view of the majority in D A Christie Pty Ltd v Baker that the applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before. It is not necessary, and it is probably undesirable, to seek to define a test capable of application to all cases involving statutory extensions of time to start proceedings, or even all cases arising out of s 52(4) of the Motor Accidents Act 1988. The Nominal Defendant did not submit that if the test contended for did not exist, the conduct of the respondent constituted an abuse of process on any other basis.

Nothing in the above reasoning rejecting the Nominal Defendant's submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 602-603 – the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs – and others – damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily – are evils which each court in its individual discretion will rightly strain to avoid.

56                  Golberg J in P Dawson Nominees at [40] described Heydon J’s judgement as an example of the ‘liberal’ view of the issue.

57                  The liberal view was restated by Palmer AJA (with whom Mason P and Santow JA agreed) in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 at [19] as follows:

The overriding principle governing the approach of the court to the interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstance of the case: per Foster A-JA in Nominal Defendant v Manning at [46].

58                  Having reviewed the above authorities, Goldberg J at [49] identified four circumstances, one or more of which must have occurred or be satisfied for a Court to hear a second application for interlocutory relief, namely:

(a) there is new material or new evidence which was not available to [the moving party] at the time the orders were made…;

(b) there has been a material change in the circumstances since those orders were made;

(c) there are exceptional circumstances which warrant the reconsideration of the matter, the subject of their notice of motion; and

(d) as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter, the subject of the notice of motion.

59                  The Court is satisfied that Goldberg J’s test identified in P Dawson Nominees should be applied to the current facts to determine whether the application now before the Court is competent.

60                  The applicants contend that the initial interlocutory judgement of Flick J was primarily based on the confusion and uncertainty regarding the corporate existence of the named Respondent, St. George Bank Limited. In his reasons Flick J refers to the uncertainty of the status of St. George at [4] of his decision as follows:

Further uncertainty arises as to the corporate existence of St. George Bank.

At [34] his Honour states

The unsatisfactory state of the evidence only provides further reason to refuse relief and no order should be made, especially where there is accepted uncertainty as to the entity which any mandatory relief would operate.

61                  The Court notes that the orders of Justice Flick dated 18 March 2010 contemplate a fresh application. The Court also notes Flick J’s judgement at [35]:

The Applicant may bring such further applications for interlocutory relief as they see fit.

62                  The Court is satisfied that the confusion of the identity of the respondent was a material element in the decision of Flick J to refuse interlocutory relief. It was clearly a matter of uncertainty, as evidenced by the fact that all of the letters of termination of the Eftpos facilities dated 27 May 2009 are written on St. George letterhead, as well as the letter of termination addressed to Tadco dated 2 February 2010. To add to the confusion, a letter on St. George letterhead written to the applicants’ solicitors dated 12 March 2010 contains a statement that St. George is ‘A Division of the Westpac Banking Corporation’.

63                  The Court accepts that when the proceedings were instituted the applicants were unaware of the involvement of Westpac. Certainly before Flick J the relationship between Westpac and St. George was not fully explained. Accordingly this is not an example of a party withholding material from its first application. If there existed material concerning the true nature of the merger between St. George and Westpac, the Court is satisfied that it was not readily available to the applicants.

64                  The above considerations should be considered in light of the fourth circumstance of the Goldberg J’s test in P Dawson Nominees which allows the hearing of a further application where:

(d) as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter, the subject of the notice of motion.

65                  In exercising the discretion of the Court, a number of factors need to be taken into account.

66                  A decisive element in the Court’s decision whether to hear the amended application lies in its status as an urgent application. The application was filed on 17 March 2010 and was returnable on 19 March 2010. The first application was heard on that day. The Court takes this factor into account in assessing the failure of the applicants to adequately identify the correct Respondent. The Court also accepts the submission of the applicants that the short period between the filing of the application and the first hearing resulted in inadequacies in the preparation of all relevant evidence relating to the business relationship between the applicants themselves. These two factors were material to Flick J’s decision to dismiss the initial application.

67                  The Court does not find any vexatious element in the further application, nor considers it an abuse of process of the type referred to by Mason P in Manning at [6]-[7]. The Court also takes into consideration the fact that the orders made on 18 March 2010 specifically contemplate a further application. In such an instance, concerns of certainty and finality as referred to by Hayne JA in D.A. Christie at 602-603 do not arise.

68                  In applying the fourth limb of Goldberg J’s test, the Court respectfully adopts the reasoning of Heydon JA in Manning and Palmer AJA in Pierson as that approach ensures that the Court exercises its necessary discretion so as to avoid any injustice. There may be instances such as the present which warrants the Court considering a second application without the constraints inherent in the ‘strict approach’.

69                  Taking into account the above considerations, the Court, under the fourth limb of the Goldberg J test and as a matter of discretion, finds that the justice of the matter requires that the Court should entertain the application now before it. As such, the amended application will be heard and determined on its merits.

SHOULD RELIEF BE GRANTED

70                  In considering this question the Court adopts the three considerations referred to by Mason ACJ in Castlemaine Tooheys Limited and Others v The State of South Australia (1986) 161 CLR 148 at 153. As to whether a serious question to be tried exists, Flick J’s reasons for judgment delivered on 18 March 2010 concluded that prima facie there was the basis for a claim for relief. His Honour said at [27]:

So construed there is at least some basis for a conclusion that there may be a contravention of ss 45D and 51AC of the Trade Practices Act and for a conclusion that the right to terminate the Agreement conferred by clause 26(b) was exercised other than in good faith. It may be further open to conclude that clause 2.1(b)(i) of the Code may also have been breached.

71                  I respectfully agree.

72                  The second consideration under Castlemaine Tooheys requires the Court to consider whether in lieu of injunctive relief, damages would be an adequate remedy. Mr Magar has deposed that the takings of the service stations have been reduced by approximately 50% because of the inability to provide EFTPOS facilities and that there has been an 80% decrease in sales of diesel fuel because the majority of diesel customers are truck drivers who prefer to use credit cards.

73                  Westpac submits that the proceedings brought before the Court essentially relate to a claim for damages arising from the circumstance that the applicants were allegedly not permitted sufficient time to arrange an alternative EFTPOS facility. Westpac submits that damages would be an adequate remedy and injunctive relief is accordingly not appropriate.

74                  Westpac also submits that the fact that the assessment of any damage suffered by the applicants may be complex does not justify the Court granting injunctive relief. In Kerridale Pty Ltd v Western Exporters Pty Ltd [2003] FCA 1335 Spender J said at [29]:

The fact that the assessment of damages might be complicated is not a basis for saying that damages would not be an adequate remedy.

75                  Westpac also relies upon the principles referred to in Cullen v Trappell (1980) 146 CLR 1 at 17 that even if damages are difficult to assess, the Court will nevertheless make an award to avoid injustice.

76                  In Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, Gummow J at 507, considering the balance of convenience, observed that the difficulty in quantifying the damage to goodwill ‘strengthens the argument that an injunction is the appropriate remedy in this case’. Similarly in Peter Murray Walker and Steven John Sherman as Voluntary Liquidators of One.Tel Limited (Administrators Appointed) and Another v Australian & New Zealand Banking Group Limited (No. 2) (2001) NSWSC 806, Austin J at [105] said:

In assessing whether damages would be an adequate remedy, the Court must take a practical approach, looking at all the circumstances. In the present case, there will clearly be evidentiary difficulties on the part of the plaintiffs in proving the quantum of their loss, as I explained in my reasons for judgment of 3 September 2001.

77                  As was observed by Flick J at [13] of his Honour’s reasons dated 18 March 2010, ‘irreparable injury’ referred to by Mason ACJ in Castlemaine Tooheys means injury for which damages would not be adequate compensation. In The King v MacFarlane and Others (1923) 32 CLR 518 Isaacs J at 550 said:

If damage is irreparable in the sense that pecuniary compensation would be inadequate protection, injunction may, and in the absence of countervailing circumstances will, be granted to protect a legal right (Stollmeyer v. Trinidad Lake Petroleum Co., affirming Lord Kingsdown in Imperial Gas Light and Coke Co. v. Broadbent)[Footnotes Omitted]

78                  Based upon the evidence of Mr Magar, the Court is satisfied that without the provision of Eftpos facilities, there is the risk that the businesses of the applicants may not be able to continue to trade. In such an event, the loss to the applicant may be unquantifiable, not merely difficult to calculate. For the above reasons the Court is satisfied that damages would not be an adequate remedy.

79                  As to the third consideration of Mason ACJ in Castlemaine Tooheys, namely the balance of convenience, Westpac submits that the balance of convenience does not operate in favour of the applicants. However, the Court notes that the respondent has not claimed that it would be prejudiced if orders were made for interlocutory relief as sought, nor that any damage would flow to it if injunctive relief were granted. Whilst there was some suggestion that Westpac might be ‘at risk’, such evidence was not pressed as being a reason for refusing relief and in any event, the evidence was too vague for the Court to conclude a risk existed sufficient for the Court to decline relief. In these circumstances the Court is satisfied that the balance of convenience lies in favour of granting the relief sought.

80                  Flick J has already dealt extensively in his reasons for decision with the principles concerning the grant of interlocutory mandatory relief: see [13]-[17]. The Court respectfully adopts his Honour’s conclusions, namely that the test in Businessworld Computers as stated by Gummow J at 502 should be applied. That is, that the Court will grant an injunction because the withholding of such relief would carry a greater risk of injustice than granting it, even though the applicants may ultimately be found to be unsuccessful.

81                  Accordingly, the Court makes the orders as sought by the applicants. In doing so it will order that the name of St. George be deleted as a respondent to these proceedings.

Associate:

Dated:         30 March 2010