FEDERAL COURT OF AUSTRALIA

Flogineering Pty Ltd v Blu Logistics SA Pty Ltd (No 2) [2018] FCA 1607

File number(s):

QUD 883 of 2016

Judge(s):

GREENWOOD J

Date of judgment:

24 October 2018

Catchwords:

PRACTICE AND PROCEDURE consideration of the final form of the relief to be granted arising out of the trial of the separate questions consequent upon the Judgment published in relation to the separate questions described as Flogineering Pty Ltd v Blu Logistics SA Pty Ltd [2018] FCA 1479

Legislation:

Competition and Consumer Act 2010 (Cth), schedule 2, ss 18, 29, 232

Date of hearing:

28 September 2018

Date of last submissions:

12 October 2018

Registry:

Queensland

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Economic Regulator, Competition and Access

Category:

Catchwords

Number of paragraphs:

5

Counsel for the Applicant:

Mr N H Ferrett

Solicitor for the Applicant:

Kalus Kenny Intelex

Counsel for the Respondent:

Mr S Forrest

Solicitor for the Respondent:

Rojas Lawyers

ORDERS

QUD 883 of 2016

BETWEEN:

FLOGINEERING PTY LTD (ACN 115 962 822)

Applicant

AND:

BLU LOGISTICS SA PTY LTD (ACN 600 595 382) (and others named in the Schedule)

First Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

24 OCTOBER 2018

THE COURT DECLARES THAT:

1.    Each of the respondents, by affixing the number “No 5/6E/13A” (an “Approval Number” issued pursuant to the National Measurement Regulations 1999 (Cth) (the “Regulations”) made under the provisions of the National Measurement Act 1960 (Cth)) to a measuring instrument described as a milk flowmeter, engaged in misleading or deceptive conduct or conduct likely to mislead or deceive either milk processors or dairy farmers or both because such conduct constituted a representation that the person who had affixed the Approval Number to the particular milk flowmeter installed on the particular tankers as described in Schedule 1 below in respect of each relevant respondent, was someone authorised to do so under an approval issued under the Regulations when that person was not so authorised in accordance with that approval.

2.    The conduct of each respondent as described in Declaration 1 constitutes conduct in contravention of Section 18 of the Australian Consumer Law and Sections 29(1)(e) and 29(1)(g) of the Australian Consumer Law.

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

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.

Associate:

Dated:    24 October 2018

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