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Federal Court of Australia |
INTERLOCUTORY INJUNCTIONS - application for mandatory interlocutory injunction requiring supply of petroleum products - whether arguable case that refusal to supply infringed s 46 or s 47 Trade Practices Act 1974 (Cth).
INTERLOCUTORY INJUNCTIONS - balance of convenience - whether applicant lacks ready source of supply of fuel - whether applicant likely to suffer irreparable harm if injunction is refused - whether sufficient evidence to establish likelihood of such harm where applicant's case leaves it in doubt whether he might have an alternative source of supply of the fuel.
Trade Practices Act 1974 (Cth) - ss 46, 47, 80
Cases Considered
American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396
Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772
O'Keeffe Nominees Pty Ltd v BP Australia Ltd [1990] FCA 166; (1990) ATPR 41- 057 at 51,741
Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd [1989] HCA 6; (1988) 167 CLR 177
Racecourse Totalisators Pty Ltd v The Totalisator Administration Board of Queensland [1995] FCA 1405; (1995) ATPR 41-426 at 40,804
Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422
Thomas Bates & Son Ltd v Wyndham's (Lingerie) Ltd [1980] EWCA Civ 3; [1981] 1 All ER 1077
World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181
GRAHAM JAMES McDERMOTT & ANOR v BP AUSTRALIA LIMITED
QG 178 OF 1996
DRUMMOND J
BRISBANE
7 FEBRUARY 1997
IN THE FEDERAL COURT OF AUSTRALIA No QG 178 of 1996
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN: GRAHAM JAMES McDERMOTT
First Applicant
AND: GO FLEET (AUSTRALIA) PTY LTD
ACN 075 206 496
Second Applicant
AND: BP AUSTRALIA LIMITED
ACN 004 085 616
Respondent
CORAM: Drummond J
DATE OF ORDER: 7 February 1997
WHERE MADE: Brisbane
THE COURT ORDERS THAT:
1. The notice of motion is dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA No QG 178 of 1996
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN: GRAHAM JAMES McDERMOTT
First Applicant
AND: GO FLEET (AUSTRALIA) PTY LTD
ACN 075 206 496
Second Applicant
AND: BP AUSTRALIA LIMITED
ACN 004 085 616
Respondent
CORAM: Drummond J
DATE: 7 February 1997
PLACE: Brisbane
So far as concerns his claims based on ss 46 and 47, the applicant relies on the contract as providing guidance as to the terms on which it would be appropriate to require BP to supply him with fuel, if he is entitled to interlocutory relief on that basis: it is fundamental to the applicant's case that he is entitled to an order compelling BP to supply, at the contract prices, the very large quantities of fuel which he wants. Mr McDermott says that these prices are "competitive" and are "on a par" with the prices at which he was for a time able to obtain supply for his fuel depot at Chinchilla in early 1994 from the BP distributor in Dalby. His plan is to sell about half of the fuel he hopes to obtain from BP to service stations, and the rest direct to individual consumers of large quantities of fuel, such as transport operators, farmers, mining companies and shire councils. He says that his being in business will lead to a reduction in the price of fuel to consumers, at least in South East Queensland rural areas. He plans to sell up to 125M litres of fuel during the first 12 months of operation, rising to something of the order of 175M litres after two years.
By his notice of motion, the applicant also seeks release from an undertaking given by him to the Supreme Court of Queensland on 20 September 1996. The applicant initially commenced proceedings against BP in the Supreme Court. On 20 September 1996, McKenzie J made an order, conditional upon the applicant's undertaking to the Court not to re-sell any product supplied by BP, which required BP to deliver to Mr McDermott the seventh lot of product ordered on his behalf under the agreement. On 27 June 1996, immediately BP suspected that the fuel might be required for resale, it raised its concerns with Mr Sheehan, Mr McDermott's solicitor, with whom alone BP had dealt; Mr Sheehan confirmed that it was required for his client's own use. Mr Sheehan placed his first order for fuel on 12 September 1996 and, between then and 16 September, he placed a further six orders. BP filled the first six, supplying in all over 200,000 litres of product. On 16 September, BP commented on the extremely large volume of fuel ordered in a few days in comparison with what Mr Sheehan had said about requiring only of the order of 1.5M litres a year and expressed concern as to whether there had been a breach of what it called Mr Sheehan's "client's undertaking"; I understand this refers to Mr Sheehan's assurances that he was acting for a syndicate of farmers who required the fuel for their own use and not for resale. BP's refusal to fill the seventh order led to the institution of the Supreme Court proceedings. The terms of the order of 20 September 1996, which make provision for the filing of evidence by BP and evidence in reply by Mr McDermott, show that it was in the nature of short term interim relief that was granted pending a full hearing of the application for interlocutory relief that was to take place on 4 October 1996. On 4 October, White J ordered that the proceeding be transferred to this Court. Contrary to BP's detailed written submissions, there is therefore no discretionary reason for denying the applicant the relief he now seeks on the basis that it is merely a renewal, without any relevant change of circumstances, of an earlier application for interlocutory relief which did not bring him the success he wants.
The first question is whether Mr McDermott has made out an arguable case that BP's refusal to supply him with fuel amounts to conduct infringing s 46.
In November 1993, the applicant decided to enter the fuel distribution business; he purchased the Chinchilla BP Service Station and entered into an agreement with a BP distributor, Dalby Fuel Services Pty Ltd, for the supply to his service station of petroleum fuels at certain fixed rebates on the maximum permissible prices which oil companies operating in Australia are permitted to charge by direction of the ACCC under the Prices Surveillance Act 1983 (Cth).
There are now only four companies operating refineries of any significant size in Australia, Ampol, BP, Mobil and Shell; there were nine in 1980. Each of the four operates two refineries, with the eight refineries being located in the five mainland States. Each of the four major companies, but no one else, is party to Refinery Exchange Agreements with the others. Although only one of the four may have a refinery in a particular State, the other three also obtain product for distribution by them in that State from that refinery pursuant to these Agreements; what each so obtains is offset against what the particular refinery operator itself obtains in other States where one or more of the others, but not it, operates a refinery. Cash payments may also be required to fully equalise these set-offs between any two of the major oil companies at a particular balance date provided for by the Refinery Exchange Agreements. The Agreements operate to equalise the freight advantage that each of these four companies that operates a refinery in a particular location would have over the others in selling product into the area supplied from that refinery. In the absence of these Agreements, each of the four might have to establish refineries of their own in each of the States in which they do not now have refineries. It was said that the Agreements ensure that, throughout Australia, the four major oil companies compete with each other on "a level playing field". Although the evidence indicates that each such Agreement usually only has a life of six months, Mr McCullagh, Mr McDermott's oil industry expert, says they have been a feature of the Australian petroleum industry for more than 20 years. They thus comprise an important structural element of the system of petroleum products distribution in Australia. Mr McCullagh also says that independent companies have now purchased terminals in four capital cities, including Brisbane, for the purpose of warehousing imported product for resale into what he refers to as the independent sector of the market, ie, the sector consisting of outlets not linked to any of the four major Australian oil companies that wholesale fuels and also sell fuels direct to large consumers. He says: "Although the importation of product from offshore has not hitherto been a significant feature of the Australian petroleum industry, I anticipate that, in the years to come, the sale of product sourced from offshore will become an increasingly important feature of the industry". One of these organisations, Fletcher Challenge Petroleum (Queensland) Pty Ltd, commenced to sell imported petroleum products in December 1996 from the Brisbane terminal previously owned by Caltex which it recently purchased.
I am prepared to accept, despite the confusing language used by Dr Copp, the economist retained by Mr McDermott, at various places in his report, that, at trial, Mr McDermott may be able to show that there exists a market for the supply of petroleum products by Brisbane terminal operators to wholesalers in a geographic area in southern Queensland and northern New South Wales described in paras 34 and 35 of his report.
On the supply side, this market would seem to comprise BP and the other three major Australian oil companies and Fletcher Challenge. It may also already include other companies unrelated to the four major companies whom Mr McCullagh expects, at some time in the future, will establish terminals for the distribution of imported fuel within this market. On the demand side, it appears to comprise those same four major companies' own tied distributors and a number of independent distributors. Even if Mr McDermott is not yet trading in this market, he too should probably be regarded as a participant, in view of the action he has taken, later referred to, to get into the wholesale fuel distribution business. This side of the market may also include the four major companies, in so far as it appears that they may compete with each other, each others' distributors and the independent distributors for the custom of large consumers of fuel products. There is evidence that there is increasing concentration of control of wholesale distribution in the four major oil companies, as independents are bought up by them.
I accept that Mr McDermott has an arguable case that, in this market, BP has a substantial degree of market power. BP has refused to supply Mr McDermott and he has evidence that he has tried, but is unable to obtain the kind of supply he requires, from any of the other three major Australian oil companies with terminals in Brisbane and with access to the two refineries here. On 27 May 1996, Mr Sheehan, on Mr McDermott's instructions, contacted an officer of Shell in Brisbane with a request substantially to the same effect as that which resulted in the contract with BP in June; the Shell officer responded the next day with advice that Shell was not prepared to submit a price for the supply proposed. About the same time, Mr McDermott says he also contacted Mobil and requested bulk supply of motor spirit and distillate. But he did not follow this up for a time, "in light of my entering into the Fuel Supply Agreement with BP on 18th June". However, after BP's refusal in late 1996 to supply fuel under that agreement, he wrote to Mobil in November to seek details of the terms on which it might be prepared to supply him with a minimum quantity of 15M litres of petroleum product, for resale to others. He did not get a response until January 1997, when Mobil briefly advised that it did not wish to enter into any agreement of the kind proposed by him. In October 1996, Mr McDermott wrote to Ampol in terms similar to those in which he soon after wrote to Mobil. Ampol responded with prices which Mr McDermott says are higher than those at which he could obtain the product from Ampol's Southern Queensland distributor with whom he would be in competition. Dr Copp says that the fact that BP can refuse supply to a person who would be a large customer, and that person cannot obtain supply from one of the small number of other oil terminal owners, indicates that BP has substantial power in this market. It suggests that BP was not constrained by the other major participants in the market: see Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd [1989] HCA 6; (1988) 167 CLR 177 at 188- 189. BP's operations in the market referred to are characterised by a high level of vertical integration: it is one of the only two refiners, and it controls an extensive distribution network of wholesalers in this market. This can be another indication of market power: see Queensland Wire at 190. Notwithstanding the new presence of Fletcher Challenge in this market and what Mr McCullagh says about potential future entrants, there is evidence of the existence of barriers to entry into this market, which may well assist Mr McDermott in showing, at the trial, that BP has substantial market power: cf Queensland Wire at 189. The Refinery Exchange Agreements covering Australia, and to which only the four major oil companies are parties, ensure that each will be able to service each market in which it operates in Australia, including the one I have referred to, in circumstances in which none anywhere suffers the cost disadvantages that would otherwise result from a particular company not having its own refinery in a locality in which one or more of the other major oil companies have refineries; these Agreements, which have been a feature of the industry for a substantial period, appear to conduce to the barriers to entry that exist in the particular market with which I am concerned and to which barriers both Dr Copp and Mr McCullagh refer. Mr McDermott's case on the issue of BP's market power is also reinforced by the observations at pp 2 to 4 of the Executive Summary of the ACCC Inquiry into the Petroleum Products Declaration, August 1996.
I accept that Mr McDermott has an arguable case that BP refused him supply for the purpose of preventing Mr McDermott's entry into the market I have referred to or for the purpose of deterring him from engaging in competitive conduct in that market. BP contends that the reason for its refusal to deal with Mr McDermott comes from its unwillingness to deal with a person who fraudulently induced it to enter into a contract (and for numerous other reasons that BP has identified in the course of the litigation, over the past few months). But I accept that there is evidence in the form of BP's concerns about the possibility that the fuel the subject of the contract negotiated by Mr Sheehan might be required for resale and not for the purchaser's own use, concerns BP expressed in the period between 27 June 1996 and 16 September 1996, which is capable of giving rise to an inference that its refusal of supply on 16 September, when its concerns about whether the fuel was being resold were reactivated, was motivated by a desire to prevent Mr McDermott competing with BP's own branded distributors and with BP itself in the market I have referred to. There is support in BP's own evidence for Mr McDermott's contentions that BP's refusal to supply him with fuel for resale had an anti- competitive motive sufficient for the purposes of his s 46 case. Mr Taylor, BP's Commercial Manager, Eastern Region, said, in an affidavit filed in the Supreme Court proceedings, that, while he had "no direct knowledge of the prices offered by BP to its distributors and other resellers, I am aware that those prices generally exceed those in the commercial end user sector of the fuel's market. Reselling of the fuel by those whom Mr Sheehan represented would therefore be unfair and discriminatory against BP's resale customers", ie, the distributors BP supplies. Despite his protestation of ignorance of BP's prices to its own distributors, BP's Commercial Manager seems clearly enough to be saying that while BP itself is prepared to sell fuel products direct to large-scale commercial consumers at lower prices than it sells fuel to its own distributors, BP, for the reasons he gives, does not want Mr McDermott to be in the position to trade with those large scale consumers with whom it trades. Mr Clarke, Regional Reseller Manager for BP, explains the special low prices commercial end users can command as governed by the fact that the quantity of fuel some such customers require is so great "that they possess a great deal of bargaining power" and that they "exert a great deal of bargaining pressure" on the oil companies, including BP, who engage in price competition for such business. If Mr McDermott can establish his business, he would appear to be in a similar position to such consumers in that he can be expected to possess the same sort of bargaining power they enjoy vis-a-vis the four major oil companies, power which he will use to better compete with BP and BP's distributors in the market in question: he will differ from the large consumers, such as mining companies, with whom BP does deal, in that the latter use the fuel themselves and do not sell it in competition with BP's distributors. Mr Clarke also identified what he called the very significant adverse effects on BP of being ordered to supply Mr McDermott with the quantities of fuel he requires at the contract prices as exposing BP to having to acquiesce in the demands it expects will come from its branded distributors on the Darling Downs for a reduction in the prices at which BP is currently supplying those same distributors; Mr Clarke does not, however, suggest that BP would be forced to trade unprofitably if it had to meet such demands for reduced prices. I should record that Mr Clarke offered explanations why there is a justifiable reason for offering large commercial end users lower prices than those offered by BP to its distributors and other wholesale resellers. He referred to commercial end users being "short term customers" who do not require oil company support in areas such as advertising and customer service or in the area of price support, such as is required by service stations operating in the highly competitive retail market in densely populated areas; he added that such customers are attractive to oil companies, notwithstanding the bargaining power they are able to exert on them, because of the opportunity to sell other products, eg, lubricants, to them, which are not subject to the same price control as are petroleum fuels. But Mr McDermott has, for the reasons given, an arguable case that BP refused him supply when he intended to resupply the fuel to others, including some who are currently supplied by BP's own distributors, in order to prevent competition from Mr McDermott and so keep up the artificially high prices BP can extract from its distributors and its large scale commercial consumers, ie, for the purpose of preventing his entry into the market I have referred to. It also follows that Mr McDermott has an arguable case that, by refusing to supply petroleum products to Mr McDermott for this purpose, BP also took advantage of its market power in the sense in which that expression is used in s 46: see Queensland Wire at 191, 194, 202 and 213.
I accept, too, that Mr McDermott has an arguable case that BP contravened s 47(3) by refusing to supply fuel products to Mr McDermott because he intended to, or would not agree not to, resupply those goods in circumstances in which, for the reasons mentioned, such conduct by BP was at least likely to have the effect of substantially lessening competition in the particular market in question by excluding Mr McDermott from that market or by hampering his ability to compete in it.
It is, I think, unnecessary to review the evidence relevant to whether Mr McDermott has an arguable case with respect to these essential elements of the Trade Practices Act causes of action in any further detail. Senior counsel for BP, towards the end of argument, identified the balance of convenience and various discretionary considerations as the critical issues in the present application. It is appropriate, however, to record that BP made no other concessions with respect to Mr McDermott's case on any of the elements of these Trade Practices Act causes of action and relied on written submissions designed to show that Mr McDermott will be unlikely to be able to establish those elements at trial.
Central to Mr McDermott's claim that the balance of convenience favours the grant of the injunction is the evidence he relies on showing that he and his associate, Mr Anderson, have assumed substantial financial commitments in order to acquire premises and equipment, including a fleet of tanker trucks, in the expectation that, because Mr McDermott had obtained the contract of 18 June from BP, his venture would have an assured source of supply for the fuel the proceeds of sale of which will service the financial commitments so incurred; his case is also that, without that source of supply, he will be unable to develop the business for which he has planned. He contends that, if the injunction is refused but he succeeds at trial, it will be very difficult to properly assess the quantum of the compensation to which he would be entitled for losses which he can expect to suffer between now and trial.
I am, however, left in a state of doubt as to whether Mr McDermott does lack a ready source of supply of the fuel he requires for his new venture. He plainly will not be able to get fuel from BP unless BP is compelled by court order to supply his requirements. And he cannot get it from Shell, Mobil or from Ampol, other than on terms which will effectively prevent him conducting his business.
But BP contends that the applicant is, in fact, presently obtaining supplies of petroleum product for resale from Fletcher Challenge. The applicant deals with this contention by saying "I do not have a contract with Fletcher Challenge"; he has also put into evidence a facsimile he sent to Fletcher Challenge on 12 December 1996 requesting supply of approximately 125M to 150M litres of petroleum products annually and he recounts a conversation with the Fletcher Challenge manager who quoted him a possible supply price which he was asked to keep confidential. He says "the price suggested was one at which I would not be competitive and could not carry on business profitably". He also refers to the Fletcher Challenge manager expressing concerns about whether it would be able or prepared to supply the volume sought by the applicant in the short term. The applicant then exhibits the Fletcher Challenge standard form Deed of Confidentiality. To a degree inconsistently with what Mr McDermott says was the manager's response to Mr McDermott's interest in acquiring this large quantity of product, the Fletcher Challenge manager sent this Deed to Mr McDermott by facsimile the day following their conversation: it recites that Fletcher Challenge "and the Contractor are considering entering into a petroleum products supply agreement with [Fletcher Challenge] supplying Contractor with petroleum products from the petroleum terminal in Brisbane ... and the Parties have entered into this Deed to ensure that Confidential Information disclosed by one Party to the other during the Parties' negotiations concerning the Supply Agreement remains Confidential Information". It is surprising, where a mass of evidence has been filed on Mr McDermott's behalf in support of his case and in contradiction of each of the many issues raised against him by BP that, on this important matter, there is only Mr McDermott's own say-so that he cannot obtain his requirements from Fletcher Challenge.
My scepticism at what Mr McDermott here says is increased by what his own industry expert, Mr McCullagh says in his affidavit of 17 December 1996:
"Fletcher Challenge Fuels Pty Limited has the capacity to supply the Applicants' requirements for both motor spirit and distillate ..."
Mr McCullagh's opinion would seem to be entitled to considerable weight: he appears to have detailed knowledge of Mr McDermott's plans and he not only acted for Fletcher Challenge in connection with its acquisition of its Brisbane terminal, but also says: "I represent Fletcher Challenge ... in the development of their wholesale marketing business from this location." There is also evidence from BP's distribution manager for South East Queensland of a conversation with Mr Anderson, Mr McDermott's associate, reported to BP by a potential customer of Mr McDermott's, in which Mr Anderson told this person on 28 November 1996 that he, as a representative of the second applicant, would be able to arrange fuel supplies from Fletcher Challenge "on and from 9 December 1996, and that Mr Anderson would be able to give an indication of price after that date". Mr Anderson neither disputes nor explains what it is claimed he had to say.
I regard the way Mr McDermott deals with the issue of whether he can obtain the supplies he needs from Fletcher Challenge as leaving it open that it may be a practical option for him to obtain those supplies from that source and so be able to get into the large-scale distribution business he plans between now and trial. I do not regard his bare assertion that the undisclosed price he says the Fletcher Challenge manager suggested was at a level at which he "would not be competitive and could not carry on business profitably" as showing that that is, in truth, likely to be the position: he may mean only that Fletcher Challenge's price is not as attractive as that to which he is trying to hold BP under the 18 June contract. In the absence of an unequivocal denial by Mr McDermott that he can obtain his requirements from Fletcher Challenge, I do not, in these circumstances, consider that BP has any evidential onus to take this issue any further, eg, by seeking evidence, either voluntarily or under compulsory process, from Fletcher Challenge, than it has done. I also rely, in reaching this conclusion, on the evidence, to which I will later refer, that suggests that Mr McDermott was prepared to be a party to deliberately misleading BP in order to procure the contract on which he relies: this does not, in my opinion, justify evaluating what Mr McDermott has to say about Fletcher Challenge with any predisposition to draw inferences favourable to him, when he does not state unequivocally that Fletcher Challenge is not a practicable source of supply for him and when he does not adduce some evidence from Fletcher Challenge supportive of his position, but chooses instead to leave this question the subject of equivocal evidence by him which conflicts with that of Mr McCullagh.
It may not be appropriate to impose on Mr McDermott a persuasive onus of establishing, as a fact, that he cannot rely on Fletcher Challenge for his fuel requirements. But by leaving the evidence in this state, on an issue which I regard as of central significance to the proper order to be made on the present application, the applicant has failed to persuade me that there is such a risk that he will suffer irreparable harm, something fundamental to his entitlement to relief. See American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 at 408; Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 and cf Spry, Equitable Remedies, 4th Ed, p 456. Whether he faces such a risk is closely bound up with whether he is effectively reliant on BP for the supplies he needs and cannot source them from Fletcher Challenge: if he can obtain the supplies he wants from Fletcher Challenge, even at prices higher than those in the 18 June contract, he may still be able to embark on his planned venture, develop a business and meet his financial commitments. The assessment of any damages that BP may ultimately be found liable to pay to him would be likely to be a more straightforward exercise than it would if Mr McDermott is, in truth, reliant on BP for the supply he needs to conduct his business so that, without supply from BP, he will not be able to commence any effective trading activities.
If Mr McDermott can show at trial that BP has infringed ss 46 or 47 the Trade Practices Act by refusing supply and if he can also show that the 18 June contract prices are appropriate ones at which to order BP to supply fuel to him, it would probably be of little significance to the determination of whether he should have a mandatory injunction that Fletcher Challenge provides him with an alternative, but less profitable, source of supply: he would probably be entitled to final relief against BP, framed by reference to the contract prices. But the key question for me is: will Mr McDermott suffer irreparable harm in the period between now and trial which would be avoided by the grant of an interlocutory injunction requiring BP to supply him with fuel? If he can get the fuel he requires from Fletcher Challenge, at prices that will enable him to embark on his planned venture, he cannot, in my opinion, show the sort of harm justifying interlocutory intervention.
BP also contended that Mr McDermott may be able to obtain the fuel he needs from Ampol. BP has retained private inquiry agents who conducted surveillance of Mr McDermott's operations; it relies on this evidence as a foundation for an inference that Mr McDermott may already be obtaining the fuel he needs from Ampol. Mr McDermott denies BP's allegation and offers explanations for the observations made by these private detectives. It might be thought, if there is any substance in BP's contention, that a telephone call by it to Ampol or, if the latter proved recalcitrant, a subpoena requiring Ampol to produce the relevant documents to this Court, would have provided a simple means of unequivocal proof of the point, if there were anything in it. I therefore disregard what BP has to say on this topic.
Another question of importance to whether Mr McDermott should have the relief he now seeks is whether it would be justifiable to use the prices BP quoted in the contract of 18 June as those at which BP should be ordered to supply fuel to Mr McDermott on an interlocutory basis. I should say why I think an affirmative answer to this question would be appropriate.
BP contends that it should not be held to the contract of 18 June because it was fraudulently induced to enter into it: BP refers to the assertion by Mr Sheehan that he was acting for a syndicate of farmers, when he was acting instead for Mr McDermott, a person engaged not in farming but in the fuel distribution industry as one of BP's own branded service station operators; BP also refers to Mr Sheehan's failure to disclose that it was intended that the fuel would not be used by the purchaser but resold to others and to his failure to disclose that Mr McDermott intended to call on BP to supply very much greater volumes of product than the 1.5M litres per annum which Mr Sheehan mentioned in those negotiations. BP also relies on Mr Sheehan's communications to BP after procuring the contract and Mr McDermott's failure to disclose just what he had in mind until after the action was commenced. It was suggested by senior counsel for Mr McDermott that it is not at all clear that BP's complaint of fraud is well-founded: counsel pointed to evidence that it was only after Mr McDermott procured the contract that he began to consider the prospect of using it as a means of establishing a large-scale fuel distribution business that would compete with the major oil companies' own wholesale distributors; counsel also referred to what he described as objective evidence, including registration of the second applicant (the company through which Mr McDermott plans to carry on this business) and Mr McDermott's entering into tanker leases only after the contract was made.
But it seems quite plain that the contract was entered into in circumstances in which BP was entitled to assume that only about 1.5M litres of product a year would be required for use by the purchaser, and not for resale, whereas Mr McDermott is now asserting a right to delivery under that contract of a very much greater quantity of product, in excess of 100 times that amount, which he intends to resell. The contract, in terms, does not place any limit on the quantities of fuel which BP is bound to supply under it. Nor does it impose any restraint on the resale of the fuel supplied. But the price schedule incorporated in the contract records that the various prices for the different classes of fuel are in respect of an estimated annual consumption totalling 1.5M litres. The contract was entered into in circumstances in which Mr Sheehan, on his own evidence, said that Mr Fouvy of BP, with whom he negotiated it, asked what volume of fuel would be required, to which Mr Sheehan replied: "The syndicate will guarantee to buy a minimum quantity of 1.5M litres of fuel per year." Mr Sheehan confirmed their telephone discussions by facsimile of 6 June in this way:
"... I wish to confirm that agreement was reached during our telephone conversation as regards the Syndicate's purchase of fuels from your company on the following basis:
1. Price ...
...
4. The above prices are fixed [subject to escalation on an agreed basis]
5. Quantity: Minimum 1.5 million litres per year subject to increases due to seasonal demands
6. Term of Agreement: Initial term of 3 years commencing mid-July, 1996 with option for Syndicate to extend for a further term of 3 years ..."
Mr Sheehan does not suggest that he gave any indication to Mr Fouvy when negotiating the contract that very much more fuel than the 1.5M litres mentioned might be required.
As a result of Mr Sheehan's actions immediately after the contract was concluded, BP, by 27 June 1996, began to suspect that the fuel was not required by a group of farmers for use on their properties, but might be required for resale; in correspondence that followed, Mr Sheehan, on 19 July 1996, advised Mr Fouvy that his "instructions are that the fuel is for the syndicate members own use", something which, in his facsimile to BP of 2 September 1996, he said remained the position. In that facsimile he described these instructions, recorded in his 19 July advice to BP, as "my client's pre-contractual representation as to the use of the fuel". Mr Sheehan appears to have been in no doubt in September 1996 that he had conveyed to BP, prior to the making of the contract, that the fuel would not be resold.
On Mr Sheehan's own evidence, BP can say, with some force, that it contracted in the belief, generated by Mr Sheehan, that the total quantity of fuel to be supplied would be of the order of 1.5M litres, that the only anticipated increases to that figure would be due to seasonal demands and that it was required for the purchaser's own use, not for resale. In his evidence, Mr McDermott says he plans to take of the order of 125M litres in the first year, rising to something of the order of 175M litres within two years. This is about 80 to 115 times the figure mentioned to BP when the contract was negotiated. His proffered undertakings are to place orders, at the prices provided for in the contract, of 3M to 6M litres of diesel and 1M to 3M litres of petrol per month up to 31 March 1997 and thereafter, until 31 July 1997, 4M to 8M litres of diesel per month and 2M to 4M litres of petrol per month, all reviewable after 31 July 1997 upon two months' written notice of any alteration to the quantities. Mr McDermott thus wants to use a contract, which takes the form of a standing offer by BP to supply fuel at certain prices and which was made by BP in the expectation, generated by Mr Sheehan, that of the order of 1.5M litres per year would be called for, as the measure of the price which it would be appropriate, on an interlocutory basis, to order BP to supply enormously greater volumes of fuel.
I am not in a position to make any finding on BP's contention of fraud, although it is one with some substance. One possibility opened by the evidence is that Mr McDermott may have decided to go into business as a large-scale fuel wholesaler prior to negotiating the contract with BP, believed that it was unlikely that any of the four major oil companies would deal with him on that basis and considered that he needed to obtain a firm promise from one of them to supply a substantial quantity of fuel at prices which would be advantageous to him, before he would have a sufficient foundation for seeking to enforce on that company an obligation to supply him with the very large quantities of fuel he wants for resale. Mr McDermott says he instructed Mr Sheehan not to reveal his involvement when negotiating the contract with BP because he did not trust BP and Mr Sheehan had also approached Shell in May 1996 without disclosing Mr McDermott's role; Mr McDermott's interest, as he puts it, in "breaking down the walls" of the fuel distribution system, long antedated his procuring the contract with BP.
But it must be doubtful, on Mr Sheehan's own evidence and even in the absence of common law fraud, whether BP will be held to supply, on the contract terms, under the radically changed conditions that Mr McDermott has in mind. Cf The Laws of Contract, Greig and Davis, pp 937-938. The practical consequence of BP being able to show it entered into the contract of 18 June under a unilateral mistake as to the quantities of fuel required by Mr McDermott is likely to be that it will have an entitlement to rescind, even if it cannot make out a right to cancel the contract because of the allegedly fraudulent conduct for which Mr McDermott is responsible: it is plain, from the evidence and from the minimum quantities of fuel referred to in Mr McDermott's proffered undertaking, that he is not interested in obtaining fuel from BP limited in amount to approximately 1.5M litres per annum. It is only the vastly larger quantities of fuel that will serve his purpose. As the dictum in Thomas Bates & Son Ltd v Wyndham's (Lingerie) Ltd [1980] EWCA Civ 3; [1981] 1 All ER 1077 at 1086, cited with approval by the High Court in Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 431, shows, it would not be necessary for BP, to obtain an order for rescission of the contract of 18 June, on the basis of its unilateral mistake, to show that it suffered detriment as a result of entering into the contract under the mistaken belief that it would be required to supply fuel of the order of only 1.5M litres per annum: it would be enough for BP to show that Mr McDermott was aware of its mistake and that it was a mistake calculated to benefit him, as is the position.
But despite BP's prospects of being able to set the contract aside, it should, in theory at least, be of little moment, so far as Mr McDermott's reliance on the Trade Practices Act is concerned, that the contract of 18 June may turn out to have been fraudulently procured by him or otherwise unenforceable against BP. That the contract is binding on BP is not something which Mr McDermott must prove to make out the causes of action based on BP's alleged infringement of ss 46 and 47 of the Act. The contract is of relevance to his Trade Practices Act case, assuming Mr McDermott can show an entitlement to relief on that basis, only in so far as it is said to provide a means of enabling the Court to fix the prices at which it would be justifiable to require BP to supply the fuel in question to him. In evaluating whether Mr McDermott is entitled to relief under s 80 of the Trade Practices Act, no question arises as to the Court being asked to enforce a contract procured by fraud; nor is the lack of clean hands alleged against Mr McDermott a discretionary ground for refusing relief under the Trade Practices Act. See Equity, Doctrines & Remedies, Meagher Gummow & Lehane, para 327; The Principles of Equity, Parkinson, para 2934, and World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181, where it was pointed out that proceedings under the Trade Practices Act have a special character in that the Act deals with the protection of the public interest and that it is in the course of protecting that public interest that the Act also enables a party to seek relief from injury to his own interests; it is the existence of the public interest in such proceedings that justifies the statements, at pp 186 and 187, that special considerations with respect to the grant of interlocutory injunctions arise under the Trade Practices Act and that "the Court will not necessarily apply all the principles which a Court of Equity would apply in a suit where only individual interests of private litigants were in issue".
But accepting all this, Mr McDermott is insistent upon interlocutory relief that will give him the supply he wants at the 18 June contract prices: he has not contended for an order requiring BP to supply him with the fuel he wants until trial, at prices fixed on some alternative basis. Because of the circumstances in which Mr McDermott's agent procured those prices and to which I have referred, there are good reasons for thinking that a court would need little persuasion that BP should not be required to supply, at those same prices, a very much greater quantity of fuel than ever it contemplated. It is not self-evident that prices at which BP was prepared to sell fuel totalling about 0.1% of its total annual Brisbane refinery production are prices at which it would be agreeable to selling fuel totalling about 10% of its entire production or that they are prices at which it is fair or reasonable or appropriate to order BP, over its objections, to supply such a quantity of fuel. In my opinion, limited evidence from BP would be sufficient, in the context of this interlocutory hearing, to show that the 18 June contract prices are not a fair guide to the prices at which BP should be ordered to supply the fuel Mr McDermott wants, even if he is otherwise able to show an entitlement to interlocutory relief. Such a conclusion would be sufficient, given the case presented by Mr McDermott, to justify a refusal of relief.
However, BP's argument as to the inappropriateness of using the June contract prices as a guide to the prices it should be ordered to supply Mr McDermott if the interlocutory injunction was granted was confined to reliance on the proposition that the contract was induced by fraud and should not, for that reason, be enforced against BP. BP did not attempt to show that the contract prices could not fairly or properly be relied on by the Court if it were otherwise prepared to grant the injunction sought in framing the terms on which BP should be ordered to supply Mr McDermott on an interlocutory basis. Mr Clarke listed the reasons why BP was "unwilling to deal with Mr McDermott and his partner Mr Anderson under the terms of the Supply Agreement which was entered into on 18 June 1996 now that Mr McDermott has revealed that he wishes and always desired (contrary to the representations made by his solicitor) to be a distributor of BP's fuel". There is, in this list, no suggestion that, while BP was willing to supply of the order of 1.5M litres at the contract prices, it would impose an unfair burden on BP to require it to supply the very much greater quantities of fuel Mr McDermott requires at those same prices. Mr Clarke's evidence is to the contrary: I have already referred to what he says to the effect that, if BP were required to supply Mr McDermott with the large quantities of fuel he wants at the June contract prices, the consequence for BP would be that it would have to cut the prices it currently charges to its own Darling Downs distributors, without there being any suggestion that this would result in BP having to sell at unacceptably low margins, let alone below cost of production. I have also referred to what Mr Taylor says about BP in effect selling direct to large commercial end users at prices below the June contract prices and below the prices at which BP sells to its own distributors.
BP appears deliberately to have refrained from exposing its actual costs of producing petrol and diesel fuel. Mr Clarke says: "The difference between the cost at which diesel and petrol is produced for BP Oil Marketing and the maximum price under which the ACCC permits these fuels to be sold is approximately 7.1 cents. It is within this margin that BP must sell these fuels in order to make any profit." This is the only place in his long affidavit where he refers to any particular company within the BP organisation: throughout he speaks only of "BP". Mr White says:
"It is necessary to explain that BP's business (as well as that of the other oil companies to my knowledge) is divided notionally into production (manufacturing and supply) and sales (marketing). The refinery side of the business, with which I am principally concerned, is regarded notionally as a separate business which produces a range of products which are `sold' to the marketing arm of BP."
He gives no details, however, of the actual costs to BP's refinery arm of producing petrol and diesel or of the refinery arm's sale prices to the marketing arm, which may well be the organisation that Mr Clarke refers to as "BP Oil Marketing".
Throughout BP's evidence, there are references to the prospect of BP being exposed to additional costs if ordered to supply Mr McDermott with the quantity he requires. But the evidence in this regard is always at a very general level only. I would expect that if any costs that BP is likely to incur in meeting Mr McDermott's demands are such as to make fulfilment of those demands at the contract prices unjust or inappropriate, BP would have identified such detrimental cost impacts on it with a little precision. In any event, BP is protected against any additional costs it might incur, by reason of the interlocutory injunction sought, by Mr McDermott's secured undertaking as to damages, the worth of which BP does not challenge.
In these circumstances, if Mr McDermott were otherwise able to establish an entitlement to the interlocutory relief he seeks, I would accept the contract prices as providing an appropriate guide to the prices at which the Court should order BP to supply Mr McDermott's requirements even though they are vastly greater than those which BP contemplated when it quoted those prices.
BP contends that, if the injunction now sought is granted, it may suffer harm not fairly compensable in damages if Mr McDermott fails to obtain final relief, even though it does not challenge the worth of Mr McDermott's secured undertaking as to damages.
Mr McDermott is seeking a mandatory interlocutory injunction that will require BP to enter into an entirely new business relationship with him. What he seeks to achieve cannot fairly be described as merely requiring BP to honour its obligations under the contract of 18 June, but rather is he requiring BP to deal with him on an entirely different basis from that on which it contracted to deal with him. In Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, Gummow J said, at 503: "it has long been the case that interlocutory mandatory injunctions would be more likely to issue where the defendant was compelled, not to embark upon a fresh course of conduct, but ... to revert to a course of conduct pursued before the occurrence of the acts or omissions that provoked the litigation". There is a difference of judicial opinion as to whether an applicant for such an injunction must, in addition to satisfying the usual requirements, put the Court in the position of feeling a high degree of assurance that the decision to grant the mandatory injunction will be vindicated at the trial. In Business World Computers, Gummow J rejected this approach, citing with approval the analysis of Hoffman J in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772, in which his Honour said that, it is where the grant of the mandatory interlocutory injunction sought in the circumstances of the particular case can be shown to carry a high risk of injustice, should it turn out at trial that the injunction was wrongly granted, that there is justification for the Court requiring further assurance that the applicant will be able to establish his right at trial than would otherwise be required. Where a defendant is compelled by a mandatory interlocutory order to enter into a new relationship with the applicant, the disruption and expense it will suffer and which will be unjustified if the applicant fails at trial is, as a general rule, likely to be greater than in a case where a defendant is, by interlocutory order, compelled to resume an ongoing relationship or activity which he has interrupted, thereby provoking the litigation.
I respectfully agree with Spender J, who said, in O'Keeffe Nominees Pty Ltd v BP Australia Ltd (1990) ATPR 41-057 at 51,741, that Gummow J's is the better view. It is, as I understand her Honour's reasons, the approach Kiefel J took in Racecourse Totalisators Pty Ltd v The Totalisator Administration Board of Queensland [1995] FCA 1405; (1995) ATPR 41-426 at 40,804-40,805. It is the approach which is consistent with the long practice of the Court to which Gummow J referred.
But notwithstanding that it would bring BP and Mr McDermott into a new commercial relationship, if Mr McDermott had been able to deal effectively with the question whether he could obtain the supplies he wants from Fletcher Challenge, I would have been prepared to grant the relief he seeks.
BP deals with whether it would be within its capacity to meet Mr McDermott's requirements for very large quantities of fuel, having regard both to its capacity to produce or access those quantities and to the practicalities of it being able to supply those quantities while carrying on its general business.
Mr White, BP's Commercial Planning Manager, says that there are a number of "conceivable ways" in which BP could meet the large demand foreshadowed by Mr McDermott. He describes how this could be done by increasing the production of petrol and diesel from BP's Brisbane refinery. Mr White, however, says that this would involve altering the mix of products produced by the refinery from "an optimum state to a non optimum state": the mix of products produced is designed to yield to BP the maximum economic return so that, as I understand the implication in Mr White's evidence, if BP were to produce more petrol, that would be at the expense of other products and overall returns to BP would be reduced. As I understand Mr White's evidence, I am invited to infer from it that increasing production of petrol to meet Mr McDermott's requirements would reduce, by an unspecified amount, the overall profits of the refinery, a fall in profits which BP could not recoup from Mr McDermott if BP were held to the 18 June contract prices. Mr White does expressly say, however, that BP could produce more petrol and diesel, presumably in sufficient quantities to meet Mr McDermott's needs, by purchasing a different combination and quality of crude oil and feed stocks from that currently used, "but at a considerable cost". He does not give any further details. Mr McCullagh, in reviewing his evidence, accepts that refinery production could be increased and the production product slate varied to produce additional petrol and diesel "at some additional cost". That BP would suffer a cost detriment is a factor to be taken into account, but it is, I think, met by Mr McDermott's secured undertaking as to damages, especially since BP has not attempted to provide any indication of the likely or possible amounts of losses or costs in question.
Mr White also says that BP could produce the additional quantities of petrol and diesel required by Mr McDermott, as a large customer not planned for by BP in organising refinery production, by "repudiating" its Refinery Exchange Agreements with the other oil companies. The inference, I gather, is that BP would be able to meet Mr McDermott's demands with fuel produced at its Brisbane refinery that would otherwise have been supplied to the other oil companies under these Agreements. I do not understand him to be speaking so much about repudiating the current Agreements, which operate only for six months or so, as repudiating BP's involvement in the system of periodic Refinery Agreements which has characterised the industry for decades. I would not be prepared to make an interlocutory order requiring BP to supply Mr McDermott's needs from its Brisbane refinery, which might put it in the position of disrupting such a longstanding Australia- wide practice if it appeared likely that this was the only practical way in which BP could comply with such an order: it may be that this practice produces substantial public benefits or it may be that it is detrimental to the public interest. At the moment, I am not in a position to form any judgment on the point and it would be therefore wrong to make an order which could only be complied with by BP embarking on such a course of action. But this is only one of what Mr White refers to as a number of options for meeting Mr McDermott's demands.
Mr White also speaks of the possibility of meeting Mr McDermott's needs by freighting the necessary fuel products into Brisbane from BP's Perth refinery. Although Mr White gives detailed evidence about the costs of shipping fuel between various Australian ports in the course of explaining the importance of the Refinery Exchange Agreements, BP has made no attempt to identify the costs additional to those allowed for in the 18 June contract prices which would be incurred in meeting Mr McDermott's demands by adopting this option. Mr White also raises the spectre of problems in finding the shipping necessary to transport such fuel. But given Mr White's identification of this as a possible option, albeit at additional cost, and given that shipping problems are only referred to in the most general way in a case in which BP has not hesitated to adduce a mass of evidence on the host of other issues it has raised, I would not be prepared to dismiss this as a possible practical means by which BP could comply with the interlocutory order Mr McDermott seeks, in view of Mr McDermott's undertaking as to damages.
Mr White also suggests that BP might be able to obtain the necessary diesel fuel by negotiating additional supply under the Refinery Exchange Agreement from the other Brisbane refiner, Ampol, or by buying the necessary petrol and diesel from another supplier in Brisbane, eg, Ampol. He says he does not know whether these options could be implemented or what the prices would be that BP would have to pay for such supplies. Counsel for Mr McDermott submitted, in effect, that this evidence is unconvincing, especially since BP has not made any approach to Ampol. Mr McCullagh makes the general comment that "it is not unusual for product demand on the refiner to be reallocated between users or sourced from another supply source". BP and the other major oil companies have, for many years, also been parties to borrowing agreements under which each can obtain from another at a particular location in Australia fuel additional to its previously identified requirements there, on the basis that the borrower will replace those borrowings within an agreed period, either there or at some other location, and pay a borrowing fee. That BP has refrained from making inquires of Ampol to ascertain whether these are practical options if BP were ordered to supply Mr McDermott's needs when, in many other respects of less relevance to the case, BP has left no stone unturned in the evidence it has gathered and produced, suggests that these may turn out to be perfectly practical ways for BP to comply with any order made in Mr McDermott's favour. Again, BP makes no attempt to give any indication of the magnitude of any additional costs to BP of adopting this option, an exposure against which BP would have the protection of the undertaking as to damages.
Finally, Mr White suggests, as an option worthy of consideration, that BP could meet what he describes as "such an unexpected demand" as Mr McDermott's by importing the fuel from overseas. No doubt costs additional to those which BP would recoup from Mr McDermott's payments at the contract prices would be incurred. But no attempt is made to indicate the kind of costs involved. Mr White concludes in this way:
"67. I can say with confidence that BP would be unable to supply fuel of that amount to Mr McDermott [ie, fuel totalling 125M litres in his first year of operations] within the next six months without substantial disruption and expense for the reasons stated above.
68. Any one of the seven options mentioned would impose great burdens upon BP for the reasons referred to earlier. There are too many variables and uncertainties involved for BP to assess accurately the likely costs involved in each option. I can say that, if any option proved to be practicable, it would entail very significant financial cost to BP.
69. After six months, when BP was negotiating its next exchange patterns, we could include the Applicants' anticipated volumes in our calculations. Commercially, BP would only do so if it had reasonable assurance that the applicants' offtake would actually be at the level indicated by them and if the price paid by the Applicants sufficiently remunerated BP, including remuneration for the disruption and change to our supply patterns in ports other than Brisbane."
The impression I have from Mr White's considered evidence is that, while there may be a lead time before BP could make the necessary arrangements to meet Mr McDermott's demands, it is practicable for BP to do that, although at costs additional to those allowed for in the 18 June contract prices. However, I have difficulty in accepting that, even though it cannot accurately assess these costs, BP cannot give some quantitative indication of what the additional costs of the various options to which Mr White refers are likely to be.
Mr McDermott has offered an undertaking that identifies, with some precision, the quantities of fuel which he will purchase in the period ending 30 July 1997. He has also offered a substantial, secured undertaking as to damages, which offers increasing protection to BP as the aggregate amount of product supplied to Mr McDermott increases, the worth of which is not challenged. The 18 June contract prices, so far as the evidence goes, are comparable to those at which BP supplies its own wholesale distributors in South East Queensland and there is an absence of any evidence enabling an assessment to be made of the kind of costs to which BP would be exposed additional to those recoverable from Mr McDermott if he is supplied on an interlocutory basis with product at the 18 June contract prices. I therefore would not regard BP as having shown such a likelihood of being unable to meet Mr McDermott's requirements or a likelihood of being able to meet them, but only at such extra cost, as would make it unjust to grant the injunction sought, even though it might be appropriate to postpone its operation for a time to allow BP to make the necessary arrangements to supply Mr McDermott.
BP has raised many other objections, in the course of the litigation, to supplying Mr McDermott with fuel products on grounds that focus on its concern to maintain its commercial reputation, including its reputation for the quality of BP products, eg, BP relies on evidence as to Mr McDermott's plan to make use of Mr Anderson's allegedly sub- standard fuel depot at Allora, evidence as to Mr Anderson's alleged activities as a blender of fuels (he is said to be involved in the practice of adulterating fuel products with cheaper oil products such as kerosene) and evidence to the effect that Mr McDermott himself has been selling adulterated fuel from his BP branded service station. Evidence in reply from Mr McDermott suggests that, in many respects, BP's concerns may be overstated. The areas of factual dispute here are such that it is not possible to form any firm view on where the truth lies.
Against this background of factual conflict, the undertakings offered by Mr McDermott on his own behalf and on behalf of his company which will carry on the business assume importance: he is prepared to back the usual undertaking as to damages, which he will have to give if he is to get the interlocutory relief he seeks, with a series of unconditional bank bonds, each in the sum of $100,000. He also offers undertakings designed to meet BP's concerns about quality control and the reputation of its products and the risks of blending. In addition to an express undertaking not to blend BP product with any other product, Mr McDermott is prepared to permit an independent registered tester nominated by BP access to Mr McDermott's service station premises at times of BP's choosing for the purpose of sampling for testing the fuels stored there; he also offers undertakings not to store any fuel supplied by BP at the Allora depot, to take delivery of all such fuel at places acceptable to BP and (save for retaining the right to sell direct to the public from his service station) to transport such fuel direct to the purchaser.
If Mr McDermott were able to show a real risk of serious harm if the injunction he seeks is denied, I would not regard the matters raised by BP, either individually or in combination with the others, as sufficient to tilt the balance of convenience its way.
The application for the interlocutory injunction is refused.
Mr McDermott's application for release from his undertaking to the Supreme Court was not the subject of any submissions. Whether it should be granted seems to me to be dependent on his succeeding in obtaining interlocutory injunctive relief: it was no part of the case presented to me that, if the injunction is refused, Mr McDermott would still be interested in obtaining fuel in the very limited quantities contemplated by the contract. His case was that he was entitled to an order which would compel BP to sell him, at the contract prices, the very large quantities of fuel he undertakes to order, free of any restriction on his right to resell it. Since I am not prepared to grant the injunction sought, I will therefore refuse this application also.
I certify that this and the preceding 35
pages are a true copy of the reasons
for judgment herein of the Honourable
Justice Drummond.
Associate:
Date: 7 February 1997
Counsel for the applicants: Mr S L Doyle QC and Mr G H Brandis
Solicitor for the applicants: Phillips Fox
Counsel for the respondent: Mr W Sofronoff QC and Mr G C Newton
Solicitor for the respondent: Deacons Graham & James
Dates of hearing: 23 and 24 January 1997
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