JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION	:	AUTOMASTERS AUSTRALIA PTY LTD -v- BRUNESS PTY LTD & ANOR [1999] WASC 105

CORAM	:	McKECHNIE J

HEARD	:	11 JUNE 1999

DELIVERED	:	26 JULY 1999

FILE NO/S	:	CIV 1298 of 1999

BETWEEN	:	AUTOMASTERS AUSTRALIA PTY LTD (ACN 066  676 239)
Plaintiff
 
AND
 
BRUNESS PTY LTD (ACN 078 687 484)
First Defendant
 
DAVID IAN COOMBES
Second Defendant

Catchwords:
Application to discharge injunction - Turns on own facts
Legislation:
Nil
Result:
Application refused

Representation:
Counsel:
Plaintiff	:	Mr M H Zilko
First Defendant	:	Mr B E S Lauri
Second Defendant	:	Mr B E S Lauri
Solicitors:
Plaintiff	:	Deacons Graham & James
First Defendant	:	David Taylor
Second Defendant	:	David Taylor

Case(s) referred to in judgment(s):

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Case(s) also cited:
Nil

McKECHNIE J:
Introduction
1		On 21 May 1999 I granted the plaintiff a mandatory injunction effectively preventing the defendants from holding out as an Automasters’ franchisee.
2		Clause 7 of the order gave the defendants liberty to apply on 48 hours written notice to dissolve the injunction.  At the making of the order I published my reasons.  On 4 June 1999 Mrs Coombes filed a further affidavit amplifying her earlier evidence.
3		I listed the application for hearing in chambers on 11 June 1999.  Prior to the hearing, the plaintiff filed an affidavit sworn by Ms Monica Lane in opposition to the application to dissolve the injunction denying all the claims made by Mrs Coombes.  Subsequently, two further affidavits have been filed by Mrs Coombes.  Mr Coombes has also filed an affidavit.
4		After I had commenced writing the judgment I was advised that counsel for the defendants wished to seek leave to cross‑examine Ms Lane.
5		Accordingly, I stopped working on the judgment until that matter could be argued.  The argument occurred during the court vacation on 2 July 1999.  I refused leave to cross‑examine and gave short reasons at the time.
Principles to be applied
6		There are differences between the grant of an interlocutory injunction and the dissolution of such an injunction.
7		The application is not a rehearing of the original application with submissions and evidence designed to overcome aspects of the reasons given when the injunction was granted.
8		The general rule is stated in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178:
“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 … Of course the changed circumstances must be established by evidence …”
9		Nevertheless the granting or dissolution of an injunction is, in the end, an exercise in discretion and it would be unwise to fetter that discretion.  In the case of new or fresh evidence a Judge should not apply the more rigorous test applied on the discovery of such evidence after trial.
10		The essential question is whether justice requires the continuation of the injunction in light of the new material.
Mrs Coombes’ affidavit of 4 June 1999
11		Mrs Coombes’ affidavit is sworn in response to my finding that the defendant did not say when invoices had been lodged with Automasters - judgment par 37
12		In her present affidavit she deposes:
“To eliminate any possible ambiguity in my earlier affidavit, I should state that when I commented in annexure ‘DEC - 3’ that various invoices had been completed and the yellow copies thereof had been ‘sent through’ (to the plaintiff’s head office), I meant that those invoices had been completed and forwarded to the plaintiff’s head office prior to the date of purported termination (15 March 1999).  None of the invoices in annexure ‘DEC ‑ 3’ which I have specified as having been completed and forwarded to the plaintiff’s head office were completed and/or forwarded to the plaintiff’s head office after the date of purported termination.”
Mrs Coombes’ affidavit of 25 June 1999
13		This affidavit draws attention to a typographical omission from her earlier affidavit.  She deposes to having located relevant screens for four more invoices and accordingly revises annexure A.
14		She asserts that information is down loaded every day to the plaintiff’s database.  As a consequence the computer screens have been on the plaintiff’s database and available to the plaintiff prior to 15 March 1999.
15		Finally, she deposes that the computer screens were not available to her when she swore the affidavit of 4 June 1999 and only became available when she was shown how to obtain access by a senior computer programmer.  Why she was unable to access the screens earlier was not further explained.
16		The revised schedule is a response to the list of 54 invoices which the plaintiff asserts were the subject of the default and in respect of which Mr Coombes had failed to comply.
17		Her response to the 54 invoices and the reason why there has been compliance or alternatively, there is a reasonable accuse for non‑compliance covers a number of matters.  In summary they are as follows:
	Yellow copy forwarded				16
		Work in progress					  8
	Awaiting costing					  4
		May require additional work			  5
	Invoice cannot be located				12
		Cancelled						  5
	Miscellaneous					  4
									54
18		I will deal briefly with the major categories.
"Yellow copy forwarded"
19		Mr Coombes deposed that on 17 March 1999 he gave Ms Lane yellow copies of invoices rendered the previous week.  Ms Lane says she received invoices on that day.  She marked which copies on an annexure to her affidavit.  Mr Coombes' affidavit does not directly dispute Ms Lane’s statement of fact but asserts that he gave her more copies, ie those brought into existence after termination.  He does not specifically deny handing to her the invoices listed in her annexure on 17 March 1999.
20		Mrs Coombes asserts yellow copies were forwarded on various dates shown in the schedule.
21		In support of the assertion she has annexed what appear to be computer screen printouts which indicate that the invoice was completed prior to the date for the next delivery of the invoices to Automasters.  It was the practice for the courier to call each Wednesday and collect the yellow forms for delivery to Automasters.
22		The fact that this is the normal course of business is relevant and admissible.  On the other hand, Ms Lane has given specific evidence that yellow copies were not received on the dates when they would, in the normal course of business, have been delivered but received on 17 March 1999, two days after termination.
23		With a number of yellow copies, there is a variance between the direct evidence of Ms Lane and what Mrs Coombes says should have occurred in the normal course of business.  The computer screens are silent as to the delivery of the yellow copy.
24		It is necessary for Automasters to receive both the computer entries and the yellow copies to confirm these entries as a check.  At the present limited stage of the proceedings, I prefer the evidence of Ms Lane  - that the yellow copy invoices in respect of 22 of the 54 matters set out in the default notice were not passed to her until after the default period had expired.  I prefer this because it is direct evidence of the fact rather than an inference to be derived from the normal business operations.
"Work in progress"
25		This heading accounts for eight invoices.  The dates are 16 November 1998, 2 January 1999, 18 November 1998, 2 January 1999, 5 January 1999, 22 January 1999, 3 February 1999, 11 February 1999.
26		Having regard to the general nature of the business and the particular requirements of the manual, I am unpersuaded that this is a valid reason for non‑compliance.
"Awaiting costing"
27		There are four invoices awaiting costing on dates 16 November 1998, 14 November 1998, 18 January 1999, 10 February 1999.  My comments at par 40 of the judgment on 21 May 1999 still apply.
"May require additional work"
28		This applies to five invoices, being one on 14 November 1998 and four on 10 February 1999.
29		I have difficulty with the concept that a vehicle may require additional work after three weeks or three months and that therefore, as annexure 8 reveals, the invoice has not been completed.  For present purposes I am unpersuaded that the excuse "may require additional work" is sufficient to excuse compliance with the notice of default.
"Invoice cannot be located"
30		Twelve invoices fall into this category.  This represents 22 per cent which is a significant figure.  Its significance assumes greater prominence when regard is had to the history of non‑compliance prior to the notice of default.
Conclusions
31		While I accept that there were great time constraints on Mrs Coombes at the time of her first affidavit, I have not been entirely satisfied as to why the further information was unavailable at the time.  The information was all apparently in the computer.  The assertions as to delivery have been put in issue by the affidavit of Ms Lane.
32		In all the circumstances, I am not persuaded that the factual matters have altered sufficiently to justify discharging the injunction.
33		As at the last hearing I recommended that the parties apply to have this matter placed in the expedited list so that all the matters in dispute can be fully ventilated.  That will be preferable to the present proceedings which have the hallmarks of trial by affidavit.  The application to dissolve the injunction will be dismissed.