Case: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509
Outcome: discussed
In the alternative, because of perceived difficulties with its application to extend time, G &amp; J Gears sought leave to apply for an interlocutory injunction restraining Brobo from continuing with its winding up proceeding until the trial and determination of proceeding 1033. The evidence that it relied on in support of this application was the same evidence that it relied on in support of its application to set aside the statutory demand and, in particular, the Davis affidavit. G &amp; J Gears contended that this affidavit constituted evidence of a deliberate attempt by Brobo, through its director, Milton, to interfere with the exclusive distributorship agreement between G &amp; J Gears and Rockcrusher-USA; to take control of G &amp; J Gears' intellectual property; and to put G &amp; J Gears out of business and take G &amp; J Gears' business for itself. This in turn showed, so counsel contended, that the statutory demand was an abuse of process of the kind discussed in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 (" Spautz ") at 526-7. Counsel also relied on the fact that Milton had separated from Brobo, taking that part of Brobo's business that was relevant to these proceedings, and had established another company under the name "Rock Solid", being an adaptation of the logo used in G &amp; J Gears' business. Counsel submitted that the authorities showed that an application for an injunction might be made in proceedings separate from winding up proceedings to restrain a winding up on the basis of a statutory demand that was bad in form or otherwise contestable although incapable of being set aside. Counsel further contended that the evidence raised a serious question to be tried and the balance of convenience favoured the grant of this interlocutory injunctive relief. 40 Finally, as already noted, G &amp; J Gears sought an interlocutory injunction to restrain Rock Solid and Milton from using, without its authority, any of its intellectual property. In making this application, the company relied particularly on a 6 February 2006 affidavit of Shirley, as well as on the 24 February 2006 affidavit of Milton. Counsel submitted that the evidence taken as a whole supported the proposition that there was a serious question to be tried as to the respondents' continuing infringement of G &amp; J Gears' intellectual property rights. According to counsel, the balance of convenience favoured the grant of an injunction because "the respondent is depriving effectively the applicant of the income from these products". Whilst counsel conceded that there was no evidence as to the financial position of any of the respondents, he submitted that it could reasonable be assumed that Rock Solid "has very little by the way of assets in the sense that it is a recently established company". He added that, if the Court were not minded to grant injunctive relief of the kind sought, G &amp; J Gears sought an order that "there be a proper accounting by the second and third respondents of such sales and the proceeds of such sales". 41 Brobo contended that the Court had no power to extend the time for compliance with the statutory demand because the time for compliance had expired. G &amp; J Gears was, so it said, deemed to be insolvent because it failed to comply with the demand within the time required, as extended by the registrar. The appeal from the registrar's decision was, so it submitted, nugatory. 63 First, Brobo's counsel submitted in reply that, whilst a court may have inherent jurisdiction or, in this court, implied incidental power to protect its own process against an abuse, this jurisdiction did not extend to protecting the process of another court. This may state the relevant proposition of law too broadly, although, for present purposes, I accept that the implied incidental power of this court to protect misuse of its process does not extend to protecting the process of the State's Supreme Court. That is a matter for the Supreme Court. See, generally, Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279, where French J referred to this court's "implied incidental power to control its own process and to prevent misuse of it"; also Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214 at 219-220 per French J; Burton v President, &amp;c., of the Shire of Bairnsdale [1908] HCA 57 ; (1908) 7 CLR 76 at 94-95 per Isaacs J; Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 392-4; and Spautz at 519-520.