Case: Morris v Redland Bricks Ltd [1970] AC 653
Outcome: considered
Water drew attention to authority, a notable exemplar of which is Morris v Redland Bricks Ltd [1970] AC 653 , which counsels the framing of injunctive relief requiring the performance of an act in terms which are sufficiently precise to enable the person to whom the injunction is directed to know what is required of him. Such precision also allows those concerned in his performance readily to ascertain whether the act has been performed as ordered. As Lord Upjohn, with whom the other members of the House agreed, put it in his speech in Morris v Redland Bricks Ltd [1970] AC at 666: If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly what in fact he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions. The relief sought by the Conservation Council in para 2 of the application is cast in more precise terms than the terms of condition 3 of the Ministerial approval. It is enough at present that the relief sought bears a reasonably arguable relationship with that which the statute permits the Court to grant and the circumstances of the case. In my opinion, it does. The claim for this relief is neither frivolous nor vexatious nor an abuse of process either for the purposes of O 20 r 5 of the Federal Court Rules or for the purposes of s 31A(2) of the Federal Court of Australia Act 1976 (Cth). The proposed relief certainly does more than just recite the terms of the statute. It is more precise than that which in the circumstances of ICI Australia Operations Pty Ltd v Trade Practices Commission was regarded as appropriate. Whether it is appropriate to grant relief in terms of para 2 of the application, other terms (and that further or other relief was sought was foreshadowed in oral submissions by the Conservation Council) or at all depends on the proof of a contravention, on the construction of condition 3 and on the evidence led at trial. Given that para 2 does not warrant being summarily struck out, it is not appropriate to consider the issues mentioned in the preceding sentence either in the abstract or as a separate question divorced from the evidence at the trial. Morris v Redland Bricks Ltd and ICI Australia Operations Pty Ltd v Trade Practices Commission are not cases which compel the summary striking out of para 2 of the application. If the Conservation Council proves those preconditions, a judicial discretion is enlivened. Considerations such as those set out in Morris v Redland Bricks Ltd are, in a non-exhaustive way, relevant to the formulation of injunctive relief in the exercise of that discretion. ICI Australia Operations Pty Ltd v Trade Practices Commission establishes that injunctive relief granted under a power akin to s 475 of the EPBC Act must bear a relationship with the case alleged and proved and must be cast in terms which admit of an understanding of what is expected of the party enjoined. It does not follow from this that the Conservation Council is obliged to give particulars of what is a suitable fish transfer device for lungfish. It may, if it chooses, lead evidence touching on that subject as part of its case as to why the existing, installed device is unsuitable. If so, that evidence, together with other evidence led at the trial, may well inform how any injunctive relief ought to be cast.