Case: ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248
Outcome: considered
39(3) is in the same terms as s 80(4) of the Trade Practices Act 1974 (Cth). In ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 Lockhart J (with whom French J agreed) said at 256-7: Subsections (4) and (5) of s 80 are novel because they empower the court to grant injunctive relief notwithstanding that the defendant has not previously engaged in the prohibited conduct or does not intend to engage in it again or to continue to engage in it or there is no imminent danger of substantial damage. Yet these are the traditional requirements for equitable injunctive relief. . . . In my opinion subss (4) and (5) are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pts IV or V of the Act), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly. . . . This does not mean that the traditional equitable doctrines are irrelevant. For example, it must be relevant to consider questions of repetition of conduct or whether it has ever occurred before or whether imminent substantial damage is likely: but the absence of any one or more of these elements is not fatal to the grant of an injunction under s 80. That is the effect of subss (4) and (5) (subs (4) in relation to the prevention of conduct and subs (5) in relation to a mandatory injunction). Their presence is not an indication of a new statutory house, rather an old house with some modern extensions. Gummow J at 267 came to essentially the same conclusion. Section 49 BCII Act Section 49(1)(c) and (3) of the BCII Act empower the Court to grant injunctions (including interim injunctions) in relation to a person who has contravened a civil penalty provision. Subsection 49(6) defines an eligible person to make an application under s 49(1) and (3) to include the ABCC. Thus, s 49(1) and s 49(3)(a) empower this Court on the present application, to make an interim injunction in relation to a person who has contravened s 38. This Court may grant injunctive relief under s 39 and its power to do so may, under s 39(3)(a), be exercised whether or not it appears that the respondents intend to engage again in the relevant conduct. The question of repetition is nonetheless of relevance to the exercise of the discretion, but the relevance is set in the particular context of public interest injunctions, as distinct from those related to private proprietary interests: ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 at 256/7 per Lockhart J; 267 per Gummow J; 268 per French J. The Court is inclined to grant an injunction in cases of statutory injunctions in the public interest where there has been unlawful conduct, in order to add contempt to the disincentives for repetition: per French J at 268 where his Honour said: There is room ... for an injunction that is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence. That deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court. In this case, a prima facie case has been established of contraventions which have already occurred twice over a combined period of 4 days. Danger of damage "to any person" On each of the days that industrial action occurred, the evidence is that the following persons suffered damage or were exposed to damage: (a) 5, 6 and 8 June 2009 - Diploma, Commercial Tiling Services Pty Ltd, Action Interiors Pty Ltd, Firesafe Systems Pty Ltd, Planet Plumbing (WA) Pty Ltd, Triple M Mechanical Services WA Pty Ltd, Micos Curtain Wall Australia Pty Ltd, D &amp; Z Constructions, Ward Post Tensioning Pty Ltd, and Betta Bricklaying (WA) Pty Ltd. (b) 24 June 2009 - Diploma, Micos Curtain Wall Australia Pty Ltd, D &amp; Z Construction, Ward Post Tensioning Pty Ltd, and Betta Bricklaying Pty Ltd. (c) 25 June 2009 - Diploma, Traditional Scaffolders Pty Ltd, Micos Curtain Wall Australia Pty Ltd, D &amp; Z Construction, Ward Post Tensioning Pty Ltd, and Betta Bricklaying (WA) Pty Ltd. There may well have been others including suppliers to the project such as concrete batchers and truck deliverers who may have suffered or been exposed to damage. In any event this application for an interlocutory injunction does not engage the adequacy of damages test set out in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 at 408. That test applies where the injunction is to restrain interference with a legal right of the plaintiff. The ABCC's application is made in the public interest of improving the building and construction industry under a statutory capacity to so apply. It is not in respect of any interference with any legal right of the ABCC. The legislature plainly conferred on the ABCC powers to obtain interlocutory injunctions, damages and penalties as instruments for effecting that improvement: ICI Operations [1992] FCA 474 ; 38 FCR 248 per French J at [268]. No prejudice to the respondents