Case: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618
Outcome: cited
Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 , Gleeson CJ and Crennan J said (at 68 [19]): "...in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed." (Citations omitted.) Gummow and Hayne JJ said (at 81 [65]) that the relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. They referred to a passage in the reasons for judgment of Kitto, Taylor, Menzies and Owen JJ in that case and to their Honours' use of the phrase "prima facie case". Gummow and Hayne JJ went on to say (at 82 [65]): "By using the phrase 'prima facie case', their Honours did not mean that the plaintiff must show that it is more probable than not that at the trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: 'How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.'" (Citations omitted.) A little later, after referring to observations by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 , their Honours said (at 84 [71]): "Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought." It is necessary to consider the balance of convenience in relation to the further ground of review. No doubt, the applicant's likelihood of success is relevant to the balance of convenience. However, two important points must not be overlooked. First, leaving aside cases which on their face are obviously strong or obviously weak, it would be dangerous, and probably futile, to attempt too precise an assessment of an applicant's prospects of success. Any assessment is inevitably made on imperfect material and argument. This leads to the second point. It is not appropriate, in effect, to try the proceeding in order to determine an applicant's prospects of success (see Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622-623; World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 186 per Bowen CJ). It was for these reasons, and because I think the balance of convenience clearly favours the refusal of interlocutory relief, that I considered any further answer to the notices to produce was unnecessary in terms of resolving the present applications.