Case: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Outcome: followed
At [70] to [72] (pp 83 and 84), their Honours went on to explain the similarities and differences between the test expounded in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; 118 CLR 618 and the test articulated in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 as follows: 70 When Beecham and American Cyanamid are read with an understanding of the issues for determination and an appreciation of the similarity in outcome, much of the assumed disparity in principle between them loses its force. There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham , depends upon the considerations emphasised in Beecham . 71 However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried" [1975] UKHL 1 ; [[1975] AC 396 at 407]. That was followed by a proposition which appears to reverse matters of onus [1975] UKHL 1 ; [[1975] AC 396 at 408]: So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. (Emphasis added.) 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. 72 The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application [See the judgment of McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-536 and the article by Sofronoff, " Interlocutory Injunctions Having Final Effect ", Australian Law Journal, vol 61 (1987) 341.95]. The first consideration mentioned in Beecham , the nature of the rights asserted by the plaintiff, redirects attention to the present appeal. 27 Furthermore, there are some kinds of case where, for the purpose of assessing where the balance of convenience and the balance of justice lie, it is desirable that the Court: "... evaluate the strength of the plaintiff's case for final relief" (Per McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536A-D) 28 In Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, McLelland J observed that one such class of case is where the decision to grant or refuse the interlocutory injunction which is claimed will in a practical sense determine the substance of the matter in issue on a final basis. Another example is where the applicant for relief is seeking to restrain a public authority or officer from performing his statutory duty. 29 The substance of the matter in issue between the ACCC and Allphones in the present case is whether Allphones should be restrained from conducting itself or from threatening to conduct itself in a particular fashion in relation to the allocation of stock being conduct which is said to be intended to bully certain franchisees into complying with Allphones' wishes and demands for the purposes of and during the negotiations and mediation spawned by the Franchising Code Notice of Dispute which it served in August 2008. Those negotiations and that mediation have commenced but have not yet concluded. They are likely to conclude before the Court can determine the ACCC's claims for final relief in the proceedings. 30 In those circumstances, I think that the case is the kind of case which falls within the principle explained by McLelland J in Kolback 8 NSWLR 533. Accordingly, I will apply that principle. 31 As I understand that principle, I am required to have a closer look at the applicant's case than I might otherwise be required to do when considering and determining an application for interlocutory injunction in order to come to a view as to whether the applicant's case for final relief is sufficiently strong to justify the granting of the interlocutory relief sought. 116 Senior Counsel for Allphones submitted that his client was the victim of a series of " verbals ". As I understood that submission, it was contended on behalf of Allphones that the entire or a substantial part of the case which the ACCC was putting depended upon evidence of conversations given by disgruntled franchisees, which was, for the most part, denied by Allphones and which could not be properly tested in an interlocutory hearing. The submission was then refined somewhat in order to invoke the principle explained by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 to which I have referred in [28] to [31] above. 117 As I have already indicated, I propose to apply what McLelland J said in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533. 118 However, I do not think that a correct application of that principle requires me to discount heavily or ignore the evidence given by the deponents of the affidavits which were read by the ACCC at the hearing of the present application. 119 The conversations to which the witnesses deposed took place in a context. To a large extent, that context was governed by the events which had occurred during the course of 2008 to which I have referred above and by the contents of the Baker email. Whilst the conversations have been denied for the most part, they are not of such a character as to lead me to conclude that the ACCC's case for final relief is a weak one.