Case: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150
Outcome: referred to
the Court's power to accept an undertaking is subject to the same limitations that apply to its power to grant an injunction. In other words, the Court cannot accept an undertaking in terms which go beyond the Court's power to grant an injunction in similar terms. This proposition is well-established: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 per Gibbs CJ, Stephen, Mason and Wilson JJ at 164-165 (' Thomson '). An undertaking to the Court is given in lieu of an injunction and the remedies for breach of an undertaking are the same as those for breach of an injunction. In Thomson , Gibbs CJ, Stephen, Mason and Wilson JJ said (at 165): an undertaking is given in lieu of an injunction and is enforceable in like manner, the principles which govern the grant of an injunction by a court must guide it in deciding whether it should accept an undertaking. Limitations which affect the court's jurisdiction or power to grant a final injunction must be observed in the acceptance of an undertaking when it is offered as a substitute for a final injunction.' In a case such as this one where the contravening conduct is neither admitted nor proved, the Court's power to grant an injunction is contained in s 80(1AA). The relevant provisions of s 80, including that subsection, are as follows: Subject to subsections (1A), (1AAA) and (1B), where, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute: a contravention of any of the following provisions: a provision of Part IV, IVA, IVB, V or VC; section 75AU or 75AYA; attempting to contravene such a provision; aiding, abetting, counselling or procuring a person to contravene such a provision; inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or conspiring with others to contravene such a provision; Court may grant an injunction in such terms as the Court determines to be appropriate. ... Where an application for an injunction under subsection (1) has been made, whether before or after the commencement of this subsection, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1). ... The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised: whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; whether or not the person has previously engaged in conduct of that kind; and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind. ... The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised: whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; whether or not the person has previously refused or failed to do that act or thing; and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.' Secondly, the Court's power to grant an injunction in the case of a contravention of the Act is contained exclusively in s 80 of the Act and no reliance can be placed on s 23 of the Federal Court of Australia Act 1976 (Cth): Thomson per Gibbs CJ, Stephen, Mason and Wilson JJ at 161-162; Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 ; (2006) 149 FCR 135 (Ryan, Finn and Allsop JJ) at 145 [22] (' Foster' ).