Case: Bass v Permanent Trustee Company Ltd [1999] HCA 9 ; (1999) 198 CLR 334
Outcome: cited
There is utility in making a declaration of the kind sought by the ACCC: see Rural Press at 92 [95]. It will record the consequences of the Court's findings in a legally binding way, and will mark the Court's disapproval of the CEPU's conduct. However, it is essential that the terms of the declaration are tied to the proven facts: see Rural Press at 91 [90]; cf Bass v Permanent Trustee Company Ltd [1999] HCA 9 ; (1999) 198 CLR 334; and Electricity Supply Association of Australia v Australian Competition and Consumer Commission [2001] FCA 1296 ; (2001) 113 FCR 230. I propose to vary the terms of the declarations sought by the ACCC to ensure that they accord with and are sufficiently tied to the factual findings I have made. 231 In the present case, the ACCC sought injunctive relief against the CEPU in extremely wide terms. Effectively, the first order seeks to restrain the CEPU from aiding, abetting, counselling, procuring, inducing or attempting to induce, or being knowingly concerned in or party to Edison making a contract, arrangement or understanding with the CEPU where the contract, arrangement or understanding contains a provision that was included for the purposes described in s 45E(3). The second order goes further and seeks to restrain the CEPU from aiding, abetting, etc any person making a contract, arrangement or understanding with the CEPU that contains a provision contravening s 45E(3). The third order seeks to restrain the CEPU from counselling, procuring, inducing or attempting to induce Edison to give effect to a provision of a contract, arrangement or understanding between Edison and the CEPU where the provision was included for a purpose proscribed by s 45E(3). The fourth order is similar to the third except that it seeks to restrain the CEPU from counselling etc any person to give effect to a provision of a contract, arrangement or understanding between that person and the CEPU which contains a provision included for a proscribed purpose. None of the proposed injunctions are confined to the particular contract, arrangement or understanding which gave rise to Edison's contraventions in this case, and none are limited in time. In my opinion, the injunctions are cast far too widely. 232 The first question is whether the Court should exercise its discretion to grant any injunction against the CEPU or its officers in the circumstances which now prevail. The arrangement between Edison and the CEPU came to an end in late November 2003. DJN resumed work at Loy Yang B in early 2004. There is no suggestion in the evidence that the accessorial conduct on the part of the CEPU has recurred, or that it is likely to recur. On the other hand it is relevant to take into account the deliberate nature of the conduct that the CEPU engaged in during August 2001. 233 The terms of the injunctive orders proposed by the ACCC raise questions as to the appropriateness of granting any injunctive relief. In an attempt to keep the injunctions within proper bounds, the ACCC's proposed orders are replete with definitional provisions that attempt to mirror the requirements of s 45E(1), (3) and (7). Despite these extensive definitions, the ACCC's draft orders do not capture the exception which appears in s 45E(8). The extensive definitional clauses that are attached to the draft orders mean that each order takes on a rather abstract appearance that largely restates the requirements of s 45E(1), (3) and (7) of the TPA. Two of the proposed orders refer specifically to a contract, arrangement or understanding between Edison and the CEPU, but even those orders are not aimed at the August 2001 arrangement because that ended long ago. The other two orders are directed to conduct that, inter alia, procures or induces any person to make, or to give effect to, any arrangement between that person and the CEPU where it contains a provision that would satisfy the requirements of s 45E(1), (3) and (7). As a result, these orders very much have the appearance of orders that attempt to restate the general prohibition that appears in s 45E of the TPA. 234 In my opinion, the terms of the injunctive orders proposed by the ACCC are plainly inappropriate. On the authorities, any injunction must have a clear and sufficient connection with the proven conduct that attracts the jurisdiction of the Court. Any injunction must also be capable of being expressed clearly and in a manner which can be understood by those required to comply with it. I would not contemplate an injunction that operates indefinitely. Where an injunctive order is sought in respect of a class of conduct, similar to proven conduct that has come to an end, I consider that it should only operate for a limited period of time. This is a course commonly taken in the authorities. 235 On balance, I am persuaded that this is a case in which it is appropriate to grant an injunction for a limited period, and in quite specific terms, that will operate by way of deterrence and mark the Court's disapproval of the CEPU's conduct. In my view, the injunction must have a close nexus with the proven conduct that attracts the jurisdiction of the Court. I consider that it should operate for a period of three years and no longer.