Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457
Outcome: applied
and FGUP submit that the proposed orders are not in the nature of substantive interlocutory relief on the cross-claim (such as rectification of the Register); the orders are procedural rather than substantive. In these circumstances, there is no cause for any rigid application of the principles relating to the grant of interlocutory injunctions discussed in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457 at [19] , [65] [72] and Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. In particular, there is no need for FKP and FGUP to demonstrate a prima facie case or a serious question to be tried on the cross-claim as a condition of the grant of the relief set out in the draft short minutes of order. Proposed orders 1 and 2 do no more than facilitate the recordal by the Registrar of particulars of claims which are in fact made by FKP and FGUP, and which, for the reasons given above, will have a direct bearing on the fate of the Existing and Further Applications. According to Spirits, it is essential, when considering any application for interlocutory injunctive relief, to examine the nature of the rights asserted, the probability of ultimate success in enforcing them and the practical consequences that would flow from the grant of the interlocutory relief: : Australian Broadcasting Corp v O'Neill at [71] [72]. Spirits rhetorically asks: What is the right asserted here? Presumably it is not a right to force Spirits, at the end of a final hearing on the application of Part 11 of the Act, to submit involuntarily to the recordal of the alleged 'interest'. Nor is it a right asserted in the present proceedings, as the Existing Applications and the Further Applications are not the subject-matter of the cross-claim and FKP and FGUP presently claim no relief with respect to those applications. In truth, FKP and FGUP do not identify perhaps unsurprisingly, given that they are of the view (wrongly in Spirits' submission) that their present application is merely for 'case management purposes' this essential first ingredient of an application for mandatory interlocutory relief. Given their terms, the orders sought here by FKP and FGUP cannot be regarded as being purely procedural in nature or justified simply by principles of case management. Accordingly, Spirits submits that the ordinary principles relevant to the grant of interlocutory relief must apply to the grant of relief presently sought by FKP and FGUP. These principles are well-settled. To succeed in their application, FKP and FGUP bear the onus of establishing to the satisfaction of the Court that: (a) The applicant for relief has a prima facie case in relation to its application for final relief; and (b) the balance of convenience lies in favour of granting the interlocutory relief that is sought; and (c) damages would not be an adequate remedy. See Australian Broadcasting Corp v O'Neill . Spirits submits that it is now well-established that an applicant for interlocutory relief must, as a threshold issue, prove that it has a 'prima facie case' for final relief. The test is sometimes expressed as, in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held to be entitled to the final relief claimed. Australian Broadcasting Corp v O'Neill , restoring (if restoration were needed) Beecham Group v Bristol Laboratories Pty Ltd .