Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57
Outcome: cited
It can be seen that the content of the mandatory injunction is directed to achieving by an interlocutory order what is sought by para 3 of the claim for final relief. In order to make such an order, the Court would require a high degree of satisfaction that the applicant would be entitled to that relief at trial by way of final relief. In terms of an interlocutory mandatory order where a higher risk of injustice might arise, it is not enough for the Court to be satisfied that the applicant has demonstrated a sufficient likelihood of success in terms of Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] to [72] per Gummow and Hayne JJ. A higher state of assurance is necessary ( Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 92 ALR 499 per Gummow J). 43 For present purposes, I am satisfied by the weight of the applicant's material that had the financial adviser assumed a management responsibility for the margin loan transaction in each case and more particularly a "sole" responsibility for the management of the margin loan account through the period, the documents as between the Bank and Storm and in particular the letter of 18 May 2007 would have said so in clear and transparent terms. Secondly, the documents as between the financial adviser and the client would have reflected that position. Mr Cassimatis says it was not so as a matter of practice. Mr Johnston says it was not so in his experience although his experience concluded in 2003. Mr McCullough also gives evidence consistent with Mr Cassimatis. I am satisfied that solely for interlocutory purposes, Storm has demonstrated a sufficient likelihood of success in terms of Australian Broadcasting Corporation v O'Neill demonstrating that the statement as to sole management of the margin loan accounts and instructions allegedly given in the meeting on 4 December 2008 are capable of being misleading or deceptive or likely to mislead or deceive. Of course, the ultimate position must be tested at trial where the evidence will be closely examined and findings reached on all aspects of the controversy. 44 Storm also relies upon a further letter written by the Bank on 17 December 2008 in which it says that Storm is "completely responsible for your financial position". In that letter, the Bank changed its position slightly from one of asserting sole management of the clients margin loan throughout the period to one where "Storm Financial is primarily responsible for your margin loan and we are disappointed if they have not kept you informed of your account position or any instance of margin call". Storm also complains that the letter goes on to offer defaulting borrowers the opportunity to meet with another financial planner for a one hour consultation to discuss the borrower's financial position. Storm says that it only complains about that as a statement which reinforces the notion that Storm as manager of the margin loan has failed to discharge its responsibilities. 45 The Bank has not offered any undertaking not to make any of the statements complained of.