Case: Australian Broadcasting Corporation v O'Neill (20060 227 CLR
Outcome: applied
principles which inform whether or not to grant interlocutory injunctive relief are not in doubt. They are as stated by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 571 at 81-82, [65]: The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: "The first is whether the plaintiff had made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks." [footnotes omitted]. The remaining Respondents do not contest, for the present purposes, that ACMA has demonstrated a prima facie case in the sense described in Australian Broadcasting Corporation v O'Neill (2006) 224 CLR 571 in respect of the allegations I have summarised above. They submit though that the interlocutory relief sought by ACMA goes beyond that which is reasonably necessary in the circumstances pending trial. More particularly they submit: (a) ACMA offers no undertaking as to damages. They acknowledge it is not required to do so insofar as it applies for injunctive relief under the Spam Act s 33. They note it has no similar protection insofar as it relies on s 80 of the Trade Practices Act . Even insofar as ACMA cannot be required to give an undertaking, they submit it is still a relevant consideration that such protection is absent; (b) ACMA has substantially delayed in seeking relief. The substantial delay was before the commencement of proceedings in late 2008. It is apparent from ACMA's affidavit material that it has been investigating and has been in possession of much of the information on which it relies for some time. This suggests, they submit that things are not a drastic as it now seeks to make out; (c) The interlocutory injunctive relief sought by ACMA is in essentially the same form as the final injunctive relief which it seeks. In many respects, its effect will be final. No attempt has been made to confine the relief given its interlocutory nature. As a result, they submit some of the interlocutory relief sought is not appropriate; (d) The Court will be astute to ensure that orders are not made which have the potential to constrain conduct which is not the subject of complaint in the Statement of Claim. Several of the orders sought, they submit, have that potential, particularly so as to prohibit businesses which might lawful be conducted. I turn now to a consideration of these particular submissions by the remaining Respondents. Subsection 80(6) of the TPA is in similar terms to and perhaps provided the inspiration for s 33(2) of the Spam Act (set out above). However, those who enjoy the benefit of s 80(6) are the Minister administering the TPA and the Australian Competition and Consumer Commission (ACCC). This case illustrates that the ACCC is not the only Commonwealth public authority whose functions can embrace the seeking of interim injunctive relief under the TPA in the public interest. That omission might well be though a law reform matter by the Parliament. Be this as it may, ACMA submits that, having regarding to its functions and the purpose of the proceedings, the Court would not regard its failure to offer the usual undertaking as to damages as fatal to so much of its claim for interlocutory injunctive relief as depends upon the TPA. There is no doubt that in suits brought by private litigants the offering of the usual undertaking as to damages is normally expected by the Court before interlocutory injunctive relief is granted. The present form of the usual undertaking as to damages is to be found in Practice Note Number 3 issued by the Chief Justice on 14 June 1999.