Case: ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 248
Outcome: considered
The principles governing the grant of final injunctive relief under s 80 of the TPA, in a case such as this, are not in doubt. Section 80(1) confers a wide power on the Court to grant an injunction where it is satisfied that a person has engaged or is proposing to engage in conduct that constitutes or would constitute conduct of the description in paras (a)-(f). It has been described as a 'widely drawn remedial provision available to restrain conduct which may infringe upon [the] public interest by contraventions of the provisions of the Act in Part IV and Part V': per French J in ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 248 ( 'ICI' ) at 268. The breadth of the Court's discretion is underscored by s 80(4) which permits the Court to grant injunctive relief whether or not the person intends to engage in conduct of the kind restrained, or the person has previously engaged in conduct of that kind, or there is an imminent danger of substantial damage to any person if the conduct is repeated or continued. 228 In ICI, the Full Court at 257-258 and 267-268 rejected a submission that s 80 creates a presumption in favour of a grant of a final injunction where a contravention or proposed contravention of the TPA is made out. Lockhart J said at 256-257 that the public interest character of s 80, and the breadth and flexibility of its statutory provisions, do not mean that traditional equitable doctrines are irrelevant. It remains relevant to consider questions of repetition of conduct, whether it has ever occurred before, or whether imminent substantial damage is likely, although the absence of any one or more of those elements is not fatal to the grant of an injunction. Equally, the public interest character of s 80 means that deterrence is a relevant consideration. French J said that there is room within the statutory framework and its underlying policy for an injunction which is not intended to restrain an apprehended repetition of contravening conduct, but to deter an offender from repeating the offence: ICI at 268. In Trade Practices Commission v Mobil Oil Australia Ltd (1985) 4 FCR 296, Toohey J said that in the case of a particularly flagrant breach and in the absence of any evidence of an intention on the offender's part to continue the conduct, it might nonetheless be appropriate to mark the Court's disapproval by an injunction as well as a monetary penalty: at 300. 229 As to the terms in which a final injunction should be granted, the Court's discretion is as wide as the phrase 'as the Court determines to be appropriate'. On first principles, it is plain that the terms of an injunction should be clear and unambiguous, leaving no room for doubt as to the nature and scope of the future conduct that falls within its boundaries: see, eg, ICI at 259 per Lockhart J. A final injunction should not be granted in terms which simply enjoin the respondent not to breach the Act: see Trade Practices Commission v Walplan Pty Ltd (1985) 7 FCR 495; Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574; ICI per Lockhart J at 259-260; and BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452 ( 'BMW' ) at 465-466 [36]-[39]. 230 The terms of an injunction will not be appropriate if it extends to conduct that does not have an appropriate nexus with the contravening conduct that attracts the operation of s 80: see ICI at 367 per Gummow J. Depending upon the nature of the contravening conduct, it may be legitimate to grant an injunction against a respondent preventing it from engaging in conduct in a similar manner, or to like effect, as the conduct which was the subject of the established contravention: see ICI at 261; and BMW at 465 [36]. The desirability of granting an injunction in this extended form will depend on the circumstances of the case and the existence of a sufficient nexus with the conduct that contravenes the Act.