Case: CPSU, The Community and Public Sector Union v Commonwealth of Australia (2006) 157 IR 470
Outcome: referred to
The discretion under s 80(2) to grant an interim injunction is conferred in wide terms. In this regard it is analogous to the discretion vested in the Court by s 838 of the Workplace Relations Act 1996 (Cth). It is therefore appropriate to note the following observations of the Full Court in CPSU, The Community and Public Sector Union v Commonwealth of Australia (2006) 157 IR 470, 473 at [14]-[18]: '14 The Court's discretion under s 838 of the WR Act to grant an interim injunction is conferred in wide terms. Nonetheless, the discretion must be exercised judicially; that is, ' not arbitrarily, capriciously or so as to frustrate the legislative intent' ( Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 per Gaudron and Gummow JJ at [22]). Additionally, as the discretionary power to grant interlocutory injunctions has a long history, the discretion is to be exercised according to established principles ( Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199 per Gleeson CJ at [10]). 15 It is well established that a proper purpose of an interlocutory injunction is to maintain the status quo until the rights of the parties can be determined at final hearing ( ABC v Lenah Game Meats per Gleeson CJ at [9]-[10]). 16 The principles governing the grant or refusal of interlocutory injunctions have recently been confirmed in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457 (' O'Neil l'). Gleeson CJ and Crennan J at [19] observed: "... in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) [1968] HCA 1 ; 118 CLR 618] should be folIowed.' (footnotes omitted)" 17 In O'Neill Gummow and Hayne JJ at [65] stated: '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 has 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; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. ... 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) 18 At [70] Gummow and Hayne JJ make clear that they (like Gleeson CJ and Crennan J) have no objection to the use of the phrase 'serious question' if it is understood as conveying the notion that the seriousness of the question depends on the considerations emphasised in Beecham Group Limited v Bristol Laboratories Pty Ltd. At [71] their Honours emphasise that the governing consideration is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.' 26 Mr Simpson has sworn an affidavit in which he explains the conduct of Socasen in respect of its rollover obligations under the Agreement in the following way: 'The reason why [Socasen] has been behind in its rollovers with [Caltex] is that on completing the rollovers debts crystallise for the payment of royalties. Having regard to [Caltex's] conduct to [Socasen] and [Socasen's] financial position as to a result thereof and Caltex's ability to withdraw monies from [Socasen's] bank account, I was reluctant to bring the rollover up to date as that would have provided a trigger for Caltex to take away any surplus from [Socasen's] cash flow.' 27 It is conceded by Caltex that there is a serious question to be tried as to Socasen's entitlement to an award of damages by reason of the pleaded problems with the On Q system and, possibly, by reason of underpayment of REM entitlements. 28 No such concession is made concerning any claim by Socasen for relief in respect of the termination notice. I use the expression 'any claim' because Socasen has not amended the claims for relief in its application following the service of the termination notice. I consider it appropriate to proceed on the basis that at trial Socasen will probably seek an injunction under s 80 of the TPA restraining Caltex from placing reliance on the notice of termination or, alternatively, an order under s 87(1) of the TPA effectively reinstating the Agreement (s 87(2)(b) and (ba)).