Case: ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248
Outcome: considered
this regard, the EPBC Act is not unique. It is an analogue of s 80 of the Trade Practices Act 1974 . Observations made by the members of the Full Court in ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 are pertinent. Materially, in that case, the following observations, presently pertinent by analogy, were made in relation to the framing of injunctive relief: Mr Justice Lockhart, French J agreeing, stated, at 259-260: Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction. Contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed: see Trade Practices Commission v Walplan Pty Limited [1985] FCA 389 ; (1985) 7 FCR 495 ; Trade Practices Commission v Glo Juice Pty Limited (1987) 73 ALR 407 at 412-414; and Commodore Business Machines Pty Limited v Trade Practices Commission (1990) 92 ALR 563. Decisions under the Act have applied these principles and the judgments refer to the dangers of orders being cast in broad terms which "train the heavy guns of the law upon the respondent" ( Glo Juice at 418) without giving him adequate guidance. As Toohey J. observed in Maclean v Shell Chemical (Australia) Pty Limited (1984) 2 FCR 593 (at 599): "Any injunction granted should be in such terms that is reasonably capable of being obeyed. ... (The order sought) would create uncertainty and place the respondent in a position where it would not know with any precision what was required of it. It follows that, faced with an application to enforce such an injunction, the court would be in an equally difficult position." See also Trade Practices Commission v Walplan Pty Limited . In Commodore a Full Court of this Court said at 574: "The injunction sought in the application was in the following terms: 'An injunction restraining (Commodore) from engaging in the practice of resale price maintenance in respect of the supply of Amiga computers (as defined in the statement of claim) supplied by ( Commodore ).' An injunction in that form might be suggested by the relief granted by the Commonwealth Industrial Court in Festival Stores v Mikasa (NSW) Pty Ltd [1972] HCA 69 ; (1971) 18 FLR 260. On appeal, reported [1972] HCA 69 ; (1972) 127 CLR 617 at 631-2, Barwick C.J. rejected an attack on the propriety of an order which enjoined a wholesaler 'from engaging in the practice of resale price maintenance in respect of tableware marketed ... under the trade name 'Mikasa'.' Nevertheless, such an injunction as that sought by the Commission in this case would have been open to the objection that it was of an undesirable width because, in respect of the supply of Amiga computers, it did no more than reproduce, but this time with the risk of sanctions for contempt, that which the Act in terms forbade by s 48. Any practice of awarding injunctions in such a form is to be discouraged. Such injunctions conflict with the general precept, applicable to the exercise of power under s 80 of the Act as much as to the framing of injunctions in aid of legal and equitable rights, that a final injunction should bear upon the case alleged and proved against the defendant, and should indicate that conduct which is enjoined or commanded to be performed, so that the defendant knows what is expected of him as a matter of fact. Further, where the injunction is in the form of an interlocutory order, it is undesirable to frame the injunction in such a way as to leave the issues in the case open for determination on a contempt proceeding, rather than at a final hearing: see generally Epitoma Pty Ltd v Australasian Meat Industry Employees Union [1984] FCA 202 ; (1984) 3 FCR 55 at 65-6; 54 ALR 730 (Full Court); Trade Practices Commission v Glo Juice Co Pty Ltd (1987) 73 ALR 407 at 412-16 (Burchett J) and Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 75 ALR 331 at 347 (Pincus J)." The drafting of injunctions is ultimately a practical question. In some cases it presents no difficulties to the draftsman, but in others the exercise is far from easy. Mr Justice Gummow made the following observations (at 266-267): In Mr Heydon's work "Trade Practices Law" para. 18.740, the view is expressed that whilst in concept the statutory remedy provided for in s. 80 of the Act is different from the equitable remedy of injunction as administered in the inherent jurisdiction of courts of equity, nevertheless "in many practical respects it is not, however, fundamentally distinct from the equitable remedy." I agree with that observation. ... Sub-section 80(1) confers upon the Court the power 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). The power of the Court to grant an injunction is controlled by the words "in such terms as the Court determines to be appropriate." Thus, the terms of the injunction will not be "appropriate" if, on its face, it operates upon a range of conduct some of which does, but some of which does not, have the relationship required by s. 80 with contravention of the Act. The injunction should not prohibit conduct falling outside the boundaries drawn by s. 80: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 161. The same limitation applies to mandatory injunctive relief. It is, in my view, no support for the grant of an injunction which, from the outset, has an operation outside the boundaries of s. 80, to say that it is open for the party enjoined to apply under sub-s. 80(3) to vary the injunction so as to bring its operation wholly within proper limits. The party in question should not be placed under any such obligation in the first place. In the course of his expressing agreement with the judgement of Lockhart J, French J observed (at 268) of the power to grant injunctive relief conferred by s 80 of the Trade Practices Act , "The remedy is flexible and may be applied in service of a variety of functions to support the policy of the Act." Attention needs to be given to the language of s 475 when considering both the nature of the power conferred and the remedy which may appropriately be granted pursuant to that power. In context, if a failure to do an act namely, the construction of a dam incorporating an installed fish transfer device suitable for lungfish constitutes an offence or other contravention of the EPBC Act because the dam as constructed does not have installed such a fish transfer device, thereby breaching a condition of the approval for the taking of that act, the Court may grant an injunction requiring the person to do the act, ie to incorporate in the dam a fish transfer device suitable for lungfish. There is no evidence that Burnett Water challenged condition 3 of the Minister's approval on the basis that it was manifestly unreasonable because it required the performance of a task that was impossible or was cast in terms that were so uncertain as to be devoid of sensible meaning. Indeed, had the installation of such a device been impossible, that may, given the objects of the EPBC Act and the protection afforded to the lungfish, have called into question whether the Minister should have approved the construction of the dam at all. The relief sought by the Conservation Council in para 2 of the application is cast in more precise terms than the terms of condition 3 of the Ministerial approval. It is enough at present that the relief sought bears a reasonably arguable relationship with that which the statute permits the Court to grant and the circumstances of the case. In my opinion, it does. The claim for this relief is neither frivolous nor vexatious nor an abuse of process either for the purposes of O 20 r 5 of the Federal Court Rules or for the purposes of s 31A(2) of the Federal Court of Australia Act 1976 (Cth). The proposed relief certainly does more than just recite the terms of the statute. It is more precise than that which in the circumstances of ICI Australia Operations Pty Ltd v Trade Practices Commission was regarded as appropriate. Whether it is appropriate to grant relief in terms of para 2 of the application, other terms (and that further or other relief was sought was foreshadowed in oral submissions by the Conservation Council) or at all depends on the proof of a contravention, on the construction of condition 3 and on the evidence led at trial. Given that para 2 does not warrant being summarily struck out, it is not appropriate to consider the issues mentioned in the preceding sentence either in the abstract or as a separate question divorced from the evidence at the trial. Morris v Redland Bricks Ltd and ICI Australia Operations Pty Ltd v Trade Practices Commission are not cases which compel the summary striking out of para 2 of the application. If the Conservation Council proves those preconditions, a judicial discretion is enlivened. Considerations such as those set out in Morris v Redland Bricks Ltd are, in a non-exhaustive way, relevant to the formulation of injunctive relief in the exercise of that discretion. ICI Australia Operations Pty Ltd v Trade Practices Commission establishes that injunctive relief granted under a power akin to s 475 of the EPBC Act must bear a relationship with the case alleged and proved and must be cast in terms which admit of an understanding of what is expected of the party enjoined. It does not follow from this that the Conservation Council is obliged to give particulars of what is a suitable fish transfer device for lungfish. It may, if it chooses, lead evidence touching on that subject as part of its case as to why the existing, installed device is unsuitable. If so, that evidence, together with other evidence led at the trial, may well inform how any injunctive relief ought to be cast.