Case: McGee v Sanders (No 2) [1991] FCA 554 ; (1991) 32 FCR 397
Outcome: referred to
parties did not dispute the nature of the test to be applied on an application, under s 164(4), for interim orders. In McGee v Sanders (No 2) [1991] FCA 554 ; (1991) 32 FCR 397 , at 402-403, Gray J discussed the test to be applied, saying: In opening the application for interim orders, counsel for the applicants indicated that she would endeavour to show that there existed a serious issue to be tried as to the applicants' entitlement to relief, and that the balance of convenience favoured the applicants. I am by no means convinced that these tests, which have been applied by courts in dealing with applications for interlocutory injunctions, are appropriate to the specific statutory power under s 209(4) of the Act. It should be noted that the power to make interim orders is given in broad terms. The court may make "such interim orders as it considers appropriate". Parliament has not chosen to use the word "injunction". The practice in granting or refusing interim orders differs from the practice in relation to interlocutory injunctions in at least one important respect. It is rare for an applicant for interim orders to be called upon to give an undertaking that he or she will pay damages in the event of failure. In my view, it is the duty of the court to do justice as best it can when confronted by an application for interim orders. Sometimes, the evidence proffered by an applicant will be uncontested and will demonstrate a strong case. In such circumstances, a court will naturally be more ready to make orders on an interim basis. Recently, in Conquo v Jackson [2009] FCA 45 , at [16], Sundberg J approached an application for interim orders, having regard to this passage and also the test for a conventional interlocutory injunction. I appreciate that the grant of the interim orders sought was tantamount to the grant of final relief. In Conquo v Jackson [2009] FCA 45 , Sundberg J considered whether or not it was necessary to establish a stronger than usual case in such circumstances and held that it was not. His Honour said, at [30]-[33]: On the balance of convenience the respondent contended that because what is sought by the applicant is in effect final relief, the applicant had to establish a stronger than usual case. In Bradto Pty Ltd v State of Victoria [2006] VSCA 89 ; (2006) 15 VR 65 the Court of Appeal rejected a submission that because part of an interlocutory injunction required positive action, it was mandatory and not prohibitory, so that it should not have been granted unless there was a high degree of assurance that at trial it would appear that the injunction was rightly granted. Maxwell P and Charles JA said at [33]: In our view, it is desirable that a single test be applied in all cases where an interlocutory injunction is sought. There is nothing in the body of authority to which we have referred, nor any consideration of principle, which requires a special test to be applied to one subcategory of such injunction applications, namely, those where mandatory relief is sought. On the contrary, as pointed out convincingly by Hoffman J in Films Rover , the grant of a mandatory injunction may be justified in a particular case notwithstanding that the court does not feel the requisite 'high degree of assurance'. The correct approach, according to their Honours, whether the relief sought is prohibitory or mandatory, is to take whatever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong', in the sense of granting an injunction to a party who fails to establish his right at trial, or in failing to grant an injunction to a party who succeeds at trial: at [35]. The Court of Appeal also rejected a contention that where an interlocutory injunction is tantamount to awarding final relief, it should be granted only if the court feels a high degree of assurance that at trial it will appear that the interlocutory injunction was rightly granted. The Court said at [39]: Once again, we see no necessity for the recognition of a special 'rule' for this different subcategory of interlocutory injunctions. On the contrary, we think that it must be relevant on every application for an interlocutory injunction to consider the likelihood of the plaintiff succeeding at trial. Not only is such consideration a necessary part of deciding whether there is a serious question to be tried, but the plaintiff's prospects of success will almost certainly be a factor in the evaluation of the balance of convenience. In view of the observations of Gray J in McGee v Sanders (No 2) , recorded at [15], the two 'special' rules rejected by the Court of Appeal in Bradto are even less appropriate in relation to interim orders under s 164 than they are in the conventional interlocutory injunction context. It is to be remembered that an order under s 164 is defined so as to include 'directions for the performance' of any rules of an organisation by a person who is under an obligation to perform them. This will often be a mandatory order that results in the giving of final relief. An interim order under s 164(4) can plainly be an order of the same type as that granted at trial under subs (1). Accordingly I adopt the approach in Bradto in the passages quoted at [30] and [31] of considering the likelihood of the applicant succeeding at trial rather than concentrating on the fact that the second order sought is of a mandatory character and may itself amount to final relief.