Case: McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309
Outcome: cited
Tarrant cites in support of the traditional, and more constrained, view that there must be ambiguity in a court order before the reasons for judgment can be considered: McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 312; Repatriation Commission v Nation (1995) 57 FCR 25 at 33; and Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 at 655. He notes, however, that in relation to contracts, there has been a movement away from the requirement that there be ambiguity before extrinsic material can be examined: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451. There has been a similar movement in relation to the interpretation of corporate constitutions: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 at [51] , [100] and [238]. 140 To construe Mr Brett's statements in the manner for which Hamersley contends would also be contrary to the NCC's statutory functions and duties under Pt IIIA. Moreover, his words could scarcely form the basis of any application against the NCC for contempt of court. Injunctive orders must be expressed in unambiguous language so that a person subjected to an injunction is entirely clear what conduct is expected of them: McNair Anderson Associates Pty Ltd v Hinch. 141 More importantly, it needs to be emphasised that if Kenny J had in fact contemplated granting an injunction that extended more widely than the application then before the Court, it is reasonable to assume that the NCC and the other respondents would have sought to dissuade her Honour from doing so. The fact that none of the respondents made any submission to that effect suggests that they did not view Mr Brett's statements as tantamount to an undertaking equivalent to a permanent injunction going beyond the bounds of the declarations actually made. 142 If, contrary to my conclusions set out above, Mr Brett's words are to be understood as an "undertaking", rather than as a statement of deference to the declaratory orders foreshadowed, the question remains, what was the NCC undertaking to do? If, as I have indicated, the declarations made by her Honour concerned a specific service defined in a particular application to the NCC, and resolved a controversy that was to be determined on the then current facts, the "undertaking" was surely intended to operate no more broadly than the declaratory relief. Mr Brett's statement was made in response to the foreshadowed declarations and not just the foreshadowed permanent injunction. His statement was that the NCC "would act accordingly". That means, in context, in accordance with the declarations proposed. It does not mean in accordance with any injunction of the kind her Honour might put forward for consideration. 143 In any event, the terms of the foreshadowed injunction employed the expression "rail track service" in a context where that expression had to be understood as defined in the first of the declarations ultimately made. 144 I accept, of course, that an assurance of the kind given by Mr Brett might, in some circumstances, give rise to an estoppel. In Halsbury's Laws of Australia, the doctrine of estoppel by representation is discussed at [190-240]-[190-270]. The doctrine precludes a party who, by representation, has induced another party to adopt or accept a state of affairs, and consequently to act to that other party's detriment, from asserting a right inconsistent with the state of affairs upon which that other party acted.