Injunctive Relief
37 The ACCC relies on s 80 of the TP Act as the source of power to grant injunctive relief in the present case. The section has been described as "essentially a public interest provision", a proposition said to be exemplified by the sort of conduct in relation to which the Court may exercise its powers and the fact that s 80(1) grants the ACCC or "any other person" right to apply for an injunction: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 ("ICI v TPC"), at 255 per Lockhart J (with whom French J agreed).
38 As Gummow J pointed out in ICI v TPC, at 266-267, there are distinctions between the remedy provided for in s 80 of the TP Act and the traditional injunction granted by courts of equity in aid of legal or statutory rights. The differences include the broadening of locus standi by s 80(1); the categories of conduct which may be enjoined by an injunction granted under s 80; the authority granted to the Court by s 80(3) to rescind or vary not only an interim injunction, but a final injunction; the removal by s 80(6) of the usual requirement for an undertaking as to damages where the ACCC or the Minister is an applicant for an interlocutory injunction; and the terms of s 80(4) and (5), which permit the Court to grant prohibitory and mandatory injunctions, whether or not there is any threat of a further infraction of the law or any imminent danger of substantial damage by the respondent's act or omission.
39 As to the last of these, Lockhart J in ICI v TPC observed (at 256) that s 80(4) and (5) are designed to ensure that once the condition precedent to the exercise of the discretion to grant injunctive relief has been satisfied, the Court should be
"given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly".
Nonetheless, his Honour considered that the likelihood of future contraventions by the respondent is a factor relevant to the exercise of the statutory discretion. Gummow J also thought that the matters referred to in s 80(4) and (5) are relevant to the exercise of the Court's discretion. However, his Honour perhaps went a little further, expressing agreement (at 266) with the view of J D Heydon, Trade Practices Law, par 18.740, 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…fundamentally distinct from the equitable remedy'".
40 Mr McClintock submitted that the Court has power under s 80 of the TP Act to grant an injunction requiring a person to do or refrain from doing something outside Australia. He supported that contention by reference to the well established proposition that, apart from a few exceptional cases such as those relating to title to foreign land:
"a court of equity will not consider itself to be debarred from interceding, if it is otherwise appropriate to do so, merely because it appears that the property to which the claims of the plaintiff relate is situate abroad or that the acts he seeks to have performed or enjoined, as the case may be, will, if they take place at all, take place outside the jurisdiction":
I C F Spry, The Principles of Equitable Remedies (6th ed, 2001), at 36. As was said by Brooking J in National Australia Bank Ltd v Dessau [1988] VR 521, at 522, the
"jurisdiction is grounded not on any pretension to the exercise of judicial power abroad but on the circumstance that the defendant, being amenable to the Court's jurisdiction, can be personally directed to act or not to act".
See, too, Helicopter Utilities Pty Ltd v Australian National Airlines Commission (1961) 80 WN (NSW) 48, at 51, per Jacobs J.
41 The issue, however, is not the scope of the jurisdiction of a court of equity acting in personam, but the extent of the power conferred on the Court by s 80 of the TP Act. The language of s 80(1) is broad: once the Court is satisfied that one of the preconditions has been met, it "may grant an injunction in such terms as the Court determines to be appropriate". There is nothing in this language that imposes an implied territorial limitation on the power of the Court. On the contrary, not only is the language of s 80(1) broad enough to permit the Court to prohibit or mandate acts abroad, but there is good reason to interpret it in this way.
42 Section 6(2) of the TP Act extends the application of Part V (and other provisions) to conduct in trade or commerce between Australia and places outside Australia. In enacting this provision, Parliament has relied on the trade and commerce power conferred by s 51(i) of the Constitution. The extended application of the TP Act has the effect that a person outside Australia (but subject to the jurisdiction of the Court under provisions such as FCR, O 8 r 2) might well contravene provisions of the Act and thereby enliven the power conferred on the Court by s 80(1). In these circumstances, in my opinion, s 80 should be read as contemplating that an injunction may be granted prohibiting or requiring the performance of acts outside Australia. I should add that the Court may have a similar power pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), but it is not necessary to pursue that possibility in the present case: cf Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576, at 589 [42]-[44], per Goldberg J.
43 Of course, the fact that the respondent is outside Australia and, for that reason, any order might be difficult or impossible to enforce, may be a relevant consideration in determining whether a Court should grant injunctive relief. In this respect, courts of equity have expressed divergent views: see NAB v Dessau, at 523, per Brooking J; Spry, supra, at 41-42. Some courts have taken the robust approach that
"[i]t is not the habit of this Court in considering whether or not it will make an order to contemplate the possibility that it will not be obeyed."
In re Liddell's Settlement Trusts [1936] Ch 365, at 374, per Romer LJ, cited with approval by Lord Scarman (with whom Lords Wilberforce, Diplock, Keith and Bridge agreed) in Castanho v Brown & Root (UK) Ltd [1981] AC 557, at 574. Other authorities suggest that a court should not put itself in the position of making an order that it cannot enforce: Hope v Hope (1854) 4 De G M & G 328, at 347-348; 43 ER 534, at 542, per Cranworth LC; Locabail International Finance Ltd v Agroexport [1986] 1 WLR 657, at 665, per Mustill LJ (a case in which a mandatory interlocutory injunction was sought).
44 I think that Dr Spry is correct to suggest (at 42) that the preferable position, as a matter of principle, is that
"the precise probability that the particular order in question will be obeyed has more or less weight according to the other circumstances and is taken by the court into account in exercising its discretion, together with such other matters as the degree of injury or inconvenience that will be suffered by the plaintiff if he does not obtain relief."
45 It seems to me that this approach is also appropriate in determining whether or not to grant an injunction pursuant to s 80 of the TP Act. The fact that an order is likely to prove difficult or even impossible to enforce is not necessarily a bar to the grant of relief, although it is a material consideration to be weighed against other circumstances relevant to the exercise of the Court's discretion.