Some authorities
96 The High Court and this Court have, on a number of occasions, considered the nature of injunctive relief pursuant to s 80 of the TPA. It may be of assistance to set out some relevant extracts from the judgments. ACCC frequently claims injunctive relief such as that presently sought. The problems inherent in such relief are regularly identified but, in our experience, rarely resolved. Such resolution should commence with a consideration of the authorities. In Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, the majority (Gaudron, McHugh, Gummow and Callinan JJ) said at [28]-[29]:
28. The term "injunction" is used in numerous statutes to identify a particular species of order, the making of which the law in question provides as part of a new regulatory or other regime, which may be supported by penal provisions. Notable examples in statutes presently in force nationally are found in s 80 of the Trade Practices Act … . These provisions empower courts to give a remedy in many cases where none would have been available in a court of equity in the exercise of its jurisdiction, whether to protect the legal (including statutory) or equitable rights of the plaintiff, the administration of a trust for charitable purposes, or the observance of public law at the suit of the Attorney-General, with or without a relator, or at the suit of a person with a sufficient interest.
29. In these situations the term "injunction" takes its content from the provisions of the particular statute in question … .
97 In Corporation of The City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at [23], the majority (Gleenson CJ, Gummow, Kirby and Hayne JJ) said, concerning a South Australian statute which authorized any person to apply to restrain the breach of a planning act:
That section does not purport to displace or limit the jurisdiction of the Supreme Court, nor does it do so by implication … . However, in administrative law, as elsewhere, the grant of injunctive and declaratory relief is attended by discretionary considerations. As Menzies J put it … "(t)he wide discretion of the Court is an adequate safeguard against abuse of a salutary procedure".
98 In considering the validity of s 80, Gummow J said, in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at [79]-[80]:
79. S 52 thus is an exercise by the Parliament of its powers to create new norms of conduct and require their observance by specified sections of the community. The legislature may also, in exercise of its powers, adapt remedies known at general law or modify them or create new remedies. It may do so not only to prevent or to compensate for injury done by violation of the new federal norm of conduct …, but to enforce or induce compliance with the federal law … .
80. Pt VI [of the TPA] (which contains s 80) and Part XII (which contains s 163A) make provisions which affect the attainment of one or more of those ends. In many cases, the remedy sought under s 80 for a prohibitory injunction would have the character of enforcing present compliance or inducing future compliance with the norm of conduct imposed by s 52, and a declaration would provide consequential relief. In the present case, the mandatory injunction sought would be apt to counter-balance the injury for the public interest allegedly sustained by the publication of the Statement.
99 In Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [89]-[95], Gummow, Hayne and Heydon JJ discussed declarations and injunctions made pursuant to the TPA, Gleeson CJ and Callinan J apparently concurring in such discussion. Their Honours observed that the trial judge had made declarations of contravention by corporations of ss 45 and 46 of the TPA and of knowing involvement in such contraventions by natural person. Although no complaint had been made concerning the orders, their Honours said at [89]-[90]:
89. … The declarations spoke merely of "an arrangement" having a purpose and effect, without giving any content to that expression and without indicating the gist of the findings of the primary judge identifying the arrangement.
90. These declarations provide a bad precedent and were of a kind which the trial judge should not have agreed to make even if urged to do so by the parties. Close attention to the form of proposed declarations, particularly those "by consent" should be paid by primary judges.
100 At [91] their Honours observed that certain injunctions against breaches of ss 45 and 46 "appear to go beyond the Act impermissibly …". Their Honours did not elaborate upon that view. However footnote 98 refers to the decision of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 267. Gummow J there observed:
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 … . 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 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.
The succeeding sub-sections, in particular subss (4) and (5), take subs (1) further by indicating that the power may be exercised whether or not there are present certain circumstances which I have described as ordinarily considered essential by courts of equity exercising their inherent or traditional jurisdiction. But that is not to say that the matters referred to in s 80(4) and (5) are irrelevant to the consideration by the court of the question of whether an injunction is to be granted, and if so, to the determination of the appropriate terms of such an injunction.
101 In Rural Press at [93], their Honours set out orders proposed in the course of the hearing of the appeal. The comment at [95] concerning the "tail-piece to para 3(a)" should be considered in drafting orders of this kind.
102 In the ICI case, Lockhart J also discussed the grant of injunctive relief pursuant to s 80 of the TPA. At 255 et seq, his Honour said:
Section 80 is essentially a public interest provision. Conduct of the kind proscribed by both Pts IV and V may be detrimental to the public interest because many persons can be affected and considerable loss or damage may be sustained by them. The public nature of the injunctive powers conferred upon the court by s 80 is exemplified also by the provision in subs (1) as to the persons who may seek an injunction. This right is conferred upon the Minister, the Commission or "any other person" (subject to one exception in the case of an injunction in respect of s 50 conduct). The traditional rules which enable a person who seeks to restrain the contravention of a statute by obtaining a fiat from the Attorney-General do not apply to s 80 because no proprietary right or interest need be established to confer status upon the applicant to seek the injunction; but the court's powers do not extend to answering hypothetical questions. …
Paragraphs (c) to (f) of s 80(1) now contain provisions rendering a wide class of persons liable to be restrained by the court's injunction who, although not principals, participate in a contravention by a respondent of the provisions of Pt IV or V of the Act … . Parties bound by injunctions and persons who knowingly counsel, procure or induce breaches of injunctions are themselves directly responsible for those breaches and are answerable for contempt … but only principals are proper respondents to a claim for injunctive relief under ordinary equitable principles.
…
The public interest character of s 80 is also exemplified by the provision in s 80(6) that where the Minister or the Commissioner seeks an interim injunction the court shall not require any undertaking as to damages.
Section 80(4) and (5) of the Act were present in the Act upon its enactment in 1974, though not in the same form as they became in 1983 … .
Section 80(4) and (5) are novel because they empower the court to grant injunctive relief notwithstanding that the defendant has not previously engaged in the prohibited conduct or does not intend to engage in it again or to continue to engage in it or there is no imminent danger of substantial damage. Yet these are the traditional requirements for equitable injunctive relief.
These subsections substantially depart from the traditional basis for the grant of injunctions in Chancery. … There is no doubt that subss (4) and (5) depart from the general law in permitting injunctions to be granted in the circumstances therein mentioned; but in my opinion they do not suggest legislative nihilism.
In my opinion subss (4) and (5) are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pts IV or V of the Act), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly.
Notwithstanding the provisions of subss (4) and (5), which permit an injunction to be granted whether or not there appears to be a likelihood of future contravention, the likelihood of future contravention by the defendant is regarded in the judgments of the court as a relevant factor … .
Injunctions are traditionally employed to restrain repetition of conduct. A statutory provision that enables an injunction to be granted to prevent the commission of conduct that has never been done before and is not likely to be done again is a statutory enlargement of traditional equitable principles. But this is because traditional doctrine surrounding the grant of injunctive relief was developed primarily for the protection of private proprietary rights. Public interest injunctions are different. Parts IV and V of the Act involve matters of high public policy. Parts IV and V relate to practices and conduct that legislatures throughout the world in different forms and to different degrees, have decided are contrary to the public interest … . These are legislative enactments of matters vital to the presence of free competition and enterprise and a just society. This does not mean that the traditional equitable doctrines are irrelevant. For example, it must be relevant to consider questions of repetition of conduct or whether it has ever occurred before or whether imminent substantial damage is likely: but the absence of any one or more of these elements is not fatal to the grant of an injunction under s 80. That is the effect of subss (4) and (5) (subs (4) in relation to the prevention of conduct and subs (5) in relation to a mandatory injunction). Their presence is not an indication of a new statutory house, rather an old house with some modern extensions.
103 His Honour then rejected the proposition that pursuant to s 80, once contravention was demonstrated, an injunction should be granted unless the Court, in its discretion, considered that it should be refused. At 258 his Honour observed:
To require, rather than permit, the court to grant an injunction once the prohibited conduct has been proved could deny the court its capacity to formulate the appropriate remedy to suit the needs of the case and could be productive of injustice. The evident intent of s 80 is to place the weapon of an injunction in the discretionary armoury of the court together with the award of damages and wide ranging orders of the kind specified in s 87.
104 As to the form of any injunction, his Honour observed at 259:
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 … .
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" … without giving him adequate guidance.
As Toohey J observed in Maclean v Shell Chemical (Australia) Pty Ltd (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."
…
In [Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563] 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 (1971) 18 FLR 260. On appeal, Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 at 631-632, Barwick CJ 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 … .'
105 Lockhart J concluded at 261:
Nevertheless, in my opinion, the reasoning of Barwick CJ in Mikasa … applies to the Act in its present form, so that in an appropriate case the Court may grant an injunction to restrain the respondent from engaging in the practice of resale price maintenance notwithstanding that only some of the acts which are included in paragraphs of subs (3) of s 96 of the Act are found to have been committed. A case where the respondent has committed earlier serious contraventions of the resale price maintenance provisions of the Act may be an appropriate case where an injunction in this general form may be granted.
…
But the members of the court in Commodore emphasised (at 574-575) that each case must be examined on its own facts to determine the aptness of a particular form of injunction, that care must be taken to ensure that injunctions are carefully drafted, but that they should be not so precisely expressed as to "encourage evasion of the spirit but not the letter" of the injunction.
It is legitimate in some cases to grant an injunction against a respondent preventing him from engaging in conduct in the manner alleged in the statement of claim "or any similar manner" or some expression such as "to the like effect" or an injunction to prevent the respondent from using certain words of its business name "without clearly distinguishing" such business from another business. The desirability of injunctions in these forms depends on the circumstances of the case and the extent to which the judgment has resolved … .
106 His Honour also observed at 262:
… [I]njunctions should in my opinion be self-contained so far as possible; that is to understand their terms it should be necessary to refer to the one document in which the injunction is expressed rather than requiring the respondent to look at both the form of the order and, as in this case, the further amended statement of claim. This is particularly important in the case of a large corporation such as the appellant and the group of companies of which it is a member. It is not only parties who are answerable for contempt of orders of courts. As mentioned earlier, persons who counsel, procure or induce parties to breach injunctions are directly responsible for those breaches. Hence, it is desirable that the terms of the injunctions be readily available to all persons who may be affected by them.
107 Finally, we refer to the decision in BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452, especially [35] et seq. At [36] their Honours observed:
In our view, his Honour should also have considered whether an injunction was appropriate as a matter of discretion. If so, his Honour should have considered carefully the terms of the injunction. By s 80(1) of the Trade Practices Act, the court is given a wide discretion as to the terms of an injunction. Section 80(4)(a) removes the normal rule that an injunction is only to be granted to restrain threatened or impending conduct, in the case of a restraining injunction. Section 80(5) removes the same rule in the case of a mandatory injunction. In such cases, it is clear that the terms of any injunction based only on past conduct should be limited to restraining a repetition of precisely that conduct. The case of an injunction based on an intention to commit further conduct is different. There, the terms can be cast more widely, in order to catch conduct of any kind threatened or intended.
108 We do not fully understand the distinction as to the permissible width of an injunction "based only on past conduct" as opposed to that of an injunction "based on an intention to commit further conduct". In each case, as we understand it, the purpose of the injunction will be to prevent, or at least to reduce the likelihood of, future infringement. Past misconduct will be relevant to the likelihood of future misconduct, to the extent that it demonstrates a "propensity" or "inclination" to infringe the relevant legislation. In many cases past conduct will give an indication of future intention. In the absence of past misconduct, a court may nevertheless infer an intention to offend in the future, such inference being based on other evidence. In many, perhaps most cases, the possibility of future misconduct will be the underlying rationale for injunctive relief. In all cases the width of the relief will reflect the state of the evidence, including reasonable inferences which may be drawn from it. That is not to overlook the power to grant injunctive relief in the absence of any threatened future misconduct. Prevention of future misconduct may be the most common reason for granting injunctive relief, but there may be other reasons. The likely severity of the consequences of an improbable future breach may be an example. However, in all cases, the injunctive relief must relate to the TPA. See ICI at 267 and Rural Press at [91].
109 At [39] in the BMW case the Court observed:
A relevant factor to consider in determining whether to grant an injunction pursuant to s 80 of the Trade Practices Act is whether the existing sanctions for the conduct to be the subject of the injunction, found in the Trade Practices Act itself, require to be supplemented by the availability of the range of sanctions applicable to contempt of court. The purpose of granting an injunction to restrain conduct already prohibited by legislation can only be to add to whatever consequences the legislation attaches to that conduct the additional consequences of a possible finding of contempt of court by failure to comply with an injunction. In each case, it is a question whether the conduct concerned warrants the application of those more stringent consequences.
110 We are inclined to think that in general, a court order requiring a person to conduct themselves in a particular way when a statute requires that conduct in any event, will add little to the statutory prescription or proscription and the statutory sanctions attending non-compliance. We accept that such an order may add the possibility of imprisonment for contempt where the relevant contravention would not otherwise lead to that consequence. However, if Parliament has not provided for imprisonment in connection with a contravention, it may not be appropriate for a court to enjoin such conduct simply in order to create the possibility of imprisonment. While Parliament has provided for an injunction as a possible remedy, it may be doubted that it intended that an injunction would be a remedy granted in the ordinary course in the face of the statutory sanctions Parliament has itself provided. Moreover, a Court has an interest in maintaining the efficacy of injunctive relief which requires that orders be respected. They will only be respected if they consistently serve a useful purpose and if breaches are discovered and punished. It may also be doubted that a court order requiring conduct which a statute otherwise requires will be seen to have some greater or different significance to the statutory requirement.
111 Many contraventions simply will not justify injunctive relief. We doubt whether unintentional misconduct in contravention of s 52 would lead to such relief. An isolated intentional breach may also not warrant it. Conduct which occurred many years before the enforcement proceedings may not do so, especially if the offender has not recently infringed the law, or is no longer in a position where contravention is likely. These are obvious cases, but they raise questions as to the relevant factors in considering whether to grant such relief. The discretion is at large. It is for the relevant applicant to demonstrate that the injunction will serve a purpose. That purpose may involve the protection of the public interest or private rights.
112 Any purpose will only be served if the injunction is expressed in terms which can be understood by those to whom it is directed, others who might also be involved in contraventions, and members of the public to whose notice it may come. An injunction must enforce a legal duty to act or to refrain from acting, or protect a right. For the purposes of s 80 such duty or right must be derived from the TPA. If an injunction is to serve any purpose, it must be enforceable. That requires a degree of clarity in its terms. There must also be a probability that any breach will be detected and result in the imposition of sanctions. Where the complainant and the contravening party are competently represented, the tension between their respective interests will usually lead to precise identification of the conduct to be restrained or compelled. Where the contravening party is not represented, that may not occur and there may be a tendency to extend the injunctive relief. An applicant such as ACCC should resist that tendency. The court must consider carefully the terms of any proposed injunction. Where the case proceeds pursuant to O 35A, similar comments apply.
113 Where an injunction is made in ordinary civil litigation the court normally relies upon the moving party to identify breaches and to move for appropriate remedies. In those cases there is no cause for the court to fear that its orders will be ignored, an event which, if frequently occurring, might undermine the effectiveness of injunctive relief, whether granted pursuant to s 80 or the general law. When ACCC seeks injunctive relief, it should consider how it will enforce it. Intended enforcement methods may be relevant in determining the forms of order to be made.
114 The experience of the law is that unlawful or illegal conduct does not lead to an injunction against repetition of such conduct being sought or granted. A range of other remedies exist in the civil and criminal law which are treated as adequate and appropriate sanctions for such conduct. Normally, it is only where there is a real risk of further misconduct that injunctive relief is contemplated. It is, we think, no answer to this experience to say that subss (4) and (5) provide that absence of any threat of further contravention is no longer a bar to the grant of such relief. An injunction should not be seen as a necessary vindication of the applicant's conduct in bringing the proceedings. Other relief may better serve that purpose. Nor should an injunction be sought primarily for public relations purposes, however worthy such purposes may be.