9 That thought and similar thoughts were applied in this State in the Full Court decision in Barilla v James (1964) 81 WN (Pt 1) (NSW) 457, particularly at 462-3. Walsh J quoted a further passage from Lord Thankerton's judgment that in this sort of matter the court cannot be prevented from looking at the true facts, and no legal technicality can prevent the tenant from calling the attention of the court to those facts so that the policy of the Act will be complied with.
10 It is to be noted that Lord Thankerton speaks not only of estoppel but also res judicata. As to res judicata, it would seem to me that bearing in mind the principles referred to in Spencer Bower Turner and Handley on Res Judicata 3rd ed (Butterworths, London, 1996) particularly paras 38, 39 and 56, one must look at the summons and the evidence in the former proceedings to see what the dismissal determined.
11 The dismissal must have determined the issues that the debt was not a farm debt within the meaning of the Act and/or that the defendant had failed to comply with the provisions of s 8. Query whether both. It seems to me that really one cannot conclusively say it must have been both.
12 Accordingly, even if there had been a res judicata it would not have conclusively dealt with the matter in the defendant's favour.
13 However, as on high authority neither estoppel nor res judicata can prevent the court from looking at the true facts, the matter is not an answer to the plaintiffs' claim in any event.
14 Accordingly, I have to look at the true facts. I have looked at the material in suit 2276/99 only for background and to work out what was the issue before the court. The only evidence in the actual suit is the evidence of Mr Bradley, who says that he is engaged in a farming operation with cattle and that there has been no mediation. I appreciate that the suit was only commenced earlier this afternoon and there has been little opportunity to put on evidence, but that is the only evidence before the court at the moment.
15 Should the court then grant an injunction? I think the answer to this question is "No". This is a Court of Equity and a person who comes before the Court of Equity must come with clean hands.
16 Even putting out of consideration entirely that the plaintiffs may be in contempt of court because of their undertaking to give vacant possession on 10 July, which they just have not done, the quite clear promise on 12 May was that they would not make any further application to the court.
17 Normally people who are in breach of an undertaking to the court and also breach a promise get no relief in this Court at all. That is so, even if what they are seeking to do is to rely on statutory rights that a transaction in breach of public policy ought to be restrained; see Lodge v National Union Investment Co Ltd [1907] 1 Ch 300.
18 Mr Harrison SC says that the agreement embodied in the short minutes is one which offends against s 20 as an agreement by which a person seeks to avoid the operation of the Act.
19 There is no evidence at all to suggest that either of the parties to the agreement intended to avoid the operation of the Act. Mr Harrison SC, however, submits that the word "seeks" covers not only a person who has the intention when he or she makes an agreement, but also a person who entered into an agreement the natural result of which is to avoid the operation of the Act.
20 In the limited time that I have had available I have endeavoured to see whether past courts have construed the word "seeks" in this way, and have found no assistance. The nearest one can get is in Plier v Trumble (1873) 4 AJR 26, the Full Court held in Victoria that there was a very real difference between pursuing game and seeking game. However, it seems to me that bearing in mind the whole purpose of the Act Mr Harrison SC's contention is likely to be correct.
21 The terms of short minutes of order operate both as an order of the court and also as a contract. Insofar as they operate as a contract, it would seem to me that the undertaking not to bring a further application, if the Act gives the right, would be something which would be affected. However, whether that be right or not, the fact that the plaintiffs are in breach of the undertaking to give vacant possession, and the clear intent of them submitting to the order on 12 May, is reason why this Court should not in its discretion give any relief by way of injunction.
22 It should be made one hundred percent clear that the way in which this Court has been able to function over many years is because any orders and undertakings given to it are very strictly policed and that people know if they breach an order or breach an undertaking the serious consequences that that would have. The court will not be involved in granting injunctions to people who are in that position, except in the most extraordinary case. Mr Harrison SC is right when he says there has not as yet been any application to enforce the undertaking, but that makes little difference for present purposes.
23 There was, as I indicated earlier, an application for release from the undertaking and there was some suggestion that the plaintiffs were people of little education who made the promise to the court in the expectation that they would have new finance, but there is nothing in those statements which would warrant the release from the undertakings.
24 The application for a declaration is a different matter. An application for a declaration is not an application for equitable relief and although the court has a discretion as to whether or not it makes a declaration, the court ought not to impose upon a plaintiff any equitable terms in making a declaration; Chapman v Michaelson [1909] 1 Ch 238. Furthermore, coming to Equity with clean hands is not a maxim that affects the common law.
25 If the true facts are that this is a farm debt and there has been no mediation, and if, as I have held, estoppel and res judicata are irrelevant, then the result of tomorrow's auction will be void and the auctioneer and the defendant will be committing conversion of the plaintiffs' properties and the purchaser will get no title.
26 Accordingly, despite the conduct of the plaintiffs, it would seem to me that some declaration should be made in the interests of all.
27 However, the making of a declaration is a matter of discretion and I am extremely loathe to make a declaration in terms of paras 1 and 2 of the summons because that might be very unfair to the defendant. This is because he really has not had a lot of opportunity to put on evidence dealing with the true facts and it may be that, if he had have had that opportunity the court would see clearly that this was a case where for instance there had in fact been mediation.
28 Accordingly, I believe the appropriate thing to do is merely stand the suit over.
29 I have no power to make an interim declaration, but I will note on the papers that the court notes that on the material before it at present the proposed action by the defendant to sell the property at auction tomorrow is void. I will stand the suit over into the Registrar's list.
[Mr Harrison sought order 3 in the summons]
30 I stand the matter over to Friday 30 July before the Registrar at 9.30 am and note that I regard my intervention today as, although technically a final hearing, it is more of an interlocutory nature and there is no problem about the next round of these proceedings being heard by a different judge. I reserve the costs.