The Principles upon which a Mandatory Interlocutory Order May Be Made
13 The principles to be applied when considering the grant or refusal of interlocutory injunctions are comparatively well-settled. In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153, Mason ACJ said:
The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.
It is to be borne in mind that "irreparable injury" does not mean injury that cannot be repaired but injury for which damages would not be adequate compensation: McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210 at 215; R v Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518 at 550.
14 But there has been some divergence as to the principles to be applied when considering whether to grant mandatory interlocutory relief.
15 On the one hand, in Australian Airlines Commission v Commonwealth (1986) 17 FCR 445 at 451 to 452 Northrop J made the following observations as to the circumstances in which an interlocutory mandatory injunction would be granted:
The essence of the orders sought by Ansett and TAA are mandatory. The principles to be applied in considering whether an interlocutory mandatory injunction should be granted are discussed by Gibbs CJ in Queensland v Australian Telecommunications Commission (1985) 59 A.LJR 562. The first question to consider is whether there is a serious question to be tried. Where a mandatory injunction is sought, the existence of such a question of itself does not justify the granting of the mandatory injunction. In this respect the Chief Justice said (at 563):
"The first of those considerations is that what is sought is a mandatory injunction. In Redland Bricks Ltd v Morris [1970] AC 652, the House of Lords held that the grant of a mandatory injunction is never made as of course and that a factor to be taken into consideration is that the defendant has not behaved unreasonably but only wrongly. According to Halsbury's Laws of England, (4th ed) vol 24, par 948, the position regarding the grant of a mandatory injunction on an interlocutory application is as follows:
'A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can easily be remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.'
Megarry J stated the principal in Shepherd Homes Ltd v Sandham [1971] 1 Ch 340 at 351, in the following words: '. . . on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction.'
Although, as I have already indicated, there is a serious question to be tried in the present case, I lack 'a high degree of assurance' that the plaintiff will necessarily succeed."
16 But in Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 502, Gummow J cited with approval, inter alia, the following observations of Hoffmann J in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 781:
If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel a 'high degree of assurance' about the plaintiff's chances of establishing his right, there cannot be any rational basis for withholding the injunction.
Gummow J there declined to follow the observations of Gibbs CJ in the Australian Airlines case, supra. Both approaches as to the circumstances in which a mandatory interlocutory injunction is to be granted have also been considered by Spender J in Carson v Minister for Education (Qld) (1989) 25 FCR 326 at 337 to 339. His Honour there concluded that he did the applicants "no disservice if I proceed on the basis indicated by Gummow J". The interlocutory relief was there refused. The approach of Gummow J has also received the approval of the Full Court in Telstra Corporation Ltd v First Netcom Pty Ltd [1997] FCA 860, 78 FCR 132 per Lockhart, Beaumont and Hill JJ.
17 It is considered in the present proceeding that the approach of Gummow J is that to be applied.