Considerations
32 In Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 the High Court explained principles relevant to the grant of interlocutory relief. In particular,
1. there must be a serious question to be tried as to the applicant's entitlement to relief; and
2. the applicant is likely to suffer injury for which damages will not be an adequate remedy; and
3. the balance of convenience favours the granting of an interlocutory injunction.
(Gleeson CJ and Crennan J at [19].)
33 As Gummow and Hayne JJ further explained, in order for an applicant for interlocutory relief to demonstrate that there is a "serious question to be tried":
1.1 It is sufficient that the applicant show a sufficient likelihood of success to justify the preservation of the status quo pending the trial: at [65].
1.2 The applicant need not demonstrate more than a 50% chance of ultimate success: at [68].
1.3 In that light the issue may be understood as whether the applicant has made out a prima facie case for relief: at [65], [70].
1.4 Whether the applicant shows a sufficient likelihood of success depends on the:
1.4.1 nature of the rights asserted; and
1.4.2 practical consequences likely to flow from the interlocutory order sought. Particular considerations arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application: at [72].
34 In Parmalat at [21] I was satisfied that, in the context of a mandatory interlocutory injunction:
the applicant is obliged to satisfy the Court to some higher degree of assurance that final relief will be granted in order to justify the grant of interlocutory relief; and
this is so particularly in circumstances where:
o the mandatory orders lend themselves to a greater likelihood of ongoing Court supervision; and
o the practical effect of the orders is to finally determine the rights of the parties.
35 Mr Rebetzke for the applicants submitted that there is competing authority to the contrary. In particular, Counsel took me to observations of Yates J in Instyle Contract Textiles, and Kiefel J (as her Honour then was) in Racecourse Totalizators.
36 In Instyle Contract Textiles, Yates J discussed whether different considerations were required for mandatory as distinct from restraining interlocutory injunctions, and also considered comments of Kiefel J in Racecourse Totalizators as follows:
[76] There is some debate in the authorities concerning the test to be applied when a mandatory injunction is sought at the interlocutory stage. In State of Queensland v Australian Telecommunications Commission (1985) 59 ALR 243 at 245 Gibbs CJ, in refusing to grant a mandatory interlocutory injunction, adopted the observations of Megarry J in Shepherd Homes Ltd v Sandham [1971] Ch 340 at 351 that, in the normal case, the court must "feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted" and that "this is a higher standard than is required for a prohibitory injunction". This approach has been adopted in a number of cases, including in relatively recent times: see, for example, Storm Financial Limited v Commonwealth Bank of Australia [2008] FCA 1991 at [5].
[77] In Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 501-504 Gummow J, in this Court, gave detailed consideration to the principles to be applied when a mandatory injunction is sought at the interlocutory stage. His Honour did not consider himself bound by what Gibbs CJ had said in this regard in State of Queensland v Australian Telecommunications Commission and declined to follow the approach of Megarry J in Shepherd Homes. In this connection his Honour (at 503-504) eschewed any principle which required a higher standard to be applied for the grant of an interlocutory mandatory injunction than for an interlocutory prohibitory injunction. His Honour accepted a number of observations made by Hoffmann J in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 722 concerning the granting of mandatory injunctions in the general equity jurisdiction, including that the court is more reluctant to make such an order against a party who has not had the protection of a full hearing at trial. I should add that his Honour also remarked that statutory grants of particular injunctive powers, such as s 80 TPA, may require special consideration in this regard. It was not necessary, however, for his Honour to pursue that issue.
[78] In Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Queensland (1995) 58 FCR 119 Kiefel J, in this Court, also gave detailed consideration to the principles to be applied when a mandatory injunction is sought at the interlocutory stage. Her Honour rejected the notion that the technical classification of an order as "mandatory" automatically attracts the requirement that the court have further confidence in the correctness of the order through an examination of the strength of the applicant's case: at 123C-D. Her Honour saw the issue as one to be dealt with by considering the balance of convenience. Her Honour observed that what is first required in that regard is a consideration of the effect that the order will have. If the order can be seen to have a "profound" effect (such as where the order finally determines the matter so that a defendant, who has raised a triable issue, is denied a right to a full hearing) then "the making of the order cannot be justified without another strong factor being able to be weighed against these effects and that factor may be a strong case being shown for final relief, although the difficulty in assessing it at an interlocutory stage may often have the result that the relief is denied": at 123D-F.
[79] Although Kiefel J expressed difficulty with some observations made in Films Rover with which Gummow J had expressed acceptance in Businessworld Computers, it seems to me that, in presently relevant respects, there is no necessary inconsistency between Kiefel J's observations in Racecourse Totalizators and Gummow J's observations in Businessworld Computers. Indeed, in the respects which I have noted, I read those cases as saying that no difference in approach is mandated depending on the mere characterisation of the order as "mandatory" or "prohibitory".
[80] It is uncontroversial that an important consideration relevant to determining the balance of convenience is whether the order that is sought will, in a practical sense, determine the substance of the matter in issue. This consideration does not become controversial because an order having that effect can be characterised as being "mandatory" as opposed to being "prohibitory". It is also uncontroversial that the strength of the applicant's case for final relief is a consideration that is relevant to determining the balance of convenience in granting or refusing a specific order. It is difficult, therefore, to see how the relationship between these two considerations can vary in determining where the balance of convenience lies in a given case simply by reason of a process of characterisation of the order as "mandatory" or "prohibitory" and nothing more.
[81] With these observations in mind it seems to me that it is appropriate that, in relation to all injunctions sought at the present time, I should take into account (together with all other relevant considerations) the strength of Instyle's case for final relief, as revealed by the presently available evidence, and the likely effect that each order as presently sought, if made, would have. I will do so, however, without applying any different standard based on whether the order that is sought is "prohibitory" or "mandatory" in character.
37 While I note Counsel's submissions and the observations of his Honour in Instyle Contract Textiles, as I noted in Parmalat there is a divergence of authority in the Court which has not as yet been resolved at appellate level. Instyle Contract Textiles is a helpful addition to that list, however in my view it does not conclusively resolve the issue as suggested by the applicants. There is considerable authority to the contrary, as I explained in Parmalat. I am not prepared to depart from the views I expressed in Parmalat, in light of the fact that successful application for mandatory injunctive relief requires positive action on a reluctant respondent, as distinct from requiring a respondent to desist from nominated activity.
38 On balance, I am satisfied that the applicants are entitled to the interlocutory relief they have sought.
39 First, in my view the applicants have established a serious question to be tried in relation to the question of whether a contract exists between the first applicant and the first respondent as to the existence of a contract in relation to the 7.0m3 truck. While Mr Blank denies that he was entitled to bind the first respondent to an agreement providing cartage work to the first applicant for the better part of a decade, the deed of agreement signed 29 July 2011 between the vendor of the 6.0m3 truck (Milton Meller Pty Ltd), the first applicant and the first respondent supports a finding to the contrary. Indeed I note clause 2 of the Annexure to that deed of agreement, containing the Terms and Conditions of Contract with Hanson Construction Materials Pty Ltd, which provides as follows:
2 TERM OF AGREEMENT
2.1 The term of the Agreement is dependant [sic] on the truck carrying capacity.
2.2 The expiry date of the Agreement is 30th September 2013 upon which you will be required to upgrade to at [sic] twin steer truck and a contract will then be extended to 30th September 2020.
40 This Agreement, prepared on the letterhead of the first respondent, supports the case of the applicants that there was a contract contemplating that the applicants should acquire a 7.0m3 truck, and that the respondents were aware of this arrangement. In light of this and subsequent correspondence between Mr Meredith and Mr Blank, it is difficult to form any other conclusion at this interlocutory level than that the first respondent had committed to an agreement with the first applicant until 2020, subject to the acquisition of a larger truck.
41 Second, while the respondents contend strongly that the interlocutory relief sought will improve the position of the applicants rather than simply maintain the status quo, this is not the case if the relief sought would simply put the applicants into the position to which they are entitled on the material before the Court. Indeed, on this view, to refuse the applicants the relief they seek would be to disadvantage them from the position which is arguably the status quo.
42 Third, while breach of contract per se is not in itself the basis of the interlocutory application currently before the Court, nonetheless the apparent existence of a contract between the first applicant and the first respondent as contended by the applicants directly relates to the adverse action alleged and the alleged reasons that the adverse action was taken.
43 Fourth, there is strong evidence from Mr Blank, under oath, denying that adverse action was taken against the applicants for reasons prohibited by the FWA. However there is extensive evidence from Mr Meredith supporting a contrary view. The respondents submit that much of Mr Meredith's evidence is hearsay and, in a sense, trite. However I am persuaded by the applicants that Mr Meredith's evidence refers to a number of incidents which, while in themselves minor, could in the course of a trial be supported by further evidence adduced, and indeed build to a complete picture supporting the applicants' case. So, for example, Mr Meredith gives evidence not only about the Fair Work Australia conference and his wearing of a TWU hat, but also his engagement in recruitment activities for the TWU, the increased presence of the TWU at the first respondent's workplace since Mr Meredith commenced working with the first respondent, and his position as a union delegate. While the respondents claim that there is no causal connection between Mr Meredith's attendance at a Fair Work Australia conference in 2012 and the refusal to renew his contract in 2013, I am not persuaded that the position is as simple as the respondents portray. Indeed, the mere presence of an early termination clause is not in itself sufficient to overcome the prospect of a serious question to be tried that the actual action taken by the first respondent - namely the refusal to continue the contractual arrangement - was caused by Mr Meredith's union activities.
44 Fifth, I am persuaded that the balance of convenience supports the grant of interlocutory relief to the applicants. I accept the submissions of the applicants that this is not a "normal" commercial dispute, but a dispute between a large corporation and an owner driver whose livelihood depends on the outcome of the proceedings.
45 Sixth, while the failure of Mr Meredith to return the barrel to the first respondent was improper, I note that the first respondent has not taken action against Mr Meredith, but rather was prepared to give an undertaking to continue to do business with him. On the material before me I am not persuaded that the first respondent has suffered any prejudice from this conduct of Mr Meredith, or that his conduct is such that he has come to the Court without "clean hands" such as to deny him relief in equity.
46 Seventh, I am not persuaded that Mr Meredith has been less than candid with the Court concerning his financial affairs. Although some financial details were blanked out in the material before the Court today, there may be a perfectly reasonable explanation. At this interlocutory level I am not persuaded that any sinister motive should be attributed to the applicants.
47 Eighth, in my view the respondents have not demonstrated any meaningful prejudice they would suffer in the event of interlocutory relief being granted as sought.
48 Finally, in the circumstances I am not satisfied that damages would be an adequate remedy for the applicants should they be successful at trial but the interlocutory relief denied. The disruption to their business affairs should interlocutory relief be denied is such that, in my view, it is dubious whether damages would be suitable compensation. Certainly at this stage of the proceedings I am not persuaded otherwise.