148 In conclusion, in applying the plain language of clause 6.2, in the context of support definitions and criteria in Attachment A and Schedule 12, GRL is entitled to notify its intention to reject an entire Delivery.
The relief sought by WSN
149 As is apparent from the number of variations to the Commercial List Summons across a period, the plaintiff appears to have had considerable difficulty in framing with precision the relief to which it claims to be entitled.
150 The reasons make clear that the plaintiff has not established any entitlement to any form of relief of the type ultimately claimed.
151 Nonetheless it is appropriate to make a number of observations in relation to the claims for relief. In this regard it is fair to observe that when answering the defendants attack on the forms of relief, Mr Walton appeared to accept at least some of the problems exposed. In referring [at transcript 283] to the plaintiff's submissions [as having made much of 'the machinations' set out in the plaintiffs claimed relief in paragraph b of the Summons] Mr Walton conceded that he had some sympathy with those comments.
152 Each of the following propositions for which the defendant contended in relation to the shortcomings of the plaintiff's claims for relief would have had substance had the plaintiff achieved the point where the scope of relief required consideration.
153 Although they are drafted as restraints, orders 1(b), 1(c), 1(c1), and 1(e) are, in substance, orders for specific performance of a long term commercial contract. For example, an order that GRL be restrained from refusing to accept deliveries is, in substance, an order compelling GRL to accept deliveries.
154 This is the paradigm case in which the Court would not order specific performance or grant a mandatory injunction which has the effect of requiring the constant supervision of the Court and the continued co-operation of parties. See e.g. JC Williamson Limited v Lukey and Mullholland (1931) 45 CLR 282 at 297-298. The relief sought would compel GRL to engage in repeated acts and/or ongoing conduct: see e.g. Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1 at 13.
155 Orders 1(b) and 1(c) concerning deliveries of waste Monday to Friday, are both subject to clause 13.6. That is, WSN seeks to maintain GRL's obligation to keep the Facility open on Saturdays to accept Input Material. Even in the relief sought in these proceedings, WSN's conduct is inconsistent with the alleged convention.
156 The terms of the relief sought are imprecise, vague and uncertain. What is meant by "approximately" 725 tonnes or 672 tonnes? What level of variation is permissible? What is meant by the non-capitalised word "deliveries".
157 Moreover, orders 1(b) and 1(c) attempt to embody detailed contractual terms and conditions in a form that is both incomplete and inappropriate as a matter of substance. For example, the restraint in order 1(b) is subject to eight other clauses in the WPD and a factual matter (namely whether acceptance of Input Material would have an adverse economic effect). Whether or not accepting deliveries "would have an adverse economic effect on the profitability of the Facility" is a question of fact and degree about which minds would legitimately differ.
158 The relief sought would expose GRL to penalties for contempt for future non-compliance with obligations or breaches of contract. As Lord Hoffman said in Co-operative Insurance v Argyll Stores Ltd [1998] AC 1 at 12: