Air Caledonie International & Ors v The Commonwealth of Australia

[1988] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S53 of 1988

B e t w e e n -

AIR CALEDONIE INTERNATIONAL

AND ORS

Respondent Plaintiffs

and

THE COMMONWEALTH OF AUSTRALIA

Applicant Defendant

Application for interlocutory

orders

GAUDRON J

( In	Chambers)
Air

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 16 AUGUST 1988, AT 3.00 PM

Copyright in the High Court of Australia

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MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If Your Honour pleases, I appear with my learned

friend, MRS P. SHARPE, for the defendant. (instructed

by the Australian Government Solicitor.

MR R.P. MEAGHER, QC:  May it please Your Honour, I appear with

my learned friend, MR A. ROBERTSON, for the

respondents, all 30 of them. (instructed by Blake

Dawson Waldron)

HER HONOUR:	Yes, Mr Solicitor.
MR GRIFFITH:	Your Honour, this is a short application attempting

to redress the balance between 30 plaintiffs and one

defendant. Your Honour, the summons is basically one

which runs to the inherent jurisdiction of this Court

under section 31 of the JUDICIARY ACT in respect of
the power to order interlocutory injunctions.

The second paragraph of the summons is put in

in an attempt to express some form of consequence
relevant to a rule but I think we are content,

Your Honour, to go to the issue and then perhaps work

out the question of appropriate relief as a secondary

aspect.

Has Your Honour had an opportunity to read the

pleadings?

HER HONOUR:	Yes, I have read the affidavits.
MR GRIFFITH:	Does Your Honour have a copy of the counter-claim

and the defence to the counter-claim?

HER HONOUR:  Yes.

MR GRIFFITH: That is good; I did have copies here to hand to

Your Honour, so that I will not have occasion to do

that. Your Honour will see that -

HER HONOUR: That has been amended, has it? No, I am sorry,

it has not.	It is the answer to that that has been
amended.

MR GRIFFITH:	The which has been amended, Your Honour?
MR MEAGHER:	The defence to the counter-claim has been

amended.

HER HONOUR:  Yes, the defence to counter-claim, thank you.

MR GRIFFITH: Yes, Your Honour, we only refer to the amended

defence to counter-claim and the short point of that

is that it admits that money9 payable pursuant to

section 34A - has Your Honour a copy of the legislation?

HER HONOUR:  Yes.

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MR GRIFFITH: - - -have not been paid, that the plaintiffs

have collected some moneys but not others, and that

no moneys have been paid over.	Your Honour will see
from the statement of claim that	there is really

one point at issue, namely the validity of the

provisions of section 34A of the MIGRATION AMENDMENT ACT

1987 which were repealed as from 1 July by Act No 49

of 1988.	So that we deal with a closed period now
of obligation for the six months of this year.	So

that there is no continuing obligation after 30 June.

The action, as we understand it, is listed for

hearing on the demurrer in this Court in October,

11 October, and no doubt judgment will be delivered

some time after that. One could say that absent

the issue of validity, in our submission the position

clearly is that there is an obligation imposed by

section 34A of the Act, firstly, for the various

plaintiffs, for their operators to collect the

prescribed fee which is $5, and secondly, Your Honour.

under subsection (3) to:

pay to the Commonwealth the amount of the

fee payable by a passenger -

and in subsection (4) provides that:

is a debt due to the Commonwealth and

may be recovered in a court of competent

jurisdiction.

As Your Honour sees, because of the claim taken by the plaintiff as to validity, the court of competent jurisdiction in this case, by reason of the counter-

claim being pleaded, is this Court.

Now, on one view it could be put that the

plaintiffs, absent this question of validity, are

indebted to the Commonwealth in the sum of $5 referable

to each passenger over 12 years of age carried by each

of the plaintiffs in the relevant period. There is

a lesser sum which is identified by the pleadings

without the figure being identified, being the amount

actually collected. Now, we do not know whether or

not the plaintiffs purported to collect fees after

the institution of the proceedings or not and

Your Honour will see from the affidavit of David

Godwin, which has been filed - does Your Honour have

RB that affidavit with exhibits?

HER HONOUR:	Yes, I do.
MR GRIFFITH:	The plaintiffs have left, really, the

Commonwealth in a position that it is unable

to say, precisely, what is th~ amount that the

plaintiffs have collected in total.

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HER HONOUR:  And does not that present something of a

problem to you in the context of your counter-

claim which seeks declaratory relief only?

MR GRIFFITH:  Your Honour, I think our counter-claim seeks

judgment plus interest, from recollection.

HER HONOUR:	I am sorry.
MR GRIFFITH:	One problem, Your Honour, is because of the absent account we are unable to say what the
sum is but I think there is a claim, Your Honour; of a declaration and judgment -
HER HONOUR:	Yes, it does seek judgment.
MR GRIFFITH:	interest, for the amount, interest

and costs.

HER HONOUR:  There is something of a step between a

declaration and judgment, as sought.

MR GRIFFITH:  Yes, Your Honour, but really it is a reflection

of the defence and demurrer in that if we absent
the application being made today one would expect
the demurrer will be determinative of the whole
issues between the parties because if the point

made in the statement of claim is not upheld,

Your Honour, we would submit there would be no

answer that the plaintiffs are liable to the

amount of $5 referable to each passenger so

defined.

One cannot see, Your Honours, that element of the counter-claim proceeding to full trial.

There is a real possibility that were the plaintiffs

successful on their claim that the action, that

the amounts are not payable because the

section is beyond power, that there could still

be an action over the issue of who gets the amounts

that have been collected and that we would assert,

Your Honour, that it was money paid to the plaintiffs

on account of the Commonwealth. It was money

had and received by them and held for them and

to put the proposition shortly we would say that,

absent passengers paying under protest to the

plaintiffs, we would still be entitled to the

money; the passengers would not be entitled

to repayment of it and we would say that the

plaintiffs would not be entitled to retain the

money as a windfall. But that is a matter for

perhaps later consideration if that ever -

HER HONOUR:  I am not eoo sure that it is a matter for later

consideration. That surely-can be the only basis

of your application based on section 31 of the JUDICIARY

ACT.

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MR GRIFFITH:	Your Honour, could I explain the basis of

our application? Firstly, Your Honour, there

have been some affidavits, I understand it, filed

dealing with this question of amount but perhaps

there is no need to go to the detail of that

other than to indicate that it would seem, as

we understand it, that there is a sum in the

order of $5 million or so which has been collected

by the plaintiffs and that is, perhaps, sufficient,

Your Honour, for the purpose of the application

today and our estimate is the total amount payable

is about $8.6 million. That just gives a idea

of the sort of amounts in issue but we would
submit, Your Honour, it is sufficient for
Your Honour to act on the basis that the plaintiffs
have received the sum of over 5 million referable
to payments made to it, possibly more, and that

they, pending the hearing and determination of

their action and absent any order made arising

from today's application, would retain that money,

Your Honour. And that is really the issue which

concerns us in making this application.

Your Honours, as the affidavit indicates,

we have requested particulars of the plaintiffs

as to amounts that they have recovered but they have not been furnished to us and, Your Honour,

we also have offered an undertaking by way of

an indemnity to the plaintiffs and there has

been correspondence which perhaps I could hand

to Your Honour arising from that. The letter

of offer is exhibit DG2 to the affidavit of

Mr Godwin - I think Your Honour has that.

HER HONOUR:	No.
MR GRIFFITH:	Could I hand Your Honour a copy of it.
HER HONOUR:	There is some correspondence annexed to an

affidavit of Mr McLachlan.

MR GRIFFITH:  No, Godwin is the one that I was referring

to, Your Honour. McLachlan is .the plaintiff's

deponent.

HER HONOUR:	Yes. ·Have your seen that affidavit?
MR GRIFFITH:	Yes, Your Honour, it was served over lunch-

time so I did see that and I think that does

exhibit the - - -

HER HONOUR:	And that has got the correspondence, has it?
MR GRIFFITH:	Yes, that has got the correspondence, yes.

HER HONOUR: It might be better then if we said, "By

reference to the affidavit material"?

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MR GRIFFITH:  I would agree, Your Honour. Your Honour,

the letter of 8 August 1988, which is exhibit DG2,

resulted in letter 10 August 1988, which I think

is exhibited to Mr McLachlan's affidavit, and
there was a reply to that of 15 August 1988 which

is also exhibited - that is exhibit B to

Mr McLachlan 's affidavit, Your Honour. So that,

Your Honour, we have confined our application, not to

the amount of moneys that the plaintiffs should

have collected but the amount that they actually

have collected and we are unable to say precisely

what those sums are because the plaintiffs have··

not told us.

Our submission in respect of those moneys,

Your Honours, is that - we submit that apart

from the issue of validity, each of the plaintiffs
is liable to pay the Commonwealth, we submit,
pursuant to section 34A, the sum of $5 for each

person of 12 years of age or more who travelled

to Australia during the relevant period. And,

Your Honour, we say that the amended defence

to the counter-claim, and paragraph 2 admits
the collection of sums of moneys and admits that

they have not been paid to the Commonwealth -

Your Honour, the difficulty for us is that there

is no rule on which we may apply in a summary

way to recover the moneys actually collected

by the plaintiffs or, for that matter, to recover
the moneys which we say they should have collected

and are liable to pay to us.

But we submit, Your Honour, the Court should

have regard to the underlying issues and we submit

the appropriate approach on our application is along the lines of that adopted by the present Chief Justice when he was Acting Chief Justice

in CASTLEMAINE TOOHEYS LIMITED V SOUTH AUSTRALIA,

(1986) 67 ALR 553, where His Honour said that:

In the absence of compelling grounds,

it was the duty of the court to respect,

indeed, to defer to, the enactment of the

legislature until that enactment was

adjudged ultra vires.

A similar approach was referred to by His Honour

Justice Brennan in DAVIDS HOLDINGS PTY LTD V

BYRNES, 71 ALR 251, where His Honour said -

and that is a very short note in that report,

Your Honour:

it seems. that the balance of convenience

ought to lie in favour of respecting the

validity of the legisl~tion until that

validity is displaced by an appropriate curial

determination.

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And similarly, Your Honour, the Chief Justice

in RICHARDSON V FORESTRY COMMISSION, (1987)

73 ALR 589, and in particular at page 600 and

page 601. His Honour confirmned this approach

is appropriate in considering the question of

the operation of Commonwealth laws pending
determination of actions as to the validity of
those laws. In that case, His Honour

the Chief Justice, at page 600, regarded this

principle as foreclosing, in the circumstances

of that case dealing with the question of

injunction as to logging activities in Tasmania:·

the issue of balance of convenience and what

we say, Your Honours, as our first proposition

is that in the case where we have legislation

which, on its face, imposes an obligation on

the plaintiffs to collect moneys and then, under

subsection (3) to pay them to us, and under

subsection (4) to say that we should be entitled

to recover them in a court of competent jurisdiction,
our submission is that the Court should consider

the question of the plaintiffs' liability as

one that has been plain beyond argument other

than in this issue of validity and we say,

Your Honour, if it comes to a question of how

matters should be treated in the meanwhile, we

have a simple position that the plaintiffs have

our money which, according to law, they are obliged

to pay over to us, which they just retained for

their own use and we submit, Your Honour, that

the Court should have regard to that underlying
circumstance and, adopting the approach which

has been, we say, adopted in these several cases,

it is appropriate for the Court in considering

what should be the appropriate mechanism for

disposal of these moneys pending the hearing

and determination of the action, the Court should

apply this principle and say we should act on

the basis that the legislation is valid until
that is displaced and the balance of convenience

is for the plaintiffs to pay money which, admittedly,

on any view, is not theirs, over to the Commonwealth

which, according to law, is entitled and was

entitled to payment of that money from the time

of collection ranging over the period back to

1 January this year.

Your Honour, that is our first line of approach

for the application. At a second level, we submit,

Your Honour, that it is appropriate to consider

the balance of convenience on the issue, "Well,

who gets the benefit of this $5 or $6 million -
whatever it is - pending the hearing and determination

of the action". The plaintiffs, Your Honour, on their own pleading and on any construction

of the Act, we submit, retain moneys which havebeen

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had and received by them for the use of the

Commonwealth and not for their own use. And

apart from their claims resting on the alleged

validity or invalidity of the legislation, we

submit the retention of the money is unlawful

and in breach of the terms of section 34A.

The plaintiffs cannot claim any beneficial interest in the money themselves and yet they

retain it. We submit, Your Honour, if one has

regard to general issues of balance of convenie~ce,
the only prejudice the plaintiffs could suffer,

if they were now ordered to pay over to the

Commonwealth the moneys which they have collected,

would be in respect of possible liability to repay $5 to passengers if the law is held to

be invalid.

As to that, Your Honour, we would make two

short propositions. We say, firstly, that if

the law is held invalid, we would submit that
the plaintiffs could not be held liable to repay

to any passenger, unless the passenger paid under

protest, which is unlikely and, indeed, the second

affidavit filed by the plaintiffs today would
indicate that this arrangement they had with

the Postal Commission as to collection of the

money by a mechanism of selling stamps would

seem to mean, Your Honour, that at least as to

the money collected by that mechanism, there

could be no possibility of a passenger paying

under protest.

The only possibility would seem to be that

some person has bought more stamps than they used up to 30 June and may claim a refund in

respect of them. As to that, Your Honour, we

say any such obligation to repay could be regarded
as being, firstly, not money which would be covered

by the terms of the injunction we sought and,

secondly, Your Honour, if it were it would be covered

by the terms of any indemnity or the indemnity

could be altered to cover it.

The second proposition we make, Your Honour, 1s that if the plaintiffs do pay the moneys over

to the Commonwealth, we would submit that even

if the Act were held to be beyond power the plaintiffs

would not then be liable to repay to any passenger

and we would rely upon the short passage in the

ANZ BANKING GROUP LIMITED V WESTPAC case, which

has now been reported in 78 ALR 157. If I could

hand Your Honour a copy of that report, we have

the manuscript version.

We wi}l·not take Your Honour to the details

of that case which is probably still very much

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1n Your Honour's recollection but at page 162

to 163 in the joint judgment of the Court the

Court discusses, we would say, Your Honour, an

issue which is very analogous to that which arises

here and, beginning in the paragraph in the middle

of the page:

The prima facie liability to make

restitution is imposed by the law on the

person who has been unjustly enriched.

In the ordinary case of a payment of money,

that person will be the payee. However,

when the person to whom the payment is
directly made receives it as an intermediary

(eg as agent for a designated principal),

there may be uncertainty about the identity

of the actual recipient of the benefit at

the moment of payment. If the circumstances

are such that the intermediary is to be

seen as being himself the initial recipient

of the benefit, his prima facie liability

will ordinarily be displaced when he has

handed the money received on to the person
for whom he received it. In such a case

he has, in the event, not retained "the

benefit of the windfall" but been "a mere

conduit-pipe".

And, Your Honour, the discussion continues at

the foot of the page.	I do not think I need
take Your Honour to that.	So that, Your Honour,

we would submit that it would follow that if

the plaintiffs do pay over the money to the

Commonwealth, as the terms of the legislation

require them to do, in that position, Your Honour,

we would submit that no situation of liability
to any passenger, in the event that the legislation

was held beyond power, could arise. That the

liability to repay then would fall upon the

Commonwealth, as the person who received the money and whose behalf the money was - - -

HER HONOUR:  Would the Commonwealth have any liability

to repay, at all?

MR GRIFFITH:  Your Honour, there might be an issue, then,

between the question of paying under mistake of law without protest and the issue that if the plaintiffs paid the moneys over because of

a .court order by way of interlocutory order pending
the hearing of the proceeding, that in those

circumstances the principles adumbrated by WESTPAC

would apply .. But if there is any difficulty

about it, Your Honour, we are quite prepared
to offer whatever undertaking may be appropriate

to cover that situation. We are not seeking

a windfall ourselves. All we are seeking is

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to have the benefit of money which, according

to law, is ours and to which we have been entitled

for some time.

So that, Your honour, the purpose of this

application is not to defeat in any way any

rights which passengers may have in the event

that the legislation is declared beyond power

although we do make the point, Your Honour, that

we have just made and, perhaps if I could refer

Your Honour briefly to - - -

HER HONOUR:  I do not understand you to concede that any

passenger would have any right other than if

the payment were made under protest. That is
to say that, absent the protest, the Commonwealth

must obtain a windfall.

(Continued on page 11)

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MR GRIFFITH:  Yes, Your Honour, but the form of indemnity which

we have offered, Your Honour, is to say that

we will indemnify the plaintiffs in respect

of any money that they repay to any passenger,

whether there is a demand or not by the passenger.

HER HONOUR: That is an offer?

MR GRIFFITH:  Yes, Your Honour, and we are prepared to

offer that in Court, too, Your Honour, as a

condition for the injunction - as an undertaking:

So that we seek, Your Honour, not to obtain

an advantage which we otherwise would not have
in the event that the Act was held beyond power
but merely, Your Honour, to obtain in the meanwhile

the relief of having our money, to which we

say we are entitled by a law which, until the

plaintiff has established to the contrary, we

would submit should be regarded as a valid

and effective law.

Your Honour, on the obverse side,

Your Honour, absent an order enabling us to receive

money to which we say by law we are entitled,

the plaintiffs can retain it as a windfall sum

for them to do what they like with it. It is

not theirs, Your Honour; they are not holding

it on trust for the passengers or holding any

interest that they receive on it for the benefit

of anyone except themselves. They have over

$5 million which, according to law, Your Honour,

is moneys which they receive from other persons

for the purpose of paying to us - no doubt the

persons paying it thought they were paying it

to us, Your Honour, if they bought these stamps

at the post office - and the plaintiffs have

it, Your Honour.	On no view are they entitled
to it.

We are prepared to say, Your Honour, that

if our money is paid to us, we are prepared

any indemnity, Your Honour, which will ensure	to give any undertaking to the Court or offer
that no potential passenger - previous passenger
who desires to be repaid the $5, will be denied
that payment.

So, Your Honour, if it is a question of

words, we are prepared to offer whatever form

of words are appropriate to ensure that no passenger

will suffer prejudice and as indicated to our

reply to the letter exhibited to Mr McLachlan's

affidavit, Your Honour, the undertaking is not

conditional upon demand or ppyment under protest.

It merely says, "If the plaintiffs repay the money to any passenger we will indemnify them.

Even if that payment was made voluntarily by

the plaintiffs", in the event that their claim

is successful.

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Your Honour, if that is not sufficient

to cover all circumstances, we are prepared

to broaden the undertaking as appropriate to

make sure that there is no advantage occurring

to us that we would not be entitled to. But

the basic point, Your Honour, is that we submit
that it is our money and we would submit that,

following the line of approach which we refer

to in the three single decisions of this Court,

it is appropriate as a matter of fairness between

the parties for the - - -

HER HONOUR:  That almost assumes that all the plaintiffs

are jointly indebted to the Commonwealth?

MR GRIFFITH: Your Honour, the offer is made to each plaintiff

separately to offer the indemnity.

HER HONOUR:  Yes, but the order sought is not; the ultimate

order sought is one which really could only

be justified virtually on the basis of a joint

indebtedness, is it not?

MR GRIFFITH: If I may indicate to Your Honour, the one

problem for us in framing this application is -

the difficulty is to relate it to the structure

of the rules.

HER HONOUR:  Yes. It always seems to be when there is

difficulty framing an application there may

be difficulty in relating it to the underlying

law.

MR GRIFFITH:  Your Honour, we are quite happy to have 30

separate orders, one in respect of each plaintiff,

and we will make the undertaking in respect

of each one. It is a large sum of money,

Your Honour. Perhaps it is put as not a large

sum for governments but it is over $5 million,
more than enough for the interest to provide

the money to pay the costs of the plaintiffs

litigating against us.

HER HONOUR:  What is the sanction? You see, the sanction

you seek is predicated, virtually, on a joint

indebtedness. What is the sanction if you have

30 separate orders?

MR GRIFFITH:  Your Honour, we are happy to have no sanction,

merely an injunction. If that is not complied
with, Your Honour, then we will take steps to

approach the Court and do something about that.

So that paragraph 2 of our summons may be regarded

as disjunctive, Your Honour 1 _ but really it was

a matter of, as an alternative approach, to saying

what is a simple claim for interlocutory injunction

to say, "Well, can we relate it in some way to a modified version of summary judgment",

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which, of course, does not apply because it

is a claim by way of counter-claim and not by

way of a claim for liquidated amount on a writ

special endorsement of that sort.

Your Honour, we do apply on the basis of

the question of the strength of the right to
the money and, Your Honour, we are prepared
to give whatever undertakings are appropriate
to ensure that we do not get an imporper advantage

and we certainly do not intend to disadvantage

any of the plaintiffs, Your Honour, as to the

position they would be in the event that the

action were successful and no order such as

we sought were made. Other than that we would

deny, Your Honour, that if the action of the

plaintiffs were successful, they would be entitled

to the return of the money plus interest.

HER HONOUR:	You would deny that?
MR GRIFFITH.	We would deny that they are entitled to the

return of the money plus interest because we

say it is not their money, Your Honour.

HER HONOUR:  But you would understand any injunction granted

to foreclose the question of who is entitled

to this money?

MR GRIFFITH:  No, Your Honour. We would be quite happy

for the order to only run until the hearing and

detennitia:tion .of the action and then we would abide

the further order of the Court, Your Honour,

if there was a dispute. If the plaintiffs said,

"It is our money to put in our pockets; we

do not have to pay it to any passengers, we

are just going to put it in our pockets", we
are, of course, happy for our undertaking to

indemnify the plaintiffs if they paid back each

and every $5 they have received - our undertaking

would cover that obligation so that the plaintiffs

would not be to pocket.' But if the plaintiffs ·

said, "We are not going to pay it back; we

are going to put it in our pocket", then there

would be an ·issue, Your Honour, as to whether

money had and received from a third person,

pursuant to a statute which was held to be beyond

power, could result in a windfall benefit to

the person who received it; who acted in breach

of an obligation which was lawful, apparently,

on its face, when in force to pay it to someone

else. That is an issue that could be considered

later, Your Honour, but once more we are prepared,

by our undertaking, to ensure that the plaintiffs

do not suffer any loss but we do not concede

as a matter of principle that the plaintiffs

are in this action to stand a windfall profit.

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We submit on no view can they say it is their money,

Your Honour. That is not what they collected

it for, and if that is an issue later on then,
Your Honour, we will argue that out.

I think I have said enough to indicate there is an element of the greatest flexibility

so far as undertakings to the Court or offers

of indemnity to ensure that there can be no

prejudice to the plaintiffs, Your Honour; that

they can lose any moneys or the benefit of any. moneys to which they are entitled or in respect of which they may suffer a liability to a third person even if that liability is one not legally

enforceable because we are prepared to offer

the indemnity if the money is repaid voluntarily

in that situation. It goes without saying,

Your Honour, the small sums of money dealt with with

the letters annexed to Mr Cardone's ~ffidavit,
of course, we would not make any claim in respect

of those moneys as moneys collected within the

embrace of such an order. That is an incidental

matter, Your Honour.

HER HONOUR. It is not entirely incidental, is it, because

there is certainly an apparent undesirability,

for example, about the grant of an injunction in terms where the question of whether or not it has been complied with is a matter requiring

extensive - particularly an interlocutory

injunction - could required extensive inquiry

as - - -

MR GRIFFITH: Could I ask Your Honour in this way: firstly,

there are 30 plaintiffs and that cannot be avoided

but each of them, we would say, have received

substantial sum of moneys adding up to an even

larger sum. The obligation under the Act,

Your Honour, is to collect $5 from each passenger,

12 years or more.	Now, it is in respect of
that $5, not which should have been collected

but which was actually collected, that we make

our claim. Your Honour, until lunch time, or

really until early today, Your Honour, I was

entirely unaware of this arrangement between

the board of airline representatives and the

Australian Post Office Commission. We did not

know about this arrangement or the terms of

it, Your Honour, and it seems that the airlines

chose to make an arrangement that they did not

collect $5 from each passenger referable to

that passenger's arrival, but they sold off

$5 stamps of their own making - they were just

private stamps, Your Honour-,. of the airline's

making - to travel agents to put on tickets

so that there was a possibility that they sold

stamps in anticipation of the passengers using

them. The correspondence annexed, Your Honour,

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indicates that there has been some small claims

in respect of those sales. Your Honour, w~, of
course, under the legislation, haven~ cl~im
in respect of $5 paid to the post office in
res ect of stamps which have not been used;

allpwe claim, Your Honour, is some for~ of account

and payment over of the actual sums which_were

obliged to be collected pursuant to section 34A,

and paid to us and we ask for no more, Your Honour,

than an order referable to that.

If the plaintiffs say, "We can only go

so far an accounting to you because we have

11

this uncertainty as to the extra stamps , well,

Your Honour, that is as far as they can g~.

We would not seek an order that they pay in money referable to stamps sold which are not referable to a passenger but we have got to

the position now where it is mid-August,

Your Honour, the legislation ended at 30 July.

HER HONOUR:  30 June, was it not?

MR GRIFFITH:  30 June, I thank Your Honour, almost two

months ago. A month and a half. These sums

of money are only minor sums of money. If

the plaintiffs indicate, vwell, there might

be 100,000 still to come, perhaps", well then

that could be excluded, it is up to them. We

do not know anythin~ about this, Your Honour.

We only find out when we get delivered affidavits during the course of today as to the sum of money.

We submit, Your Honour, that our lack of

knowledge should not be regarded as a handicap

or a prejudice to our capacity to say that the

law obliges the plaintiffs to pay us $5 referable

to each eligible passenger carried by each plaintiff

during that period.

HER HONOUR:  But, Mr Solicitor, if you had actually sought

by proceedings other than by way of counter-

claim to recover the money, you would have had to go through the procedures which enabled you to ascertain the amount in issue?

MR GRIFFITH:  Your Honour, we say the procedure is to get

judgment for an account and then payment of the amount fell due. We would submit also,

Your Honour, if we had taken proceedings in

a court of common jurisdiction other than in

the High Court, we would be met by a defence
that there is proceedings in the High Court

alleging the Act is invalid_and, as a matter

of reality, Your Honour, we would not have got

any further. It is not a matter of being a

nuisance and bothering this Court with its pleadings;

it is a matter of reality - this is the only

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mechanism for us to, we would submit, ventilate this

issue and to seek, Your Honour, to vindicate

what we say is our right according to law.

But it is very analogous to summons for final

judgment with the qualification that there is

an answer - you do not have the power to do

it. But, we would submit, Your Honour, that

you are still left with the situation where,
on any principle, there is a basic issue of

what is fair on a balance of convenience between

the parties concerning the issue of dealing .

with this large sum of money pending the hearing·

and determination of this action.

Can I make a short submission to Your Honour

about what we put as the jurisdiction of this

Court? Your Honour, we refer to the decision

of CHAN V THE COMMONWEALTH, an unreported decision

of Mr Justice Stephen in 1980. If I could hand

Your Honour a copy of that decision which I

do not take Your Honour to in any detail other

than to indicate to Your Honour that there,

in an unusual circumstance concerning an alleged

immigrant subject to deportation who was retained
in custody under the provisions of the MIGRATION ACT,

there was no provision for release from custody

pending the hearing and determination of an action in the High Court as to the validity of legislation pursuant to which an order for

deportation had been made. His Honour Justice Stephen

took the view, Your Honour, that the ordinary

principles of BEECHAM could apply and it is

a question of whether, on the balance of convenience,

it was appropriate that the plaintiff should

be released from custody or remain in custody.

This approach, Your Honour, was taken by

His Honour Mr Justice Dawson recently, on

26 June 1987, in an unreported decision of NOLAN

V THE COMMONWEALTH, where His Honour made an

order in reliance upon CHAN. There was not a transcript of the judgment there although

I do have a copy of the order, if I could hand

Your Honour a photocopy of that order.

HER HONOUR:	Thank you.
MR GRIFFITH:	Your Honour will recollect in JACKSON V STERLING

INDUSTRIES LIMITED, 162 CLR 612, this Court

recognized the power of the Federal Court in

respect of Mareva injunctions and the general

discretionary nature of that jurisdiction.

We would submit that the High Court's jurisdiction
must be regarded as, by analogy, similarly flexible

and something what would b~ adjusted to the

exigencies and what is appropriate to the

circumstances. We appreciate, Your Honour,

it might be put, "Yes, but here you are not

asking for just an interlocutory injunction

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of an ordinary sort, you are asking for a mandatory

injunction". Perhaps, Your Honour, that is

a matter of expression. In CHAN's case the

order was that the plaintiff be ceased to be

detained; as to whether that was the same as

an order for his release is perhaps a matter

of semantics.

Could I give Your Honour a recent judgment

of Justice Gummow in the Federal Court in BUSINESS

WORLD COMPUTERS PTY LTD V ATC. If I could

hand Your Honour a copy of His Honour's minutes·

of order together with his reasons.

HER HONOUR:  Before going to the judgment of Mr Justice Gummow,

it would not be strictly accurate to say that

there is complete flexibility in this area.

There must be some necessity, in terms of the

preservation at least of the subject-matter

of the action, something of that nature?

MR GRIFFITH:	Your Honour, arguably this could be regarded as an application under Order-49 rule 12(1)
as to ensure the enforcement of law. The law
say that the money should be paid and it has
not been paid, so one can say that this is an
application under Order 49 rule 12(l)(a) to
restrain the plaintiffs from the continuance of a wrongful act, a breach of the law - that
is what is continuing at the moment, in our
submission, Your Honour. We submit, Your Honour,
it is appropriate in various ways to say, "Yes,
relief of this sort may be fitted within the
framework, either inherent under section 31,
a particular rule, if you like, by making it
referable to a sanction of striking out a defence. It does not, in our submission, matter very
much what the mechanism;  we submit the important
issue for consideration is what is - it is a
question of what is the appropriate order, if
any, to be made, having regard to the matter
at issue which here is the disposal of the sum,
we submit, of over $5 million pending the hearing
and determination of the action.

We would submit, Your Honour, one can say,

referable to issues of balance of convenience

having regard to the importance of not doing

injustice to either party.	Your Honour, we
would submit that - - -

HER HONOUR:  Because that is not what the section says.

The section predicates a necessity for doing

complete justice.

MR GRIFFITH: Rule 12(l)(a) does not, Your Honour. It

is not really section 31 itself but section 31

is regarded, Your Honour - and that was confirmed

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in the JACKSON case, I think - as confirming,

Your Honour, the existence of the general

jurisdiction in the Court to make interlocutory

orders by way of injunction as may be appropriate.

Of course, Your Honour, the question of what

is appropriate must rest with the discretion

of the Court and, as Your Honour said, to be

exercised in a precise way and only in occasions,

Your Honour, where it is appropriate, we would

submit, on the balance of convenience and having regard to issues of justice or injustice betwee~. the parties for there to be an order.

Your Honour, if the Court takes a consonant

order that it is not injust to the plaintiff
for it to stand out of its money for an indefinite

period and in favour of plaintiffs retaining

the benefit of that money in circumstances where

on no view of the case do they have any beneficial

right to it, Your Honour, in that case, of course,

the first premise we must rely upon and proposition

we must make out will not be established and

the matter will not go any further. But we

do submit that that is the basic question to
address as a result of our - if we had not made
the application, of course, Your Honour, we

would not have thought about it but we have

made it and we submit that when one looks at

the circumstances there is an issue of balance

of convenience to be considered and our submission

is, Your Honour, that that balance is all one

way.

Could I refer briefly to what Justice Gummow

said in this decision.

HER HONOUR:  Yes, please, Mr Solicitor. I am sorry to

have -

MR GRIFFITH:  His Honour there discussed, we say, at some

length and convenient length, Your Honour, the

question of whether or not there is a higher

threshold for applciation for mandatory

injunction and Your Honour will remember that

the previous Chief Justice in the STATE OF QUEENSLAND

V AUSTRALIAN TELECOMMUNICATION COMMISSION made

reference to this in 59 ALJR 562 at page 563,

that is referred to at page 9 of the transcript

of the judgment. But Justice Gummow considered

this and found himself not bound by that passage.

What he did, Your Honour, was to follow through

the discussion by Vice Chancellor ~~garry and

then the very useful judgment of Justice Hoffman

in FILMS ROVER INTERNATIONAL V CANNON FILM SALES

LTD, this begins at page 5 ~f the transcript

of judgment reported in (1986) 3 All ER 772.

I will not read that long passage to Your Honour

other than to submit that it does, in our submission,

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explain what we submit is the proper line of

inquiry in respect of issues of this sort, that one

should not say, "Well, mandatory injunctions

are different from mere interlocutory injunctions

of a negative quality" but the fact that a mandatory

injunction is claimed may be relevant when one

considers, "Will the consequence of making an order create a greater risk of injustice than

if there is no such order made?" That is what

Justice Hoffman suggests is the appropriate

line of inquiry and it is an approach which - -

HER HONOUR: Without your undertakings it would, would

it not?

MR GRIFFITH:  Yes, Your Honour. We have been very direct

about this; we are prepared, Your Honour, to

make assurance, doubly sure, and if the undertaking,

doing our best to anticipate what could be said,
but there could be injustice, is not wide enough

then we are happy to make it sufficiently wide

to ensure that all possibility of injustice

to the plaintiff is eliminated, Other than,

Your Honour, any injustice which is based upon

the plaintiffs' capacity to put the money out

on cash deposit and have the income for itself.

We are not prepared by our undertaking to cover

that as an injustice.

Your Honour, we are prepared to express

the undertaking in terms sufficiently wide to
ensure that there can be no injustice to the
plaintiffs in the event that their claim is

successful and to ensure that there can be no

even inferential injustice to any passenger

who might seek repayment on the basis that the

Act has been declared unlawful, relying upon

authorities such as WERRIN or MASON V NEW SOUTH

WALES dealing with rights to recover money under

protest. We are quite happy for our undertaking

to go through that principle, Your Honour, and

either against the plaintiffs - and we will	to leave the right of any passenger to recover
give a full indemnity; or against us, if they
like, Your Honour, we are prepared to make an
undertaking about that to repay to any passenger.
There is no list of passengers, Your Honour, to which one can go and write a letter and say, "Here is your $5 back." We know from the affidavits
of Mr Cardone that it is a stamp sold over a counter so that for there to be any substantial
repayment it would be necessary for passengers,
during that period, to come forward, produce some evidence that they travElled and that they
paid the amount, and then we say it does not
matter if we pay them back or the plaintiffs
pay them back, Your Honour, we are prepared
to cover that in our indemnity.

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Your Honour, we would accept and rely upon

Justice Gummow's analysis of this question of

the approach to claims for orders for mandatory

injunctions so it really boils down to a question:

is there a greater possibility of injustice

because it is a mandatory injunction and we

would submit, Your Honour, the other problems

about mandatory injunction - the difficulties

in being precise and those sorts of issues -

do not arise here.

(Continued on page 21)

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MR GRIFFITH (continuing):  Now, if my learned friend has a

quibble on his affidavit about these excluding amounts

to be repaid for stamps bought in advance under the

scheme which they devised for their own convenience,

Your Honour, well, we are quite happy to discuss and

incorporate a mechanism to cover that sort of thing.

So that if there is an indication as a matter of result on this issue, we feel confident that every

little interstice or problem could be worked out

because we are prepared to make an appropriate

undertaking to ensure that there can be no injustice.

Your Honour, in that circumstance, we submit we

have an original application of the sort which was

made in CHAN breaking new ground, perhaps, on the

question of applications for interlocutory injunction

but, of course, it is natural that one has new ground

in these situations because it really is more or less

only in the Australian constitutional system in a

practical way we can have litigation of this sort.

The Commonwealth passes an Act and the plaintiff says,

"Well, yes, I admit it covers me but I say it's beyond

power." Now, that having been done, Your Honour, we

do have several decisions of single justices indicating

that that should not inhibit the law being enforced in

the meanwhile.

Of course, Your Honour, there may be cases where

it is appropriate and the Chief Justice accepted that

and we accept that but once again our submission is

one should have regard to the particular peculiar

circumstances here. It may only be $5 million

but it is $5 million that, on no view, is the plaintiffs',

and we submit, Your Honour, that principles of

injustice to the party should apply to the Commonwealth

as much as to any other litigant and, Your Honour,
perhaps to anticipate something my learned friend, no

doubt, will say, we would submit it cannot be put

that the fact if we are successful in our counter-claim

in six months; nine months; twelve months; that we would

be entitled to ask for interest as part of our judgment.

HER HONOUR: Sorry?

MR GRIFFITH: That we would be entitled for judgment for the

amount plus interest, in our submission, is not an answer

to our claim in respect of what we say is the continuing

injustice if we are not able to have our money in the

meanwhile. It is not a question of waiting for interest,

Your Honour, it is a question, we would submit, that

it is our money. But we are prepared to enlarge our

open offer indemnity. We are prepared -

HER HONOUR: Is there any issue about pre-judgment interest

any more?

MR GRIFFITH:  It seems to be covered by amendments to the

JUDICIARY ACT, Your Honour. I think it is the 1984

amendments that covered it, Your Honour. Yes, 77MA

SlT3/l/PLC	21	16/8/88
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it has got to. I think that is common ground, Your Honour.

And we claim interest on our counter-claim.

So, Your Honour, we do appreciate that one could approach this application with an element of scepticism

in that it is original but we submit that by reference

to the merit and by reference to the flexibility which
we are prepared to offer to the Court by way of

undertaking, although we are happy to do it by way of

arrangement between the parties, an offer to indemnity

or undertaking to them, that all elements of prejudice

can be satisfied and we would submit that would

more or less leave the field clear, on conventional

principles, to find a balance of convenience. If

Your Honour pleases.

HER HONOUR: Now, may I be quite clear that you seek no order

staying or having the effect of staying temporarily

the proceedings?

MR GRIFFITH:  No, Your Honour. In fact, we did not really

intend that, Your Honour, it was merely an attempt to

relate the application to the sort of order one would get

in a court of first instance when one was seeking to

have a sanction if there were not compliance. But on

reflection, Your Honour, it did seem to us that the
route of seeking an injunction was really the true
expression of what we are applying for and we would
expect, Your Honour, if there was such an injunction

then it would be honoured. Now, if my learned friend says, "Well, we need 14 days" or whatever "for each of

the plaintiffs to sort out its paperwork or to sort
out whether or not it can account for 90 per cent of
what it has got" or whatever, well then, we are quite

happy, Your Honour, to enter into discussions.

We see this application to do with the principle

and the actual precise term of order, Your Honour, we

would hope, in the event that Your Honour determined

the principle as we submit, could be resolved by

agreement on the basis, Your Honour, that we indicate

that we are prepared to give whatever undertaking to

the plaintiffs or to the Court that is appropriate to

ensure that there is no injustice.

HER HONOUR: Yes, thank you. Yes, Mr Meagher.

MR MEAGHER: May it please Your Honour. There are several

things in my learned friend's submissions which, if not

entirely ducked, at least, very understated. One is a

failure to recognize the fact that the Commonwealth's

claim and the counter-claim is nothing other than an

action in debt.	It is not a claim for property or
anything else.

The next thing which is barely mentioned though,

surely, on an :interlocutory application is all important,

is that there is any suggestion of irreparable injury to

S1T3/2/PLC	22	16/8/88
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the CoIIIlllonwealth if the extraordinary interlocutory

mandatory injuction sought is not granted. There is

no suggestion that the government cannot carry on all

or any of its functions or that the money has been

specially earmarked or anything else in the nature of

irreparable injury. Indeed, not only is there no

case of irreparable injury even sought to be made out,

there is no case for any injury.

HER HONOUR: No case for any - - -?

MR MEAGHER:  - - - for any injury. The learned Solicitor has

not been able to say that he would suffer even the

possibility of one cent's worth of injury.

Another factor which barely surfaces in my learned

friend's arguments is that if the High Court ultimately

adjudicates legislation as invalid, then it is

an automatic consequence of that that the legislation

is invalid ab initio. It is entirely void; begins its

life void and ends it life void and all the Court

in declaring it invalid does is to declare that voidness.

My learned friend's argument would have some more sound conceptual basis if there were a principle that

legislation was valid until declared invalid so it was,

in effect, merely voidable. We all know that is not the

law. It also barely surfaced in my learned friend's

submissions that the question whether the plaintiffs

own any of the money which comes into their hands is

entirely irrelevant and there is authority of this

Court to that effect. It scarcely needs authority

because first principles tell you that one party

cannot come to the Court and say, "I want this money

because the other side is not entitled to it.''

Now, if I may just develop those points in a

somewhat but I hope not too expanded form: the proceedings

in the motion before Your Honour is obviously a request by
the CoIIIlllonwealth to seek, in substance, SUIIllllary judgment

although, in form, it is disguised as a mandatory

injunction to collect a disputed debt. Now, if section 34A,

in the short time of its existence, is unconstitutional

as the plaintiffs assert, there just is no debt and

neither the plaintiffs as a whole nor any one of them

owes one penny to the CoIIIlllonwalth.

Your Honour, in SOUTH AUSTRALIA V COMMONWEALTH,

(1942) 65 CLR 408 - I do not think Your Honour need go to

it, I just want to read one short paragraph.

HER HONOUR: What page did you say?

MR MEAGHER:  Page 408, the Chief Justice Sir John Latham, at the

very bottom of that page, Your Honour.

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Common expressions, such as: "The

courts have declared a statute invalid,"

somet-rr.es lead to misunderstanding. A pretended

law made in excess of power is not and never

has been a law at all. Anybody in the country

is entitled to disregard it. Naturally he will

feel safer if he has a decision of a court in

his favour - but such a decision is not an element

which produces invalidity in any law. The law

is not valid until a court pronounces against it -

and thereafter invalid. If it is beyond power

it is invalid ab initio.

So, at the moment, my learned friend's statement that the

law is valid is merely an assertion. Jus~ as to be

equally frank, our statement that it is invalid is
equally nothing but an assertion. The Court cannot make

any assumption in the present circumstances either in the

Commonwealth's favour or in our favour in that event.

The Court, unless Your Honour would take the extraordinary

course of pre-judging the main issue,at this stage

can simply say, "Well, it is asserted to be valid on

one side and asserted to be invalid by the other side".

So, there is no, as it were, prima facie right in the

Connnonwealth to any of the moneys in dispute.

The only purpose of an interlocutory injunction is

to preserve the status quo pending the final hearing.

So, what my learned friend must show is a serious question
to be tried - well ,-,,-he has certainly shown that -

and a probability that the Connnonwealth will suffer serious

or irreparable injury unless an injunction is granted and,
further, that there is a balance of convenience in favour of

granting the injunction.

Now, he has shown a serious question; he has not shown

the slightest possibility of any injury, much less

irreparable injury, and he has not shown, in our respectful

submission, anything on the balance of convenience. If you

add to that the conventional learning -although I must say

it has been and can be attacked for imprecision in its

statement from time to time - is that one requires a much

higher standard when one was seeking a mandatory

injunction rather than a prohibitory one and a higher

standard still for an interlocutory mandatory decision;

fhe number of interlocutory mandatory injunctions which

have been granted·beingalmost countable on the fingers of

one hand.

He also has to overcome the difficulty that

interlocutory injunctions are hardly an appropriate way
to collect debts when the existence of the debts in

question remains in dispute.

HER HONOUR:  He does not seem to put it·on that basis though,

does he, Mr Meagher? He seems to put it, well, perhaps,

at least in part, on the basis of some governmental right

to obviate any possibility of an unjust enrichment to

your clients which - well, perhaps I should not have taken

you out of your course.

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MR MEAGHER:  No, no, I am very indebted that Your Honour has

done so because to put it in quite that way which is,

if I may say so with respect, a bltltlter way of putting

his case then he himself put it, merely serves to

demonstrate how comical it is because what cause of

action is there to prevent a defendant from uniustly

enriching himself at someone else's expense? Not at the

Cormnonwealth's expense but someone else's. Because

we are not going to enrich ourself unjustly at the

Cormnonwealth's expense, after all, only six weeks away

this Court is going to tell us whether we are right or

wrong, and if the Cormnonwealth is right we must repay

every single cent we have collected together with

interest as he correctly says, and interest is supposed

to be legal compensation for any unjust enrichment that

we have got. So, he cannot say, consistently with the

law, that we are going to be unjustly enriched at his

expense.

Maybe, if we endeavoured to be machiavellian and

had lengthy disputes about refunding the amounts in

question to the individuals who paid it and we were

successful in that endeavour, we could be said to be

unjustly enriching ourselves vis-a-vis the passengers

who paid the impost, the passengers who bought the

stamps in question.	But there is no evidence we are
intending to do that; indeed, to the contrary.	Even if

that were the case, even if we were determined unjustly
to enrich ourselves at the expense of the-passengers, that

does not generate any sort of equity in the Commonwealth.

There is a passage in a judgment of this

very Court which, I think, disposes of a similar

argument advanced in the past, this is the judgment

of Mr Justice Windeyer in MASON V NEW SOUTH WALES,

102 CLR 108 and if I may just take you to one passage

at page 146 - there are other passages in the rest

of the judgment. Your Honour, this is a case dealing
with - one of the section 92 cases dealing with the

aftermath of declaring invalid some road tax legislation

in New South Wales.	One of the New South Wales'
arguments was that the plaintiffs could not recover

the money that they had paid under the legislation in

question because they had passed on the impost, in

effect, to their customers. So, His Honour

Mr Justice Windeyer says, at page 146:

It was argued that, even if they were

otherwise entitled, the plaintiffs were in

some way estopped from recovering because

they had "passed on" to their customers

the amounts paid for permits and are thus,

it was said, not themselves at a loss. I can

see no basis for this contention. Provided

it be recognized that the iction for money had and received is not only the origin of

but, as developed, still determines the scope

of the English law of quasi-contract, it

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seems to me not inapt to describe it as a
law of "unjust enrichment." But accepting

this, and I certainly see no need to-day

to look for the implication of a contract

or to speak of the fiction of a contract

when in reality there was no contract,

still how does it avail the defendant? If

the defendant be improperly enriched on

what legal principle can it claim to retain

its ill-gotten gains merely because

the plaintiffs have not, it is said, been

correspondingly impoverished? The concept

of impoverishment as a correlative of

enrichment may have some place in some

fields of continental law. It is foreign

to our law. Even if there were any equity

in favour of third parties attaching to the

fruits of any judgment the plaintiffs might

recover - and there is nothing proved at

all remotely suggesting that there is -

this circumstance would be quite irrelevant

to the present proceedings. Certainly it

would not enable the defendant to refuse

to return moneys which it was not in law

entitled to collect and which

ex hypothesi it got by extortion.

That is saying, in other words, that the fact that the

plaintiffs are not entitled to retain the moneys, if that

be a fact, has got nothing to do with the Connnonwealth's

right to demand payment. Yet that principle which is,

incidentally, asserted by many of Their other Honours
in the same case, is fatal to many of my learned

friend's submissions.

There are, however, the three modern decisions of

this Court which do need some elaboration; two of them are

CASTLEMAINE TOOHEYS and DAVIDS V BYRNES. Your Honour,

those cases really deal with this situation and it is a

long way from the present situation: those cases say

that where a plaintiff who has connnenced proceedings

against a government or an authority to declare some legislation invalid must find it difficult to get an	interlocutory injunction because in most cases or, at
least in some - perhaps in most cases - the Court on
the question of balance of convenience and irreparable injury will say at the moment there is legislation in force
even though it is under challenge but, of course, that is
not the present case. We are not in the position of
applicants seeking interlocutory relief against challenged
legislation. The boot is on the other foot. That disposes, I think, of those two cases.

in the case of RICHARDSON V FORESTRY COMMISSION,

you get a rather different situation. What was

involved there was legislation to preserve certain

forests in Tasmania and the plaintiff in the position of

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the authority got an injunction to restrain the

defendant from logging even whilst legislation was

under challenge. The reason for that is fairly

clearly expressed and obviously fairly convincing

and it was this, that the whole purpose of an

interlocutory injunction is to preserve the status quo

and obviously the status quo is going to be decimated

if the defendant goes in there and starts cutting down

trees which cannot irmnediately be forced to reappear.

And, similarly, by an extension of that argument,

that there must be a balance of convenience in the

public interest in the preservation of national

assets until the validity of legislation was

determined.

I would not seek in any way, either now or later,

to seek to qualify, much less challenge, that decision

but how does it possibly apply to the present case?

Where are the eq.iivalent of the missing trees? Where is

the public interest? Where is any danger to health or

whatever? It is nothing more than a simple debt case. In similar line of territory but certainly not

directly in point but we would suggest sufficiently

so by analogy, in one of the CLYNE cases, CLYNE V

DEPUTY COMMISSIONER OF TAXATION, 43 ALR 342 at 344, the

present Chief Justice said that under the TAX ACT

the cormnissioner could insist on payment even though

there was an objection outstanding and could take

steps in the Court to recover his tax, but it was

unusual to do so in those circumstances, even though

the Act expressly permitted it, and in such cases

it was a perfectly proper case for the Court to refrain

from entertaining the case and, in effect, staying it

until the proceedings involved in the determination

of the objection have been finalized.

(Continued on page 28)

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MR MEAGHER (continuing):  And what His Honour was pointin2 to

was the undesirability, surely, in cases of debt,
of the Court doing anything until the determination of
the ultimate rights in issue. Likewise, in the

Mareva injunction case to which my learned friend

referred, JACKSON V ST~RLING INDUSTRIES, 162 CLR 617,

in the joint judgment of Mr Justice Wilson and

Mr Justice Dawson, there is one passage of importance

going in the same direction.	The last three lines,
page 617:

One important result of viewing the Mareva

injunction in this way is to emphasize the

limits of the remedy. Its use must be necessary

to prevent the abuse of the process of the

court. As Lord Justice Ackner pointed out .....

the Mareva injunction represents a limited

exception to the general rule that a plaintiff

must obtain his judgment and then enforce

it. He cannot beforehand prevent the defendant

from disposing of his assets merely because he

fears that there will be nothing against which

to enforce his judgment nor can he be given

a secured position against other creditors.

The remedy is not to be~sed to circumvent the insolvency laws.

Now, the question of insolvency laws hardly matters

in the present case. What does matter is

Their Honours insistence, and the correct insistence,

that the general rule is that a plaintiff must

obtain his judgment and then enforce it. If that

is the general rule, why not apply it in the present

case? Because that is precisely what the learned

Solicitor is asking Your Honour not to do. He says,

give us a special sort of mandatory Mareva injunction

now and let us see what happens in the future as to
whether the debt does or does not exist.

That is, with respect, an astonishing submission,

and one which, in our respectful submission, Your Honour

will decline to accede to. Now, Your Honour, the position ultimately, then, is this. Your Honour will note that the Commonwealth is seeking this novel

form of mandatory Mareva injunction in respect of

a section which has been repealed and which only

applied to a comparatively closed period. In the

circumstances where the demurrer has been set down for

hearing by this Full Court in mid-October 1988, so it

is only six weeks away; in the circumstances where

there have been weeks and weeks where the Corrnnonwealth

could have interlocutory relief if it so desired, but

did not do so; and in circumstances where the

plaintiffs will find it very· 'difficult to comply

with any injunction if one were granted. The reason

I say it is this: as Your Honour will gather from

Mr Cardone's affidavit, none of the plaintiffs is

now in a position to know what money it has or has not

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received, because no money was paid to any

plaintiff separately. Your Honour will see that

the agreement with the post office is an agreement

by the association, to which all plaintiffs belong,

that certain stamps should be brought into

existence and sold to intending travellers.

HER HONOUR:  Was that the only method by which the fee was

collected?

MR MEAGHER:  As I understand it. I must say I have some .

slight doubt as to whether there may not have been

alternative means because the agreement with

the post office seem to come into existence

or seem to have been made at least some weeks before

the tax became payable. My learned junior points

out to me that is not correct. In paragraph 5 of

Mr Cardone's affidavit it says that the post office

began selling stamps on 1 January. So I think

the answer - it is not a.confident answer I make -

but I think the answer - - -

HER HONOUR:	Yes, I understand, Mr Meagher.
MR MEAGHER:	Now, bearing in mind that the people who go to

the post office to buy the things are either
individual travellers or travel agents who buy

in block and do not leave details there as to what

flights they were taking, there is no way any

individual plaintiff can work out which stamps

purchased were referable to it. This will not be

a difficulty at a final hearing, if ultimately

the Court decides that the legislation was valid,

because then one will not have to go to the bother

of trying to work out what stamps were attributable

to what. Each plaintiff will just have to look

at its various passenger lists and pay $5 in respect

of each body carried, irrespective of the amount of

money the post office pays.

So the arrangement with the post office

as between the post office and plaintiffs is,as it

were,joint and at an interlocutory level it is

very difficult to see how, physically, the joint

entitlement which they have against the post office

can be segregated into several obligations to pay.

That, of course, is not going to be a barrier at a

final level. In all those circumstances, we respectfully

submit that the Court oughtnot lend its aid to

enforcing a so-called obligation which might or might

not arise under legislation which we contend to be

constitutionally invalid. Thank you, Your Honour.

MR GRIFFITH:	Your Honour, if I could make a short point.
HER HONOUR:	Yes, Mr Griffith.

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MR GRIFFITH:  We do regard this as a debt, Your Honour, and

it is one to which we say, when one has reference to

the status quo, it is a debt which is lawfully

our money and pending judgment in the action,

Your Honour, we say the plaintiff has no right to it.

There is just no - the status quo is that the

plaintiff has our money and that should be preserved

by us having our money, in our submission.	We
say - - -

HER HONOUR:	And in the event of invalidity?
MR GRIFFITH:	Your Honour, in the event of invalidity, we

would say there would be an issue to be determined

subsequently as to whether money which was collected

by the plaintiffs in reliance upon the legislation

being valid from third persons,and we say received

by them for our use, should be money which the

plaintiffs can say that they are entitled to, or

whether we say that that obligation to hold it

for our use is one which should be perfected and

then the question of entitlement dealt with between

us and the passengers who paid it.	But that is a
matter for later consideration, Your Honour.	We
have indicated that our offer of indenmity or undertaking, in the event of invalidity, will
include the obligation to	indenmify the plaintiffs

in respect of any of the passengers to which they

may repay without any dernmd being made of them. As

indicated, Your Honour, we are prepared to off er an

indenmity on the basis that, if the money is paid to

us, we would repay the $5 to any passenger who,

consistently with the principles we have referred

to in the WES1PAC case, will claim it from us, so that,

in the event we seek to isolate that as an issue

not relevant to this application.

My learned friend suggests delay, Your Honour.

We were not able to contemplate this application till after the amended defence to counterclaim, which

was dated 21 July.	The original defence denied that
money had been collected, although that was alleged
in the statement of claim.	So that, Your Honour,

after that we attempted to obtain particulars, by

requesting those, and were not able to do that,

and then made this application and obtained what

was the earliest appropriate date for it.	So we submit
that there is no relevant delay.	We submit that,

until the defence to counter~claim, there was not

the simple basis available to us upon which we make

our application.

Now, as to my learned friend's submission as to the arrangement with the post office, Your Honour, if there has been an in globd collection mechanism

devised and as indeed we understand the sum of over

$5 million was paid by the Postal Commission to the

organization at the end of June, we would submit that

that makes it lot simpler to make an order,

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namely, that whatever sum of money has been paid
by tne Postal Commission as an in globo sum should

be paid to us, less the amount refunded in respect of returned stamps and with a provision for either a mechanism or retention of a small fund, or

whatever fund is appropriate, for future refunds;

it is just a simple arrangement, Your Honour. Or,

if need be, that the refund be made by us. But.

Your Honour, in effect, my learned friend, by that

submission, indicates that there is a very simple mechanism for the order to attach to the in globo

sum that has been received, less any further amounts

which have been repaid for unused stamps.

That does not reflect the statutory obligation

but it reflects, apparently, the realities we

discovered today as to the moneys collected. My

learned friend submits that there will be no difficulty,

in the event that the plaintiffs were unsuccessful
in their actions. Well, Your Honour, we could see

that there could be a difficulty, because if there is

an in globo sum, it is difficult to see how the

plaintiffs can divide that between themselves to

work out which share they get. But perhaps that is

something for them to be concerned about. But,

in effect, my learned friend's submission, in our

submission,were dealing with criticizing the

originality of this application. We submit that

that should not be a matter of disabling criticism.

We submit that the proper approach is to consider

the underlying assertion which gives rise to this

unusual application and test it in that way.For the

reasons which we put to Your Honour, we submit that

it is appropriate that an order be made. If

Your Honour pleases.

HER HONOUR:  I propose to reserve on this matter. I would

expect to be in a position to announce a decision

on Friday, but there would be no necessity for

counsel to be present because, even in the event that

you were successful, and I do not wish to express a

view on that one way or another, I would expect the

parties to formulate an order in accordance with

what was said rather than - I do not detect, unless

anyone wishes to put tom: to the contrary, that there

is any urgency about this matter, so that even if

your application were successful, it would seem to me

better.that the parties have time to see what I have

written and to formulate orders accordingly. So it

would be sufficient if - I would certify that it was

appropriate for counsel - - -

MR GRIFFITH:  It is a pity we now have to ask for that,

Your Honour - - -

HER HONOUR:  I am sorry.

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MR GRIFFITH:  It is a pity we now have to ask for that.

But could I indicate to Your Honour that if suppose that it would be appropriate for an order

for costs to go with the application.

MR MEAGHER:  Punitive costs.

MR GRIFFITH: What, punitive costs? So that, in this

application, if Your Honour would make a final order

on that.

HER HONOUR:  Yes.

MR GRIFFITH:  And, in the other event, well, we are indebted to Your Honour for your indication. :May it please Your Honour.

HER HONOUR:  Yes, thank you very much.

AT 4.30 THE MATTER WAS ADJOURNED SINE DIE

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