Conroy's Port Pirie Abattoirs v Channel Seven Adelaide (No 2)

[2005] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

CONROY'S PORT PIRIE ABATTOIRS v CHANNEL SEVEN ADELAIDE (No 2)

Reasons of His Honour Judge Lunn

3 August 2005

PROCEDURE

Injunction to operate pending determination of an appeal to the Full Court against a judgment of the District Court - held the District Court had no power to make such an injunction.

August Investments v Poseidon (No 2) 2 SASR 92, applied.

CONROY'S PORT PIRIE ABATTOIRS v CHANNEL SEVEN ADELAIDE (No 2)
[2005] SADC 95

THE PLAINTIFFS’ APPLICATION TO CONTINUE THE INTERLOCUTORY INJUNCTION UNTIL DETERMINATION OF AN APPEAL TO THE FULL COURT

1. On 31 August 2001 Judge Muecke injuncted the defendant until further order from broadcasting a proposed story about the plaintiffs. On 20 July 2005 I delivered my reasons on the trial of the action (Jud No [2005] SADC 85), entered judgment for each plaintiff for $8,100 and adjourned all other questions to 27 July. On that day the defendant applied to discharge the injunction of 31 August 2001 and the plaintiffs applied that it should be continued until the Full Court had determined an appeal they intended to institute.

2. On the findings which I made at the trial there is no longer any proper basis on which to continue the interlocutory injunction.  The only issue is whether that injunction, or some variant of it, should be continued until the Full Court has determined the proposed appeal.  I indicated that in my view at the best for the plaintiffs I should do no more than extend the injunction for a few days to enable the plaintiffs to seek an injunction in similar terms from the Supreme Court, even if I found that any such injunction was justified.  As the argument for such an injunction will involve submissions that my findings are wrong, and possibly an assessment of the plaintiffs’ chances of success on the appeal, it is inappropriate that I should deal with the matter other than for a “holding” order: cf Harris Scarfe Ltd v Ernst & Young (No 2) Bleby J, 6 May 2005, Judgment No [2005] SASC 168, unreported.

3. The defendant’s counsel submitted that while I was sitting as a District Court Judge I had no power to make any injunction, or to continue any existing injunction which otherwise should be discharged, based on considerations of the proposed appeal.

4. I am not aware of any authority directly on the point of whether the District Court can grant an injunction to preserve the subject matter of an action pending an appeal to the Full Court of the Supreme Court against an adverse finding of the District Court on that matter.  In August Investments Pty Ltd v Poseidon Ltd (No 2) (1971) 2 SASR 92, Zelling J held that the Supreme Court had no power to grant an injunction to preserve the subject matter of an action pending an application to the High Court of Australia for special leave to appeal. That decision was cited with approval, and applied, by the Full Court in Van Reesema v Giameos (No 2) (1978) 17 SASR 390. Both those South Australian decisions were not followed by a single Judge of the Federal Court in Patton v Minister for Defence (1987) 71 ALR 637. Since the High Court liberalised the power of Supreme Courts to grant stays of their judgments pending appeals to the High Court in Jennings Construction  v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 there has been debate about whether Supreme Courts have an analogous power to grant injunctions, but as far as I am aware it has never been determined either by the Full Court of the Supreme Court of South Australia or the High Court of Australia that August Investments Pty Ltd v Poseidon Ltd (No 2) is not to be followed.  It is a decision binding on me. 

5. It is not necessary to go into the arguments about the extent of any implied powers of the District Court to grant injunctions to facilitate its own processes.  If the Supreme Court, which has greater inherent and implied powers than the District Court, does not have power to grant injunctions pending appeals to the High Court, I cannot see that the District Court could have a similar implied power to grant injunctions pending appeals to the Supreme Court.  As it is a jurisdictional point the District Court should not exercise such a power unless it is positively satisfied that it does have it.  I am not so satisfied.

6. It was not contested that the suppression orders made by Judge Muecke in August 2001 should be discharged.

7. The Court has made the following orders today:

   1That the injunction granted on 31 August 2001 is hereby discharged.

   2The plaintiffs’ oral application for a continuation of that injunction pending them being able to apply to the Supreme Court for an injunction is refused.

   3 All of the suppression orders made by Judge Muecke in August 2001 in this action are hereby discharged.

   4 The question of the costs of these injunction applications is adjourned to be dealt with in conjunction with the contemporaneous applications for costs.