Legal Research Pty Ltd v Attorney-General (Cth)

[1992] QCA 183

IN THE COURT OF APPEAL

[1992] QCA 183

SUPREME COURT OF QUEENSLAND	Appeal No.36 of 1992
BETWEEN:

THE ATTORNEY-GENERAL OF THE

COMMONWEALTH OF AUSTRALIA

(Plaintiff)

Respondent

- and -

LEGAL RESEARCH PTY. LTD.
trading as MODERN ENGLISH

LANGUAGE COLLEGE OF AUSTRALIA

(Defendant)

Appellant

JUDGMENT OF THE COURT

Delivered the 5th day of June, 1992

The appellant has appealed against an order that it

comply with the requirements of a notice pursuant to sub-
section 5(1) of the Overseas Students (Refunds) Act 1990
(Commonwealth). The notice is dated 31st January 1992 and
signed on behalf of the Secretary of the Department of

Employment, Education and Training.

Although the Act is described as an Act "to facilitate

the refunding of payments made by overseas students unable
to undertake or complete courses of study in Australia
...", it might be more accurate to say that its purpose is
to enable the Commonwealth to obtain information to
facilitate the recovery from educational institutions of
refunds made by the Commonwealth to such students. When it
makes a refund to a student, the Commonwealth takes an
assignment of the debt owed to the student by the
educational institution and then, if necessary, sues as the
assignee of that debt to recover the amount in question.
Sub-section 5(1) of the Act enables the Commonwealth to
require an educational institution to supply information and
documentation with respect to overseas students who are, or
have been, enrolled at the institution or from whom the
institution has received money. By sub-section 5(2), an
educational institution that fails to comply with a notice
is guilty of an offence for which the maximum penalty is
$3,000.00.

It is not disputed that the appellant is an educational

institution within the meaning of the Act. The notice with
which it has been ordered to comply is the fourth notice
which it has been given by the Commonwealth, and the
appellant has twice been convicted for its failure to comply
with earlier notices. The first notice was dated 17 July
1991. The appellant was convicted on 9 September 1991 for
its failure to comply with that notice and fined $2,000.00
and ordered to pay costs totalling $3,908.75. The second
notice was dated 18 September 1991 and, on 8 November 1991,
the appellant was again convicted and, that time, fined
$2,500.00 and ordered to pay costs of $48.75. Both fines and
the costs have been paid. The third notice was dated 14
November 1991 and, as stated, the subject notice was dated
31 January 1992. The Judge who made the order under appeal
concluded that the appellant "has made a decision to
continue to refuse to comply with the statutory obligation

to provide the information demanded."

It is common ground that the Commonwealth proposes to

proceed against the appellant for an amount of the order of
$1.4 million which it has paid to 300 students who had
enrolled with the appellant but were unable to come to
Australia after the Commonwealth announced new entry
criteria on 30 August 1989. One basis upon which the
appellant contends that the order under appeal ought not
have been made is that the Commonwealth can obtain the
necessary information by discovery in the proceedings which
it proposes to institute against the appellant. However,
even if the appellant would not be entitled to resist
production on the basis of a claimed privilege against self
incrimination, discovery is plainly inadequate for the
purposes of the Commonwealth, which will not be able to
ascertain by discovery any information concerning payments
to the appellant by students of whom the Commonwealth is not
already aware.

The principal argument for the appellant is that an injunction, especially a mandatory injunction, ought not have been granted in respect of conduct made an offence by statute and for which the statute provides the maximum penalty considered appropriate by Parliament.

An injunction is a discretionary remedy and, while the

discretion falls to be exercised by reference to the
circumstances of each particular case, principles have been
developed concerning the ordinary exercise of the discretion
in matters in various categories. Different factors may
also bear upon the exercise of the discretion in relation to
applications for interlocutory and final injunctions,
applications for mandatory injunctions application for and
injunctions to restrain conduct. The appellant seeks to take
advantage of the principles usually to be observed in
connection with the grant of injunctions to restrain
criminal conduct, taken in combination with the established
caution of the courts in relation to the grant of mandatory

injunctions.

This case presents few, if any, of the features which

underlie that caution. The effect of the injunction is
simply to require the appellant to comply with the quite
specific, limited obligation imposed upon it by statute.
The appellant's submission that the order should not have
been made is mainly based upon the principles which have
been developed in relation to the use of injunctions to

oblige compliance with the criminal law.

Many of the modern cases are referred to in the
judgments (and the list of additional cases cited in
argument) in Peek v. New South Wales Egg Corporation (1980)
6 NSWLR 1. The judgments of the New South Wales Court of
Appeal in that case explain a number of the reasons why
courts exercise restraint in providing injunctive relief
where criminal sanctions attend the conduct sought to be
prevented and indicate many of the criteria which are
regarded as material.

It is unnecessary in this matter to embark upon an

exhaustive review of the authorities. There is ample
support for the proposition that an injunction may be
granted in relation to repeated offences, frequently in
disregard of an inadequate penalty, involving "deliberately

and flagrantly flouting the law".

The cases do not bear out the appellant's contention

that such injunctions are only granted in relation to
particular laws, such as those concerned with public health
and safety, although that may be a factor which influences
the grant of relief. There are numerous decisions in which,
in such circumstances, injunctions have been granted. See,
for example, Cooney v. Ku-ring-gai Municipal Council (1963)

114 CLR 582.

Nor do the authorities support the appellant's

submission that many more breaches must occur than were
demonstrated in this case before an injunction will be
granted. The finding of the trial judge that the appellant
"has made a decision to continue to refuse to comply with
the statutory obligation to provide the information
demanded" provided an adequate basis upon which he was

entitled to exercise his discretion to grant the injunction.

No grounds have been shown for this Court to interfere

with that exercise of discretion, and the appeal should

accordingly be dismissed.

Derrington J. Addendum:-

While agreeing completely with the foregoing, I would

raise the more fundamental question whether a situation such
as this correctly falls into that category where an
injunction is sought to restrain a breach of the criminal
law. Its real function is to enforce a duty to do a
positive act imposed by the statute where the penal sanction
exists only as an ancillary encouragement to the discharge
of the duty. The tenor of the provision emphasises duty
rather than the deterrence of criminal or anti-social
conduct, and in such a class of case it is questionable
whether the factors militating against the use of
injunction to restrain criminal breaches are really
apposite. The point was not argued and its resolution is
unnecessary in the light of the above result which may in
any case reflect some of the underlying logic behind this
query. However it is desirable that it should not go
unremarked.

The appeal is dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No.36 of 1992
Before the Court of Appeal
The President Mr. Justice McPherson Mr. Justice Derrington
BETWEEN:

THE ATTORNEY-GENERAL OF THE

COMMONWEALTH OF AUSTRALIA

(Plaintiff)

Respondent

- and -

LEGAL RESEARCH PTY. LTD.
trading as MODERN ENGLISH

LANGUAGE COLLEGE OF AUSTRALIA

(Defendant)

Appellant

JUDGMENT OF THE COURT

Delivered the 5th day of June, 1992

MINUTE OF ORDER:	APPEAL DISMISSED WITH COSTS
CATCHWORDS:
Counsel:	Mr R.N. Chesterman Q.C. with him Mr G.C. Martin for the appellant
Mr H.G. Fryberg Q.C. with him Mr W. Vitali for the respondent
Solicitors:	Messrs. Francis and McGregor the appellant
Australian Government Solicitor for the respondent

Hearing Date: 26/05/92

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No.36 of 1992
BETWEEN:

THE ATTORNEY-GENERAL OF THE

COMMONWEALTH OF AUSTRALIA

(Plaintiff)

Respondent

- and -

LEGAL RESEARCH PTY. LTD.
trading as MODERN ENGLISH

LANGUAGE COLLEGE OF AUSTRALIA

(Defendant)

Appellant

__________________________________________________

__

The President
McPherson JA.
Derrington J.
__________________________________________________

__

Reasons of the court delivered the fifth day of

June, 1992

__________________________________________________

__

APPEAL DISMISSED WITH COSTS