Snowy Hydro Limited v Metroll Victoria Pty Ltd & Ors
[2007] VSC 188
•4 June 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION COMPENSATION AND PLANNING LIST
No. 6396 of 2007
| SNOWY HYDRO LIMITED | Applicant |
| v | |
| METROLL VICTORIA PTY LTD | First Respondent |
| WYNDHAM CITY COUNCIL | Second Respondent |
| VAUGHAN INDUSTRIAL PROJECTS PTY LTD | Third Respondent |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 MAY 2007 | |
DATE OF RULING: | 4 JUNE 2007 | |
CASE MAY BE CITED AS: | SNOWY HYDRO v METROLL VICTORIA & ORS | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 188 | FIRST REVISION: 15 June 2007 |
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Application for leave to appeal pursuant to s.148 Victorian Civil and Administrative Tribunal Act 1998 – interim enforcement order granted without usual undertaking as to damages – principles to be applied by VCAT – extraordinary circumstances ordinarily necessary – test of extraordinary circumstances applied – clear cut prima facie continuous breach of permit coupled with serious damage capable of being regarded as extraordinary circumstances – no arguable question of law disclosed in Tribunal’s decision – limited order for partial closure made in discretion seeking to balance the interests of the parties.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr H Foxcroft QC, with Mr A Finanzio and Ms M Foley | Mallesons Stephen Jaques |
| For the First Respondent | Mr M Wright QC with Mr N Pane | Hoeys Lawyers |
| For the Second Respondent | No appearance | Maddocks |
| For the Third Respondent | No appearance | Nathan Kuperholz |
HIS HONOUR:
This is an application pursuant to s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998 for leave to appeal an interim enforcement order made on 7 May 2007 by the Victorian Civil and Administrative Tribunal constituted by a Deputy President (“the Tribunal”).
I accept for present purposes the principles to be applied are those derived from Secretary to Department of Premier and Cabinet v Hulls[1] as summarised by the first respondent:
[1](1999) 3 VR 331.
(a)Whether leave to appeal should be granted must always depend upon the justice of the particular case .
(b)Although the discretion to grant leave cannot (and should not) be fettered by judicial discretion, it is possible to lay down guidelines concerning the exercise of that discretion.
(c)The guidelines, which apply to applications for leave to appeal, may be summarised as:
(i)The applicant must identify a question of law arising out of the Tribunal’s decision.
(ii)The question must be relevant to the relief sought on an appeal.
(iii)The public or general importance of the question of law may be a relevant consideration.
(iv)The applicant need not establish that the Tribunal erred in respect of the question of law; that is for the appeal if leave be granted. The applicant must establish that the Tribunal’s decision is “attended by sufficient doubt” to justify the granting of leave.
(v)It must be just to grant leave.
(vi)It may have to be shown that to allow the error to go uncorrected would impose substantial injustice. Where the Tribunal’s order is final, that injustice will often be more readily discernible.
By the order in issue in this case, the Tribunal restrained the applicant (“Snowy Hydro”) from 11 May 2007, from operating a power station upon land situated in Cherry Lane, Laverton North, between the hours of 8.00 a.m. to 5.00 p.m. Monday to Fridays (except on public holidays or in the event of emergency) until further order of the Tribunal. Such order was made without requiring the usual undertaking as to damages from the party seeking it.
The Tribunal also made directions with respect to the further conduct of the proceeding before it, including orders for the mediation of the matter on 29 June 2007, and for the final hearing of the matter commencing 23 July 2007.
It is to be noted that the restraining order was of a confined nature:
(a) with respect to some hours of operation only; and
(b)pending a relatively expeditious hearing of the principal proceeding.
The interim enforcement order was made in response to an application made by Metroll Victoria Pty Ltd (“Metroll”). It alleges that the operation of a gas fired power station by Snowy Hydro, upon the land directly opposite its warehouse premises, has caused ongoing noise and vibration. Further such noise and vibration are alleged to have caused headaches, nausea and other adverse health effects amongst staff who work in office and associated areas at the front of the Metroll premises.
Metroll alleges that the operation of the power station breaches condition 3 of the permit pursuant to which it operates:
The use permitted by this permit must not, in the opinion of the responsible authority, adversely affect the amenity of the locality by reason of the processes carried on; the transportation of materials, goods, or commodities to or from the subject land; the appearance of any buildings, works or materials; the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, dust, waste water, waste products, grit, or oil; the presence of vermin, or otherwise.
The Tribunal made its order after a two stage hearing took place commencing on 30 March and 3 April 2007, at which affidavits were tendered from 10 Metroll staff, together with reports from two independent acoustic consultants. The Tribunal also received affidavits sworn by three employees of Snowy Hydro.
It also had the benefit of a view undertaken on 2 April 2007, at which it experienced the noise and vibration in issue. It observed that the windows in the Metroll building vibrate visibly and that this is evident both internally and externally. The Tribunal also observed other articles inside the Metroll building vibrating visibly, including a photocopier and other office equipment. The Tribunal was of course entitled to treat the view as evidence.
It was submitted on behalf of Snowy Hydro at the initial hearing that breach of the condition set out above required the formation by the responsible authority of the opinion specified in the condition.
Subsequent to the initial hearing the Tribunal was advised by Wyndham City Council that on 23 April 2007 it had formed the opinion “that the operation of the gas fuelled turbine associated with the utility installation located at Cherry Lane, adversely affects the amenity of the area by way of low frequency noise and vibration.”
Entirely properly and in accordance with the obligation to accord the parties natural justice, the Tribunal thereafter offered the parties a further hearing on 3 May 2007. At that hearing a further supplementary affidavit by Metroll’s General Manager was tendered on behalf of Metroll.
On 2 May 2007 Snowy Hydro filed with the Tribunal applications under s.149 of the Planning and Environment Act 1987 (the “P & E Act”), for review of the decision of the Council in respect of condition 3 of the permit and for declarations regarding the validity of that decision.
Snowy Hydro contends inter alia that the phrase “adversely affect the amenity of the locality” involves a qualitative judgment to be made in the context of the relative characteristics of the locality. It also contends that even if an enforcement order of some kind were appropriate a less draconian order than that imposed on an interim basis would be appropriate.
At the time of the decision now in issue, the Tribunal was confronted with argument as to the legal consequences of condition 3 and the Council’s decision in respect of condition 3, together with argument as to the facts.
In its decision the Tribunal summarised the evidence as to the nature of the power station and as to the effects of its operation upon Metroll. Because the latter are of significance with respect to its decision I will set out paragraphs [37] to [39].
37It is common ground, and I accept, that once the power station commenced to operate, the office building located on the Metroll property began to vibrate significantly and noise levels increased substantially externally and internally within the Metroll Building. The noise has a significant low frequency component.
38Ever since the power station started to operate (from November 2006 during commissioning and then on a consistent basis since December 2006 when the power station became fully operational) many of Metroll’s staff, particularly those located within the office building, began to complain that the noise and vibration from the power station caused them to feel sick. The range of symptoms include: headache, earaches, nausea, dizziness and just feeling generally unwell. The operation of the power station is also having an adverse impact on their ability to perform their work duties effectively. According to the affidavits of Metroll employees, many:
· Have reported that they have suffered from headaches, nausea, earaches and other adverse health conditions.
· Have been absent from work and unable to fulfil their duties effectively.
· Are taking Panadol on a regular basis in an attempt to combat the headaches – some employees are taken up to ten Panadol a day to combat the headaches.
· Have been unable to relax during their lunch break.
· Are experiencing “ringing in the ears”, lack of concentration, “mood swings”, trouble sleeping at night, neck pain, dizziness.
39This evidence was uncontested. I find that these adverse effects have been caused by the operation of the power station because, according to the affidavits of Metroll employees, those effects were not experienced by them prior to the power station commencing operations but the effects have become apparent since the operations commenced. I therefore find on the balance of probabilities that there is a direct connection. My own observations of the noise and vibration experienced during my inspection adds weight to the evidence by Metroll.
The acoustic evidence further demonstrated unsatisfactory noise levels for office accommodation. One of the acoustic consultants concluded in part as follows:
The low frequency noise levels during operation of the power station subjectively increase by at least four fold. Subjectively the low frequency noise produces an effect similar to that generated by a partially open rear window in a vehicle when travelling at speed.
The noise levels during non-operation of the power station although slightly in excess of AS2107, they are typical for offices associated in industrial premises [sic]. The overall dB(A) levels which heavily discount low frequency noise increase by between five to eight dB(A) during the operation of the power station. As a 10 dB(A) increase in noise is subjectively judged as a doubling in loudness, the amenity within the office is seen as being severely eroded during the operation of the power station.
The Tribunal’s decision then set out the history of attempts to ameliorate the noise effects of the power station upon the Metroll premises, including proposals to make modifications to the power station plant, which have not yet been completed.
At the suggestion of Metroll, Snowy Hydro had previously agreed to limit the operation of the plan so it would not operate between 11.00 a.m. and 2.00 p.m. There had been three occasions during February and March during which Snowy Hydro had needed to depart from this regime.
The Tribunal then considered its powers to make an interim enforcement order.
Section 120(1)(3) and (4) of the P&E Act provides as follows:
120. Interim enforcement orders
(1)Any responsible authority or person who has applied under section 114 for an enforcement order may apply to the Tribunal in an urgent case for an interim enforcement order against any person or persons in relation to whom the application under section 114 was made.
…
(3)Before making an interim enforcement order, the Tribunal must consider—
(a)what the effect of not making the interim enforcement order would be; and
(b)whether the applicant should give any undertaking as to damages; and
(c)whether it should hear any other person before the interim enforcement order is made.
(4)After complying with sub-section (3), the Tribunal may make an interim enforcement order directing any person against whom the order is made—
(a)to stop the use or development immediately or within the period specified in the order; or
(b) not to start the use or development; or
(c)to do specified things to ensure compliance with this Act or a planning scheme, permit condition or agreement under section 173.
The Tribunal identified by reference to prior decision of the Tribunal and authority,[2] the fundamental principle that in exercising powers of this type a court or tribunal should take whichever course appears to carry the lower risk of injustice. It then stated its task as follows:
57The first matter to be considered is whether there is a serious question to be tried. This involves a consideration of whether the Tribunal has jurisdiction to make an order, whether there is a prima facie breach of the permit and the probability of the application for enforcement order ultimately being successful.
58I must then consider where the balance of convenience lies. Having regard to all these matters I must finally decide if interim relief should be granted and if so, what form it should take. This will require consideration of the matters in section 120, namely: what the effect of not making the interim enforcement order would be; and whether the applicant should give any undertaking as to damages.
[2]Stonnington City Council v Blue Emporium Pty Ltd (2003) 15 VPR 267; Bradto Pty Ltd v State of Victoria [2006] VSCA 89 (“Bradto”); and see also Optus Networks Pty Ltd v Stonnington City Council [1996] 2 VR 209.
There is no dispute as to the statement of underlying principle made by the Tribunal or the above framework of analysis.
Further, it is not disputed that it was open to the Tribunal to conclude there was a serious question to be tried upon the full hearing of the proceeding. Nor is it disputed that it was open to the Tribunal to conclude on a prima facie basis the operation of the power station is having an adverse effect on the amenity of the locality by reason of noise and vibration, and that for the purpose of the proceeding the locality constitutes the Metroll property. Nor is it disputed that it was open to the Tribunal to find on the basis of the evidence before it that there is a prima facie breach of condition 3 of the permit and in its assessment there is a high probability that the proceeding will be ultimately successful.
At paragraphs [97] to [102] the Tribunal considered the effect of not making the order. It concluded that if it did not make an interim enforcement order the employees of Metroll would continue to suffer adverse health effects until some resolution to the problems associated with the operation of the power station are found. It found that there was no certainty as to when modifications to the power station would be implemented. It further found that the adverse effects on the health and wellbeing of Metroll employees were such as to affect their capacity to work efficiently and accordingly were such as to affect the business operations of Metroll.
On the other hand the Tribunal accepted that if an interim enforcement order was made Snowy Hydro would suffer financial loss by any constraints on its ability to generate electricity, in particular its ability to draw on large scale electricity generation at short notice, which may affect its ability to cover or enter hedging contracts. It accepted that an interim enforcement order may cause Snowy Hydro financial loss and recorded that no attempt was made to quantify this loss. It was not persuaded that a restraint on generating capacity would result in higher electricity costs for consumers or a higher risk of blackouts.
It is not suggested that the Tribunal’s findings as to the probable effects of the interim enforcement order were not open to it.
The Tribunal went on to conclude that in weighing up and identifying the lower risk of injustice the most important competing interests were those of financial loss compared to human health. It considered that it was more important to protect the health of Metroll employees than to avoid the risk of some financial loss to Snowy Hydro. It stated:
The adverse health effects are not trivial or easily put up with. They are not theoretical or potential. Rather, they have occurred; they are continuing to occur; and they are likely to continue until the present levels of noise and vibrations stop.
The Tribunal then turned to consider the failure to give an undertaking as to damages. It is in the manner of this consideration that the applicant contends that the Tribunal erred in law. It is said the Tribunal erred in the principles applied by it and it is further said that it erred by having regard to irrelevant considerations.
In addressing the question of an undertaking as to damages the Tribunal took the following steps:
·It reiterated statements made by Morris J in Blue Emporium including the following:
In the usual course such an undertaking will be required. But where the applicant is a responsible authority, with a duty to enforce the planning scheme, and particularly where the issues are clear cut and the probability of a final order is close to 100%, the circumstances do allow the Tribunal to exercise its discretion not to require such an undertaking. I exercise the discretion in this case.
·It expressly recognised that the case with which it was concerned was not that of an application by a public authority with a legal duty to enforce a planning scheme as in the case contemplated by Morris J.
·It summarised its conclusions with respect to financial loss:
113Snowy Hydro gave no indication of the amount of financial loss it might potentially suffer. Nor did Metroll give any specific reasons why it was not prepared to give an undertaking as to damages. Nevertheless, I consider it is reasonable to infer that the potential financial losses that Snowy Hydro might suffer could be substantial and that any call on the undertaking could have very serious, perhaps even disastrous, consequences for Metroll.
·It referred to authority supporting the view that it is only in the most exceptional circumstances that an undertaking for damages should not be required before granting interim injunctive relief. It set out passages from the judgment of Mandie J in Blue Wedges Inc v Port of Melbourne Corporation and Anor[3]and Heydon J in Combet v Commonwealth of Australia.[4]
[3][2005] VSC 305.
[4][2005] HCATrans 459 (29 July 2005) at [1530] to [1645]..
·The passage quoted from the judgment of Mandie J includes the following:
[11]In my opinion a fundamental consideration on this application for an interlocutory injunction is that no viable undertaking as to damages is or can be offered by the plaintiff. Such an undertaking is required save in exceptional circumstances. It is convenient to refer to, and I adopt, what was most recently said in that regard in the High Court by Heydon J in Combet v Commonwealth of Australia. I can conceive that in some circumstances an interlocutory injunction might be granted without requiring the usual undertaking as to damages if there was a manifest breach of the law threatened. It might then be in the public interest to grant such an injunction without requiring the usual undertaking as to damages. Likewise if there was a proven danger of irremediable harm or serious damage an interlocutory injunction might perhaps be granted in some circumstances without the undertaking being required.
[12]However in the present case I do not consider that exceptional circumstances have been established. I consider that there is a serious or reasonably arguable question to be tried concerning the alleged threatened breach of s.6(2) of the EEA Act but it is not an open and shut case by any means. …
·The passage cited from Combet is as follows:
In my judgment, the Court will almost always decline to grant an interlocutory injunction unless the plaintiff undertakes to the Court to pay any damages which the Court may later assess as necessary to compensate the defendant for any harm caused by the interlocutory injunction in the event that the Court at the final hearing refuses to grant a final injunction. The importance of the undertaking is that without it a defendant ultimately successful at the final hearing would not be able to recover damages for any loss suffered by complying with the interlocutory injunction.
The Tribunal then stated at [116]-[118]:
116The statements in Combet and Blue Wedges were made in the context of High Court and Supreme Court proceedings, not in the context of section 120 of the Planning and Environment Act 1987. They also related to situations where there was a threat of a breach, not a breach which is in existence, which has been occurring for some time and where there is evidence of serious effects.
117In my view, the words of section 120(3)(b) – “whether the applicant should give any undertaking as to damages” – should not be interpreted as meaning “why the applicant should not give any undertaking as to damages”. This would give a different emphasis to the words of the section. I consider that section 120(3)(b) gives the Tribunal a real discretion as to whether the applicant should give any undertaking as to damages and that such an undertaking should not be regarded as tantamount to being mandatory, even though the Tribunal’s practice may be to commonly require such an undertaking. Each case must be decided on its merits. Issues such as justice, the public interest, the relative means and roles of the parties, the strength of the applicant’s case and whether there is “a proven danger of irremediable hard or serious damage” will all be relevant considerations.
118I consider that the present case represents the sort of exceptional circumstances referred to by Mandie J in Blue Wedges.
The applicant submits that the opening sentence of [116] carries with it the inference that the Tribunal took the view it should approach the matter differently from the approach stated in the cases cited above. The possibility that a different approach may be appropriate was raised by Morris J in the Blue Emporium case.[5]
[5]See [5] in the passage cited at [110] of the Tribunal’s decision.
I do not accept that [116] of the Tribunal’s decision does carry with it the inference that the Tribunal took a different approach from that adopted by the courts.[6] Firstly, the first sentence of [116] is simply a statement of fact. Secondly, the context of the proceedings to which it refers, is and must be a potentially relevant consideration in the context of injunctive relief (e.g. whether what is in issue is enforcement of a private or public right). Thirdly, the Tribunal went on to expressly consider and determine the matter by reference to the concept of exceptional circumstances articulated by Mandie J. Fourthly, it should be steadily borne in mind that it is necessary for an appellant on a question of law to establish not only the possibility of a theoretical error of law but the fact of a vitiating error. In the present case there is in my view no arguable possibility of the plaintiff establishing vitiating error, even if contrary to my view, the statements contained in paragraph [116] and [117] are read as contemplating an impermissibly wide discretion. This is because the criterion applied in [118] is expressly that of exceptional circumstances.
[6]It is not submitted that it contained explicit error.
In so finding I should not be taken to be holding that no doubt attaches to the principles to be applied to a responsible authority seeking to obtain an interim enforcement order in purported performance of a statutory duty (see the judgment of Callaway JA in Optus v City of Boroondara). [7]
[7][1997] 2 VR 318, at 340-341.
It is further submitted on behalf of Snowy Hydro that the Tribunal erred in [116] by drawing a distinction between a case of existing breach of the law which threatens to continue and threatened future breach not yet existing. In my view it is plain that a case of a continuing existing breach may be more readily regarded as constituting exceptional circumstances, than one of possible future breach. So much is implicit in Mandie J’s identification of a “manifest breach of the law threatened” as one of the possible bases for a conclusion that exceptional circumstances exist. In my view the proposition that the statements contained in [116] demonstrate error of law by identifying as potentially significant the existence of an actual continuing breach of the law coupled with evidence of serious damage do not demonstrate any arguable error of law.
In turn, the terms of [117] do not add to the plaintiff’s case concerning [116]. Although expressed broadly, read fairly they simply record the recognition of a real discretion which must be exercised on the merits having regard to relevant considerations some of which are exemplified. The generality of the Tribunal’s statements is followed by the specific conclusion contained in paragraph [118] that the present case represents “the sort of exceptional circumstances” referred to by Mandie J in Blue Wedges.
This conclusion could only be challenged if it were not open to the Tribunal. In my view it is not arguable that it was not:
(a)It is founded on conclusions of fact reached by an expert tribunal, one not bound by the rules of evidence, and in whom Parliament has vested the discretion to weigh up the factual considerations relevant to a decision of this kind;
(b)It ultimately involves the weighing up of factors going to the proper exercise of the discretion. The factors to which the Tribunal had regard were relevant factors and the fundamental principle guiding its discretion was correctly identified by it.
The Tribunal made specific findings concerning the balance of convenience in the following terms:
119The balance of convenience favours Metroll. There is a serious and reasonably arguable question to be tried at the hearing of the enforcement order application. On the basis of the current evidence before me, the application would have a high probability of success. In terms of the adverse health effects being experienced by Metroll employees, there is no evidence that they will suffer irremediable harm but I accept that the health effects are serious. For all these reasons an interim enforcement order is justified.
120It is a situation though where the potential quantum of the undertaking which might be called upon is so uncertain, but potentially massive, that to require an undertaking as to damages would put interim relief out of the reach of anyone other than possibly the State of Victoria or an applicant with very deep pockets. In my view, it is unrealistic to expect that a company should risk possibly putting itself out of business in order to protect the health and well-being of its employees. It is also unrealistic to expect that, when faced with a clear cut, prima facie breach of a permit, a person should be required to give an undertaking that it would not have the capacity to deliver on in the event that it was called upon.
121A statement which has been oft-quoted is that, “The remedy of injunction should be available whenever required by justice.”
122As I noted earlier, it is relevant that the adverse effects are not being experienced by Metroll as a corporate entity but by individuals who work for Metroll and who have no option but to continue attending work each day if they wish to continue their employment. I do not consider it is just that their health or wellbeing should be discounted because Metroll, as their employer, is not prepared to given an undertaking as to damages.
123In these circumstances, which I regard as exceptional, where there is a manifest breach of the permit now occurring that is causing serious harm, I consider the public interest will best be served by making an interim enforcement order even though there is no undertaking as to damages. Therefore I hold that an undertaking as to damages is not required.
In my view the reference to a “manifest breach” in paragraph [123] is to be understood as a “clear cut prima facie breach of a permit”, reflecting the previous findings of the Tribunal and the language used in [120].
It was submitted on behalf of Snowy Hydro that the Tribunal erred in having regard to the potential quantum of damages payable pursuant to an undertaking, as a factor relevant to the refusal to require an undertaking. In my view the financial implications of a requirement for an undertaking (insofar as they were able to be assessed) were self-evidently relevant to the Tribunal’s considerations, as was the reasonableness of the refusal by Metroll to give an undertaking.
The Tribunal was bound to consider these issues whether it ultimately concluded that an undertaking for damages should be required or not. This is so despite the absence of direct evidence as to possible financial loss and the possibility that Metroll might ultimately succeed in obtaining less draconian relief that the interim order. This gives rise to the possibility of loss to Snowy Hydro even if Metroll is partially successful.
In my view the Tribunal’s exercise of a discretion on an interim basis by reference to provisional findings of fact open to it, and the test of exceptional circumstances applied by it, discloses no arguable error of law and leave to appeal should be refused.
More particularly it was open to the Tribunal to place weight upon the damage it was provisionally persuaded would flow from a clear cut prima facie breach of the permit, and to have regard to the character of such damage namely physical injury and distress to Metroll’s workers. It was further open to it to evaluate the relative significance of such matters as a question of fact and degree.
An analogous consideration of the character and probable extent of damage was regarded as critical by Ormiston J in Optus v Boroondara[8]:
It should be clearly understood, however, why I consider the court should accept the undertakings proffered by Optus rather than impose an interlocutory injunction directed to the work described in the present notifications. If I had thought that significant and irreparable harm was likely to flow from the discharge of the present injunction and from a failure by this court to grant any injunction to prevent those works, then I would have concluded that this court should make the orders sought by the City of Boroondara (“the city”), notwithstanding the difficulties the city faced in seeking to persuade the court that Optus had breached the law and notwithstanding the city's failure to give an undertaking in respect of consequential damage. Although there were suggestions in the evidence that Optus's works were likely to cause serious damage to trees in the city's streets, the evidence showed that, because of the low level of current which passed through Optus's cabling, the extent to which trees had to be trimmed by it was and is negligible and that, where damage of a more significant kind had in the past been caused to trees in other municipalities, that had resulted from works carried out by or on behalf of electrical undertakings whose wires posed substantially greater risk of danger if brought into contact with trees.
[8][1997] 2 VR 318.
In Bradto the Court of Appeal cited with approval the following passage from the judgment of Lord Diplock in NWL Ltd v Woods[9] which also emphasises the fundamental significance of the character of apprehended damage when considering injunctive relief. Lord Diplock stated that where-
" ... the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other."
[9][1979] 1 WLR 1294, at 1307.
The observations of Mandie J in Blue Wedges also rightly in my view couple the question of irremediable harm or serious damage (noting the finding in the present case was of serious not irremediable damage) with that of manifest threatened breach of the law as potential bases for a finding of exceptional circumstances.
I do not accept that it is arguable the matters the Tribunal identified could not be regarded as exceptional.
In so finding I should not be taken to dissent from the submission put to me on behalf of Snowy Hydro, that the general principles to be applied by the Tribunal in considering applications for interim enforcement orders include that stated in National Australia Bank Ltd v Bond Brewing Holdings Ltd[10]:
The usual undertaking as to damages is the price that must be paid by almost every applicant for an interim or interlocutory injunction. An injunction will by its nature require a person to do or abstain from doing some act and so is by its nature an order with a tendency to prejudice the person to whom it is directed. The practice of requiring the undertaking recognises that, the injunction being only interim or interlocutory and so the rights of parties not having been finally determined, it may at a later stage appear that the applicant should in fairness compensate the party enjoined for the harming as suffered.
[10][1991] 1 VR 386.
Despite this general principle, however, I am fortified in the view that the Tribunal’s reasons disclose no real and significant basis for argument in respect of questions of law, by the fact that the Tribunal’s order involved a balancing of considerations on a temporary basis only and in contemplation of the resolution of the underlying dispute in the immediate future.
Ultimately when the Tribunal’s decision is read as a whole, it is apparent that for the reasons stated by it, it has adopted the course which appeared to it to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.[11]
[11]cf Bradto at [35].
It is clear from paragraphs [124]-[127] that it carefully considered the terms of initial orders which it concluded would balance the interests of both Snowy Hydro and Metroll in the interim. Appropriately that order expressly reserved liberty to apply. Accordingly the application for leave to appeal should be refused.
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