Wenpac Pty Ltd v Allied Westralian Finance Ltd

[1992] HCATrans 311

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4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl9 of 1992

B e t w e e n -

WENPAC PTY LIMITED

Applicant

and

ALLIED WESTRALIAN FINANCE

LIMITED

Respondent

Application for special

leave·to appeal

MASON CJ

DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 16 OCTOBER 1992, AT 9.18 AM

(Continued from 15/10/92)

Copyright in the High Court of Australia

Wenpac 16 16/10/92

MASON CJ: Yes, Mr Ellicott.

MR ELLICOTT:  When the Court adjourned, Your Honour the

Chief Justice had asked me about a sentence at

page 80:

In my opinion the respondent has no

reasonable prospect of successfully opposing

the appellant's claim -

that that is a conclusion based on three	that sentence. Reading the judgment it is clear
propositions that were in the preceding paragraph.
with those propositions. The first was: Very quickly, Your Honours, if I could just deal

the omission to exercise the option was not

caused by any misleading conduct on the part

of the respondent;

That, of course, is contrary to the facts as

pleaded and that is all we are concerned about

here. The failure to exercise the option was due

to it because what the applicant was doing then was

negotiating a fresh option at a lower price in
respect of different equipment. So that was ·quite

contrary to the facts as pleaded.

secondly, where the appellant well knew that

failure to exercise the option would result in

its not being able to acquire ownership of the

chattels in question;

Your Honours, that really is a misconception of what section 87 is all about because section 87

permits the court to remould the arrangement
between the parties so as to correct the damage

from the misconduct and to say that he well knew

that failure would result in it not being able to

acquire ownership of the chattels simply meant that

the court was misconceiving what it could do to

relieve the situation.

thirdly, where a remedy was at hand to recover

any part of the option price that was paid,

after exercise of the option, in consequence

of any misleading conduct on the part of the

appellant.

First of all, if the applicant had done that, then obviously it would have been faced with the problem of the respondent saying, "Well now you have

approbated and reprobated" et cetera and it would

have then been said, of course, that we had lost

our rights.

Wenpac 17 16/10/92

At that point, it does seem that there is a

misconception on the part of the Full Court as to

the operation of section 87. They seem to be

thinking that the option had to be exercised to

keep it alive so that section 87 could operate on
it and remould it. Of course, that cannot be
right. It was a different option. What was

happening was that our client was seeking, itself,

to have the option remoulded in conjunction with
the respondent, and the respondent was not prepared
to do that; the time elapsed, and there was no need
to keep the old option alive. Indeed, if it had,

there would have been real difficulties then facing

my client as a result of it.

In effect, it shows, we would submit, how the

Full Court and, indeed, the judge below, misunderstood the width of section 87 and how it

operates. So that that passage, we would submit,

is a clear indication of that, showing a

misconception.

The courts - the Federal Court in particular

has, as Your Honours know, used section 87 at an

interlocutory stage and has granted orders which

are designed to keep alive - and of course the

injunctive procedures under section 82 - to keep

alive the rights of. the parties. We have handed up

two cases this morning, George MacGregor v Caltex

Oil, a judgment of Mr Justice Northrop, and another of Glandore v Elders Finance, a judgment of

Mr Justice Merling, and they are both illustrations

of how the Federal Court exercises the

interlocutory jurisdiction to keep the parties'

situation alive.

I did not refer Your Honours in detail, or at

all, indeed, to those cases I handed up on the view

of the Federal Court in relation to section 87.

Again, I do not want to spend time taking

Your Honours to it, but to give Your Honours the

flavour of it it is sufficient to refer to Mister

Figgins, the first of them, page 56, where

His Honour said:

I reject any suggestion that the form of order to be made in this case is limited to

the form of relief claimed by the applicant.

Section 87 confers upon the court a wide

discretion to do justice between the parties.

The court should not restrict the exercise of

that discretion by imposing upon itself

technicalities which might defeat the policy

of the section.

That was early days. Since then that jurisdiction has been developed and Your Honours will find

Wenpac 18 16/10/92

reference to Henjo and another case, Creative's

Landscape, which is in that bundle. What the Full

Courts of the Federal Court have developed is the

principle that it is very wide, it is not

restrained by legal and equitable considerations

and that, indeed, those matters are matters for

consideration but not matters - in other words, to

guide the jurisdiction as distinct from controlling

it.

without gleaning something of a misconception which One cannot read the judgments in this matter

borders on - although Their Honours say that they
understand how wide it is, in applying it they seem

to have allowed it to be controlled by their

conception of legal and equitable remedies. Even

if this Court is not convinced of that matter, it

is clear enough, we would submit, on our argument

that the Full Court was wrong in concluding that

the applicant had no reasonable prospects of
success.

This, of course, was a critical factor in

deciding whether to grant an injunction. So

whether section 87 is there for this Court to

consider, nevertheless it is a critical factor in

going into the issue of mandatory injunction. But

whichever way the matter is put, it does involve a

consideration of the width of section 87.

I did not refer Your Honours yesterday to this

fact, that at page 76 the Full Court agreed with

Mr Justice Wallwork. It is said, at page 76F:

While I agree entirely with Wallwork J,

for the reasons set out by his Honour, that

the balance of convenience is strongly

weighted against the respondent, I have come

to the conclusion -

et cetera. So there was no doubt that the balance

of convenience was in our client's favour in the

eyes of the court below.

Your Honours will recall that yesterday I

referred Your Honours to Mr Justice Murray's use of

the words "strong arguable case" which seem to be

out of keeping with either the test laid down by

Mr Justice Hoffman, that is to say he said you take

whichever course appears to carry the lower risk of

injustice or the other test, of which he said this

was an illustration, that you had to have a high

degree of assurance. Now, "strong arguable case"

is not, we would submit, good enough for an

injunction which is mandatory or mandatory in

character.

Wenpac 19 16/10/92

Secondly, the proposition developed by

Mr Justice Hoffman and taken up by

Mr Justice Gummow is in itself not a sufficient basis upon which to guide courts in relation to the

issue of mandatory type injunctions for this simple
reason, that it is not a mere balancing act, that
is to say, you take whichever course appears to

carry the lower risk of injustice. Well, of course

you would do that in an ordinary prohibitory

injunction situation. But faced with a mandatory
injunction, it is not a mere balancing act and that

is why the courts over the years have developed the

test which was adopted by Sir Harry Gibbs, that is

"high degree of assurance". To simply say to the

judiciary, as a principle, "Oh well, take whatever

course appears to carry the lower risk of

injustice.", does not tell a lower justice, if I

may put it that way, how to exercise that

jurisdiction. And that is the reason why the

courts developed "high degree of assurance". It is

a proposition which the judiciary can understand

and comprehend and apply. Do I have that high

degree of assurance that when this matter comes on

for trial the plaintiff or the party in whose

favour I am granting an injunction will succeed?

So we would submit there is involved in .this

case, quite clearly, a view which seems to stem

from Mr Justice Gummow's adoption of

Mr Justice Hoffman. Contrary, we would submit,

to what Mr Justice Megarry and Sir Harry Gibbs

said, there seems to have developed a view which is

a difference of principle and this question of

granting mandatory injunctions is so important to

the general administration of justice that it is a

matter that Your Honours, we would respectfully

submit, should take up in this case and grant

special leave. In other words, we are really

submitting that here there is every tangible

evidence that the Full Court of Western Australia

went hopelessly wrong in relation to this matter.

If they did, it is because of a misconception of

the basic principles.

There is no doubt that the Full Court, as did

Mr Justice Murray, think that the injunction in

question was mandatory and, indeed, at page 75,

that becomes abundantly clear where Mr Justice Ipp

said:

The respondent brought proceedings for an

injunction directing that the chattels be

delivered up.

It is not accurate, but that is what His Honour

said. I am sorry, that is accurate, that is what

His Honour said.

Wenpac 20 16/10/92

An injunction as claimed was granted by the learned Chambers Judge and it is against his order -

His Honour was incorrect in saying an injunction

as claimed. In substance as claimed is correct,

and His Honour clearly saw that as a mandatory

injunction that was sought.

Your Honours, we raised yesterday the question of the Hire-Purchase Act and I said sufficient to

indicate that because of the inclusion in the

arrangement of an option to purchase that the lease

became a hire-purchase agreement. Now, that had

certain consequences. Section 28(l)(g):

Any provision in any agreement or other

document whereby -

.....

(g) the owner under a hire-purchase agreement

or any person acting on his behalf is

authorised to enter upon any premises for the

purpose of taking possession of goods

comprised in the hire-purchase agreement or is

relieved from liability for any such entry;

. . . . .

is void.

(2) Where any agreement or other document

contains a provision that is void under
subsection (1), the owner under the relevant
hire-purchase agreement concerned commits an

offence against this Act.

That must mean that immediately that option came

into the arrangement - not the option was void,

but clause 19 of the lease was void and that the

owner then had the responsibility of saying to our

client, by agreement, I will take that provision

out of the lease. Otherwise he was committing an

offence.

MASON CJ:  Why do you not move to have the injunction

dissolved on this ground?

MR ELLICOTT:	On this ground? Your Honour, that is a course of action that my client would have to consider if
this application is refused. But at the moment it
sees this as its primary course and it is pursuing
it. But that is no reason, we would submit, the
fact that we may have that remedy, for not granting
special leave to appeal, if we are faced with what
we would submit is a wrong injunction against us
that can be dissolved on the grounds that were
adopted by the Full Court which throw up these
principles of law that we have referred to.

Wenpac 21 16/10/92

DEANE J: But it is a reason for us not using this new ground

as a reason for granting special leave to appeal.

I mean the appropriate course in so far as this

ground is concerned is that suggested by the Chief

Justice.

MR ELLICOTT:  Your Honour, if that were so, yes, but when a

matter comes up and the court below, whose judgment	we are attacking, refuses to take any step in
relation to it, and that is the case here, then is
it necessarily so that this Court does not then
take up the whole matter because, really, if it is
clear that on the - - -

DEANE J:  I was not suggesting that, Mr Ellicott. I was

saying or suggesting that this new point is not a
reason why this Court should take up the whole
matter when the point can be properly raised by the

proper course.

MR ELLICOTT:	I am sorry, Your Honour, I did not comprehend what Your Honour was saying to me.
DEANE J:	I was not suggesting for a moment that this was a

disqualifying reason.

MR ELLICOTT:  By itself, no, Your Honour, it is not a

separate ground upon which this Court - and

Your Honour might well be right, with respect, in

saying it may have no weight at all, but I am

pressing the submission that it does because in the

teeth of the law of Western Australia, this

injunction is granted, and that must be, we

respectfully submit, a reason why this Court will

not be slow to intervene to overturn an injunction

which we submit was granted wrongly, albeit on

other grounds.

We have pointed out to Your Honours the severe

effect that the Hire-Purchase Act has and

section 12A makes it an offence, we would submit -

prevents the owner from exercising any power to
take possession, rather, except with the consent of

the relevant commissioner. Section 15 gives

certain rights to relief in respect of the taking
of possession of goods and certain rights of
recovery. That is a matter that we should, in any

event, refer this Court to because it did occur

between the time that the judgment of the Full

Court was granted and this application and we would

be wrong not to bring that to the Court's

attention. But we do rely on it as a matter which,

against the background of all the circumstances of
this case, having regard to the fact that they

pleaded the option to purchase, and having regard

to the fact that all we are doing is to point to

the legal consequences of those facts, that this is

Wenpac 22 16/10/92

a matter that this Court can properly take into

account.

For those reasons, Your Honours, we would

submit the Court should grant special leave in this

case.

MASON CJ: Thank you, Mr Ellicott. Mr Hasluck

MR HASLUCK:	Your Honours, my learned friend submits that there is a need for the High Court to resolve
difference of opinion between the approach of the Federal Court to section 87 of the Trade Practices Act and the resolution of the issue in this
particular case.  My submission is that this is not
so and, in my submission, the starting point must
obviously be what the majority in the Full Court
actually said. That is to be found at page 80 of
the application book. At the top of that page
His Honour Mr Justice Ipp clearly says:

I accept that as Burchett J said in Deane v Brian Hickey Invention Research Pty Ltd &

Anor (1988) ATPR 40-889 at 49-612:

"Section 87 confers wide powers and

discretions upon the court to enable it to do

more complete .justice than can in some cases

be done merely by an award of damages."

So that is really the starting point; a clear

recognition of the width of the powers in

section 87. In the course of debate, my learned

friend has been unable to direct your attention to

any passage in any of the judgments below which
expressly marks a divergence from the approach

adopted by the Federal Court and therefore he

really falls back upon the proposition that by a

close reading or an analysis of the implications of

their judgment a divergence is to be found.

Now, in my submission, that proposition cannot

be sustained either. When one looks at the
approach adopted by the Federal Court you find,

acting in tandem with the proposition that
section 87 contains wide powers, also a recognition

none the less that section 87, in its terms, is

speaking of relief in respect of conduct by the

party complained of, and section 87, like the
provisions concerning damages, are also

compensatory in effect. Therefore the courts

have - the Federal Court has recognised that this

must denote a causal link between the conduct
complained of and the relief which is sought to be

obtained. And that is most clearly and succinctly

perhaps expressed in one of the authorities I

Wenpac 23 16/10/92

mention on my list, Myers v Transpacific Pastoral

Co at page 47,423:

I agree with Mr Carrnody's submission that the word "by" means "by reason of" or "as a result

of", as was said in the Smolonogov case at

p.43,848. Once it is accepted, as I think it

must be, that the applicants have to show that

the misleading statements caused their loss,

then it certainly is necessary to have "an

examination into the relative importance of
contributory causes".

I might just mention the copy of that is in the

materials which I passed up initially.

It is against that background that the Federal

Court has approached the matter. It has recognised

a wide discretion that is recognised in the

exercise of that discretion that one has to have

regard to matters of causation and also, although

not limited by common law or equitable principles,

none the less one, as a matter of guidance, is

entitled to have regard to such matters as

affirmation, state of knowledge of the parties

subsequent to the conduct complained of, and so on.
That proposition is to be found in the Platz case.

So my submission is that is the approach adopted by the Federal Court and, again, one finds

a recognition and acceptance of that in the key

passage of the majority decision of the Full Court

in this matter because Mr Justice Ipp moves from

the proposition I cited. a moment ago and then goes

to the particularity.

Nevertheless in the particular circumstances

of this case I do not see how any court

exercising a judicial discretion would vary

the deed of assignment -

He then points to matters which go to the question

of causation and also go to the actions of the

parties.

Now, if I may just touch very briefly upon the

factual matters in that regard, there is a

chronology amongst the papers I have handed up and

that chronology is important because what emerges

from the judgments below, both Justices Murray and

Ipp as the majority judgment, when one looks at the chronology you see firstly a deed of sale to the

applicant in May 1990. Pursuant to that, the
applicant takes possession of the mine site and

obviously inspects the equipment that is on that

site. It emerges from the chronology and from its

own pleading in the applicant's highest case that

Wenpac 24 16/10/92

at that time some missing chattels - or it is

identified that some of the chattels may be

missing. It is against that background that an

approach is made to perhaps vary the terms of the

chattels identified in the lease and all of that takes place before the deed of assignment to the

applicant as lessee is effected.

importance upon that train of events because that Now, both of the judgments below place some

state of knowledge makes it difficult for the

applicant to persuade a court that it was indeed
affected or influenced or in any way seduced by the

so-called misleading conduct concerning the

presence of chattels on the mining site.

The deed of assignment is then made in

mid-1990. Some months go by during which the

applicant is working the mining site and in March

1991, some three months before the lease is due to

expire and before the option would normally be

exercised, the applicant then takes the matter up

again and seeks some assurance or seeks some

negotiation as to what can be done about these

chattels. In fact, as both the judgments

recognize, and as Mr Justice Murray puts succinctly
at page 32C of the application book, in describing

this proposal for some variation of the state of

affairs between the parties:

The matter seems to have gone no further

than a general proposal, the precise shape of

which was subject to further discussion and

agreement and to the consent of others.

MASON CJ:	Who were the others?
MR HASLUCK:	The others was a company called Modic, this was

another contractor which apparently was laying some

claim to some of the disputed chattels, and some

litigation was in progress concerning that matter,	so for that reason it was thought that Modic would
have to be brought in to lend its consent to
whatever might be negotiated between the parties.

So the point I simply wish to draw out - and

it is obviously a point upon which the judges below

placed considerable importance, is that these

negotiations were inconclusive. So by the time the

lease ran its course and expired by effluxion of

time in mid-1991, the applicant was faced with the

question of exercising an option against the

background of that state of knowledge. Its own

precise knowledge, as emerges from its own pleading

which is its highest case, that it actually knew

certain specific chattels were not there, as has

been allegedly described; secondly, it had raised

Wenpac 25 16/10/92

the matter with the respondent but had been unable

to obtain anything more than some general

discussion about a reduced price, certainly no

specific finality as to what that price might be or

what variation might be effected.

DEANE J:  Mr Hasluck, there would obviously be grounds for

arguing that in the circumstances as you have
outlined them, your client would be estopped from

asserting that the option period had expired

without giving some reasonable notice to the other

side, that notwithstanding the negotiations, it was

going to rely on the expiry of the option period.

Now, the reason I raise that is is there anything

to indicate, as the values would seem to indicate,

that your client would now be prepared to allow an

exercise of the option on the agreement that that

would not prejudice any claim that Mr Ellicott's

client would have to damages? I am not trying to

suggest a settlement or anything like that; I am

just inquiring, because it is a bit hard for us to

work out precisely what the basis on which things

below went.

MR HASLUCK:  I think the answer to that is no at this point,

given the passage of time because, of course, I am

really, as was accepted in the court below, arguing

off the applicant's pleadings, in effect, but the

factual contention on our side is that the

so-called disputed chattels are quite minor in

nature; in fact, I have some description of them

should that be necessary -

DEANE J:	We had better not go into that.
MR HASLUCK:	Perhaps I better not descend to that degree of

particularity.

DEANE J: The answer to my query is that that was not

investigated.

MR HASLUCK:  No. The only other comment I should make that

perhaps Your Honours will have noticed that

pursuant to the authority of Walton's case an

estoppel issue was raised and argued but that was

not carried further and is not part of this

application.

So, Your Honours, when one looks at that

chronology you can see how many factors were

bearing upon the minds of the judges and it was

against that background that Mr Justice Ipp touched

on the question of causation and summarizes the

factors which leads him to the conclusion that

notwithstanding a consideration of where the

balance of convenience lay, there was, as he puts

it, no reasonable prospect of the applicant

Wenpac 26 16/10/92

successfully opposing the claim for delivery up.

So in my submission, when one goes to that degree

of analysis, you can see that the question of

causation was central to the case, was fully

investigated. The Full Court and Mr Justice Murray

below had accepted the width of the powers but

their conclusion was that in the facts and

circumstances of this particular case, exercising

discretion judicially, it would not be appropriate

to consider that the prospect of the section 87

order would be made.

So there is no denial of a kind that my

learned friend suggests this morning, that

section 87 might not be available in an
interlocutory framework. There is nothing in the

judgments to suggest that the Full Court took that

view at all. Their view simply was, in the

particular circumstances of this case, that it

would not be appropriate to make the order.	So my
submission is the discretion was exercised
judicially and it does not throw up any real
difference of opinion between the courts.

This leads me to the question of the mandatory

injunction. My friend suggests that, again, one

can perhaps detect some difference of opinion which

it would be desirable for the High Court to express

a final view upon. In my submission, as my friend

has done when one looks closely at the judgment of

His Honour Mr Justice Murray, he is referring

firstly to the test expressed by

Chief Justice Gibbs in Queensland v Australian

Telecommunications Commission case:

In a normal case the court must, inter alia, feel a high degree of assurance that at the

trial it will appear that the injunction was

rightly granted;

He then follows through, at pages 43 and 44 with	some discussion upon that but, in my submission,
the upshot of that discussion is no effective or
real challenge to what is being said by the Chief
Justice of the High Court. He simply concludes, at
page 44E:

His Honour -

that is Mr Justice Gummow -

concluded that the proper view was that the

courts had not accepted any precise verbal

formula controlling the grant of interlocutory

mandatory relief.

Wenpac 27 16/10/92

So, if I may pause there for a moment, in fact when one looks at the Telecommunications case that is a

fair description of the position. His Honour Mr Justice Gibbs expressed a view but clearly

saying that it was his feeling that that kind of

approach had not been satisfied on the facts of

that case. He was not really attempting to state a

definitive enunciation of the formula for all

circumstances. In my submission, it is implicit

from what the Chief Justice said in that case that

there was a recognition of a flexibility of

approach. That is what Mr Justice Gummow is saying

and that is what Mr Justice Murray echoed in his

judgment. He then moves forward to say:

He took the view -

that is Mr Justice Gummow -

which I think should guide my approach to this

case that because it was mandatory relief

which was primarily under consideration, and

because such relief might carry a greater risk

of injustice then prohibitory relief, then

such relief clearly ought not to be granted

unless the court felt a high degree of

assurance that if the evidence remained at

trial as it was, the final result would accord

with that granted on an interlocutory basis.

So, therefore, that is a recognition of the test.

He is simply entering the caveat of saying, as

Mr Justice Gummow had said, that perhaps it should

be treated as a matter of guidance rather than as

an entrenched principle. But that is the approach

that Mr Justice Murray clearly followed. It is

true that he then goes on at a later stage to speak

of "strong arguable case", but emphasis should also

be given to the words that follow, "a strong

arguable case to be put into possession of the

various chattels".

Now, in my submission, that is perhaps

implicitly endorsed by the Full Court. At page 80,

where this has been noted, one finds Mr Justice Ipp

concluding that "there is no reasonable prospect of
successfully opposing" and that, of course, is not
picking up the precise verbal formula, if one can
continue to describe it in that way, of a high

degree of assurance, but that is another way of

saying, I have a real conviction; I have a high

degree of assurance, that the same result will

emerge on the position at trial.

In all these submissions I make it is not

having to descend to the particularity of

contentious factual issues from the affidavits or

Wenpac 28 16/10/92

what might emerge at trial, because all this

analysis can emerge from the applicant's own case

as pleaded. For that reason the courts below were

able to arrive at their position.

The next matter, Your Honours, is the question of the hire-purchase issue which my learned friends

have raised. I again just reiterate briefly, as I

did yesterday afternoon, that on our side we do not
see this as an appropriate matter to be brought
before the High Court at this stage and we did not
consent to materials relating to that. It was not

a matter raised on the pleadings before any of the

courts below; it was not a matter raised in
argument or in evidence in any of the courts below.

So it is really a last ditch attempt to introduce a

new matter and, in my submission, this Court should

adopt the position expressed in the case I mention

on my list, Water Board v Moustakas. The general

rule is that such an issue ought not to be raised

on appeal and we adopt that stance.

Having said that, let me go briefly to what my

friend raises.

DEANE J:  Mr Hasluck, is there anything unusual in the West

Australian Rules that would prevent an application

being made to the trial judge to dissolve the injunction by reason of a new ground that had

emerged?

MR HASLUCK:  I think that could be done, but I do have to

say, as perhaps my learned friend would probably
say, I think in practical terms that has been done,
because although the hire-purchase issue was not

raised before the Full Court on appeal, an attempt

was made to raise it before the Full Court recently

when an application was made for a stay and the

High Court took the view that an approach should be

made to the earlier Full Court as then

reconstituted to -

DEANE J: But would not the appropriate approach be to the

court at first instance to dissolve the injunction

if there is substance in the point?

MR HASLUCK:  I would certainly concede that theoretically

that can be done but an attempt has been made to

recall the judgment of both the lower court and of

the Full Court to permit this issue to be

ventilated -

DEANE J: But that is a different matter.

MR HASLUCK: That is a different matter, yes.

Wenpac 29 16/10/92

DEANE J: If there is a new point, the court that granted

the injunction, if it is going to permit amendments
to pleadings, can always revoke the injunction,

unless there is something in the rules or something

that would prevent it doing so.

MR HASLUCK:  My position is to accept that what Your Honour

says is correct. That approach can be made.

DEANE J: Again, I am not trying to bind you to anything. I

am just inquiring for my own purposes.

MR HASLUCK:  Simply to try and shorten debate, I perhaps do

recognize, quite frankly, that they may have

difficulty in doing that because the response is

likely to be an attempt was made to raise the

matter before the Full Court.

But if I may put that to one side,

Your Honour, and come directly to the issue. The

respondent certainly does not concede that this is

a hire-purchase agreement but in my submission that

issue can be put to one side for present purposes

before you this morning because the crucial

question is: even if it were a hire-purchase

agreement, would that have any bearing upon the

ability of the respondent to retrieve the goods?

My submission, put shortly, is that

section 28(l)(g), which the applicant relies upon

heavily, is dealing with provisions which apply to

a continuing hire-purchase agreement and do not

cover the situation as here where the hire-purchase

agreement has expired by effluxion of time.

Section 28(l)(g) is speaking of goods comprised in a hire-purchase agreement. In my submission it is

true that there is a clause 19 in the lease, as my

learned friend drew out yesterday afternoon, which

says something about the degree of force which can

be utilized should the goods not be delivered up at

the conclusion of the lease. But, in my

submission, Mr Justice Murray at page 45 touches on
this matter and puts the position correctly.	He

says at line Con page 45, "Its right", that is the

respondent's right:

in that regard stems simply from its ownership

of the chattels -

and that remains our position, that the respondent

seeks to recover the goods by dint of its common

law title. Mr Justice Murray goes on to say:

Those rights are of course, as one would

expect, confirmed by the terms of the lease

which was assigned. Clause 13 confirms the

entitlement of the plaintiff upon the

Wenpac 30 16/10/92

termination of the lease to immediate
possession of the chattels, which were at the

defendant's expense to be delivered by it to

the plaintiff in Perth, or at such other

address as might be notified to the defendant

prior to the termination of the lease. A daily sum by way of liquidated damages was

provided for a failure in that regard, but of

course this litigation does not raise any such

head of claim, the plaintiff suing for damages

in detinue.

Now, the purpose of the injunction,

Your Honour, the position might be this:	He
continues:

Clause 13 provides that if possession is not given within 7 days then pursuant to cl 19 the

plaintiff may enter upon any place where it is

reasonably suspected that the chattels are, if

necessary by breaking and entering the

premises -

and, of course, what clause 19 is saying is merely

a reflection of the common law position concerning

recaption of chattels and although it is not

mentioned on my list, in fact that proposition is

conveniently to be found in Salmon Law of

Torts -

DEANE J:  I am a little lost, Mr Hasluck. What are you

saying 28(l)(g) does? What if there is breach of
the hire-purchase agreement and the owner

terminates the agreement?

MR HASLUCK:  I suppose perhaps 28(1)(9) must be considered

in context of the Act as a whole and in a sense the

starting point of section 12A, dealing with

repossessions, which my friend has touched upon,

and in division 5, dealing with repossessions,

certain arrangements are made or certain

prescriptions are made for obtaining the

commissioner's consent in order to effect a

re-entry. That is the case where there has been a

termination of the hire-purchase agreement during

its life, by breach or for some other provisions.

My submission simply - - -

DEANE J: But if there is a termination it is then

exercising its rights as owner, not its rights

under the agreement which means - it is a bit hard

to see, if your argument is correct, that 28(1)(9)

would not apply. But your argument is correct.

MR HASLUCK:  My submission is that 28(1)(9) is really

confined to a repossession proper, that is to say,

Wenpac 31 16/10/92

a repossession prior to the effluxion of the term

of the lease.

DEANE J:  I can see the force of that, but it does not

detract from the fact that it is a rather

debatable point which would be of critical

significance on the question whether a mandatory

injunction should be granted.

MR HASLUCK:  My submission would be that it may be a

debatable point as to whether an offence has been

committeq under 28(2), as was noted. It may be a

debatable point as to whether one can recover

liquidated damages of the kind contemplated by

clause 13 in the event of them not being a

delivery up. My submission really is that there is

nothing in 28(l)(g) which would provide a barrier

to the redelivery of the goods and, therefore, the

whole thrust of the judgments below is to say,

well, look, this lessor is the owner of the goods

and the lease has expired; therefore they ought to

be delivered up. The only reason that the

applicant can advance as to why they should not be

delivered up is that it says it may possibly obtain

compensatory relief pursuant to section 87 whereby

there was some variation of the option provision.

TOOHEY J:  The effect of section 28(1) is that you simply

read the agreement as if that clause were not

there.

MR HASLUCK:  Yes, it would be severed.

TOOHEY J: Therefore the respondent has to rely on whatever

rights it has outside the agreement.

MR HASLUCK:  Yes, they would.

TOOHEY J: And as I understand you are putting the case that

the respondent simply relies upon its ownership.

MR HASLUCK: That is exactly our position. Even on the

worst case scenario, a finding that this was a
hire-purchase agreement which, as I say, we do not

concede, but even on the worst case that clause

would be severed. The position would be, quite

clearly on any view of the matter, ownership is in
the respondent; it has a right at common law to
enter and obtain delivery and the only barrier or
obstruction to that right is the claim under

section 87 of the Trade Practices Act which the

judgments below analysed closely on the applicant's

best case, as revealed by its pleadings, and the

chronology shows an absence of necessary degree of

causation and so forth.

Wenpac 32 16/10/92

So, Your Honours, in my submission the

hire-purchase agreement issue should not be
admitted at a late stage but, in any event, in

effect it is a red herring.

MASON CJ: Thank you, Mr Hasluck. Yes, Mr Ellicott.

MR ELLICOTT:  Your Honours, on that last matter, section 12A

is a clear bar to my friend's client taking

possession under some general right, even under an

order of the court, we would submit, because the

law says it can only be done with the consent of

the commissioner. That is the policy of the Act

and it happens where a hire-purchase agreement has

not been terminated by the hirer. It encompasses

effluxion of time and it is designed to adjust the rights between the parties and section 15 is there

to do just that. It is to stop the sort of

disputes that can go on with the tug of war between

owners and hirers. That is one of the reasons that

legislatively have been given for this sort of

provision but also because it is thought that the

hirer is in a position where the hire-purchase

company can take advantage of it or him or her.
That is why these provisions are there, and they

are to adjust those rights, and 28(1)(9) is in that

context. That is why, also, 28(2) is so severe and
says it is an offence to have such a provision

because it is completely contrary to the provisions

of the Act.

DEANE J:  Is there evidence that 75 per cent has been paid?

MR ELLICOTT:  Yes, Your Honour. The whole of the amount has

been paid. There is $300,000 paid, which is the

full rental for the two years.

DEANE J: Except would total amount include the amount

payable if the option is exercised or is it just

hiring fees?

MR ELLICOTT: 

It would include the total amount payable

under the agreement on the assumption that the
owner was going to take possession of the goods.

It would assume that, presumably, there was not an

exercise of the option, section 12A. If there was,

the issue would not arise.  On the arithmetic, if

you take off the 71,800, it is more than

75 per cent.  $71,800 is the option price under the

lease.

Have I satisfied Your Honour as to that? When

I say that, can I assist Your Honour any further?

DEANE J:  I do not think so, but I still think that this

aspect of the case, if it is looked at on its own,

Wenpac 33 16/10/92

is a matter for the court that granted the

injunction and not for this Court.

MR ELLICOTT:  I can understand that, with respect. But one

might go below and then find that - this is what I

am concerned about, Your Honour. It is not an

answer in itself to our application for special

leave. The only other course that Your Honours

could consider, in our respectful submission, is

that this application stand over while we see what

happens with that. But that is a different matter.

I am not inviting the Court to do that. But that

in itself is, we still submit, relevant.

My friend dealt with the question of

causation. It is really his saying one thing and repeating what the Full Court says and we say the
other, and factually, we say we are correct.

Your Honours, my friend overlooks, on the question

of onus, section 51A and what fell from Your Honour

Mr Justice Deane and what would have to be shown,

this question of estoppel, because section 51A

says, subsection (2), and this is really why it was

put in:

(2) For the purposes of the application of
subsection (1) in relation to a ..... future

matter, the corporation shall, unless it

adduces evidence to the contrary, be deemed

not to have had reasonable grounds for making

the representation.

It is the one to show that it did not have

reasonable grounds for,· we would say, not only

making it but for fulfilling it, as to the future

matter. Now, estoppel is there implicit - not only

was it raised, but it is implicit in the

application of section 51A and the relief under

section 87. There is certainly no evidence that

they are prepared to grant any option at any lower

price and, as I understand it, my friend concedes

that.

Your Honours, at page 44, Mr Justice Murray

concedes, we would submit, that he regarded

Sir Harry Gibbs as taking a too restrictive

approach. Between Band C:

However in doing so, his Honour made it

clear that he regarded as somewhat too

restrictive the approach which was adopted by

Gibbs CJ and having reviewed -

et cetera. So Mr Justice Murray clearly took a

view similar to that and, therefore, was

disagreeing with Sir Harry Gibbs.

Wenpac 34 16/10/92

As to the hire-purchase agreement, the

argument of law was open on the pleadings. There
is no question about that. They raised the option.

They pleaded the option, and that meant it was a

hire-purchase agreement. Cases such as Suttor v

Gundowda or Anshun have no relevance, in our

submission, to an interlocutory proceeding such as

this. My friend's point about effluxion of time in

relation to section 28, we would submit, has no

substance either because section 28 is there to

cover the position at the end as well as during the

course of a hire-purchase agreement. It is there

to stop the owner from taking possession and to

remit the owner to the rights under the Act; for

example, section 12A.

So, Your Honours, we would submit that

Your Honours grant special leave in this case.

MASON CJ:  The Court will take a short adjournment in order
to consider the course it will take in this matter.

AT 10.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.19 AM:

MASON CJ:  In our view the proposed appeal does not ra·ise a

question as to the width of the jurisdiction

conferred bys. 87 of the Trade Practices Act

1974 (Cth). In the Full Court of the Supreme Court

Ipp J., with whom Rowland J. agreed, correctly accepted that the jurisdiction confers a very wide

discretion. His Honour then went on to conclude

that in the particular circumstances of the case a

court would not exercise the discretion in favour

of granting the relief sought by the applicant, so

the decision did not turn on the issue of

jurisdiction.

The applicant also submitted that special

leave should be granted with a view to resolving a

conflict over the expression of principle governing

the grant of interlocutory mandatory injunctions.

It was said that there is a conflict between the

approach taken by Gibbs CJ in Queensland v.

Australian Telecommunications Commission

(1985) 59 ALJR 562, 563, and that taken by

Gummow J. in Businessworld Computers Pty Limited v.

Australian Telecommunications Commission (1988)
82 ALR 499. We do not consider that there is an

essential conflict between these two approaches,

Wenpac 35 16/10/92

nor do we consider that this question was material

to the decision of the Full Court, having regard to

the way that Court reached its decision.

It would not be appropriate to grant special

leave in order to take up the applicant's so-called
hire-purchase point as it was not raised at first

instance or on appeal before the Full Court. It is

a point which, if well founded, might ground a

motion to dissolve the injunction.

It is only in rare circumstances that this

Court would grant special leave to appeal in an

interlocutory matter in a context in which an

undertaking as to damages has been given. In the

light of what we have already said, we do not think

that this is such a case.

The application is therefore refused.

MR HASLUCK:  Your Honour, I would wish, if I may, to hand up

a minute of proposed orders. There is a question

of costs of the application for a stay in the court

below and perhaps if I could just place that before

you very briefly. I seek orders that the

application for special leave to appeal be

dismissed and that the respondent obtain costs of

this application and also the costs of and

incidental to the stay that was sought before the

Full Court. The order made by the Full Court

anticipated that such an order would be obtained

from this Court. I have a copy of that judgment.

MASON CJ:	What do you say about this, Mr Ellicott?
MR ELLICOTT:	We do not resist the ordinary order for costs,

Your Honour, but I do not understand that this

Court should be - - -

MASON CJ: Costs of this application?

MR ELLICOTT: Yes, Your Honour, the order that the Court

ordinarily makes against those in our unfortunate

position.

MASON CJ:	What about No 3?
MR ELLICOTT:	In our submission, that is a matter for the

court below. That should be left to the court

below.

MR HASLUCK:  Your Honour, perhaps if I could just rise to

say that the precise terms of the order below are

that the costs of the application be in the

proposed application, and that seems to anticipate

already dealt with by this Court.

Wenpac 36 16/10/92

DEANE J:	Does our order for costs normally add
"and incidental"? That sounds like a trustee's
order.

MASON CJ: Costs of, is it not?

MR HASLUCK:	Yes, it is costs of.
MASON CJ:	The application will be dismissed with costs.

AT 10.21 THE MATTER WAS ADJOURNED SINE DIE

Wenpac 37 16/10/92