Wenpac Pty Ltd v Allied Westralian Finance Ltd

[1992] HCATrans 309

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P19 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 THURSDAY, 15 OCTOBER 1992, AT 4.32 PM

Copyright in the High Court of Australia

Wenpac 1 15/10/92

MR R.J. ELLICOTT, QC:  Your Honours, I appear with

MR D.M. STONE, for the applicant. (instructed by

Williams & Hughes)

MR N.P. HASLUCK, QC:  May it please the Court, I appear with

MR A.W. PASS, for the respondent. (instructed by

Bogue & Pass)

MASON CJ: Yes, Mr Hasluck. Mr Ellicott.

MR ELLICOTT:  Your Honours, may we hand up - if they are not

already with Your Honours - the bundle of cases and

material that I would want to refer Your Honours

to.	I think Your Honours have some manila folders
there.	Your Honours, this application raises a

number of significant matters. First of all, so

far as special leave is concerned, it raises the

proper interpretation of section 87 of the Trade

Practices Act and similar sections in the Fair

Trading Acts of the various States. Up till this

time the Court has given some consideration to

section 87; I think it did so in Gates' case, but

only in passing and not on the particular matter to

which this case refers.

The other matter of significance which this

case relates to is the circumstances in which a

mandatory injunction should be granted. Now, there

has been a division of view which seems to have

become material in this case, between what fell

from the former Chief Justice Sir Harry Gibbs and

what has fallen from Mr Justice Gummow in the

Federal Court, and the trial judge here decided

that he would follow what was decided by

Mr Justice Gummow. Now those are two matters of

significance which, so far as our researches go,

this Court has not given any judgment on.

Your Honours, it is necessary for me to refer

shortly to the facts so that Your Honours will

understand the circumstances in which this matter

arose. The background of the case is that the

relevant documents and transactions relate to a

gold mine at Marble Bar which Your Honours will

know is inland from Port Hedland. I say that

because the relevant subject-matter is some plant

and equipment that is installed at the mine, a mine
which, by the way, is apparently profitable and a

mine at which some 14 people are employed.

The effect of the orders below will be - and

they have been stayed until today by the Full

Supreme Court - the effect of the orders below on

interlocutory proceedings is that the equipment at

the mine can be removed, that my client will have

to cease the activity of gold mining, dismiss the

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staff and with the result then go about the

business of getting new equipment. One of the

major pieces of equipment that would be removed
would be what is called the head of the gold mine,

which is that part that stands above the shaft, and

that would have to be removed, apparently, if this

order is carried out. Or, to put it another way,

if the plaintiff or the respondent is not to be

prevented from entering upon the property.

Since the application for leave was made,

another matter has arisen of some significance.

When we come to the documents Your Honour will find

that the lease in question is a lease of equipment

and that it had added to it in 1990 an option to

purchase.

MASON CJ:  You say it then became a hire purchase agreement?

MR ELLICOTT: It then became a hire purchase agreement and

the result of that was that any clause that gave
the right to repossession was null and void under

section 28 of the Hire Purchase Act of

Western Australia. The other effect of that was

that it was an offence for the owner to sustain the

clause in the relevant documents. Now that, we

say, is a very material matter; it was not before
the Full Court when it considered the main appeal,

which was the subject of the application, but we

have sought leave to reopen the matter, the order

not having then been taken out.

MASON CJ: But you were refused leave?

MR ELLICOTT:  But we were refused leave to do that.

MASON CJ: But you are not seeking special leave to appeal

against that refusal of leave?

MR ELLICOTT:  Your Honours, we are seeking in this matter to

add that, as a very compelling circumstance, as to

why this becomes perhaps even a matter in which the

Court would have to be firmly of the view, we would

say, that there could be grave injustice done to

our client.

MASON CJ: But why should we grant special leave to appeal

to take on board a question that was never argued

in a court below?

MR ELLICOTT: Because, Your Honour, what is happening is

that so far as the - and I am sort of leaping to

the third matter first - - -

MASON CJ: Yes.

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MR ELLICOTT:	- - - what is happening is that the Full Court

is actually, by its order, enforcing a provision

which is not only void, but it is - I do not want

to say it is particeps criminis - an offence

actually to have such a provision. So that, the

result is that the court itself is in a way

involved in the illegality and that is an unusual

situation and one does not find it easy to describe

it or put it under any heading of law, but the fact

is that the court in itself is condoning or being

party to by its very injunctive process the act

which results in - - -

MASON CJ:  So we should embark on a rescue mission to save

the court from this ..... which it has got itself?

MR ELLICOTT: Well, surely the question as to whether a

Full Court of a State should get involved in a matter over which it still has jurisdiction, the principles which apply to that, those are matters

which this Court can, we would submit, to use Your

Honour's expression, take on board and regard, as

itself, a special matter for leave to appeal,

because it goes to the administration of justice

generally. Now Your Honour, may I shortly take

Your Honours to the background facts.

MR HASLUCK:  Your Honours, if I may just rise before my

friend leaves that point, I have to say quite

directly, that the respondent's view is that this

matter is not open on a special leave application;

it is not part of the papers, it has not hitherto

been something brought before this Court. And,

perhaps I should say while I am on my feet, so that

you understand my position, I am not entirely sure

whether the materials handed up by my friend may

include a further affidavit going to this very

point. If it does I have to say we object to the

admission of that affidavit, firstly on the basis

that procedurally it is not appropriate having been

admitted at this late stage.

MASON CJ: Well, an affidavit has been filed deposing to the

application for reopening by the Full Court and

dealing with the fate of that application. That

affidavit was filed and I have read it as, I take

it, other members of the Court have read it.

MR HASLUCK:	Yes, well, I suppose, as I understand that, that affidavit is really an avenue to attempt to
introduce this hire purchase issue - - -

MASON CJ: Yes.

MR HASLUCK:  - - - and in my submission the affidavit,

although it has been filed, should not be received

as part of the materials before the Court for

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present purposes, because it is not part of the

application for special leave; at least to this

point of the debate, shall we say.

MASON CJ: But Mr Ellicott is endeavouring to make it part

of the application for special leave, not on the

footing that he is seeking special leave to appeal

from the refusal of leave to re-open, but he says

it is one of the circumstances which is relevant to

the application. It seems to me we have little

alternative but to hear what he has to say on that

footing.

MR HASLUCK: Well, I suppose I am simply rising at this

point, simply to signify that I was - - -

MASON CJ: Yes, well I did not assume for one minute,

Mr Hasluck, that you were going to, as it were,

assent to what Mr Ellicott was seeking to do or to

what he was saying. Yes, Mr Ellicott.

MR ELLICOTT:  I think my friend has been served with a copy

of - - -

MASON CJ:	I do not doubt that, otherwise he would have - -
MR ELLICOTT:	- - - and he seemed to be complaining, and I

just wanted to make it clear - - -

MASON CJ: Well, we are used to complaints, even from you.

MR ELLICOTT:  - - - in case Your Honours thought we had not

done that. I beg Your Honour's pardon?

MASON CJ:  I said we are used to complaints, even from you.

MR ELLICOTT:  Yes, Your Honour. I just want to get rid of

this one. Your Honours, so far as this matter is

concerned, it started in May 1990 when my client	acquired the undertaking of this mine and at the	same time there was extant a financing lease which
covered some of the equipment, not all of the
equipment, on the mine, and my client entered into
that agreement, paid a large sum of money, many
hundreds of thousands of dollars, and as part of that agreement - Your Honours have a copy of it
there - it undertook that it would take over the financial lease.
Now, before settlement took place and before the formal assignment of the lease took place, my
client discovered that property that was referred
to both in the agreement of purchase of the undertaking, which defined the property which was subject to the financial lease - - -

Wenpac	15/10/92
MASON CJ:	Was not on the mine site?
MR ELLICOTT:	- - - and the financial lease, was not on the

mine site, and they complained about it and drew it

to the attention of the finance company or the

lessor, the owner of the property.

MASON CJ:  You say that a representation was made by

somebody on behalf of the respondent.

MR ELLICOTT: That is right.

MASON CJ: That if they paid the rental up to the date of

expiration, then some steps would be taken to

adjust the option price.

MR ELLICOTT: That is right.

MASON CJ: But no agreement was ever reached on the amount

of the option?

MR ELLICOTT:  No agreement was ever reached, Your Honour,

but we did go ahead and perform our part of the

bargain; that is the important factor.

MASON CJ:	You paid rent up to the date of expiration.
MR ELLICOTT:	We paid $300,000 of rent over two years in relation to this equipment that is now said to be
of the value of $160,000 or something, but we paid
it over that period.  So we performed our part of
the lease, the lease which was then, we say, apparently a hire purchase agreement, because it
had this clause in it, this option to purchase in
it. The lease provided that the option to purchase
had to be exercised before the expiry of the lease.
Before that happened, we then sought to get from
the lessor, the owner, the arrangement as to a much
- as it had promised - reduced price for the
option. It so happened that that negotiation went
over the end of the term of the lease. Of course,
after the lease was expired, apparently the
respondent saw it in its interests not to worry any
longer about granting such an option. Such an option would have reduced the purchase price from
something like $72,000 to something in the order
of, maybe, $30,000 or $40,000. That had not been
determined.
Now, it was a result of that conduct, of course, that we were in a position that we had not
been able to exercise an option to purchase of the
type which had been agreed by the lessor, that we
would have.

When this matter came before the supreme

court, at that stage it came by way of cross-claim

Wenpac 6 15/10/92

to an application by the respondent to rectify the

lease because it did not correctly describe

equipment, and then to seek the right to enforce

the clause for possession. Now we, in reply to

that, said, "We have a right under section 52 and

51A of the Trade Practices Act -

MASON CJ:  By the way, coming back to the right to

repossession under the lease, was the right that

was being exercised against your client a right

under that lease and/or hire purchase agreement or

was it a right in virtue of ownership of the goods

without your having any claim to possession?

MR ELLICOTT:  Your Honour, it was a right that they were

exercising under a clause in the lease, at the end
of the lease, to enter upon the property and to

take possession. That is clause 19 of the lease.

Your Honours have a copy there.

If the Lessor shall become entitled to retake

possession of the Goods pursuant to the terms

of this Lease the Lessor may enter upon any

land -

et cetera, so it was under the terms of the lease.

That, of course, is the provision that is void, we say, under section 28.

MASON CJ: That is the reason I asked you the question.

MR ELLICOTT: So, Your Honours, in the cross-claim our

client was saying, "Section 52, section 51A

applies; a representation was made not only at the

beginning as to what was on the lease but also a
representation was made of a promissory nature,

perhaps, in relation to the grant of an option at a

substantially reduced price". Now, both the single

justice, Mr Justice Murray, and the Full Court by

majority, said that they could not conceive that a

court, dealing with the matter at trial, could

grant an injunction or grant some order under

section 87 that would enable our client to get any

relief, even if the representation was made.

Now, obviously, Your Honours, we would submit

that that misconceived, although you will find in

the passages in the judgment some reference to the cases in the Federal Court which give section 87 a wide meaning and operation, to say that

misconceived the nature of the jurisdiction under

section 87 of the Trade Practices Act for this very
reason, that what Their Honours, both in the

Full Court and below, but particularly in the

Full Court seemed to be saying was that there had

to be some causal relationship between the

complained of conduct, that is, promising to enter

Wenpac 7 15/10/92

into a new option if we went on and paid the lease

at a substantially reduced price, and our failure

to exercise the option.

Now, obviously there was no point in us

exercising the option in the lease because it was

at a price that was greater and it was in relation

to equipment that did not, so far as we put it,

exist. So, we were not about to exercise that

option, we went ahead to pursue their promise.

TOOHEY J:  To exercise the option, Mr Ellicott, would that

have in any way put a restraint on the powers of

the co~rt under section 87.

MR ELLICOTT: Well, it may not have but what is held against

us is that we did not exercise it and that while we

were lulled into a sense of security, trying to

negotiate with what we thought was a bona fide
respondent, the term of the lease expires, and we
are then told, well you are not going to get an

option, it is too hard, or whatever we were told.

They just refused to go ahead. So, at that stage,

and this is really all we have to show, because of

matters I will come to in a moment, at this stage,

surely within section 87, it could be, and that is

all I wanted to put to this Court, it could be

appropriate to make an order which would protect us

so that the Court said yes, you made a

representation to the respondent that you would
enter into an option at a much lower price; you, in

the ordinary way, had a notion of residual value in the lease; it was just a matter of determining what property or what equipment was not there, that

ought to have been there, and therefore determined

the value of that equipment that was left, and by

reference to that proportion, determine the

residual value which would have been appropriate.

MASON CJ: But there is no misinterpretation, is there, of

seciton 87 when you look at page 80 of the

applicaiton book in Justice Ipp's judgment?

What he says was that in the particular

circumstances of the case, and then he enumerates

various considerations, he does not see how any
court exercising a judicial discretion would

exercise the power in this way.

MR ELLICOTT: But, Your Honour, that is what I was referring

to earlier. He concedes on the one hand that

section 87 confers wide powers of discrections

which are not bound by common law and equitable

considerations, that is what the Federal Court has

held, although they will be taken into account, but

yet he goes on and demonstrates that his view of

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section 87 is much narrower than what he says

Deane v Brian Hickey finds.

MASON CJ: But is that so? When you look at the three

considerations that he then mentions, particularly

the first one. Now you may have a point in saying, well, Mr Justice Ipp was not correct in the view he took of the facts, particularly on this issue of

causation, you may have a point there, but bearing

in mind the view he took, why is it to be said that

he construed section 87 too narrowly as a grant of

power?

MR ELLICOTT: Because he, in this case, obviously thought

that section 87 only came into operation if there

was a clausal link between the misrepresentation

and in this case, the failure to exercise the

option, but that is not the point. Under the Act,

section 80, your right to damages depends upon

being affected by conduct, as Your Honours will

recall, and we were affected by conduct because we

were told that there would be a reduced option to

purchase. It was not in the lease, that was not

the factor that had to be taken into acccount.	The
factor that was relevant was that we were misled into believing that they would enter into a due
option. We were misled about that and there is a
causal connection about that, that is by conduct,

that is acknowledged in a lot of cases, but what he

has done is to treat the causal relationship as

attaching to the option in the lease, which is

completely misconceived and must have involved a

misconception about what section 87 was saying.

So, Your Honours, we would submit, both in relation to the judge below and to the Full Court,

that they have misconceived the operation of

section 87 and this Court will see that as the

matter that it ought to consider and that this is a

relevant and proper vehicle to use for doing that

very thing.

Your Honours, may I then go to the other

matter. Whatever I may have said, I hope has to

some extent made Your Honours see that at least we

had an arguable point, and what Their Honours were

faced with, and what His Honour below was faced

with, was whether to grant what, in effect, was a

mandatory injuction. Now, there is absolutely no

evidence that the equipment that is on that mine is

of any special nature, and yet, what His Honour did and what Their Honours did in the circumstances was to grant a mandatory injunction, which took away

from us completely our right to contest before the

trial judge the fact that we were entitled to

whatever relief we could get under section 87.

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MASON CJ:  The injunction is not actually in mandatory form,

is it? I mean it restrains your client, in effect,

from interfering with repossession by the

respondent?

MR ELLICOTT: Well, Your Honour, at 39B the trial judge

said:

The injunctive relief, still effectively

in mandatory form -

so he was intending to grant the mandatory

injunction in substance:

would I think be better expressed, if it is to

be granted, as an injunction to direct the

defendant by its servants or agents -

et cetera, and he outlines the injunction. What

the respondent asked for was an order to deliver

up, but that is only the other side of it. That is

saying, do you not stop the respondent from coming

on to our property, coming on to your property to

repossess, or you allow the respondent to take that property. That, we would submit, is in substance a

mandatory order. The trial judge saw it that way,

we would submit, and that, in effect, is what it

does. It mandates that we shall do nothing to stop

them from coming on to the property.

Now, I am not trying to use the word mandate

there as another word for injunction, I saw Your

Honour smile, that I might have been picking up a word, but I am not seeking to do that, Your Honour.

In this case, this is in substance, mandatory,

because it is telling us, you deliver up that

propery and if you do not, well, we direct you not

to prevent the plaintiff from coming on to your

property. An extremely serious act. But in any

event, it was a very serious injunction in the

circumstances, and it is of the nature of mandatory

injunction, and what we are saying is that here

Their Honours misconceived the principles, they must have misconceived the principles to grant a
mandatory injunction or, in effect, a mandatory

injunction in circumstances where there was no

special property; where, on the basis of what I put

to Your Honours, there was an arguable case for us

to say to a court, "We are entitled to relief under

section 87 of the Trade Practices Act" and in

circumstances where they could be protected by

appropriate orders as to damages.

For instance, to this very day, there is a stay, but it is on the basis of an amount being paid into court - a bank guarantee I am sorry - which has the effect of protecting the respondent,

Wenpac 10 15/10/92

and there being no special property, that is the

way to protect the situation.	Now,
Your Honours - - -

TOOHEY J:  Does the undertaking as to damages given as a

condition of the granting of the injunction protect

your clients to any extent, Mr Ellicott?

MR ELLICOTT: Well, no, it might to some extent, but it does

not protect our client, because our client - and

this is the other side of the equation - our client

has to stop its business. Our client, which is

profitable and that is sometimes rare these days,

particularly in gold mining, it has to dismiss 14,

no doubt, good employees, who are out there at

Marble Bar, 200 miles or so from the coast in

north-western Australia, and it has to go searching
for other equipment, and it may take it, I think

the evidence is, a couple of months in order to do

that. So, it just has to stop.

That is an extraordinary thing to do to us, we

would submit, in the circumstances that I put to

Your Honours and, therefore, we say the principles

upon which a mandatory injunction should be granted

must have been misconceived, and there is some

indication of that in the judgment of the trial

judge. Your Honours will find the discussion of

relevant authority, Your Honours will recall, from

pages 42 onwards.

Your Honours will have in the bundle of cases,

and the last of them is the judgment of

Sir Harry Gibbs in Queensland v Australian

Telecommunications Commission, (1985) 59 ALJR at

page 563, it is the very last, I think.

TOOHEY J: Yes, we have got that.

MR ELLICOTT: 

It is a very nice question where the balance
of convenience lies in the present case but in
the end two considerations have inclined me in
favour of the view that I ought not to grant

an interlocutory injunction at the present

stage. The first of those considerations is

that what is sought is a mandatory injunction.

His Honour goes on and refers to what Halsbury says, and then he refers to Mr Justice Megarry:

" ... on motion, as contrasted with the trial,

the court is far more reluctant to grant a

mandatory injunction than it would be to grant

a comparable prohibitory injunction. In a

normal case the court must, inter alia, feel a

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high degree of assurance that at the trial it

will appear that the injunction was rightly

granted;

Well, His Honour adopted that and said:

Although, as I have already indicated, there

is a serious question ..... I lack a "high

degree of assurance" that the plaintiff will

necessarily succeed:

Now, Your Honour, one would have thought that

was basic law but there has been disagreement with

that. I think that is the law that might have been

taught for many years as to the circumstances in

which a mandatory injunction ought to be granted

but at page 42 and onwards there is a discussion of

cases, including one involving Mr Justice Hoffmann

in Films Rover, and if I could just read the

passage:

MASON CJ: At page 44?

MR ELLICOTT:  Page 44 - rather than read the lot,

Your Honour:

his Honour made it clear that he regarded as

somewhat too restrictive the approach which

was adopted by Gibbs CJ and having reviewed

the authorities his Honour -

this is Mr Justice Gummow -

approved the observations of Hoffmann Jin

Films Rober International Ltd v Canon Film

Sales Ltd (1986) 3 All ER 772, 780-1 to the

effect that such an approach could only a

guide-line for the exercise of discretion.

His Honour concluded that the proper view was

that the courts had not accepted any precise

verbal formula controlling the grant of

interlocutory mandatory relief. He took the

view 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 than prohibitory relief, then

such relief clearly ought not to be granted

unless the court felt a high degree of
assurance.

Now, Your Honours might be confused by that, but in

other words, starts off by an attack on

Sir Harry Gibbs but it ends up with approval of

Mr Justice Gummow, but then ends up in picking up a

phrase which seems to approve Sir Harry Gibbs.

Wenpac 12 15/10/92

MASON CJ:  In other words, he is having the best of all

possible worlds.

MR ELLICOTT:  He is, Your Honour, but unfortunately we are

getting the side wind from it and that is why we

are here. At page 45, at this stage in his

judgment he seems to go astray, as does the

Full Court in agreeing with him. He says:

I consider that the plaintiff has a strong arguable case to be put into possession of the various chattels -

"a strong arguable case". Now, that is not far

different to a serious question to be tried, as

Your Honours will recall, from Castlemaine, and

that is set out at page 41.

Your Honours will see that there is a

confusion of thought in there that the Full Court

has endorsed and it is almost as if His Honour did

not mean to say what he said at page 44 or, that in

between writing the two, he forgot what he had

written at page 43, but that is not really

thinkable that His Honour would do that.

In the case of Businessworld v Australian

Telecommunications Commission, that is the second

case that is referred to and that is the judgment
of Mr Justice Gummow, and in that His Honour refers
- these are the passages that Mr Justice Murray was

referring to - at page 502, at great length to what

Mr Justice Hoffmann said about Mr Justice Megarry's

judgment and in the middle of page 502, around line

25, the passage quoted from Mr Justice Megarry:

qualified as it was by the words 'in a normal

case', was plainly intended as a guideline

rather than an independent principle. It is

another way of saying that the features which

justify describing an injunction as

'mandatory' will usually also have the

consequence of creating a greater risk of

injustice if it is granted rather than

withheld at the interlocutory stage unless the
court feels a 'high degree of assurance' that

the plaintiff would be able to establish his

right at a trial. I have taken the liberty of

reformulating the proposition.

Now, Your Honours, Mr Justice Gummow, over the

page at line 23, says - I had better go up to the

previous paragraph:

For myself, I would accept all that is

there said as applicable to the grant of

mandatory injunctions in what I might call the

Wenpac 13 15/10/92

general equity jurisdiction ..... The reasoning

of Hoffmann J is consistent with what is to be

gleaned from consideration of the historical

development of this remedy. The development

of the jurisdiction of courts of equity to

grant interlocutory injunctions, particularly

interlocutory mandatory injunctions, has been

traced -

et cetera, and he gives those references.

These writers indicate two matters of

importance for the present case.

And they have got great relevance to this case,

certainly the first.

First, it has long been the case that interlocutory mandatory injunctions would be

more likely to issue where the defendant was

compelled, not to embark upon a fresh course

of conduct, but, as here, to revert to a

course of conduct pursued before the

occurrence of the acts or omissions that

provoked the litigation.

Now, Your Honours, just stopping there, these were

telephone services, so they were ordering the

telephone body to put on - Telecom - to restore the

services, and that was what was involved in

Sir Harry Gibbs' case.

In this case, that is not the situation at

all, so the first proposition is not satisfied.

Secondly, whilst there has been a natural

reluctance to decree burdensome relief without a

full hearing, prohibitory injunctions may have that

tendency, just as much as mandatory relief, and

there has never been general acceptance of any

precise verbal formula controlling the grant of

interlocutory mandatory relief.

Now, that is where His Honour, as it were,

unties, we would submit, from the basic proposition

that Sir Harry Gibbs has adopted, and that is what

has apparently, we would submit - and it is not

abundantly clear - made His Honour

Mr Justice Murray feel that in such a case, which

we would say was outrageous in this case, able to

grant the injunction that he did, because all the

indicia, apart from the one that I started off with

in relation to the hire purchase agreement, they

were all in front of him and all the indicia

pointed away from a mandatory injunction and, at

the same time, there was that, properly understood,

this court - that is to say the court below - had

Wenpac 14 15/10/92

before it clearly an arguable case in relation to

the Trade Practices Act.

MASON CJ:  Mr Ellicott, we will have to adjourn now, but can

I just put this to you before we do so. If you

look at page 80, Mr Justice Ipp seems to have gone

further than the primary judge in holding that the

respondent had no reasonable prospect of

successfully opposing the appellant's claim for

delivery up of the chattels. Now, that does not

seem to depend on an approach such as that taken by

Mr Justice Murray.

MR ELLICOTT: But, Your Honour - and I know Your Honour

wants to adjourn - - -

MASON CJ:  No, I am giving you the opportunity of responding

to that comment before we do, so do not feel under

any inhibition in responding.

MR ELLICOTT: Well, Your Honour, what was happening there,

His Honour was talking about our right to relief

under section 87. We can answer that in two ways.

One is by saying there is an important point of

principle and he misconceived section 87; he did

not understand the basic principles of section 87,

and therefore this Court ought to intervene. That

is one way we answer it.

The other way is to say that His Honour was

clearly in error, based on our analysis of it here

before Your Honours today, in corning to a view that

we had no reasonable prospect of successfully

opposing the appellant's claim because, properly

considered, quite apart from whether they
misconceived section 87, the truth was that on the
facts of this case, as they stood at an

interlocutory stage, we did have a reasonable case.

So when they came to the question of mandatory

relief, they did nothing but think that that was

the basic question they had to resolve and they

simply went off on the same tack as Mr Justice

Murray.

So that is the way in which we deal with that,

Your Honour, and we would submit that if it does

not, as we would strongly put, show a case for

looking at section 87, it is relevant to mandatory

relief.

MASON CJ: Thank you, Mr Ellicott. If it is not

inconvenient to counsel, we will adjourn.

MR ELLICOTT: If Your Honour pleases.

AT 5.13 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 16 OCTOBER 1992

Wenpac 15 15/10/92