Queensland v Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALR 243; (1985) 59 ALJR 562 (29 March 1985)

HIGH COURT OF AUSTRALIA

THE STATE OF QUEENSLAND v. AUSTRALIAN TELECOMMUNICATIONS COMMISSION

High Court of Australia
Gibbs C.J.(1) IN CHAMBERS

CATCHWORDS

HEARING

Canberra
29:3:1985
Solicitor for the Plaintiff: R.P. Sammon, Crown Solicitor for the State of Queensland
Solicitor for the Defendant: Australian Government Solicitor

DECISION

GIBBS C.J. This is an application for an interlocutory injunction directed to the defendant, the Australian Telecommunications Commission, to which I shall refer as "Telecom", requiring it to provide maintenance service to two PABX telephone systems installed in the premises of the plaintiff, the State of Queensland, and requiring the defendant to provide its normal maintenance and installation services to the plaintiff.

2. The material shows that there has been a failure to maintain the two PABX systems and that in consequence over 3,000 telephones connected to departments of the Queensland Government and to the courts are out of order. It is fair to assume that the proper administration of the State of Queensland is threatened by this deprivation of what is nowadays a normal and necessary facility. It further appears that the failure to maintain the systems is due to the fact that industrial action has been taken by employees of Telecom. They have imposed bans which, according to Telecom, render Telecom unable to provide the service of maintaining the systems. It is said that the bans were placed on the installation and maintenance of services to departments of the State Government because of the recent power dispute in Queensland. If so, they may well constitute a secondary boycott under s.45D of the Trade Practices Act 1974 (Cth), as amended.

3. Telecom has filed an affidavit in which it states that it has issued directives to certain of its employees to effect repairs to the two switchboards and that those employees have refused to comply with the directions. Thereupon, notice of the existence of a dispute was lodged with the Conciliation and Arbitration Commission and it is proposed to seek an urgent hearing before the Commission.

4. The first question that arises is whether there is a serious question to be tried concerning the contractual or statutory duty of Telecom to maintain the PABX installations. The agreements signed when Telecom was requested to instal the PABX systems are silent on the matter but they appear to incorporate the Telecommunications (General) By-laws. Counsel had not had a full opportunity to make a close study of the by-laws and although in the case of ordinary telephones and telexes there is an express obligation on Telecom to maintain the line and instrument (see by-laws 50 and 80) it is not clear whether this obligation extends to PABX services. It is not clear whether by-law 63, which applies to certain PABX exchanges and does not expressly impose a similar obligation, applies to the circumstances of the present case.

5. Section 6(1) of the Telecommunications Act 1975 (Cth), as amended, provides:

"The Commission shall perform its functions in
such a manner as will best meet the social,
industrial and commercial needs of the Australian
people for telecommunications services and shall,
so far as it is, in its opinion, reasonably
practicable to do so, make its telecommunications
services available throughout Australia for all
people who reasonably require those services."
make its services available whenever reasonably practicable. Any other view would indeed be surprising in the case of the grant of a monopoly to supply an essential public service. Having considered Bradley v. The Commonwealth [1973] HCA 34; (1973) 128 CLR 557, John Fairfax Ltd. v. Australian Postal Commission (1977) 2 NSWLR 124, and John Fairfax v. Australian Telecommunications Commission (1977) 2 NSWLR 400, I am of the opinion that there is a serious question to be tried as to the existence and nature of an obligation on the part of Telecom to maintain the PABX service of a subscriber.

6. In deciding whether to grant an interlocutory injunction the first question for the Court is whether there is a serious question to be tried (see Australian Coarse Grain Pool Pty. Ltd. v. Barley Marketing Board (1982) 57 ALJR 425, 46 ALR 398; Tableland Peanuts Pty. Ltd. v. Peanut Marketing Board (1984) 58 ALJR 283, 52 ALR 651 and Epitoma v. AMIEU (1984) 54 ALR 730. That question having been answered in the affirmative, it is then necessary to consider whether the balance of convenience is in favour of the grant or refusal of the injunction. On the one hand there is no doubt that the continuance of the present situation will be productive of great inconvenience in Queensland, not only to the public bodies whose telephones are directly affected but also to private citizens who may have dealings with those bodies. On the other hand, Telecom is not itself directly responsible for the present situation. It has directed its employees to perform the maintenance. The only other course open to it will be to authorize private persons to do the work under s.13(1) of the Telecommunications Act. There is evidence that if Telecom authorized contractors to carry out the maintenance work there would be an escalation of bans and industrial action which would extend beyond the State Government and might possibly also affect the national telecommunications network. Of course, the Court cannot be swayed from its duty by threats of that or any other kind, but it is at least a question whether the possibility that the defendant and other persons may suffer damage as a result of the actions of third persons if an injunction is granted should not be taken into consideration in weighing the balance of convenience when an interlocutory injunction is sought.

7. 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. In Redland Bricks Ltd. v. Morris (1970) AC 652, the House of Lords held that the grant of a mandatory injunction is never made as of course and that a factor to be taken into consideration is that the defendant has not behaved unreasonably but only wrongly. According to Halsbury's Laws of England vol.24, par.948, the position regarding the grant of a mandatory injunction on an interlocutory application is as follows:

"A mandatory injunction can be granted on an
interlocutory application as well as at the
hearing, but, in the absence of special
circumstances, it will not normally be granted.
However, if the case is clear and one which the
court thinks ought to be decided at once, or if the
act done is a simple and summary one which can be
easily remedied, or if the defendant attempts to
steal a march on the plaintiff, such as where, on
receipt of notice that an injunction is about to be
applied for, the defendant hurries on the work in
respect of which complaint is made so that when he
receives notice of an interim injunction it is
completed, a mandatory injunction will be granted
on an interlocutory application."

Megarry J. stated the principle in Shepherd Homes Ltd. v. Sandham (1971) 1 Ch 340, at p 351, in the following words:

"... 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 high degree of assurance
that at the trial it will appear that the
injunction was rightly granted; and this is a
higher standard than is required for a prohibitory
injunction."

Although, as I have already indicated, there is a serious question to be tried in the present case, I lack a "high degree of assurance" that the plaintiff will necessarily succeed: the question is an open one. The second consideration is that an alternative remedy may be available to the plaintiff - namely proceedings under s.45D of the Trade Practices Act against the union concerned.

8. I would not refuse an injunction at the present stage, for in a case of this kind developments from day to day may incline the balance of convenience in a different direction. The success or failure of proceedings in the Arbitration Commission or of proceedings under s.45D may resolve the matter one way or the other and any delay in concluding those proceedings may be a relevant factor. Further examination of the legislation regarding the duties of Telecom or of the documents which have been signed in relation to the provision of the PABX services may strengthen or weaken the plaintiff's case.

9. I would decline to grant an injunction at the present stage, but would adjourn the matter to be brought on on one day's notice. Obviously, reasons of convenience render it necessary to remit the matter to another court. I have given consideration to the question whether the remitter should be made to the Supreme Court or to the Federal Court and, although there are some considerations which incline in favour of both courses, I have in the end decided that the balance of convenience lies in favour of remitting the matter to the Supreme Court of Queensland. I propose, therefore, to make no order on the present application other than that it be adjourned to be brought on for hearing on one day's notice, and that the matter be remitted to the Supreme Court of Queensland.

ORDER

Adjourn the application to be brought on for hearing on

one day's notice.

Remit the matter to the Supreme Court of Queensland.

Reserve costs, to be dealt with by the Supreme Court of

Queensland.

Liberty to apply to the High Court for further

directions.