PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD & OTHERS v MARITIME UNION OF AUSTRALIA & OTHERS

Judges: Brennan CJ, McHugh, Gummow, Kirby and Hayne
Gaudron

Callinan JJ

Subject References:
HIGH COURT AND FEDERAL JUDICIARY
Federal Court of Australia
Power under s 298U of the Workplace Relations Act 1996 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) to grant interlocutory injunctions to restrict purported termination of labour supply agreements, termination of employment of employees, obtaining stevedoring services, engaging in conduct having the effect of termination employment of employees, and engaging in conduct having the effect of the divestment of assets or dealing with assets otherwise than in the ordinary course of business.
EQUITY
Equitable Remedies
Mareva injunctions and other interlocutory injunctions
Whether within jurisdiction of the Federal Court of Australia to grant injunction with the effect of fettering discretion of administrators appointed under Pt 5.3A of the Corporations Law
Whether effect of such injunction requires company to trade while insolvent
Whether injunction necessary to prevent frustration of process
Whether confined to maintaining status quo at the time of making application
Whether available to protect the subject matter of litigation conferring greater rights than when application made
Whether serious question to be tried
Whether appropriate on balance of convenience
Effect on third parties
Exercise of supervisory jurisdiction.
CORPORATIONS
Companies
Management and Administration
Appointment of administrators under Pt 5.3A of the Corporations Law
Powers and duties in administration of company
Personal liability in administration of company
Jurisdiction of court fettering discretion of administrators
Jurisdiction of court to make orders compelling administrators to retain employees and to trade while insolvent contrary to responsibilities under the Corporations Law.
INDUSTRIAL LAW
Commonwealth
Stevedoring Industry
Whether restructuring of companies so as to remove assets from employer company with the effect of dismissing, injuring or altering the position of employees by reason of their membership of a union contravenes Pt XA of the Workplace Relations Act 1996 (Cth)
Nature of interlocutory injunctive relief available under s 298U of that Act.
TORT
Joint or Several Tortfeasors
Conspiracy
Whether interlocutory injunction an appropriate remedy
Whether interlocutory mandatory injunction an appropriate remedy.

Other References:
Corporations Law, Pt 5.3A, s 1321
Federal Court of Australia Act 1976 (Cth), ss 23, 32
Workplace Relations Act 1996 (Cth), Pt XA, ss 298K, 298L, 298T, 298U, 298V

Judgment date: 4 MAY 1998

Judgment by:
Callinan J

[155] The applicants, members of a group of companies controlled by Lang Corporation Ltd ("the group") seek special leave to appeal from a decision of the Full Court of the Federal Court given on 23 April 1998, affirming and varying far reaching interim orders made by a single judge of the Federal Court, North J, on 21 April 1998 restraining the applicants from acting upon, or giving effect to, the purported termination by Patrick Stevedores Operations No 2 Pty Ltd ("Patrick Operations") of Labour Supply Agreements ("LSAs") between Patrick Operations and some of its associated companies, the third to sixth respondents, and requiring the reinstatement of those agreements and by them, approximately 1400 workers, represented, in this application by the first respondent, the Maritime Union of Australia ("the MUA").

[156] That brief outline understates the complexity and reach of the several orders that the Court has to consider. In view of the importance of the matter the Court asked the parties to make their submissions in such a way as to enable the Court to determine the appeal if special leave were granted.

[157] The originating application was commenced in the Federal Court by the MUA and representatives of the Patrick workforce on 15 April 1998. I will refer to the first and second respondents in this Court for convenience as the MUA. The MUA alleges that the effective dismissal of the workforce by Patrick employers arising out of a complex corporate restructure of the Patrick group in late 1997 contravened the Workplace Relations Act 1996 (Cth) ("the Workplace Relations Act "), and was the direct and intended result of a conspiracy between the applicants and others.

[158] On 23 September 1997, Patrick Stevedores No 1 Pty Ltd ("PS1"), Patrick Stevedores No 2 Pty Ltd ("PS2"), Patrick Stevedores No 3 Pty Ltd ("PS3") and National Stevedores Tasmania Pty Ltd ("NST") (collectively "the employers"), owners and operators of container and general cargo facilities at several Australian ports entered into business purchase agreements ("BPAs") with Patrick Operations ^[F125] , for the sale of the business and assets of the employers to Patrick Operations, for approximately $315 million. The price paid was struck in accordance with a valuation of the Patrick group made by a firm of accountants, Price Waterhouse Corporate Finance in late 1996.

[159] The employers used part of the proceeds of sale to buy back a substantial proportion of their own shares, and to repay debts. It was not suggested that the buy back of the shares infringed Div 4B of Pt 2.4 of the Corporations Law which authorises buy backs. There is said to be, and the primary judge placed reliance on the existence of, a receivable payable to the employers of approximately $16 million. The applicants contend (a contention supported by evidence before the courts) that a syndicate of banks is owed at least that sum by the group and that a charge in respect of it has now become fixed.

[160] The primary judge makes no mention of this last matter. It may be an answer to any suggestion implicit in the judgment at first instance that one or more of the applicants is deliberately withholding a fund now due and owing to the employers which could be paid to them and used to facilitate compliance with the orders made by North J.

[161] At this point I should say something about the accounting information which was before the courts below and this Court. Some attempt was made by the MUA to make a case that because the employee companies had made recent profits there was no reason why the businesses of the group should have been reorganised and that it therefore had no legitimate commercial reason for reorganising its affairs. It would be inappropriate to draw such an inference from the incomplete, and, to a large extent unexplained financial information before the courts. Nothing was known for example of the internal rate of return of the business of the group or each of its components, whether what was being earned was a fair return, whether it was a comparable return with other, like, or indeed other businesses generally, or what the rights and attitude of the group's bankers were to the group's asset ratios, activities, loans and cashflows. No reliable assessment of the financial rationale for what was done can be made without information of this kind, and perhaps expert commentary upon it.

[162] In order to operate the businesses they had now acquired, Patrick Operations entered into LSAs with each employer under which the employers would provide labour and carry out services at, and using the facilities now controlled by Patrick Operations: principally, the conduct and supervision of stevedoring and associated administrative activities.

[163] As a result of these arrangements each employer was left with what North J described as its only significant asset: its LSA with Patrick Operations, an agreement terminable immediately by Patrick Operations in the event of interruption to the supply of labour to it.

[164] To this effect, each LSA contains cl 13.1 which states in part:

"(a)

In the event of a breach of this Agreement by the Contractor (other than a breach of clause 2.3(h)) [Patrick Operations] may give written notice to the Contractor to rectify the breach (`Rectification Notice'). If the breach is not rectified to the reasonable satisfaction of [Patrick Operations] within a 30 day period after a Rectification Notice is given, [Patrick Operations] may terminate this Agreement immediately by giving written notice to the Contractor (`Termination Notice').

(b)

In the event of a breach of clause 2.3(h) of this Agreement [Patrick Operations] may terminate this Agreement immediately."

Clause 2.3(h) of each LSA provides:

"In the performance of the Services, the Contractor will:

...

(h)

ensure that the performance of the Services are not interfered with or delayed or hindered for any reason;"

The applicants refer to several industrial disputes which they say caused the employers to be in breach of the LSAs. The uncontradicted particulars of these are as follows:

In December 1997 industrial action commenced at Webb Docks and East Swanson Dock in Melbourne and default notices pursuant to the LSAs were issued by Patrick Operations to PS1 and PS2. On 9 January 1998 default notices were issued to PS1, PS2 and PS3 pursuant to the LSAs.

On 28 January 1998, PS1 subleased part of Webb Dock Melbourne to PCS Operations ("PCS"). At that time PS2 entered into an equipment hire agreement with PCS Operations and PCS Operations commenced occupation of berth 5 Webb Dock for the purpose of training stevedoring employees. Strike action by the MUA members followed at Webb Dock between 29 January 1998 and 13 February 1998.

A four day strike next occurred at East Swanson Dock Melbourne for the period 16 to 20 February 1998. On 16 February 1998 a further notice of breach of the LSAs was served by Patrick Operations on PS1, PS2 and PS3.

On 11 March 1998 there was industrial action at Port Botany by employees of PS1 and PS2 which lasted for 48 hours and on 11 March 1998 a further notice of the breach of the LSAs was served by Patrick Operations on PS1, PS2 and PS3. Strike action commenced at Port Botany by employees of PS1 and PS2 on 25 March 1998 which continued for seven days.

It may well have been this last event that led Mr Clayton, the director of the employer companies, to write a letter dated 17 March 1998 to each of the workers to make them personally aware, if they did not already know, that the employers were "being drawn into a serious commercial situation by the actions of [their] unions". The letter made clear that contractual arrangements were under severe strain and threat, and breaches had already occurred:

"Let me assure you that the contractual arrangements we need for our current and future existence are under severe strain and threat."

In the same letter this was also written:

"The campaign being waged against the company by the unions and, in turn, its employees have already put the company in breach of its contractual obligations and caused significant loss and damage. It seems likely to be escalated and will cause us further damage. I urge you to think very seriously about the consequences of the irresponsible vendetta embarked upon by the union. It is the company and not the union who has to find the funds to keep your needs intact. At the end of the day, the matter is entirely in your own hands and it is time to think of your own future needs."

An exchange of correspondence followed in which the MUA stressed its entitlement to information bearing upon the possible effect upon the workforce of changes in production, program, organisation, structure or technology pursuant to cl 43 ^[F126] of the relevant award. Assuming, as seems likely, that what occurred in September 1997 was a change within the meaning of the award, the employers should have provided information of the substance and effect of the LSAs. It is not however a question which needs to be resolved now whether the letter of 17 March provided nearly enough information of the kind which cl 43 of the award requires.

[165] The applicants' complaint of, and responses to, the industrial disputation then continue:

On 30 March 1998 Mr Clayton wrote to Patrick Stevedore Holdings advising of his inability to rectify the breaches of the LSA and requesting continuation of funding from Patrick Stevedore Holdings to pay salaries to employees. There was further industrial action at Fishermans Islands and Maritime Wharves by employees of PS1 and PS2 for the period 3 to 6 April 1998.

The respondents then filed a notice of motion on 6 April 1998 seeking orders to prevent the dismissal of the employees of PS1, PS2, PS3 and NST. Strike action commenced at Port Botany on 7 April 1998 by employees of PS1 and PS2 which lasted for seven days.

On 7 April 1998, the directors of Patrick Operations resolved to terminate the LSAs with PS1, PS2 and PS3 and not to continue to meet the obligations of those companies. Notice of termination was served at approximately 4pm that day.

[166] North J at first instance referred to reasons given by Mr William Hara, a deponent on behalf of the applicants for the corporate restructure:

"The corporate counsel of Lang Corporation Ltd deposed to the reasons for the restructure, which involved the making of the BPAs and LSAs, the share buybacks and debt repayments. The reasons were to avoid customer confusion, confusion as to which entity owned which assets, to allow better performance monitoring and to allow borrowing at better rates. There is no express denial that a reason for undertaking the restructure in this particular way was to facilitate the termination of the employee's employment."

His Honour also referred to the consequences of the exercise by Patrick Operations on 7 April 1998 of its right to terminate the LSAs:

"That action meant that the employers had lost their only significant asset, were rendered insolvent, and thereby provided the ground for the employers to appoint administrators. On the same day, [Patrick Operations] entered into a number of contracts for the provision of labour by a new workforce."

I interpolate that what his Honour described as a significant asset, each LSA, could only be significant, if, and to the extent that it could and would be performed according to its tenor and that of course required an uninterrupted supply of labour. Even then the asset would only be significant if the contracts were productive of profits.

[167] An administrator was appointed to the employers under Pt 5.3A of the Corporations Law during the course of the evening of 7 April 1998.

[168] The interim relief sought by the MUA resulted in orders in the following terms, as varied by the Full Court of the Federal Court:

"1. Until the hearing and determination of this Application, or further order, the Fifth Respondent, Patrick Stevedores Operations No 2 Pty Ltd, and the Seventeenth Respondent, Patrick Stevedores Operations Pty Ltd, each by itself, its servants and agents, are restrained from acting upon or giving effect to:

(a)

its purported termination of the Labour Supply Agreement made on 23 September 1997 between it and the First Respondent, Patrick Stevedores No 1 Pty Ltd;

(b)

its purported termination of the Labour Supply Agreement made on 23 September 1997 between it and the Second Respondent, Patrick Stevedores No 2 Pty Ltd;

(c)

its purported termination of the Labour Supply Agreement made on 23 September 1997 between it and the Third Respondent, Patrick Stevedores No 3 Pty Ltd;

(d)

its purported termination of the Labour Supply Agreement made on 23 September 1997 between it and the Fourth Respondent, National Stevedores Tasmania Pty Ltd;

2. Until the hearing and determination of this Application, or further order, the First, Second, Third, Fourth, Fifth and Seventeenth Respondents shall subject to paragraph 4 of these orders:

(a)

continue to treat the Labour Hire Agreements referred to in paragraphs 1(a) to (d) as remaining on foot and binding upon the parties to those agreements;

(b)

give effect to the terms of those agreements.

3. Until the hearing and determination of this Application, or further order, the First, Second, Third, Fourth, Fifth and Seventeenth Respondents by themselves, their servants or agents, are restrained from terminating the Labour Hire Agreements referred to in paragraphs 1(a) to (d) for any reason without first giving to the First Applicant 14 days written notice of that intention and the reason for that proposed termination.

4. Until the hearing and determination of this proceeding, or further order, the Fifth Respondent and the Seventeenth Respondent, by themselves, their servants or agents, are restrained from acquiring the stevedoring services, which until 7 April 1998 they acquired from the First, Second, Third and Fourth Respondents, from any person other than the First, Second, Third or Fourth Respondents.

5. Until the hearing and determination of this proceeding, or further order, the First, Second, Third and Fourth Respondents by themselves, their servants or agents, are restrained from:

(a)

entering into any agreement, arrangement or other transaction; or

(b)

taking any action or doing anything;

having the effect that the employment of the employees engaged in their stevedoring business is or will be terminated.

6. Until the hearing and determination of this proceeding, or further order, the Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Sixteenth and Seventeenth Respondents, by themselves, their servants or agents, are restrained from:

(a)

entering into any agreement, arrangement or other transaction, or taking any action or doing any thing, having the effect of divesting itself of their assets or undertaking, otherwise than in the ordinary course of business;

(b)

dealing with or otherwise disposing of any of their assets or undertaking otherwise than in the ordinary course of business."

Orders 7 to 11 are not relevant to this application.

[169] The orders (1 to 6) are of breathtaking reach. No case was cited to the Court in which orders of such breadth had been made in any jurisdiction.

[170] Undertakings were given by the first and second respondents in respect of those orders:

(i)

to pay to any party adversely affected by the interim injunctions such compensation as the Court sees fit;

(ii)

not to engage in any industrial action (as defined by the Workplace Relations Act by paragraphs (a) to (d) of the definition of that term in s 4 of the Act) except where based on reasonable concerns by the employee about an imminent risk to health and safety, and where an employee does not unreasonably fail to comply with a direction of the employer to perform other available work; and

(iii)

not to hold the administrators appointed to the employers personally liable for the wages and other benefits payable to the employees.

The principles governing the determination of applications for interlocutory injunctions are well established. First, the Court must decide whether there is a serious question to be tried. If the answer to that question is an affirmative one, then the Court must consider whether the balance of convenience favours the grant of the relief sought. Sometimes interim injunctions and interlocutory injunctions are spoken of as if they are interchangeable terms. The former is more appropriately used in the case of an injunction granted for a finite period usually brief and sometimes ex parte. The latter is usually granted to preserve the status quo pending trial. The Workplace Relations Act in one of the sections (s 298U(e)) with which the Court is concerned, uses the term "interim injunction", and it is not clear in which sense the Act uses it.

[171] North J found that there were three serious issues to be tried:

(i)

whether the BPAs and LSAs or the appointment of administrators injured the employees or altered the employees' position to their prejudice;

(ii)

whether one reason for the corporate restructure of the Patrick group, the resulting BPAs and LSAs and the appointment of administrators was to dismiss the MUA workforce because they were members of a union; and

(iii)

whether there was a scheme, involving Patrick Operations, the employers and others to dismiss the workforce in contravention of s 298K(1) of the Workplace Relations Act .

Section 298K(1) provides:

"An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a)

dismiss an employee;

(b)

injure an employee in his or her employment;

(c)

alter the position of an employee to the employee's prejudice;

(d)

refuse to employ another person;

(e)

discriminate against another person in the terms or conditions on which the employer offers to employ the other person."

The section, it will be noted, proscribes conduct undertaken in part only for a reason which is prohibited, and by s 298L(1)(a) a prohibited reason includes the employee's past, present or proposed membership of a union. Furthermore, s 298V ^[F127] of the Workplace Relations Act raises a rebuttable presumption against the employers which the primary judge was entitled to take into account in assessing the strength of the MUAs case on an interim or an interlocutory application.

[172] In respect of evidence put before his Honour on these matters, North J said:

"As the evidence presently stands, it is arguable that the Patrick group, including the employers and [Patrick Operations], were dissatisfied with the Union and its approach to waterfront reform. The Patrick group wanted to achieve wholesale change to their workforce and to reduce award conditions. They had a number of meetings with the Minister for Workplace Relations [the eighteenth respondent].

...

On the present state of the evidence, I can infer that the question of replacing the Union workforce of the employers was discussed [at a meeting with the Minister on 12 March 1997]. Further, the evidence suggests that Mr Corrigan, [the seventh respondent], the Chief Executive Officer of Lang Corporation Ltd, had a role in facilitating the training of a new waterfront workforce in Dubai. At about the same time in September [1997], the BPAs and LSAs were concluded. ... The LSAs made it easier for the employers to terminate the workforce. If the LSA was terminated, the employers' only significant asset was gone. There was a clear case of redundancy and the Australian Industrial Relations Commission would not have reinstated the employees. But [Patrick Operations] could continue the existing business with a new workforce. Before the BPAs and LSAs, if the employers had terminated the workforce and attempted to continue the business with a new workforce, the old workforce could have applied successfully to the Australian Industrial Relations Commission for reinstatement because there would have been no redundancy to justify the terminations. ... The reasons given [by the corporate counsel of Lang Corporation for the restructure in September 1997 and quoted above] do not explain why clause 13.1(b) of each LSA took the particular form [it did]. Furthermore, the reasons given are not inconsistent with the reason alleged by the [first and second respondents]. Section 298K(1) requires the prohibited reason to be one reason, but not the only reason. In my view, there is a serious question to be tried that one reason why the employers made the BPAs and LSAs in the form they took and the reason why they appointed the administrators was because the employees were members of the Union, and the employers wanted to dismiss them to replace them with a non-Union workforce."

Conscious of the authorities establishing the relatively low factual threshold test applicable to the grant of interim and interlocutory injunctions, and, no doubt, the effect of ss 298L and 298V of the Workplace Relations Act , the applicants accepted that they could not at this stage challenge those findings. As to the question of balance of convenience his Honour said:

"In respect of the balance of convenience, the case raised a large number of matters. ... In the end, the assessment of the relative weight of the factors is a matter of judgment. It is a balancing exercise. After reflection, I have formed a clear view that the balance is in favour of granting the injunctions sought. The judgment is based, in part, ... upon my assessment of Mr Butterell in the witness box in relation to his future role in the administration of the employers. Although I favour the approach to the grant of interlocutory mandatory injunctions expressed by Gummow J in Business World Computers Pty Ltd v. Australian Telecommunications Commission ^[F128] , I have reached the ` high degree of assurance ' referred to in Queensland v. Australian Telecommunications Commission ^[F129] which the [applicants] argued should govern the approach to the grant of such injunctions."

His Honour was, it seems, able to reach this high degree of assurance notwithstanding the administrator's apparent absence of experience in managing a large stevedoring workforce on a daily basis and absence of experience in the industry generally. He was no doubt influenced by the responsible approach to their obligations in these proceedings that the administrators have taken, and their experience as liquidators and receivers generally. His Honour pointed to circumstances favouring the grant of interim relief as including:

(i)

the first and second respondents' claim is an attempt to vindicate the rights of employees to earn a living free of victimisation and not a commercial dispute about money;

(ii)

The Workplace Relations Act , pursuant to s 298U(b), provides for reinstatement as a remedy for breach of s 298K;

(iii)

The irreversible nature of the changes that would result from the employees' absence from the workplace if interim relief were not granted;

(iv)

The first and second respondents' undertakings; and

(v)

The presence of the administrators, thereby placing the employers in the hands of a neutral independent person.

Within hours of that decision an appeal was lodged in the Full Court of the Federal Court and a stay obtained on three of his Honour's orders until the determination of the appeal: orders 1 and 2 which require Patrick Operations and the employers to treat as operative the LSAs, and order 4 which precludes Patrick Operations from using personnel supplied by others.

The Full Court of the Federal Court (Wilcox, von Doussa and Finkelstein JJ) unanimously rejected the applicants' appeal. In their reasons for judgment, their Honours said:

"it is appropriate to say we have read, and carefully considered, the whole of North J's reasons for judgment but we find them free from appellable error. In relation to the first issue he had to confront, whether there was a serious question to be tried in respect of the claims made by the applicants, the MUA and employees, his Honour's reasoning is tightly structured and compelling. Significantly, it has not been subjected to serious attack before us. In relation to the second issue, the proper discretionary order to be made, having regard to the overall balance of convenience, the question for us is not whether we would have ascribed the same weight to each element as his Honour, or even come to the same overall conclusion, but whether his Honour erred in law or in the application of legal principle, failed to take into real account a proper matter for his consideration, took into account some extraneous matter or reached a decision so extraordinary that it must be concluded his discretion miscarried."

[173] In the Full Court of the Federal Court the applicants contended that the interim orders, in the terms in which they were made, were beyond the remedial powers conferred by s 298U of the Workplace Relations Act and s 23 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act ") in their application to Patrick Operations (as distinct from the employers).

[174] Secondly, they contended that the orders were an improper exercise of the discretionary powers to grant interim injunctions.

[175] As to the applicants' first ground, the Full Court of the Federal Court found that it was highly doubtful that s 298U of the Workplace Relations Act authorised the orders made by North J against Patrick Operations because the provisions of the Workplace Relations Act did not extend to the making of orders that affected the agents of, or impose duties on, persons other than the employer ^[F130] . In my opinion the operation of s 298U is confined to remedies against an employer only.

[176] Their Honours then went on to hold however that the orders fell within the jurisdiction conferred by s 23 of the Federal Court Act which provides:

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or to direct the issue of, writs of such kinds, as the Court thinks appropriate."

Their Honours were of the opinion that orders of the kind in question were "appropriate" in the sense in which Deane J discussed that concept in Jackson v. Sterling Industries Ltd ^[F131] :

"Section 23 of the Federal Court of Australia Act 1976 (Cth) confers upon the Federal Court a broad power to make orders of such kinds, including interlocutory orders, as it `thinks appropriate'. Wide though that power is, it is subject to both jurisdictional and other limits. It exists only `in relation to matters' in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the `kinds' of order, whether final or interlocutory, which are capable of properly being seen as `appropriate' to be made by the Federal Court in the exercise of its jurisdiction."

In the Full Court of the Federal Court their Honours said:

"What is `appropriate' in this case, in relation to the Patrick operators? The answer must have regard to the case made against them. If an order has the effect, or may have the effect, of preventing or mitigating the harm that will or may be suffered by an applicant as a result of alleged wrongful behaviour of a particular person, it is an `appropriate' order, within the language used by Deane J. In other words, there must be a relationship between the alleged wrong, the likely damage and the effect of the order.

In the present case one wrong alleged against the Patrick operators, and found to raise a serious question for trial, is that those companies conspired with the employer companies to restructure members of the Patrick group of companies in such a way as to enable the employers to breach s 298K(1) of the Workplace Relations Act . Orders 1, 2 and 4 are designed to prevent that result occurring.

It is true, as counsel for Patrick observe, that damages are the relief usually awarded in conspiracy cases. But that is probably because, in most cases, by the time the court is able to deal with the case irreparable harm has already been sustained; in which case no injunction will be useful. If it should happen that an applicant gets to court before irreparable damage has been suffered, there seems to be no reason in principle why the court should not grant injunctive relief to prevent or mitigate the threatened damage. It is true that conspiracy is a tort developed by the common law and that the injunction is a remedy fashioned in the Courts of Equity. But it is now over 100 years since the fusion of law and equity has enabled courts to use equitable remedies in aid of common law proceedings and it has become commonplace for them to do so; for example, to restrain a trespass.

It seems to us the only thing that needs to be considered in relation to the Court's power to issue injunctions against Patrick operators, including mandatory injunctions such as orders 2 and 4, is whether it is interim relief related to wrongful conduct alleged against those respondents (the conspiracy) and fairly calculated to prevent or mitigate harm to the applicants from that wrongful conduct. Upon the basis of the tentative findings of North J, which are not challenged before us, that question must be answered affirmatively.

The orders will have the tendency to provide stevedoring business, and therefore income, to the Patrick employers, thereby enabling them to continue to employ the employees. That result will, in turn, have the effect of precluding the Patrick employers from justifying termination of the services of the employees on the basis that they are redundant. In short, the orders will have the tendency to frustrate achievement of the objects of the conspiracy, involving the Patrick operators, about whose existence North J was satisfied there was a serious issue for trial.

In our view, there is no problem about the power of the Court to make all the orders under challenge."

With respect to their Honours it is open to question whether the resurrection of the LSAs would have a tendency to provide, let alone would be, such a sufficient source of income as would enable the employers to continue to employ the employees. To answer this question with any confidence would require access to, and careful consideration of, not only the business and financial records of the employers in the past, but also a careful and realistic consideration of the employers' business prospects for the future. Counsel for the administrators made it plain in his submissions to this court that the employers could not even recommence business without a substantial injection of capital. Ordinarily of course, the conduct of a business by an administrator of a company will be a relatively short term activity.

[177] The applicants further argued in the appeal to the Full Court of the Federal Court that because the orders required Patrick Operations to accept labour from the Patrick employers, the injunctions required the specific performance of the LSAs, contrary to the principle that specific performance of a contract for personal services will not be granted ^[F132] . The Full Court rejected this argument:

"Here the relevant order is one by which the Patrick operators are restrained from giving effect to the purported termination of the [LSAs]. As was pointed out by Yeldham J in Sanderson Motors (Sales) v. Yorkstar Motors Pty Ltd ^[F133] such an order might be made notwithstanding the fact that a court might not order specific performance of the agreement whose termination is to be restrained. The rights and obligations of the parties to the [LSAs] are not being supervised by the Court. They are regulated by the terms and conditions of the [LSAs] themselves.

Moreover, having regard to the provisions of the Workplace Relations Act 1996 it should not be assumed that the principles expressed in cases such as JC Williamson ^[F134] ... and Argyll ^[F135] ... have application to contracts of employment regulated by that Act. For example, the Act contemplates the reinstatement of a wrongfully dismissed employee. When the legislation contemplates relief of that type then there is no reason why interlocutory relief which may have the same practical effect should not be available to an employee whose rights have been arguably unlawfully infringed.

Quite apart from our own views on this aspect of the case, it is clear that North J gave detailed consideration to this very question. He pointed out, quite correctly in our opinion, that if any difficulty arises from the operation of the injunction the party affected can return to the Court to apply for a variation of the injunction. We do not apprehend any error in his Honour's approach to the problem. Moreover, we are firmly of the view that if the parties behave in a fashion which accords with common sense and displays some element of good will then there should be no difficulty with the practical operations of the [LSAs]. If we are wrong in this belief then the Court is well able to remedy any problem at short notice."

Mr Gyles QC who appears for Patrick Operations in this Court, submits that the Workplace Relations Act creates a complete and special regime with respect to obligations, rights and remedies for breach of it and that the remedies for which it makes provision are in no way enlarged by s 23 of the Federal Court Act .

[178] Division 3 of Pt VIA of the Workplace Relations Act is the part that deals with termination of employment. The point was made that s 170CFA(2)(b) and (d), and s 170CP refer to an "alleged contravention" to draw a distinction between that expression, and "contravention", a term used elsewhere in the Act.

[179] Within the meaning of s 298K(1), a threat itself may be a contravention. And, quite obviously, a threat to dismiss an employee might well be productive of disadvantage to that employee or other employees, such as, for example, submission to an implicit demand for longer working hours or participation in onerous or dangerous work practices.

[180] Section 298T uses the term "contravention" as does s 298U. Section 298V, speaks in terms, for its operation, of a contravention as opposed to an alleged contravention. Section 298U(e) empowers the court to grant an interim injunction to stop the conduct or remedy its effect. The last phrase "remedy its effects" strongly implies, it was put, that before an injunction, including an interim injunction (in whatever sense that expression is used) may be granted, there must be an actual contravention, and not a prima facie or arguable case for one.

[181] With respect neither to the argument that no injunction may be granted until an actual contravention is found nor to the argument that the orders were authorised by s 23 of the Federal Court Act do I express any opinion as I would decide the case on different bases.

[182] Indeed, as will appear, I expressly refrain from deciding points not essential to my decision. The application the subject of the appeal is an interlocutory one. The matter is urgent. There are no concluded findings of fact. On a trial, matters may bear an entirely different complexion. The allegations are grave ones and to be made out, will require clear and cogent proof.

[183] It is true however that the reasoning in the cases relied on by the applicants: Downey v. Trans Waste Pty Ltd ^[F136] , Thomson Australian Holdings Pty Ltd v. Trade Practices Commission ^[F137] , Jackson v. Sterling Industries ^[F138] and Ascot Industries Pty Ltd v. Harper ^[F139] with respect to other and apparently similarly exhaustive provisions, lend some weight to the applicants' argument.

[184] Courts should, in my opinion, be cautious in making orders based on special legislation relating to parties of a particular status or in a particular relationship, binding upon persons or corporations not having the requisite status or not being in the relevant relationship. Clear language intending that such special legislation should or may have that reach would usually be required. One reason why this is so is because special legislation (for example, the Family Law Act 1975 (Cth) and this Act, the Workplace Relations Act ) usually confers extraordinary and especially focussed powers to deal with situations arising out of the status or particular relationship. Another reason is that it may not always be possible to determine what impact orders may have upon those who in turn have obligations to, or rights in respect of, legal personalities not having the requisite status or relationship, but bound by the orders. Each of these considerations is however subject to the proposition stated by Gibbs J in relation to the operation of the Federal Court Act in Ascot ^[F140] :

"The position is, I think, different if the alleged rights, powers or privileges of the third party are only a sham and have been brought into being, in appearance rather than reality, as a device to assist one party to evade his or her obligations under the Act. Sham transactions may always be disregarded. Similarly, if a company is completely controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it."

The extent to which another provision of another statute (s 23 of the Federal Court Act ) may be called in aid of the operation of the special statute here (the Workplace Relations Act ) in a case in which conspiracy is alleged and relief under the latter act is sought, raises a further question which I do not need to answer in this case.

[185] In substance, the applicants' contend that the orders should not have been made for a number of reasons, some of which overlap. I have already touched upon these in part. They include:

(i)

the orders are made in respect of the implementation of a tort (of conspiracy), which is, if proved, complete: an injunction in these circumstances, assuming it to be available anyway in respect of a conspiracy, should not be granted here;

(ii)

the orders purport to bind persons and corporations who were not employers at any time and to require them to enter into effectively new arrangements with the employer companies;

(iii)

the fourth order might not be made as a final order and could not be undone if and when the case is finally disposed of: its purpose is simply to impose economic duress upon the applicants;

(iv)

the orders for their operation depend upon the performance of undertakings designed to cure, or in some way make lawful, what would otherwise be unlawful: the carrying on of the business of the employer companies when they are, or may be, insolvent, and the employment of labour upon a basis contrary to the relevant award and the Workplace Relations Act ;

(v)

that for their operation the orders require the supervision on a regular basis of the activities of the parties in the carrying on of business or, as it was otherwise put in argument, the orders are so uncertain in effect that it would not be practicable for a court to supervise their operation;

(vi)

the orders were made in breach of a fundamental rule that preservation of the status quo was all that a court should order in granting an interlocutory injunction: the stevedoring companies, indeed the employer companies were never confined to using the workers who were the represented applicants in the original proceedings;

(vii)

the orders were so uncertain that the parties bound by them could not know precisely what they must do to satisfy them; so too the court would be left in doubt in the future whether a contempt may have been committed;

(viii)

the more serious the conduct (the conspiracy) is alleged to be, the greater will be the need for assurance as to the necessity for and precision of the orders;

(ix)

if the applicants in these proceedings succeed at the trial, restoration to their previous position will be impossible;

(x)

the orders purport to impose upon the administrators of the employer companies, obligations at variance with their obligations under the Corporations Laws;

(xi)

the orders have the capacity to, and are likely to affect adversely the rights of third parties, such as bankers and other creditors;

(xii)

the trial judge made a finding of insolvency of the employer companies: to require them to continue or resume operations would be to require them to trade, in breach of the Corporations Law, whilst they are insolvent;

(xiii)

compliance with the orders is likely to be detrimental to the MUA because the reality is that the regime contemplated by the orders will be a deterrent to those who might otherwise deal with the applicants and provide a source of funds to the employers to pay the employees.

There is varying strength in all of these submissions, and some authority to support most of them ^[F141] .

[186] However, the raising of strongly arguable defences by a respondent to an application for an interlocutory injunction will not ordinarily be enough for the respondent to defeat the application. That flows from the principle that all the applicant need show in the first instance is that there is a serious question to be tried, although the strength of the defences may bear upon the issue of the balance of convenience because the two conditions which an applicant must satisfy are not always capable of discrete treatment. For the purposes of the application and appeal to this Court I will proceed upon the basis that the applicants to this Court must actually make out a complete answer to the contention that the interlocutory orders and injunctions were properly made and granted.

[187] It is a matter of concern that interlocutory mandatory injunctions were sought in respect of an alleged conspiracy, which is, on one view already complete. Cases in which such an injunction will be granted will be rare. Gulf Oil Ltd v. Page ^[F142] , which was relied upon by the MUA depends upon its own facts, is distinguishable, and provides no support for the orders made here. The injunction granted was a negative injunction. The defendants' threatened activities were to be carried out pursuant to a conspiracy to injure the plaintiffs by inflicting the maximum possible damage on them in revenge for financial reverses that the defendants had suffered. Sir Nicolas Browne-Wilkinson V-C, a member of the Court of Appeal which decided the case, was to describe its facts subsequently as "bizarre" in Femis-Bank Ltd v. Lazar ^[F143] . Even though the facts in Femis were of an unusual kind and a negative injunction only was sought to restrain a defamatory publication pursuant to an alleged conspiracy, his Lordship, in the exercise of his discretion refused to grant the relief claimed.

[188] The only other case cited on this point, British Motor Trade Association v. Salvadori ^[F144] is also a case in which the injunction granted was a negative one, and, on examination, it can be seen that the relief was then only granted by way of final relief after the proof of the conspiracy and breach of contract.

[189] However I am prepared to proceed upon the basis, without deciding it to be so, that mandatory interlocutory injunctions are potentially available in the case of a conspiracy said to be incomplete.

[190] In my opinion one matter that is immediately fatal to the challenged orders is that, for their operation, involving commercial dealings and business decisions on a day to day basis, there can be no certainty as to the way in which they can be carried out. They necessarily involve commercial considerations and decisions with respect to which even the best informed, and most well intentioned commercial minds might differ. Indeed, as the debate proceeded before the Court, it became apparent that further applications to the Federal Court with respect to these matters if the orders stood and were to operate until trial would be inevitable. At one point in his submissions, Mr Burnside QC who appeared for the MUA, referred to a possibility that following a reinstatement of his clients, if there were found to be a surplus of workers, application might be made to North J for permission to dismiss some workers.

[191] In Co-operative Insurance v. Argyll Stores Ltd ^[F145] the House of Lords allowed an appeal against an order for specific performance requiring a tenant in a shopping centre to re-open an unprofitable supermarket which it had, contrary to the terms of the lease, closed down. The matters which influenced their Lordships were similar to some which arise for consideration here: the difficulty of drawing up a sufficiently precise order to avoid further litigation and applications to the court; and that the losses to the defendants might far exceed the losses or disadvantages to the plaintiffs, a situation likely to give the plaintiffs an unjust and disproportionate bargaining position (in other words, an ability to impose economic duress). It is right to observe that the situation which the orders granted here create could well have a tendency to impose economic duress upon parties other than the employer parties.

[192] In Argyll , Lord Hoffmann (with whom Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Hope of Craighead and Lord Clyde agreed) said ^[F146] :

"Specific performance is traditionally regarded in English law as an exceptional remedy, as opposed to the common law damages to which a successful plaintiff is entitled as of right. There may have been some element of later rationalisation of an untidier history, but by the 19th century it was orthodox doctrine that the power to decree specific performance was part of the discretionary jurisdiction of the Court of Chancery to do justice in cases in which the remedies available at common law were inadequate. This is the basis of the general principle that specific performance will not be ordered when damages are an adequate remedy. By contrast, in countries with legal systems based on civil law, such as France, Germany and Scotland, the plaintiff is prima facie entitled to specific performance. The cases in which he is confined to a claim for damages are regarded as the exceptions. In practice, however, there is less difference between common law and civilian systems than these general statements might lead one to suppose. The principles upon which English judges exercise the discretion to grant specific performance are reasonably well settled and depend upon a number of considerations, mostly of a practical nature, which are of very general application. I have made no investigation of civilian systems, but a priori I would expect that judges take much the same matters into account in deciding whether specific performance would be inappropriate in a particular case.

The practice of not ordering a defendant to carry on a business is not entirely dependent upon damages being an adequate remedy. In Dowty Boulton Paul Ltd v. Wolverhampton Corporation ^[F147] , ... Sir John Pennycuick V-C refused to order the corporation to maintain an airfield as a going concern because: ... `It is very well established that the court will not order specific performance of an obligation to carry on a business'. He added: `it is unnecessary in the circumstances to discuss whether damages would be an adequate remedy to the company' ^[F148] ... Thus the reasons which underlie the established practice may justify a refusal of specific performance even when damages are not an adequate remedy.

The most frequent reason given in the cases for declining to order someone to carry on a business is that it would require constant supervision by the court. In JC Williamson Ltd v. Lukey and Mulholland ^[F149] ... Dixon J said flatly: `Specific performance is inapplicable when the continued supervision of the court is necessary in order to ensure the fulfillment of the contract.'

There has, I think, been some misunderstanding about what is meant by continued superintendence. It may at first sight suggest that the judge (or some other officer of the court) would literally have to supervise the execution of the order. In CH Giles & Co Ltd v. Morris ^[F150] ... Megarry J said that `difficulties of constant superintendence' were a `narrow consideration' because:

`there is normally no question of the court having to send its officers to supervise the performance of the order ... Performance ... is normally secured by the realisation of the person enjoined that he is liable to be punished for contempt if evidence of his disobedience to the order is put before the court; ...'

This is, of course, true but does not really meet the point. The judges who have said that the need for constant supervision was an objection to such orders were no doubt well aware that supervision would in practice take the form of rulings by the court, on applications made by the parties, as to whether there had been a breach of the order. It is the possibility of the court having to give an indefinite series of such rulings in order to ensure the execution of the order which has been regarded as undesirable.

Why should this be so? A principle reason is that, as Megarry J pointed out in the passage to which I have referred, the only means available to the court to enforce its order is the quasi-criminal procedure of punishment for contempt. This is a powerful weapon; so powerful, in fact, as often to be unsuitable as an instrument for adjudicating upon the disputes which may arise over whether a business is being run in accordance with the terms of the court's order. The heavy-handed nature of the enforcement mechanism is a consideration which may go to the exercise of the court's discretion in other cases as well, but its use to compel the running of a business is perhaps the paradigm case of its disadvantages and it is in this context that I shall discuss them.

The prospect of committal or even a fine, with the damage to commercial reputation which will be caused by a finding of contempt of court, is likely to have at least two undesirable consequences. First, the defendant, who ex hypothesi did not think that it was in his economic interest to run the business at all, now has to make decisions under a sword of Damocles which may descend if the way the business is run does not conform to the terms of the order. This is, as one might say, no way to run a business. In this case the Court of Appeal made light of the point because it assumed that, once the defendant had been ordered to run the business, self-interest and compliance with the order would thereafter go hand in hand. But, as I shall explain, this is not necessarily true."

I respectfully agree with what his Lordship said. I would only add these observations which may well be implicit in his Lordship's remarks. There are sound reasons of public policy why courts should not make orders requiring the carrying on of businesses. Business affairs require mutuality in dealings. The pressure upon courts today is heavy. The role of the courts is the adjudication of cases, not the making, under the guise of supervisory orders, of de facto business decisions.

[193] Business presents problems with which courts are generally not equipped to deal. A decision which turns out to be a wrong one, or an unfortunate course of action in relation to a commercial activity forced upon a business person by an order of the court, may have a tendency to bring the court into disrepute.

[194] Although his Lordship's observations were made in a case of specific performance, they are equally apposite, probably more so, to cases of interim or interlocutory injunctions of the kind granted here which not only purport to insist upon a return to past contractual dealings, but also purport to order what is effectively the creation and continued operation of new ones. It is obvious that the practical effect of the orders will be to compel the employers to employ only their current workforce (comprised almost exclusively of MUA members), to change and restrict the operation of cll 2.3(h) and 13.3 ^[F151] of the LSAs, to compel the applicants to give notice to the MUA when formerly the MUA had no contractual relationship with Patrick Operations, and to preclude the employers from using, for stevedoring tasks previously undertaken by MUA labour, non-union labour that they might be disposed to employ. There is a further difficulty in the way of the operation of the orders of the kind referred to by Dixon J in JC Williamson Ltd v. Lukey and Mulholland ^[F152] :

"Probably the true rule is that an injunction should not be granted which compels, in substance, the defendant to perform his side of the agreement when the continuance of his obligation to do so depends upon the future conduct of the plaintiff in observing conditions to be fulfilled by him."

In this case, the continuance of obligations of the applicants, pursuant to the orders, would depend upon the future conduct of the first and second respondents in observing the undertakings given by them and generally their performance on a daily basis in the workplace.

[195] In Bethlehem Engineering Export Co v. Christie ^[F153] , Learned Hand J (with whom Augustus Hand and Chase JJ agreed) discussed decrees of specific performance and injunctions going to the performance of obligations which might be affected by the activities of third parties. Other considerations were relevant there, but some observations of his Honour are pertinent to this case, especially the reference to interwoven performances ^[F154] :

"Every reason which makes a specific performance of the defendants' obligation impracticable applies equally to an injunction conditional on the plaintiff's performance, since the two performances are so mutually interwoven. It may be asked why the same reasoning does not apply to cases in which a principal obtains an injunction against an agent, or an employer against an employee. So it must, if the principal's performance is a condition upon the agent's obligation, and is of a kind which demands the continuous or repeated supervision of a court."

Some of the observations of Isaacs and Rich JJ in Packenham Upper Fruit Co Ltd v. Crosby ^[F155] are also apposite here. Dealing with applications for injunctions and a decree of specific performance in respect of a contract allegedly constituted by the membership and articles of association of a co-operative between the members and the co-operative, their Honours said ^[F156] :

" Now, assuming, as this judgment does for the purpose of argument, that, notwithstanding this vague and uncertain result, there exists technically a valid binding agreement to run all the risk mentioned, it seems unarguable that the Court should by a process of equitable interposition, discretionary in the sense of doing what is nearest to justice in the circumstances and nothing highly unreasonable ^[F157] , ... compel the grower, at the peril of imprisonment, to observe as well as he thinks he can the tortuous scheme framed by the regulations.

Consequently the relief by way of `specific performance', as it is termed, which implies ordering the respondent to do something, is inappropriate."

The scheme contemplated by the orders made by North J in this case is an elaborate, if not to say tortuous one, and depends upon many imponderables. On that account also, attempts to implement it are likely to lead to numerous undesirable attempts to invite the court to intervene to solve what are in truth, industrial and business problems, and to impose arrangements which really require mutuality.

[196] It is obvious that the Court is likely to become enmeshed in the business of the parties if the orders stand. For example, on an application for permission to dismiss some of the workforce (an application which Mr Burnside QC for the MUA foreshadowed as a possibility) the Federal Court would, no doubt, be faced with arguments whether the number to be dismissed was the right number, which employees should be dismissed, whether, if the business had been conducted differently that number, or some lesser number, should be dismissed, and whether bad business decisions or the actions of the applicants or strangers led to the need for a reduced workforce, all matters of day to day business judgment. That the supervising judge might be able to refer some aspects only of such a controversy to an appropriate industrial forum does not provide a sufficient answer. Indeed such a reference could itself delay or complicate the resolution of the controversy and the conduct of the business.

[197] Order 6, the Mareva injunction, requires some separate consideration. The conditions for the grant of a Mareva injunction are those stated by Deane J (with whom Mason CJ, Wilson, Brennan and Dawson JJ agreed) in Jackson ^[F158] :

"As a general proposition, it should now be accepted in this country that a `Mareva injunction can be granted ... if the circumstances are such that there is a danger of [the defendant's] absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that the plaintiff, if he gets judgment, will not be able to get it satisfied' ^[F159] ...".

I would also refer to Z Ltd v. A-Z and AA-LL ^[F160] in which Kerr LJ warned against any too ready an inclination to grant relief of this kind:

"it is clear that the jurisdiction may be properly exercisable in many cases which are not limited to situations where the defendant is foreign or only has some tenuous connection with this country by reason of having assets here. On the other hand, it would not be properly exercisable against the majority of defendants who are sued in our courts. In non-international cases, and also in many international cases, the defendants are generally persons or concerns who are established within the jurisdiction in the sense of having assets here which they could not, or would not wish to, dissipate merely in order to avoid some judgment which seems likely to be given against them; ... the great value of this jurisdiction must not be debased by allowing it to become something which is invoked simply to obtain security for a judgment in advance, and still less as a means of pressurising defendants into settlements."

The conditions for an order in terms of order 6 are not satisfied here. There is no evidence that Lang Corporation Ltd or any member of the group is about to secrete its assets offshore. Nor is there any suggestion that the net worth of the group is in some other way about to be diminished to defeat the first or second respondents or other creditors. The group and each member of it is, in any event, bound by the Corporations Law to deal with its assets in such a way as not to defeat its creditors. Those considerations alone require the discharge of order 6, but there are also these matters which militate against its maintenance. Damages, if the MUA succeeds, do have the potential to be substantial but just how substantial will depend upon many factors and I do not purport to state a catalogue of them when I refer to the following:

(i)

proof at the trial of the MUA's case in accordance with the principles governing a grave allegation such as conspiracy ^[F161] ;

(ii)

the extent to which industrial action, even protected industrial action might, in any event, have brought the employers to their knees financially;

(iii)

the extent to which redundancy payments may operate to reduce damages;

(iv)

the obligation of the MUA to mitigate their loss;

(v)

whether competition might have forced the Patrick group out of business;

(vi)

in an assessment of exemplary damages the degree to which the conduct of the MUA has been a contributing factor; and

(vii)

whether, having regard to the return on, and cost of, shareholders' and financiers' capital, the applicants would have been able to, or indeed would have wished to remain in this, rather than embark upon some other business, or might have decided to make a return of capital to the shareholders and to cause a voluntary winding up of the business.

In short, self evidently, this is a troubled industry in which the futures of some employers and employees would in any event be matters for conjecture. There is no obligation upon any person or corporation to remain in a particular business so long as each takes proper care of his, her or its legal obligations in going out of it. Business people and corporations must be entitled to set a rate of return at a level that they need to achieve to justify the effort and capital employed in a business, in default of which they are entitled to discontinue that business and use their capital and effort elsewhere.

[198] Despite all the ingenuity that Courts of Equity may and should bring to the moulding of injunctions to remedy (or halt) unlawful activities, there are situations in which the impracticability and inappropriateness of the supervision by the Court of orders intended to achieve that end are such that the parties must be left to their remedies in damages. In my opinion, this is such a case. This is a case, in which, to put the matter another way, the orders are of insufficient certainty to justify their making. The grounds for the grant of the Mareva injunction were not made out. The orders purport, as a practical matter, to create new, and destroy former contractual rights and obligations. They go beyond the preservation of the status quo. Furthermore, the fact that they are seriously flawed, as a matter of principle, in some respects in view of their interdependence would, for that reason alone point to a serious error in the exercise of his Honour's discretion generally at first instance and they suffer from the defect that if the applicants were to succeed at the trial, restoration to their prehearing position would be a practical impossibility.

[199] It is unnecessary for me to consider any further the other grounds argued by the applicants. For the reasons I have given, and, because the orders under challenge, orders 1 to 6, are so interdependent, I would discharge all of them. Accordingly, the orders I would make would be, application for special leave allowed, appeal allowed, set aside the orders of the Full Court of the Federal Court, in lieu thereof order that the appeal to that court be allowed, and the orders of North J 1 to 6 set aside and discharged.

[200] It would follow from the way in which I would determine the case, the first and second respondents would have to pay the costs of the applicants and the administrator in this Court, the costs in the Federal Court, if any, to be dealt with by that court.