FEDERAL COURT OF AUSTRALIA

Minister for Sustainability, Environment, Water, Population and Communities v Shri Ganesh Associates Pty Ltd [2013] FCA 462

ON THE UNDERTAKING OF THE APPLICANT PROFFERED BY ITS COUNSEL AS TO THE USUAL UNDERTAKING AS TO DAMAGES, THE COURT ORDERS THAT:

1.    The injunction granted by Justice Foster in orders 1 and 2 of the urgent orders made on 4 May 2013 remain in effect until the final determination of the first instance proceedings in this Court.

2.    The applicant file and serve an application on or before 17 May 2013.

3.    The applicant file and serve any further evidentiary material on which it intends to rely on or before 31 May 2013.

4.    The respondent file and serve it’s evidentiary material by 28 June 2013.

5.    The applicant file and serve it’s evidentiary material in response to the respondent by 12 July 2013.

6.    The matter be stood over for further directions on 23 July 2013 at 9.30am.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The parties are in agreement this morning that the interlocutory injunction granted by Foster J on Saturday morning ought to be continued until the determination of the proceedings at trial. The statutory regime under which the Minister moves is the Fuel Quality Standards Act 2000 (Cth) and the Fuel Quality Standards Regulations 2001 (Cth). In effect, the Minister seeks an order that the respondent not sell diesel with a flashpoint below 61.5ºC. Although the parties are in agreement that a further injunction ought to be granted, the Minister would prefer if possible not to proffer an undertaking as to damages.

2    In a number of regulatory statutes, the ability of a regulator to obtain an injunction without proffering an undertaking as to damages is explicitly recognised; see for example the Australian Competition and Consumer Act 2010 (Cth). No such provision exists, so I am told, in the Fuel Quality Standards Act 2000 (Cth). One has, therefore, the circumstance that an equitable injunction is sought in the Court’s auxiliary jurisdiction to enforce the requirements of the statute. I can see no reason why, in principle, the ordinary requirements attending the grant of such injunctions ought not to apply and, therefore, in my opinion it ought to be a condition of the grant of such an injunction that the Minister proffer the undertaking. The Minister indicated that if that was my view he would proffer the undertaking, and I note that the undertaking has now been proffered.

Associate:

Dated:    7 May 12013